Tag: #criminallaw

About Fellowship

The Academic Fellowship is a flagship programme created by the University to nurture early careers in academics in teaching and research. Academic Fellow is expected to contribute to the intellectual growth of the University and will be mentored by a Senior Faculty Member under the Chair of Professional Ethics at NLU Delhi. In this background, applications are invited from academics and early career scholars in law initially for one position and the same can vary if the candidates are found suitable for more positions.

Responsibilities

Academic Fellow is expected to assist in teaching & will undertake research in Criminal Law / Professional Ethics. The work involved will require excellent research and writing skills.

Eligibility

(i) LL.M from a recognized Indian or Foreign University with a minimum of 55% marks (or an equivalent grade on a point scale wherever the grading system is followed) and a good academic record.
(ii) Applicants in this category should not have qualified for their first undergraduate degree before 01-01-2015.

Requirements

Demonstrable research track record in relevant areas of criminal law / legal research. Only candidates with sound orientation are encouraged to apply.

Nature of Appointment

Contractual

Emoluments

Rs. 50,000/- p.m.

Application Process

The following materials need to be submitted digitally:

• Statement of Purpose (750 words)
• Resume, including publications authored or co-authored, if any
• Copy of undergraduate degree, clearly indicating date and year of graduation.
• Copy of Master’s Degree clearly indicating date and year of graduation.
• Any other document relevant to this application not already submitted above.

The application must be submitted HERE

Deadline

LAST DATE FOR THE RECEIPT OF APPLICATION: MAY 21, 2023

Check out more Details: https://nludelhi.ac.in/UploadedImages/a13ee47c-7235-4a29-a9c6-00dd93880a78.pdf

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This article discusses the impact of natural, physical, and social environments, as well as factors such as dysfunctional families, substance abuse, and unemployment. The article emphasizes the need for a multifaceted approach to address these issues and highlights the implications of environmental factors on crime from a legal perspective.

Introduction

An individual’s surroundings hold significant sway over their behaviour, even in ways that may not be immediately apparent. For instance, the force of gravity is a constant presence in our lives, impacting every aspect of our physical being from the way we move to the way we breathe. Similarly, the environment in which we reside can have a profound impact on our actions, particularly when it comes to criminal activity.

The importance of studying the effects of surroundings on criminal behaviour has become increasingly clear as urban populations continue to rise. Historically, cities have had higher crime rates than rural areas, and this trend is expected to persist as cities become more densely populated and technologically advanced. Like our childhood experiences that shape our perspectives and behaviour, our surroundings can greatly influence the likelihood of engaging in criminal activity. To create a safer and more secure society, it is critical to comprehend the intricate connections between social, physical, and natural environments.

Natural Environment and Its Influence on Criminal Activity

The natural environment can have a profound impact on human behaviour and mental states, potentially leading to changes that increase the likelihood of criminal activity. For instance, research has shown that temperature can be a significant factor in predicting certain types of violent crime. Studies conducted in South Korea, Pakistan, the United States, and New Zealand have all found a correlation between higher temperatures and increased crime rates, especially during the summer months. Conversely, lower temperatures have been linked to lower rates of criminal activity. These findings suggest that natural forces can affect individuals both physically and emotionally, potentially leading to out-of-character behaviours that may result in criminal acts. For example, extreme weather events such as hurricanes and heat waves have been shown to increase property and violent crimes. Furthermore, changes in climate and temperature are expected to have even more significant impacts on crime rates in the future.

Air pollution is another natural factor that has been shown to impact crime rates. The presence of pollutants in the air can have neurological effects on individuals, which can affect their cognitive function and lead to an increased risk of criminal activity. For example, a study conducted by Nevin in the United States found a correlation between lead concentration in gasoline, changes in IQ levels, and an increase in violent crime rates. When lead was removed from gasoline, there was a significant decline in the number of individuals with neurological problems and violent crimes. Other studies have also explored the relationship between air pollutants like carbon monoxide, particulate matter, sulfur dioxide, and ozone and their effects on crime rates. For instance, some studies have suggested that higher levels of carbon monoxide can lead to a reduction in burglary cases. These findings highlight the importance of considering the impact of the natural environment on crime rates and the potential role of air pollution in shaping criminal behaviour. Therefore, it is important to consider the influence of the natural environment when analyzing patterns and trends in criminal activity.

Physical Environments in Crime

Physical environments’ impact on crime is increasingly being recognized and studied by developed countries. The issue is not receiving the attention it deserves, despite its significant impact on society. Three levels of study, namely Micro, Macro, and Meso, are used to understand how physical features in our surroundings affect crime. Crime Prevention through Environmental Design (CPTED)^[1] is a multi-disciplinary approach that utilizes urban and architectural design, as well as the management of built and natural environments, to prevent crime.

Understanding the impact of physical environments on crime is crucial in developing effective crime prevention strategies. By examining how features such as building design, street layout, and lighting affect criminal activity, policymakers can design and implement measures that can deter crime and enhance public safety. The study of physical environments and crime prevention is therefore an essential aspect of creating livable and safe communities. Furthermore, adopting a multi-disciplinary approach like CPTED can help foster community cohesion and empower residents to take ownership of their areas, leading to a more proactive approach to crime prevention.

Poor physical planning and the absence of Crime Prevention Through Environmental Design (CPTED) principles can increase the likelihood of criminal activity in a given area. CPTED is a set of design principles that aim to reduce crime by making changes to the physical environment. This can include features such as lighting, landscaping, and the layout of buildings and streets. When implemented effectively, these measures can create an environment that is less conducive to criminal activity.

The broken window theory supports the idea that disorder leads to more crime. According to this theory, observable indications of disorder, such as litter or broken windows, can indicate to potential offenders that an area is not well-maintained, thereby reducing the likelihood of criminal activity being identified and penalized. This can create an environment in which criminal activity becomes more prevalent.

Criminals often exhibit a specific modus operandi when planning and carrying out criminal activities. They tend to look for opportunities and environments that make it easy for them to commit crimes with minimal risks of getting caught or identified. Essentially, crime occurs when the perpetrator identifies a vulnerable target and feels confident that they can get away with the crime. This can include factors such as poor lighting, lack of surveillance, or inadequate security measures in a given area. By understanding the pattern of the approach used by criminals, law enforcement and community members can take steps to prevent crime and create a safer environment for all. This might involve implementing measures such as increasing lighting or surveillance, improving security measures, or increasing community awareness of potential risks and prevention strategies.

The likelihood of crime occurring in a particular location is influenced by the physical environment, as it can shape the perception and behaviour of potential wrongdoers. Criminals often evaluate a location’s vulnerabilities before committing a crime, including factors such as accessibility, visibility, and escape routes. If a location presents challenges to entering or escaping undetected, the potential wrongdoer may reconsider their decision to commit a crime. For instance, a location with high visibility, limited access points, or no direct escape route may deter criminal activity. By designing physical environments with these considerations in mind, it is possible to reduce the likelihood of crime and increase community safety.

Impact of Social Environment on Criminal Behaviour

The social environment in which individual lives can have a significant impact on their likelihood to engage in criminal behaviour. In Hindi culture, there are many proverbs that reflect this idea. One such proverb is “Sangati ka asar padta hai,” which translates to “The company you keep influences your behaviour.” This proverb suggests that the people we associate with can have a significant impact on our beliefs, attitudes, and actions. It is crucial to consider the social environment when examining the root causes of crime and implementing strategies to prevent it. By addressing the underlying factors that contribute to criminal behaviour, such as poverty and lack of education, we can create a more positive social environment that encourages lawful behaviour and reduces the likelihood of crime.

It is widely acknowledged that a significant portion of violent behavior is learned, rather than innate. Specifically, research has indicated that exposure to violence or physical abuse during childhood – particularly within the family unit – can significantly increase the likelihood of engaging in violent behaviour during adolescence. The magnitude of this risk has been estimated to be as high as 40%. It is noteworthy that the absence of effective social bonds and parental failure to impart and internalize conventional norms and values may also render children vulnerable to later engagement in violent behaviour, even in cases where violence is not modelled in the home. This underscores the importance of a supportive and nurturing environment, where children are taught to internalize socially-accepted values and norms.

Furthermore, it is worth mentioning that certain neighbourhoods may provide opportunities for learning and engaging in violent behaviour. This can be attributed to a variety of factors, including but not limited to a lack of economic opportunities, social inequality, and limited access to resources that could support positive development.

Causes of Violent Behaviour

The existence of criminal organizations, particularly those involved in illicit drug trade, and gangs, exposes individuals to high levels of violence, as well as violent role models and rewards for engaging in serious violent activities. While behaviour patterns developed in early childhood can persist in the school environment, schools themselves can also serve as sources of conflict, frustration, and potential triggers for violent responses.

Research has revealed that school dropouts, drug dealers, and those with prior records of violent behaviour are more likely to possess firearms than their non-violent peers. Moreover, growing up in disorganized neighbourhoods and impoverished, minority households have been shown to have a direct impact on the development of violent behaviour in two primary ways. Firstly, limited employment opportunities at the time of transitioning into adulthood can hinder the chances of establishing a stable family life. Secondly, growing up in disorganized and impoverished neighbourhoods can disrupt the natural course of adolescent development.

DYSFUNCTIONAL FAMILIES AND CRIME

The CS&CPC recognizes the crucial role that families play in raising responsible and healthy members of society. However, ensuring the well-being of children requires more than just the efforts of families; it involves the active participation of communities and society as a whole. Dysfunctional family structures are among the primary contributors to future delinquency. These structures can include parental inadequacy, conflict, criminal behaviour, poor communication, lack of respect and responsibility, child abuse and neglect, and family violence. Therefore, it is crucial for crime prevention efforts to address these root causes by focusing on improvements in all three areas: families, communities, and society.

HOUSEHOLD CONDITIONS

Studies have found that witnessing domestic violence at home is a strong indicator of violent behavior among young offenders, with over 50% of them having witnessed wife abuse. Children who experience physical or sexual abuse are also at a significantly higher risk of becoming violent adults. Furthermore, ineffective parenting, lack of parental involvement, and rejection, as well as inconsistent and overly punitive discipline methods, are all consistent indicators of delinquent behavior.

Unwanted and teen pregnancies have also been linked to higher risks of criminality. Additionally, research suggests that dysfunctional parenting increases the likelihood of youth associating with delinquent peers. Early school leavers also face many challenges, including unemployment or under-employment, and it has been found that 40% of federal inmates in Canada have an undetected learning disability from childhood. Therefore, addressing issues related to the home environment and parenting can help prevent future delinquent behavior.

SUBSTANCE ABUSE AND CRIME

Alcohol and substance abuse have a close association with criminal behaviour, with many offenders being under the influence of drugs or alcohol when committing crimes. The regular use of alcohol during adolescence has also been linked to higher conviction rates in adulthood. Additionally, research suggests that exposure to certain forms of media, such as television, can influence the behaviour of children to some extent. Studies have also found links between diet and violent behaviour. Therefore, addressing substance abuse and related factors is crucial for effective crime prevention efforts.^[2]

UNEMPLOYMENT AND CRIMINAL BEHAVIOR

Frequent joblessness is often associated with criminal behaviour. Several studies have revealed that a significant proportion of incarcerated youths and adults were unemployed prior to their arrest. The experience of persistent unemployment can create a sense of hopelessness, especially among young people, and trigger negative behaviours like theft, substance abuse, alcoholism, and violence against children and family members. Similarly, men who are unemployed after being released from correctional facilities are more likely to re-offend. A combination of academic failure and unstable employment situations can lead to continued involvement in criminal activities.

DIVERSE ADDITIONAL RISK FACTORS

The probability of criminal behaviour is influenced by multiple risk factors, which should not be considered in isolation. The major risk factors identified through research include poverty, racism, family violence, parental and community neglect, and problems at school. Many persistent offenders begin engaging in anti-social activities before and during adolescence. Age alone is not a risk factor but should be looked at in the context of these factors. Prevention efforts should be focused on the early childhood years as they are critical for healthy social and emotional development, with birth to age 5 being the most crucial.

Although crime rates among females have increased in recent years, males are still more likely to be involved in criminal behaviour. Research indicates that crime usually involves aggression, risk-taking, and predatory behaviour.

Implications of Environment on Crime: Legal Considerations

The impact of the environment on crime rates has important legal consequences, particularly in regard to the development of more sophisticated and personalized guidelines for sentencing. Studies indicate that individuals who come from less privileged backgrounds are more prone to criminal activity, suggesting that uniform sentencing guidelines may not be suitable for all offenders. Consequently, judges and policymakers may need to take into account factors such as an individual’s socioeconomic circumstances and other environmental influences when determining the most suitable sentence.

It is crucial to strike a balance between individualized sentencing and ensuring public safety. While it is important to consider an offender’s background and environmental influences when deciding on an appropriate sentence, it is equally essential to take into account the severity of the crime committed and the potential danger that the offender poses to society. Sentencing guidelines must be designed to serve the interests of justice, deterrence, and the protection of the public.

Although socioeconomic and environmental factors may play a role in an individual’s criminal behaviour, it is important to avoid using them as an excuse for overly lenient or excessively harsh sentencing. The principle of proportionality should be upheld in all cases, which means that the severity of the punishment should be commensurate with the gravity of the offence committed. Implementing interventions that tackle the root causes of criminal behaviour is an essential step toward reducing crime rates and creating a safer and fairer society. By investing in programs and initiatives that address issues like poverty and social inequality, we can help prevent individuals from turning to criminal activities and create a more just and equitable society.

Conclusion

The environment has a significant impact on an individual’s behaviour, including criminal activity. As cities become more advanced and densely populated, understanding the influence of surroundings on criminal behaviour is increasingly important. Childhood experiences and the effects of gravity are among the factors that must be considered in creating effective crime prevention strategies. Humans are social animals who require other people to live happily, but the environment can affect individuals positively or negatively. Crime is a negative effect of the environment that is a menace to society. A healthy, developed, and nurturing environment raises good, responsible, and righteous citizens, while a bad environment can raise violent, careless, and criminal-minded individuals. Countries must invest in improving all types of environments to reduce high crime rates and create a safer future.

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Endnotes:

1. Crime Prevention Through Environmental Design (CPTED), (Apr. 27, 2023), ,https://menlopark.gov/Government/Departments/Police/Crime-safety-and-prevention/Crime-Prevention-Through-Environmental-Design#:~:text=Crime%20Prevention%20Through%20Environmental%20Design%20or%20CPTED%20(pronounced%20sep%2Dted,either%20encourage%20or%20discourage%20crime.
2. Waterloo Region Crime Prevention Council, (Apr. 27, 2023), http://preventingcrime.ca/wp-content/uploads/2014/08/Causes_of_Crime.pdf.

This article is authored by Sohini Chakraborty, a first-year law student at RGNUL Patiala.

Project 39A invites submissions to The P39A Criminal Law Blog focuses on contemporary criminal law and criminal justice issues.

The blog provides a platform for academic engagement with criminal justice issues, seeking to trigger nuanced and interdisciplinary engagement with the structural barriers and harsh realities of the criminal justice system in India. We also encourage perspectives through various disciplines, including sociology, psychology, anthropology and science. We particularly encourage students (across disciplines) to submit relevant pieces.

Word Limit

The blog currently accepts short-form posts between 1200-1500 words and long-form posts between 2200-2500 words in English. We accept co-authored submissions.

Guidelines

1. All posts must be original and unpublished works of the author/s. All posts will be subject to a plagiarism check. 
2. On publication of an original article on the blog, the author cannot publish the same article or a substantially similar article in any other publication or any other platform without prior approval from Project 39A. All such re-publication shall explicitly acknowledge that the article was first published on the Project 39A Criminal Law Blog.
3. All sources must be hyperlinked in the text of the blog. Please do not use footnotes.

Submissions

For submission details, check https://p39ablog.com/submissions/

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-Report by Sejal Jethva

RITU TOMAR VS. STATE OF U.P. AND OTHERS, in this case, the petition filed under Section 482 of the Code of Criminal Procedure (for short “the Cr.P.C.”) for the quashing of the FIR for the offence punishable under Sections 147, 148, 149, 452, 324, 307, 342 and 506 of the Indian Penal Code (for short “the IPC”).

FACTS

According to the prevailing tradition and practice, the marriage of the appellant’s sister, Ms. Rekha, the fourth respondent in this case, and the third respondent came to be solemnized on May 15, 2011, leading to its consummation and the birth of a baby girl who has since been given the name Tejal.

APPELLANT’S CONTENTION

According to the said Ms. Rekha, who claimed she had been expelled from the marital home, she filed a petition under Section 125 of the Criminal Procedure Code, which was registered as V. No. 230 of 2014 and is currently pending on the file of the Principal Family Judge. As a result, an order was made on July 22, 2017, requiring the third respondent to pay a sum of Rs. 5,000 per month. Additionally, on March 15, 2017, she filed a police report (FIR) with the Harsh Vihar Police Station in North East Delhi for Crime No. 73 of 2017 against the third respondent and others for offences punishable by Sections 498A, 406/34 of the IPC read with Sections 3 and 4 of the Dowry Prohibition Act. The jurisdictional police claimed to have started the inquiry based on the aforementioned FIR that was filed.

RESPONDENT’S CONTENTION

When the aforementioned factual situation occurred, the third respondent filed an Application No. 41 of 2018 under Section 156(3) of the Criminal Procedure Code, alleging that the appellant and Respondent Nos. 4 to 7 had forcibly entered his home and attacked the complainant and his father with a knife on the applicant’s head with the intent to kill them when they refused to heed their demands to leave the village after selling the land and home. On the basis of the aforementioned complaint, which was brought before the Chief Judicial Magistrate-I, Gautam Budh Nagar, a report from the second respondent was requested; as a result, a report was submitted on March 11, 2018, opining that the accused parties, including the appellant, never visited the complainant’s home and that the incident in question had not occurred. However, the Learned Magistrate ordered the filing of a police report on May 3, 2018, and as a result, the second respondent filed a police report in Case Crime No. 55 of 2018 against the appellant and others for the violations listed above. As a result, a plea to nullify the aforementioned FIR was filed; however, when it was denied, the current appeal was submitted.

JUDGMENT

1. We have read the documents and listened to knowledgeable solicitors representing the parties. After giving the claim made by the appellant before the High Court careful consideration and repetition before this Court, we have concluded that the third respondent, who is the appellant’s sister’s husband and who had filed an application under Section 156(3) before the Additional Chief Judicial Magistrate-Ist, Gautam Budh Nagar in application No.41 of 2018, has unquestionably passed away while the current proceedings were pending. His name was consequently removed by order dated January 20, 2020. Regarding responses 1 and 2, none have surfaced.

2. Despite the aforementioned facts and the fact that a dispute between two families had already led to the wife filing two cases, which led to the registration of an FIR against the complainant (the third respondent here) and his family members, as well as the fact that none of the villagers, including the complainant’s neighbours, had supported or testified about the occurrence of any incident on January 26, 2018, as claimed by the complainant.

3. Therefore, insofar as the appellant is concerned, we quash the proceedings filed by the second respondent as Crime No.97 of 2018 under Sections 147, 148, 149, 452, 324, 307, 342, and 506 of the IPC. Therefore, the appeal is granted. 

READ FULL JUDGEMENT: https://bit.ly/3mWmir2

S.no	Contents
1.	Introduction
2.	Judicial and Executive acts: A General Exception under IPC
3.	Judicial acts as an exception
4.	Executive acts as a general exception
5.	Analysis regarding the judicial and executive acts
6.	Issues
7.	Suggestions
8.	Importance and need in the present scenario
9.	Conclusion

Introduction

The Indian Penal Code (IPC)^[1] contains several provisions that serve as general exceptions to criminal liability. These provisions exempt certain actions from being considered crimes under certain circumstances.

For example, Section 76^[2] provides that acts done by a person who is bound by law to do them are not crimes, while Section 80 provides that an act done in good faith for the benefit of a person without their consent is not a crime if it would otherwise have been so. Section 81 provides that an act done by several persons to further a common intention is not a crime if done in good faith for the advancement of religion, science, literature, or fine arts. The general exceptions under IPC are meant to provide a reasonable balance between the protection of individual rights and the public interest.

Judicial and Executive acts: A General Exception under IPC

Section 197 of the Indian Penal Code (IPC) provides a general exception for acts performed by a public servant in the discharge of his official duties, or by any person acting under the direction of a public servant if such act is done in good faith. This means that criminal proceedings cannot be initiated against such individuals unless prior sanction is obtained from the appropriate authority. This provision is intended to protect public servants from baseless lawsuits and ensure that they are able to perform their duties without fear of legal harassment.

Judicial acts as an exception

The judicial act exception under the Indian Penal Code (IPC) is a provision in Section 197 of the code that exempts public servants and persons acting under the direction of a public servant from criminal liability for acts performed in good faith in the discharge of their official duties. This provision applies to acts performed by judges, magistrates, and other public servants in the course of their official duties and provides immunity from criminal prosecution for actions taken in good faith in the performance of such duties. The purpose of this exception is to ensure that public servants are able to perform their duties without fear of being sued for criminal offences and to prevent frivolous or malicious lawsuits from being filed against them. However, prior sanction from the appropriate authority is required before criminal proceedings can be initiated against a public servant under this exception.

Case Laws that give us a vivid idea regarding the prevailing exceptions

There are several case laws that have interpreted and applied the judicial act exception under Section 197 of the Indian Penal Code (IPC). Some of the notable cases include:

R. Rajagopal v. State of Tamil Nadu^[3]: In this case, the Supreme Court of India held that the judicial act exception under Section 197 of the IPC applies only to acts performed in the exercise of judicial or quasi-judicial powers and does not extend to acts performed in an administrative capacity.

State of Maharashtra v. Narayan Dattatraya Apar^[4]: In this case, the Supreme Court held that the judicial act exception under Section 197 of the IPC applies only to acts performed by public servants in good faith and within the scope of their official duties and not to acts of omission or commission that are mala fide or beyond the scope of their official duties.

K.R. Lakshmanan v. State of Tamil Nadu^[5]: This case dealt with the issue of whether the prior sanction was required before a public servant could be prosecuted for an act performed in the discharge of his official duties. The Supreme Court held that prior sanction was required before the prosecution could be initiated against a public servant under the judicial act exception in Section 197 of the IPC.

These cases provide guidance on the scope and application of the judicial act exception under Section 197 of the IPC and have helped to clarify the rights and obligations of public servants in the performance of their official duties.

Executive acts as a general exception and what makes it different from judicial acts

The executive act exception under the Indian Penal Code (IPC) is a provision in Section 197 of the code that exempts public servants and persons acting under the direction of a public servant from criminal liability for acts performed in good faith in the discharge of their official duties. This provision applies to acts performed by executive officials, such as government employees and officers, in the course of their official duties and provides immunity from criminal prosecution for actions taken in good faith in the performance of such duties. The purpose of this exception is to ensure that public servants are able to perform their duties without fear of being sued for criminal offences and to prevent frivolous or malicious lawsuits from being filed against them. However, prior sanction from the appropriate authority is required before criminal proceedings can be initiated against a public servant under this exception.

Analysis regarding the judicial and executive acts

The judicial act exception under the Indian Penal Code (IPC) serves an important role in protecting public servants, including judges and magistrates, from frivolous or malicious lawsuits arising from actions taken in good faith in the discharge of their official duties. This exception helps to ensure that public servants can carry out their duties without fear of legal harassment, which is essential for the effective functioning of the justice system.

However, the scope and application of the judicial act exception under Section 197 of the IPC have been the subject of debate and legal interpretation in several cases. Some critics argue that this exception provides too much protection for public servants, allowing them to escape accountability for actions that may have been taken in bad faith or outside the scope of their official duties.

Issues

The scope and application of the judicial act exception under Section 197^[6] of the IPC have been the subject of legal interpretation in several cases, with some critics arguing that this exception provides too much protection for public servants and allows them to escape accountability for actions taken in bad faith or outside the scope of their official duties.

For example, the Supreme Court of India has held that the judicial act exception under Section 197 of the IPC applies only to acts performed by a judge in the exercise of judicial or quasi-judicial functions, and does not cover acts performed in administrative or executive capacities. This interpretation helps to ensure that public servants are not immune from prosecution for acts taken in bad faith or outside the scope of their official duties.

Another issue with the judicial act exception under Section 197^[7] of the IPC is that it requires prior sanction from the appropriate authority before criminal proceedings can be initiated against a public servant. In some cases, this requirement has been criticized for being too burdensome, as it can result in delays in prosecuting public servants for criminal offences.

Suggestions regarding the judicial and executive act exceptions of IPC

One suggestion to address these concerns could be to clarify the definition of “good faith” under Section 197 of the IPC so that it better captures the essence of what constitutes an act performed in good faith. This could help to ensure that public servants are not immune from prosecution for acts of bad faith or malicious intent.

Another suggestion could be to provide a mechanism for the review of decisions regarding prior sanction for prosecution under Section 197 of the IPC so that individuals who believe that they have been wrongly denied the right to prosecute a public servant can have their case heard and reviewed.

Overall, it is important to strike a balance between protecting public servants from baseless lawsuits and ensuring accountability for actions taken in bad faith or outside the scope of their official duties. A careful review and re-evaluation of the judicial act exception under Section 197 of the IPC, along with the suggestions outlined above, could help to achieve this balance.

Importance and need in the present scenario

The judicial and executive act exceptions under the Indian Penal Code (IPC) serve an important function in protecting public servants from baseless or malicious lawsuits arising from actions taken in good faith in the discharge of their official duties. These exceptions ensure that public servants can perform their duties without fear of legal harassment, which is essential for the effective functioning of the justice system and the administration of government.

However, the scope and application of these exceptions have been the subject of debate and legal interpretation in several cases, with some critics arguing that they provide too much protection for public servants and allow them to escape accountability for actions taken in bad faith or outside the scope of their official duties.

To address these concerns, suggestions have been made to clarify the definition of “good faith” under Section 197 of the IPC and to provide for a mechanism for review of decisions regarding prior sanction for prosecution. A careful review and re-evaluation of the judicial and executive act exceptions under Section 197 of the IPC could help to strike a balance between protecting public servants from baseless lawsuits and ensuring accountability for actions taken in bad faith or outside the scope of their official duties.

Conclusion

In summary, the judicial and executive act exceptions under the IPC play a crucial role in the functioning of the justice system and the administration of government, but it is essential to ensure that they are applied in a manner that balances the protection of public servants and the need for accountability. The judicial act exception under the Indian Penal Code (IPC) is an important provision that provides immunity from criminal prosecution for public servants, including judges and magistrates, for acts performed in good faith in the discharge of their official duties. This exception is intended to protect public servants from frivolous or malicious lawsuits, which could have a chilling effect on the administration of justice.

To address these concerns, some have suggested that the definition of “good faith” under Section 197 of the IPC be clarified so that it better captures the essence of what constitutes an act performed in good faith. Additionally, a mechanism for review of decisions regarding prior sanction for the prosecution could be established, to ensure that individuals who believe that they have been wrongly denied the right to prosecute a public servant have their case heard and reviewed.

In conclusion, while the judicial act exception under the IPC serves an important function in protecting public servants from baseless or malicious lawsuits, it is important to ensure that it is applied in a manner that balances the protection of public servants and the need for accountability. A careful review and re-evaluation of the judicial act exception under Section 197 of the IPC, along with appropriate reforms and clarifications, could help to achieve this balance.

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Endnotes:

1. Indian Penal Code, 1860, Act no. 45 of 1860
2. Indian Penal Code, 1860, Sec. 76, Act no. 45 of 1860
3. R. Rajagopal v. State of Tamil Nadu, 1994 SCC (6) 632
4. State of Maharashtra v. Narayan Dattatraya Apar, (1981) 83 BOMLR 553
5. K.R. Lakshmanan v. State of Tamil Nadu, 1996 SCC (2) 226
6. Indian Penal Code, 1860, Sec. 197, Act no. 45 of 1860
7. Ibid

This article is written by Prashant Prasad, a second-year law student from University Law College.

Case Number

Criminal Appeal No. 34 of 2015 (Arising out of Special Leave Petition (Crl.) No. 2961 of 2013), Criminal Appeal No. 35 of 2015 (Arising out of Special Leave Petition (Crl.) No. 3161 of 2013) and Criminal Appeal Nos. 36-37 of 2015 (Arising out of Special Leave Petition (Crl.) No. 3326-3327 of 2013)

Citation

AIR 2015 SC 923 or (2015) 4 SCC 609 

Forum

Supreme Court of India

Bench

H L Dattu CJI., Madan B Lokur, A K Sikri JJ.

Decided on

January 9, 2015

Introduction

The criminal liability of directors is a core concept in corporate criminal law; it helps regulatory authorities and courts control, prosecute and punish crimes of a corporate nature. Given the artificial nature of companies and corporates, it is the employees and executives of the company that act as its agents. Executives are the ones who take the major decisions on behalf of the company. They can easily control the acts and omissions of the company on a short and long-term basis. Given the enormous controlling power that executives possess, it is vital to have laws, regulations and principles governing the actions of these executives. This ensures that they do not violate the law without fear of repercussions and do not use certain concepts of law to evade punishment. 

In the case discussed below, there is a clear explanation of the requirements for holding executives responsible for the acts of their companies, especially in the context of the executives’ names being unlisted in the charge sheet. 

Rule of Law decided upon by the Bench

The rule of law in this case is: 
Section 120-B of the Indian Penal Code, 1860, read with Sections 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988. 

Facts & Procedural History of the case

The central allegation, in this case, was regarding the 2G spectrum case. An additional spectrum that was beyond the usual spectrum that the Telecom Ministry approves. This approval of an additional spectrum was done with a 1% additional revenue share. Multiple cases had been registered, coupled with investigations by authorities. This transaction caused losses to Government Revenue. It was alleged in multiple investigations that this plan resulted from a conspiracy between Mr Ghosh, the then Telecom Minister and certain Cellular Operators.

The case in question is an appeal against an impugned order by a Special Judge, which had issued a summons to the accused in a charge sheet. This order, passed in March 2013, mentioned that the Special Judge was satisfied with the incriminating material recorded so that a summons could be issued against the accused. The Special Judge also stated that the summons was being issued to three executives – Mr Sunil Mittal of Bharti Cellular Ltd., Mr Asim Ghosh of Hutchison Max Telecom Ltd., and Mr Ravi Ruia of Sterling Cellular Ltd. 

The Special Judge went on to specify the doctrine of ‘alter ego’ and applied the same to this case. He held that these executives (the appellants in the case) are the alter ego of their companies. So through vicarious liability, they shall be prosecuted for the crimes of their companies. It is pertinent to note that the Special Judge mentioned that their state of mind is the companies’ state of mind, and any acts of the companies shall be attributed to them. Notably, he had not mentioned the reasons for issuing an order of summons to the three executives. 

The order was sought to be challenged by two of the three executives, to the extent of the order implicating them as the accused. 

Issues raised in the Court of law

A singular issue was raised. However, the Court opined on a variety of topics concerning the issue below: 

Is the impugned order of the Special Judge, which stated that the Appellants were not named in the charge sheet, valid in law?

The decision of the Court on the issues drafted

The Court decided that the order must be set aside, given the ambiguity in the impugned order and the wrongful application of a principle to the issue at hand. They had also mentioned clearly that they were not stating that the executives were free of guilt; they merely quashed the impugned order. It is up to the Special Judge to review the incriminating material again and issue fresh summons to the Appellants. Based on the evidence uncovered, the Special Judge may apply Section 319 of the Indian Penal Code, 1860, to include the Appellants in the proceedings to prosecute them further. 

Analysis of the judgement

The judgement, which Justice A K Sikri wrote, was systematic in its breakdown of the facts and circumstances of the case, along with an analysis of the principle of alter ego and criticism of its application in the present case. 

Initially, the counsel for the Appellants contended that the impugned order was erroneous in two parts. The first three paragraphs of the order are regarding Mr Ghosh and the cellular companies involved. The Special Judge had perused all the documents submitted on record to conclude that these accused persons can be further proceeded against. In paragraph four, the Judge detailed the principle of alter ego and stated that the executives of the three cellular companies were responsible for the acts of their respective companies. The Judge had connected these paragraphs to conclude that the three executives (two of whom are appellants) must be issued a summons. Explaining all this, Senior Advocate Salve (counsel for the Appellant) stated that the Judge’s order was erroneous and did not hold good in law. 

Continuing, he detailed that the doctrine of ‘alter ego’ has been applied in reverse and that the companies were accused first rather than the directors. For the doctrine to apply, the directors must be held guilty, and so they shall be deemed guilty for the acts of the corporate body. Only when the principle is correctly applied can the agency mode of liability also be applied. For the same, he relied on Iridium India Telecom Ltd. v. Motorola Inc.¹, Maharashtra State Electricity Distribution Co. Ltd. v. Datar Switchgear Ltd.², and Aneeta Hada v. Godfather Travels and Tours Ltd.³, which are all landmark judgements by the Supreme Court of India. 

Sr. Adv. Salve closed his arguments by pointing out that the CBI had investigated and concluded that there was no information or submitted material to implicate the Appellant. 

Other counsels for the Appellants seconded these arguments and mentioned that some of the appellants were not mentioned in the charge sheet in the first place. 

In terms of the arguments for the respondents, Senior Counsel K K Venugopal refuted the appellants’ submissions by bringing to the forefront the reasoning behind the decision to implicate the appellants. He stated that once companies are charged with mens rea offences, they need to be punished for the same, and the only way to do that is to punish their Directors or Officers. He then pointed out the actions of these executives on behalf of their companies, which had resulted in the 2G Scam. In a nutshell, Sr. Adv. Venugopal has reinforced the human agency doctrine and stated that, despite the omission of appellants’ names in the charge sheet, the Special Judge had powers to make an order such as the one in question. 

In support of his arguments, the cases of M C Mehta v. Union of India (Taj Corridor Scam)⁴, Kishun Singh v. State of Bihar⁵ and Dharam Pal v. State of Haryana⁶ were used.  

In a rejoinder, counsel for the Appellant, Mr Fali Nariman, argued that for vicarious liability to be applied, there is a need for a statutory provision or something to be imputed. Therefore, the Special Judge has wrongfully applied the principle of alter ego. 

After listening to the extensive arguments and contentions of the parties, the Court began examining the order and applying the principle of alter ego. 

The Bench refused to discuss the comments made by the appellants concerning the 2G scam itself, making it clear that the matter is beyond the scope of their appeals. 

Firstly, the impugned order was dissected. At the outset, the Court admitted the trial courts could issue that summons to persons not mentioned as accused in the charge sheet. The only requirement is that there must be sufficient incriminating material on record to empower the Judge to issue a summons. The question, in this case, is not about the incriminating material; instead, it is about the lack of a convincing reason behind the Judge’s decision to issue a summons. The Judge has not clearly stated why he had decided to implicate the three executives as accused and issue summons. He had merely stated that the executives were or are in control of their company’s affairs – this makes them the mind and will of the companies and that this makes them the alter ego of their companies. 

Secondly, the doctrine of alter ego was dealt with. The Court reiterated a landmark Judgement from 2005 – Standard Chartered v. Directorate of Enforcement⁷, and explained that the Bench, in that case, opined that companies could be prosecuted and punished for offences with mandatory imprisonment. Then, the Iridium Infra case was discussed, wherein the same subject was discussed, with the addition of mens rea element. The judgement held that the criminal intent would be imputed to the corporate body. That is to say, the group of people controlling the company must have criminal intent, which will implicate the company to have criminal intent and therefore be punished. 

In the case at hand, the company was first held guilty of criminal intent, following which the executives were held to have criminal intent. The Special Judge had applied the principle in reverse – the company’s criminal intent had been established first, and then its executives were implicated. Thus, applying this principle in this manner makes it erroneous to apply the theory of vicarious liability to the case. 

Thirdly, the Court discussed the circumstances when the company is accused, and its executives can also be prosecuted. It is mainly concerning intent that the decision is made. There must be sufficient evidence for the same. In other cases, the statute in question must refer to the vicarious liability of the company’s executives. Cases discussed included Jethsur Surangbhai v. State of Gujarat.⁸, Sham Sunder v. State of Haryana⁹, Hira Lal Hari Lal Bhagwati v. CBI¹⁰ and Sharon Michael v. State of TN¹¹ among others. 

Based on these discussions, the Court concluded that the Special Judge had used an inaccurate principle of law. It is essential to the case that the Judge mention the reasons for his satisfaction with the incriminating material. However, the Judge failed to do the same. 

After making a brief statement on the powers of the Special Judge to issue summons when the accused is not on the charge sheet, the Court went on to conclude its analysis of the case. They held the impugned order invalid in law as the Special Judge failed to adequately explain the reasons or grounds behind his act of proceeding with the case by issuing a summons. Therefore, the impugned order was quashed and set aside, and the appeal was allowed. However, the Special Judge does have the power to revisit the case, review the documents, and prepare a fresh order that lists the reasons for the satisfaction of incriminating material clearly and in a prima facie manner.    

Conclusion

As seen from the case analysis above, Judges and legal professionals must be careful in their acts and omissions, as an error may lead to the entire proceedings being vitiated. While everything else on the part of the Special Judge’s order was abiding by the law, two points left the entire order of a significant financial scandal quashed. Therefore, it is vital that essential points are included in documents and that the law is followed to a T. 

On the other hand, it is equally essential to ensure that executives of companies do not evade punishment on procedural or theoretical grounds. In order to recover money from white-collar crimes, theories of vicarious liability should be prudently applied in relevant circumstances. 

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Citations

1. Iridium India Telecom Ltd. v. Motorola Inc., (2011) 1 SCC 74 (India)
2. Maharashtra State Electricity Distribution Co. Ltd. v. Datar Switchgear Ltd., (2010) 10 SCC 479 (India)
3. Aneeta Hada v. Godfather Travels and Tours Ltd., (2012) 5 SCC 661 (India)
4. M C Mehta v. Union of India, (2007) 1 SCC 110 (India)
5. Kishun Singh v. State of Bihar, (1993) 2 SCC 16 (India)
6. Dharam Pal v. State of Haryana, (2014) 3 SCC 306 (India)
7. Standard Chartered v. Directorate of Enforcement, (2005) 4 SCC 530 (India)
8. Jethsur Surangbhai v. State of Gujarat, (1984) Supp. SCC 207 (India)
9. Sham Sunder v. State of Haryana, (1989) 4 SCC 630 (India)
10. Hira Lal Hari Lal Bhagwati v. CBI, (2003) 5 SCC 257 (India)
11. Sharon Michael v. State of TN, (2009) 3 SCC 375 (India)

This case analysis is authored by Vibha Chinni Krishnan, a student of Symbiosis Law School, Hyderabad.

This article has been written by Nashrah Fatma, a third-year law student at the Faculty of Law, Jamia Millia Islamia.
This article aims to discuss the various aspects of victim restoration under Indian law.

1.	INTRODUCTION
2.	ORIGIN AND DEVELOPMENT OF VICTIMOLOGY IN INDIA
3.	WHO IS A VICTIM?
4.	COMPENSATION TO VICTIMS
5.	VICTIM RIGHTS AND VICTIMOLOGY IN INDIA
6.	RIGHT OF PRIVACY OF RAPE VICTIMS
7.	CONCLUSION

INTRODUCTION

Crime affects a large number of people. It is a violation of interpersonal relationships. The criminals or perpetrators are punished for their criminal acts but the plight of the sufferers or victims of the crime cannot be ignored. Victimization refers to any form of pain endured by the victim of a crime experienced by a victim of an assault. When a victim reports a crime, law enforcement acts, and the victim’s journey through the criminal justice system begins. The trauma may worsen due to all these procedures in the criminal justice system, and re-victimization may also play a role. Victimology is the study of victimization, which includes a scientific analysis of the connection between the victim’s physical and psychological distress and the crime.

Benjamin Mendelsohn, a criminologist, is credited with being the first to use the term “victimology”. Between the 1940s and 1950s, he and his colleague Hans von Hentig examined victimology with a focus on what types of behaviours or qualities the victim exhibited that drew the attention of the offender and resulted in the victimization. They are regarded as the “Father of Victimology Study.”

Von Henting examined homicide victims and found that they were more likely to be of the “depressive type”, who were easy prey for criminals. Following this approach, another victimologist postulated that “many victims precipitate homicide was in reality caused by the unconscious inclinations of the victims to commit suicide”.

The criminal justice system has largely ignored the victims of crime, despite the fact that they frequently get support and help from their families, tribe, or community. Only recently have criminal law jurisdictions come to the realization that victims must be treated with empathy and that their basic rights and dignity must be safeguarded.

The scientific study of victimization, including the interactions between victims and offenders, the criminal justice system, the police, courts, correctional personnel, and victims, can be roughly referred to as victimology. However, the study of victimology is not just defined by these relations but also by other forms of human rights violations that are not necessarily crimes.

ORIGIN AND DEVELOPMENT OF VICTIMOLOGY IN INDIA

The goal of the criminal justice system in India during the early Vedic era was not only to punish offenders but also to make amends for the victims. Throughout the Mughal and British periods of Indian history, the focus was more on punishing perpetrators than providing victims with compensation. The only things the criminal justice system cared about were guiding offenders and attempting to change them. However, since the 1980s, and mainly as a result of legal action, the protection of victims has garnered more attention.[1]

WHO IS A VICTIM?

The victim as defined by Section 2(wa) of the Code of Criminal Procedure is as follows: ‘Victim’ refers to a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged, and the victim includes his or her guardian or legal heirs. The concept of victim includes any person who experiences an injury, loss, or hardship due to any cause.[2]

The primary victims are those who are most directly impacted by the offence, but there are also other victims, including witnesses, members of the affected community, and family members of both the victims and the offenders. It is imperative to address the relationships that were impacted by the crime. Responses to the variety of needs and damages felt by victims, offenders, and the community constitute restoration.

COMPENSATION TO VICTIMS

Traditionally, compensation was awarded according to the principle “Ubi remedium ibi jus” (where there is a remedy, there is a right principle. Criminal law was not a concept in any prehistoric culture. Every crime, including murder, might be made up for financially. Every crime was, in fact, a civil wrong rather than an offence against society as a whole. The phrase “Ubi Jus ibi remedium” -where there is a right, there is a remedy” holds true in the present times. The idea of compensation nowadays is that no one should go without compensation.[3]

There are some general and specialized laws with provisions relating to compensatory relief in India.

Sections 357 (1) and (2) of Cr.P.C. empower the trial court to award compensation to the victims of crime. The compensation provided in S. 357(1) includes costs, damage, or injury, suffered or loss caused due to death or monetary loss incurred due to theft or destruction of property, etc. Similarly, Sec.357-A is inserted by Amendment Act 2008 in Cr.P.C. and it provides a scheme relating to victim compensation. Accordingly, every State Government is required to prepare a scheme for providing funds for the purpose of payment of compensation to a victim or his dependent who has suffered any loss or injury due to the crime.

The current criminal justice system is predicated on the idea that the conviction of the offender is sufficient to recognize the rights of a crime victim. The Ministry of Home Affairs Committee on Reforms of the Criminal Justice System, chaired by Justice Dr. V.S. Malimath, recognized “justice to victims” as one of the core principles of Indian criminal law in its Report presented to the Government of India in March 2003. By permitting, among other things, involvement in criminal processes as well as compensation for any loss or injury, it suggests a comprehensive justice system for the victims.

Victimology was not formally acknowledged as a branch of criminology until the 1970s. The founding of the World Society of Victimology by criminologist Hans Schneider in 1979 was one of the significant turning points in the history of victimology. It is presently a nongovernmental, nonprofit organization with Special Category consultative status with the Council of Europe and the Economic and Social Council (ECOSOC) of the United Nations.[4]

As the word implies, victimology is the study of victims. The United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985, defines a “victim of crime” as a person or group of persons who have been harmed, individually or collectively, by acts or omissions that violate criminal laws in effect within the Member States, including those laws proscribing criminal abuse of power.[5]

VICTIM RIGHTS AND VICTIMOLOGY IN INDIA

Victims’ rights have been given recognition by the Indian Criminal Jurisprudence. By submitting an F.I.R. under Section 154 of the Code of Criminal Procedure or a complaint before the Magistrate under Section 200, the victim or any other person initiates the legal process. The victim has the right to be present at every process, including the bail application, the investigation, the inquiry, the trial, and any future sentencing or parole hearings. It recognizes the harm done to the victim as well as his interest.

When an F.I.R. is filed, the police launch an investigation. However, the police cannot begin an investigation if there is a report of an offence that is not cognizable without the consent of a magistrate who has the power to try the case or commit it for trial. The office in charge of the Police Station need not go in person or appoint a subordinate officer to conduct an inquiry immediately in the case of a cognizable offence when the information is presented against any person by name and the situation is not serious. Officer-in-Charge of the Police Station shall not examine the case if it appears that there is insufficient justification for opening an investigation.

Additionally, the option to complain to the Magistrate has been provided. A magistrate who receives a complaint about an offence must examine the complainant and any present witnesses.

RIGHT OF PRIVACY OF RAPE VICTIMS

In numerous instances, the privacy of the victims is infringed. Their name or place of residence is made public which may cause them to suffer even after restoration or rehabilitation. The Supreme Court, in Raja Gopal’s case,[6] observed that a citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing, education, etc. because the right to privacy is inherent in the right to life and liberty guaranteed under Article 21 of the Constitution. However, despite the fact that the CrPC specifically states that rape cases must be tried in secrecy, the privacy of the victim is breached throughout a criminal prosecution. In Gurmeet Singh’s case, the Supreme Court was forced to reiterate the law as it is stated in Section 327 of the CrPC.[7]

A victim may be authorized to instruct a pleader as a prosecutor in any Court pursuant to Section 301(2). In such a case, the prosecution will be handled by the public prosecutor or assistant public prosecutor in charge of the case.
Section 12 of The National Legal Service Authority Act, of 1987 reinforced the idea of free legal aid. It provides that every person who has to file or defend a case shall be entitled to legal services under this Act if that person is a Scheduled Caste or Scheduled Tribe member, a woman, a child, a person who is mentally ill or otherwise disabled, an industrial worker, a victim of a major disaster, or a person in custody of a protective home as defined by clause (g) of Section 2 of the Immoral Traffic (Prevention) Act, 1956 and people whose annual income is less than Rs. 9,000 or another higher amount that may be prescribed by the State Government if the case is before a court other than the Supreme Court, and less than Rs. 12,000 or another higher amount that may be prescribed by the Central Government if the case is before the Supreme Court.[8]

In the State of Himachal Pradesh v. Prem Singh,[9] the Supreme Court has held that the delay in lodging F.I.R. in a case of sexual assault cannot be equated with a case involving other offences. There are several matters that weigh the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint and in such cases of sexual assault, the victim’s psychological and mental torment should definitely be considered.

In India, the higher courts have traditionally taken great care to ensure that victims of crime receive compensation. Since the Supreme Court’s formation, the first instance in which a person received monetary compensation for the violation of one of his or her fundamental rights was the case of Ruddal Shah v. State of Bihar[10] that a person is entitled to compensation for the loss or injury caused by the offence, and this includes the victim’s wife, spouse, parents, and children. The ruling, in this case, is a landmark one since it sparked the development of compensatory jurisprudence for constitutionally protected fundamental rights violations. It is significant in this regard that this verdict was based on the Court’s interpretation of the Indian Constitution and that there is no clear provision in the text of the Indian Constitution for awarding compensation and that this judgment was on the basis of the Court’s interpretation of the extent of its remedial powers.

In the case of Bhim Singh v. State of Jammu & Kashmir,[11] the court ordered a compensation of Rs. 50,000 to the petitioner, a member of the Legislative Assembly, for the violation of his legal and constitutional rights after finding that he was maliciously and deliberately detained and arrested by the police in order to prevent him from attending the assembly session. The court observed that the malicious intention of the arrest and detention is not washed away by his later release.

The victim or his family cannot be neglected by the court in its efforts to uphold and defend the human rights of the convict if the victim dies or becomes otherwise unable to support himself as a result of the convict’s criminal act. The victim is certainly entitled to reparation, restitution, and safeguarding of his rights. In the criminal justice system, a victim of a crime cannot be ignored. He has endured the most hardship. His family is completely destroyed, especially in the event of death or severe physical harm. This is in addition to considerations like humiliation and reputational damage. An honour that is lost or a life that is snuffed out cannot be recompensed but then monetary compensation will at least provide some solace. This was observed in the case of the State of Gujarat v. Hon’ble High Court of Gujarat.[12]

For a variety of reasons, witnesses and victims of crime are hesitant to cooperate with the criminal justice system and actively participate in court procedures. When called to the police station for questioning, witnesses are scarcely ever treated with respect. Additionally, they do not receive any compensation in the form of TA and DA reimbursement, as required by section 160(2) of the CrPC. The court’s repeated adjournments of cases, the subordinate courts’ lack of basic amenities, and the failure to pay TA and DA for witnesses’ attendance in court all cause a significant amount of difficulty for the witnesses. The prosecution would brand the witnesses hostile for not backing the statement recorded by the IO or the overzealous defence attorney would browbeat them for being questioned after a long interval of 5 to 10 years after the incident.

The limitation of the aforementioned legal provisions is that when the accused is exonerated of the allegation, which occurs in roughly 93% of instances in India, compensation cannot be granted by the court. The United Nations General Assembly has advised states to compensate crime victims when the criminal or other sources are unable to provide it in full. The urgent needs of crime victims are not being addressed by Indian legislators. Despite being required to comply with the terms and conditions of the International Covenant to Protect Human Rights and Fundamental Freedoms, India has not passed any legislation to provide compensation to the victims when the accused is found not guilty by a criminal court. As a result, the victims of racial strife, dacoity, arson, rape, etc. are not receiving any recompense.[13]

CONCLUSION

The study of victims in the contemporary criminal justice system and providing restoration remains the sole focus of mainstream victimology. This emphasis has affected how crime is measured and the role that victims play in addition to increasing awareness and understanding of crime victims. Additionally, society as a whole is morally responsible for the crime because it is a result of some unfavourable socioeconomic conditions. If the State fails to eliminate certain issues from society, it must provide compensation.

Organized crimes, such as drug trafficking, shootings, money laundering, extortion and murder for rent, fraud, and people trafficking, in particular, are rapidly raising the crime rate in India. A survey indicates that every two minutes, a crime against a woman is reported in India. The data emphasize how vital it is to create effective law and order in the country and suitable victim compensation mechanisms.

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References

1. L. D. Dabhade & N. A. Qadri, Present Scenario of Contempt and Development of Victimology in India, 2 IJRSSIS 61-64 (2015).
2. Ibid.
3. Ibid.
4. Ibid.
5. Ibid.
6. (1994) 6 S.C.C. 632 (India).
7.  (1996) 2 S.C.C. 384 (India).
8. Ibid.
9.  2009 Cr LJ 789 (S.C.).
10. (1983) 4 S.C.C. 141 (India).
11. (1985) 4 S.C.C. 677 (India).
12.  (1998) 7 S.C.C. 392 (India).
13. R K Bag, Perspectives in Victimology in Context of Criminal Justice System, 41 JILI 78 (1999).

About School of Law, NMIMS, Hyderabad

School of Law, NMIMS, Hyderabad established in 2018 by NMIMS University, one of the premier Deemed to be Universities in India, the programs offered in our law school has all qualities and niceties of the programs offered by world-class Universities over the world. The school’s faculty members are well qualified and experienced with a wide range of quality legal publications and are also associated with social justice legal education.

The most advantageous fact is that the NMIMS student community is well diversity rich irrespective of region, religion, sexual orientation etc. School of Law aspires to be a global centre of scholarly excellence in the field of law and justice and will prepare outstanding and innovative law professionals with socially responsible outlooks through holistic legal education. A Law School with a global focus and international outreach dedicated to advancing human dignity, social and economic welfare, and justice through knowledge of the law.

About the Conference

The year 2022 witnessed several discussions in the public domain on critical areas of both substantive and procedural aspects of criminal law. Many of these discussions concern key research areas for academicians and lawyers alike. The Hon’ble Supreme Court of India (SCI) kept the archaic sedition law under s.124 A, IPC, in abeyance, pending its decision on the constitutionality of the provision. On the other hand, it was observed that cases were still being registered under s. 66A, IT Act, which was struck down as unconstitutional by the SCI.

There were polarized debates after the release of convicted prisoners in a rape case, which again pointed our attention towards state-level policies for premature release. We also witnessed how a drug case involving a celebrity’s son brought to the fore important issues surrounding the discretion of agencies involved in the apprehension of suspects. There were also significant debates on PMLA, bail, rights of prisoners, criminalization of politics, etc. Criminal law, therefore, occupied an important space in public discourse. Criminal law discourse has to promote a deeper understanding of several issues surrounding crime prevention, prosecution and punishment.

Themes and sub-themes

• Track 1: Punishment/Rehabilitation Policy
• Track 2: Procedural and Evidentiary Aspects
• Track 3: Substantive Criminal Law
• Track 4: Inter-disciplinary Studies

Submission Guidelines

• The author shall submit an abstract of not more than 300 words with a cover letter containing the name(s) of the author(s) and address, designation, institution/affiliation, the title of the manuscript, theme, and contact information (email, phone, etc.).
• The authors of the selected abstracts will be asked to submit manuscripts. The authors of the final selected manuscripts will be called for Paper Presentation. Co-authorship is permitted for up to 2 authors.
• The manuscript should be on A4-sized paper in MS Word, typewritten in British English using Times New Roman, font size 12, 1.5 line Spacing, justified, and 1-inch margins on each side. Footnotes should be in font size 10 and with single-line spacing.
• The Authors should conform to The Bluebook: A Uniform System of Citation (20th Edition).
• Authors should provide their contact details, designation, institutional affiliation, and address in the cover letter for the submission. The Manuscript should not contain any identification of the author/s, which shall be a ground for rejection of the submission.
• The submission must be the original work of the authors. Any form of plagiarism will lead to direct rejection.
• Manuscripts shall be assessed by subjection to Blind Review Procedure. Reviewers shall not be informed of the author’s name, university, year in college, or any other personal information.
• The Editorial Board reserves the right to edit, change, shorten and add to your article for the original edition and any subsequent revision along with the right to republish the article as part of an anthology in later years: provided that the meaning of the text is not materially altered.
• There shall be a Zero tolerance policy on Plagiarism and Copyright. Similarity up to 10% is permissible. The organizing committee is not responsible for any copyright infringements by the authors.
• The copyright for all entries shall vest with the organizers who herewith reserve the right to modify the contributions as per the requirements of necessity.

Eligibility

Undergraduate students, post-graduate students, academicians, researchers, and professionals are invited for paper presentations in the Two-Day National Conference.

Registration Fee

Participants/Paper Presenters have to register after the acceptance of the abstract with payment of the required fees. The registration fee (including GST) is as follows:

• For Academicians, Professionals, and PhD. Scholars:- INR 750 per author
• For Students enrolled in undergraduate or post-graduate programmes:- INR 500 per author

Location

Virtual Mode

Important Dates

• Submission of Abstract:- February 10, 2023
• Communication of Acceptance:- February 13, 2023
• Submission of Final Paper:- March 1, 2023
• Date of Conference:- March 3 and 4, 2023

Contact Information

In case of any queries, please contact:

• Prof. Sridip Nambiar, Organising Secretary: +91-9656415634
• Mr. Jatin Patil, Student Co-Ordinator: +91-9322114491
• Email: cclp.research@gmail.com

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Introduction

Through the judicial system or legal framework, the law is tasked with punishing those who facilitate the commission of a crime and those who commit the crime. The entire process involves several procedures, from filing a complaint to passing a judgement in a court of law. Each of these procedures involves a myriad of theories and principles to be kept in mind. When the issue of initiating criminal charges is brought to the forefront, identifying the culprits is one of the first elements to be dealt with. Assigning responsibility or liability for the crime is vital, as it can make or break the case outcome. However, complications may arise in identifying those directly involved in the case and those who may have been involved in the case indirectly. For this reason, legislatures worldwide must apply various theories of culpability in their criminal laws. This reduces ambiguity and assists the police and prosecution ensure convictions for serious crimes. Below, the various theories of culpability, i.e., liability, that are applied in India’s criminal justice system are explained.

Theories of culpability

It is easier to understand the theory of culpability if one considers the following: Usually, people are charged for the crimes they choose to commit. In the theories of culpability, people are charged with crimes others commit. Given that India has primarily based its laws around the Common law, it is necessary to begin by familiarizing ourselves with the principles of Common law regarding culpability. In the complicity doctrine, more than one individual shall be responsible for the crime. These individuals may have been involved before and after the crime. The conduct of all the individuals results in the crime, and they shall be charged accordingly. The first-degree perpetrator is charged first. Only after this can the accomplices be brought under trial.

Four parties in a crime were recognised by Common law¹:

1. The actual perpetrators of the crime (first degree) – those who were directly involved in the commission of the offence
2. The aiders and the abettors (second degree) – those who assisted in the commission of the crime by indirect means
3. The aiders and the abettors (those involved before the fact) – the individuals who facilitated or planned for the offence prior to the commission of the crime
4. The aiders and the abettors (those involved after the fact) – the individuals who assisted the perpetrators after the crime was committed

To better understand the same, an illustration can be referred to. The murder of ‘E’ is planned by ‘A’ and ‘B’. ‘A’ kills ‘E’ by using a gun given by ‘C’, who was aware of the intentions of ‘A’. After the murder, ‘A’ seeks the help of ‘D’ to hide the murder weapon and for assistance in evading the police officers.

In this illustration:

1. ‘A’ is the actual perpetrator of the crime of murder (first-degree)
2. ‘B’ is the co-conspirator (second-degree)  
3. ‘C’ is the abettor before the crime, who supplied ‘A’ with a gun
4. ‘D’ is the abettor after the crime, who helped ‘A’ by concealing his location from the police and hiding the murder weapon.

When aiders or abettors are prosecuted under this doctrine, there is a need for the intention to commit a crime.

A closely related theory of culpability is the theory of vicarious liability. In vicarious liability, two parties exist – the principal and the agent. The agent acts on behalf of the principal. Thus, when the agent (the perpetrator) commits a crime, the principal is also liable for the same, as the agent performs the actions instructed by the principal. However, in criminal law, the principal is not responsible for any independent act the agent does.² In criminal law, this principle is mainly used based on public policy, i.e. in matters where subordinates commit crimes and the higher-ranking officers are punished.

In the theory of derivative complicity, the liability of an abettor or aider stems from the perpetrator’s crimes. For instance – if the perpetrator merely attempts a crime, the abettor will be charged for the attempt. However, if the perpetrator fails at the attempt to commit a crime, then the abettor will not be charged for anything.

Professor Glanville Williams, in his textbook³ has shared his thoughts on derivative liability, summarised as follows: ‘The offence of invitation is said to be committed when one person enables another to commit a crime, whether as a perpetrator or as an abettor, and whether the incited person commits the crime.’

Essentially, derivative liability is a mechanism to make liable a person who incites or assists another to commit a crime. This is irrespective of whether the actus reus or mens rea elements are completely satisfied by the abettors/co-conspirators. The liability of the abettors is essentially derived from the perpetrator’s liability. However, this theory does not make clear the degree to which the abettors can be made liable – whether to the same degree as the perpetrators or a lesser degree.⁴

However, in the judgement of R v. Jogee⁵, the Supreme Court of the United Kingdom has held that the derivative liability, when applied, shall require substantial assistance or encouragement on the part of the abettor. The intention is vital to this theory. There are several levels to the derivative liability theory.⁶ The first is where the abettor has the same level of liability as the perpetrator. This is the equivalence theory.

The agency theory is derived from the civil law rule of agency. So, the effect of an agent’s actions is extended or attributed to their principal. Therefore, the principal derives his liability from the actions of the agent. This theory is not widely used as there are considerable differences between civil and criminal law.

The other theory is called the association theory. By associating an abettor with the perpetrator’s actions, the abettor is liable. It is based on mere participation. This is slightly different from the theory of derivative complicity/liability discussed, as it does not include the incitation element.

Another vital doctrine relating to derivative liability is the natural & probable consequences doctrine. Here, if a perpetrator commits another crime (apart from the abetted/conspired crime) which was a natural consequence of the abetted/conspired crime, then the abettors or conspirators would also be liable for the second crime.⁷

The other side of criminal law that uses culpability theories is Corporate Criminal law. Most legal scenarios involving companies are in administrative or civil law. When white-collar crimes are committed, multiple companies evade punishment as they are legal entities. It was nearly impossible to prosecute legal entities due to the difficult task of determining mens rea and actus reus. Companies could pay the penalty and continue their business with no other consequences. Thus, it is crucial to understand the derivative liability theories that currently govern India’s corporate criminal law system.

Indian corporate criminal law is based on two models of culpability.

1. Derivative model – In this, the liability of an organisation or a legal entity is derived from the actions and decisions of those who control the organisation. In company law, there is a well-known saying – the Board of Directors or the Management are the company’s brains, whereas the company is merely the body that does the brain’s bidding. Without the directions or orders of the management, the company cannot carry out any actions. Thus, it is because of the management that corporate crimes take place.

The derivative liability model is further divided into vicarious liability (discussed above) and the identification doctrine. In the identification doctrine, the key individuals of the company are identified.⁸ These key individuals act on behalf of the corporation, thereby making vital decisions for the company.

• Organizational model⁹ – The entire company is considered while determining liability, not just the key persons of management. It is well known that the two essential elements necessary for any criminal offence are mens rea and actus reus. However, with a company being a legal person, the requirement of mens rea is impossible to satisfy. So in this model, the environment created by the company for the commission of the crime or the existing environment that facilitated the company’s crime is looked into. The environment that existed or was created may benefit the company in many ways.

In India, the courts apply a combination of both models of liability.

The Indian Penal Code, 1860 and culpability

1) Based on the doctrine of complicity, the provisions of the IPC from Sections 34 to 38 were drafted, drawing from the fact of common intention.

Section 34 concerns act done by multiple people with a common intention. This includes criminal acts, and all the individuals shall be liable as if they carried out all the acts in furtherance of that common intention.

Section 35 entails derivative responsibility in the context of a criminal act carried out by several persons with criminal knowledge as if an individual did the acts.

Under section 37, if an offence is carried out, and for the commission of that offence, multiple acts were committed, anyone who cooperates for any of those acts shall be said to have committed the offence.

Section 38 provides some clarity as to the charges by stating that several persons who are engaged in committing a crime may be guilty of different offences because of the crime.

2. Abetment sections under Chapter 5 (Sections 107 to 120) are based on derivative responsibility.

Abetment is a request, a command or an urging made by one person to another or among multiple people for the commission of a crime. It includes incitement, inducing statements, commands, encouragements, enticement, requests or even advice given.

Under the IPC, instigation, criminal conspiracy or intentional aiding are the three ways a crime can be abetted. Active complicity is essential for abetment at any point in time before the offence is committed. Abetment is a separate offence, provided that the object of the primary action is an offence.

Under Section 107 (Abetment of a thing), the first kind is instigating a person to any other person to carry out an act. The second kind is a person co-conspires for a crime by an illegal act or an illegal omission. The third kind is if the person intentionally aids another in a crime by any act or an illegal omission. 

Section 109 provides for the punishment of abetment where there is no express provision for its punishment. In such cases, the punishment for the offence will be extended to the abettor. The punishment of the offence extends to the abettor if they have a different intention than the perpetrator (Section 110).

Under Section 119, a public servant who intends to facilitate or knows that his act shall facilitate an offence that he must prevent (as per his duty as a public servant) does so for an offence that is committed; the public servant shall be punished with the term of the offence which is ½ the most extended term of imprisonment or fine or both. If the offence is not committed, the term of imprisonment shall be ¼ of the longest term, a fine, or both. If the offence is punishable by death or life imprisonment, the public servant shall be imprisoned for up to ten years.

There is some ambiguity regarding conspiracy and abetment by conspiracy. Abetment by conspiracy [Section 107(2)] requires an overt act or an illegal omission that is done following the conspiracy. An abettor may only be convicted if the charges against the other conspirators have succeeded. In Section 120A (Criminal conspiracy), a mere agreement is enough to commit a crime. The section has a broader scope than Section 107(2). Section 120A is an independent charge, whereas Section 107(2) is a charge in addition to another offence.

3. Section 120-A of the IPC also draws from the same principle of complicity.

Conspiracy is an agreement made to complete an unlawful objective by unlawful methods. There is no need for a written agreement.¹⁰ Per Section 120A, conspiracy is explained as an illegal act or an act which is not illegal by any illegal methods agreed to be done by two or more people. For conspired acts that are punishable with death, life imprisonment or rigorous imprisonment, the punishment is that of abetment of the offence. For other conspired crimes, the punishment is imprisonment for six months or more, a fine or both. For conspiracies, there must be a meeting of the minds, and an intention between the co-conspirators, post which the crime is committed, an attempt is made, or pre-planned actions are made to attempt the offence eventually.

4. Section 154 of the IPC is based on vicarious liability.

Under Section 154, if an unlawful assembly or riot takes place on land, the owner or occupier of that land is liable for the same and punishable if the owner/occupier/agent/manager does not report the same to the nearest police station at the earliest and does not use lawful means to disperse the crowd or suppress the riot.

5. Section 111 of the IPC relates to the natural & probable consequences doctrine.

The liability of an abettor when they abet one act but carry out another is discussed. In this case, the abettor is liable for the act committed as if he was directly involved in its abetment. The act done must be a probable consequence of the abetment.

Cases by the Indian Courts

• Kartar Singh v. State of Punjab¹¹ – Supreme Court of India

When a question arose regarding the derivative liability based on abetment in TADA, 1987, it held that mens rea is not necessary for abetment charges if mens rea is not essential in the substantive offence. However, concerning the provision solely concerning abetment, the court held that it means the association or the communication with one or more persons, with the knowledge that such person or persons shall engage in terrorist activities. Clarity was given to the abetment provision in the IPC.

• Sanju v. State of MP¹² – Supreme Court of India.

In this case, the husband told the wife to ‘go and die’. The wife killed herself a few days later, and the question was whether the husband had a derivative liability or abetment to her death. It was held that there is no derivative liability as the phrase ‘go and die’ does not amount to abetment. There is a requirement of mens rea, which was not satisfied. Additionally, the suicide took place two days after the fight, so there was no correlation between the fight and the wife’s death. It can be inferred from the judgement that, when it comes to abetment, there is a vital requirement of mens rea, and mere statements do not amount to incitement of an action.

• Somasundaram v. State¹³ – Supreme Court of India

In this case, the apex court held that abetment is a substantive offence, and its punishment is circumstantial. The abettor cannot escape punishment even if the perpetrator is not criminally liable for the act that led to the commission of the offence.

Concerning Corporate Criminal Liability, the following cases are of relevance:

• Standard Chartered Bank v. Directorate of Enforcement¹⁴ – Supreme Court of India

It was held that no company could have a blanket immunity against prosecution of serious offences just because the punishment includes mandatory imprisonment. This case was crucial for laying the foundation for future corporate criminal cases with derivative liability.

• Iridium India Telecom Limited v. Motorola Incorporated¹⁵ – Supreme Court of India

In this landmark judgement, the hon’ble Supreme Court attributed mens rea to the companies themselves. Iridium was a company charged with criminal conspiracy in the case at hand. The question arose about how a corporation can be charged with criminal conspiracy. The court held that a company might also be convicted for statutory offences that require mens rea, as is the case with individuals in society. When an offence is committed by a person in charge of the company’s affairs, the company can be held criminally liable for the same. The degree of control of such persons must also be assessed to attribute the criminal responsibility of the company.  This case changed the narrative of the company’s escaping liability, citing the lack of mens rea. It involved the management of derivative liability.

• Sunil Bharti Mittal v. CBI¹⁶ – Supreme Court of India

This case was regarding the 2G spectrum scam. Certain board members of the companies in question were designated as the ‘coordinating mind and will’ of the companies, so these individuals were issued a summons. This meant that the criminal acts of the companies were attributed to the top management. Thus, derivative responsibility was applied, and the criminal liability of the management was attributed even without any conclusive finding that the management was guilty. Summons was issued merely on the derived liability principle based on the company’s criminal liability. Derivative liability was explicitly applied by the court in this case, thereby passing a landmark judgement on the matter.

Conclusion and Suggestions

Thus, as seen above, there are multiple theories of culpability, of which derivative responsibility theory has a broad scope of application in Indian criminal law. It drives home the idea that no one should encourage/incite/assist the commission of crimes, and those who do so can be punishable by law, despite not being perpetrators.

The following are certain suggestions regarding the theories and laws discussed above.

• Civil agency rules must not be applied to criminal laws as there is a distinct difference between civil and criminal law.
• There needs to be more clarity concerning the IPC provisions on abetment. While there is an express provision for abetment by aiding with a fault element, there is no express indication towards other forms than aiding, such as instigation. To clarify this, inserting a proviso that the fault element shall include knowledge or intention can be made. Therefore, innocents who unknowingly abetted a crime without knowledge or intention can be protected from prosecution.
• Another section with a broad scope for misuse is Section 120A. Here, any agreement intending to breach a contract or commit a tort, followed by an action regarding the agreement, can be punishable by law. This would extend to petty crimes and civil offences as well. The scope for charging people under this section is broad and results in an unnecessarily large number of convictions. The derivative liability is not needed for such petty offences. The Law Commission recommended¹⁷ in 1971 to limit this section to crimes that were punishable with minimum 2-year imprisonment.

References

1. K N Chandrasekharan Pillai, General Principles of Criminal Law, Chapter 4 (Eastern Book Company, 2^nd edition, 2011)
2. Id.
3. Glanville Williams, Textbook of Criminal Law, Chapter 19 (Steven & Sons, 2^nd edition, 1983)
4. Bo Wang, Participation in Crimes: An End to Derivative Complicity Liability?, Page 4 (Law Press, 2018)
5. R v. Jogee, (2016) UKSC 8 (United Kingdom)
6. Supra note 3, at 21 – 24.
7. Sanjana Nayak, The Innocent Abettor – A Comprehensive Study of Section 111 of the Indian Penal Code, 1860, 3, INT’l MGMT. & HUMAN., 927, 928 (2020)
8. Rohit Dhingra & Shruti Kakkad, Corporate Criminal Liability: An Emerging Issue, 4 (2), International Journal of Law Management & Humanities, 1003, 1012 (2021)
9. Id. at 1013
10. Supra note 1
11. Kartar Singh v. State of Punjab, (1994) 3 SCC 569 (India)
12. Sanju v. State of MP, (2002) 5 SCC 371 (India)
13. Somasundaram v. State, (2020) 7 SCC 722 (India)
14. Standard Chartered Bank v. Directorate of Enforcement, (2005) 4 SCC 530 (India)
15. Iridium India Telecom Limited v. Motorola Incorporated, (2011) 1 SCC 74 (India)
16. Sunil Bharti Mittal v. CBI, (2015) 4 SCC 609 (India)
17. Law Commission of India, Forty-Second Report – Indian Penal Code, Ministry of Law – Government of India, 355 (Jun. 1971) https://criminallawreforms.in/reports/lcireports/42nd%20Report%20on%20the%20Indian%20Penal%20Code.pdf

This article is authored by Vibha Chinni Krishnan, a student of Symbiosis Law School, Hyderabad.

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