Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court: While deciding the instant petition for quashment of complaint, the Bench of Suraj Govindaraj, J., held that in the instant case where it has been alleged that the petitioner (a doctor) had conducted the sex change operation upon a minor without their consent, such allegations are not something that can be considered by the High Court under Section 482, CrPC and should be strictly left open for trial, with the petitioner having the liberty to raise appropriate defense.

Facts and Contentions: A complaint was filed on 11-02-2018 whereby it was alleged that the petitioner had conducted a sex change operation on the complainant’s grandchild and had changed his sex from male to female. There are other allegations which have been levied upon the petitioner, such as kidnapping and offences under Section 376, IPC and Sections 6 and 21 of the Protection of Children from Sexual Offences Act, 2012.

The counsel for the petitioner argued that the petitioner is a doctor, who has wrongfully been implicated in the matter. It was submitted that the petitioner has not performed any operation as alleged or otherwise; furthermore, no criminal prosecution could be initiated against the petitioner, without following the guidelines laid down by in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1, which had stated that unless there is a credible opinion given by another doctor against the accused doctor, no criminal case ought to be registered against such doctor.

Per contra, the respondents argued that the instant case is not about medical negligence. The allegations are regarding a forcible sex change operation, which is a criminal offence both under the IPC and under the POCSO Act.

Observations and Decision: Perusing the allegations and contentions, the Court noted that allegations of forcible sex- change operation has been made against the petitioner and the investigations are ongoing for the same. Several parties have been implicated in the charge sheet, many of whom are transgenders, who also alleged to have got a forcible sex change operation, so that they can be used for extortion and prostitution.

The Court further observed that guidelines in the Jacob Mathew case are applicable when there is an alleged criminal negligence on part of a doctor and opinion of another doctor is required to establish such criminal rashness or negligence. The Court pointed out that in the instant case, no allegations of medical negligence have been made against the petitioner.

With the afore-stated observations, the Court noted that, “I am unable to come to a conclusion that there are no offences which have been made out, there are no grounds which have been made out for quashing of the proceedings, as such“.

Holding that the allegations must be strictly left for trial; the Court dismissed the instant petition.

[Dr. Anitha Patil v. State of Karnataka, 2022 SCC OnLine Kar 1487, decided on 24-08-2022]

Advocates who appeared in this case:

Vijetha R. Naik, Advocate, for the Petitioner;

Mahesh Shetty, HCGP, Advocate, for the Respondent.

*Sucheta Sarkar, Editorial Assistant has prepared this brief.

laboratory report
Case BriefsSupreme Court

Supreme Court: The Division Bench of Hemant Gupta and Vikram Nath*, JJ., reversed the impugned judgments of the Punjab and Haryana High Court and the Trial Court of convicting the appellant for murder on the basis of circumstantial evidence.

Noting that there were many broken links in the chain of evidence and the prosecution could not prove the case beyond a reasonable doubt. Casting a doubt on the prosecution version, the Court remarked,

“The milk which is said to be adulterated with the poison was taken out from the refrigerator, transferred into a pan for boiling, and thereafter given to the deceased. If it actually had organophosphorus in it the smell would have filled up the room. The deceased being a healthy woman aged 45 years would not have consumed it if the pungent smell was coming from the milk. Even the informant did not sense any foul smell from the milk while boiling it.”

Factual Matrix

The prosecution case was that one Kuldeep Kaur, wife of the informant died after consuming the milk bought from the appellant, Rajbir Singh. The informant submitted that the appellant had borrowed Rs. 1 lakh from him and he and his wife were demanding that money from him. Therefore, on account of a grudge, he poisoned the milk in order to eliminate his family.

The Trial Court held that the prosecution had proved the death was caused by poisoning and that there was a motive to commit the said offence in order to save the appellant from returning the loan of Rs. 1 lakh taken from the informant. The Trial Court noted that the chemical analysis of the boiled milk consumed by the deceased, the unboiled milk, the container 18 in which the milk was kept, and the glass in which the milk was tendered, all contained organophosphorus, the poisonous substance. The second chemical report also reflected that there was the same substance organophosphorus in the parts of the organs (viscera) of the deceased sent for analysis.

Hence, the Trial Court convicted the appellant under Section 302 of Penal Code 1860 and sentenced him to undergo rigorous imprisonment for life and pay a fine of Rs.1,000. In appeal, the Punjab & Haryana High Court upheld the conviction.

Broken Chain of Evidence

The Court noted that the Trial Court proceeded on the premise that the appellant had not denied the execution of the pronote while discussing the motive which was not correct as the appellant in his statement under section 313 CrPC had specifically denied not only borrowing of the money but also that he never executed the pronote.

Further, the Trial Court did not take into consideration the time gap from the alleged time of collecting the milk from the appellant to the time it was administered and further the time the samples were collected. It also did not give any importance to the post-mortem report and the statement of Dr. Avtar Singh who had conducted the autopsy.

Considering the aforementioned, the Court culled out the following factors to rule that both the courts below committed an error in recording conviction:

  • According to the appellant, the amount was due to him from the informant and that he had been falsely implicated to deprive him of recovering the same from the informant. Hence, a case of false implication cannot be ruled out.

  • Reliance placed upon the pronote and the receipt was also not proved as neither the original pronote was produced nor any attesting witness was examined.

  • The time between the collection of milk from the appellant and the time when it was consumed by the deceased was about five hours. Similarly, the time after consumption of milk and when the Investigating Officer recovered and took into possession of the sample of milk and the utensils had a gap of about 24 hours. Hence, the chances of mixing poison during this period cannot be ruled out.

  • The use of compound organophosphorus has a homicidal purpose because of its extremely strong pungent smell which aspect had not received due attention by the Trial Court. Interestingly, this smell could not be sensed by the informant, his son, and also the deceased.

  • Further, Dr. Avtar Singh who had conducted the autopsy had clearly stated that he did not find any smell of organophosphorus coming out of the body; neither did he see any change in the colour of nails as also in the body, which would have been a common symptom in the case of poisoning. This may lead to an inference that death could have been caused by some other reason but not poisoning.

Relying on Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, the Court observed that in a case of circumstantial evidence, it is also well settled that suspicion, howsoever strong it may be, cannot replace proof beyond a reasonable doubt.

Manipulation of Forensic Reports

The Court noted a grave discrepancy in the laboratory reports. The prosecution submitted that the sample was received in the laboratory on 22-09-2000, whereas as per the two reports, it was received by the Assistant Chemical Examiner, Dr. Sandeep Kakkar, on 22-11-2000 from one Dr. O.P. Goel after his suspension, not in a sealed form, but as an open case. The Court observed,

“This note ‘This opened case, received by me from Dr. O.P. Goel on 22.11.2000 after his suspension.’ is typed out in both the reports after an overwriting /cutting is made by using alphabet “X” continuously.”

The laboratory report dated 31-01-2001 mentioned that there were three sealed jars in the sealed parcel which contained parts of organs. Whereas as per the post-mortem report and the statement of Dr. Avtar Singh, four sealed packets were sent, three containing parts of organs, and one containing the saline solution. The result referred to presence of the organophosphorus compound in the three sealed jars and it also refers to no poison found in the contents of fourth jar.

Similarly, the other laboratory report dated 05-02-2001 of the Assistant Chemical Examiner, Dr. Sandeep Kakkar, with respect to milk, boiled and unboiled and the utensils also had a similar cutting, and a note attached to that it was received as an open case from Dr. O.P. Goel on 22-11-2000 after his suspension. Hence, the Court pointed out the following:

  • That samples were not handed over to the Assistant Chemical Examiner who had to conduct the analysis in a sealed form.

  • The cutting, and a fresh note regarding parcels being open also creates a doubt.

  • Chances of tampering with the samples could not be ruled out.


In the above backdrop, the Court concluded that the chain of evidence has many missing and weak links, and none of the essential ingredients to record conviction in a case of circumstantial evidence; especially in the poisoning case were made out. The Court remarked,

“The Investigation Officer admits of having made no effort to find out as to whether or not the appellant was in possession of the poisonous substance said to be mixed in the milk. The Courts below have proceeded on the assumption that organophosphorous is available in every household.”

Hence, holding that the prosecution had not established the charge beyond reasonable doubt so as to record conviction under Section 302 of the Penal Code, 1860, the Court extended benefit of doubt to the appellant. The appeal was allowed, the judgments of the High Court and the Trial Court were set aside, and the appellant was acquitted.

[Rajbir Singh v. State of Punjab, 2022 SCC OnLine SC 1090, decided on 24-08-2022]

*Judgment by: Justice Vikram Nath

*Kamini Sharma, Editorial Assistant has put this report together.

Punjab and Haryana High Court
Case BriefsHigh Courts


Punjab and Haryana High Court: Division Bench of G.S. Sandhawalia, J., and Vikas Puri, J., allowed this criminal writ petition filed under Article 226 to grant parole to the petitioner under Punjab Good Conduct Prisoners' (Temporary Release) Act, 1962 stating that parole is part of the reformative process.


The petitioner has been in custody since the FIR was lodged on 06-04-2018 for heinous crimes stated under Sections 302,120-B and 201 of Penal Code, 1860. The petitioner filed an application seeking parole for 6 weeks on the grounds that his parents are old and remain ill and he has to take care of his old parents. This application of the petitioner was rejected by the Additional Deputy Commissioner on the grounds that his release can be dangerous for the opposite party and may cause loss of life and property to the complainant and endanger the security of the nation. The Senior Superintendent of Police also dismissed the application on the same grounds.

Observations and Analysis:

The Court relied on the judgement of Arun Kumar v. State of U.T., Chandigarh, (2011) 2 AICLR 361 where it was held that release of convict on parole is a reformative process. It was observed that sufficient material should be available and there should be solid reasons for declining temporary release on parole. In another case, Ram Chander v. State of Punjab, (2017) 3 RCR (Cri) 340, it was held that in the absence of any material, denial of parole will be unjustified.

Keeping in view of the settled principles of law, the Court allowed the present petition and thereby releasing the petitioner on parole for a period of 6 weeks. It was also observed that the Authorities to whom the application was made neither emphasized what his crime was nor the manner in which he had committed the same to show that his release on parole endangers the security of the nation nor it talks about whether his parents are genuinely unwell. Therefore, the Court held that there was a lack of application of mind.

[Mahammad Shehbaz v. State of Punjab, CRWP No.3196 of 2022 (O&M), decided on 05-07-2022]

Case BriefsDistrict Court

Karkardooma Courts, Delhi: While addressing a case of alleged criminal conspiracy, Virender Bhat, ASJ-03, expressed that,

“The circumstances in a case, when taken together on their face value, should indicate the meeting of minds between the conspirator for the intended object of committing an illegal act or an act which is not illegal, by illegal means. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of crime of criminal conspiracy.”

The prosecution’s case was that the accused were members of an unlawful assembly on 25th and 26th February, 2020 and the object of which was to take revenge for the death of the several Hindus during riots and to teach Muslims a lesson, and in order to achieve the said, they hatched a conspiracy to which they bludgeoned to death innocent persons namely Aas Mohammad.

As per the charge sheet, three persons were apprehended, and their mobile phones were seized and the data was checked. As per the WhatsApp data on the phone of Mohit Sharma and Shivam Bhardwaj, it was revealed that they were members of the WhatsApp group “Kattar Hindu Ekta”. An accused Lokesh Solanki was found to be a member of this group and messages had also been sent to group by him.

Analysis, Law and Decision

Court expressed that the offence of criminal conspiracy has its foundation in an agreement to commit an offence, it consists not merely in the intention of two or more, but in the agreement of the two or more to do an unlawful act by unlawful means.

“…the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved by direct evidence or by circumstantial evidence or both.”

Elaboration further with regard to conspiracy, Bench stated that it requires an act and an accompanying mental state.

To convict a person for the offence of conspiracy, the prosecution must show that he agreed with others that together they would accomplish the unlawful object of the conspiracy.

In the present matter, the only evidence with regards to hatching the conspiracy of the accused were the chats on the WhatsApp group “Kattar Hindu Ekta”.

On perusal of the chats, it nowhere indicated that the said group had been formed for any particular illegal object i.e., to kill the persons belonging to the Muslim community as well as to vandalize/burn their properties and that the members had agreed with each other that they would accomplish any such unlawful object of the conspiracy.

Infact, as per the Court’s opinion, the said chats revealed that the members were keeping themselves ready for any attack from other communities.

“There was nothing in the WhatsApp Chats to lead this Court to any conclusive or irresistible inference that the members of the group had agreed for any particular unlawful object and for accomplishment of that unlawful object.”

Further, the Court analyzed that the messages posted in the group nowhere indicated that the members had formed the requisite mental state to launch an offensive against the members of the other community and to commit vandalization/arson of their properties and kill them.

In fact as per the prosecution’s case, except for Lokesh Solanki, none of the other accused were a member of the said group, hence it would be unfathomable as to how an agreement between all the accused to do an illegal act can be inferred merely from the message posted in the said WhatsApp group.

In view of the above discussion, the charge of the conspiracy failed.

Another statement relied upon by the Special PP was of Nisar Ahmed who stated that the accused were asking Hindus to come out of their homes, to bring out the Muslims from their homes, kill them and rob/usurp their homes. Even if the said statement was taken at its face value, it would still only indicate exhortation.

For the above, Court stated that,

“Mere exhorting others to come out and indulge in criminal activities does not tantamount to any agreement between the person who holds out exhortation and the person to whom the exhortation is held out, to commit a crime.”

Therefore, no offence of criminal conspiracy was made out. [State v. Lokesh Kumar Solanki, 2022 SCC OnLine Dis Crt (Del) 20, decided on 15-3-2022]

Case BriefsSupreme Court

Supreme Court: Drawing an interesting analogy to explain the scope of Section 34 of IPC, the bench of Sanjay Kishan Kaul and MM Sundresh*, JJ has said that it is a team effort akin to a game of football involving several positions manned by many, such as defender, mid-fielder, striker, and a keeper.

“A striker may hit the target, while a keeper may stop an attack. The consequence of the match, either a win or a loss, is borne by all the players, though they may have their distinct roles. A goal scored or saved may be the final act, but the result is what matters. As against the specific individuals who had impacted more, the result is shared between the players. The same logic is the foundation of Section 34 IPC which creates shared liability on those who shared the common intention to commit the crime.”

The intendment of Section 34 IPC is to remove the difficulties in distinguishing the acts of individual members of a party, acting in furtherance of a common intention. There has to be a simultaneous conscious mind of the persons participating in the criminal action of bringing about a particular result. A common intention qua its existence is a question of fact and also requires an act “in furtherance of the said intention”. One need not search for a concrete evidence, as it is for the court to come to a conclusion on a cumulative assessment. It is only a rule of evidence and thus does not create any substantive offense.

Normally, in an offense committed physically, the presence of an accused charged under Section 34 IPC is required, especially in a case where the act attributed to the accused is one of instigation/exhortation. However, there are exceptions, in particular, when an offense consists of diverse acts done at different times and places. Therefore, it has to be seen on a case-to-case basis.

The word “furtherance” indicates the existence of aid or assistance in producing an effect in future. Thus, it has to be construed as an advancement or promotion.

The Court further made clear that there may be cases where all acts, in general, would not come under the purview of Section 34 IPC, but only those done in furtherance of the common intention having adequate connectivity.

“When we speak of intention it has to be one of criminality with adequacy of knowledge of any existing fact necessary for the proposed offense. Such an intention is meant to assist, encourage, promote and facilitate the commission of a crime with the requisite knowledge as aforesaid.”

While the existence of common intention is obviously the duty of the prosecution to prove, the Court cast a duty on the courts to analyse and assess the evidence before implicating a person under Section 34 IPC. A mere common intention per se may not attract Section 34 IPC, sans an action in furtherance. There may also be cases where a person despite being an active participant in forming a common intention to commit a crime, may actually withdraw from it later. Of course, this is also one of the facts for the consideration of the court. Further, the fact that all accused charged with an offence read with Section 34 IPC are present at the commission of the crime, without dissuading themselves or others might well be a relevant circumstance, provided a prior common intention is duly proved. Once again, this is an aspect which is required to be looked into by the court on the evidence placed before it. It may not be required on the part of the defence to specifically raise such a plea in a case where adequate evidence is available before the court.

[Jasdeep Singh v. State of Punjab, 2022 SCC OnLine SC 20, decided on 07.01.2022]

*Judgment by: Justice MM Sundresh

Case BriefsSupreme Court

Supreme Court: In a case where deceased had sustained a gun-shot injury with a point of entry and exit, the 3-judge bench of Dr. DY Chandrachud*, AS Bopanna and Vikram Nath, JJ has held that the non-recovery of the weapon of offences or the failure to produce a report by a ballistic expert would not discredit the case of the prosecution which has relied on the eyewitness

The Court relied on the following rulings wherein it was held that examination of a ballistic expert is not an inflexible rule in every case involving use of a lethal weapon and that surrounding circumstances in the prosecution case are sufficient to prove a death caused by a lethal weapon, without a ballistic examination of the recovered weapon.

Gurucharan Singh v. State of Punjab, (1963) 3 SCR 585

“It has, however, been argued that in every case where an accused person is charged with having committed the offence of murder by a lethal weapon, it is the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which, and in the manner in which, they have been alleged to have been caused; and in support of this proposition, reliance has been placed on the decision of this Court in Mohinder Singh v. State [(1950) SCR 821] . In that case, this Court has held that where the prosecution case was that the accused shot the deceased with a gun, but it appeared likely that the injuries on the deceased were inflicted by a rifle and there was no evidence of a duly qualified expert to prove that the injuries were caused by a gun, and the nature of the injuries was also such that the shots must have been fired by more than one person and not by one person only, and there was no evidence to show that another person also shot, and the oral evidence was such which was not disinterested, the failure to examine an expert would be a serious infirmity in the prosecution case. It would be noticed that these observations were made in a case where the prosecution evidence suffered from serious infirmities and in determining the effect of these observations, it would not be fair or reasonable to forget the facts in respect of which they came to be made. These observations do not purport to lay down an inflexible Rule that in every case where an accused person is charged with murder caused by a lethal weapon, the prosecution case can succeed in proving the charge only if an expert is examined. It is possible to imagine cases where the direct evidence is of such an unimpeachable character and the nature of the injuries disclosed by post-mortem notes is so clearly consistent with the direct evidence that the examination of a ballistic expert may not be regarded as essential. Where the direct evidence is not satisfactory or disinterested or where the injuries are alleged to have been caused with a gun and they prima facie appear to have been inflicted by a rifle, undoubtedly the apparent inconsistency can be cured or the oral evidence can be corroborated by leading the evidence of a ballistic expert. In what cases the examination of a ballistic expert is essential for the proof of the prosecution case, must naturally depend upon the circumstances of each case.

State of Punjab v. Jugraj Singh, (2002) 3 SCC 234

“18. In the instant case the investigating officer has categorically stated that guns seized were not in a working condition and he, in his discretion, found that no purpose would be served by sending the same to the ballistic expert for his opinion. No further question was put to the investigating officer in cross-examination to find out whether despite the guns being defective the fire pin was in order or not. In the presence of convincing evidence of two eyewitnesses and other attending circumstances we do not find that the non-examination of the expert in this case has, in any way, affected the creditworthiness of the version put forth by the eyewitnesses.”

[Gulab v. State of Uttar Pradesh, 2021 SCC OnLine SC 1211, decided on 09.12.2021]


For Appellant: Advocate S Mahendran, nominated by the SCLSC

For State: AAG Diwakar with Advocate Ruchira Goel

*Judgment by: Justice Dr. DY Chandrachud

Op EdsOP. ED.


Mankind and environment are interlinked and dependent to each other. The environment degradation has affected the current human generation radically and has posed the threat of the future generation as well. The worldwide situation of the health and expenses on health indicates the need of the legislative measure to save the environment in order to prevent most of the health issues. The current national level laws for sustainable development have jurisdiction of the limited territorial area and international law is required to protect the planet as a whole. The law should criminalise the damage to the environment and also promote its sustainable use. The sustainable use of environment is one thing and restoration of it in the same state is another. The need of hour is to make such developments that help to escalate the economy along with environment stability. The consideration of ecocide as an international crime is the single most powerful measure due to enlarged loss of biodiversity around the world and lack of reversing technique to compensate the system failure which helps to emphasise that the security of our planet must be guaranteed on an international scale.

Need of considering ecocide as international crime

The world leaders at UN Conference on Sustainable Development held in Stockholm in June 2022, to stress upon the binding principles and rules for consideration of ecocide as crime at ICC[1].

The first international conference on environment issues named UN Stockholm Conference held in 1972 for tackling the concerns regarding environmental degradation issues[2]. International organisations are weighing in with expert publications such as the International Energy Agency’s “Net Zero by 2050”[3] Report serving as a reminder that the clock is ticking towards the targets set by the Paris Agreement and the IPCC’s “Special Report on Global Warming of 1.5°C”[4].

It was first used in 1970, when Professor Arthur W. Galston coined the term[5] to describe the effects of the use of Agent Orange by the US in Vietnam. Galston proposed an international agreement to ban ecocide at the time. It was subsequently considered for inclusion as an additional crime in early drafts of what became the Rome Statute of the International Criminal Court (ICC), alongside the international crimes prosecuted at the Nuremburg trials (war crimes, genocide, crimes against humanity), but was ultimately excluded.

The population size of mammals, birds, fish, amphibians and reptiles have dropped by 68% on an average globally, and as much as 94% for Latin America as per the recent Report of Living Planet by WWF[6].

Similarly, the latest State of the World’s Plant and Fungi Report[7] led by the Royal Botanic Gardens, Kew, shows that 39% of the all plants and species– about 140,000 – face extinction[8] in the coming decades, with the degradation of natural resources and ecosystems the primary cause. As recently shown by the first UN Environment Programme synthesis report[9] and the first joint IPCC/IPBES Report[10], biodiversity loss and the climate emergency pose severe threats to humanity. Unlawful environment damage caused by international companies in low income, biodiverse countries further risks accentuating systematic injustice and global inequalities. Protecting nature is necessary to address biodiversity loss and the climate crisis simultaneously[11].

Analysis of the definitions and the proposed draft

The idea is not new, being first mooted by late Swedish Prime Minister Olof Palme. He had tried to push the ecocide idea at the 1972 environmental conference in Stockholm.[12]

Prof. Philippe Sands of the University College London, also a Queen’s Counsel was quoted by The Daily as saying:

“The four other crimes all focus exclusively on the well being of human beings. This one of course does that but it introduces a new non-anthropocentric approach, namely, putting the environment at the heart of international law, and so that is original and innovative. For me the single most important thing about this initiative is that it’s part of that broader process of changing public consciousness, recognising that we are in a relationship with our environment, we are dependent for our well-being on the well-being of the environment and that we have to use various instruments, political, diplomatic but also legal to achieve the protection of the environment.”[13]

In 2010, lawyer and environmental campaigner Polly Higgins lobbied the UN to create an international crime of ecocide. Although the UN rejected her argument, in 2016 the ICC said it would assess instances of environmental destruction as “crimes against humanity”.[14]

Corporate and State responsibility is also excluded under the Rome Statute. Meaning, corporations and States that cause water and air pollution or participate in illegal deforestation and cause oil spills during peacetime cannot be prosecuted for their environmental damage. Clearly, ICC crimes do not place any legal restrictions on harms that occur during times of peace.

The ICCs Rome Statute further defines crimes against humanity as “acts committed as part of a widespread systematic attack directed against any civilian population”. For many, the definition is too narrow to include ecocide as triable by the ICC.

Recently on 22-6-2021 a group of lawyers defined ecocide as “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and widespread or long-term damage to the environment being caused by those acts”.[15]

  1. … “Wanton” means with reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated;
  2. “severe” means damage which involves very serious adverse changes, disruption or harm to any element of the environment, including grave impacts on human life or natural, cultural or economic resources;
  3. “widespread” means damage which extends beyond a limited geographic area, crosses State boundaries, or is suffered by an entire ecosystem or species or a large number of human beings;
  4. “long-term” means damage which is irreversible or which cannot be redressed through natural recovery within a reasonable period of time;
  5. “environment” means the earth, its biosphere, cryosphere, lithosphere, hydrosphere and atmosphere, as well as outer space.[16]

The definition provides two thresholds, first being the severe and either widespread or long term and secondly, the act is unlawful or wanton. Further, the commission of an offence will not arise merely from the pollution or damage to the environment. But from either the wilful omission of the safety protocols or having knowledge of the damage that will be caused.

Further, the mens rea definition given under Article 30 of the Rome Statute was considered too narrow to cover the severe and widespread or long-term damage to the environment[17].

The aim of the draft is to make the rising environment related issues punishable in order to prevent its further damage. Also the environment protection is directly linked to the protection of mankind and the planet in general.

National and international stance on environment protection

Various national and international case laws highlight that the need is to consider environment preservation and economic development hand in hand. The right to safe, clean and healthy environment has been included under the fundamental right of right to life which shows that the importance of environment and life are equally important.

In May 2021, the ruling of a court in the Netherlands ordered Royal Dutch Shell to cut its emissions by 45 per cent by 2030. In the same week, the Federal Court in Australia ruled that the Minister for the Environment owes a duty of care to safeguard Australian children from the impacts of climate change. Courts around the world are also increasingly hearing air pollution cases, pressuring governments to comply with legal limits.

One of the reasons for this is citizens increasingly becoming aware of and exercising their human rights to a clean environment. Judges are also more aware of the critical role they play in climate and environmental adjudication, with increased capacities in this space.

State of T.N. v. Hind Stone[18]

  1. Rivers, forests, minerals and such other resources constitute a nation’s natural wealth. These resources are not to be frittered away and exhausted by any one generation. Every generation owes a duty to all succeeding generations to develop and conserve the natural resources of the nation in the best possible way. It is in the interest of mankind. It is in the interest of the nation.[19]

T.N. GodavarmanThirumulpad v. Union of India[20]

  1. … As was observed by this Court in M.C. Mehta v. Kamal Nath[21] our legal system based on English common law includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. The public at large is the beneficiary of the seashore, running waters, air, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.

 Jitendra Singh v. Ministry of Environment[22]

  1. … Water bodies, specifically, are an important source of fishery and much needed potable water. Many areas of this country perennially face a water crisis and access to drinking water is woefully inadequate for most Indians. Allowing such invaluable community resources to be taken over by a few is hence grossly illegal.

Aim behind introduction of ecocide

 The aim of the draft[23] is to include ecocide as crime along with already existing four specific types of criminal acts:  genocide, war crimes, crimes against humanity and crimes of aggression.

The environment will surely have the catastrophic consequences due the emission of greenhouse gases and the destruction of ecosystems at current rates on the planet and the environment as the conclusion drawn by the scientific evidences.

“Thus with political, diplomatic and economic initiatives, international law has a role to play in transforming our relationship with the natural world, shifting that relationship from one of harm to one of harmony.”

Currently, crimes that harm the environment are only internationally criminal during times of armed conflict. Article 35(3) of Additional Protocol I[24] maintains that “destruction of the natural environment may not be used as a weapon”. To include the intentional crimes which affect and damage the environment adversely are also required to be included.[25]


 The inclusion of ecocide as fifth international crime holds great significance as it carries along with it various related advantages. Firstly, environment will gain its lost importance which has been sidelined by the greedy human kind which is exploiting it continuously to explore more and more economic advantages. Secondly, member countries may get inspired and bring change in their national criminal laws which will boost the strictness of the crime and protection of the environment. Thirdly, it will help the environment law crimes that fall outside national laws and cannot be included in already existing four international law crimes.[26]


 The need of the present technically developed society which is continuously craving for economic benefits is to make environment degradation a crime and doer a criminal. The continuing exploitation of the environment has to be stopped otherwise end of the planet is near as daily news reports states the fires in big forests, melting of glacier, Covid-19 as some reports state it as a bio weapon. Thus, the proposal and the draft is required to be accepted by the international authorities and every country should try to be its signatory.

* 4th year student, National Law University of Study and Research in Law, Ranchi.

[1]Ministry of Environment Affairs, “Stockholm+50”, (The Government Offices of Sweden, 2022), available at<https://www.government.se/government-policy/stockholm50/>, visited on 30-6-2021.

[2] United Nations, United Nations  Conference  on the  Human Environment,  5-16  June , 1972,  Stockholm,  Environment  and Sustainable Development, available at<https://www.un.org/en/conferences/environment/stockholm197>, visited on 30-6-2021.

[3]IEA (2021), Net Zero by 2050, Paris, available at<https://www.iea.org/reports/net-zero-by-2050>, visited on 30-6-2021.

[4] The Intergovernmental Panel on Climate Change (IPCC), Special Report on Global Warming of 1.5°C, <https://www.ipcc.ch/sr15/>, visited on 30-6-2021.

[5]Ecocide Law, History, available at<https://ecocidelaw.com/history/>, visited on 30-6-2021.

[6]The Royal Botanic Gardens, Kew,State of the World’s Plants and Fungi,(2020) <https://www.kew.org/science/state-of-the-worlds-plants-and-fungi>,visited on 30-6-2021.

[7]The Royal Botanic Gardens, Kew, State of the World’s Plants and Fungi, (2020) https://www.kew.org/science/state-of-the-worlds-plants-and-fungi, visited on 30-6-2021.

[8]Eimear Nic Lughadha, et al., Extinction Risk and Threats to Plants and Fungi, 29-9-2020, available at <https://doi.org/10.1002/ppp3.10146>, visited on 30-6-2021.

[9] United Nations Environment Programme, Making Peace with Nature, Report, 18-2-2021, available at <https://www.unep.org/resources/making-peace-nature>,visited on 30-6-2021.

[10]IPBES, Launch of IPBES-IPCC Co-Sponsored Workshop Report on Biodiversity and Climate Change, 10-6-2021, available at<https://www.ipbes.net/events/launch-ipbes-ipcc-co-sponsored-workshop-report-biodiversity-and-climate-change>,  visited on 30-6-2021.

[11]Alexandre Antonelli and Pella Thiel, Ecocide Must be Listed alongside Genocide as an International Crime, <https://www.theguardian.com/environment/commentisfree/2021/jun/22/ecocide-must-be-listed-alongside-genocide-as-an-international-aoe>, visited on 30-6-2021.

[12]A Law for Ecocide, 26-6-2021, available at<https://www.indialegallive.com/column-news/a-law-for-ecocide/>, visited on 30-6-2021.

[13]Sujit  Bhar, A Law for Ecocide, 26-6-2021, available at<https://www.indialegallive.com/column-news/a-law-for-ecocide/>,visited on 30-6-2021.

[14]John Vidal and Owen Bowcott, ICC Widens Remit to Include Environmental Destruction Cases, The Guardian, 15-9-2016, available at<https://www.theguardian.com/global/2016/sep/15/hague-court-widens-remit-to-include-environmental-destruction-cases>, visited on 30-6-2021.

[15]Siddique, Haroon,  Legal Experts Worldwide Draw up “Historic” Definition of Ecocide,  The Guardian, 22-6-2016, available at <https://www.theguardian.com/environment/2021/jun/22/legal-experts-worldwide-draw-up-historic-definition-of-ecocide>,visited on 30-6-2021.

[16]Stop Ecocide Foundation, Independent Expert Panel for the Legal Definition of Ecocide Commentary and Core Text, June 2021, available at <https://static1.squarespace.com/static/5ca2608ab914493c64ef1f6d/t/60d7479cf8e7e5461534dd07/1624721314430/SE+Foundation+Commentary+and+core+text+revised+%281%29.pdf>, visited on 30-6-2021.

[17] Stop Ecocide Foundation, Independent Expert Panel for the Legal Definition of Ecocide Commentary and CoreText, June 2021, available at <https://static1.squarespace.com/static/5ca2608ab914493c64ef1f6d/t/60d7479cf8e7e5461534dd07/1624721314430/SE+Foundation+Commentary+and+core+text+revised+%281%29.pdf>, visited on 30-6-2021.

[18] State of T.N. v. Hind Stone, (1981) 2 SCC 205, 212.

[19](1981) 2 SCC 205, 212.

[20](2002) 10 SCC 606, 638.

[21](1997) 1 SCC 388.

[22]2019 SCC OnLine SC  1510. 

[23]Haroon Siddique,  Legal Experts Worldwide Draw up “Historic” Definition of ecocide, The Guardian, 22-6-2021, available at<https://www.theguardian.com/environment/2021/jun/22/legal-experts-worldwide-draw-up-historic-definition-of-ecocide>,visited on 30-6-2021.

[24]International Committee of the Red Cross, Protocol Additional to the Geneva Conventions of 12-8-1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8-6-1977, available at

<https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=0DF4B935977689E8C12563CD0051DAE4>,visited on 30-6-2021.

[25]Racheal Tillman, Coalition of Lawyers Push for “Ecocide” to be an International Crime, Spectrum News 1, 24-6-2021,  available at<https://spectrumlocalnews.com/nys/central-ny/news/2021/06/24/ecocide-international-criminal-court-proposal-lawyer>,visited on 30-6-2021.

[26]Mélissa Godin, Lawyers are Working to Put “Ecocide” on Par with War Crimes. Could an International Law Hold Major Polluters to Account? 19-2-2021, available at<https://time.com/5940759/ecocide-law-environment-destruction-icc/>,visited on30-6-2021.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: Sophy Thomas, J., quashed proceedings against the petitioner who was charge sheeted for being under the influence of alcohol during his visit to police station for identifying an accused. The Bench stated,

“Consuming liquor in a private place without causing nuisance or annoyance to anybody will not attract any offence”

Facts of the Case

The petitioner, a Village Assistant was called to the Police Station in order to identify an accused, against whom a case was registered under Section 353 of IPC and Section 20 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act.

The grievance of the petitioner was that since that accused was a stranger to him, he could not identify him, and only because of that fact, Police had charge sheeted him under Section 118(a) of the Kerala Police Act alleging that he was under the influence of alcohol at that time.

While the FIR suggested that the petitioner was intoxicated and was unable to control himself and the 161 statements of the witnesses were to the effect that the petitioner challenged the Police and committed rioting inside the Police Station.

Findings of the Court

In order to attract an offence punishable under Section 118(a) of the KP Act, a person should be found in a public place in an intoxicated manner or rioting condition incapable of looking after himself.

The Bench opined that even if it was taken for argument sake that the petitioner had consumed alcohol at that time, the available records did not show that the petitioner was sent to doctor for a clinical examination, or to show that his blood test was conducted to prove that he was intoxicated.

The records show that he was subjected to Alco-quant test using Alcometer. All the witnesses are Police Officers except one Saseendran, who was the accused arrested under the Sand Act, to identify whom the petitioner was called to the Police Station.

The meaning of the word ‘intoxicated’ as given in Advanced Law lexicon by P.Ramanatha Aiyar is that “a man is intoxicated whenever he is so much under the influence of spirituous or intoxicating liquors that it so operates upon him, that it so affects his acts or conduct or movement, that the public or parties coming in contact with him could readily see and know that it was affecting him in that respect.”

The Bench observed, the expression ‘rioting condition’ used in Section 118 (a) would mean that the person was behaving in a way that is violent and/or not in control. While the condition ‘incapable of looking after himself’ envisaged under Section 118 (a) of the KP Act, means weakening of self-control, weakening of self-awareness, and incapacity to know or realize the consequences of the action etc are relevant factors. Similarly, incoherent speech, unsteady gait, staggering etc., and the manner in which he conducts himself towards fellow-men were also relevant factors to hold whether the accused person was in proper control of himself.


Having observed various terms used against the petitioner with regard to the particular case against him, the Bench held that even if it was taken for argument sake that the petitioner had consumed alcohol, the available facts and materials were not sufficient to suggest that, he was not able to control himself or he committed rioting inside the Police Station causing nuisance.

Moreover, the petitioner had reached Police Station, only because he was asked to be present there. Hence, the petition was allowed and the proceedings against the petitioner were quashed. The petitioner was directed to be discharged. [Salim Kumar B.S. v. State of Kerala,2021 SCC OnLine Ker 4136, decided on 10-11-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioner: Advocate I.V.Pramod, Advocate K.V.Sasidharan and Advocate Saira Souraj P.

For the Respondent: Devi Shri R., Public Prosecutor

Op EdsOP. ED.

The incarceration of an accused pending trial is considered necessary in the interests of justice when there is a reasonable apprehension that he might attempt to subvert the case against him by tampering with the evidence, by intimidating the witnesses, or where he poses a flight risk. In absence of such apprehensions, it is considered judicious to release the accused from custody on bail. In Sanjay Chandra v. CBI[1], the Supreme Court held that the object of bail is neither punitive nor preventative, it is merely to secure the appearance of the accused at the trial by a reasonable amount of bail. The Court further held that the deprivation of liberty must be considered a punishment unless it is absolutely necessary in the interests of justice.

This otherwise laudable approach is not very practicable in cases of offences that are of a continuing nature. The concept of an offence of a continuing nature was explained by the Supreme Court in State of Bihar v. Deokaran Nenshi

“A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. … The question whether a particular offence is a ‘continuing offence’ or not must, therefore, necessarily depend upon the language of the statute which creates that offence, the nature of the offence and the purpose intended to be achieved by constituting the particular act as an offence.

… the distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues, and therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all.”[2]

Thus, as distinguished from general offences which are of a standalone nature, in a continuing offence the commission or consequences of such a crime is not affected over a small period of time or on a single occasion but are rather spread out over a considerable period of time. An example of such an offence is money laundering.

Thus, in the case of a continuing offence, it is difficult to ascertain the conclusion or termination of the criminal act and its object. For example, in the case of money laundering, while the initial part of the offence is over quickly, the proceeds of the illegal act can theoretically be utilised over an indefinite period of time. It is in this background that releasing on bail an accused who is charged with committing an offence of a continuing nature becomes problematic since it is highly probable that he will attempt to frustrate the case against him especially since the criminal act would still be in progress. 

The need for a further classification

The primary intention behind treating “economic offences” as a separate class of crime stems from the fact that compared to a regular offence which is generally directed towards a particular person or section of the society, economic offences affect and harm the populace at large by impairing the economic stability and well-being of the nation. In Y.S. Jagan Mohan Reddy v. CBI, the Supreme Court explained the nature of economic offences and went on to hold that: 34. … The economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country.[3]

The need for a separate classification further stems from the distinct treatment of offenders under certain statutes, especially those pertaining to economic offences. These special laws follow a different approach towards bail and act as a further barrier between the accused and his quest for liberty by imposing additional obligations, popularly referred to as the “twin conditions” for bail. We refer to Section 45[4] of the Prevention of Money-Laundering Act, 2002 (PMLA) to better understand the concept of twin conditions for bail:

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973[5], no person accused of an offence under this Act shall be released on bail or on his own bond unless—

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

These twin conditions lay down a special duty upon the court by making it mandatory to ensure that the Public Prosecutor is allowed a chance to oppose the application for release on bail and where the Public Prosecutor opposes the bail petition, the court has to be prima facie satisfied that the accused is not guilty of the offences charged with and that he shall not commit any further offences while on bail. Such satisfaction of the court must be recorded in writing in the order granting bail. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence.[6]

These twin conditions are in addition to the conditions as stipulated under the Code of Criminal Procedure (CrPC) and form a part of multiple statutes dealing with special offences such as the Narcotic Drugs and Psychotropic Substances Act, 1985[7] (NDPS), Terrorist and Disruptive Activities (Prevention) Act, 1987[8] (TADA), Companies Act, 2013[9], Maharashtra Control of Organised Crime Act, 1999[10] (MCOCA) and Unlawful Activities (Prevention) Act, 1967[11] (UAPA).

The great schism in bail jurisprudence

The origins of the distinct treatment of economic offences vis-à-vis general offences at the stage of bail can be traced back to a batch of petitions that were heard by the Supreme Court back in 2013[12].  In Y.S. Jagan Mohan Reddy v. CBI[13], the Supreme Court while dealing with the bail applications for offences under the Prevention of Corruption Act[14] (PC Act) discussed in length the concept of an economic offence and its ramifications on the society at large:

  1. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail….
  2. 35. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations.[15]

The landmark judgment delivered in Jagan Mohan Reddy[16]  has been pivotal in changing the approach from bail as rule to custody as rule in cases concerning economic offences. The judicial approach laid down in Jagan Mohan Reddy[17] was thereafter followed by the Supreme Court in Gautam Kundu v. Directorate of Enforcement[18] wherein the petitioners who were charged with offences under the Securities and Exchange Board of India Act, 1992[19] (SEBI) and the PMLA Act had challenged the order passed by the Calcutta High Court denying them bail. The Supreme Court relying on the precedent laid down in Jagan Mohan Reddy[20] upheld the order passed by the High Court. The Court further went on to discuss the rationale behind the distinct treatment of economic offenders—

There is no doubt that PMLA deals with the offence of money laundering and Parliament has enacted this law as per commitment of the country to the United Nations General Assembly. PMLA is a special statute enacted by Parliament for dealing with money laundering.

In State of Bihar v. Amit Kumar[21], the Supreme Court while dealing with a matter concerning large scale fraud in intermediate examinations in Bihar reiterated the law laid down in Jagan Mohan Reddy[22] and held that—

It is well settled that socio-economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. Usually, socio-economic offence has deep-rooted conspiracies affecting the moral fibre of the society and causing irreparable harm, needs to be considered seriously.

When the seriousness of the offence is such, the mere fact that he was in jail for however long time should not be the concern of the courts. We are not able to appreciate such a casual approach while granting bail. The government’s interest in preventing crime by arrestees is both legitimate and compelling. Although “bail is the rule and jail is an exception” is well established in our jurisprudence, we have to measure competing forces present in facts and circumstances of each case before enlarging a person on bail.

While this distinct treatment of economic offenders while granting bail has commenced after the judicial pronouncement in Jagan Mohan Reddy[23], the twin conditions for bail as laid down by Section 45 of the PMLA are not exactly new and similar provisions form a part of multiple statutes. These twin conditions are generally a part of legislations aimed at dealing with terrorism and organised crime. In Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra[24], Supreme Court upheld the validity of sub-section (4) of Section 21 of the MCOCA which imposed similar twin conditions as under PMLA for grant of bail.

… the validity of sub-section (4) of Section 21 of the Act must be interpreted keeping in view the aforementioned salutary principles. Giving an opportunity to the Public Prosecutor to oppose an application for release of an accused appears to be reasonable restriction.

Rationale behind the distinct treatment of economic offenders

Economic offences unlike regular offences are not standalone in nature and they act as facilitators for other crimes. They help drain public funds, accelerate economic inequalities and can be used to undermine and destabilise nations. It must be appreciated that the stringent conditions as laid down under statutes such as PMLA are in line with the standards laid down by international bodies such as the United Nations General Assembly and the Financial Action Task Force. To understand the rationale behind the harsh treatment meted out to economic offenders by a judicial system which has always stood up against curtailing the liberty of even accused persons, it is important to refer to some of the landmark judgments delivered by the Supreme Court on this issue.

The approach of the judiciary towards economic offenders can be summed up by the observations made by the Supreme Court in State of Gujarat v. Mohanlal Jitamalji Porwal wherein the Court laid down that the:

  1. 5. … entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community.[25]

The Court in this case recognised the long-term ramifications of economic offences and laid down the basis for the distinct treatment of such offenders.

A similar approach was taken by the Supreme Court in P. Chidambaram v. Directorate of Enforcement[26] wherein the Court laid down that:

“Power under Section 438 CrPC being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of the society. The privilege of the pre-arrest bail should be granted only in exceptional cases… Exercising the power to grant anticipatory bail in cases of the Prevention of Money-Laundering Act would be to scuttle the statutory power of the specified officers to arrest which is enshrined in the statute with sufficient safeguards… Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation.”

The Court further held that a delicate balance is required to be established between safeguarding the personal liberty of an individual and the societal interest, and refusal to grant anticipatory bail cannot be termed as a denial of the rights conferred upon the accused under Article 21[27] of the Constitution of India. In this case, the Court also recognised that money laundering poses a serious threat not only to the economy of the country but also to its integrity and sovereignty.

A similar view was taken by the Court in Serious Fraud Investigation Office v. Nittin Johari[28] where the Court while dealing with a bail application under Section 212(6)[29] of the Companies Act, 2013, which imposes similar twin conditions for bail, once again reiterated that economic offences constitute a class apart and need to be viewed seriously and considered as grave offences affecting economy of country as a whole and thereby posing serious threat to the financial health of the country.

Cases involving economic offences are among a small minority of crimes where the court has regularly overruled fears associated with custodial interrogation and has gone on to favour incarceration of the accused to facilitate a fruitful investigation by the authorities. In State v. Anil Sharma[30] where an ex-minister was charged with offences under the PC Act and had been granted anticipatory bail by the Himachal Pradesh High Court, Supreme Court overturned the order and held that:

  1. … custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438[31] of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful information and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual.

 A similar view was taken by the Supreme Court recently in CBI v. Ramendu Chattopadhyay[32] wherein the accused who was charged with playing a key role in the promotion of a chit fund scam in the State of Orissa was remanded to custody by cancelling the order passed by the High Court of Orissa granting him interim bail.

At this juncture, it is pertinent to mention that statutes such as the PMLA also function under a reverse burden of proof system where the initial burden of proving that the accused is not guilty of the offences that he is charged with lies on him and not the prosecution and until he discharges such burden, the court shall presume him to be guilty. This acts as a further rider against the grant of bail in cases of economic offences as it goes against the cardinal principle of criminal jurisprudence which treats an accused as innocent until proven otherwise. In the case of regular offences, bail is granted to the accused as a general rule as he is presumed to be innocent while no such presumption exists in favour of economic offenders. In Rohit Tandon v. Directorate of Enforcement[33], Supreme Court observed that the provisions of Section 24[34] of the PMLA provide that unless the contrary is proved, the authority or the Court shall presume that proceeds of crime are involved in money laundering and the burden to prove that the proceeds of crime are not involved, lies on the appellant.

In Union of India v. Hassan Ali Khan[35] it was held that allegations may not ultimately be established, but having been made, the burden of proof that the monies were not the proceeds of crime and were not, therefore, tainted shifted on the accused persons under Section 24 of the PMLA. The same proposition of law was reiterated and followed by the Orissa High Court in Janata Jha v. Directorate of Enforcement.[36]

It is also pertinent to mention herein that the precedents cited hereinabove do not create an absolute bar against the grant of bail and the Supreme Court has categorically ruled that merely because the allegations against an accused are of grave economic offences, it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the legislature nor does the bail jurisprudence provide so.[37]


From the discussion hereinbefore, it is apparent that the departure from the basic jurisprudence of bail being the norm and jail being the exception to a scenario where custody has become the default has arisen from a realisation of the gravity of economic offences whose ramifications are far-reaching and extend over a prolonged period of time. In a recent judgment, the Delhi High Court held that “… economic offences are offences which corrode the fabric of democracy and are committed with total disregard to the rights and interest of the nation and are committed by breach of trust and faith and are against the national economy and national interest….”[38] These observations made by the High Court are in line with the views expressed by the Supreme Court holding economic offenders to be “a menace to the society”. [39]

Keeping in mind the consequences of economic offences that would befall the society, the courts have held them to be of a distinct class and under the category of grave offences which can threaten the democratic set-up and the national economy. Hence, appreciating the sensitivity of the nature of allegations in cases involving economic offences, the courts have justifiability departed from the general rule involved in granting of bail and have put the societal interests in preventing and punishing economic offenders at a higher pedestal than the rights of an accused facing incarceration before conviction.

Advocate, Calcutta High Court.

[1] (2012) 1 SCC 40.

[2] (1972) 2 SCC 890.

[3] (2013) 7 SCC 439.

[4] <http://www.scconline.com/DocumentLink/CSH9fgCN>.

[5] <http://www.scconline.com/DocumentLink/y587uE3Q>.

[6] Collector of Customs v. Ahmadalieva Nodira, (2004) 3 SCC 549.

[7] <http://www.scconline.com/DocumentLink/206RMMRJ>.

[8] <http://www.scconline.com/DocumentLink/xKZQnZ4c>.

[9] <http://www.scconline.com/DocumentLink/A5aqjfDv>.

[10] <http://www.scconline.com/DocumentLink/1iGLPK20>.

[11] <http://www.scconline.com/DocumentLink/M11S873T>.

[12] Y.S. Jagan Mohan Reddy v. CBI, (2013) 7 SCC 439, Nimmagadda Prasad v. CBI, (2013) 7 SCC 466

[13] (2013) 7 SCC 439

[14] <http://www.scconline.com/DocumentLink/zo935L02>

[15] (2013) 7 SCC 439.

[16] (2013) 7 SCC 439.

[17] (2013) 7 SCC 439.

[18] (2015) 16 SCC 1.

[19] <http://www.scconline.com/DocumentLink/mulMMe8P>.

[20] (2013) 7 SCC 439.

[21] (2017) 13 SCC 751.

[22] (2013) 7 SCC 439.

[23] (2013) 7 SCC 439.

[24] (2005) 5 SCC 294.

[25] (1987) 2 SCC 364.

[26] (2019) 9 SCC 24.

[27] <http://www.scconline.com/DocumentLink/VN1u87S9>.

[28] (2019) 9 SCC 165.

[29] <http://www.scconline.com/DocumentLink/jeRCN9VL>.

[30] (1997) 7 SCC 187.

[31] <http://www.scconline.com/DocumentLink/i3F1S08A>.

[32] (2020) 14 SCC 396.

[33] (2018) 11 SCC 46.

[34] <http://www.scconline.com/DocumentLink/6bbcTlES>.

[35] (2011) 10 SCC 235.

[36] 2013 SCC OnLine Ori 619.

[37] P. Chidambaram v. Directorate of Enforcement, (2020) 13 SCC 791.

[38] Malvinder Mohan Singh v. State, 2020 SCC OnLine Del 2001

[39] Enforcement Officer v. Bher Chand Tikaji Bora, (1999) 5 SCC 720.

Patna High Court
Case BriefsHigh Courts

Patna High Court: Noticing discrepancies in the Trial the Division Bench of Ashwani Kumar Singh and Anil Kumar Sinha, JJ., acquitted a woman accused of killing a 2 year old kid.

The appellant was alleged to have killed 2 year old child of the defendant whose body was found rolled in a gendra (a locally made mattress of textile in Bihar) and a plastic bag. The whole case of prosecution was based on circumstantial evidence, i.e., gendra in question belonged to the accused, frequent quarrel between accused and parents of the deceased, sniffer dog going to the house of the accused etc. The Trial Court found the accused guilty and convicted him for the offences punishable under Sections 302 and 201 of Penal Code, 1860.

Was admission made by son of the accused admissible?

Regarding the confession made by the son of the appellant was concerned, wherein he had, while in custody of IO, admitted that his mother had killed the victim boy, the Bench stated that statements made by an accused before the police amounts to confession are barred under Section 25 of the Evidence Act, 1872 and an extra-judicial confession by itself is a very weak type of evidence.

Can a person be convicted of a crime based on the evidence gathered by the police sniffer dog?

Noticing that the Trial Court had convicted the appellant on the evidence of a sniffer dog, the Bench opined, though the police was allowed to use the services of a sniffer dog for investigation, but merely because the dog entered the house of the appellant in her absence, the same could not be treated to be evidence sufficient enough to establish the guilt of the appellant and the appellant could not be convicted only on the basis of evidence gathered by the police sniffer dog.

Moreover, the circumstance that the sniffer dog entered the house of the appellant after smelling the place where the body of the deceased was thrown was not brought to the notice of the appellant while examining her by the Trial Court under Section 313 of the CrPC. Hence, the said circumstance could not have been taken into consideration as the accused was not granted opportunity to explain the circumstances. The Bench said,

If the questions on incriminating circumstances have been ignored by the trial court, then it is an illegality and amounts to an abuse of the process of Court.

Hence, circumstances which were never put to the appellant while examining her under Section 313 of the CrPC could not have been used for convicting and sentencing her.

Findings and Conclusion

Opining that to sustain a conviction on circumstantial evidence, the factual circumstances should be so established and only inference to the said circumstances must be that of the guilt of the accused, incompatible with any other hypothesis, the Bench took note that the gendra, which was seized by the police was never put before the Magistrate for an identification parade. Moreover, the Bench remarked, “gendra is a common item which is found in every house.”

Hence, holding that there was no cogent evidence to suggest that the gendra in which the body of the deceased was rolled belonged to the appellant, the Bench opined that the prosecution had miserably failed to prove each of the links in the chain of circumstances beyond reasonable doubts against the appellant.

Accordingly, the Trial Court’s order was set aside and the appellant was acquitted of the charges levelled against her. [Soni Devi v. State of Bihar, 2021 SCC OnLine Pat 2289, decided on 15-09-2021]

Kamini Sharma, Editorial Assistant has reported this brief.


For the Appellant: Anirudh Kumar Sinha, Advocate and Santosh Kumar, Advocate

For the Respondent-State: Ajay Mishra, APP

Case BriefsSupreme Court

Supreme Court: The bench of KM Joseph* and PS Narsimha, JJ has reiterated the test laid down for invoking the power under Section 319 CrPC and has held that only when strong and cogent evidence occurs against a person from the evidence the power under Section 319[1] CrPC should be exercised. The power cannot be exercised in a casual and cavalier manner.

The Court took note of the test laid down in Hardeep Singh v. State of Punjab, (2014) 3 SCC 92, wherein it was held that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C.

It was further explained that in Section 319 Cr.P.C. the purpose of providing if ‘it appears from the evidence that any person not being the accused has committed any offence’ is clear from the words “for which such person could be tried together with the accused.” The words used are not ‘for which such person could be convicted’. There is, therefore, no scope for the court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused.

“105. Power under Section 319 Cr.P.C. is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.”

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[Ramesh Chandra Srivastava v. State of UP, 2021 SCC OnLine SC 741, decided on 13.09.2021]


For appellant: Advocate Gaurav Srivastava,

For State: Advocate Adarsh Upadhyay,

For respondent 2: Advocate Sansriti Pathak

[1] 319. Power to proceed against other persons appearing to be guilty of offence.—(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under sub-section (1) then—

(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.

*Judgment by: Justice KM Joseph

Know Thy Judge| Justice K.M. Joseph

Case BriefsSupreme Court

Supreme Court: In a case where a man was convicted for killing his wife on the suspicion of her infidelity and was sentenced to undergo rigorous imprisonment for life, the bench of L. Nageswara Rao and BR Gavai, JJ has refused to go into the question of propriety of specifying rigorous imprisonment while imposing life sentence and has held that imprisonment for life is equivalent to rigorous imprisonment for life.

While there are several judicial precedents where the Supreme Court has held that imprisonment for life has been regarded as equivalent to rigorous imprisonment for life, the verdict in Naib Singh v. State of Punjab, (1983) 2 SCC 454 makes this position amply clear.

In the aforesaid case, the Petitioner was originally sentenced to death for committing an offence of murder under Section 302 IPC. Later, the death sentence was commuted to imprisonment for life by the Government of Punjab. After having undergone sentence of 22 years, Naib Singh filed a Writ Petition under Article 32 of the Constitution of India challenging his continued detention. One of the points argued by the Petitioner relates to sentence of imprisonment for life not to be equated to rigorous imprisonment for life.

The Court, in the said judgment, held,

“… in view of the authoritative pronouncements made by the Privy Council and this Court in Kishori Lal case [Kishori Lal v. Emperor, AIR 1945 PC 64 : 72 IA 1 : 219 IC 350] and Gopal Godse case [Gopal Vinayak Godse v. State of Maharashtra, AIR 1961 SC 600 : (1961) 3 SCR 440 : (1962) 1 SCJ 423 : (1961) 1 Cri LJ 736] respectively, it will have to be held that the position in law as regards the nature of punishment involved in a sentence of imprisonment for life is well settled and the sentence of imprisonment for life has to be equated to rigorous imprisonment for life.”

[Md. Alfaz Ali v. State of Assam, 2021 SCC OnLine SC 719, order dated 14.09.2021]

For Petitioner: Advocate Ajay Marwah

For State: Advocate Debojit Borkakati

Op EdsOP. ED.

The substantive legal provision dealing with extraterritorial jurisdiction under the Penal Code, 1860[1] (IPC) are Section 3[2] and Section 4[3] and its procedural counterpart under the Criminal Procedure Code, 1973 (CrPC) is Section 188 CrPC[4].

The proviso to Section 188 casts an obligation to obtain previous sanction of the Central Government for inquiry and trial of offences committed outside India. It is a procedural impediment while conducting criminal trial under Section 188 CrPC. The rationale behind the same lies in the principle of double jeopardy.

One of the first judgments which discussed the ambit for the term “inquiry” within the meaning of Section 188 CrPC is Sanoop v. State of Kerala[5]. The Court gave a broad interpretation of the word “inquiry” and included certain stages of investigation also (arrest and detention) within its sweep, to attract the sanction requirement under the proviso to Section 188 CrPC. However, this judgment runs contradictory to the jurisprudence constante of the Supreme Court in Ajay Aggarwal  v. Union of India[6], Thota Venkateswarlu v. State of A.P.[7] and  Hardeep Singh v. State of Punjab[8].

A Single-Judge Bench in Remla v. SP of  Police[9]  by relying upon State of W.B. v. Jugal Kishore More[10] ,  Nikka Singh v. State[11]  and Narumal v. State of Bombay[12] , held that the proviso to Section 188 casts an obligation to obtain previous sanction of the Central Government to inquire into and try such person and that Section 188 has a message that for the pre-inquiry stage, no such sanction is needed and since the pre-inquiry stage substantially relates to investigation of the crime, no sanction is required for investigation.

Interpretation of the word “dealt with” under Section 188 CrPC

In order to understand whether sanction will be required under Section 188 CrPC for investigation, the words “dealt with” under Section 188 CrPC need detailed construction. The most significant Supreme Court judgment on this point is Delhi Admn. v. Ram Singh[13]. The Court broadly constructed the words “dealt with” under Section 188 CrPC to include within its sweep not only “inquiry” and “trial” but other aspects also. The words “dealt with” in Section 188 CrPC, must be held to include “investigation” also, apart from “inquiry” and “trial”. It was also held that the “words ‘dealt with’ in the main part cannot be restricted to ‘inquiry’ and ‘trial’ used in the proviso”. Also, on a conjoint reading of Section 188 CrPC and Section 4 IPC, it must cover the procedure relating to investigation and hence the scope and ambit of the main part of Section188 CrPC cannot be controlled by the proviso. In the backdrop of conflicting High Court judgments on this point, the Full Judge Bench of Samaruddin v. Director of Enforcement[14], following Delhi Admn. case[15] upheld  the views rendered in Remla case[16] and in Mohd. Shameer Ali v. State of Kerala[17]

Ambit of “inquiry” under Section 188 CrPC: At what stage of inquiry will the sanction be needed – Post-cognizance or pre-cognizance

The judiciary was embroiled in a huge controversy over the interpretation of the word “inquiry” for attracting the proviso to Section 188 CrPC. After a perusal of rationale rendered in Rabindra Rai v. State of Bihar[18], State of U.P. v. Lakshmi Brahman[19]  and Dalu Gour v. Moheswar Mahato[20] it can be clearly said that the moment the charge-sheet is filed before the court, the inquiry is said to commence under Section 2(g) CrPC[21]. It is not necessary that such inquiry shall commence only after a formal order is passed by the Magistrate. In order to understand what stage of inquiry will attract the proviso of Section 188 CrPC, it is relevant to note four important judgments.

Firstly, in C.V. Padmarajan v. Govt. of Kerala[22], the Court under para 20 held that application of judicial mind to the police report, deciding to take cognizance of offences will certainly be part of the “inquiry” which is barred unless the prior sanction of the Central Government has been obtained under Section 188 CrPC in respect of the offences committed outside India. In other words, the Court held that taking cognizance of an offence will attract the proviso to Section 188 CrPC.

Secondly, in para 27 of Ajay Aggarwal  v. Union of India[23], the Court held that prior sanction under the proviso to Section 188  CrPC is not a condition precedent for taking cognizance of the offence and that if need be, such sanction could be obtained after the trial begins. However, since the offence in this case was committed at Chandigarh in India and not outside India and therefore, Section 188 CrPC was not attracted and hence, is only an obiter dictum which cannot be treated as law laid down by the Supreme Court within the meaning of Article 141 of the Constitution of India[24].

Thirdly, a 3-Judge Bench of the Supreme Court in Thota Venkateswarlu v. State of A.P.[25] has held that bar in the conduct of “inquiry” by the Magistrate Court in relation to an offence committed outside India without obtaining sanction of the Central Government as per the proviso to Section 188 CrPC would apply only in respect of the “post-cognizance inquiries”. The Court by applying “purposive and contextual interpretation” held that only “inquiries” within the meaning of Section 2(g) which are to be conducted after the taking of cognizance and before the framing of the charges alone would come within the zone of prohibition of the proviso to Section 188 CrPC, thus partially overruling Padmarajan case[26].

Fourthly, the 5-Judge Bench in Hardeep Singh v. State of Punjab[27] held that all “inquiries” held after submission of the final report/charge-sheet, including the “inquiry” by the court in the matter of taking cognizance, will be also barred by the proviso to Section 188 CrPC however, the Court made it clear that so long as the above specific legal position in Thota Venkateswarlu case[28] is not specifically overruled by the Supreme Court, it is only to be held that even taking of cognizance is not barred in such cases.

From the abovementioned analysis, it can be said that the Courts have given a restrictive interpretation of the word “sanction” restricting it to post-cognizance stage and not to the investigation. The rationale for the same is twofold:

  • Firstly, as investigation is the very first stage that will determine the flow of criminal proceedings in later stages, the requirement for sanction at the first stage will derail the criminal process in totality. To ensure that investigation is not in any manner fettered by the restriction as per the proviso to Section 188 CrPC and to ensure full freedom on the police to conduct investigation, it is kept outside the zone of prohibition under the proviso to Section 188 CrPC.
  • Secondly, to prevent enormous and unrealistic burdens[29] on the Central Government to take decisions on the question of sanction in each and every case, which may arise in various parts of the country, the Court logically kept investigation outside the requirement of sanction from the Central Government.


Thus, from the above discussion, it can be succinctly said that the bar as per the proviso to Section 188 (requirement of sanction) can be only in relation to conduct of inquiry and trial and the said proviso cannot impose any restriction on the powers of the police to the conduct of investigation into such offences committed outside India. Investigation is kept outside the requirement of sanction of the Central Government under the proviso to Section 188 CrPC.

*3rd year student, BA LLB (Hons.), Maharashtra National Law University, Nagpur. Author can be reached at shreyatripathi.204@gmail.com.

[1] Penal Code, 1860

[2] Section 3 IPC. 

[3] Section 4 IPC. 

[4] Section 188 CrPC.  

[5] 2018 SCC OnLine Ker 1268. 

[6] (1993) 3 SCC 609. 

[7] (2011)  9 SCC 527. 

[8] (2014) 3 SCC 92.

[9] 1992 SCC OnLine Ker 323. 

[10] (1969) 1 SCC 440. 

[11] 1950 SCC OnLine Punj 126. 

[12] 1960 Cri LJ 1674: AIR 1960 SC 1329.

[13] (1962) 2 SCR 694.   

[14] 1999 SCC OnLine Ker 279. 

[15] Supra Note 13.

[16] Supra Note 9.

[17] 2019 SCC OnLine Ker 2778. 

[18] 1983 SCC OnLine Pat 155. 

[19] (1983) 2 SCC 372. 

[20] 1946 SCC OnLine Pat 175.

[21] Section 2(g) CrPC

[22] (2009) 1 ILR Ker 36 : 2009 (1) KHC 65.

[23] (1993) 3 SCC 609. 

[24] Article 141 of the Constitution of India

[25] Supra Note 7.

[26] Supra Note 22.

[27] (2014) 3 SCC 92 

[28] Supra Note 7.

[29]Mohd. Shameer Ali v. State of Kerala, 2019 SCC OnLine Ker 2778, para 34

Op EdsOP. ED.

The evil practice of manual scavenging is still on the table, and is not fully eradicated. Various judicial and executive attempts have been made since decades to exclude this practice from the society, but still people from the lower class are exploited and in return of monetary benefits, their dignity gets discarded. Recently, two petitions were filed in the Karnataka High Court, both concerning with the exclusion and non-compliance of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013[1]. The first petition was filed by High Court Legal Services Committee and the second one by All India Central Council of Trade Union (Karnataka State Unit).

The Karnataka High Court, on December 9 issued some interim directions in All India Council of Trade Unions v. Union of India[2], and the observations made by the court is equally important to draw a line between non-compliance of the Act concerned and how manual scavenger can be restricted accordingly within the state. These directions should not be only confined up to the State of Karnataka but also, other states should follow them as an advisory to tackle the evil practice.

Manual Scavenging: A Crime against Human Dignity

The Preamble to the Act has been structured to deliver some amount of justice to those who have been suffering since ages. The Preamble reads out that – “And whereas it is necessary to correct the historical injustice and indignity suffered by the manual scavengers, and to rehabilitate them to a life of dignity”. But the question of implementation is stuck somewhere beneath the table. In the opening para, the court had rightly made it crystal clear that there is no place for manual scavenging under the Constitutional shelter as it vandalises the trinity of equality, fraternity and liberty. On these lines, it was observed by the court that:

“There can be no dispute that our Constitutional philosophy does not permit any form of manual scavenging. Right of a citizen to live with dignity is an integral part of the fundamental rights guaranteed to the citizens under Article 21 of the Constitution of India. The Preamble of the Constitution shows that the Constitution seeks to protect the dignity of an individual. There can be no dispute that manual scavenging is most inhuman and it infringes the fundamental rights guaranteed under Article 21. If any citizen is forced to do manual scavenging, it will be a gross violation of his fundamental right conferred under Article 21 of the Constitution of India. Under Article 47 of the Constitution of India which is a part of directive principles of the State policy, the state is under an obligation to endeavour to improve the standard of living of its people. Under Article 42 of the Constitution, the State must endeavour for securing just and humane conditions of work.”[3]

Who is a Manual Scavenger?

The court while dealing with the issue on scavenging, had exhaustively dealt with the various important definitions given in the Act. The meaning of manual scavenger has been marked under Section 2(g) which states that a person engaged or employed, at the commencement of this Act or at any time thereafter, by an individual or a local authority or an agency or a contractor, for manually cleaning, carrying, disposing of, or otherwise handling in any manner, human excreta in an insanitary latrine or in an open drain or pit into which the human excreta from the insanitary latrines is disposed of, or on a railway track or in such other spaces or premises, as the Central Government or a State Government may notify, before the excreta fully decomposes in such manner as may be prescribed, and the expression “manual scavenging” shall be construed accordingly”. The definition concerned has been further explained and the explanation reads out that if a person engaged or employed to clean excreta with the help of such devices and using such protective gear, as the Central Government may notify in this behalf, shall not be deemed to be a “manual scavenger”.

The question on insanitary latrine was dealt and it was differentiated with other methods. For instance, the court in para 12 had clarified that – “insanitary latrine” is defined in clause (e) of Section 2. It means a latrine which requires human excreta to be cleaned or otherwise handled manually, either in situ or in an open drain or a pit into which the excreta is discharged before the excreta fully decomposes in such manner as may be prescribed. However, a water flush latrine in railway coaches is cleaned by an employee with the help of a device and by wearing a protective device as may be notified by the Central Government shall not be deemed to be an insanitary latrine.[4]

The Act lays down two specific provisions to restrict and prohibit the construction of sanitary latrines and Section 4 to Section 5, when read together sums up the regulations coupled with prohibitions laid down by the Act itself. The court had summarised the importance of these two provisions:

Para 16: The effect of Sections 4 to 5 can be summarised as under:

(a) there is a complete prohibition on constructing insanitary latrines. All the insanitary latrines constructed after coming into force of the Manual Scavengers Act, have to be either demolished or converted into sanitary latrines by the occupier as defined in clause (j) of Section 2;

(b) there is a complete prohibition on engaging or employing, either directly or indirectly, a manual scavenger. If any person who has been so engaged prior to coming into force of the Act shall stand discharged immediately from any obligation, express or implied, to do manual scavenging; and

(c) if any occupier fails to demolish an insanitary latrine or convert it into a sanitary latrine within the period provided in sub-clause (b) of sub-section (1) of Section 4 (period not exceeding three years from the date of commencement of the Manual Scavengers Act), it is the duty of the local authority to either demolish or to convert the existing insanitary latrine into a sanitary latrine.

Implementation: A Reality Check

It is pertinent to note that court came down heavily on the authorities concerned as most of the provisions were not even notified, forget about implementation. For instance, under Sections 5 to 6, it is needed or expected that a survey is carried out and such insanitary latrines are demolished accordingly and record should be placed within the period concerned. The Manual Scavengers Act came into force on 6-12-2013 and clause (b) of sub-section (1) of Section 4 enjoins every local authority to give a notice to the occupier of an insanitary latrine within a period of 15 days from the date of publication of the list as per clause (a) of sub-section (1) of Section 4 to either demolish insanitary latrine or to convert such insanitary latrine into a sanitary latrine within a period of six months from the date of commencement of the Manual Scavengers Act. Hence, no positive outcome was tabled by the local authorities concerned and to the contrary, the court in Para 20 of the order,observed:

“There is nothing on record to indicate that these provisions have been implemented. Under sub-section (2) of Section 4, every local authority are under an obligation to construct adequate number of sanitary community latrines within a period of not exceeding three years from the date of commencement of the said Act, as the appropriate Government may, by a notification, specify so as to eliminate the practice of open defecation in their jurisdiction. In fact, the practice of open defecation must be stopped or eliminated immediately. It is an important step towards eradication of manual scavenging. But this cannot happen unless the local authorities construct adequate number of sanitary community latrines and maintain the same clean and hygienic. More importantly, all the authorities will have to sensitise the citizens about the ill effects of open defecation. A massive awareness campaign needs to be initiated for that purpose.” [5]

Rehabilitation: A Failed Reality

The main object of the 2013 Act was to rehabilitate the families and victims of manual scavenging. The Supreme Court in Safai Karamchari Andolan v. Union of India, while issuing certain directions to curb the practice had rightly noted that one of the main object is to rehabilitate the family members and it was observed that – “Identify the families of all persons who have died in sewerage work (manholes, septic tanks) since 1993 and award compensation of Rs 10 lakhs for each such death to the family members depending on them.”[6] Now, if we come to the practical side, then the implementation of the Act itself is a challenge, because rehabilitation would be on the table only when the “evil” of manual scavenging is set aside.

Section 13 of the Act rightly remarks that if any person or person(s) are identified and they are included in the final list, shall be rehabilitated. The provisions cover different benefits for such persons, like their children would be entitled to scholarships, a photo identity shall be issued, they shall be allotted a residential plot and financial assistance for house construction:

 (e) he, or at least one adult member of his family, shall be given, subject to eligibility and willingness, subsidy and concessional loan for taking up an alternative occupation on a sustainable basis, in such manner as may be stipulated in the relevant scheme of the Central Government or the State Government or the local authority concerned; and

 (f) he shall be provided such other legal and programmatic assistance, as the Central Government or State Government may notify in this behalf.

Now, let us come back to the practical approach and implementation of these provisions regarding rehabilitation. The court in this case had rightly observed that only those people are eligible for these benefits who are there in the final list, but the local authorities and State had failed to even comply one, and it was directed by the court that:

“Therefore, directions will have to be issued to the State Government to submit a report whether survey and identification of manual scavengers in the State has been conducted and whether final lists have been published. The State Government will have to also inform the court whether district-wise lists are made and whether consolidated State list has been prepared. Moreover, the State will have to place on record whether the District Level Survey Committees have been formed in all the districts and the State Level Survey Committee has been constituted. The State Government will have to point out the details of the number of meetings held of both the Committees.”

Hence, the court issued certain interim directions to curb the current happenings and non-compliance of the provisions of the Act. Some of the important directions can be categorised as:

(a) Low Convictions: The court observed that very low cases have been registered for violating the provisions of the Act concerned and the State was directed to place the details on number of first information reports, also the cases which finally resulted in convictions.

(b) Data and Surveys: It was directed by the court that State and the local authorities would place on record the data which has to be collected in pursuance of sub-clause (c) of Rule 2 of the Manual Scavengers Rules. Also, the data on final list has been collected or not by the authorities concerned.

(c) Demolition of Insanitary Latrines: The court directed the authorities to place the records concerned on demolition of insanitary latrines in pursuance of Section 4 and Section 5 of the Act. Also, it was directed that the State Government shall direct all the local authorities to comply with the obligations under sub-sections (2) and (3) of Section 4 and to immediately ascertain the requirement of number of sanitary community latrines within their respective jurisdictions and thereafter, make construction of such latrines. The data of such community sanitary latrines constructed in the State shall be placed on record.

(d) Rehabilitation: It was directed that the State Government shall place on record the steps taken for rehabilitation of manual scavengers as provided in Section 13 by stating whether there are any Schemes of Central and State Government for rehabilitation of the manual scavengers as contemplated by Section 13.

(e) Compliance of Safai Karamchari Judgment: The court directed that the State Government shall place on record all the details regarding the compliance with the directions contained in para 23.3 of the decision of the Supreme Court in Safai Karamchari Andolan[7].

Law graduate, Member of Indian Civil Liberties Union, e-mail: uddin.areeb@rediffmail.com.

[1] http://www.scconline.com/DocumentLink/FM5Ed3hR

[2] 2020 SCC OnLine Kar 2420

[3] All India Council of Trade Unions v. Union of India, 2020 SCC OnLine Kar 2420

[4] All India Council of Trade Unions v. Union of India 2020 SCC OnLine Kar 2420

[5] All India Council of Trade Unions v. Union of India. (Supra)

[6] (2014) 11 SCC 224

[7] (2014) 11 SCC 224

Op EdsOP. ED.

“It is not one or two factors which turn a man delinquent, but it is a combination of many more factors which cumulatively influence him to follow criminal conduct.” — Prof. William Healy

I. Introduction

Crime may be defined as an act or an omission punishable by the law. It is considered to be a result of deviance from the standard norms established by the society and prescribed by the law. The modern world is plagued with a plethora of crimes of various kinds. Therefore, it would be in the collective interest of the society, if crimes could be prevented or at least, be reduced considerably. Consequently, it becomes incumbent for criminologists and sociologists to pinpoint the exact causes of crimes.

As a result, over a period of time, many theories have been propounded to determine the causes of criminality. The biological theory analyses and discusses biological and genetic explanations of crimes and explores the idea of “born criminal” on the premise of Darwinian atavism. On the other hand, the sociological theory asserts that criminals are a product of the society. Eventually, sociologists and criminologists made use of multiple factor approach to explain crime causation. The supporters of this approach believe that criminality is a product of combination of factors such as culture, religion, political ideologies, family background, neighbourhood, economic conditions, topography and media to name a few. As a result of the wide acceptance of this approach, the study and analysis of ecology of crime gained importance in the field of criminology.

II. Ecology of Crime

Ecology may be defined as the study of relationship between organisms and their physical and social environments. According to Donald Taft “ecology of crime may be studied in terms of location of criminal or residences of delinquents or some supposed influence upon crime which has distribution in terms of space and topography.”[1] Social (or human) ecology of crime may be defined as the study of the social and behavioural consequences of the interaction between human beings and their environment. It explores how the exposure to different environments influences human development and action. It focuses on the role of environment in the development of people’s differential propensity to engage in crime and their differential exposure to settings conducive to engagement in acts of crime. From these definitions, it can be inferred that ecology of crime includes the analysis of the role played by family background, neighbourhood, area of residence, values and socio-cultural patterns, topography, etc. in breeding criminality. For the purpose of evaluating the role played by these factors, the following theories have been propounded within the broad framework of ecology of crime.

Theory of Social Disorganisation                     

Robert Park and Ernest Burgess of Chicago School defined social disorganisation as “the inability of a group to engage in self-regulation”.[2] They used Chicago as a concentric zone model by dividing the city into five concentric zones emanating from the center of the city. They focused on how the communities in the “zone of transition” (Zone II, located near the center of the city and business/industrial area) had become unsettled and disrupted due to repeated waves of immigration and continuous conflict, which led to social disorganisation, which in turn led to criminal conduct. Based on their research, Park and Burgess came to the conclusion that the breaking of traditional social bonds was one of the major factors causing criminal conduct.[3]

This idea was further developed by Clifford Shaw and Henry McKay in their study “Juvenile Delinquency and Urban Areas”, in which, by using the concentric zone model, they made an attempt to explain juvenile delinquency in Chicago. They proceeded on the hypothesis that people develop their behaviour on the basis of their perception of the prevailing norms and values in their “area of residence”. This means that if a person, especially a child or a juvenile, perceives that committing crimes is the norm in his area of residence/neighbourhood, and has no repercussions largely, he will inadvertently replicate the criminal behaviour. Additionally, the existence of gambling dens, brothels, gangs, etc. in neighbourhood makes things much worse.

Based on their study, Shaw and McKay found that juvenile delinquency rates were unevenly distributed across the city, the highest rates of delinquency were in the “zone of transition”, and the delinquency rate decreased as one went outward from the center of the city.[4] They observed that these areas of high rates of crime were characterised by poverty, residential instability, racial heterogeneity and repeated waves of immigration and emigration.[5] Like Park and Burgess, they concluded that the social disorganisation, which existed within the “zone of transition”, was the root cause of high juvenile delinquency rate. They reasoned that this social disorganisation was due to the absence of a settled and stable community and lack of social control by the institutions of family, school, churches, etc. which led to weak social bonds and virtually no control over the behaviour of the people in these areas.[6] Interestingly, they also found that that social disorganisation existed perennially in areas within this zone due to cultural transmission, which resulted in high crime rates, in spite of a complete turnover in population.

This theory offers explanation to crimes like theft, burglary, gambling, prostitution, blackmailing, extortion, etc. in areas characterised by the poverty, residential instability and racial heterogeneity in any urban city.

Theory of Cultural Transmission

Shaw and McKay are also credited for developing the theory of cultural transmission, through which they explained the perpetuity of delinquency caused by social disorganisation. However, it can also be used to explain perpetuity of criminal conduct resulting from factors such as cultural outlook, customs, norms, religion, etc. This theory provides that, “traditions of delinquency are transmitted through successive generations of the same region just as languages, customs and attitudes are.”[7]

In India, certain values and traditions such as dowry system, untouchability, caste system, prohibition on inter-religion/inter-caste marriages, etc. are prevalent due to their cultural transmission through successive generations, although they are prima facie illegal and/or even contrary to constitutional values.

The operation of this theory is perhaps best seen in the crimes committed by tribals, who are engaged in certain activities by virtue of traditions and practices that are deep-rooted in their age-old customs.  For example, the Bhils and Bhilalas of the Jhabua tribe in Madhya Pradesh customarily practice marriage by elopement.[8] Similarly, the Kanjar tribe in Rajasthan, widely known as the “caste of thieves”, practise thievery as a trade since they believe that it is their age-old vocation. They also sacrifice children to blood-thirsty goddesses.[9] By engaging in these activities, which have been a part of their culture since time immemorial, these tribal groups inadvertently commit crimes.

Theory of Differential Association

Prof. Edwin Sutherland has propounded the theory of differential association. According to this theory, criminal behaviour is “learnt” due to the association of the delinquent with other persons in his intimate personal groups, who have a strong influence on him. This learning includes not only the ways and techniques of committing crimes but also their motives, rationales and justifications.[10]

Merely having a bad association does not make a man turn towards criminality. It takes something more, an alteration at a very basic level of one’s moral perception of right and wrong. This theory asserts that delinquents learn to rationalise unaccepted behaviour into accepted behaviour. Let us consider the following examples for a better understanding:

  1. People may commit theft of life-sustaining items to fulfil their basic needs due to poverty and unemployment.
  2. Corruption in public offices is rampant in India due to bureaucracy and red-tapism. Common man believes that it is impossible to get things by public servants without bribing them.
  3. Vigilantism and mob-lynching results in crimes such as assault, battery, murder, etc. People take the law in their hand because they believe that the criminal justice system has failed to protect their right and liberties and in providing timely justice.
  4. Ecological studies of prisons have revealed that sexual offences are common in prisons since prisoners do not get to enjoy family life for a prolonged period of time.
  5. Cultural outlook also results in the commission of crimes as seen earlier.
  6. Some people commit crimes just for the sake of “fun” or “entertainment”.

These justifications of poverty, unemployment, absence of family life, culture fun, etc. far outweigh the moral definition that “violating the law is wrong under any and all circumstances”. By attributing “bad association” as a factor of crime causation, this theory also offers explanation to most organised crimes in any part of the world.

Sutherland also gave prime importance to the influence of one’s family background on his delinquent conduct, perhaps as a direct consequence of his theory of differential association. Children tend to learn criminal behaviour from their parents and relatives. Family itself can be a bad association. Further, a child’s predisposition to criminality due to bad association (in the area of residence/neighbourhood) may go unchecked and uncorrected due to lack of parental control and supervision. Similarly, Donald Taft suggests that, a child is more likely to turn towards delinquency if his parents are dead or divorced and if he has been subjected to physical punishments and abuse in his childhood.[11]

Theory of Criminal Opportunity

It is observed that the aforementioned theories neither consider the mens rea of the offender nor do they explain spontaneous crimes. These aspects are covered by the theory of criminal opportunity which asserts that crimes are caused due to the circumstances that a criminal finds conducive to commit them. For instance, dacoity is rampant in the forest regions and ravines of Rajasthan, Madhya Pradesh and Uttar Pradesh; rape is widespread in Delhi; and theft is common in bus stands, railway stations, temples, etc. in Mumbai. Therefore, the primary focus is on the characteristics of physical environment that encourage and enable the criminals to make a rational choice to offend. Motivated offenders look for suitable targets which are not supervised by a capable guardian in areas where fast means of escape are available easily.

This theory explains that crime rates are higher in urban areas since:

  1. Urban areas provide more opportunities to commit crimes.
  2. The people in urban areas spend less time in routine-based activities, leaving their property and children unguarded (routine activities theory).
  3. Urban areas have faster means of transport and communication which aids in swift escape.

As a result, urban cities are ravaged by crimes such as rape, theft, burglary, kidnapping, economic offences, terrorism, corruption, etc. In the same vein, Donald Taft suggests that crime rate in rural areas is substantially lower than that in urban cities because of greater homogeneity of rural population, lesser mobility and absence of adequate opportunities to escape.[12]

III. Conclusion

It is apparent that the first three theories bear some similarity, intersecting at certain points. However, the factors that they attribute to criminality are substantially different. The theory of social disorganisation focuses on weak social bonds, and lack of supervision, social control and moral guidelines; the theory of cultural transmission focuses on deviant and delinquent values, traditions and cultural outlook transmitted through successive generations; and the theory of differential association focuses on bad association of, and rationalisation of the unacceptable behaviour by the delinquent. These theories primarily describe influence of social environment on criminality.

The major demerit of the abovementioned ecological theories is that they place overemphasis on the “social environment” and in doing so they overlook the “individual”. By focusing primarily on the effect of social institutions and social disorganisation, they fail to account for the influence of individual psychology, distinctive biology, biological predisposition or personal choice and will on criminal conduct. However, the theory of criminal opportunity does overcome this demerit to a certain extent by placing emphasis on the “motivated offender” who tends to commit crimes if the physical environment provides opportunities to do so. According to the author, to overcome this demerit substantially, ecological theories must be studied along with biological theory to ascertain the simultaneous and cumulative influence of biological and social factors in crime causation.

On a final note, it is imperative to allude to the fact that, as a result of the growing complexities of the modern urban life, the acts which were and are considered to be immoral, illegal and offensive have gradually crept into our society and become a part of the system. Therefore, the author submits that, in spite of all these theories it will be impossible to prevent, or even reduce crimes, unless there is a paradigm shift in moral values of the society at the most basic and fundamental level. Consequently, this shift has to begin at one’s home for transforming and reconstructing cultural and social outlooks of the future generations. This argument holds water, especially in case of India, where many communities with diverse values, moral, norms and customs live together.

Advocate, Gujarat High Court

[1] N.V. Paranjape, Criminology and Penology with Victimology 83 (Central Law Publications, Allahabad, 15th edn., 2012).

[2] Supra note 1at 108.

[3] Looking Inside Zone V: Testing Social Disorganization Theory in Suburban Areas, Western Criminology Review 9(1), 1–16 (2008).  <http://westerncriminology.org/documents/WCR/v09n1/roh.pdf>.

[4] C.R. Shaw and H.D. McKay, Juvenile Delinquency and Urban Areas; A Study of Rates of Delinquents in Relation to Differential Characteristics of Local Communities in American Cities, American Journal of Sociology (University of Chicago Press) 1942.

[5] J. M. Byrne and R. J. Sampson, The Social Ecology of Crime <https://www.researchgate.net/publication/275996748_The_Social_Ecology_of_Crime>.

[6]Review of the Roots of Youth Violence: Literature Reviews <http://www.children.gov.on.ca/htdocs/English/professionals/oyap/roots/volume5/chapter04_social_disorganization.aspx>.

[7] Supra note 1 at 104.

[8] Supra note 1 at 83.

[9] <https://journals.sagepub.com/doi/abs/10.1177/0069966715578046>.

[10]Sutherland, Edwin H., Differential Association Theory and Differential Social Organisation <https://study.sagepub.com/system/files/Sutherland%2C_Edwin_H._-_Differential_Association_Theory_and_Differential_Social_Organization.pdf>

[11] Supra note 1at 79.

[12] Supra note 1at 85.

Op EdsOP. ED.


The Prevention of Money-Laundering Act, 2002[1] (PMLA) is a pro-active legislation keen on curbing money-laundering and bringing violators to justice. Such a legislation is definitely the need of the hour considering the number of scams this country has seen in its past and a strong law securing the 4 walls of justice for offenders is welcomed by the people at large. However, off-late, criminal law practitioners (defense lawyers) have found it challenging to deal with PMLA for the fact that the 4 ends securing the 4 walls of ‘presumed’ justice is far too airtight even for genuine non-offenders to escape its clutches, if caught by sheer happenstance. This article deals with one such scenario.

PMLA punishes an individual for the offence of money-laundering under Sections 3 and 4 which read as follows:

3. Offence of money-laundering.— Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the [proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming] it as untainted property shall be guilty of offence of money-laundering. 

[Explanation. – For the removal of doubts, it is hereby clarified that,

(i) a person shall be guilty of offence of money-laundering if such person is found to have directly or indirectly attempted to indulge or knowingly assisted or knowingly is a party or is actually involved in one or more of the following processes or activities connected with proceeds of crime, namely,

(a) concealment; or

(b) possession; or

(c) acquisition; or

(d) use; or

(e) projecting as untainted property; or

(f) claiming as untainted property, in any manner whatsoever;

 (ii) the process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever].

  1. Punishment for money-laundering.— Whoever commits the offence of money-laundering shall be punishable with rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine:

Provided that where the proceeds of crime involved in money-laundering relates to any offence specified under paragraph 2 of Part A of the Schedule, the provisions of this section shall have effect as if for the words which may extend to seven years, the words which may extend to ten years had been substituted.

On a bare reading of these two provisions, any money that is construed to be ‘proceeds of crime’ is liable to be punished under PMLA. ‘Proceeds of crime’ is defined under Section 2(1)(u) as any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence[2]. It is my contention that an offence under the PMLA cannot be a stand-alone offence, as an offence is required to be committed (under the Schedule) for the monies/properties to be deemed ‘proceeds of crime’. Without commission of a crime, there exists no proceeds from crime.

The Karnataka High Court in K. Sowbaghya v. Union of India[3] has observed that:

having regard to the meaning attributed to ‘proceeds of crime’ under PMLA, whereby crime contemplated is the alleged scheduled offence, the ‘proceeds of crime’ contemplated under Sections 3 and 4 are clearly and inextricably linked to the scheduled offence and it is not possible to envision an offence under PMLA as a stand-alone offence without the guilt of the offender in the scheduled offence being established.

Therefore, on a logical reasoning of the said proposition, only if an offence under the Schedule to PMLA is committed, then the question of proceeds of crime arises.

Coming to the thesis or central question for discussion in this article, there are various offences under various statutes that have been adduced as scheduled offences under the PMLA, and for the major part of the Schedule, I have no quarrel with the intention of the legislature. For example, an offence under Section 25 of the Arms Act (which is a scheduled offence under the PMLA) punishes the individual who possesses or sells unlicensed arms and ammunition. The PMLA, rightly so, punishes the individual for the proceeds he/she has made or property acquired through such possession or sale. Taking another example, certain offences under the Penal Code, 1860 such as Sections 364-A (kidnapping for ransom), 384 to 389 (extortion), 392 to 402 (robbery and dacoity) etc are also scheduled offences under the PMLA. Similar to the previous example, IPC punishes the accused for the offences of kidnapping, extortion or robbery/dacoity whereas the PMLA punishes the accused for the money made or property acquired from the commission of such crimes.

The problem arises when considering offences under the Prevention of Corruption Act, 1988[4] (the PC Act), particularly Section 13. Offences under Section 13 (criminal misconduct by a public servant), also a scheduled offence under PMLA, punishes a public servant for receiving illegal gratification by using his/her public office, misappropriating property or owning/possessing property worth beyond known sources of income or illicit enrichment of wealth (general overview). Contrary to the argument that the PC Act only punishes a person for being corrupt or misusing his public office and PMLA punishes the monies made or properties acquired from such misconduct, I argue that the PC Act collectively performs the functions of the PMLA as well.

The object of PMLA is to prevent money-laundering and to provide for confiscation of property derived from money-laundering. Therefore, the function of PMLA is to seize/confiscate the properties so enjoyed by individuals who have acquired such property by commission of one or more offences which can be acted upon under the Act, apart from punishment for holding such property. The PC Act on the other hand, not only punishes an individual for being corrupt and holding tainted property, it also takes away any property/money derived from such abuse of power/criminal misconduct for the same reason that such property was acquired through illegal means.

The Supreme Court while dealing with a case under the PC Act in Yogendra Kumar Jaiswal v. State of Bihar[5] held that:

If a person acquires property by means which are not legally approved, the State would be perfectly justified to deprive such person of the enjoyment of such ill-gotten wealth. There is a public interest in ensuring that persons who cannot establish that they have legitimate sources to acquire the assets held by them, do not enjoy such wealth.  Such a deprivation would certainly be consistent with the requirement of Articles 300-A and 14 of the Constitution which prevent the State from arbitrarily depriving a person of his property.

When the PC Act inclusively curbs and confiscates “proceeds of crime”, would prosecution for the same under PMLA not amount to double jeopardy?

Provisions of the PC Act examined

An analysis of Section 13 of the PC Act will shed further light on this theory. Section 13 reads as follows:

13. Criminal Misconduct by a Public Servant. [(1) A public servant is said to commit the offence of criminal misconduct,

(a) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or any property under his control as a public servant or allows any other person so to do; or

(b) if he intentionally enriches himself illicitly during the period of his office.

Explanation 1.- A person shall be presumed to have intentionally enriched himself illicitly if he or any person on his behalf, is in possession of or has, at any time during the period of his office, been in possession of pecuniary resources or property disproportionate to his known sources of income which the public servant cannot satisfactorily account for.

Explanation 2.- The expression known sources of income means income received from any lawful sources.]

(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than [four years] but which may extend to [ten years] and shall also be liable to fine.[6]

Most cases pending or newly charged are predominantly under the provisions prior to the 2018 amendment due to the check period and hence, emphasis will also be placed on Sections 13(1)(a) to (e), as they were, prior to the amendment. However, the following explanation would be squarely applicable to Section 13 as it is subsequent to the amendment also.


(Before Amendment)

Key Word/Phrase
13(1)(a) Gratification other than legal remuneration
13(1)(b) Valuable thing
13(1)(c) Misappropriates property entrusted to him or under his control
13(1)(d) Valuable thing or pecuniary advantage
13(1)(e) Pecuniary resources or property disproportionate to known sources of income
(After amendment) Key Word/Phrase
13(1)(a) Misappropriates property entrusted to him or under his control
13(1)(b) Intentionally enriches himself illicitly

All these provisions have a key word or a phrase within which the alleged actions have to fit into for them to be charged with one of the above offences (all of which are scheduled offences under PMLA). At this point, it is also pertinent to examine the definition of ‘property’ as under Section 2(1)(v) of PMLA:

(v) “property” means any property or asset of every description, whether corporeal or incorporeal, movable or immovable, tangible or intangible and includes deeds and instruments evidencing title to, or interest in, such property or assets, wherever located;

Explanation.– For the removal of doubts, it is hereby clarified that the term “property” includes property of any kind used in the commission of an offence under this Act or any of the scheduled offences;”

A bare reading of this definition would show that all keywords/phrases for making one liable under Section 13 of the PC Act also (on interpretation) fall under the definition of Section 2(1)(v) of PMLA. Apart from jail time, the objective of Sections 3 and 4 of PMLA are to confiscate any property that is construed to be from proceeds of crime as the person holding the said property has not obtained and enjoyed them through legal means. This, in its very essence is what Section 13 is also trying to accomplish. The Oxford English Dictionary defines the word “pecuniary” as “of or in money”, thereby making construction of the term ‘pecuniary advantage’ to also fall under the definition of property under Section 2(1)(v) of PMLA. This comparison is only to show that cumulatively, Section 13 of the PC Act and Sections 3 and 4 of PMLA are trying to achieve the same goal and have the same objectives. Therefore, initiating action against an individual under both the provisions of law for the same offence or transaction, would amount to double jeopardy.

It is agreed as stated by the Andhra Pradesh High Court in B. Rama Raju v. Union of India[7] that punishment under Sections 3 and 4 of PMLA are distinct proceedings from Section 5 which is attachment of property and subsequent confiscation. However, in a PC Act case, the trial court (CBI Court in most jurisdictions) passes an order of attachment of tainted property or property under presumption that it is through illegal gratifications during the pendency of trial. This is where Section 5 of PMLA comes in conflict with the proceedings already pending before the trial court. Once the properties are already attached and since the PMLA also permits an order of attachment under Section 5, the Enforcement Directorate making an application to transfer all properties from CBI to ED is prima facie posing a direct threat to the investigation conducted by CBI.[8] Both the agencies are looking into the same properties for offences committed and further, only if an offence is established by CBI can it be treated as ‘proceeds of crime’ by ED.

The Supreme Court in Kanhaiyalal v. D.R. Banaji[9] had held that:

 “If a court has exercised its power to appoint a receiver of a certain property, it has done so with a view to preserving the property for the benefit of the rightful owner as judicially determined. If other courts or tribunals of coordinate or exclusive jurisdiction were to permit proceedings to go independently of the court which was placed the custody of the property in the hands of the receiver, there was a likelihood of confusion in the administration of justice and possible conflict of jurisdiction.

Even though the observations made therein were in a civil case, the same principles are to be applied to criminal cases also, as attachment of property in these matters are quasi civil in nature. If the Enforcement Directorate were to interfere with pending proceedings conducted by CBI, then there would arise a conflict of jurisdiction since both are on the basis of the same offence and properties possessed therein.

The most essential ingredient for an offence under Section 3 of PMLA is the existence of property that is deemed to be a proceed of crime and Section 13 of the PC Act, quintessentially performs the twin function by making the accused public servant liable for abusing his/her office, possessing such property as well as confiscating the said property since it is a proceed of a ‘crime’ committed by the public servant. To makes things more convincing, punishment under Section 13(2) of the PC Act is much more severe than Section 4 of PMLA, thereby justifying its twin purpose.

Double Jeopardy explained

The concept of double jeopardy has been known to mankind from time immemorial. Dating back to 355 BC in Athens, Greece, the law forbids the same man to be tried twice on the same issue. Double jeopardy or non bis in idem is a procedural defense that prevents a person from being tried again on the same or similar charges following a valid conviction or acquittal. The principle of double jeopardy in India existed prior to the drafting and enforcement of the Constitution. It was first enacted in Section 403(1) of the Criminal Procedure Code, 1898 which is now Section 300 of the amended Criminal Procedure Code, 1973. A partial protection against double jeopardy is a Fundamental Right guaranteed under Article 20 (2) of the Constitution of India, which states “No person shall be prosecuted and punished for the same offence more than once”.

In Thomas Dana v. State of Punjab[10], a Constitutional Bench of 5 Judges laid down 3 requirements for double jeopardy i.e. prosecution, punishment and same offence. If these 3 are complied with, then the protection under Article 20(2) is guaranteed.

Section 300 of the Code of Criminal Procedure also protects a person from being tried again where he/she has already been tried and acquitted/convicted for the same offence. Section 26 of the General Clauses Act states that:

 “Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.

This is further enumerated by the Supreme Court in Manipur Administration v. Thokchom Bira Singh[11], that for Article 20(2) and Section 26 of the General Clauses Act to act as a bar for second prosecution and its consequential punishment thereunder, it must be for the same offence that is, an offence whose ingredients are the same. Applying the principles of Section 26 of the General Clauses Act, Article 20(2) and the above decision of the  Supreme Court to the present question at hand, it can be stated that since the offence for which PMLA is invoked is essentially the same offence as under the PC Act, the above provisions will get attracted. Therefore, ingredients, occurrences and circumstances are the same for an offence under Section 13 of the PC Act and Sections 3 and 4 of PMLA (including evidence, both oral and documentary) i.e. money/properties acquired through commission of an offence, it is to be concluded that prosecution under PMLA is a second trial for the same offence when the PC Act proceedings are pending or have attained finality.


I have, in this article, tried to give an outline that prima facie, Section 13 of the PC Act and Sections 3 and 4 of PMLA do not harmoniously gel with each other. On the one hand, only if the primary or scheduled crime is made out can a prosecution under PMLA be maintainable (there are certain lines of thought which state, offence under PMLA is stand-alone and is not dependent on any other offence being proved/committed) and on the other hand, even on the existence of an offence under Section 13 of PC Act, the PC Act is a self-sufficient Act which punishes the accused for both abusing the position of being a public servant, as well as having acquired or being in possession of illegal gratification or property that is either misappropriated or disproportionate to known sources of income. Hence, a subsequent action under  PMLA is nothing but a violation of the constitutionally protected fundamental right against double jeopardy. In concluding remarks, it would be pertinent to note that the Schedule to PMLA is to be revisited and pros and cons are to be considered by the Courts having jurisdiction as to whether the provisions of the PC Act (not restricted to Section 13) are to be considered scheduled offences under PMLA.

*Advocate, Madras High Court

[1] Prevention of Money Laundering Act, 2002

[2]Indian Bank v. Government of India, 2012 SCC Online Mad 2526  

[3] 2016 SCC Online Kar 282

[4] Prevention of Corruption Act, 1988

[5](2016) 3 SCC 183

[6]Prior to the 2018 amendment, Section 13(1) reads as follows;

  1. Criminal misconduct by a public servant.—(1) A public servant is said to commit the offence of criminal misconduct,—

(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 7; or

(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or

(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or

(d) if he,—

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing

or pecuniary advantage; or

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or

(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.

Explanation.—For the purposes of this section, “known sources of income” means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.

[7] 2011 SCC OnLine AP 152

[8] I take this stand being fully aware of the fact that Section 18-A of the PC Act, pursuant to the 2018 amendment, has paved way and given priority to provisions of PMLA (with respect to attachment) over the Criminal Law (Amendment) Ordinance, 1944 under provisions of which attachment and confiscation are usually made under the PC Act. This bereft of the fact that if attachment in PMLA takes precedence over the PC Act, then the whole idea of establishing proceeds of crime would become null as the procedure for trial are different under both Acts and trial under PMLA is much more accelerated due to its narrow scope for the offence of proceeds of crime.

[9] 1959 SCR 333

[10] 1959 Supp (1) SCR 274

[11] (1964) 7 SCR 123 

Op EdsOP. ED.


To obtain an identification of the suspect, police uses several modes like visual, audio, scientific and test identification parade. Although numerous jurisdictions have made improvements to their identification procedures in recent years, a large share of jurisdictions have still not made significant reforms. Although some courts have been making better use of the scientific findings on eyewitness identification, most courts are still using an approach that is largely unsupported by scientific findings. This paper focuses on the study of study of how eyewitness evidence is perceived in the criminal justice system. The paper highlights the relevancy and admissibility of identification of the accused in Court, having regard to the criminal burden of proof, the frailties of eyewitness identification evidence and the problems in the line-up procedures employed by the police.


The issue of identification is one for you to decide as a question of fact”.[1]

Identification evidence is highly persuasive to triers of fact. There is an intuitive sense that when someone witnesses a stranger commit a crime, he or she should be able to remember that face. After all, we see and remember faces every day. However, more than four decades of research has revealed this assumption to be flawed, there is clear evidence that witnesses often struggle with accurately recognising the face of a stranger perpetrator[2]. Indeed, although eyewitness testimony can be an important and valuable form of evidence, eyewitness identification errors are a leading cause of wrongful convictions in many countries[3].

The evidence which requires particular attention is identification evidence, which resembles confession evidence in being, at the same time, both extremely compelling and potentially unreliable. Witnesses are frequently required to identify persons whom they have only seen fleetingly and often in confused circumstances. The identification of the perpetrator is often the only issue that needs to be determined in a criminal trial[4].

Mistaken identity may often occur in good faith, but the effects can be extremely serious for the defendant and, for this reason, there is an obvious need for caution in relation to such evidence. As with evidence of lies by the defendant, the hazards associated with identification evidence are addressed by means of a Judge’s direction, but there are additional safeguards which apply where the identification has been made by means of a formal procedure conducted under police supervision, such as an identification parade[5].

In its 1993 Report, the Royal Commission on Criminal Justice spoke of the compromise that has to be struck between crime control and due process values, so that “the risks of the innocent being convicted and the guilty being acquitted are as low as human fallibility allows”[6]. There are references to the need to strike a reasonable balance between the protection of a suspect’s rights and allowing the police the freedom to do their job throughout the Report, leaving the reader with the impression that if we could find this rather mystical balance, then all would be well.


‘Identification’ is the proof in a legal proceeding that a person, document, or other thing is that which is alleged to be. Identification is the evidence of identity[7]. Phipson states that “it is often important to establish the identity of a person who a witness testifies that he saw on a relevant occasion. Sometimes, the witness will testify that he had seen the person before, or even know the person well, and therefore recognised the person observed on the relevant occasion”.[8] The identity of a person can be established by the evidence of persons who know him[9].


Many times crimes are committed under the cover of darkness when none is able to identify the accused. The commission of crime, in those cases, can be proved by establishing the identity of accused. Identification evidence is seen to be inherently fragile. In Alexander v. R[10], Mason, J. stated that:

“Identification is notoriously uncertain. It depends upon so many variables. They include the difficulty one has in recognising on a subsequent occasion a person observed, perhaps fleetingly, on a former occasion; the extent of the opportunity for observation in a variety of circumstances; the vagaries of human perception and recollection; and the tendency of the mind to respond to suggestions, notably the tendency to substitute a photographic image once seen for a hazy recollection of the person initially observed.”

The identification evidence has for some time been regarded as potentially dangerous for the simple reason, that mistakes are easy to make where identification is concerned.[11] Before we notice the circumstances proving the case against the accused and establishing the identity beyond reasonable doubt, it has to be borne in mind that approach required to be adopted by courts in such cases has to be different. The cases are required to be dealt with utmost sensitivity. Further, the evidence is required to be appreciated having regard to the background of entire case and not in isolation.[12]

In another case[13], where the question was raised whether evidence is permitted even in absence of formal proof by the Executive Magistrate concerned? The Court held that the fact that the Executive Magistrate concerned did not prove the Test Identification Parade does not make it inadmissible.


In response to widespread concern over the problems posed by cases of mistaken identification, the Court of Appeal in R v. Turnbull[14] laid down important guidelines Judges in trials that involve disputed identification evidence.

Where the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused, which the defence alleges to be mistaken, the Judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification(s). The  Judge should tell the jury that:

i. caution is required to avoid the risk of injustice;

ii. a witness who is honest may be wrong even if they are convinced they are right;

iii. a witness who is convincing may still be wrong;

iv. more than one witness may be wrong;

v. a witness who recognises the defendant, even when the witness knows the defendant very well, may be wrong.

The  Judge should direct the jury to examine the circumstances in which the identification by each witness can be made. Some of these circumstances may include:

i. the length of time the accused was observed by the witness;

ii. the distance the witness was from the accused;

iii. the state of the light;

iv. the length of time elapsed between the original observation and the subsequent identification to the police.


Section 9 of the  Evidence Act, 1872 is concerned with the admissibility of facts which are necessary to explain a fact in issue or relevant fact. The section deals with that kind of evidence which if considered separate and distinct from other evidence would be irrelevant; but if it is taken into consideration in connection with some other facts, proved in the case it explains and throws light upon them[15]. As per Section 9, facts which establish the identity of accused are relevant[16]. This section does not deal with testimonial identity. Circumstantial evidence of identity are dealt within this section[17].

Where the court has to know the identity of anything or any person, any fact which establishes such identity is relevant. Personal characteristics such as age, height, complexion, voice, handwriting, manner, dress, blood group, knowledge of particular people and other details of personal history are relevant facts[18].

Identification proceedings are facts which establish the identity of an accused person as the doer of a particular act, and would be relevant under Section 9; but only if evidence of such identification is given by the witness. On the question of the admissibility of the evidence, the Supreme Court[19] held that “if a Magistrate speaks of facts which establish the identity of anything, the said facts would be relevant within the meaning of Section 9 of the Evidence Act; but if the Magistrate seeks to prove statements of a person not recorded in compliance with the mandatory provisions of Section 164 CrPC, such part of the evidence, though it may be relevant within the meaning of Section 9 of the Evidence Act, will have to be excluded.”


In a case involves disputed identification evidence, and where the identity of the suspect is known to the police, various methods like finger/thumb impression, voice, digital, comparison of writing, identification parade by police are used for the purpose of establishing facts showing identity of accused and properties which are the subject-matter of alleged offence. All the modes are discussed broadly as follows:

(i) Test Identification Parade (popularly known as TIP)

One of the methods used for establishing the identity of a person as the doer of a particular act is by means of identification parades[20]. In a case which involves disputed identification evidence a parade must be held if the suspects ask for one and it is practicable to hold one. A parade may also be held if the officer in charge of the investigation considers that it would be useful, and the suspect consents. The main purpose of an identification parade is to confirm the identity of the accused and help the police in their investigation[21]. The utility of the evidence created by an identification parade was explained by the Supreme Court in  Ramanthan v. State of Tamil Nadu[22]. The Court opined that “Identification parades have been in common use for a very long time for the object of placing suspect in a line up with other persons for identification. It enables the investigating officer to ascertain whether the witnesses had really seen the perpetrator of the crime and test their capacity to identify him and thereby to fill the gap in the investigation regarding the identity of the culprit.”

(a) Procedure of TIP

A crime is reported to the police. Some description might have been given of the suspect. In any event, the police investigate and arrest a particular person as the culprit. Then the complainant is taken to the police station to identify him i.e. to pick him out of a group of persons of similar complexion and stature. If the complainant picks him out then the police know that the witness is telling the truth and also that they are on the right track.

The Magistrate conducting the Test Identification Parade (TIP) is directed to take two photocopies of TIP report under his direct supervision and after certifying the same, hand over one to I O with specific directions that contents of such report should not be divulged to any person till charge sheet under Section 173, CrPC is filed. Second photocopy shall be retained by the Magistrate as “confidential” record in a sealed cover for future requirements, if necessary[23].

To conduct the procedure in an appropriate manner, special rooms for conduct of Test Identification Parade in all the prisons in the State shall be made. Such rooms shall have one side view glass separating those lined up for parade, on one hand and witness and the Magistrate, on the other — Witness and Magistrate should not be visible to those who are lined up, but, suspect and dummies should be visible clearly to the witness and the Magistrate. Enclosure in which the suspect and dummies are lined up shall be illumined and should also have ante room for them to change their attire[24].

(b) Value of TIP

Evidence of Test Identification Parade is not substantive evidence whereas evidence given in the court, is. However, when a witness correctly identified the accused at the parade but not in court the evidence of the Magistrate, who conducted the test parade that the witness correctly identified the accused at the parade, supported by the remarks of the trial  Judge regarding the demeanour of the witness that he was frightened and was unable to recognise the accused at the trial, was sufficient to convict the accused[25].

Identification of the accused made in court, is substantive evidence, where as identification of the accused in test identification parade is though a primary evidence but not substantive and the  same can be used only to corroborate the identification of accused by the witness in court[26].

Further, it is pertinent to note that the holding of TI parade is not compulsory. Where the witnesses were well acquainted with the accused and the incident was also widely covered by media, it was held that non-holding of TI parade was not fatal to the prosecution case[27]. As to when an identification parade may be necessary was explained by the Supreme Court in Jadunath Singh v. State of U.P.,[28]  that “ Of course, if the prosecution fails to hold an identification parade on the plea that the witnesses already knew the accused well and it transpires in the court of trial that the witnesses did not know the accused previously, the prosecution would run the risk of losing its case. It seems to us that if there is any doubt in the matter, the prosecution should hold an identification parade”.

In a case[29], where identification parade was held after an inordinate delay of about five weeks from the arrest of the accused, the explanation for the delay was not trustworthy. Plea as to the non-availability of a Magistrate in a city like Bombay though the investigating agency was not obliged to get the parade conducted from a specified Magistrate, was not accepted. It was held that the accused was entitled to benefit of doubt.

Thus, the identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact[30].

(ii) Video Identification

In the paper-based world, law assumes a process which is mutually understood and observed by all the parties. Almost without thinking, a four-part process takes place, involving acquisition, identification, evaluation and admission. When we try to apply this process to digital evidence, we see that we have a new set of problems[31]. Nowadays, in most countries live parades have now been largely replaced by video parades, an innovation that has been made possible by the development of sophisticated computer systems used to compile video images from a standardised database of moving video clips[32]. In Britain, two different IT systems are in widespread use to provide video identification: VIPER (Video Identification Parade Electronic Recording) and PROMAT (Profile Matching). Each system has its own database of images. VIPER lineups are prepared in a standardised format comprising approximately 15-second clips of each person shown in sequence one after another. The sequence starts with a head and shoulders shot of the person looking directly at the camera, who slowly turns their head to present a full right profile followed by a full left profile. Finally, the person returns to looking directly into the camera in a full-face pose. Each image is checked for quality control by the centralised National VIPER Bureau.

The relevancy of identification of the suspect by a witness who was not present at the scene of the crime, but knew the suspect and recognised him on video recording depends upon whether the witness needed for this purpose special skills and experience[33].

(iii) Visual/Eyewitness Identification

An eyewitness is one, who saw the act, fact or transaction to which he testifies. A witness is able to provide graphic account of the attack on the deceased can be accepted as eyewitness[34].  Identification of an accused in court by an eyewitness is a serious matter and the chances of false identification are very high[35].

In cases involving eyewitness identification evidence, the logical starting point is the integrity principle, which “states that the agents of law enforcement should not use, and the courts should not condone, methods of investigating crime that involve breaches of the rules”.[36] This promotes fairness to defendants and a moral consistency from the State: in responding to law-breaking the State should follow its own laws and rules.

Eyewitness evidence is usually the main type of evidence on which convictions are based[37]. There seems to be a general assumption by lay triers of fact that eyewitness testimony is one of the safest bases for any identification; there have certainly been convictions based on very weak visual-identification evidence[38]. In fact visual-identification evidence is often unreliable, and is therefore a potentially hazardous way of connecting a person to an offence. The classic example is where a witness testifies that he saw the offence being committed by a stranger some distance away, for a relatively short period of time, in far from ideal conditions. But it is not just such `fleeting glance’ identification evidence which can lead to miscarriages of justice.

The reliability of the witness’s opinion depends entirely on the reliability of the visible features of the first image which were actually seen and mentally recorded by him (which in turn depends on the extent to which he was paying attention, his physical and psychological powers of perception at that time and his memory) together with the reliability of his comparison of the stored image with the visible features of the second image.

Identifying witnesses may focus on broad impressions or features which stimulate their own subjective preferences rather than on the multitude of specific physical details, so markedly different facial characteristics between the offender and the accused may go unnoticed while vague similarities may be given undue weight. The problem becomes even more acute when the identifying witness and the identified person (the offender) are from different racial groups or generations. Another problem, which may arise in a case of purported recognition, is that of `unconscious transference’ where the witness confuses the offender with a different person seen in some other context. Conversely, if the witness claims never to have seen the offender before, the reliability of his identification is likely to decrease with time as his memory fades[39]. the eyewitness may be honestly mistaken but sincerely convinced that his identification is correct. In R v. Fergus[40] for example, the sole prosecution witness was said to have felt an `invincible conviction in the correctness of his identification’ of the accused even though the witness had poor eyesight, did not take much notice of the offender’s face and first described the offender as 5′ 11” tall with a light complexion and stubble, when the accused was 5′ 7” tall, dark-skinned and had not yet started shaving.

The conventional forensic tool for revealing weaknesses in testimony is cross-examination, but where visual-identification evidence is concerned this tool may be singularly ineffective and, ironically, may indirectly buttress the witness’s testimony.

Alarmingly, research shows “that approximately 40% of eyewitness identifications are mistaken”.[41]” Further, “it is estimated there may be more than 10,000 people a year wrongfully convicted, most of whom were convicted as a result of mistaken identification.”[42] This has led many in the criminal justice system to finally realise what others concluded long ago: eyewitness identification evidence is “hopelessly unreliable.” Unreliability, in turn, leads to a dual problem: not only is an innocent person likely to be convicted, but the true perpetrator necessarily goes free, often to commit additional crimes.[43]

Despite its hopeless unreliability, eyewitness identification evidence has proven to be an extremely powerful tool for the prosecution. The reality is that jurors are “unduly receptive to identification evidence and are not sufficiently aware of its dangers.”[44] Nothing is more convincing to jurors than a live witness who takes an oath and confidently proclaims that he saw the defendant commit the crime. In fact, the level of confidence exhibited by an eyewitness has been found to be the most powerful predictor of guilty verdicts.

In a case, where it was not certain that the visual recognition of the appellants by the complainant on a fateful night was unhindered and unhampered especially when he was fired at first and allegedly saw the occurrence under stress of a threat, the court acquitted the appellants of the charge by extending them the benefit of doubt[45].

Thus, the appreciation of the evidence of eyewitness depends upon[46]:

– The accuracy of the witness’s original observation of the events which he described, and

– The correctness and extent of that he remember and his veracity.

(iv) Forensic Identification

When false eyewitness identifications and wrongful convictions are discovered, they are usually exposed through post conviction DNA testing. However, in the vast majority of criminal cases, DNA evidence has either been destroyed[47] or, more commonly, never even existed in the first place[48]. This, of course, poses a significant problem for the innocent defendant convicted based primarily on eyewitness evidence.

Erroneous eyewitness identifications have plagued our criminal justice system since its inception. When DNA evidence became a prevalent tool for law enforcement in the 1980s, not only did it assist prosecutors in obtaining convictions, but it also reopened prior convictions that were obtained based primarily on eyewitness testimony. Studies now reveal that erroneous eyewitness identifications “are the single greatest cause of wrongful convictions in the United States, and are responsible for more wrongful convictions than all other causes combined.”[49] In fact, in 80% of the first one hundred post conviction DNA exoneration, the underlying wrongful convictions were based primarily, if not solely, on false identifications.[50]

In these DNA exoneration cases, the DNA evidence proved to a scientific certainty that the defendant did not commit the crime charged and had been wrongfully convicted. But even today, most innocent defendants do not have the luxury of DNA evidence to prove their innocence. For example, in some cases the police do not collect or properly preserve the available DNA evidence.[51]

(v) Voice Identification

Voice itself may be an issue in a criminal case, inasmuch as it may itself be a personal characteristic upon which an identification of a criminal depends. It thus seems appropriate that we have in recent years seen the coining of the word ear-witness for the witness who heard, rather than saw[52], something:

In obscene phone calls, bomb hoaxes, ransom demands, hooded rape, robberies, muggings, or in crimes committed in darkness, the perpetrator’s voice may be the only definite piece of evidence available to aid police investigation and court conviction. That most research into witness testimony and identification has been conducted in the visual realm reflects the fact that most identification situations involve a witness using visual cues. The preponderance of such research serves to obscure the fact that in many instances both visual and verbal information is available and in many others only verbal cues exist. The awareness of the existence of the last two types of criminal situation dictates that research into human abilities to recognise voices should not be neglected but rather be rapidly pursued.[53]

With visual-identification evidence, however, there is the very real possibility of error on account of the circumstances surrounding the witness’s initial perception of the offender’s voice (and the medium through which it was heard), the witness’s ability to remember the way the offender spoke and, in particular, his ability accurately to compare the offender’s voice with that of the accused[54].

It was recognised by New Zealand’s Court of Appeal in R v. Waipouri[55],  that voice-identification evidence is generally less reliable than visual-identification evidence and that even greater caution is required when relying on it. In R v. Roberts[56] the Court of Appeal received expert evidence to the effect that a voice identification is more likely to be wrong than a visual identification, that ordinary people are as willing to rely on identification by ear-witnesses as they are on identification by eye-witnesses and that the identification of a stranger’s voice is a very difficult task, even if the opportunity to listen to the voice was relatively good. Accordingly, in cases where the prosecution is permitted to adduce such evidence the jury must be given a direction analogous to that established for visual-identification evidence in  R v. Turnbull[57] .

Further, by analogy with the position for visual-identification evidence where the jury compares a photographic image of the offender with the accused, the jury should be given an appropriate warning when they are asked to compare a recording of the offender’s voice with the accused’s voice[58].

In an Indian case[59], where the witnesses were not closely acquainted with the accused, they claimed to have identified him from his short replies such evidence was held to be unreliable. In another case[60], in a charge of conspiracy for murder, the voice of the accused was recognised by the witness as he demanded money and he was already acquainted with the voice from earlier time. The evidence was held to be relevant.

Recently, the Supreme Court in Dola  v. State of Odisha,[61] observed that it is true that the evidence about the identification of a person by the timbre of his voice depending upon subtle variations in the overtones when the person recognising is not familiar with the person recognised may be somewhat risky in a criminal trial.

(vi) Previous Identification

Where, in criminal proceedings, a witness gives evidence identifying the accused as the person who committed the offence charged, evidence of a previous identification of the accused by that witness may be given, either by the witness himself or by any other person who witnessed the previous identification[62], for example a police officer who conducted a formal identification procedure such as a video identification or an identification parade, as evidence of consistency[63].

R v. Christie[64], is the leading authority that when a witness gives evidence identifying the defendant as the offender, evidence may also be given that he has previously identified the accused. In principle, the previous identification could fall foul of three exclusionary rules – the hearsay rule, the rule against self-serving statements and the rule against non-expert opinion evidence.

Till date, no case has fully examined and explained the reasons for the admissibility of evidence about previous identifications. The most comprehensive examination was in Christie, but that is authority only for the proposition that the credibility of a witness who identifies the accused in court may be supported by evidence that he has identified him previously. It does not allow evidence of the prior identification unless the identifier gives evidence identifying the accused[65].

The Indian Supreme Court[66] observed that identification evidence of accused cannot be relied upon, especially when identification in court is not corroborated either by previous identification in identification parade or any other evidence, conviction of accused cannot be based upon it.


A statement identifying someone as the offender may be admissible as a dying declaration, or as a part of the res gestae, or as a previous inconsistent statement, provided the conditions for admissibility of evidence under those principles are satisfied. It is well settled that the substantive evidence is the evidence of identification in court and the test identification parade provides corroboration to the identification of the witness in court, if required. However, what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine[67].

In a recent judgment, the Court observed that test identification parade is not a substantive evidence. Its purpose is only to help the investigating agency ascertain as to whether the investigation in the case is heading in the right direction or not. There is no provision in CrPC which obliges the investigating agency to hold or confer a right on the accused to claim a test identification parade. Absence to hold it would not make inadmissible the evidence of identification in court[68].


Thus, where the prosecution case depends solely on the identification of a single witness, it is particularly important to give a general, clear and simple direction on burden and standard. However, concerning the admissibility of identification evidence, it has been found that although there may be rare occasions when it will be desirable to hold a voir dire (an investigation into the truth or admissibility of evidence), in general the  Judge should decide on the basis of the depositions, statements, and submissions of counsel. Finally, failure on the part of the police to observe the provisions may be taken into account by the court when deciding whether to exclude identification evidence when assessing the weight of such evidence.

* Assistant Professor, Law, KIIT School of Law, Prasanti Vihar, Patia, Bhubaneshwar – 751024; Email:  sarvesh.shahi@kls.ac.in

[1] R v. Donnini, [1973] VR 67.

[2]. Gary L. Wells & Nancy K. Steblay, “Eyewitness Identification Reforms: Are Suggestiveness -Induced Hits and Guesses True Hits?”, Journal of Applied Psychology, 799, 835–844 (2011).

[3]. Heather L. Price, “Judicial Discussion of Eyewitness Identification Evidence” 49 CJBS 209–220 (2017).

[4]. S v. Mdlongwa, 2010 (2) SACR 419 (SCA).

[5]. Chris Taylor, Law Express Evidence, (Pearson, Chennai, 4th Edn., 2009).

[6]. The Royal Commision on Criminal Justice Report (“The Runciman Report”) (1993 London: HMSO)

Cmnd 2263, 2.

[7]. S.R. Myneni, Law of Evidence 84 (Asia Law House, Hyderabad, 3rd  Edn., 2019).

[8]. Phipson, Phipson on Evidence (Sweet & Maxwell, Thomson Reuters, 17th  Edn. 2015).

[9]. Dr. Avtar Singh, Principles of The Law of Evidence  66 (Central Law Publications, Allahabad, 22nd  Edn., 2018).

[10]. (1981) 145 CLR 395 at 426.

[11]. Alan Taylor, Principles of Evidence, 139 (Cavendish Publishing Limited, London,  2nd  Edn,. 2007).

[12]. Visveswaran v. State,  (2003) 6 SCC 73

[13]. Shiv Murat Kol v. State of M.P.,  2018 SCC OnLine MP 336.

[14]. [1977] QB 224.

[15]. Monir, M. Textbook on the Law of Evidence 66 (Universal Law Publishing, Delhi, 11th Edn,. 2018).

[16]. Ram Babu v. State of Uttar Pradesh(2010) 5 SCC 63.

[17]. Batuk Lal, The Law of Evidence 73 (Central Law Agency, Allahabad) 19th Edn., 2012).

[18]. Ashok K. Jain, Law of Evidence 44 (Ascent Publications, New Delhi,  6th Edn,. 2015).

[19]. Deep Chand v. State of Rajasthan,  (1962) 1 SCR 662.

[20]. Vepa P. Sarathi, Law of Evidence 56 (Eastern Book Company, Lucknow, 6th Edn., 2008).

[21]. Gade Lakshmi Mangaraju v. State of A.P., (2001) 6 SCC 205.

[22](1978) 3 SCC 86 at page 96.

[23]. 2017 Cri LJ 5011.

[24]. Ibid.

[25]. Dana Yadav v. State of Bihar, (2002) 7 SCC 295.

[26].Ibid at page 301.

[27]. R. Shaji v. State of Kerala, (2013) 14 SCC 266.

[28].  (1970) 3 SCC 518.

[29].  (1999) 8 SCC 428.

[30]. Malkhan Singh v. State of M.P., (2003) 5 SCC 746.

[31]. Swati Mehta, “Cyber Forensics and Admissibility of Digital Evidence” (2011) 5 SCC J-54.

[32]. Amina Memon, “A Field Evaluation of the VIPER System: a New Technique for Eliciting Eyewitness Identification Evidence” 17 Psychology Crime & Law 711 (2011).

[33]. Jowett, Christian, 2002 NLJ 152: Current Law (Jan) 2003.

[34]. Vishnu Narayan Moger v. State of Karnataka, 1995 SCC OnLine Kar 291.

[35]. Glanville Williams, Proof of Guilt 630 (Harvard Law Review , 3rd Edn 1963).

[36]. Ashworth, A., The Criminal Process: An Evaluative Study (1994 Oxford: Clarendon), 32; see also

Zuckerman, A.A.S., The Principles of Criminal Evidence (1989, Oxford: Clarendon).

[37]. Meintjes van der Walt L ” Judicial Understanding of the Reliability of Eyewitness Evidence: A Tale of Two Cases” PER / PELJ 2016(19).

[38]. R v. Mattan (Deceased) (1998) The Times 5.3.98 (97/6415/S2) (CA) and R v. Ross [1960] Crim LR 127 (CCA).

[39]. Raymond Emson, Evidence 360 (Palgrave Macmillan, 2nd Edn., 2004).

[40].  (1993) 98 Cr App R 313 (CA).

[41]. Amy Luria, “Showup Identifications: A Comprehensive Overview of the Problems and a Discussion of Necessary Changes” 86 Neb. L. Rev. 515, 516 (2008).

[42].  Suzannah B. Gambell, Comment, The Need to Revisit the Neil v. Biggers

Factors: Suppressing Unreliable Eyewitness Identifications, 6 WYO. L. REV. 189 (2006), at 190-91 [discussing Elizabeth F. Loftus & James M. Doyle, Eyewitness Testimony: Civil and Criminal? 4-1 (3rd Edn., 1997)].

[43]. Keith A. Findley, “Toward a New Paradigm of Criminal Justice: How the Innocence Movement Merges Crime Control and Due Process” 41 Tex. Tech L. Rev. 133 (2008).

[44]. Suzannah B. Gambell, Comment, “The Need to Revisit the Neil v. Biggers Factors: Suppressing Unreliable Eyewitness Identifications” 6 Wyo. L. Rev. 189 (2006).

[45]. Mian Sohail Ahmed v. State, (2019) SCC OnLine Pak SC 12.

[46]. Sir John Woodroff & Syed Amir Ali’s Law of Evidence 461. (Butterworths, Allahabad, 17 Edn., 2001).

[47]. Cynthia E. Jones, “The Right Remedy for the Wrongly Convicted: Judicial Sanctions for Destruction of DNA Evidence” 77 Fordham L. Rev. 2893 (2009). (Discussing how poor handling of evidence has resulted in premature destruction in thousands of cases, including in States in which laws have been enacted mandating evidence preservation.).

[48]. Barry Scheck, “Closing Remarks to Symposium, Thinking Outside the Box: Proposals for Change” 23 Cardozo L. Rev. 899 (2002).

[49]. State v. Dubose, 699 N.W.2d 582, 592 (Wis. 2005) (citing Gary L. Wells et al., “Eyewitness Identification Procedures: Recommendations for Lineups and Photo spreads” 22 Law & Hum. Behav. 603,605 (1998).

[50]. Calvin Ter Beek, “A Call for Precedential Heads: Why the Supreme Court’s Eyewitness Identification Jurisprudence is Anachronistic and Out-of-Step with Empirical Reality” 31 Law & Psychol. Rev. 21 (2007).

[51]. People v. Cress, 645 N.W.2d 669, 692 (Mich. Ct. App. 2002).

[52]. Bethany K. Dumas, “Voice Identification in a Criminal Law Context, American Speech”, 65 Duke University Press, 341-348 1990).

[53]. Ray Bull, “Earwitness Testimony” 39 Med. Sci. Law 120-127 (1999).

[54]. Supra note 3.

[55]. [1993] 2 NZLR 410.

[56].  [2000] Crim LR 183 (99/0458/X3).

[57]. [1976] 3 WLR 445 (R v. Hersey [1998] Crim LR 281 (CA), R v. Gummerson, [1999] Crim LR 680 (CA), R v. Chenia, [2003] 2 Cr App R 83 (CA)). .

[58]. Bulejcik v. R, (1996) 185 CLR 375 (HCA), R v.O’Doherty, [2003] 1 Cr App R 77 (NICA).

[59]. Inspector of Police v. Palanisamy,  (2008) 14 SCC 495.

[60]. Mohan Singh v. State of Bihar,  (2011) 9 SCC 272.

[61]. (2018) 18 SCC 695

[62]. For the difficulties which arise where the witness fails to identify the accused in court, having previously identified him outside court, see R v. Osbourne and R v. Virtue, [1973] QB 678, CA. 295 (See Ch 10).

[63]. R v. Burke and Kelly, (1847) 2 Cox CC.

[64]. [1914] AC 545.

[65]. Rosamund Reay, Evidence 311 (Old Bailey Press, 3rd Edn., 2001).

[66]. Dana Yadav v. State of Bihar, (2002) 7 SCC 295.

[67]. Malkhan Singh v. State of M.P., (2003) 5 SCC 746.

[68]. Raju Manjhi v. State of Bihar, (2019) 12 SCC 784.

Hot Off The PressNews

The Press Council of India is distressed to know about the alleged attack on Mr Arnab Goswami purportedly for his views as journalist.

Every citizen in the Country including a journalist has the right to express their opinion which may not be palatable to many but this does not give any body the authority to strangulate such voice.

Violence is not the answer even against bad journalism.

The Council condemns this attack and expects from the State Government to apprehend the perpetrators of crime and they be brought to justice immediately.

While taking suo motu cognizance in the matter, Hon’ble Chairman has directed the Government of Maharashtra, through the Chief Secretary and Commissioner of Police, Mumbai to submit a report on the facts of the case at the earliest.

[Press Council of India]


[Press Release dt. 23-04-2020]

Case BriefsSupreme Court

Supreme Court: The Division Bench of Uday Umesh Lalit and Vineet Saran, JJ., dismissed an appeal with respect to the denial of appointment for the post of sub-inspector on the ground of a criminal case having been registered against respondent when he was a juvenile.

Court noted the significance of the Juvenile Justice (Care and Protection of Children) Act as follows:

“The thrust of the legislation as well i.e. The Juvenile Justice (Care and Protection of Children) Act, 2000 as well as the Juvenile Justice (Care and Protection of Children) Act, 2015 is that even if a juvenile is convicted, the same should be obliterated, so that there is no stigma with regard to any crime committed by such person as a juvenile.”

The facts of the present case are that, the respondent had cleared his process of application and interview and was thus selected and offered an appointment for the post of Sub-Inspector in Central Industrial Security Forces (CISF). Further, he was required to submit a form that contained a column relating to whether any FIR had been lodged against the respondent in the past, for which the respondent had given the details of the FIR lodged against him. Respondent had clearly mentioned in his form that he was acquitted for the same on a compromise.

Further respondent’s case was referred to the Standing Screening Committee which found his appointment to be unsuitable on the ground of a criminal case lodged in the past against him. Thus his appointment was cancelled by the National Industrial Security Academy.

Supreme Court’s Observation & Decision

Supreme Court in the present appeal noted that the complaint lodged against respondent was to the effect when he was a minor, he had teased a girl and went to the extent of catching hold of her hand. However, the girl and her parents decided to pardon the respondent resulting in his acquittal.

For the above-said, “even if it is found to be true, the Court stated that it cannot be said that the respondent committed such a crime which would be covered under the definition of moral turpitude, specially when the respondent is said to have committed the alleged offence when he was a minor.”

“Even if the allegations were found to be true, then too the respondent could not have been deprived of getting a job on the basis of such charges as the same had been committed while the respondent was juvenile.”

Further, the Court noted that, the case against the respondent is not with regard to the suppression of any conviction or charges having been framed against him. Respondent had very fairly disclosed the charges which had been framed and his acquittal.

Thus, the appeal was dismissed with a direction that the respondent shall be entitled to all the benefits of the Judgment. [Union of India v. Ramesh Bishnoi, 2019 SCC OnLine SC 1531, decided on 29-11-2019]

Case BriefsSupreme Court

Supreme Court: M.M. Shantanagoudar, J., delivered the judgment for N.V. Ramana, J. and himself, and upheld the decision of the Patna High Court answering a death reference in negative and acquitting the Respondent 1.

Respondent 1, along with co-accused, was convicted by the trial court under Sections 396 and 412 IPC. It was alleged that the accused committed dacoity in the house of the informant and his uncle, Madhukant Jha. While committing dacoity, the accused also fired a gunshot due to which Madhukant Jha died. The trial court awarded a death sentence to Respondent 1. The High Court not only answered the death reference in negative, but also acquitted Respondent 1. The matter was before the Supreme Court in appeal.

The Supreme Court perused the record and heard the parties and upheld the decision of the High Court. The Court observed, inter alia, that there was non-reporting of essential facts which were known to the informant in the FIR. Even the name of the material witness was conspicuously missing. Such non-mentioning, according to the Court, created suspicion on the hypothesis portrayed by the prosecution. It was further observed, although the FIR is not an encyclopedia of the crime, absence of certain essential facts, which were conspicuously missing in the FIR, pointed towards suspicion that the crime itself may be staged. On such and other reasons, the Court was of the view that the judgment of the High Court did not warrant any interference. Accordingly, the appeal was dismissed. [Amar Nath Jha v. Nand Kishore Singh,2018 SCC OnLine SC 786, decided on 03-08-2018]