Section 397 IPC: Mere exhibition, brandishing or holding weapon openly by offender to threaten and create fear or apprehension in mind of victim is sufficient, says Supreme Court - The Daily Guardian
Connect with us

Legally Speaking

Section 397 IPC: Mere exhibition, brandishing or holding weapon openly by offender to threaten and create fear or apprehension in mind of victim is sufficient, says Supreme Court

Published

on

While not leaving even an iota of doubt in the mind of anyone, the Supreme Court in the fitness of things has minced just no words in a brief, brilliant, bold and balanced judgment titled Ram Ratan Vs State of Madhya Pradesh in Criminal Appeal No. 1333 of 2018 that was delivered finally on December 17, 2021 to hold that mere exhibition, brandishing or holding a weapon openly by offender to threaten and create fear or apprehension in the mind of the victim is sufficient to constitute an offence under Section 397 of IPC. It must be apprised here that the Bench of Apex Court comprising of CJI NV Ramana, Justice AS Bopanna and Justice Hima Kohli was considering an appeal assailing the Madhya Pradesh High Court’s order of upholding the conviction by trial court under Section 392/397 of IPC and Sections 11/13 of Madhya Pradesh Dakaiti Aur Vyapharan Pravbhavit Kshetra Adhiniyam 1981 Act (“Act”). It cannot be lost on us that the Bench while partly allowing the appeal set aside the judgment to the extent it convicted the appellant under Section 397 IPC read with Sections 11/13 of MPDVPK Act, 1981 and sustained the appellant’s conviction under Section 392 IPC.

To start with, this learned, laudable, landmark and latest judgment authored by Justice AS Bopanna for a Bench of Apex Court comprising of himself, CJI NV Ramana and Justice Hima Kohli sets the ball rolling by first and foremost putting forth in para 1 that, “The appellant is before this Court in this appeal assailing the judgment dated 23.02.2017 passed by the High Court of Madhya Pradesh in Criminal Appeal No. 691/2013 titled Ram Ratan vs State of Madhya Pradesh. Though the said appeal was disposed of by the High Court along with the companion appeal, the consideration herein is limited to the case against the appellant herein i.e. Ram Ratan who was arrayed as the first accused before the trial court.”

To put things in perspective, the Bench then envisages in para 2 that, “The appeal before the High Court was filed by the appellant, being aggrieved by the judgment dated 31.07.2013 passed by the Special Judge (MPDVPK Act) 1981, Sheopur in Special Case No. 13/2013 (old case No. 26/2012). Through the said judgment, the trial court has convicted the appellant along with the other two accused namely, Chotu and Raju alias Rajendra under Section 392 and 397 of Indian Penal Code (“IPC” for short) read with Section 11/13 of Madhya Pradesh Dakaiti Aur Vyapharan Pravbhavit Kshetra Adhiniyam 1981 Act (“MPDVPK Act, 1981” for short) and sentenced the appellant and other accused to rigorous imprisonment of 7 years with fine of Rs. 1000/-, in default of the same, to undergo imprisonment for a further period of 4 months. The co-accused Raju alias Rajendra was further convicted and sentenced under Section 25 (1-B) (a) of Arms Act to one year rigorous imprisonment with fine of Rs. 500/, in default of the same, to further undergo 2 months rigorous imprisonment. Though all the three accused had filed the respective appeals before the High Court against the said conviction and sentence, the co-accused Chotu died during the pendency of his appeal, due to which the said appeal abated. As noted above, though the appeal of Raju alias Rajendra was also considered by the High Court through the common judgment, the present appeal is filed by the appellant alone and as such the conviction and sentence of the appellant based on the contentions put forth on his behalf only are adverted to in this judgment.”

While elaborating on the facts of the case, the Bench then enunciates succinctly in para 3 that, “The brief facts are that one, Rajesh Meena lodged a complaint on 27.06.2012, alleging that on the intervening night of 26-27/06/2012, while he was sleeping in the hut constructed in the field to guard the crops, at about 02:30 a.m, the appellant along with Raju alias Rajendra and Chotu came to him and woke him up. The said Raju alias Rajendra was having a gun with him and on pointing the same towards the chest of the complainant, demanded to part with the money. The complainant informed that he did not have any money, due to which the key of his motorcycle was snatched and the said Raju alias Rajendra also took out the mobile phone from the pocket of his shirt. Thereafter, all the three accused persons forced the complainant to sit on the motorcycle along with them. When they reached the village Nanawat, the motorcycle got punctured and therefore all the persons compelled the complainant to get down from the motorcycle and the motorcycle was taken away. By the said time since it was dawn, his uncle named Tulsiram was passing by to milk the buffaloes. The complainant narrated the incident, following which, steps were taken to lodge the complaint. The police having taken action, recovered the motorcycle as also the mobile phone and apprehended the accused. The police on completing the investigation filed the chargesheet against the appellant for the offences under Sections 392/397 of IPC and under Sections 11/13 of MPDVPK Act, 1981.”

As it turned out, the Bench then goes on to disclose in para 4 that, “The trial court framed charges through the order dated 26.02.2013 under Sections 392/397 of IPC and Sections 11/13 of MPDVPK Act, 1981 against the appellant and Chotu, while an additional charge under Section 25 (1-B) (a)/27 of the Arms Act was framed against the other co-accused namely, Raju alias Rajendra. The appellant and his co-accused having pleaded not guilty, stood trial in the matter.”

While continuing in the same vein, the Bench then observes remarkably in para 5 that, “The trial court having noted the evidence tendered through PW1 to PW12, the documents which were marked and the material objects identified, arrived at its ultimate conclusion. While doing so, the trial court has referred in detail to the evidence tendered by the complainant Rajesh (PW1) who narrated the entire incident from the time he was woken up in the midnight and stated about having identified the accused as there was a light burning in the hut. Tulsiram (PW2), uncle of the complainant and Mukesh (PW3), brother of the complainant corroborated the version stated by the complainant. Dhanpal (PW5), father of the complainant had also stated with regard to the sequence in which he had come to know about the incident in the same sequence as had been stated by PW3. Mahavir (PW4), Ramjilal (PW6) and Dhanjeet (PW7) are the witnesses to the seizure of motorcycle and the gun respectively. However, PW6 and PW7 had turned hostile. Chandrabhan Singh (PW8) is the witness who examined the 12-bore gun. A.L. Azad (PW11) is the police officer who arrested the accused and the other witnesses are the procedural official witnesses.”

As we see, the Bench then forthrightly remarks in para 6 that, “The trial court on analysing the said evidence returned the finding that the appellant and his co-accused had indulged in the incident complained of and therefore held the charge to be proved. The conviction and the sentence were accordingly handed down. The appellant and his co-accused while assailing the judgment of the trial court, apart from contending that the case has been falsely alleged against them, had also contended that the charge under Section 397 of IPC cannot be sustained. It was their case that the firearm even if was proved to be carried, had not been used and as such the charge under Section 397 IPC would not lie. The High Court having adverted to the matter in detail has re-appreciated the evidence with regard to the incident and accordingly upheld the judgment passed by the trial court convicting the appellant and sentencing him in the manner as has been done. The appellant therefore claiming to be aggrieved by the judgment passed by the trial court and upheld by the High Court, is assailing the same in this appeal.”

The concluding section is available on thedailyguardian.com

Most significantly, what forms the real backbone of this notable judgment is then dwelt upon exhaustively in para 17 wherein it is held aptly that, “From the position of law as enunciated by this Court and noted above, firstly, it is clear that the use of the weapon to constitute the offence under Section 397 IPC does not require that the ‘offender’ should actually fire from the firearm or actually stab if it is a knife or a dagger but the mere exhibition of the same, brandishing or holding it openly to threaten and create fear or apprehension in the mind of the victim is sufficient. The other aspect is that if the charge of committing the offence is alleged against all the accused and only one among the ‘offenders’ had used the firearm or deadly weapon, only such of the ‘offender’ who has used the firearm or deadly weapon alone would be liable to be charged under Section 397 IPC.”

No doubt, what the Apex Court has held in para 17 of this cogent, commendable, composed and convincing judgment must be adhered to by all the courts in totality whether it is the trial courts or the High Courts.

To say the least, it was also very rightly held in para 26 that, “The judgment dated 19.10.2012 passed by the Special Judge, (MPDVPK Act) in Special Case No. 13/2013 (Old Case No. 26/2012) insofar it has convicted the appellant under Section 397 IPC read with Sections 11/13 of MPDVPK Act, 1981 and upheld by the High Court of Madhya Pradesh in Criminal Appeal No. 691/2013 are set aside to that extent. The conviction of the appellant under Section 392 IPC by the trial court and upheld by the High Court is sustained. The sentence imposed on the appellant is modified to that of the period of imprisonment undergone by him till this day. The fine imposed and default sentence thereof is retained. The appellant is ordered to be set at liberty forthwith if the fine is paid and he is not required to be detained in any other case. The appeal is allowed in part to the extent indicated above. All pending applications, if any, shall stand disposed of.” It is also worth noting that the Apex Court very rightly cited the most relevant judgments in this noteworthy judgment as for instance that of Phool Kumar vs Delhi Administration (1975) 1 SCC 797, Dilawar Singh vs State of Delhi (2007) 12 SCC 641 and Ganesan vs State Rep. by Station House Officer Crl. Appeal No. 904 of 2021 among others to support its findings that it reached. All in all, the sum and substance of this notable judgment is that mere exhibition, brandishing or holding weapon openly by the offender to threaten and create fear or apprehension in mind of victim is sufficient to constitute an offence under Section 397 of IPC. No denying it!

The Daily Guardian is now on Telegram. Click here to join our channel (@thedailyguardian) and stay updated with the latest headlines.

For the latest news Download The Daily Guardian App.

Legally Speaking

Breaching Promise to Marry Will Not Amount to Offence of Cheating Under IPC: Karnataka HC

Published

on

In a significant development, we saw how the Karnataka High Court in a learned, laudable, landmark and latest judgment titled Sri Venkatesh and others vs State of Karnataka and Smt Gulzar GP in 2022 LiveLaw (Kar) 24 and Criminal Petition No. 5865 of 2021 that was delivered finally on January 13, 2022 while quashing the FIR that was registered against a man and his family has reiterated that not abiding with the promise of marriage will not amount to the offence of cheating under Section 420 of the Indian Penal Code. It ought to be mentioned here that a single-Judge comprising of Justice K Natarajan while allowing the petition filed by Venkatesh and others said that, “Absolutely there is no ingredient stated by her in order to show that there is a criminal intention of cheating by petitioner No. 1 and thereby, he has promised to marry her but has broken his promise.” Very rightly so!

To start with, a single Judge Bench comprising of Justice K Natarajan of the Karnataka High Court sets the ball rolling by first and foremost putting forth in para 1 that, “This petition is filed by the petitioners/accused Nos. 1 to 4 under Section 482 of Cr.P.C. for quashing the FIR in Cr.No.157/2020 registered by the Ramamurthy Nagar Police Station for the offences punishable under Section 420, 506 read with Section 34 of IPC.”

On the one hand, while elaborating on the prosecution version, the Bench then specifies in para 3 that, “The case of the prosecution is that on the complaint of respondent No.2, the Police registered a case on 03.05.2020 wherein, it is alleged that the about 8 years back she came to know petitioner No.1 and both of them fell in love with each other and petitioner No.1 agreed to marry her. Subsequently, he left her and said to have married some other lady as his family members supported his marriage with some other lady. Therefore, she filed a complaint against petitioner No.1 and his other family members for having cheated her.”

On the other hand, the Bench then while dwelling on petitioners contention states in para 4 that, “Learned counsel for the petitioners contended that mere promise of marriage and not marrying her cannot be said to be a cheating as per the provision of Section 415 of IPC. Absolutely there is no ingredient for invoking the said section. After the filing of the case in May-2020, absolutely there no investigation by the Police in spite of the petitioners appearing before the Police after obtaining the bail and there is no progress. Respondent No.2 has filed the complaint only to harass the petitioners. Hence, prayed for quashing the FIR.”

To put things in perspective, the Bench then most crucially observes in para 6 that, “Having heard the arguments and perused the records, admittedly respondent No.2 filed complaint stating that accused No.1/petitioner No.1 fell in love with her and he has promised to marry her. Subsequently, he failed to marry her and he married somebody else and other petitioners said to have helped petitioner No.1 to marry some other lady. A plain reading of the complaint would reveal that it does not attract any ingredient of Section 415 of IPC in order to show that the accused persons have committed the offence under Section 420 of IPC and also she has just stated that the accused have also threatened her in order to attract Section 506 of IPC. Absolutely there is no ingredient stated by her in order to show that there is a criminal intention of cheating by petitioner No.1 and thereby, he has promised to marry her but has broken his promise.”

To be sure, the Bench then enunciates in para 7 that, “Learned counsel for the petitioners relied upon a Single Bench judgment of the High Court of Judicature at Madras, in the case of K.U. Prabhu Raj Vs. State by Sub Inspector of Police, A.W.P.S. Tambaram and another reported in 2012-3- L.W.770 wherein, the Court has held at paragraphs 16 and 17 as under:

“16. A cursory perusal of the above provision would make it clear that there are atleast three essential ingredients constituting an offence of cheating which should be made out from the materials available on record. They are as follows:-

‘(1) Deception of any person;

(2) Fraudulently or dishonestly inducing that person

(i) To deliver any property to any person or;

(ii) To consent that any person shall retain any property, or and

(3) Intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.’

17. The learned counsel for the second respondent would further submit that the offence involved in this case falls within the ambit of the third limb of Section 415 I.P.C as enumerated above. According to the learned counsel, but for the promise made by the petitioner, the daughter of the second respondent would have married someone-else and settled down in her life. Thus, according to him, the petitioner has committed a clear offence of cheating. In my considered opinion, it is not so. As has been held by the Division Bench of the Calcutta High Court in Abhoy Pradhan v. State of W.B case (cited supra), mere promise to marry and later on withdrawing the said promise will not amount to an offence of cheating at all. On such false promise to marry, the person to whom such promise was made should have done or omitted to do something that he would not done or omitted to do but for the deception. In this case, absolutely, there are no materials available on record to show that because of the promise made by the petitioner, the daughter of the second respondent has done anything or omitted to do something which has the tendency to cause damage or harm to the body or mind or reputation or property of the daughter of the second respondent. In the absence of the same, the entire allegations found in the records, in my considered opinion, would not make out an offence under Section 417 or 420 I.P.C., at all.”

Finally and far most significantly, the Bench then concludes by holding succinctly in para 8 that, “The Hon’ble Supreme Court also has categorically held in the case of S.W.PALANITKAR AND OTHERS VS. STATE OF BIHAR AND ANOTHER reported in (2002) 1 SCC 241 at paragraph No.11 that mere breach of contract cannot give rise to any criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction and the time when the offence is said to have been committed. Here in this case, petitioner No.1 is said to have promised to marry respondent No.2, but failed to marry her. In view of the judgment of the Hon’ble Supreme Court, respondent No.2 has failed to make out a case of criminal intention of petitioner No.1 from the beginning for cheating the complainant. That apart, the aforesaid judgment of High Court of judicature at Madras is applicable to the case where the promise of marriage will not attract Section 420 of IPC. This Court has held in Crl.R.P.No.233/2020 dated 24.02.2020 in the case of Sri.D.Ramesh Sinha Vs. State of Karnataka that as a promise of marriage and breach of contract will not attract the provisions of Sections 417 and 420 of IPC. Such being the case, continuing the proceedings or investigation against the petitioners is abuse of process of law and therefore, the same is liable to be quashed. Accordingly, I pass the following;

ORDER

The petition is allowed. The investigation against this petitioner in Cr.No.157/2020 registered by the Ramamurthy Nagar Police Station is hereby quashed.”

In conclusion, we thus see that the petition is allowed and charges registered against the petitioner is quashed. We thus see that the Karnataka High Court makes it explicitly clear that breaching promise to marry will not amount to offence of cheating under IPC. No denying it!

Continue Reading

Legally Speaking

PRISONERS SHOULD HAVE THE RIGHT TO VOTE: TIME TO AMEND THE RPA ACT

Raju Kumar

Published

on

INTRODUCTION

India is considered as the world’s “largest democracy” country. Election is celebrated as a festival in India, which can be evident from the recent incidents where the election rallies were conducted even during the COVID times. On every 25th January, we celebrate this day as ‘National Voters Day’. However, for a long time, we have denied the most fundamental right of suffrage to almost 4 lakh eligible voters. According to the ‘Prisoner Statistics India, 2018’, mentioned by the National Crime Record Bureau (NCRB), shows a total of 4,68,094 prisoners out of which 3,25,600 are those who were undertrials and 1,40,000 are convicts lodged across 1,339 prisons in India. The prisoners have been restricted from voting under Section 62 (5) of the Representation of the People Act, (RPA)1951, which reads as “No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police: Provided that nothing in this sub-section shall apply to a person subjected to preventive detention under any law for the time being in force”. Ironically, during the Assembly elections 2016, one in three MLAs have a criminal record. Interestingly, no law prohibits it. 

It has been more than 70 years since the right to vote has been denied to prisoners. In this article, we will see why the legislation should amend the RPA Act. 

HISTORICAL BACKGROUND AND THE JUDICIAL APPROACH.

RPA act came into force in the year 1951 with the aim to provide the norms, rules, and regulations of the free and fair elections to the respective houses of parliament and to the houses of the legislature of each state. Further, it also talks about the disqualifications and qualifications for the membership of those houses. Moreover, it also mentions the corrupt offenses and practices in connection with the offenses which are committed by some of the politicians which may include bribery or distribution of liquor, etc. against the votes.     

Supreme Court of India, in the case of Anukul Chandra Pradhan v. Union of India (AIR 1997 SC 2814), rejected the petition seeking the right to vote for prisoners. The court while giving the judgment observed why such a ban was in place because of the following reasons (i.) Resource crunch as permitting every person in prison also to vote would require the deployment of a much larger police force and greater security arrangements. (ii) A person who is in prison as a result of his own conduct cannot claim equal freedom. (iii) To keep persons with criminal backgrounds away from the election scene.

ARGUMENTS AGAINST 

The major arguments which are against this right are: – (i) Civil death should be part of the punishment. (ii) Prisoners have broken the social contract and have voluntarily put themselves outside the social order (iii)It Preserves the purity of the ballot box (iv.) Government has an obligation to those who obey laws to punish those who break laws (v.) To disallow those who have broken laws to engage in the political process shows how much respect society has for laws (vi.) Powerful moral symbol from the society that the convict’s behavior is unacceptable (vii) It will act as a deterrent. 

ARGUMENTS IN FAVOR 

The major arguments which are in favor of this right are: – (i) Civil death is outdated. (ii) Social contract cannot be negotiated away (iii) Undermines the democratic polity by denying the vote to a section of the population. (iv) Elected should not be allowed to decide the electorate. (v) Allowing convicts to vote will encourage respect for the law. (vi) Symbolic statement to the convict that they are acceptable. (vii) Allowing prisoners to vote will be a lesson in civic education. 

PRISONERS’ RIGHT TO VOTE: OTHER COUNTRY SCENARIO 

Although, there is no official data that can indicate a clear pattern on the right to vote for prisoners around the globe. However, a report by BBC (2012) lists 18 European countries which have given the right to vote to the prisoners. In addition to this, Slovenia has also given the right to all its prisoners to vote (Liberty 2016). Interestingly, Irish Government in the year 2006, gave the right to vote even without any public outcry demanding it, without any media controversy, or judicial decision. By doing so, Ireland adhered to its human rights commitments learning through the best international civil rights practices of providing the right to vote to all citizens including prisoners. Moreover, countries such as Iran, Israel, and Pakistan have also provided the right to vote to their prisoners. 

Moreover, In the African Continent countries such as South Africa, Ghana, Kenya, and Botswana have also provided their prisoners with the right to vote in elections. However, there are many other countries that impose some restrictions. For Instance, the United Kingdom (UK) and New Zealand. In Germany, those prisoners are exceptions from the voting right who have been convicted of terrorism charges. Further, in Australia, those prisoners who are exempted from their voting rights have been sentenced to a minimum of three years. Interestingly, countries like France don’t impose a default ban on the prisoners’ right to vote. Rather it depends upon the court on a case-to-case basis. Moreover, in countries like Italy and some states in the US, those who have been convicted can lose their right to vote even after their release. 

WHY INDIA SHOULD GIVE THE RIGHT TO VOTE TO PRISONERS 

The arguments against prisoners’ right to vote can be dismissed majorly on the two grounds. One is that whenever a person is subject to confinement, it is a result of imprisonment in itself and no additional punishment should be inflicted on that person. Another major argument is that the purpose of prison is not merely “Punishment” in the physical context, but the aim of the prison is to reform that person and prepare to rehabilitate and reintegrate into society. 

The United Nations’ Standard Minimum Rules for Treatment of Prisoners (Nelson Mandela Rules), in 1955 had already defined the purpose of imprisonment in its articles 57 and 58, and what treatment must be given to the prisoners in its articles 60 and 61. Article 57 of the rule reads as “Imprisonment and other measures which result in cutting off an offender from the outside world are afflictive by the very fact of taking from the person the right of self-determination by depriving him of his liberty. Therefore, the prison system shall not, … aggravate the suffering inherent in such a situation”.

Further article Article 58 states that, “The purpose and justification of a sentence of imprisonment or a similar measure deprivative of liberty is ultimately to protect society against crime. This end can only be achieved if the period of imprisonment is used to ensure, so far as possible, that upon his return to society the offender is not only willing but able to lead a law-abiding and self-supporting life”.  

Moreover, Article 60 states that, “The regime of the institution should seek to minimize any differences between prison life and life at liberty which tend to lessen the responsibility of the prisoners or the respect due to their dignity as human beings”.

By denying the right to vote to the prisoners, India violates the above-said Provisions. 

VOTING RIGHTS OF THE PRISONERS: THE WAY AHEAD

India is the most democratic country in the world. However, it has denied the Prisoners’ right to vote for a long period of time. RPA act imposes restrictions on the same, which has been discussed above. No one can deny from this fact that elections give an opportunity to speak about our disappointments and problems with the state of affairs in the country, while also taking the opportunity to campaign for our demands. Whenever we deny the right to vote of the prisoners, we push the prisoner further away from society. A citizen without having the right to vote has no existence in a democracy. Prisoners are mostly dependent on others to become their voice and raise issues on their behalf. Hence, one direct impact which prisoners’ right to vote will bring is the attention from policymakers regarding the needs of prisoners. Apart from this point that the prisoners have a small population as compared to the size of other communities, even then a moral responsibility would stand for vote seekers and subsequent winners of power to be responsive towards demands of the prisoners. Another aspect we should keep in mind is that laws are made and changed with different governments, while rights have been enshrined as fundamental. Change is the nature of the world, what we consider a crime today, might be legal tomorrow. Hence, Hence, a right as fundamental as the right to vote, should not be dependent on the status of imprisonment or conviction. It is the time when the Parliament should come forward to amend the RPA Act, and the right to vote should be granted to Prisoners too.  

Continue Reading

Legally Speaking

The doctrine of anticipatory bail and judicial discretion under Section 438 of the Code of Criminal Procedure

Published

on

INTRODUCTION

The provision provided for in section 438 of the Code of Criminal Procedure- Direction for grant of bail to a person apprehending arrest which is also referred to as anticipatory bail in common parlance is a bail sought for, in anticipation of the arrest. The provision of anticipatory bail has been added in the Code of Criminal Procedure, 1973 because of the social stigma that is associated with the arrest of a person. That is to say, society attributes negative values to an arrested person and looks on with great ignominy. Moreover, though the police most of the time work in the furtherance and within the sweep of its duty but are sometimes influenced politically. This kind of bias can lead to needless physical and mental harassment to the person detained, metaphorically speaking, even though he has clean hands. The political rivalry which is intended to degrade the image and bring disgrace by implicating him in a false case takes a toll on the personal liberty of the person. This is where the role of Judiciary steps in, in adjudicating and applying the wide discretionary power the Indian Legislature has vested it with. The Code of Criminal Procedure (Amendment) Act, 2005 on the recommendations of the 203rd Report of the Law Commission of India conferred the jurisdiction on the High Court and the Court of Sessions for a direction granting bail to a person apprehending arrest under Section 438(1) of Cr.P.C. While making such direction under subsection (1), the High Court or the Court of Sessions may direct in the light of the facts and circumstances of the case, “as it may think fit”, after taking into consideration the factors laid down in subsection (1). The judicial discretionary power under Section 438, Cr.P.C., is of a wide ambit, the same can be ascertained by the legislative intent which is manifested in the verbatim of the section, specifically the use of “as it may think fit” in subsection (2). Therefore, the legislature has conferred this wide discretionary power in the higher echelons of the judiciary to avoid the possibility of flawed decision making, however, to rule out the risk in totality the decision of the High Court and the Court of Sessions can be subjected to revision and appeal. After having reflected on the abovementioned provision, the problem before the researcher is- considering the judicial trend of a few cases, one of them being a recent case of the year 2019- P Chidambaram v. Directorate of Enforcement; the purview of the judicial discretionary power under Section 438, Cr.P.C., has been generalised, to not be applied to cases of ‘economic offences’. On the other hand, checks and balances in the form of broad guidelines have already been laid down in the landmark case of Gurbaksh Singh Sibbia v. the State of Punjab so the discretion is not left unregulated. Further, the aforementioned case states that “the generalisation of any sort destroys the very purpose of grant of judicial discretion by the legislature”. So, the article focuses on the question that- What has been the approach of the Indian Judiciary vis-a-vis the judicial discretionary power vested with it in Section 438, Cr.P.C.- broad guidelines or generalised and narrow rules? Further the article would also be taking into consideration how the doctrine of anticipatory bail came into existence?

The emergence of the doctrine of Anticipatory Bail provided for in Section 438, Cr.P.C.

The Code of Criminal Procedure, 1898 did not accommodate a provision corresponding to present section 438 with respect to the grant of anticipatory bail. Anticipatory bail was, however, granted in certain cases under the High Courts’ inherent powers though the preponderant view negated the existence of any such jurisdiction. In the Amendment Act, 1955 the words “suspected of the commission of an offence” was added to the Code of Criminal Procedure, 1898 concerning the provision of bail, i.e. Section 497- “When any person accused of or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life.” These words were interpreted to mean that the Legislature has conferred wider powers on the court. The amended section lays down that if a person appears before the Court, he can be released on bail by the Court. The Madhya Pradesh High Court, therefore, went ahead with the concept of anticipatory bail in the case of Abdul Karim Khan v. State of Madhya Pradesh and ordered that the applicant shall not be arrested by the police and remain on bail till the decision of the case. However, State of Madhya Pradesh v. Narayan Prasad Jaiswal overruled the above-mentioned case on the ground that, bail could not be granted to a person who had not yet been arrested for an actual charge of any offence or even on suspicion of his complicity in any offence and who was not required to surrender to any custody under any order of arrest but who apprehended that they would be arrested as persons accused of or suspected of the commission of an offence. So, even before the recommendations made by the 41st Report of the Law Commission of India in 1969 with respect to the inclusion of a provision corresponding bail in anticipation of arrest, there had already been a conflict of opinions within the Indian Judiciary in this regard. The Law Commission in its 41st Report recommended that provision relating to anticipatory bail should be introduced as Section 497-A in the Code of Criminal Procedure, 1898. The Commission viewed this as a necessity because of the increase in the number of cases pertaining to political rivalry wherein sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them by getting them detained in jail for some days. The Central Government after considering the recommendations introduced clause 447 in the draft Bill of the new Code of Criminal Procedure, 1970 to confer express powers concerning anticipatory bail on the High Court and the Sessions Court. The Law Commission of India in its 48th Report reconsidered the recommendations made in the 41st Law Report and proposed measures to prevent the provision provided for in Section 438 from abuse by dishonest petitioners. The final order should mandatorily be made after notice to the Public Prosecutor. The initial order being an interim order. Moreover, when the court is satisfied with the directions; being necessary and for the interest of justice only then it is allowed to issue such directions. Furthermore, the court should record reasons for issuing directions under the said section.

Thus, clause 447 of the draft bill appeared in the form of Section 438 of the Code of Criminal Procedure, 1973 which provided for the “Directions for grant of bail to person apprehending arrest”.

Judicial Discretion vis-a-vis Section 438 Cr.P.C.

‘Judicial discretion’ has been remarked by Lord Mansfield as “Discretion when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful, but legal and regular. The words “may if it thinks fit” used in Section 438(1) and the absence of any specific restraints on the exercise of the power to grant “anticipatory bail” clearly indicates that the legislature intended to confer and has in fact conferred a very wide discretion on the High Court and the Court of Sessions to grant “anticipatory bail”. The Law Commission of India in the 41st Report ingeminated the principles concerning bail. One of the relevant principles in this regard is that “bail is a matter of discretion if the offence is non-bailable’’. Therefore, such discretion can only be exercised for non-bailable offences. Sandhawalia, J., of Punjab & Haryana High Court in Gurbaksh Singh v. State stated that the discretion in Section 438, Criminal Procedure Code, should not be exercised with regard to an offence punishable with death or imprisonment for life unless the Court at that very stage is satisfied that such a charge is false or groundless. Under Section 438, Cr.P.C., discretionary power has been conferred on the Court to grant pre-arrest bail. The judicial discretion vested in the Court requires it to be appropriately exercised with the proper application of mind in determining whether a case is a fit case for grant of anticipatory bail or not. The court while dealing with an application for bail is required to exercise its discretion in a judicious manner and not as a matter of course. Discretion must be exercised on the basis of available material and facts of a particular case. It is really necessary that the judicial discretion exercised with respect to Section 438, Cr.P.C. has to be a cautious one. The court under Section 438, Cr.P.C. in the exercise of the judicial discretion cannot act on the basis of whims and fancies just because the discretion conferred is wide and norms have not been prescribed for that matter. The discretion exercised shall appear a just and a reasonable one. Also, anticipatory bail is not just about directions being granted on the basis of judicial discretion, the accused has to make out a case wherein he has been accused of the commission of a non-bailable offence and there must be a reasonable apprehension in his mind that he would be arrested based on such accusation. Furthermore, The Supreme Court in Siddharam Satlingappa Mhetre v. State of Maharashtra observed that the law of bail dovetails two conflicting interests namely, the obligation to shield the society from the hazards of those committing and repeating crimes and on the other hand absolute adherence to the fundamental principle of criminal jurisprudence – the presumption of innocence and the sanctity of individual liberty. Therefore, the judicial discretion in the said section, i.e. 438, Cr.P.C. must be exercised with due consideration to not only the interest of the society but also the interest of the accused.

An analysis of the approach adopted by the Indian Judiciary- broad guidelines v. narrow rules in regard to Section 438, Cr.P.C.

The Law Commission of India in the 41st Report contemplated the question of providing for conditions under which anticipatory bail could be granted. But, it was concluded that it is not practicable to enumerate the conditions exhaustively. Laying down of conditions would amount to prejudging the case. Therefore, the discretion was conferred with the higher echelons of the judiciary with a view that the superior courts would exercise this discretion properly. It is noteworthy to be informed about certain case laws wherein various courts have decided on the point that economic offences cannot come under Section 438, Cr.P.C. as they are supposed to be categorised in a different class and, therefore, direction for anticipatory bail cannot be granted. The Supreme Court of India in State (CBI) v. Anil Sharma the court noted that the provision under Section 438, Cr.P.C. has to be used sparingly, specifically in the case of economic offences, that constitute a class apart. Furthermore, in Directorate of Enforcement v. Ashok Kumar Jain the Supreme Court of India noted with regards to anticipatory bail that, in offences relating to economy and matters involving finance, the accused is not entitled to anticipatory bail. The Supreme Court of India in another case, Y.S. Jagan Mohan Reddy v. Central Bureau of Investigation again reiterated that economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. In the recent case of P Chidambaram v. Directorate of Enforcement, the same principle has been upheld. On the contrary, in Gurucharan Singh v. State, the court observed that there cannot be an inexorable formula in the matter of granting bail. Furthermore, in the case of Gurbaksh Singh Sibbia v. State of Punjab which is treated as an authority in law several propositions have been laid down with respect to judicial discretion in Section 438, Cr.P.C. It, thus, runs as- generalisations on matters which rest on discretion and the attempt to discover formulae of universal application when facts are bound to differ from case to case frustrate the very purpose of conferring discretion; no two cases are alike on the facts and therefore, courts have to be allowed a little free play if the conferment of discretionary power is to be made meaningful. Further, the same case observed a somewhat contrary approach and held that it is not proper to hold that in serious offences involving blatant corruption at the highest rungs of the executive and political power the discretion under Section 438, Cr.P.C. should not be exercised. It is not possible to assess the blatantness of corruption at the stage of anticipatory bail. The court further negated the stand of devising a formula that will confine the power to grant anticipatory bail within a straitjacket. A contemporary case of the year 2020, Sushila Aggarwal v. State held that the principle that anticipatory bail should not be granted normally- including the cases of economic offences, etc are not good in law and, thus, overruled the principle that “economic offences to be exonerated from the grant of anticipatory bail”. Having said that, the case of Gurbaksh Singh Sibbia v. State of Punjab a five-judge constitution bench laid down an 8 point-code that acts as a guide in exercising discretion under Section 438, Cr.P.C. until overruled by a larger constitution bench. This eight-point code as has been mentioned previously negates the idea of encompassing or restricting the judicial discretion within a straitjacket. Classifying “economic offences as a class apart” clearly narrows down the ambit of judicial discretion in the said section and, the same is against the legislative intent and the authority laid down in Sibbia. This falls under the formulation of rigid rules without analysing the uniqueness of the facts and circumstances on a case-to-case basis. Furthermore, the generalisation of the matters vested in the discretion of the judiciary manifestly frustrates the idea of conferring wide discretionary power under Section 438, Cr.P.C. Therefore, only and only broad guidelines that do not let the judicial discretionary power go unguided is intended by Section 438, Cr.P.C.

CONCLUSION

The emergence of the doctrine of anticipatory bail has been an issue of disagreement between the courts even before the recommendation in that regard was made by the 41st Report of the Law Commission of India. A provision like that of Anticipatory Bail goes a long way in preserving the interest and liberty of the accused on the basis of the principle of Presumption of Innocence that has been ingrained in the Criminal Jurisprudence. Simultaneously, the interest of the society cannot be ignored and, therefore, the exercise of judicial discretion has to be a cautious one. Secondly, the researcher submits that the generalisation and narrowing down of judicial discretion into rigid rules has never been the intention of the legislature and, therefore, frustrates the whole idea of conferring wide discretionary powers on the High Court and the Court of Sessions under Subsection (2) of Section 438, Cr.P.C. So, only and only broad guidelines that do not let the discretionary power go unguided should be relied on, for that matter.

The Code of Criminal Procedure, 1898 did not accommodate a provision corresponding to present Section 438 with respect to the grant of anticipatory bail. Anticipatory bail was, however, granted in certain cases under the High Courts’ inherent powers though the preponderant view negated the existence of any such jurisdiction.

Continue Reading

Legally Speaking

Permitting use of illegally intercepted conversations in court would violate citizens’ fundamental rights: Delhi HC

Published

on

While according the highest priority to the fundamental rights of the citizens, the Delhi High Court has in an extremely commendable, cogent, courageous, composed and convincing judgment titled Jatinder Pal Singh vs Central Bureau of Investigation in CRL. M.C. 3118/2012 that was pronounced finally on January 17, 2022 has observed that if illegally intercepted messages or audio conversations pursuant to an order having no sanction of law are permitted, it would lead to manifest arbitrariness and would promote scant regard to the procedure and fundamental rights of the citizens. We thus see that the single Judge Bench of Justice Chandra Dhari Singh of the Delhi High Court thus set aside the two orders that were passed by the Special Judge which had framed charges against one Jatinder Pal Singh in 2012 in a case registered by CBI on the basis of evidence gathered through such illegal means. It ought to be mentioned that the case alleged that there was a criminal conspiracy with the object to show favor qua recognition of the courses and grant of permission pertaining to Gian Sagar Medical College and Hospital, Patiala as mandated by the Indian Medical Council Act, 1956 and the relevant MCI Regulation and Rules for admission into 4th year of the MBBS course for the academic session 2011-2012. It also deserves mentioning that the controversy had arisen out of an alleged bribery for allowing the admissions by bypassing the deficiencies in the process and the petitioner was accused of having acted as a middleman in the alleged bribery.

To start with, it is first and foremost stated in para 1 of this judgment that, “The Petitioner has approached this Court by way of the instant petition under Sections 397 and 401 read with Section 482 of the Code of Criminal Procedure (hereinafter referred to as “Code”) for setting aside the order of the Court below dated 1 st June 2012, whereby common charges had been framed against the accused including Jatinder Pal Singh (hereinafter referred to as “Petitioner”) and the consequential order dated 4 th June 2012 framing individual charges against the Petitioner in the case titled as “CBI v. Ketan Desai and Others” pending before Special Judge CBI-5, Patiala House Courts, New Delhi.”

FACTUAL MATRIX

To put things in perspective, the Bench then envisages in para 2 that, “Before adverting to the submissions made by the learned counsels for parties, it is essential to highlight the factual background of the instant matter which is stated hereunder:

i) The impugned proceedings have arisen from the First Information Report registered by the CBI vide Case bearing No. RC 02(A)/2010/CBI/ACU-IX/New Delhi on 22nd April 2010, under Sections 7/8/11/13(2) read with Section 13(l)(d) of Prevention of Corruption Act, 1988 (hereinafter referred to as “PC Act”) and Section 120-B of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”), on the allegations that Dr. Ketan Desai, President of the erstwhile Medical Council of India (hereinafter referred to as “MCI”), entered into a criminal conspiracy with the Petitioner, Dr. Sukhvinder Singh and others with the object to show favor qua recognition of the courses and grant of permission pertaining to Gian Sagar Medical College and Hospital, Patiala (hereinafter referred to as the “GSMCH”) as mandated by the Indian Medical Council Act, 1956 and the relevant MCI Regulation and Rules for admission into 4th year of the MBBS course for the academic session 2011-2012.

ii) The prosecution’s version is that on the basis of reliable and specific information, CBI Special Unit, New Delhi had placed the mobile phones under telephonic surveillance during the period when MCI received the application for renewal of permission from GSMCH, Patiala for admission into 4th Batch of the MBBS course. The investigation further revealed that criminal conspiracy to obtain favors in the form of recommendation for permission for admission into fourth year batch for MBBS course began after deficiencies were pointed out during first inspection of GSMCH, Patiala. Accordingly, the aforementioned FIR was registered against the accused persons on the allegations as aforesaid.

iii) Subsequently, on 22nd April 2010 recovery was made wherein Dr. Kamaljeet Singh was intercepted while allegedly delivering a sum of Rs. 2 crores, as illegal gratification for the aforementioned purpose, at the residence of the Petitioner by the income tax authorities and liquor bottles were seized by the police authorities.

iv) Upon the completion of the investigation, the Final Report under Section 173 of the Code was filed on 16th September 2011 under Sections 7/8/12/13(2) and 13(1)(d) of the PC Act along with Section 120-B of the IPC in the Court of Special Judge for CBI Cases, Patiala House Courts, New Delhi.

v) Trial Court took cognizance of the same on 10th October 2011. The copies of the documents relied upon were supplied to the accused persons including the Petitioner. After hearing the arguments on charge, the Trial Court on 1st June 2012 passed a common order on charge under Sections 7/8/12/13(2) and 13(1)(d) of the PC Act along with Section 120B of the IPC as well as an individual order on charge on 4th June 2012 against the petitioner under Section 12 of the PC Act.

vi) Aggrieved by the aforementioned orders, the Petitioner has approached this Court, under Sections 397/401 read with Section 482 of the Code, praying for setting aside the impugned orders.”

Quite significantly, the Bench mentions in para 74 that, “The entire controversy has arisen out of an alleged bribery made for allowing the admissions into the 4th Batch of MBBS of the GSMCH, Patiala by bypassing the alleged deficiencies in the process. The Petitioner is accused of having acted as a middleman in the alleged bribery. However, no direct or indirect evidence implicating the petitioner is available on record that can be legally relied on to proceed with the matter. The evidence collected and produced by the investigation agency before the Court below is fraught with illegalities and no sufficient cause is made to proceed with the case qua the petitioner for the reasons as detailed hereunder:

i) The main basis of the matter for which the bribe was allegedly given i.e., the auditorium was not actually required to be constructed as a condition precedent for conducting admissions of the 4th batch of MBBS course. The factum has been verified by the appropriate authorities at various stages as stated above, hence there is no rationale of committing the alleged offence of giving of bribe.

ii) Further, the Approver on the basis of whose statement petitioner has been made an accused, was impleaded in the case without sanction from the appropriate authorities and his statement is thus inadmissible.

iii) Nothing as alleged in the recorded conversation intercepted by the investigating agency forms direct basis or has any connection whatsoever with the need for bribery, nor is there any rationale for offering of the alleged bribe. The recovery made has also been explained and accounted for by the Petitioner with evidence as being a part of the advance received by the Petitioner in lieu of sale of his village land.

iv) Tape records of the calls intercepted in the instant case are not admissible since the due procedure for such interception as mandated by the Telegraph Act and the Rules framed thereunder has not been followed. Further, even the same has not been verified in the FSL report. No further witness/evidence to implicate the petitioner is on record.

v) Additionally, the public servant who is alleged to have been involved in the said transaction has already been discharged and cannot, therefore, be prosecuted under the PC Act.

Thus, in an offence alleging conspiracy, where the main conspirator has been discharged and in the absence of evidence implicating the petitioner as a co-conspirator alleged to be a middle-man, there is no point in continuing with the case and keep the entire criminal justice machinery running endlessly especially in light of the fact that the criminal proceedings had been initiated ten years back and has stayed pending ever since.”

No less significant is what is stated in para 76(a) and in short it must be stated here that, “The most relevant piece of evidence relied upon by the prosecution, i.e., the copy of the voice-recording of the telephonic conversation allegedly involving the petitioner, is not even admissible in light of the judgment of the Hon’ble Supreme Court in the case of Anvar P.V. (Supra), the same ratio was followed by this Court in its judgment dated 20th November, 2014 in Ankur Chawla v. CBI, Crl. M. C. No. 2455/2012.”

Shortly stated, it is then encapsulated in para 77 that, “Even otherwise, the prosecution has till date not advanced anything qua the genuineness of the voice recording involving the petitioner. In the absence of a forensic analysis and report (or for that matter, any other certifying instrument) pertaining to the authenticity of the voice recording in question, it is not unreasonable to conclude that the prosecution’s case at trial would be materially impacted. In the case of Nilesh Dinkar Paradkar v. State of Maharashtra, 2011 (4) SCC 143, the Hon’ble Supreme Court has held as follows: ―

31. In our opinion, the evidence of voice identification is at best suspect, if not, wholly unreliable. Accurate voice identification is much more difficult than visual identification. It is prone to such extensive and sophisticated tampering, doctoring and editing that the reality can be completely replaced by fiction. Therefore, the courts have to be extremely cautious in basing a conviction purely on the evidence of voice identification. This Court, in a number of judgments emphasised the importance of the precautions, which are necessary to be taken in placing any reliance on the evidence of voice identification.”

Most significantly, the gist of para 78 that must be mentioned here is this: “Apart from the aforesaid, in this case, the public servant who was said to be involved in the alleged transaction has already been discharged and is not being tried for any offence under the PC Act. That leaves only the private individual i.e., the petitioner/alleged middleman to face trial for charges under Section 12 of the PC Act, read with Section 120B of the IPC, and that too without any material in the charge-sheet that the Petitioner either instigated the public servant or entered into a conspiracy with the public servant and/or the bribe giver. As such, the facts and circumstances of the present case fall within the scope of the third category set out in Section 107 of the IPC. Therefore, permitting the trial to continue would be untenable in light of the judgment of the Hon’ble Supreme Court in CBI v. V.C. Shukla, (1998) 3 SCC 410, which similarly dealt with accused who had acted as middlemen.”

Adding more to it, the Bench then enunciates in para 80 that, “Lastly, the charge-sheet against the petitioner is underpinned by the allegation of abetment under Section 12 of the PC Act without there being any admissible evidence of the demand or offer of bribe. Needless to state, such a trial would be an exercise in futility, more so because there are judicial precedents to the effect that a demand of illegal gratification is imperative for punishment (for abetment as an offence) under Section 12 of the PC Act. In fact, the judgment of the Hon’ble Supreme Court in State of Punjab v. Madan Mohan Lal Verma, (2013) 14 SCC 153, which reads as under, is applicable here: ―

11. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution.

The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convicting the accused person. (Vide Ram Prakash Arora v. State of Punjab [(1972) 3 SCC 652 : 1972 SCC (Cri) 696 : AIR 1973 SC 498] , T. Subramanian v. State of T.N. [( 2006) 1 SCC 401 : (2006) 1 SCC (Cri) 401] , State of Kerala v. C.P. Rao [(2011) 6 SCC 450 : (2011) 2 SCC (Cri) 1010 : (2011) 2 SCC (L&S) 714] and Mukut Bihari v. State of Rajasthan [(2012) 11 SCC 642 :(2013) 1 SCC (Cri) 1089 : (2013) 1 SCC (L&S) 136].).”

As a corollary, the Bench then hastens to add in para 81 that, “Therefore, in light of the facts of the case along with the material on record, and since there is no substance in the accusation levelled nor any admissible evidence is on record incriminating the petitioner, the petitioner is entitled to relief under Section 482 of the Code.”

Going ahead, the Bench then holds in para 82 that, “In view of these facts and circumstances, as well as the provisions of law, their application to the case at hand and the analysis made, this Court is inclined to allow the instant petition.”

Furthermore, the Bench then also holds in para 83 that, “For the reasons recorded above, this Court allows the instant petition as prayed for. The impugned orders dated 1st June 2012 and 4th June 2012 passed by Learned Special Judge, (CBI-05), New Delhi whereby charges have been framed qua the Petitioner, are hereby set aside.”

Going forward, the Bench then held in para 84 that, “Accordingly, the petition and pending applications stand disposed of.”

Finally, the Bench then concludes by directing in para 85 that, “The judgment be uploaded on the website forthwith.”

In essence, the key takeaway from this most noteworthy judgment by the Delhi High Court is that permitting use of illegally intercepted conversations in courts would violate citizen’s fundamental rights.

So, it can be logically deduced from this that the use of illegally intercepted conversations in courts cannot be permitted. No denying it.

Most significantly, the gist of para 78 that must be mentioned here is this: “Apart from the aforesaid, in this case, the public servant who was said to be involved in the alleged transaction has already been discharged and is not being tried for any offence under the PC Act. That leaves only the private individual i.e., the petitioner/alleged middleman to face trial for charges under Section 12 of the PC Act, read with Section 120B of the IPC, and that too without any material in the charge-sheet that the Petitioner either instigated the public servant or entered into a conspiracy with the public servant and/or the bribe giver. As such, the facts and circumstances of the present case fall within the scope of the third category set out in Section 107 of the IPC. Therefore, permitting the trial to continue would be untenable in light of the judgment of the Hon’ble Supreme Court in CBI v. V.C. Shukla, (1998) 3 SCC 410, which similarly dealt with accused who had acted as middlemen.”

Continue Reading

Legally Speaking

Cyber world: Advantages and its emerging threats

Published

on

In this modern era of globalization whole world gets connected through digitalization. Growing global economy and Innovation in Science and Technology lead to promote digitalization in our daily life. According to data of the Department of Promotion of Industry and Internal Trade states that approximately 50,000 Startups grow up in India every fiscal year. Every start-up has a base of Innovation and Technology. The companies and Commerce industry promotes digitalization in businesses because of its leads to optimum use of resources and less time and energy consumption. In this modern era, any sector of businesses cannot survive in a competitive world without their business website of them. Our education system transferred into digital space amid the Covid-19 Pandemic. Online Classes and online learning take place of Traditional Teaching techniques of the education system. Digitalization of the education system leads to increase efficiency in the learning process and decreases the cost of seeking education which may benefit the weaker section of society.

Cyber Security is becoming an important concern in every country of the world. In this era of globalization without strong cyber security, we cannot survive in global competition. Every nation of this world put forward its steps to make a strong Nation because of cyber security. Making Cyber Attacks on high-profile agencies of the enemy nation such tactics usually used by the dominant nation for making pressure on the Enemy nation by stealing highly sensitive data of this nation. The cyber cold war is an emerging threat to the world. We are required to come forward together to make Treaty on Cyber Security Issues. We are required to make a Universal Code of Conduct for Cyber Security Issues which will be followed by every united nation. For example, like United Nations made Treaty for International Peace between Nations by restraining them to make Arms in high capacity and restraining them to promote Nuclear Programme in high frequency.

CONTEMPORARY ISSUES OF CYBER WORLD

THREAT TO PRIVACY:

The government of India consistently decides the involvement of technology in public policies. The government has passed Aadhaar Act in the year 2016 which was made mandatory for every citizen of India to link his Aadhaar Card to other Important Identity documents. Government makes Aadhar Card as a Proof of Identity for every citizen of India. Making it mandatory for every citizen of India to link his Aadhaar Card to Pan Card may cause losing personal data by government machinery. The government of India may use these data for undue advantage of them. In many incidents, Leakage and stealing of data happens which may affect on the privacy of citizens of India. Right to Privacy is a Fundamental Right of Citizen of India which is enshrined in Article 21 of the constitution of India which is violated by government authorities. In the landmark Case of K.S. Puttaswamy versus Union of India (10 AIR SCC 2017) the honourable Supreme Court of India states that the Right to Privacy is an essential fundamental right of every citizen of India.

CYBER FRAUDS AND SIDE EFFECTS OF DIGITALISATION

Cyber Security is an important concern emerging in our society. Many fraud companies conceal the data of customers by using tactics of misleading Advertisements. Digitization has a proven impact on reducing unemployment, improving quality of life, and boosting citizens’ access to public services but its side effects are data theft of customers, Breaching of Copyright of Companies, Plagiarism in social media websites, Social disconnectivity.

According to data from the National, Crime Records Bureau states that 50,030 cybercrime cases were reported in the year 2020-21 in India. Cyber Fraud is the key motive and intent in 30,218 cases recorded in frauds. In India, more than 2200 cyber-attacks are committed per day, whereas cyber security is the biggest concern that emerges in society.

Increases in the number of cyber-attacks result in government increased budget and attention on cyber security. The First Cyber Attack occurred in the late 1970s but over time nature of cyber-attack changed. Phishing, data breach, cyber extortion, Identity Theft, Harassment are types of Cyber Crimes. Increasing digitalization leads to excessive use of Technology which may affect on Mental Health of People. The development of the Mind is depending on the growth of Mental Health which might be diminished due to excessive use of technology, social media by Youngsters and Adults.

CYBER WAR AND TERRORISM

In the era of digitalization, we are going to become Technology Savy but the increasing number of International Cyber Attacks cause cyberwar between two nations which is harmful to International Peace. Cyber War and Cyber Terrorism are both terms interlinked with each other. Cyber Terrorism A criminal act perpetrated by using computers and Telecommunication Capabilities resulting in violence and destruction and disruption of the Services of an enemy nation by creating fear within the Population.

The government made provision in the Information Technology Act, 2000 under Section 66 F about committing the offense of Cyber Terrorism will be Punishable by Imprisonment to Life. A recent example of cyber terrorism is Pegasus Spyware which deals with collecting personal data of High-Profile Personalities, Politicians, Supreme and High Court Judges, Military Personnel of India. Perpetrators Intention behind that is tracing personal chats and other sensitive Information of that Personalities. They used such Information for Undue Advantages.

E-GOVERNANCE AND INCLUSIVENESS OF PUBLIC

E-Governance is Important for maintaining Transparency and Accountancy in Government. Politicians are Representatives of Common People and Public Servants are the strongest pillars of Administration. They are Responsible for Citizens of India because they are elected by the Peoples of India. Promoting digitalization in government policies and Promoting E-Governance in Administration will be effected on Accountability of Government.

E-Governance gives access to common people to encourage them to participate in the decision-making process. Common People can raise questions regarding the incompetency of government. The public can access grievance redressal machinery to resolve issues that arise due to the Incompetency of the government. Inclusiveness of the Public leads to strengthening democracy in Nation.

EASE OF DOING AND PROMOTE INNOVATION

Increasing use of Technology and Internet businesses leads to ease of doing for Promoters. Process of Registration of Companies to promoting businesses on the Internet all these things are included in Ease of doing of businesses. Every Startup Included Innovation and Technology hence cyber security concerns arise for such businesses. Many times, businesses are suffered due to poor cyber security which may affect on businesses of them. Examples like the stealing of sensitive data of the Company.

LEGISLATIVE FRAMEWORK OF CYBER LAWS AND INTELLECTUAL PROPERTY ISSUES

We have come across instances of data theft, phishing, and Cyberbullying, Cyber Terrorism, etc. but Remedies are available against such instances in the legislative framework of Cyber Laws. Some short overviews of those laws are given below.

Sec. 65 of the IT Act, 2000 pertains to Tampering with computer source documents, whoever knowingly or intentionally conceals, destroys, or alters any computer source code used for a computer, computer program, or computer system which are required to be maintained or kept by law. For the time being in force shall be punished with Imprisonment up to Three Years or with a fine which may extend up to two lakh rupees, or with both.

SEC. 66 COMPUTER RELATED OFFENCES

If any person dishonestly or fraudulently, does any act such as accessing or securing access to a computer, computer system, computer network he shall be punishable with imprisonment for a term which may extend to three years or with a fine which may extend to five lakhs rupees or with both.

SEC. 66 C PUNISHMENT FOR IDENTITY THEFT

Whoever, fraudulently or dishonestly make use of the electronic signature, password or any other unique Identification Feature of any person shall be punished with imprisonment of either for a term which may extend to Three Years and shall also be liable to fine which may extend to Rupees One lakh.

SEC. 66 D PUNISHMENT FOR CHEATING BY PERSONATION

Any Person or entity creates any phishing websites, Fake Identity on the Internet for intent to steal sensitive data by deceiving any person, which act may cause to damage or harm to that person in body, Mind, Reputation or Property, is said to “Cheat” Such offense will be punishable with imprisonment of either description for a term which may extend to Three Years and shall also be liable to fine which may extend to one lakh rupees.

SEC. 66 E PUNISHMENT FOR VIOLATION OF PRIVACY

Whoever, intentionally or knowingly captures, publishes, or Transmits the Image of a Private Area of any Person without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which may extend to Three Years or with fine not exceeding two lakh rupees or with both.

Sec. 66 F Cyber Terrorism

Whoever with intent to threaten the unity, integrity, and security or sovereignty of Nation and attempting to penetrate or access a computer resource without authorization shall be punishable with Imprisonment of life.

Section 420 of the Indian Penal Code, 1860 states that cheating by personation or inducing to deliver any property shall be punishable with imprisonment for a term of three years which may extend to seven years, and a fine.

INTELLECTUAL PROPERTY ISSUES

According to section 14 of the Copyright Act, “Copyright means exclusive Right to do authorize

To Reproduce a computer program in any material form including the storing of it in any medium by electronic means. But In many Instances, problems relating to the Infringement of Copyright and Trade Marks arise in cases where cybersecurity-related issues take place.

E-COMMERCE AND DIGITAL MONEY

E-Commerce means buying and selling goods or things over the Internet. Many instances arise where data theft, fraud profiles actively work on the Internet and social media to induce people to buy a specific type of thing at a very cheap price.

Please read concluding on thedailyguardian.com

They promote such things on the Internet very systematically to take undue advantage of Buyers. We are required to take action against this fraudulent act done by fraudsters at the time such concerns arise.

Continue Reading

Legally Speaking

Cybersquatting: A plague upon the corporate identity

Published

on

INTRODUCTION

The advent of internet era has witnessed a huge surge in profits of various e-commerce and has shoved every potential business to adopt the online mode. The domain name which is an online website locator or the address of a specific entity on the internet links the company to its prospective customers and eases the process of doing business. The Internet Domain Name System (DNA), was designed from the perspective of identifying such websites by their domain names. However, the arena of internet is not bereft of manipulation. With practices of phishing, spam, impersonation, malware, counterfeits, etc gaining prominence, cybersquatting is paving its way as well. It is the practice were an individual or a business registers a domain name, identical or deceptively similar to the trademark or the domain name of other prominent business in order to gain potential customers of such business or to either sell it to them at a cost higher than that of registration, in case such prominent business has not priorly registered their domain name.

CYBERSQUATTING: A PRODUCT OF DOMAIN NAME REGISTRATION

Cybersquatting could be considered the most prominent forms of utilising the existing loopholes in law, which in this case would be the domain name registration i.e., registration on the basis of ‘first come first serve’. Since there is no pre-requisite condition as to the validity of domain name and no absolute or relative ground of refusing registration, the registrar has no other option but to register even those domain names which are product of cybersquatting. As businesses have inferred the gravity of internet, so have the cybersquatters, who are constantly posing challenges to multi-national companies, diverting their customers as well as profit.

The Covid-19 pandemic fuelled the practice of cybersquatting. As businesses were getting accustomed to the online mode, cybersquatters had already played their part. WIPO alone handled cases with an increment of 11% in 2020 in comparison to 2019 showing the spike during the pandemic.

It is crucial to understand that now domain name is not restricted solely for the purpose of identifying websites but has become a corporate asset, in importance, equal to that of a trademark. In India, since there is no legislation that explicitly prohibits cybersquatting or settles domain disputes, the role of judiciary is imperative.

The complainant can either accept the selling price of the domain name as quoted by the cybersquatter or can file for litigation or for dispute resolution under UDRP.

REMEDIES AVAILABLE IN INDIA LITIGATION

The complainant party can directly approach the court for settling the dispute. Applying the Trademarks Act 1999, the two available reliefs are: remedy of infringement, granted when the trademark is registered and the remedy of passing off, granted when the registration is not pre-requisite to avail such relief.

Indian judiciary has pronounced some landmark judgements upon cybersquatting. For instance, Yahoo Inc. v Akash Arora & Anr., where trans-border reputation was given priority even though Yahoo Inc. was not a registered trademark in India nor had its business running in India. Further, in Titan Industries Ltd v Prashanth Koorapati & Others, the Delhi High Court granted ad-interim injunction restraining the domain name holder from using the trade name “Tanishq” or any other name which is deceptively similar. Thereby, remarking upon the prospective aim of deceiving the customers of the plaintiff company.

2.2.2 DISPUTE RESOLUTION

To solve the conflict between trademark and domain name, Internet Corporation for Assigned Names and Number (ICANN), developed UDRP- Uniform Domain Name Dispute Resolution Policy in August 26, 1999. A complainant party can initiate the process by filing a complaint before the approved dispute resolution service providers listed by ICANN on the grounds that: the domain name is “identical or confusingly similar to a trade mark or service mark” of the complainant; registrant has no right or legitimate interest in respect of the domain name; and it is been registered and used in bad faith. For availing the remedy under UDRP, it is to be established that the domain name was used and registered in bad faith.

There are six ICANN approved dispute resolution service providers: Arab Center for Domain Name Dispute Resolution (ACDR), Asian Domain Name Dispute Resolution Centre, Canadian International Internet Dispute Resolution Centre (CIIDRC), The Czech Arbitrati0n Court Arbitration Center for Internet Disputes, National Arbitration F0rum and lastly, WIPO.

Amongst all, WIPO is the leading dispute service provider. WIPO following UDRP guidelines sets up a neutral panel of qualified people for resolving disputes within two months. The speedy resolution is why UDRP could be the future of dispute resolution, particularly for multi-national companies. There could only be three possible decision which could be granted by the panel: decision in favour of complainant party and transferring of the domain name to them; decision in favour of complainant party and cancelling the domain name; lastly, decision in favour of domain name registrant, specifying whether the dispute did not fell under the ambit of rule 4 (a) of UDPR policy and also to specify whether the complaint was filed in bad faith. However, there are no monetary damages granted in UDPR domain name disputes nor any injunctive relief is granted.

Various country code domain name registries also have started to adopt the UDRP or similar policies. As an exemplar, India has its own registry by the name ‘INRegistry’ under the authority of National Internet Exchange of India (NIXI). Its sets forth terms and conditions governing the ‘.in’ or ‘. Bharat’ domain name.

CONCLUSION

In contemporary times, corporate identity has not remained independent of domain name. Priorly domain name was used as a locator of websites, it has now been valued beyond that and has become a corporate asset which demands protection and instances of cybersquatting to be curbed. Apart from posing constant challenges to commercial businesses, cybersquatting damages their goodwill and forces their owners to resolve such issues in a limited time period.

Comparing the remedies accessible, it is believed that UDRP will gain prominence over judicial intervention in near future, reasons being speedy dispute resolution, low cost and no court appearances. However, UDRP should be applied to other types of domain name as well in order to increase its scope.

Talking about statute, India has no legislation in particular prohibiting cybersquatting unlike developed nations like USA. Since there is no explicit prohibition, the domain name is registered on a first come first serve basis which provides for a potential loophole in law, often misused by people. With a sudden spike of cybersquatting during pandemic, it is evident that India is in need of explicit legislation pertaining to cybersquatting/domain name dispute which should govern every aspect of it.

With a proper legislation in hand, cybersquatting could be prevented at the stage of registration which in turn would save precious judicial time, unnecessary expense of money on the part of complainant and an overall easement of process. It would also prevent selling of domain name by the cybersquatter for a high price and would thus, curb such practices of benefitting at the loss of others.

Continue Reading

Trending