The underlying principle based on which the `Code of Civil Procedure, 1908′ functions is `ubi jus ibi remedium‘ that signifies that where there is a right, there is a remedy. The concept of mesne profits has been developed from this principle because it is the law of nature to provide the right to compensation where there has been an infringement or breach of a legal right. The concept of mesne profits has its origin in the medieval period. Under the feudal system, the King owned all land. The King would let out a part of these lands to his barons on the condition that they will provide him with soldiers whenever he wanted to raise an army.

Mesne Profit are described in Section 2(12) of the Code of Civil Procedure, 1908, as those profits that the person in wrongful possession of the property actually received or could have obtained with reasonable diligence, along with interest on those profits; however, profits attributable to improvements made by the person in wrongful possession is not included. The procedure presenting the rights of the parties involved in a suit concerning mesne profits, a civil court will rely on Rule 12 of Order 20 of Code of Civil Procedure, 1908. When a decree has to be passed for recovery of possession of immovable property and for mesne profits then the procedure as laid down in Order 20 Rule 12 CPC would have to be followed.

The Civil Procedure Code, 1908, does not specify any standards by which the mesne profits should be evaluated. The law just stipulates that any profits gained from renovations or upgrades of the property are disregarded however the interest on such profits is included. Mesne profits must be in net profits as well, under the equity rule. Mesne Profit is a type of damage; hence the government cannot set a set standard on how to measure them.

The amount of mesne profits will thus be decided by the court at its discretion based on the various factors like Nature and Condition of the property; Location of the property; Value of the property. However, as we are unable to specify a specific range for mesne profit, the courts must adhere to a few guidelines when determining the amount to be granted. The profit taken the account is made by the person in wrongful possession, restoration of status before the dispossession of the Decree-holder. The uses to which the decree-holder could have put the property in if he was the possessor. A lessee, tenant, or licensee who occupies the property for a length of time longer than that for which authorization was granted, or whose occupancy is terminated by termination, revocation, or order of the court, is considered to be in unlawful possession and is responsible for paying mesne profits. It is settled principle of law that in case of mesne profits the burden of proof rests on the claimant i.e. the plaintiff. Before claiming mesne profit, the plaintiff has to establish before the Hon’ble Court that he was lawful owner of the property and he was deprived of it by the unlawful possession of the defendant. The plaintiff having proved the aforementioned facts becomes entitled to mesne profit.

The tenant is liable to pay mesne profits or compensation for use and occupation of the premises at the same rate at which the landlord would have been able to let out the premises and earn rent if the tenant would have vacated the premises. The landlord is not bound by the contractual rate of rent effective for the period preceding the date of the decree.

The basis of determination of the amount of mesne profit, depends on the facts and circumstances of each case considering place where the property is situated i.e. village or city or metropolitan city, location, nature of premises i.e. commercial or residential area and the rate of rent precedent on which premises can be let out are the guiding factor in the facts of individual case.

There could be no straight jacket formula while fixing the amount of mesne profits in such cases and the Courts would have to be guided by the facts and circumstances of each case and upon various judgments to fix the mesne profits. There should be a balance between the competing claims between mesne profit at market rate and reasonable compensation for landlord. The basic burden lies upon the landlord to prove and support his case of reasonable compensation/mesne profits. He must put on record material documents/compensation along with the affidavit to support his case of enhanced. The material if placed by the landlord/Licensor/Owner, the Court needs to consider the said material by giving full opportunity to the tenant/Licensee/Occupant/trespasser/obstructionists. The Rent Control Legislation, governing the particular premises/Location/residential or non-residential area of the premises, the age/nature and the construction of building/premises, the facilities in the premises and outside the premises, advantages and disadvantages, the market value and the rental value of the premises based on architecture/expert/valuation reports/opinion, other instances of the rent/license fees of similarly situated premises and the date of termination of the tenancy/license are to be considered while determining the mesne profit. The compensation was awarded as condition precedent should not be oppressive and unreasonable which in a given case, if tenant failed to pay, has no option but to suffer the execution of a decree, as observed by the Apex Court in Niyas Ahmed (supra). The user and the use of the premises are also material. The market value changes with time. The stamp duty is also changes accordingly. The rent/license fee/compensation so fixed at the interim period, based upon the market value may in a given case needs to be changed or re-fixed if case is made out. It may go up or go down if market value changes drastically. One cannot overlook that at the time of basic agreement, both the parties mutually agreed to the particular rent/Leave license fee irrespective of valuation of the property. Now, when the Court fixes the compensation/license fee, after termination of the tenancy, there is no question of any agreed rent or compensation. The Court after giving opportunities to both the parties, needs to decide the interim and urgent issue of grant of provisional fair and reasonable compensation/occupation charges, based upon authenticated material produced on the record, pending the Appeal, summarily. There is no question of detail trial, but it is an essential condition precedent to grant stay of the eviction decree/order on the footing of Order 41 Rule 5 of Civil Procedure Code. The final decision of the appeal should be uninfluenced by such tentative figure/order. Such provisional payment should be condition precedent but it is always adjustable. The amount so fixed in such proceedings is tentative figure. Such interim order/payment is always subject to the final result of the appeal. The cases of trespasser, unauthorized occupant, obstructionist need to be dealt with again on different footing than that of a regular tenant/protected tenant/licensee as they are not governed by the Rent Control Legislation. Such unauthorized or illegal occupants, based upon the material produced on record, after giving opportunity to them may be directed to pay such occupation charges/compensation, pending the appeal, at the current market rate/rent which may be determined by the Court, taking note of interest of both the parties.

The landlord is entitled to reasonable compensation from the date of the eviction order i.e. the date when the tenant’s possession became illegal. This however could not be extended to a case where, for instance the landlord moves an application after inordinate period of delay. Resultantly, the period for which the amount would be payable must be restricted to 3 years.

Under Section 2(12) of the Civil Procedure Code, 1908, which contains the definition of mesne profit, interest is an integral part of mesne profits and has to be in the computation of mesne profits itself. This proceeds on the theory that the person in wrongful possession appropriating income from the property himself gets the benefit of the interest on such income.

If the tenant having suffered a decree or order for eviction may continue his fight before the superior forum but, on the termination of the proceedings and the decree or order of eviction first passed having been maintained, the tenancy would stand terminated with effect from the date of the decree passed by the lower forum. In the case of premises governed by rent control legislation, the decree of eviction on being affirmed, would be determinative of the date of termination of tenancy and the decree of affirmation passed by the superior forum at any subsequent stage or date, would not, by reference to the doctrine of merger have the effect of postponing the date of termination of tenancy.

In calculation of mesne profits, once the rent paid on similar premises on same area was taken as the basis and the definition of mesne profits in Section 2(12) CPC provides that mesne profits include the interest thereon. The market rate as per the current potential of the suit property should be considered while deciding on the amount of mesne profits to be granted to the property owner.

To summarize, mesne profits of property are defined as those profits that the person in wrongful possession of the property actually received along with interest on those profits and the actual profit gained by the possessor or reasonably might have received with the use of the said property. Additionally, rather than considering what the plaintiff has lost as a result of being deprived of possession, the court calculates the mesne profits based on what the defendant has acquired or reasonably could have gained with ordinary effort by unlawfully having the property. Mesne profits are a form of damages caused to the actual owner and the right to sue for mesne profit is a right to sue for damages. This right is a right in personam which cannot be transferred and cannot be attached or sold in execution of a decree against the person entitled to the decree under Section 60 of the Code of Civil Procedure. The period of limitation for a suit for the profits of immovable property belonging to the plaintiff which have been wrongfully received by the defendant is three years and the time of limitation begins to run when the profits are received.

Judgements relied upon:

1. M/s. Martin & Harris Private Limited & Anr. v.Rajendra Mehta & Ors., 2022(8) SCC 527.

2. Anderson Wright & co. v. Amarnath Roy, 2005 (2) RCR (C) 831.

3. N. Dasjee v. Tirupathi Devasthanam, AIR 1965 SC 1213.

4. M/s. Atma Ram Properties (P) Ltd v. M/S. Federal Motors Pvt. Ltd., 2005 (1) RCR (C) 212.

5. State of Maharashtra & Anr. v. M/s. Super Max International Pvt. Ltd., 2009 (2) RCR (R) 246.

6. Achal Mishra v. Rama Shankara Singh and Others, 2006 (1) R.C.R (Rent) 532.

7. Congress Committee (I) Rural and Another v. A. Brahmgyan Singh, 2022 (2) RCR (R) 212.

8. Angoori Devi and others v. Smt. Satya Bhama, 2016(5) R.C.R (Civil) 1043.

9. M/s Yogpathy and others v. M/s Fabmark Exports, 2022 (1) RCR (R) 49.

]]> https://lawfinderblog.com/mesne-profit-compensation-on-account-of-unauthorized-holding/feed/ 1 https://lawfinderblog.com/evidentiary-value-of-confession-or-disclosure-statement-made-by-accused/?utm_source=rss&utm_medium=rss&utm_campaign=evidentiary-value-of-confession-or-disclosure-statement-made-by-accused https://lawfinderblog.com/evidentiary-value-of-confession-or-disclosure-statement-made-by-accused/#respond Tue, 10 Jan 2023 07:57:59 +0000 https://lawfinderblog.com/?p=4332

The subject of confession is not defined in the Indian law. As per Article 22 of Stephen’s Digest of the Law of Evidence, Confession is defined as “an admission made at any time by a person charged with crime, stating or suggesting the inference that he committed that crime”.

Article 20(3) of the Constitution of India mandates that no person accused of any offence shall be compelled to be a witness against himself. In the light to the aforesaid provision, the Indian Legal System does not accord much significance to confessions by an accused.

Section 25 of Indian Evidence Act, 1872 deals with confession made by any person to a police officer and states that no such statement can be proved against any person accused of any offence. This section works on the logic that if confessions to police were allowed to be used as evidence, the police would torture the accused and force him to confess to a crime which he might not have committed. The words “statement made to a police officer” necessarily connote the idea of communication or in other words, a statement being communicated to a police officer by any person. These words also definitely imply that there should be some direct or indirect nexus or connection between the person making the statement and the police officer. Therefore, it is clear that there must be some communication to a police officer for the purposes of showing that the statement was made to a police officer.

Section 26 of Indian Evidence Act deals specifically with those confessions which are made by an accused whilst he is in the custody of a police officer and states that no such confession shall be proved against the person who is making it.

Section 27 of Indian Evidence Act lays down that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. This section was once a matter in controversy as the contents of it might appear to be contradictory to its preceding sections. It is more than a mere exception to all or any of the preceding sections; it deals with ”information” whereas the preceding sections deal with only confessions. Sections 25 and 26 of Indian Evidence Act overlap to some extent as a confession by a person in custody to a police officer is hit by both of them. Section 27 of Indian Evidence Act deals with any information confirmed by subsequent facts received from a person in custody whether such information is received by a police officer or by someone else.

A confession made by the accused, while he is in custody or not, to a police officer or the making of which is procured by inducement, threat or promise having reference to the charge against him and proceeding from a person in authority, is not provable against him in any proceeding in which he is charged with the commission of an offence. Confession made by the accused whilst in the custody of a police officer to a person other than a police officer is not provable in a proceeding in which he is charged with the commission of an offence unless it is made in the immediate presence of a Magistrate. That part of the information given by a person whilst in police custody whether the information is confessional or otherwise, which distinctly relates to the fact thereby discovered no more, is provable in a proceedings in which he is charged with the commission of an offence. A statement made a person to police officer in the course of an investigation of an offence under Chapter XIV of the Code of Criminal Procedure, cannot except to the extent permitted by Section 27 of the Indian Evidence Act, be used for any purpose at any enquiry or trial in respect of any offence under investigation at the time when the statement was made in which he is concerned as a person accused of an offence.

All these sections, the expression “accused person” in Section 24 of Indian Evidence Act and the expression “a person accused of any offence” have the same connotation, and describe the person, against whom evidence is sought to be led in a criminal proceeding. Even if it is an admission, if it is made in the course of investigation under the Cr.P.C. to a Police Officer, then the same will not be admissible under Section 162 of the Cr.P.C. as it clearly prohibits the use of the statement made to a police officer under Section 161 of the Cr.P.C. except for the purpose, which is mentioned therein.

A statement made by an accused person is admissible against others who are being jointly tried with him only if the statement amounts to a confession. Where the statement falls short of a confession, it is admissible only against its maker as an admission and not against those who are being jointly tried with him.

Sections 25 and 26 of Indian Evidence Act were enacted not because the law presumed the statements to be untrue, but having regard to the tainted nature of the source of the evidence, prohibited them from being received in evidence. By the combined operation of Section 27 of the Evidence Act and Section 162 of the Code of Criminal procedure, the admissibility in evidence against a person in a criminal proceedings of a statement made to police officer leading to the discovery of a facts depends for its determination on the question whether he was in custody at the time of making the statement. The said statement is provable if he was in custody at the time he made it, otherwise it is not. Where a person goes to a police officer and makes a statement which shows that an offence has been committed by him, he accuses himself and though he is formally not arrested, since he is not free to move wherever he likes after disclosure of the information to the police he must be deemed to be in custody of the police. After interrogation, the accused makes a statement and led the police to a field and thereafter produced certain articles which were the subject-matter of a criminal offence was sufficient to establish that there was submission on his part to police custody. The word ‘custody’ in Sections 26 or 27 of Indian Evidence Act, does not mean formal custody but includes such state of affairs in which the accused can be said to have come into the hands of a police or can be said to have been under some sort of surveillance or restriction. Thus in all cases the ‘police custody’ is deemed to extend even when the accused was deemed to have submitted to such custody of a police officer by submitting to the interrogation and by making statements about discovery and who could not thereafter be said to be a freeman. If the statement to police is hit under Sections 25 or 26 of Indian Evidence Act as tainted evidence.

The principle underlying Section 27 of Indian Evidence Act that the evidence relating to confessional or other statement made by a person while a person is in the custody of the police is tainted and, therefore, inadmissible. But if the truth of the information given by him is assured by discovery of a fact, it may be presumed to be untainted. This would on the one hand shut out all evidence of a tainted nature while on the other hand permit the proof of so-much of the information whether it amounts to confession or not distinctly leads to the discovery of a fact on the ground that its truth is assured.

In the light of these principles first consider whether the confession is hit by Sections 24 to 26 of Indian Evidence Act and thereafter consider the question of applicability of the proviso contained in Section 27 of Indian Evidence Act which creates the limited exception by making admissible that part of the information which distinctly relates to the facts discovered provided that the accused person is deemed to have submitted himself to the police custody.

Section 162 Cr.P.C. excludes a statement made to a police officer but would not exclude the incriminatory conduct of an accused decrypted and discerned. Section 162 Cr.P.C. bars the prosecution from relying on the statement of an accused, and not evidence relating to the accusing conduct, before, at the time of occurrence and thereafter, divulged and disseminated by the accused when confronted or questioned by the police officers. The said provision states that the conduct of a party, both antecedent and subsequent in reference to a proceeding or reference to any issue or relevant fact is relevant. Where inculpatory information or other clues are revealed by the accused, evidence of the Investigating Officer to this effect would be admissible under Section 8 of the Evidence Act, when the said fact is corroborated by a third person for the facts testified by the public witness would relate to the conduct of the accused. The information given by an accused that provides lead to the Investigating Officer that unravel facts relating to the accused’s conduct, which were till then unknown to the Investigating Officer and which could not have been known, but for such information coming from the accused when sufficiently proved and corroborated by a public witness would fall under Section 8. This evidence can be relied to prove the accused’s complicity. The evidence of conduct when led would carry the credibility and weight depending on the facts including nature of confirmation and back ground facts, as is the case of Section 27 of the Evidence Act. The probative value and weight are matters of assessment dependent upon the factual matrix of each case. Sometimes the disclosure statement made by the accused is not admissible under Section 27 of the Evidence Act, still it is relevant under Section 8 of the Evidence Act. The expression ‘fact discovered’ includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused.

Admission is defined in Section 17 of the Evidence Act, as a statement suggesting any inference as to any act in issue of relevant fact made by a party to a proceeding, such as an accused. Admissions are relevant and may be proved as against the person making them, vide Section 21 of Evidence Act. A confession is a specie of an admission of an accused. It is an acknowledgment in express words of the truth of the guilty fact charged. It is admission of all the facts in issue and consists expressly or impliedly of as many admissions as there are facts in issue.

The court must ensure the credibility of evidence by police because this provision is vulnerable to abuse. It does not, however, mean that any statement made in terms of the aforesaid section should be seen with suspicion and it cannot be discarded only on the ground that it was made to a police officer during investigation. The court has to be cautious that no effort is made by the prosecution to make out a statement of the accused with a simple case of recovery as a case of discovery of fact in order to attract the provisions of Section 27 of the Evidence Act.

The ‘right against self- incrimination’ does not protect persons who may be compelled to undergo the tests in the course of administrative proceedings or any other proceedings which may result in civil liability. It is also conceivable that a person who is forced to undergo these tests may not subsequently face criminal charges. In this context, Article 20(3) will not apply in situations where the test results could become the basis of non-penal consequences for the subject such as custodial abuse, police surveillance and harassment among others.

Similarly, a statement recorded under Section 67 of the NDPS Act cannot be used against an accused offender in the trial of an offence under the NDPS Act.

The Hon’ble Supreme Court noticed common deficiencies which occur in the course of criminal trials and certain practices adopted by trial courts in criminal proceedings for interpreting and exhibiting the disclosure statements. So, the Hon’ble Supreme Court has suo moto took the action to check and cure the anomaly. The Hon’ble Supreme Court has directed the Hon’ble High Courts to make the rules regarding the exhibiting of the disclosure statemnts of the accused. The hon’ble Supreme Court has observed that the Presiding Officers shall ensure that only admissible portion of Section 8 or Section 27 Indian Evidence Act, 1872 is marked and such portion alone is extracted on a separate sheet and marked and given an exhibit number. This will make the uniformity regarding the interpretation, appreciation and exhibition of the disclosure statement in the trial.

Bibliography

Pulukuri Kottaya v. Emperor : 1947 AIR (PC) 67

State v. Memon Mohamed Hussain Ismail : 61 Bom LR 715

Legal Remembrencer v. Lalit Mohan_Singh : AIR 1922 Calcutta 342

Santokhi Beldar v. Emperor : AIR 1933 Patna 149

State of U.P. v. Deoman Upadhyaya : AIR 1960 Supreme Court 1125

Mt. Maharani v. Emperor : AIR 1948 Allahabad 7

Mohmed Inayatullah v. The State Of Maharashtra : AIR 1976 SC 483

Kirshnappa v. State Of Karnataka : AIR 1983 Supreme Court 446

Suresh Chandra Bahri v. State of Bihar : AIR 1994 Supreme Court 2420

State of U.P. v. Deoman Upadhyaya : AIR 1960 S.C. 1125

Mohd. Inayatullah v. State of Maharashtra : 1976 (1) SCC 828

Udai Bhan v. State of Uttar Pradesh: AIR 1962 SC 1116

Prakash Chand v. State (Delhi Administration): (1979) 3 SCC 90

Bhojram of Hon’ble PV Council v. Sitaram, AIR-1936 PC 60

Babulal v. Caltex : AIR 1967 PC 205

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Palvinder Kaur v. State of Punjab: AIR 1952 Supreme Court 354

Veera Ibrahim v. State of Maharashtra : AIR 1976 Supreme Court 1167

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CBI v. V.C. Shukla and others : AIR 1998 S.C. 1406

Pakala Naravana Swami v. King Emperor : AIR 1939 Privy Council 47

Kusal Toppo v. State of Jharkhand : 2019(13) SCC 676

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Suo Moto Writ (Crl.) No. 1 of 2017. D/d. 20.4.2021.

When the criminal law is set into motion against the accused, then the accused has to appear before the investigating officer or before the Illaqa magistrate. Court itself or on the request of the investigating officer may issue warrant of arrest, when the accused do not appear before a police officer during investigation or when he does not appear before the Illaqa magistrate or trial court. The proclaimed offender is a person eluding the authorities and the law. Proclaimed offender (PO) procedure is a judicial process by which the person is declared a criminal and instructs the police officers concerned to arrest the person named in the proceedings and to present him before the court. Under section 82 Cr.P.C., if the court has reason to believe that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than 30 days from the date of publishing such proclamation. The publication of proclamation shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides, the same shall be affixed at some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village, the copy of the publication of proclamation shall be affixed to some conspicuous part of the Court-house or if the Court thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides. A statement of the official will be recorded in writing by the Court issuing the proclamation, to the effect that the proclamation was duly published on a specified day, in the manner specified. The statement shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day. Where a proclamation published is in respect of accused of an offence punishable under section 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code (45 of 1860), and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a ‘proclaimed offender’ and make a declaration to that effect. Proclaimed Offender would be any offender who has suffered declaration after proclamation under Section 82(1) or Section 82(4) Cr.P.C. according to Section 82(2), (3) and Section 82(5) Cr.P.C. The persons accused of having committed offences mentioned under Section 82(4) Cr.P.C. can only be declared a proclaimed offender. Any person who has been declared a proclaimed person under Section 82(1) Cr.P.C. or under Section 82(4) Cr.P.C. will be at par for the purpose of all the liabilities and consequences attached to a person declared proclaimed offender. Order of declaring an accused a proclaimed offender cannot be challenged solely on the ground that the offence alleged to have been committed by him is not included in the sections mentioned in Section 82(4) Cr.P.C.

When proclamation is issued under sub-section (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both and where a declaration has been made under sub-section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine. When a person is declared a ‘Proclaimed Offender’ u/s 82(4) CrPC he is liable for greater punishment up to 7 years whereas if he is declared ‘absconder’ or ‘proclaimed person’ u/s 82(1) CrPC he is liable for lesser punishment up to for 3 years.

Section 174A of Indian Penal Code prescribes punishment for non-appearance in response to a proclamation under section 82 of Cr.P.C.

If anyone is declared as a proclaimed offender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail. The declaration of the proclaimed offender means that any citizen of India can arrest the accused at anytime and anywhere. State of M.P. v. Pradeep Sharma, 2014 (2) SCC 171 & Lavesh v. State (NCT of Delhi), 2012 (8) SCC 730.

The sine qua non for an action under Section 82 of the Cr.P.C. is the prior issuance of a warrant of arrest by the Court. There must be a report before the Magistrate that the person against whom the warrant was issued by him had absconded or had been concealing himself so that such warrant cannot be issued. An attachment warrant under section 83 Cr.P.C. can be issued only after the issuance of a proclamation. Rohit Kumar alias Raju v. State of N.C.T., Delhi and Another, 2008(1) RCR (Criminal) 101.

Proclamation not publicly read in village where accused resided as per section 82 Cr.P.C. Non-compliance cannot be cured and renders proclamation proceedings subsequent thereto a nullity. Harvinder Singh v. State of Haryana and another, 2021 (1) RCR (Criminal) 493.

Section 82 Cr.P.C. shows that before a proclamation can be issued, the court should have reasons to believe that a person against whom a warrant was issued has absconded or is concealing himself and that the warrant cannot be executed. It may be subjective satisfaction but it cannot be totally without any material. Only after recording such satisfaction, the Court can direct eh publication of a written proclamation requiring such person to appear at a specified place within the period, not less than 30 days from the date of said publication. Where no effort is made by the trial court to serve the petitioner at the address given in the FIR either after challan was filed or during investigations, then issuing proclamation under Section 82 Cr.P.C. declaring him to be a proclaimed offender are not sustainable. It was also categorically held that the date of appearance of accused shall not be less than 30 days from the date of publication. Therefore, when no effort is made to serve the summons on the accused, he cannot be declared as Proclaimed Offender. Sunil Kumar v. State, 2002 (1) RCR (Criminal) 119.

A person charged with offences under sections 406, 420, and 120B of the Indian Penal Code cannot be declared a `proclaimed offender’ under Section 82(4) of the Code of Criminal Procedure. These provisions of IPC that the Investigating Agency was intended to invoke are not within the scope of Section 82(4) of the Cr.P.C. Arun Kumar Parihar v. State (Government of NCTD), 2021 (2) RCR (Criminal) 556.

Since the execution of a non-bailable warrant directly involves curtailment of liberty of a person, warrant of arrest cannot be issued mechanically, but only after recording satisfaction that in the facts and circumstances of the case, it is warranted. The Courts have to be extra-cautious and careful while directing issue of non-bailable warrant, else a wrongful detention would amount to denial of constitutional mandate envisaged in Article 21 of the Constitution of India. Whereby non-bailable warrant of arrest were issued against the accused, the court has to be prima facie satisfied that the person accused of committing a non-bailable offence is also evading his arrest. There has to be material before the court to reach at the aforesaid conclusion. Without recording such subjective satisfaction to the effect that the accused is also evading his arrest, which should be on the basis of the material placed before the court, warrants of arrest cannot be issued and such satisfaction can be derived from the police paper/case diary. Further, mere absence of the accused cannot give rise to a presumption that he is evading arrest which in turn cannot be the sole ground to issue warrant of arrest. Raghuvansh Dewanchand Bhasin v. State of Maharashtra, (2012) 9 SCC 791.

Declaring a person declared a felon will result in a Section 174A IPC, punishable by a sentence of up to 3 or 7 years. It affects the life and freedom of a person under Article 21 of the Constitution of India and it is necessary to ensure that the procedures of Sections 82 and 83 of the CrPC are not routinely enacted and that due process is followed. The second important aspect is that, once a person has been declared a criminal, the state must use all reasonable efforts to arrest them and confiscate their property, as well as initiate legal proceedings under Section 174A of the IPC. Sunil Tyagi v. Govt of NCT of Delhi & Anr., (2012) 8 SCC 730.

Normally arresting the accused is the duty of the police officer in the station near the place the criminal resides. But, a proclaimed offender can be arrested by any police officer in any jurisdiction without a warrant or an official confirmation from the Magistrate. Rather, a proclaimed offender can be apprehended by anybody and handed over to the local police station officer or a police station without hesitation. When an accused is apprehended, a statement is given to the police officer to take his name off the list. To summarise, a proclaimed offender is somebody who fails to appear in court even after warrants have been issued against him. As a result, the Criminal Procedure Code concisely mentions every procedure and scenario relating to proclaimed offenders and what must be done if they flee.

The concept of bail can be traced back to 399 BC, when Plato tried to create a bond for the release of Socrates. The modern bail system evolved from a series of laws originating in the middle ages in England. In the Magna Carta, in 1215, the first step was taken in granting rights to citizens. It said that no man could be imprisoned without being judged by his peers on the law of the land. In 1275, in United Kingdom, the Statute of Westminister was enacted which divided crimes as bailable and non-bailable. It also determined which judges and officials could make decisions on bail. In 1628, an English constitution document titled as `Petition of Rights’ was passed by the Crown, for setting out specific individual protection against the state. In 1679, the Habeas Corpus Act was added to the Right of Petition of 1628, which gave the rights to the accused to know about the charges against him, whether the charges against him are bailable or not. The Habeas Corpus Act, 1679 states, “A magistrate shall discharge prisoners from their imprisonment taking their recognizance, with one or more surety, in any sum according to the magistrate’s discretion, unless it shall appear that the party is committed for such matter offences for which by law the prisoner is not bailable.”

Bail is an instrument to guarantee the appearance of the accused person at trial or to make sure the reliability of the procedure by preventing from manipulation of the evidence or with the witness. Webster’s Law Dictionary defines Bail as, “a temporary release of a person in exchange for security given for the prisoner’s appearance at a later hearing”.

The Criminal Procedure Code, 1973, does not define bail. Although, the terms `bailable offences’ and `non-bailable offences’ have been defined in section 2(a) of Cr.P.C., which are as follows: “Bailable offences means an offence which is shown as bailable in the First Schedule or which is made bailable by any other law for the time being in force, and non-bailable offence means any other offence.”

Further, Section 436 to 450 of Criminal Procedure Code set out the provisions for the grant of bail and bail bonds in criminal cases. The amount of security that is to be paid by the accused to secure his release has not been mentioned in the Cr.P.C. Thus, it is the discretion of the court to put a monetary cap on the bond. Unfortunately, it has been seen that courts have not been sensitive to the economic plight of the weaker sections of society.

According to the 78th report of the law commission as on april1, 1977, of a total prison population of 1, 84,169, as many as 1, 01,083 (roughly 55%) were under-trials.

First time in India, in the year 1977, Justice Krishna Iyer raised his voice against the unfair system of bail administration. Hon’ble Justice said that though while the system of pecuniary bail has a tradition behind it, a time for rethinking has come. It may well be that in most cases an undertaking would serve the purpose. (State of Rajasthan v. Balchand, AIR 1977 S.C. 2447)

In the words of Justice V.R. Krishna “The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process.”

In Moti Ram and Ors. v. State of M.P., AIR 1978 S.C. 1594); Justice Krishna Iyer opined that the judges should be more inclined towards bail and not jail.

The term “Bailable Offence” is defined under section 2(a) of code of criminal procedure, as an offence which is shown as bailable in the 1st schedule of Cr.P.C. or which is made bailable by any other law for the time being in force, in the light of second part of the 1st schedule of Cr.P.C.

Any person who has been arrested for any offence which is constituted as a bailable, should be released on bail as it is mandatory in nature. The police have the power to grant bail in these types of cases. Bailable offences are those offences or crimes that are not very serious in nature and in such cases bail is to be granted to the person as a matter of right after depositing the bail bond with the police. (Rasiklal v. Kishore, AIR 2009 SC 1341)

The Sections 50, 56 and 57 of Cr.P.C. should be read cordially in order to understand the concept of bailable offences. When read tighter, there raises a question of constitutional validity of Article 22 of the constitution, where it is assured that the accused person would be informed of the grounds and the nature for the arrest so made. According to these sections, an officer incharge of the Police Station or the court is vested with the authority to release the accused from the custody either on executing personal bonds or with sureties.

The term “Non-Bailable Offence” is also defined under section 2(a) of Cr.P.C., as an offence other than bailable. Non-bailable offences are considered more serious or heinous in nature. The quantum of punishment is higher in non-bailable offences as compared to bailable offences and may extend to Life Imprisonment.

In Non- Bailable offences, bail cannot be claimed as a matter of right and court or the police officer has discretion to grant bail after considering the facts and circumstances of each case. Provisions for bail in non-bailable offence is provided under section 437 of Cr.P.C. Bail in cases where the offence is a non-bailable one, is a matter of prudence. When the discretions are made, it is to be applied by the court of justice and channeled and supervised by the law. The bail granted in non-bailable cases under the provisions of Cr.P.C. should not be indistinguishable and absurd. Instead, it should be made with great caution without any arbitrariness and should always be lawful.

Since the jurisdiction is discretionary, it is required to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of society at large. (Mansab Ali v. Irsan, AIR 2003 S.C. 707)

Certain rules and regulation have been formed by the court and these are to be considered while granting bail to an accused:

1. The vastness of allegation;

2. The description of the indictment;

3. The type of evidence to support the same allegation;

4. The social status of the victim as compared to the accused;

5. The kind and severity of the situation in with the alleged crime is committed;

6. The fear of tampering of the witnesses/evidence;

7. The person who is already facing guilt, the likelihood of committing the offence more crimes;

8. The chance of the person to arrange his defence and to approach counsel of his own;

9. The age and sex of the person and the health of the same.

In Anil Kumar Yadav v. State (NCT) of Delhi and Anr, AIR 2017 S.C. 5398 it was held that “For ensuring fair trial, witnesses must be in a position to freely depose without fear and a fair trial can be ensured only if accused are not enlarged on bail.”

The proviso to Section 437 Cr.P.C. states that the Court may direct that a person be released on bail if such person is under the age of sixteen years or is a woman or sick or infirm. In Pawanbala v. State of H.P. 2015(3) Cri.C.C. 687. It was opined that it is expedient in the ends of justice to release the petitioner on anticipatory bail as per special provision of bail relating to women.

In Prabhakar Tewari v. State of U.P. & Anr., 2020(1) R.C.R. (Cri.) 831 court opined that “Even though several criminal cases were pending against accused, this factor by itself cannot be basis for refusal of prayer for bail.”

In Mohammad Shakil v. State of Haryana CRM-M 5923 of 2011, the opinion of the court in this, once an accused was enlarged on bail for certain offence and if during the investigation new Section is added for which minimum punishment is not life imprisonment or death penalty then Magistrate will be within its jurisdiction to ask the petitioner to furnish fresh bonds for the newly added Section. The accused is not required to seek fresh bail.

As per Section 41(1)(b), Cr.P.C., if accused of offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, can be arrested by the police officer only on its satisfaction that such person had committed the offence punishable as aforesaid.

In Arnesh Kumar v. State of Bihar: (2014) 8 SCC 273 it was held that the petitioner should be arrested only when the Investigating Officer has reason to believe on the basis of information and material collected, that he has committed an offence.

In Union of India v. K.A. Najeeb, 2021 (3) SCC 713 it was decided that “Long period of incarceration and the number of witnesses mentioned in the challan should be considered for decision the bail application.”

In Sanjay Chandra v. CBI 2011 (4) Criminal Court Cases 892; it was held that The bail application would not survive after the filing of charge sheet. There is no good reason to detain the accused in custody where there was no serious contention that the accused, if released on bail, would interfere with the trial or tamper with evidence

State Of Punjab v. Manvinder Singh And Others 2012(1) RCR (Cri.) 302. Held that For deciding the bail application under section 167(2) Cr.P.C., the day of first remand order will be included while computation of 60/90 days of custody.

In Sanjay Dutt v. State, 1994(3) RCR (Criminal) 684, the constitution bench in this decided that the right under Section 167(2) of Criminal Procedure Code to be released on bail on default if charge sheet is not filed within 90 days from the date of first remand is not an absolute or indefeasible right. The said right would be lost if charge sheet is filed and would not survive after the filing of the charge sheet. In other words, even if an application for bail is filed on the ground that charge sheet was not filed within 90 days, but before the consideration of the same and before being released on bail, if charge sheet is filed, the said right to be released on bail would be lost. After the filing of the charge sheet, if the accused is to be released on bail, it can be only on merits.

The bail application under section 167(2) Cr.P.C. should be decided on the same day. State v. Zahid Hassan & Ors 2014 (3) Criminal Court Cases 308,

In Pragyna Singh Thakur v. State of Maharashtra 2012(1) RCR (Cri.) 302; Right of accused to be released on bail is not an absolute or indefeasible – Even if an application for bail is filed on the ground that charge-sheet was not filed within 90 days, but before the consideration of the same and before being released on bail, if charge-sheet is filed, the said right to be released on bail would be lost. At the time of deciding the application under section 167 (2) Cr.P.C. merits of the case cannot be looked into. The computation of the period of 60/90 days will start from the first order of remand and not date of arrest. –

In Subhash Chander v. State of Haryana 2020 (3) RCR (Cri.) 136 The period of interim bail will not be included in computation while deciding the bail application under section 167(2) Cr.P.C..

In Saravanan v. State represented by the Inspector of Police, 2020 (9) SCC 101 apex court held that “While considering application for default bail i.e. under section 167 (2) Cr.P.C., only requirement is that accused is in jail for more than 60 or 90 days, as case may be and no other condition can be imposed. Hon’ble Supreme Court quashed certain unnecessary conditions that were imposed while granting bail to the accused, like the accused was directed to deposit Rs. 8,00,000/- and to report before the concerned police station at 10:00 a.m. daily.”

While deciding bail petition it is the duty of the Court to take into consideration certain factors, like (i) the nature of accusation and the severity of punishment in cases of conviction and the nature of supporting evidence, (ii) reasonably apprehension of tampering with the witnesses for apprehension of threat to the complainant, and (iii) Prima facie satisfaction of the court in support of the charge.

In Neeru Yadav v. State of U.P. and Anr., 2015 (4) Cri.C.C. 293 it was held that when any person has a reason to believe that there is a chance to get him arrested on false or trump up charges, or due to enmity with someone, or he fears that a false case is likely to be built up against him, he has the right to move the court of Session or the High Court under Section 438 Cr.P.C. for grant of bail in the event of his arrest, and the court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

Once a regular bail is granted by a subordinate Court on the strength of the interim/pre-arrest bail granted by the superior Court, even if the superior Court is to dismiss the plea of anticipatory bail upon fuller consideration of the matter, the regular bail granted by the subordinate Court would continue to hold the field, rendering the ultimate rejection of the pre-arrest bail by the superior court is meaningless. Rukmani Mahato v. State of Jharkhand, 2018 (1) SCC (Cri.) 828

The accused can surrender directly before High Court and pray for bail. There are no restrictions on High Court to entertain an application for bail provided the accused is in custody. Sundeep Kumar Bafna v. State of Maharashtra and another, 2014(3) Cri.C.C. 140

In Balan v. State of Kerala, 2003 (4) RCR (Cri.) 733. The accused seeking bail is not bound to approach the Court of Sessions before he can move the High Court.

Under Section 439 of Cr.P.C., High Court and Court of Sessions have special powers to issue directions that any accused of an offence who is in custody should be released on bail, if the offence is of nature defined under Section 437(3). It can direct any condition imposed by a magistrate when releasing any person on bail be set aside or modified.

The expression used in Second category of part II of Schedule I of the Criminal Procedure Code viz., that the term of imprisonment for three years or upwards, but not more than seven years, cannot be equated with the expression used in Section 63 of the Act viz., the imprisonment which may extend to three years. Rajeev Chaudhary v. State (NCT) of Delhi, AIR 2001 SC 2369 & Amarnath Vyas v. State of A.P., 2007 (3) R.C.R. (Cri.) 642.

There is no codified law to deal with the concept of bail. Though there are catena of judgments having the guidelines to grant or refusal of bail. But nuanced and precise guidelines would ultimately have to be laid down by the parliament to reduce the penumbra of ambiguity surrounding the provisions of bail. The criteria for granting bail and imposing conditions while granting bail should be based upon sociological, psychological, criminological, socio-economical and judicial factors. The classification of Bailable and Non-bailable offences as well as their relative seriousness and consequent imprisonment is frequently inconsistent. There should be consistency between the term of imprisonment for offences and their classification as Bailable or Non-Bailable. Section 41 should make it mandatory for the Investigation Officer to record the reasons in the Case Diary and Daily Diary Register, prior to making the arrest, after obtaining written approval by the Station House Officer. This will help in stopping the arbitrary arrests. The magistrate should also consider a two-way approach in order to ensure that the accused is not taken on remand through improper means as well as in determining whether the accused should be released or remanded. In every case the magistrate should pass a speaking and reasoned order to explain why the accused is required to send in judicial custody, after the police remand is over and after the presentation of charge sheet. It should consider the compelling need for the accused to remain in custody as well as the duration of under trial detention undergone by him/ her. In case an accused is in custody and the trial is getting postponed/ adjourned, the Court should release him/her on bail or remand the accused to further custody, for reasons to be recorded in writing. The crime against property and the crime against human body should also have separate guidelines to deal with the bail petitions, as now a days, criminal complaints are used as a means to harass a party or to seek quick relief in civil disputes. In the light of aforesaid discussion, the bail reforms lies on the idea of balancing the human rights of the accused and ensuring the conviction of the offender through a free and fair trial. Hence, the parliament and the Hon’ble Supreme Court needs to give special care to the fields of bail.

SECTION 124A IPC : The Most Politically Powerful Section?

Sedition law was evolved during the British times to suppress and subdue the voice and also imprison the freedom fighters who were criticizing the policies of the British Empire. The law of sedition was first introduced in clause 113 of Thomas Babington Macaulay’s Draft of the Indian Penal Code in 1837. However, when the Indian Penal Code was finally enacted in 1860, the section pertaining to sedition was mysteriously omitted.

ENGLAND

The offence of sedition can be traced back to the statute of Westminster, 1275 that is, when the king was considered as the holder of divine rights. During the era of Queen Elizabeth i.e. from 1590 onwards, Sedition Act, 1661 was passed by the parliament of England, which stated that, any act, speech or publication either made orally or in writing, and made with an intent to dethrone the crown, take down the government or create a feeling of disaffection towards the Crown would be charged under the offence of sedition. Sedition was devised as a tool in 13th century by Britain to suppress the freedom of the printing press and its ability to criticize the King. The Sedition Act, 1661, imposed punishment on anyone who wrote, printed or preached any words against the King. It evolved to mean slander and libel against the reputation or actions of government officials and judges. The goal was to protect the faith that the common man had in the government and also to avoid breach of peace in society.

Sedition was defined by Fitzgerald J. in R v. Sullivan (1868) 11 Cox C.C. 44 at p. 45, as “sedition in itself is a comprehensive term and it embraces all those practices, whether by word, deed or writing, which are calculated to disturb the tranquillity of the State, and lead ignorant persons to endeavour to subvert the Government and the laws of the Empire”.

By the 18th century, the law started receiving so much criticism in United Kingdom and finally in 2009, this law of the bygone era was deleted by Section 73 of the Coroners and Justice Act, 2009.

UNITED STATES

In 1798, the Sedition Act was passed under the presidency of John Adams, to criminalize the making of false statements against the federal government. This Act was repealed in 1820. The mention of the Sedition Act was again seen during World War I to protect the American interests. Section 3 of The Sedition Act, 1918 was drafted to punish anyone making false statements that interfered with the U.S. war efforts. This included insulting the U.S. government, flag, Constitution or military. In case of Schenck v. United States 249 U.S. 47 (1919), the court while adjudging the validity of Sedition Act 1918, laid down the “Clear and Present danger” test for restricting freedom of expression.

The Supreme Court in Abrams v. United States, 250 U.S. 616 1919 held that distribution of circulars appealing for strike in factories to stop manufacturing of machineries that were used to crush Russian revolutionaries could not be protected under the First Amendment. Justice Holmes’ dissenting opinion, however, championed the wide ambit of free speech liberty in United States. He remarked “It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned”.

The most prominent case in this regard is Re Debs v. United States, 158 U.S 564 (1895) In this ruling, the Court examined several statements that Debs had made regarding the war. While he had tempered his speeches in an attempt to comply with the Espionage Act, the Court found he had shown the “intention and effect of obstructing the draft and recruitment for the war.” Among other things, the Court cited Debs’ praise for those imprisoned for obstructing the draft.

In the opinion of Justice Oliver Wendell Holmes, the Debs’ case was essentially the same as Schenck v. United States 249 U.S. 47 (1919), in which the Court upheld a similar conviction. Hence the Supreme Court decided against Debs, and maintained the power of the Espionage Act. Debs’ was sentenced to ten years imprisonment and loss of citizenship was upheld.

AUSTRALIA

The first comprehensive legislation that contained sedition offence was the Crime Act, 1920. The provisions on sedition in this Act were broader than the common law definition as subjective intention and incitement to violence or public disturbance were not the sine qua non for conviction under these provisions. The Hope Commission constituted in 1984 recommended that the Australian definition of sedition should be aligned with the Commonwealth definition. Subsequently, the sedition provisions were again reviewed by the Gibbs Committee in 1991.The Australian Law Reform Commission reviewed whether the use of the term sedition was appropriate to define the offences mentioned under the 2005 amendment.

After this amendment, the majority senate committee report into the bill, delivered on 28 November 2005, recommended amongst 52 proposed changes that the sedition provisions be removed from the bill until after a review, claiming that they were poorly drafted and undermined free speech, and also that the existing law negated any urgency for their introduction. After a detailed study, the ALRC Report suggested that, the Australian Government should remove the term sedition from “federal criminal law” and the recommendations of the ALRC was implemented in the National Security Legislation Amendment Act, 2010 wherein the term sedition was removed and replaced with references to urging violence offences.

INDIA

The law of sedition was first introduced in clause 113 of Lord Macaulay’s Draft of IPC in 1837. However, when the IPC was finally enacted after a long delay in 1860, the section of sedition was omitted. According to a study, the necessity of introducing the law of sedition was first recognized by the British Empire after the revolt of 1857 in the light of increased Wahabi activities along with the incidents of mutiny against the British up until 1870. As a result, the law of sedition was incorporated under Section 124A of the IPC on November 25, 1870. The IPC (Amendment) Act, 1898 amended Section 124A, making the effort of bringing or attempting to bring hatred or contempt (besides disaffection) towards the established government punishable. Since then, it has largely retained in the same form.

After Independence, “sedition” was dropped from the Constitution in 1948 after discussions of the Constituent Assembly. KM Munshi moved an amendment to remove the word “sedition” that was included in the draft Constitution as a ground to impose restrictions on constitutional freedom of speech and expression. The word “sedition” thus disappeared from the Constitution when it was adopted on November 26, 1949, and Article 19(1)(a) gave absolute freedom of speech and expression. However, Section 124A continued to stay in the IPC.

In 1950, two Supreme Court decisions prompted the government to enact the infamous first amendment to the constitution of India in 1951. The first case involved objectionable material in `Organizer’, a magazine published by the RSS, and the second was filed against a magazine called `Crossroads’, for opposing the government. In both these cases, the Apex court ruled against the government, stating that public order is not an enumerated exception to the right to free speech. It was held that freedom of speech and expression can only be curtailed if it is solely directed at undermining the state’s security.

In light of these decisions, while condemning the law of sedition, Jawaharlal Nehru introduced the first amendment, empowering the state to impose “reasonable restrictions” on free speech. However, it was only in 1973 that section 124A became a cognizable offence for the first time in Indian history by the Indira Gandhi administration under the new Code of Criminal Procedure. It authorized the police to make arrests without a warrant under Section 124A.

Sedition has been defined under Section 124A of the IPC as “any speech or writing, or form of visible representation, which brings the government either into contempt or hatred or may excite disaffection towards the government or attempts to do so”. The punishment for sedition varies from fine, imprisonment up to three years or life term, or both. It defines disaffection as “disloyalty and feelings of enmity”. However, it also states that expressing disapproval of government measures or actions or to have them changed through lawful means, without promoting hatred, disaffection, or contempt for the government, shall not fall under this section.

The first notable case for the offence of sedition was reported in 1891, in the case of “Queen-Empress v. Jogendra Chunder Bose & Ors.”, (1892) ILR 19 Cal 35, in which the editors of a Bengali magazine were charged for their criticism of the British Government’s policies, specifically regarding the Age of Consent Act, 1891. The Calcutta High Court held that the publishers could not be absolved of legal liability simply because they had not written the seditious content, as the circulation of the magazine by them was intended to be read by the target audience. The court concluded that since only disaffection is penalized, the offence of sedition does not take people’s rights away.

The next landmark case on this matter was that of “Queen-Empress v. Bal Gangadhar Tilak & Keshav Mahadev Bal”, (1897) ILR 22 Bom 112“. In this case, Bal Gangadhar Tilak was tried for sedition for alleged incitement through speech that led to the killing of two British Officials. In this case, a single judge bench of the Bombay High Court agreed with the definition of `disaffection’ propounded in Jogendra Chunder Bose case and opined that any `bad feeling’ towards the government is criminal, irrespective of the level of bad feeling. The court held that in sedition matters, it is the intention of the offender which is of primacy, and could be presumed based on content, audience and circumstances of their seditious speech.

About two decades later, Tilak was again tried for sedition in the case of `Emperor v. Bal Gangadhar Tilak’, (1917) 19 Bom LR 211, for an article he wrote in which he advocated the attainment of Swarajya(`self-rule’) for Indians. In the article, Tilak explicitly admitted his loyalty to the British Crown but went on to criticize the civil services, arguing in court that the civil services and the British government were two distinct entities.

In the landmark judgment of Kedar Nath Singh – 1962 (1962 AIR 955, 1962 SCR), a five-judge Constitutional bench of the Supreme Court upheld the constitutional validity of section 124A and went on to clarify the correct position of sedition law in India. In this case, Kedar Nath Singh, who was a member of the Forward Communist Party of Bihar, was charged with sedition for making insulting speeches against the ruling Indian National Congress Government.

The apex court clarified that section 124A could not be used to stifle free speech, and could only be invoked if it could be proven that the seditious speech in question led to the incitement of violence or would result in public disorder. Since Kedar Nath criticized the Congress party and not the Indian State, and the speech in question did not lead to any incitement of violence, therefore, it did not amount to sedition.

In another important decision, in the case of “Balwant Singh & Anr. v. State of Punjab 1995 (1) SCR 411” the accused had been prosecuted for the offence of sedition as he had engaged in sloganeering in favor of an independent Sikh majority state in the wake of Indira Gandhi’s assassination. A two-judge division bench of the Supreme Court ruled in favor of the accused, on the rationale that since the speech in question did not lead to any disturbance of public order, and was not likely to incite any violence in the minds of the target audience, Balwant Singh’s actions, therefore, did not amount to sedition.

One such modification was observed about a decade back in the cases of `Arup Bhuyan v. the State of Assam’, (2011) 3 SCC 377 and `Sri Indra Das v. State of Assam’, (2011) 3 SCC 380, both of which were decided by the same two-judge division bench of the Supreme Court within seven days of each other. In both judgments, the court, adjudicating on charges of sedition and preventive detention, placed reliance on the `imminent lawless action’ test laid down by the U.S. Supreme Court judgment in the case of Brandenburg v. Ohio, 395 U.S. 444 (1969). As per this test, every speech is protected by the First Amendment to the U.S. Constitution unless it incites imminent lawless action, which is similar to Kedar Nath case.

The dominant pattern of the reports published by Article 14, Ministry of Home Affairs and National Crime Records Bureau reveal a rapid increase in sedition cases since 2014. According to data from the National Crime Records Bureau, there has been a significant increase in the number of cases filed under section 124A of the IPC, with such cases rising by 160%, between 2016 and 2019, while the conviction rate for such offences dropped from 33.3% to 3.3% for the same period. This clearly indicates that the State has been misusing this provision to file baseless or frivolous cases. Such abuse is bound to affect the free speech of citizens by forcing them to self-censor. In 2019, 93 cases were on the ground of sedition as compared to the 35 cases that were filed in 2016. The same constitutes a 165% increase. Of these 93 cases, charge sheets were filed in a mere 17% of cases and even worse, the conviction rate was an abysmally low 3.3 %. National Crime Records Bureau reports show that in 2019, 21 cases of sedition were closed on account of no evidence, two were closed being false cases and six cases held to be civil disputes.

The Law Commission of India, in its Consultation Paper on “Sedition”, published on August 30, 2018, observed that while retaining the offence of sedition was essential to protect national integrity, it should not be used as a tool to curb free speech. The Law Commission further requested that the laws under Section 124A should be reconsidered. It has been noted that Britain, the creator of the law of sedition along with New Zealand, Australia, Indonesia, South Korea etc. have scrapped their respective sedition laws. It has been questioned several times whether a law enacted by the British Empire to repress the independence movement should still be valid in India.

Merely being critical of the government or expressing contempt on the functioning of the government does not amount to sedition. For an act to constitute sedition, it must be done with an intention to cause disorder/disturbance of the public peace or law by resort to violence, and must incite violence. Article 19(a) of the Indian Constitution provides for freedom of speech and expression. It is a fundamental right and cannot be taken away. However, it is not absolute and is subject to reasonable restrictions under Article 19(2) in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

One of the most important characteristics of a democracy is freedom of speech. A democratic country is one where the citizens have a choice, and the right to voice their choices. Denying them their right to express would take away the essence of democracy. However, while all citizens have the right to speak freely and express their views and opinions, it must be kept in mind that with those rights, they also have certain duties to perform as citizens of India. A democracy can function in its best possible way only when the State and the citizens perform their own duties, and think first on national level, and then on an individual level. But, the recent trend of increasing cases of law of sedition has led to the infringement of the Fundamental Right to Speech and Expression as every voice raised by the public is converted into the matter of pride for the government leading to injustice at large. The growing number of cases is nothing but a call for help to put an end to such arbitrariness of the government.

Some recent trend of cases can be seen where the apex court has decided to investigate the constitutional validity of the offence of sedition. In the case of Kishore Chandra Wangkhemcha & Kanhaiya Lal Shukla v. Union of India, Imphal-based journalist Wangkhem was arrested on charges of sedition for criticizing Prime Minister Narendra Modi, the Rashtriya Swayamsevak Sangh (RSS) and State Chief Minister N. Biren Singh on social media in 2018.

In May 2021, a three-judge bench of the Supreme Court ruled in the case of “Aamoda Broadcasting Company & Anr v. State of Andhra Pradesh” that there is a need to define the limits of sedition under Section 124A of the IPC. The two news channels were booked with sedition for broadcasting `offending speeches’ made by a YSR Congress lawmaker.

On 16th July 2021 – Chief Justice of India, has dubbed the misuse of sedition laws as a “serious breach of functioning of institutions” and asked the Centre to explain why it still retained the colonial-era law in the statute books when it had done away with so many other archaic laws. He further states that, “There is no dispute that it is a colonial law. It was used to suppress the freedom movement used to silence Gandhi, Tilak. Is it still necessary after 75 years of Independence?”

On January 14 2022 on the topic “Constitutional underpinnings of the rule of law” at the inauguration of Mumbai’s DM Harish School of Law. Justice Rohinton Nariman has said that it is “important for the court” to strike down Section 124A (sedition) of the Indian Penal Code (IPC) which criminalises sedition. He called the UAPA a “draconian legislation” and said the law requires it to be scrutinised by the top court. His remark laid focus on several incidents of communal crimes that are being reported across the country. The retired judge drew a comparison between the use of the sedition law on student leaders and stand-up comedians with the inaction against those making hate speeches. “Unfortunately of late, we have had in this country young persons, students, stand-up comedians all being booked unnecessarily for freely criticizing the government of the day which are really colonial in nature,”

The Law of Sedition roots back to old times when ‘The Britishers’ aimed to suppress the Indians to rule over them and successfully did so for more than 100 years. Today even after 75 years of Independent India if we are not able to come out of the shackles of Britishers and continue to suppress our own people in the name of sedition, then it is a disgrace to call ourselves democratic. While it is essential to protect national integrity, it should not be misused as a tool to curb free speech. Dissent and criticism are essential ingredients of a robust public debate on policy issues as part of vibrant democracy. Therefore, every restriction on free speech and expression must be carefully scrutinized to avoid unwarranted restrictions.

The Indian Evidence Act, 1872, contains special provisions with regard to proving electronic evidence. These provisions have been inserted in the Indian Evidence Act, 1872 by the Act 21 of 2000 with effect from 17-10-2000 by way of sections 65-A and 65-B. Electronic evidence is admissible and is required to be proved only under these provisions. Section 65-B of Evidence Act, 1872 starts with a non obstante clause and appears to be a complete code in itself governing the proof of electronic evidence.

Generalia specialibus non derogant, special law will always prevail over general law. Sections 63 and 65 of Evidence Act, 1872 have no application in the case of leading secondary evidence for proving electronic record. The same is wholly governed by section 65-A & 65-B of Evidence Act, 1872. Any documentary evidence by way of an electronic record in view of sections 59 & 65-A of Evidence Act, 1872 can be proved only in accordance with the procedure prescribed under section 65B of Evidence Act, 1872. Section 65-B of Evidence Act, 1872 deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form generated by a computer^[1*].

[1* Anwar P.V. v. P.K. Bashir, 2014 (10) SCC 473 and Vikram Singh v. State of Punjab, 2017 (8) SCC 518]

Electronic records are more susceptible to tempering, alteration, excision etc. To safeguard the right of the parties, the legislation has introduced Section 64-B in Evidence Act, 1872. The admissibility of electronic record, which is a computer output, depends upon the satisfaction of four conditions which are prescribed in section 65-B of Evidence Act. No doubt that the new techniques and devices are the order of the day. Audio and videotape technology has emerged as a powerful medium through which a first-hand information about an event can be gathered and in a given situation may prove to be a crucial piece of evidence. At the same time, with fast development in the electronic techniques, the tapes/cassettes are more susceptible to tampering and alterations by transposition, excision, etc. which may be difficult to detect and therefore, such evidence has to be received with caution. Though it would neither be feasible nor advisable to lay down any exhaustive set of rules by which the admissibility of such evidence may be judged but it needs to be emphasised that to rule out the possibility of any kind of tampering with the tape, the standard of proof about its authenticity and accuracy has to be more stringent as compared to other documentary evidence.^[2*]

[2* Tukaram S. Dighole v. Manikrao Shivaji Kokate, 2010 (4) SCC 329]

If an electronic record as such is used as primary evidence under Section 62 of Evidence Act, 1872, the same is admissible in evidence, without compliance with the conditions in Sections 65-B of Evidence Act, 1872.

Sections 63 and 65 of Evidence Act, 1872, have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65-A and 65-B Evidence Act, 1872. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Sections 65-B Evidence Act, 1872 are satisfied. Thus, in the case of CD, VCD, chip etc. the same shall be accompanied by the certificate in terms of Section 65-B Evidence Act, 1872 obtained at the time of taking the documents, without which, the secondary evidence pertaining to that electronic record, is inadmissible.

The non obstante clause in sub section (1) of section 65-B of Evidence Act, makes it clear that when it comes to information contained in an electronic record, admissibility and proof thereof must follow the drill of Section 65-B Evidence Act, 1872, which is a special provision in this behalf. Sections 62 to 65 Evidence Act, 1872 are irrelevant for this purpose. However, Section 65-B(1) Evidence Act, 1872 clearly differentiates between the “original” document, which would be the original “electronic record” contained in the “computer” in which the original information is first stored and the computer output containing such information, which then may be treated as evidence of the contents of the “original” document. All this necessarily shows that Section 65-B Evidence Act, 1872 differentiates between the original information contained in “computer itself and copies made there from, the former being primary evidence and latter being Secondary evidence.

If electronic evidence is authentic and relevant, the same can be certainly admitted subject to the court being satisfied about its authenticity and procedure for its admissibility may depends on the fact situation as to whether the person producing such evidence in a position to furnish certificate under Section 65-B(4) of the Evidence Act. Sections 65-A and 65-B of the Evidence Act cannot be held to be a complete code on the subject and its authenticity depends on the fact situation, such as whether person producing the aforesaid evidence is in a position to furnish the certificate under Section 65B(4) of Evidence Act. Requirement of production of certificate under Section 65B (4) of the Evidence Act is procedural in nature and can be relaxed by the court wherever interest of justice so requires^[3*].

[3* Mohemmad Ajmal Amir Kasab v. State of Maharashtra, 2012 (9) SCC 1]

Information memorised as business record or records maintained in common course of events are not treated as hearsay even if the maker lacks personal knowledge of the facts or events. The electronic document should be prepared in normal course of business. The computer was operating properly and that even if it was not operating properly some time, the break had not affected either the record or the accuracy of its contents. Subsection (4) to Section 65B of Evidence Act postulates that the certificate should be given by a person occupying a responsible official position in relation to operation of the relevant device or management of the relevant activities. If the said conditions are satisfied it promotes and establishes the trustworthiness. In such cases presumption of facts regarding genuineness and authenticity of the content can be invoked at the discretion of the court under Section 114 of the Evidence Act.

Under Section 65-B(4) of the Evidence Act, if it desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:

(a) There must be a certificate which identifies the electronic record containing the statement;

(b) The certificate must describe the manner in which the electronic record was produced;

(c) The certificate must furnish the particulars of the devices involved in the production of that record;

(d) The certificate must deal with the applicable conditions mentioned under Section 65-B(2) of the Evidence Act; and

(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.

The person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, compact disc (CD), Video Compact Disc (VCD), pen drive etc. pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records are more susceptible to tampering, alteration, transposition, excision etc.. Without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.

The information contained in the call records is stored in huge servers which cannot be easily moved and produced in the court. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service providing the signature of the certifying officer or otherwise speak of the facts bases on his personal knowledge.

In Anwar P.V. the Supreme Court noticed the difference between relevancy and admissibility, which is examined at the initial stage and genuineness, veracity and reliability of the evidence, which is seen by court subsequently. Thus the ratio and dictum in Anwar P.V. is based and predicated on the difference between admissibility and veracity or evidentiary value. Hon’ble Supreme Court deals with the aspect of admissibility in strict legal sense, not to be confused with evidentiary or correctness of contents. Of course when the conditions mentioned in section 65B are satisfied in terms of Section 114 of Evidence Act, the court may presume existence of certain facts^[4*].

[4* Kundan Singh v. State, 2015 SCC Online Del 13647.]

Tape-records of speeches are “documents” as defined in Section 3 of the Evidence Act and stand on no different footing than photographs^[5*].

[5* See Ziyauddin Burhanuddin Bukhari v. Briimohan Ramdass Mehra [(1976) 2 SCC 17]]

The emails can be proved by leading evidence to show that the emails were downloaded on a computer which was regularly in use by the originator/person and were then printed. The witness would have to testify that such a procedure was carried out. Merely sending email from a particular email address would not lead to a presumption that the particular email was sent by the originator, i.e. the person from whose email address an e-mail is sent. Hacking is not an unknown phenomenon in the world of electronic records. The statutory provision in law is that the presumption relating to the genuineness of and electronic message is rebuttable and the court cannot presume that the message has been sent by a particular person^[6*].

[6* Abdul Rahaman Kunji v. State of WB : 2016 Cri.L.J. 1159.]

Source and authenticity are the two key factors for electronic evidence. If the audio conversation is not in audible condition and the same is not considered for spectrographic analysis, then there is no point to place reliance on the translated version/transcript^[7*].

[7* Sanjay Singh Ramrao Chavan v. Dattatray Vulabrao Phalke and others, 2015 (3) SCC 123.]

Printouts taken from official website has sanctity and the trial court is expected to consider those printouts^[8*].

[8* Sheetal Srishna Dhake v. Drishna Dagdu Dhake, 2018 (1) RCR(C) 884 (Bombay).]

Whatsapp messages are admissible as electronic record, if supported with the certificate under section 65B of Evidence Act. Otherwise whatsapp messages have no evidentiary value^[9*].

[9* Rakesh Kumar Singla v. UOI, 2021 (1) RCR (Cri.) 704.]

In Ziyauddin Burhanuddin Bukhari [(1976) 2 SCC 17], relying on R. v. Magsud Ali [(1966) 1 QB 688 : (1965) 3 WLR 229 : (1965) 2 All ER 464 (CCA)], a Bench of three Judges of the apex Court held that the tape-records of speeches were admissible in evidence on satisfying the following conditions :

“(a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it.

(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record.

(c) The subject-matter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act.”

Similar conditions for admissibility of a tape-recorded statement were reiterated in Ram Singh v. Col. Ram Singh, 1985 Supp SCC 611 and recently in R.K. Anand v. Delhi High Court, (2009) 8 SCC 106.

It is necessary to provide certificate under section 65B at the stage of evidence and not at the stage of collecting evidence. The person issuing the certificate is not always required to be examined. It is only when the authenticity of the certificate was questioned that cross-examination was required^[10*].

[10* Kundan Singh v. State, 2015 SCC online Del. 13647; Avadut Waman Kushe v. State of Maharashtra, 2016 SCC online Bom. 3236; K. Ramajayam v. Inspector of Police, 2016 SCC online Mad. 451]

Most of the electronic record is perishable and prone to deletion automatically. The electronic record can be preserved by the court by using the powers under section 91 Cr.P.C. The said record can later be used during the trial^[11*].

[11* Sheru @ Surajnath v. State of Rajasthan, 2014 (4) Cri. C.C. 413 and Suresh Kalmadi Case, 2015 (8) RCR (Cri.) 387]