Tag: criminal procedure

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Litigation

Supervening circumstances and the commutation of a death sentence: A more definitive law from the Supreme Court

ProceduralLawOfTheDeathPenalty_RahulRamanIf the situation that prevailed at the time a sentence of death was delivered has changed, can the Supreme Court take those changed circumstances into account to commute a sentence of death? Less than two years ago, the Supreme Court in Shatrughan Chauhan v. Union of India, 2014 (3) SCC 1, looked into whether executing a death sentence notwithstanding the existence of such supervening circumstances would violate among other things, Article 21 of the Constitution. After weighing such circumstances in different petitions, it commuted the penalty of fifteen individuals to life imprisonment and laid down a more definitive law on the Court’s power of commutation.

The petitioners had claimed that the executive, while exercising its power under Articles 72 or 161, did not consider any supervening events. In a few previous decisions such as Triveniben (1989) and Jagdish v. State of Madhya Pradesh (2009), the Court had declared that it had a duty to protect a prisoner’s right to life till his last breath. This provided the Supreme Court with the legal basis to take supervening circumstances into consideration and those pleaded in Shatrughan Chauhan included delay, insanity, solitary confinement, and procedural lapses.

Delay in processing mercy petitions

The question of whether the executive’s delay in processing a mercy petition should be considered a supervening circumstance has troubled the Court for a long time. There is no stipulated time limit within which the executive has to dispose a mercy petition and often, there is inordinate delay.

Earlier, a division bench of the Supreme Court in T.V. Vatheeswaran v. State of Tamil Nadu, AIR 1983 SC 361, had held that a delay of two years in execution of a sentence after the judgment of the trial court would entitle the prisoner to plead for commutation of his sentence of death to life imprisonment. Soon after however, a three-judge bench in Sher Singh and Others v. Union of India, AIR 1983 SC 465, held that delay alone could not be a good enough ground for commutation of death sentence, and overruled the two-year delay rule. Nevertheless, this decision acknowledged a prisoner’s right to a fair procedure at all stages – trial, sentencing, and incarceration.

To resolve this apparent conflict, a constitution bench took up this issue in Triveniben v. State of Gujrat, 1988 (4) SCC 574. In a landmark verdict, the Court held that while an undue delay would entitle a punished individual to invoke Article 32, Vatheeswaran’s “two-year delay rule” was not correct.

The Court relied on this decision in Shatrughan Chauhan. It held that while considering the rejection of a clemency petition, the Court could not overlook the pain caused to the convict. Therefore, the Court was well within its judicial power under Article 21 read with Article 32 of the Constitution to hear a convict’s grievance and commute a death sentence to life imprisonment if it is found that that there had been undue, unexplained, and inordinate delay in execution due to the pendency of a mercy petition.

The Court decided not to lay down any compulsory period within which the President has to decide a mercy petition. While the Court would make such a determination on the facts and circumstances of individual cases, it suggested that the executive should itself weigh the aspect of delay while disposing of a mercy petition.

The Court also said that the decision of the Court in Devender Pal Singh Bhullar v. State (NCT) of Delhi, 2013 (6) SCC 195, which had disqualified cases under the Terrorist and Disruptive Activities (Prevention) Act, 1987 from scrutiny on account of delay, was per incuriam. Any person sentenced to death could avail “delay” as a supervening circumstance regardless of the offence and the statute under which he has been convicted. Later, the Supreme Court recognised this finding in Navneet Kaur v. State of NCT of Delhi, Curative Petition (Criminal) No. 88 of 2013 (Supreme Court) to commute Devender Pal Singh Bhullar’s death sentence to life imprisonment.

Insanity or mental illness

The next ground considered by the Court was that of “insanity” or “mental illness” as a supervening circumstance. The Court after referring to several international conventions like the International Covenant on Civil and Political Rights concluded that this was a valid supervening circumstance. It noted that once mental illness of the convicted individual is medically certified, executing him would be in violation of the international convention to which India was a party, and of Article 21 of the Constitution.

Solitary confinement

Despite underlining its own finding in Sunil Batra v. Delhi Administration and Others, 1978(4) SCC 494, the Supreme Court decided not to interfere on the ground of “solitary confinement” in Shatrughan Chauhan. Later however, the Allahabad High Court in People’s Union for Democratic Rights v. Union of India, 2015(2) ADJ 2015 and the Supreme Court in Ajay Kumar Pal v. Union of India, 2014(13) SCALE 762 held that “solitary confinement”, along with other factors, was a permissible supervening circumstance to commute death sentence to life imprisonment.

Procedural lapses

The final ground raised was that of “procedural lapses” made by the executive while disposing of mercy petitions. The Court held that the procedures prescribed for the Ministry of Home Affairs were a necessary requirement under Article 21 to treat the death row convicts fairly. It noted that the President should be provided with all the relevant material to assist him in disposing the mercy petitions. The concerned departments cannot give or seek piecemeal information regarding the petition to be decided. However, the scrutiny of a procedural anomaly would be done on a case-to-case basis.

The circumstances raised in Shatrughan Chauhan are not exhaustive. The addition (or removal) of supervening circumstances to this list would depend on the judicial attitudes to reconciling convict’s rights with those of the victim or the society. Further, despite the unambiguous decisions in Triveniben and Shatrughan Chauhan, it is entirely up to the Court to see on an individual basis, how to interpret ‘undue and unexplained’ delay and whether to permit it as a supervening circumstance.

(Rahul Raman is a Project Associate at the Centre on the Death Penalty, National Law University, Delhi.)

Categories
Human Rights Litigation

The High Court as trial court in death penalty confirmation proceedings

DeathPenaltyProcedure_Lubhyathi_Nishant_Amrutanshu_DPLC

Is a death sentence rendered by a sessions court final? Are there any checks on the powers of a sessions court over such an important decision? Can the High Court call new evidence in a death penalty proceeding? This note is an attempt for more clarity on these questions. The Code of Criminal Procedure, 1973 (“Code”) under Section 28(2), directs that a death sentence can be passed only by a sessions judge or an additional sessions judge. Further, the Code ensures that a sentence of death passed by a court of sessions (comprising either the Sessions or the Additional Sessions Judge) shall be subject to confirmation proceedings before the High Court exercising jurisdiction over it. Therefore, it is safe to conclude that the death sentence rendered by a sessions court is not final and is subject to the automatic supervision of the relevant High Court.

Sections 366 to 371 of the Code outline the confirmation proceedings before the High Court. In Bachan Singh (1980), the Apex Court noted that these provisions ensure that “the entire evidential material bearing on the innocence as[or] guilt of the accused and the question of sentence must be scrutinised with utmost caution and care by a superior court” considering that the outcome of the case would determine the life of an individual. It is interesting to note that similar confirmation provisions were also found in the old criminal procedure code of 1898 from Sections 374 to 380.

The confirmation process

Once the Sessions Court passes the death sentence, it is bound to refer the proceedings of the case to the High Court under Section 366(1) of the Code. Under Section 366(2) of the Code, a sentence of death cannot be executed unless it is confirmed by the High Court. As opposed to the 1898 Criminal Code, the 1973 Code includes a provision that authorises the Sessions Court to commit the convicted person to judicial custody (that is, jail). The Supreme Court has clarified in Sunil Batra (1979) that this custody cannot be considered equivalent to an imprisonment. The logic behind the provision is probably that the incentive to evade the legal process for a convicted person (sentenced to death by a sessions court) is very high and therefore the provisions seeks to address scenarios wherein the convict is not available for execution of the sentence.

It has been held in a catena of cases, including in State of Maharsahtra v. Sindhi and Jumman v. State of Punjab, that the confirmation proceedings are a continuation of the trial at the Sessions Court. Support for such an understanding can be derived from the fact that Section 366(1) states that the “proceedings” shall be submitted to the High Court unlike the appellate provisions where the factum of appeal lies in the conviction or acquittal or the enhancement of the sentence (Section 374 read with Section 386). There is however, a fundamental distinction between the confirmation proceedings at the High Court and a trial at the Sessions Court. While the Code, under Section 273, creates a general rule that all evidences taken in the course of the trial shall be taken in the presence of the accused, Section 367 states that the general rule in case of confirmation proceedings is that, unless the High Court feels otherwise, the presence of the convicted person is not required even when new evidence is taken. The Supreme Court has suggested that the presence or the absence of the accused does not make a difference at the confirmation stage since the High Court are duty bound to give the matters its utmost and undivided attention. Here, it is pertinent to mention that under the appellate jurisdiction, the Code in Section 391(3), grants the right to an accused (or his pleader) to be present when additional evidence is taken.

The Code also specifies that the confirmation proceedings should be conducted at least in front of a division bench of the High Court. Should there be any difference of opinion, the matter will be referred to a third judge whose decision will determine the final outcome of the case.

In death penalty cases, the normal practice is that the Sessions Court refers the matter for confirmation to the High Court and additionally, the convict files an appeal on his conviction under Section 374(2) of the Code. According to Section 368, the order of confirmation is not given until the appeal is disposed off by the high court. It is also clarified that there is no obligation on the convict that he must appeal his conviction to the High Court. Even if he does not, the constitutional court is duty bound to re-assess the death case.

Powers of the High Court

As discussed above, the power of a high court in confirmation proceedings is considered to be a continuation of trial. It is well settled that in a reference under the confirmation provision, the High Court has to consider the evidence afresh and arrive at its own independent findings with regard to the guilt of the accused, independent of the views of the Sessions Judge. At the same time, the Supreme Court has also cautioned that the conclusion arrived at by a sessions court cannot be completely overlooked.

Section 368 delineates the powers of a high court during a confirmation proceeding. The High Court can do the following: confirm the death sentence, pass any other sentence, annul the conviction but convict the accused of any other offence, order a new trial on the same or amended charge, and finally may also acquit the person. These powers look similar to the powers of the appellate court under Section 386. However, there are some essential differences between the confirmation and appellate proceedings.

Confirmation proceedings versus appellate proceedings

There are three major differences between the power of the High Court when it is seized of a confirmation proceeding and an appellate proceeding under the Code.

First, the reference to confirmation is automatic whereas appeal proceedings are only brought before the court if the distressed party files an appeal (and has a right to file one). A corollary of this situation is that in a criminal appeal, the court can dismiss the appeal if it decides that there is no ground for interference without examining the entire record. On the contrary, the High Court is duty bound to consider the entire evidence on record while confirming a death sentence.

Second, the confirmation court has a power to order further inquiry or take evidence (itself or by a lower court) without indicating any reason for doing so (under Section367(1)) whereas under Section 391(1), an appellate court has to provide written reasons to justify its act of taking new evidence (itself or by a lower court). Further, Section 391 does not empower the High Court sitting in the criminal appellate side to order further inquiry.

Finally, the appellate court has a certain leeway in not providing elaborate reasons should it agree with the findings of the trial court which is absent in confirmation cases. In confirmation proceedings, as written earlier, the High Court needs to come to an independent finding regarding the guilt of the accused and the sentence.

Special legislations and confirmation proceedings

Section 4(2) of the Code empowers the legislature to create separate trial proceedings for offences that are not part of the Indian Penal Code, 1860. There is therefore, a possibility that automatic confirmation proceedings available under the Code could be excluded. The (now repealed) Terrorist and Disruptive Activities (Prevention) Act, 1987 explicitly negated the role of the High Court and provided a direct right to appeal on both facts and law (not confirmation) to the Supreme Court under Section 19. Yakub Memon was hanged under this law and therefore, did not get the benefit of the confirmation proceedings at the High Court. Under the Prevention of Terrorism Act, 2002 (also repealed), the Parliament provided a right to appeal to the High Court both “on facts and on law” which was similar to the confirmation proceedings (but not the same). The same model was followed in the Unlawful Activities Prevention Act, 1967 through the National Investigation Agency Act, 2008 under Section 21. In POTA and UAPA, the cases are not automatically referred to the High Court, rather they must be appealed. The major difference lies in the fact that in the special laws, the appellate court only looks at the points raised by the appellant and does not examine the entire record, unlike a confirmation proceedings which operates independently of an appeal. At first glance, this situation is counter intuitive. One expects increased safeguards when special laws provide for prolonged period of police custody and the reversal of the burden of proof but the opposite situation prevails.

(Nishant Gokhale and Lubhyathi Rangarajan are Associates at the Death Penalty Litigation Clinic, National Law University, Delhi. Amrutanshu Dash is a student in his fifth year at the same law school. The Clinic was an intervenor in Yakub Memon’s case. The views expressed in this article are those of the authors alone.)

Categories
Human Rights Supreme Court of India

What is the meaning of “life”? – With no clear meaning, life imprisonment, the death penalty alternative, is just as unfair

DeathPenaltyProcedure_LubhyatiRangarajan_NishantGokhaleThe death penalty was the norm and life imprisonment, the exception, under the Code of Criminal Procedure, 1898. Its replacement, the Code of Criminal Procedure, 1973(“CrPC”), reversed that position. Life imprisonment became the norm. The death penalty could only be awarded in exceptional cases, for which the court would have to record “special reasons”. In 1980, the Supreme Court took the law further down this path. After Bachan Singh v. State of Punjab, the death penalty could only be applied in the “rarest of the rare” cases and that too only “when the alternative option is unquestionably foreclosed”. What are these alternative options?

For nearly all punishments where the death sentence is prescribed, the Indian Penal Code, 1860 prescribes life imprisonment as an alternative. The meaning of ‘life imprisonment’ however, is not really clear. A brief survey of the Supreme Court’s jurisprudence on how the term has been understood raises a number of problems.

What is “life”?

It was settled in the case of Gopal Godse v. State of Maharashtra (1961) that life imprisonment meant imprisonment for one’s whole life. The power to remit this sentence was entirely within the executive domain. Then in 1978, Parliament enacted Section 433-A into the CrPC to mandate that a term of life imprisonment would be for a minimum of 14 years.

The constitutionality of this provision was assailed in Maru Ram’s Case (1980) by several petitioners including many convicts who were hopeful of release through remissions earned in prison or by the commutation of their sentence by state governments. The Supreme Court upheld its constitutionality. The Court noticed some startling instances of prisoners sentenced to life imprisonment being released for whimsical reasons such as a politician’s birthday or a minister visiting the jail and observed that while it could not find any particular logic why a period of 14 years was specified, it agreed, in deference to the legislature, that without Section 433-A, there was nothing to prevent persons convicted of serious offences from walking out of prison the very next day on account of their sentence being commuted by the state government.

The question of an appropriate alternative sentence arose again in Swamy Shraddananda’s Case (2008). In an appeal from a death sentence to the Supreme Court, Justice S.B. Sinha favoured life imprisonment whereas Justice Katju favoured the death penalty. The case was referred to a larger bench. A three-judge bench of the Court observed that in some cases, a sentence of 14 years was too mild and would amount to no punishment at all whereas the death penalty would seem too harsh. The Court was of the view that judges would be nudged to award the death sentence if there was nothing available to them between these two punishments. The Court therefore held that it had the power, in the case of a prisoner sentenced to life imprisonment, to direct that the prisoner would not be released from prison, either for the rest of his life, or for a duration specified by the court. Following this decision, the Supreme Court has awarded life imprisonment without parole for periods between 25 and 30 years in lieu of the sentence of death. The correctness of the decision of the court in Swamy Shraddananda’s Case is being considered by a constitution bench of the Supreme Court in Union of India v. V. Sriharan. It will question whether courts can place sentencing in some cases beyond the executive’s reach. Judgment has been reserved and is awaited.

The Court’s penological experimentation does not seem to have stopped there. In Subhash Chander’s Case (2001), a convict was spared the death sentence by the Supreme Court on his counsel making a submission that the prisoner would spend the rest of his life in prison without applying for pre-mature release or commutation. In Shankar KisanraoKhade’s Case (2013), the Court, while questioning the application of the death penalty and asking the Law Commission to examine the question, directed that the prisoner should serve two life sentences consecutively, rather than concurrently, as is the norm, and overturned the High Court’s recommendation for the award of the death penalty.

No consistent understanding of what is meant by “life imprisonment”

Prison_Cell

After the Criminal Law (Amendment) Act 2013, for the first time the Indian Penal Code prescribed sentences for one’s “whole life” for some types of aggravated sexual assault. It is important to note however, that there was no amendment to the general meaning of “life imprisonment” in the Indian Penal Code. Nor was there any clarification as to whether these whole life sentences would be beyond executive remission.

There is thus no coherent or consistent understanding about the meaning of the term “life imprisonment”. Alternatives to the death penalty should be explored, especially in light of the 262nd Law Commission Report, which found that the “rarest of the rare” principle has been arbitrarily applied. The alternative punishment to the death sentence, in its present form, seems to suffer similarly from arbitrariness and capriciousness.

It is important that there is consistency in handing out sentences of life imprisonment. Courts are, after all, dealing with human lives and these decisions cannot be taken lightly. There are no parameters at present to judge when a person should be awarded life imprisonment without parole for 30 years or life imprisonment simpliciter, or when life sentences awarded are to run consecutively instead of concurrently. The entire process is judge-centric and is subjective to such a high degree that it is not sustainable for a fair criminal justice system. The legislature and the judiciary should take note of these problems with the alternatives available to awarding the death penalty and work towards making them more viable.

(Nishant Gokhale and Lubhyathi Rangarajan are Associates at the Death Penalty Litigation Clinic, National Law University, Delhi.)

Categories
Human Rights

Transfer system, mental capacity assessment in juvenile justice bill violate equality rights

ArleneManoharan_SwagataRaha_ShrutiRamakrishnan_CCLDisagreement on vital issues of constitutionality did not stop the passage of the Juvenile Justice (Care and Protection of Children) Bill, 2014 (“the Bill”) in the Lok Sabha. Apart from the floor of the Parliament, these issues were also raised in submissions to the Parliamentary Standing Committee and in the print and visual media.

In a drastic and regressive move, the Bill proposes the introduction of a transfer system so that children aged between 16 and 18 years and alleged to have committed ‘heinous offences’ can now be tried and sentenced as adults.

The right to equality under Article 14 and the special protection for children under Article 15(3)

By treating adolescents as adults, the proposed system will incorrectly treat two distinct categories equally. This strikes at the very core of Article 14. The Supreme Court has repeatedly endorsed as part of the Article 14 mandate (See, M. Nagaraj v. Union of India, AIR 2007 SC 71 and Joginder Nath v. Union of India, AIR 1975 SC 511), the principle that injustice arises not only when equals are treated unequally, but also when unequals are treated equally.

This animation, comprised of MRI scans, show changes in the brain between the ages of 5 and 20. Red indicates more grey matter and blue indicates less.

This animation, comprised of MRI scans, shows changes in the brain between the ages of 5 and 20. Red indicates more grey matter and blue indicates less.

Advances in neuroscience show that adolescents are neurobiologically distinct from adults. Even though persons in this age group may ‘know what they are doing is wrong’, they have been shown incontrovertibly to be unable to act on that knowledge and restrain themselves. This is because they underestimate risk, are susceptible to negative influences, and lack foresight.

They are also more amenable to reform and rehabilitative interventions because of the plasticity of their brains. As stated in an amicus brief for the American Psychological Association, the American Psychiatric Association, and the National Association of Social Workers before the Supreme Court of the United States in Miller v. Alabama, juveniles “typically outgrow their antisocial behaviour as the impetuousness and recklessness of youth subside in adulthood”.

The special protection of 16 to 18 year olds, present in the current law and negated by the Bill, is saved by Article 15(3) of the Constitution, which permits special legal provisions for women and children because uniform laws cannot address the particular vulnerability of women and children. The transfer system militates against this goal as well as the overall objective of the Bill to ensure care, protection, and the ultimate rehabilitation of children in conflict with the law.

The constitutional prohibition on procedural arbitrariness under Articles 14 and 21

The Bill requires the Juvenile Justice Board to assess, along with the circumstances in which the heinous offence was allegedly committed, whether the child offender had the physical and mental capability to commit the offence. The latest research indicates that individualised assessments of adolescent mental capacity are not possible. Any suggestion that it can be done would mean “exceeding the limits of science”. (See, Bonnie & Scott, “The Teenage Brain: Adolescent Research and the Law”, Current Directions in Psychological Science, 22(2) 158–161 (2013), p.161.)

The assessment proposed in the Bill is fraught with errors and arbitrariness and will allow inherent biases to determine which child is transferred to an adult court. The assessment also violates the principle of presumption of innocence as it operates on the assumption that the child has committed the offence.

Procedural arbitrariness is inherent in the assessment of reformation by the Children’s Court

When a juvenile sentenced by the Children’s Court attains the age of 21 years, she or he will be subjected to another assessment to determine whether or not the person has reformed and can make contributions to society.

Already, half the children apprehended for offences come from families with an annual income of less than Rs. 25,000 while only 0.55% of the children apprehended come from families with an annual income of more than Rs. 3,00,000 (See, Crime in India, 2013, Compendium, National Crime Records Bureau (2014), pg 4.) Undoubtedly, the provisions of the Bill will result in class, caste and religion-based targeting of children under the garb of assessing their potential contribution to society and extent of reformation.

Protection against disqualification violates the right to life under Article 21 and the right to equality under Article 14

Maneka Gandhi (right), the Union Minister for Women and Child Development introduced the Bill in the Lok Sabha. Shashi Tharoor spoke about the problems with treating 16-18 year olds as adults.

Maneka Gandhi (right), the Union Minister for Women and Child Development introduced the Bill in the Lok Sabha. Shashi Tharoor spoke about the problems with treating 16-18 year olds as adults.

Children between 16 and 18 years found to be in conflict with the law under Clause 20(1)(i) will incur disqualifications. While all children are protected against disqualification attached to conviction, the Bill deprives children convicted of heinous offences of this protection, thus discriminating among children based on the forum for trial, the offence, and the age.

They will therefore have to declare the conviction while applying for jobs or traveling abroad. The record of conviction will stigmatise them and make their rehabilitation and re-integration impossible.

The right to life entails the right to livelihood as well as a life of dignity. This stands compromised through the retention of the record of conviction and the withdrawal of protection from disqualification. This also means that a finding of ‘reformation’ and the ability to make a positive contribution to society based on another arbitrary assessment proposed under Clause 21 will be rendered meaningless, as the conviction will be held against the child for life.

The Department-Related Parliamentary Standing Committee on Human Resource Development also highlighted these constitutional concerns in its Two Hundred Sixty-Fourth Report. In para 3.21, it concluded that, “the existing juvenile system is not only reformative and rehabilitative in nature but also recognises the fact that 16-18 years is an extremely sensitive and critical age requiring greater protection. Hence, there is no need to subject them to different or adult judicial system as it will go against Articles 14 and 15(3) of the Constitution.”

Policy consensus based on evidence has to precede law making in a Parliamentary democracy. Examples from western countries that have experimented with the transfer system show that such a policy change will only result in higher costs related to incarceration and the deferred costs of the rage and bitterness that come from life in the adult criminal justice system.

Sending juveniles who allegedly commit ‘serious’ crimes to jail on the pretext of public safety is not in the interest of children, families, or the wider community. Placing adolescents who are at a difficult transitional phase in their lives along with adult criminals will only serve to place these young people at risk of being physically, sexually and emotionally abused and being further criminalised. This regressive outcome is in stark contrast to our constitutional mandate and the rehabilitative aims outlined even in the preamble of this Bill.

Swagata Raha, Arlene Manoharan, and Shruthi Ramakrishnan are from the Centre for Child and the Law, NLSIU Bangalore.

Categories
Supreme Court of India

Amendment to negotiable instruments law has not completely bounced out the jurisdiction question

Himanshu_SumanWhere should the complaint for a cheque bounce offence be filed? Since this question has not been answered in the Negotiable Instruments Act, 1881 (“NI Act”), courts have applied general principles of criminal procedure to answer it. An offence should be tried by a court within whose jurisdiction it was committed. If the offence consists of more than one ingredient, it may be tried at any place where any of the ingredients occur. Following a Supreme Court decision in 1999, there had been significant confusion and uncertainty on this question, but that was settled when, on August 1 last year, the Supreme Court in Dashrath Rupsingh Rathod v. State of Maharashtra and Another, (2014) 9 SCC 129, held that the complaint had to be filed where the drawee bank is located.

The “cheque bounce” offence under Section 138 of the NI Act was created by the Banking, Public Financial Institutions and Negotiable Instruments (Amendment) Act, 1988 to establish and strengthen cheques as a form of mercantile tender. Section 138 makes the dishonour of a cheque for insufficiency of funds or because the amount exceeds the arrangement agreed with the drawee bank, an offence punishable with imprisonment up to two years and a fine up to twice the amount of the cheque. This is subject to compliance with the proviso to Section 138 – the payee has to deposit the cheque with the bank within six months of being drawn, issue a written notice to the drawer demanding payment within 30 days of the cheque being returned unpaid, and the drawer has to fail to make the payment within 15 days of receiving this notice.

Lifting the confusion about the jurisdiction question

In K. Bhaskaran v. Sankaran Vaidhyan Balan and Another, (1999) 7 SCC 510, the Supreme Court had held that the offence under Section 138 consisted of five ingredients – the drawing of the cheque, the presentation of the cheque to the bank, the return of the dishonoured cheque, the issuing of notice to the drawer, and the failure of the drawer to pay the amount after receipt of the notice. Following Section 178 of the CrPC, jurisdiction can vest at any place where any of them occur.

Besides introducing uncertainty, this interpretation also allowed the payee to harass the drawer by filing the complaint at distant places that had no causal connection to the transaction or the drawer.

Dashrath Rupsingh Rahthod rightly held that the offence involved not five ingredients but one, that is, the dishonour of the cheque by the drawee bank. Bhaskaran had wrongly interpreted the conditions under the proviso as being ingredients of the offence rather than merely the conditions that had to be met to initiate prosecution. The correction in Dashrath Rupsingh Rathod finally deprived the payee of his power to unilaterally confer jurisdiction on a place of his choosing and fixed with certainty the jurisdiction for complaints under Section 138.

Amendment to the negotiable instruments law returns power to payee

cheque_negotiableinstrumentThe decision in Dashrath Rupsingh Rathod was criticised by industrial associations and financial institutions for unjustly requiring the creditor to go the debtor. In their view, it ought to have been the other way round. The Negotiable Instruments (Amendment) Bill, 2015 which, has been passed by the Lok Sabha and will be introduced in Rajya Sabha during the next session, proposes in Section 142(2) that the complaint should be filed where the collecting bank is located. This will also apply to all pending cases and after it becomes law, almost every pending complaint under Section 138 will have to be transferred from the place where the drawee bank is (following Dashrath Rupsingh Rathod decision) to where the collecting bank is.

This will once again empower the payee to unilaterally confer jurisdiction on any place where he has a bank account. The drawer will have to make arrangements to defend himself in criminal proceedings at such place, wherever it may be.

Amendment benefits frequent defaulter

For some balance, the proposed amendment will prevent the payee from unduly harassing a drawer by taking four cheques and filing them in four different parts of the country as separate complaints. All complaints between the same parties are to be tried at one place irrespective of where the payee deposits the cheques.

It even proposes that all complaints against a drawer, even by different payees, should be tried before the same court, which will be the court where the first of such complaints has been filed. Whenever a payee files a complaint under Section 138 against a drawer and it is brought to the notice of the court that there is a prior pending complaint against the drawer, then the court will transfer the subsequent complaint to the court trying the prior complaint. The provision only mandates that the complaints be tried before the same court and not that they be tried together.

There is no clarity about which party bears the onus of giving notice of the prior complaint or about the time period within which it has to be given. The erring drawer would thus be able to delay subsequent complaints by revealing the prior complaint only at a later stage. A frequently defaulting drawer would benefit the most from this proposal because subsequent payee(s) would have to go where the collecting bank of the prior payee is even though such place may not have any causal connection to their transaction with the drawer.

It is welcome that the jurisdiction question will finally be settled by statute. The rough edges around the proposed Section 142-A however, have to be creased out by subsequent judicial decisions and the courts may not be wiling to interpret a penal provision meriting strict interpretation in a manner that advances the objective of establishing and strengthening cheques as a form of mercantile tender.

Himanshu Suman, an alumnus of NLSIU, Bangalore, is a Delhi-based advocate.