Introduction

Every society has its rules and regulations to control crime and punishments for the violation of the law. Criminal Justice is the system of practices and institutions of government directions to control crime. Double jeopardy is also part of the criminal justice system. The double jeopardy concept came to the abolition of double conviction for the same offense. It is based on the legal maxim ‘Nemo debet bis vexari, si constat curice quod sit pro una it made causa’ means man cannot be punished twice if the court has convicted him for the same offense. This maxim is mentioned in Section 26 of the General Clause Act and Section 300(1) of CrPC. It also follows the “Audi alteram” that no person can be convicted for the same offense. The doctrine of double jeopardy is defined under Section 300 of CrPC.

Under the Constitution of India

Double jeopardy is the fundamental right (Part III) under Article 20(2). Article 20(2) defines double jeopardy “no person shall be charged and punished again for the same offense.” The term prosecution has three essential components under this article.

Three essential components of prosecution have:

The person should be accused of an offence. The term an act or omission is punishable by law.
There should be a proceeding and prosecution of the case before the court or judicial tribunal. The defence of double jeopardy is only for those cases that have been decided under the judicial tribunal.
When the tribunal accepts the administrative and departmental inquiry, these inquiries are not considered as proceedings of the court.

The Constitution of India is considered only autrefois convict and not autrefois acquit, which means the concept is for those a person is prosecuted and convicted by the court.

In the case, Maqbool Hussain v. the State of Bombay, the appellant came from abroad and brought some gold. He does not mention to the airport authority that he had brought gold. The customs authority impounded the gold under the Sea Customs Act. After some time, he was charged under the Foreign Exchange Regulations Act. The appellant contended that the second prosecution was a violation of his fundamental right, Article 20(2). The court held that the Sea Custom authorities are not a court or judicial tribunal. The prosecution under the Foreign Exchange Act is not a violation of Article 20(2).

In this case, Venkataraman v. Union of India, the appellant, who was dismissed from her service after an inquiry by the Public Service Enquiry Act, 1960. Later, she was prosecuted under IPC and the Prevention of Corruption Act for corruption. The court held that the proceeding under the Enquiry Act did not amount to a prosecution. Hence, the second prosecution is not a violation of Article 20(2).

Criminal Procedure Code

The concept of double jeopardy is defined under Section 300 of CrPC and its exceptions.

Section 300(1) – It states that if any person is found guilty under the competent court and convicted for an offence, then a person cannot be acquitted for the same facts. The second trial against the person shall be for different facts or charges. Illustration – if a person is convicted under Section 221(1) then in the second trial he cannot be convicted again for Section 221(2) of the same Act.

This section does not include dismissal of a complaint or discharge of accusation.

Section 300(2) – It states that if the person has committed many offences but was not tried in the first trial then he cannot be prosecuted for other charges in the second trial. It means that when a person is convicted in the first trial, he cannot be convicted under the same facts with another offence separately. Before the second trial of a convicted person then it is necessary to take the consent of the State government.
Section 300(3) – It permits the second trial of a convict in those cases where new facts came and those facts did not exist in the first trial. This section is applicable for a conviction not in acquittal offences. The case will be retried only in those cases where some facts relating to the case have not come before the court.
Section 300(4) – This prescribes that after the new facts the person cannot be tried in the same court which does not have jurisdiction. The person shall be retried in a competent court which has jurisdiction.
Section 300(5) – It states that if any person is discharged under Section 258 of CrPC (the court has the power to stop the proceeding of the case at any stage with judgment). The stoppage could be after recording the evidence of a witness, the decision of acquittal or release of the accused has the effect of discharge. A person shall not be tried again for the same offence without the consent of the court.
Section 300(6) – It states that Section 300 of CrPC shall not affect Section 26 of the General Clauses Act. Section 26 of the General Clauses Act prescribed that if the offence which is committed by the accused falls under two enactments then the accused shall be punished under one enactment. But the dismissal of the complaint and discharge of the accused is not an acquittal. Illustration – A tried for grievous hurt and was convicted. The injured person has died. Then he will be convicted for homicide.

Institute of Chartered Accountants of India v. Vimal Kumar Surana, in this case, the court held that if a person is convicted again for different laws, it cannot amount to double jeopardy. The defendant was charged under the Chartered Accountant Act. The court held that it did not mean he is convicted under the Chartered Accountant Act, so he cannot be convicted under the Indian Penal Code. The accused cannot take defense under Section 300 of Cr.PC because the accused is charged under two different laws.

Conclusion

The concept of double jeopardy protects the accused so that he should not be convicted twice. Double jeopardy is defined under the Constitution and Cr. PC. In the case, Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao, the court held that clause 1 under Section 300 is wider than Article 20(2). Article 20(2) states only a person shall not be prosecuted twice for the same offense. Section 300(1) states a person shall not be tried and convicted for the same offense or same facts but a different offense. If a person is convicted twice for the same offense, it is a violation of the fundamental right.

The concept intends to protect a person from multiple punishments for the same offense or to maintain the integrity of the justice system and to protect against the abuse of powers granted to criminal administration.

The article has been written by Prachi Yadav, a 2nd-year student from Mody University of Science and Technology, Lakshmangarh, Rajasthan.

The article has been edited by Shubham Yadav, a 4th-year law student at Banasthali Vidyapith.

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The Bench of justices Vineet Saran and Dinesh Maheshwari on 4 August 2021 observed that a condition of depositing a fine amount to hear a criminal revision under section 397 and 401 C.R.P.C cannot be imposed on a convict. The Bench was hearing an appeal against an order passed by the High Court of Karnataka under criminal revision.

The Trial court convicted the appellant under section 138 of the N.I act and imposed a fine of Rs. 6,00,000 on the accused and imposed a condition that in case of non-payment of dues, she would have to undergo simple imprisonment of 6 months. Aggrieved by the said order of the trial court, she approached the High Court via an appeal. The High Court vide its order passed on 12 June 2020 dismissed the appeal. The accused-appellant approached the High Court via criminal revision petition no 515 0f 2020. The Single bench of the High court took note of the order passed by the trial court, particularly regarding that of fine, and observed that “Unless the fine amount is deposited by the petitioner herein, the petitioner is not entitled to press into service the hearing of this petition filed under section 397 and 401 C.R.P.C.

The bench observed that taking into account all the facts and circumstances of the case and the law in the picture, The High Court could not have deposited a fine amount as a condition precedent to hear the criminal revision. The Court finally set aside the order and passed by the High court on 15 January 2021 and granted the liberty to the parties to pursue the matter before the High Court.

-Report by GURPREET SINGH

This case dealt with a criminal revision petition filed by petitioners against an order of the trial Court that discharged the respondent, against whom an FIR was filed for causing mischief by fire.

FACTS OF THE CASE:

An FIR bearing number 03/2015 was registered on 8.1.15, alleging that the respondent on the intervening night of 7/8 January, around 2 am had set on fire 2 shops, due to a dispute between the complainant and respondent that arose regarding retainment of those 2 shops. The Investigation officer recorded statements under 161 C.R.P.C and presented the final report before the court indicating the respondent under section 436 of RPC (Ranbir Penal Code). The Trial Court after persuing the final report discharged the respondent by exercising power under 268 CRPC. The Court while discharging the respondent placed reliance on the ground that none of the witnesses whose statements were recorded under Section 161 C.R.P.C have stated anything against the respondent, that connects him to the crime. Aggrieved by this order of the trial court, petitioners approached the High Court through criminal revision.

ARGUMENTS IN COURT

The Petitioners contended that the trial court had erred in its decision to discharge the respondent when from the testimony of the witnesses, the involvement of the respondent can be made out.
The respondents contended that the offence under section 436 RPC can be made out only when mischief by fire is committed to destroying a dwelling house and therefore this offence cannot be made out in the case of shops.

DECISION OF THE COURT:

The Court agreed with the contention of the petitioners and remanded the present case to the trial court to reconsider the framing of charges in respect of the decision rendered by this court.

REASONING

The Court after examining the statements of witnesses concluded that the witnesses have clearly stated that the respondent set ablaze the shops in the picture. Further circumstantial evidence of him being seen with a mashal point towards him being involved in the crime. The Court attributed motive to the respondent as there was an ongoing dispute between the respondent and the complainant regarding the possession of the shops. The Court relied on Sajjan Kumar v Union of India, where it was held that the court must apply its judicial mind on the material placed on record and it must be satisfied regarding the possibility of offence being committed by the accused to conclude that prima facie there is a possibility of him being involved. Further, the Court negative the contention of the respondent and ruled that on a bare reading of section 436 of R.P.C it does apply to places that are the custodian of property and the shop’s stored goods of the complainant, making them custodian of the property. Therefore section 436 shall apply in this present case.

Legislative Acts of death penalty

The death penalty is a process that provides punishment to an individual if she or he commits an act that is forbidden by law. It is also known as capital punishment. Capital punishment is an inherent part of the Indian judicial system.

Article 21 of the Indian constitution is a fundamental right of every citizen. It is given “right to life” and “right to personal liberty.” This means the right to live will not be taken away from any individual except due procedure established by law. The offenses punishable by death are heinous crimes.

The death sentence is given under Cr.P.C. Section 354(3) and Section 368 of Criminal Procedure Code, High Court has the power to give a death sentence.

Death sentence punishable in IPC and the other Acts those offenses are:

120B – Punishment of criminal conspiracy.
121 – Waging, or attempt to wage war or abetment of war-waging, against the government of India.
132 – Abetment of mutiny (in the armed forces), if mutiny is committed in consequence of that abetment.
194 – Giving or fabricating false evidence with the intention to procure conviction of a capital offence.
302,304 – Murder.
305 – Abets the commission of suicide to child or insane.
376A, Criminal law amendment Act, 2013 – In the rape case, if the victim died or incapacitated in persistent vegetative state caused by injuries.
396 – Dacoity with murder.

Capital punishment present as a penalty in legislative acts:

Army Act, 1950, Air Force Act, 1950, and Navy Act 1956 under section 34 of these Acts.
Under Section 32- A of Narcotics Drugs and Psychotropic Substance Act, 1985.
Under Section 4 of the Sati (Prevention Act), 1987.
Under Section 3(2) (I) of the Scheduled Caste and Scheduled Tribe Act, 1989.
Under Section 3(2) of the Prevention of Terrorism Act, 2002.

Earlier mentioned laws are not applicable in all cases. The death sentence is present in Section 53 of IPC. Punishment is rarely used.

Validity of the death penalty

The Supreme Court upheld the validity of the death penalty in ‘rarest of rare cases. In the case of Jagmohan Singh v. the State of U.P., the death penalty has been discussed first time in this case. The validity of the death sentence was challenged on the grounds of articles 19 and 21 because it violates the right given under Article 19(1) and 21. The second argument was that procedure prescribed under Cr. P.C. was only limited to findings of guilt and not awarding death sentences. The last argument was Article 14, which guarantees “equality before the law.” This means everyone is equal before the law. In this case, two accused had committed murder, one was sentenced to death, and the other was sentenced to imprisonment for life. The Supreme Court held that the choice of the death sentence is made according to the procedure of law. It was observed that the Judge can choose between imprisonment of life and death sentence based on facts and nature of the case.

In Rajendra Prasad v. the State of U.P., the Supreme Court held that the death penalty is a violation of articles 14, 19, and 21. The death penalty should be abolished or not as a matter of legislature. The court should not decide whether it should be abolished or not.

Criteria for rarest of rare case

This principle has been laid down in the landmark judgment in Bachan Singh v. State of PunjabThis case has overruled the decision of Rajendra Prasad. It held that the death penalty in case of murder is not unreasonable and hence not a violation of article 14,19 and 21 of the Constitution of India, because in clauses (2) to (4) of Article 19 is mentioned: “public order” that is different from “law and order.” The death penalty will be awarded in the rarest of rare cases. The precedents of this case were used to award a death sentence.

In Machhi Singh v. the State of Punjab, in this case, the court held that the death penalty is given in rarest of rare cases. The Supreme Court has given some guidelines for conviction of the death penalty. These guidelines included Manner of Commission of the order, the motive for commission of murder, socially abhorrent nature of the crime, the magnitude of the crime and, the victim of the crime.

Clemency Powers

The prisoner can submit a mercy petition to the President of India and the Governor of State. Article 72 states the President of India has the power “to grant pardon or commute or remit the death sentence.” Article 161 states the governor of a State shall have the power to grant pardon or commute or remit and suspend. If the death sentence has been given in the session court judgment, then it should be confirmed by the High Court. If the High Court has sentenced the death penalty then the accused can appeal to the Supreme Court. If the Supreme Court has sentenced the death penalty then he can file a mercy petition to the President of India. If the President rejects the “mercy petition” then the accused can file a petition under Article 32 of the Indian Constitution for judicial review of the rejection of the mercy petition. In the case, Kehar Singh v. Union of India Indira Gandhi was shot dead by Satwant Singh and Beant Singh. She was Prime Minister. Kehar Singh had planned the murder. His son filed a mercy petition before the President of India but it was rejected. The court held that this case is the rarest of rare cases.

International Scenario

The death penalty is not only found in India but in many other countries as well. In recent years, 90℅ of the death penalty is found in Iraq, Saudi Arabia, and Pakistan, and China. According to an Amnesty report, 2,307 death sentences were passed in 56 countries in 2019. But some of the death sentences will be commuted. According to the Amnesty report, 106 countries have not allowed the death penalty. Eight countries have permitted the death penalty only for serious crimes in exceptional circumstances. In 142 countries, it has either been abolished in law or practice.

In India, many NGOs have supported the abolition of the death penalty. The main purpose of the NGOs is to stop inhumane punishment. The abolition of the death penalty movement was also supported by the United Nations during the drafting of the Universal Declaration of Human Rights (UDHRs). Russia has capital punishment but, it has not been used since 1996. Among the European countries, Portugal and Netherlands were the first countries to abolish the death penalty. Belarus is the only European country to practice the death penalty. It is found the practice of the death penalty is more in communist countries than in democratic countries.

Conclusion

The death sentence is a process provided by law. In India, the death sentence is given in the rarest of rare cases. Statutes and legislative Acts have provided the death sentence in certain cases. There are certain circumstances where less punishment has been provided to the accused like if he is a minor, pregnant woman, and co-accused. Now many countries are against capital punishment, and they have abolished the death penalty. If God has given life, then no one can take an individual’s life from him.

The article has been written by Prachi Yadav, a 2^nd Year student from Mody University of Science and Technology, Laxmangarh, Rajasthan.

The article has been edited by Shubham Yadav, a 4th-year student at Banasthali Vidyapith, Jaipur.

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Justice was served in the form of a Karnataka High Court order on the maintainability of Twitter employee Manish Maheshwari’s appeal against the Uttar Pradesh Police’s notice, even though it took a long time.

Justice G Narendra had reserved the verdict on July 9 after hearings in the case. It was supposed to be announced on July 13, but it was postponed after the judge stated that he wanted to go over the cited precedents again to ensure that the verdict was free of errors. The length of time it took to pronounce the order reflected this meticulousness. The order on the maintainability of the plea took more than five hours to issue, spread out over two days.

The Court sifted through various issues in the case, including the extent of Twitter India’s control over the content on the social media platform, whether Maheshwari was a Managing Director of the company and the use of criminal law provisions by the UP Police. Finally, the Court determined that the conditions for invoking Section 41A of the Code of Criminal Procedure (CrPC), which deals with notice to appear before a police officer, were not met.

The Court went so far as to say that the notice was used fraudulently, noting that “The provisions of the statute must not be ever used as a tool for the harassment.” The respondent (UP Police) has not produced a shred of evidence to show even prima facie that the petitioner (Maheshwari) was involved.”

The order on Manish Maheshwari’s plea’s maintainability took over five hours to issue, spread out over two days. Since the case consumed a significant amount of Justice Narendra’s time over the last two days, he was seen adjourning other matters to a later date.

At one point during the hearing, it appeared that the judge was aware of how long the decision was taken. “I will need a rest for my vocal cords tomorrow,” he said before adjourning the pronouncement into the second day. Following the announcement of the verdict, Maheshwari’s lawyer, Senior Advocate CV Nagesh, thanked the judge for his time and patience. Nagesh also expressed regret for taking up so much of the Court’s time.

Honorable Justice Narendra responded, “We’re just doing our job.”

-Report by ESHAN SHARMA

Introduction

Sustainable Development is defined as “to meet the needs of the present without compromising the ability of Future Generation to meet their own needs”. The concept came into the picture after the International Conference in Stockholm in 1972. It contains three aspects- 1.environment which includes biodiversity, air, land, plants, animals, etc.,2. Economy i.e. income and money employment trade, business, etc., 3.Society, includes education, health, security, peace, and equal opportunities. To meet this concept this compelled the legislature to make rules, guidelines, and legal provisions on the same. Further, these provisions brought the judiciary to set precedents against such degradation of the environment. The Supreme Court in various landmark cases highlighted the importance of controlling public actions to protect the environment through legal processes, statutes, and punishments. This article explores the legal regime of environment protection through Indian Jurisprudence.

Environment Preservation vis-a-vis Development

For a Developing country like India, Economic development clashes several times with environmental preservation. Moreover to achieve sustainable development courts follow only the principle to clean the existing pollution and not focus on precautionary principle to preserve the environment by further laying down rules and regulations which may prevent pollution, which can be construed by courts various decisions which focus on the polluter pays principle rather than precautionary principle.

To support the above contention the landmark case of Narmada Bachao Andolan is apt. In this case, the height of Sardar Sarovar Dam was to be increased which would have affected the local people, their livelihood would have been lost, and a further lot of species of plants and animals would have been submerged. The Supreme Court held that local people should be given a better place of livelihood but construction would take place as it was important for the development of that place. This judgment portrays that Environment Development is important keeping Environment concerns in view.

Sustainable Development Precedents

In India, the Sustainable development concept came into light with the case of the Vellore Citizens Welfare Forum. In this case, the tanneries in Tamil Nadu were releasing harmful untreated effluents into water bodies, agricultural fields, and roads as well. The river named Palar there was highly polluted due to these effluents making a scarcity of potable water, and not only this it also polluted over thirty thousand hectares of land engaged in agricultural activities. The Supreme Court held Tanneries owners liable and stated that the principle of polluter pay is an integral part of the Constitution.

Supreme Court of India

Taj Trapezium case, in this case, refineries of Mathura’s use of coal and also because of vehicles emissions which lead to the release of SO2 mixing with water in rainy seasons making it an Acid rain resulting in corrosion of Taj, turning white marble yellowish, was banned. A Bhuleral Committee was also set up which recommended the use of CNG. Oleum Gas Leak Case in which Absolute and Public Liability evolved. Another case was filed by M.C. Mehta in which several polluting tanneries were ordered to be closed to save water of river Ganga. Court-ordered tanneries to come up with a proper set treatment plant.

Through the case of Murli Deora Smoking was banned in public places.

Other Courts

Landmark cases laying precedent on environment protection and maintaining sustainable development. Rural Litigation & Entitlement Kendra cases– also known as Dehradun Mussoorie Hills quarrying Case. The court observed that quarrying of limestone results in excessive soil erosion and therefore, there is a need to maintain a balance between Environmental & Ecological Integrity. AP pollution control board caseIn this case, the precautionary principle was established. Church of God in India case. In this case, noise Pollution was also given recognition.

Provisions on Environment Protection

Constitution of India

Constitutional guidelines on right to wholesome Environment- Evolution of Application, Relevant provisions are given under Articles 14, 19(1)(g), 21, 48 (A), 51(A)(g) of the Indian Constitution.

42^nd Amendment – Article 48(A)- states about Protection & improvement of Environment & safeguarding forests and wildlife.

Article 51(A)(g)- Fundamental duty to protect & improve the natural environment…living creatures.

List III- Concurrent List– provides Indian parliament power to legislate on subjects on man-made an increase of pollution and environment degradation.

Other Legislations

Under Article 253 of the Indian constitution- legislation for giving effect to International Law. Through which certain legislations inspired by an International Conference in Stockholm 1972 were implemented, such as Water Act 1974, Air Act 1981, Environment Protection Act, 1986, Forest Act1927, Wild Life Protection Act, 1972, etc.

Provisions under Code of Civil procedure– section 91- Reservoir for class action suits against environmental Law. J. C. Galstaun case – one of the earliest cases on environmental pollution in India. The Case is important because it shows how the common law regulatory system can check polluters in a pre-industrialized society.

Indian Penal Code– There are various sections of the Code related to environment nuisance and its punishments, some of them are-

Section 277– fouling Water of public Spring or Reservoir

Section 278– Making atmosphere noxious to health.

Section 284– Negligent conduct concerning poisonous substances.

And many more.

Provision under Code of Criminal Procedure– section 133– Conditional order for removal of the nuisance.

National Green Tribunal

It is a body specially designed to deal with the cases of Environment protection. India is the 3rd country in the world to make such a body for robust and effective disposal of cases related to the environment. Landmark cases held by NGT are- recently in 2017 in Delhi NGT imposed a ban on plastic bags containing less than fifty microns. In the 2012 Almirtra H. Patel case, NGT prohibited the open burning of wastes on the land surfaces.

However, NGT faces various challenges like the supremacy of the High Court, criticisms on various judgments of NGT which caused repercussions on the environment, the pendency of cases due to lack of judges and financial assistance, which fails the purpose of establishing such a Tribunal.

International Law

Sustainable Development targets cannot be the same for every country as every country is on a different stage of acquiring it. Some have to achieve more whereas some have to achieve less, according to the altogether vision in view to preserve resources of the world at large. Therefore, to meet such vision internationally major summits held are stated below-

Stockholm conference -focused on biodiversity and environment to secure a healthy environment for humans present as well as the future.
United Nations Commission on Environment and development- plays an important role to protect Environment, in its Brundtland Report defined sustainable development to acquire environmental protection, Economic Growth and social equity.
Rio Declaration- introduced principles on biodiversity, climate change and forest management.
United Nations conference on Sustainable Development 2012- adopted eight Sustainable Development goals to be achieved by 2030.

Article 253 of the Indian Constitution states Legislation for giving effect to International Agreements.

Conclusion

Many times, Economic development wins over Environment Degradation. India is a developing country which makes it concerned to become one of the developed countries concerning the economy, technology, Industry, etc., basically, every such thing which degrades the environment resources. Therefore, in various cases, Economic development supersedes Environment preservation. Independence and accountability are also important aspects to acquire Sustainable Development by Judiciary. Implementing legislation, regulatory authority by a specialized body that is NGT may make the dream of Sustainable Development possible which enhances the environmental law regime in the country.

The article has been written by Aakrati Thakur, pursuing BBA Ll. B 3^rd Year in Delhi Metropolitan Education, Noida, GGSIPU.

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Case Number

Appeal (crl.) 240 of 1997

Equivalent Citation

2004 (1) SCR 1155

Bench

V. N. KHARE CJ , S.B. SINHA , S.H. KAPADIA

Decided On

28/01/2004

Relevant Act/ Section

The Indian Penal Code – Section 509

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 1989 Act) – Section 3(i)(xi)

The Code of Criminal Procedure (CrPC) – Section 482

Article 341 & Article 342 of The Indian Constitution

The Constitution (Scheduled Tribes) Order, 1950

The Constitution (Scheduled Castes)[(Union Territories)] Order, 1951

Brief Facts and Procedural History

The President of the Pattambi Congress Mandlam, Ramachandran, lodged an FIR against the respondent under Section 509 of the IPC. The respondent took Elizabeth P. Kora, an 8-year-old girl, to a classroom in the Pattambi Government U.P. School with an intention to outrage the modesty. The father of the victim belonged to the Mala Aryan Community (Scheduled Tribe in Kerala), so another FIR was filed under Section 3(i)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The Chief Judicial Magistrate summoned the respondent based on the charges. Aggrieved respondent under Section 482 of CrPC filed a petition asking to quash the charges framed under Section 3(i)(xi).

The High Court held that the victim ceased to be a member of the Scheduled Tribe as her parents have converted to Christianity. The High Court repressed the charges under Section 3(i)(xi).

Issues Before the Court

Whether the person continues to be a member of a Scheduled Castes and Tribes after he embraces another religion?

Ratio of the Case

The appellant had shown through circulars issued by the State of Kerala that despite converting into other religions, tribes treated their members in the same way as they did before. An argument has been made that the victim’s family does not fall in the category of the Scheduled Tribes, as they are embracing Christianity for 200 years. The caste system is a feature of Hindu society and, if a person renounces Hinduism, he also ceases to be a member of the caste.

The Madras High Court held that a person professing a religion other than Hinduism could be a member of a caste. It is possible where a caste is not based on religion but on economic and occupational characteristics. In South India, some caste accepts a person being a member of a caste even after conversion.

The Andhra Pradesh High Court held that the person could be governed by a different law than the law governing his community. However, this does not cease him to be a member of the caste he belongs.

Decision of the Court

The Court held that as a broad proposition of law, it cannot be accepted that a person ceases to be a member of the Scheduled Tribes merely by conversion into another religion. The facts of the cases can determine whether the person ceases to be a member of the Scheduled Tribes. The court needs to see whether the person who changed his religion continues to suffer from a social disability. And if he follows the rules, customs, and the tradition of the community he belonged to?

This Case Analysis is written by Gracy Singh, a student of 2^nd Year BA.LLB (Hons.) from Mody University of Science and Technology, Lakshmangarh, Rajasthan.

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Introduction

Plea bargaining is a pre-trial practice, wherein the accused pleads guilty in exchange for a lesser punishment or even some of the charges being dropped. This is where negotiation takes place between the accused and the prosecutor on initiation made by the accused only.

Ever heard of the Salem witch trials? In 1692, in the US, the Salem Magistrates to uncover more witches made the accused witches testify against the others. The deal was they would be left to live in exchange for their confessions and executed otherwise. Salem witch trials are one of the oldest illustrations of the practice of plea bargaining. Plea bargaining as a practice is common in the US and it struggled a long time, from being considered unethical at the least and illegal at its worst. Since the 1920s, there were cases in the US that acknowledged plea bargaining providing the solution to expensive litigation both in terms of time and money. In 1967, the President’s Commission on Law Enforcement and Administration of Justice documented the practice of plea bargaining and recommended the practice to be put in use and since then, it has made its place.

Plea Bargaining In India

Before 2005, India didn’t formally recognize plea bargaining. Courts disapproved of it for the longest time calling the practice to be contrary to public policy, unfair, unconstitutional, illegal, and as something that promotes corruption, collusion, eventually threatening the justice system. Indian criminal law always had this provision for the accused to plead guilty in place of a trial but that couldn’t possibly be understood as plea bargaining. The 142^nd report of the Law Commission of India (1991) recommended giving “concessional treatment” to those who plead guilty on their own accord but didn’t recommend including plea bargaining in its form. Later, in its 154^th report (1996), a recommendation was made to include plea bargaining in its experimental form followed by a similar recommendation in the 177^th report (2001). This recommendation later found its support in the Malimath Committee Report.

Plea bargaining was officially introduced in India in 2006, when Chapter XXI-A was inserted by Act 2 of 2006, containing Sections from 265A to 265L.

Plea bargaining is allowed only in limited cases.

Offenses punishable with imprisonment for a term, not more than 7 years.
Offenses that do not affect the socio-economic conditions of the country.
Offenses that are not against a woman or a child below 14 years.
Available in private complaints in which a Criminal Court has taken cognizance.

Charge Bargaining- Negotiating for dropping a charge in multiple charges or settling for a lesser charge.

Sentence Bargaining- Admission of guilt and settling for a lesser sentence.

Fact Bargaining- Bargaining as to admission to some facts in exchange for an agreement to not introduce some other facts.

In 2020, the practice of plea bargaining came under the spotlight when foreigners who were members of Tablighi Jamaat attended the religious congregation Nizamuddin Markaz, amid the pandemic and were released through plea bargaining. The charges were a violation of visa conditions and guidelines given by the Government in the wake of the pandemic, etc. They accepted milder charges and paid fines under plea bargaining.

Procedure Of Plea Bargaining Under CrPC, 1973 (Sections 265A TO 265L)

Application for plea bargaining is filed by the accused containing a description of the case with the offense along with an affidavit sworn by the accused that he voluntarily applied for plea bargaining, understands the nature of the offense and its punishment, and that he has not been convicted of the same offense in any case previously.

Note- Use of the statements or facts mentioned by the accused in this application are to be used in plea bargaining only and not for any other purpose.

After this, the Court issues notice to the Public Prosecutor/complainant and the accused to appear on a specific date when the accused is examined by the Court in-camera to the satisfaction that the application has been filed by the accused voluntarily.
On satisfaction, both the parties are given time to work out a mutually satisfactory disposition of the case (accused giving compensation, etc to the victim) setting the date for further hearing. A report is then prepared by the Court signed by the parties and the presiding officer of the Court.
If the application is found to be involuntarily filed or that the accused has been previously convicted of the same offense earlier, the Court will proceed as per provisions under CrPC from the stage of filing application.
After a satisfactory disposition is reached by the parties, a report is then prepared by the Court, signed by the parties and the presiding officer of the Court. The case is then disposed of by awarding compensation to the victim as per the disposition and then a decision upon the quantum of punishment for the accused is made.

If Probation of Offenders Act, 1958 or Section 360, CrPC, or any other law time being in force applies to the case, the accused may be released on probation or provided a benefit of any other law.
After hearing this, if minimum punishment for the offense committed is given under law, sentence- ½ of such minimum punishment.
But if the accused is not covered in any of the 2 provisions given above, sentence- ¼ of the punishment provided or extendable.

Judgment regarding disposal of the case is given in open court and is signed by the presiding officer.

Benefits Of Plea Bargaining

Speedy Trial- Trials are time-consuming and India, having an insurmountable number of pending cases, faces an ardent need for speedy trials. Plea bargaining provides just that.
End the anxiety of uncertain outcomes- Trials could be tricky most of the time, where it could turn in any possible direction. With plea bargaining in practice, one did an offense, that one pleaded guilty of it too. Hence, it removes the possibility of being anxious over the unpredictable nature of trials.
Saves litigation costs- It wouldn’t come as a surprise to you that going to trial is expensive. If one gets to negotiate pre-trial, it saves huge bucks that would otherwise have gone to the advocates, etc.
Impact on conviction rates- Imagine the conviction rates, when it is possible to have speedy disposal of cases. Why do you think the US does so great in this department?
Lesser sentence- In exchange for accepting a plea deal, the accused may be given a lesser sentence or even a reduced charge like that of a misdemeanor instead of a felony.
An opportunity for a fresh start- There is a possibility under plea bargaining that an accused gets convicted for a lesser sentence. This allows the convicted to make a change in his life and start afresh.
A solution for the problem of overcrowding of jails- Accused awaiting trial are kept in jails that work just as a holding center with little or no scope for rehabilitation or correction. The delay in trials and conviction leads to overcrowding of the jails. With plea bargaining in the picture, faster disposal of cases is possible.

Criticism Of Plea Bargaining

May be made under coercion- It is a possibility that plea deals are made under coercion from the prosecutor or are bad in faith. Hence, the accused might feel threatened and accept the plea deal even when he/she is innocent.
Criminal record- When one pleads guilty under plea bargaining, that does not mean that he would escape the conviction somehow. As a consequence, one would always have a criminal record.
Misguidance from the counsel itself- Sometimes, plea bargaining comes as a piece of bad advice from the counsel of the accused itself, agenda behind could be to get rid of the case sooner, lack of legal experience, inability to fight the case on its merits, etc.
Role of Judges in plea bargaining- Even though both parties agree to plea bargaining, a Judge may declare it void. A judge can even set aside the plea deal and move the case to trial if he feels like it is made in bad faith.
No opportunity to appeal- In a trial, if the accused is not satisfied with the decision of his conviction, in almost all cases he appeals to a higher court against the judgment. But, once an accused pleads guilty, there is no scope for him to appeal against the conviction except special leave petition under Article 136 and writ petition under Article 226 and 227 of the Constitution.
Not the most moral practice in the book- Concessional punishments under plea bargains seem unfair to victims of the offenses committed by the accused for which he pleads guilty on the record.
Right to free and fair trial threatened- There are arguments that plea bargaining is unconstitutional in the sense that it violates the right to free and fair trial of the accused. If the plea deal is the outcome of coercion, incapacity of the defense attorney, etc. then the possible conclusion makes this practice bad in law.

Even the justice system suffers because of this practice because plea deals are all about the negotiation skills of the counsels for both the parties and not winning the case on its merits in the trial.

Conclusion

It’s been more than a decade since plea bargaining was inserted in CrPC, but one would observe that it is uncommon in India since its inception. There have been doubts and worries to put the practice in full motion. As mentioned above it has various disadvantages but what one tends to forget is the benefits of it. To conclude a careful and balanced analysis of both the advantages and disadvantages has to be done since It is not justified to exclude something solely based on its demerits. Lack of awareness of the masses about their rights, coercive confessions, etc is the reason for the restricted scope of plea bargaining in India. As per statistics given by GOI in 2015, the plea bargaining rate in India was a mere 0.045% (last available statistics on the subject), pending cases were over 2 crores across the nation and undertrial prisoners were 2.8 Lakhs. If you are wondering what’s the current status, so at present, there are over 4 Crore pending cases all over India. If the future is the same as the present with an insurmountable number of pending cases in Indian Courts, which honestly will be, then the need of the hour is to give plea bargaining the space it needs.

The article has been written by Munmun Kaur, a law student from Law Centre-I, Faculty of Law, Delhi University.

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Magistrate quashed 2 deportation orders passed by a Magistrate concerning a foreign resident, the High Court of Telangana observed that under the Code of Criminal Procedure a magistrate does not have the power to order the deportation of foreign residents in case of violation of the Foreigners Act.

Further, it was said that “Learned Magistrate has to confine his findings concerning either acquittal or conviction of accused therein under Section 248 of the Cr.P.C., Learned Magistrate is not having the power to order the deportation of any foreign citizen for any violation.”

The applicant, who had come to India on an employment visa from the Ivory Coast had approached the High Court, the plea sought quashing of the deportation orders by which the Magistrate had directed the jail authorities to release him forthwith after acquitted him in the criminal cases filed against him.

It was thus held by the High Court of Telangana, the case of the petitioner that the Magistrate while pronouncing judgment under Section 248 of Cr.P.C. does not have the power to order the deportation of foreign resident for any kind of violation.

-Report by Muskan Chanda

Every day in our life, we come across various news items in which someone has been charged with a crime (s). The main question that any legal enthusiast has when they come into these is if the accused or those who will be brought before courts for trial have any fundamental rights or protection. To deal with the same Article 20 was introduced in the Indian Constitution. The article comprises 3 clauses. First, the essence of these regulations is that no one shall be convicted for any offense other than those that violate the law in effect at the time of the offense and that no punishment should be imposed that is greater than that which existed at the time the conduct was committed. Second, no one could be found guilty and punished for the same crime more than once. Third, no one should be forced to furnish evidence or information that could be used against them in an inept judicial tribunal’s trial. Article 20 of the Indian Constitution is one of the few that cannot be ignored, even in an emergency. As a result, it is regarded as a cornerstone of the Indian Constitution.

Article 20(1)

The first portion of Article 20(1) bans criminal laws from being applied retroactively if a new offense has been formed. Such laws that create new offenses cannot be applied retroactively to punish someone for something they did previously. Thus, criminal laws that create new offenses cannot be applied retroactively, as this would be a violation of Article 21 as well as a violation of the principles of reasonableness, justice, equity, and good conscience, as well as arbitrary legislation. If a criminal statute doubles the penalty for an already-existing crime, it cannot be enforced retrospectively since it would be illogical, arbitrary, unjust, and immoral. If the offense is abolished or the punishment is lowered by a subsequent law, and the law is applied retrospectively, the accused who committed the offense earlier will profit from the new law. If, on the other hand, such advantageous legislation was not applied retroactively, the accused can undoubtedly claim the benefit of the new law, and the court, after condemning him, can grant him a new trial. This is called the doctrine of beneficial construction.

Article 20(2)

Jeopardy signifies hazard or trouble in the literal sense, but in criminal law, it means punishment. No one may be prosecuted and punished more than once for the same offense. It will be a superfluous and disproportionate restriction on the accused’s life and personal liberty, as well as irrational, unjust, arbitrary, and contrary to good conscience. The accused must show that he was previously prosecuted and punished in a judicial or quasi-judicial action for the same offense. The ban of Article 20(2) of the Indian Constitution does not apply if the accused has already been prosecuted and acquitted. It is critical that he was previously convicted and sentenced in a court or quasi-judicial action. Article 20(2) will not apply if the previous proceeding was not judicial or quasi-judicial, but rather a departmental proceeding.

Article 20(3)

According to Article 20(3), the accused cannot be forced to testify against himself. The protection is provided at all levels, including the trial stage, and it is available against both mental and physical compulsion. It should be mentioned that the protection is only for personal knowledge. It does not include physical manifestations such as a thumb impression, my watch, or a blood sample, for example. In-State of Bombay v Kathi Kalu Oghad it was held that if some facts are visible then the protection as provided under Article 20(3) will not apply. The protection is not only with regard to the compulsion but also with respect to any kind of mental coercion; it only applies to facts or information based on the accused’s personal knowledge. In another case of Nandini Satpathy v P L Dani , it was held that the prohibitive breadth of Article 20(3) emerges at the very beginning of an investigation, and protection is accessible at all phases of the investigation, inquiry, and trial. As a result, protection is accessible at both the section 161 and section 313 and 315 stages of the CrPC. Article 20(3) exclusively protects the accused in a case, not the witnesses.

If we examine all of the articles in Article 20 of the Indian Constitution, we may deduce that these clauses, namely Article 20(1), Article 20(2), and Article 20(3), reflect the protection of condemned persons from excessive legislative, judicial, and executive measures, respectively. These protections are also available to all persons, including Indians and foreigners, and thus form the cornerstone of the Indian Constitution, guaranteeing basic human rights to those who have been convicted or suspected of crimes. Its availability even when an emergency is declared under Article 352 of the Indian Constitution is what distinguishes it and makes it so crucial for the execution of democratic duties.

This article is authored by Vanshika Samir, a first-year student at the Rajiv Gandhi National University of Law, Punjab.

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Introduction

Under the Constitution of India

Criminal Procedure Code

Conclusion

Legislative Acts of death penalty

Capital punishment present as a penalty in legislative acts:

Validity of the death penalty

Criteria for rarest of rare case

Clemency Powers

International Scenario

Conclusion

Introduction

Environment Preservation vis-a-vis Development

Sustainable Development Precedents

Supreme Court of India

Other Courts

Provisions on Environment Protection

National Green Tribunal

International Law

Conclusion

Case Number

Equivalent Citation

Bench

Decided On

Relevant Act/ Section

Brief Facts and Procedural History

Issues Before the Court

Ratio of the Case

Decision of the Court

Introduction

Plea Bargaining In India

Procedure Of Plea Bargaining Under CrPC, 1973 (Sections 265A TO 265L)

Benefits Of Plea Bargaining

Criticism Of Plea Bargaining

Conclusion

Article 20(1)

Article 20(2)

Article 20(3)

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