Opinion: Decriminalising Attempt to Commit Suicide- A Take on the Penal Provision

This post is based on a brief part of the paper published in Statute Law Review (citation 10.1093/slr/hmv003)

The sad end to the grief- stricken life (life, in technical sense) of Aruna Shanbaug has reopened the debate of euthanasia, Right to commit suicide, assisted- suicide amongst various other issues related to our Criminal Justice System before our society and policymakers. This post is concerned, within its thin ambit, with the issue of whether decriminalising the only suicide related provision in the Indian Penal Code, which is § 309, would be a legally sound step.

It is submitted that the efforts have been undertaken by the Parliament, are mistaken even if the intention is right. To understand the argument, it would be essential and prudent to understand the origins of suicide as an offence and an offence under IPC.

Origins of Suicide as an Offence and in Context of IPC

At common law suicide was a form of homicide. In the words of Hawkins, “homicide properly so called is either against a man’s own life or that of another.”[1] While wilful homicide was felony, in cases of suicide chattels of the guilty were forfeited to the Crown.[2]

While suicide per se is not defined in the Indian Penal Code, however, by referring to Lord Macaulay’s Indian Penal Notes one can understand Macaulay interpreted Suicide to be a “self- murder”.[3]

The interpretation is also clearly borne out from the provisions defining ‘culpable homicide’[4] and ‘murder’[5] since these provisions hold killing as an offence without stating any qualification that person killed and person killing cannot be the same person. Therefore, merely by repealing § 309[6], suicide as an offence of self- murder would still remain.

distinction between “An Act Forbidden by Law” as opposed to “An Act Made Punishable by Law”

Here, it is important to distinguish between ‘an act forbidden by law’ as against ‘an act made punishable by law’. The issue arises as to why while Indian Penal Code forbids culpable homicide/ murder and punishes it, the latter provision, i.e. for punishing (different from forbidding) suicide is not there with respect to suicide cases.

The answer can be found in the decision in the case of Chikkam Ammiraju And Ors. v. Chikkam Seshamma And Anr,[7] where the Court opined that it is simply due to the fact that there is no one left to be punished and consequently, the case is beyond the Court’s jurisdiction.

Conclusion

Therefore, in light of the above discussion, it is submitted that there is a need to study the statutory framework, else every step sought to be taken (how mighty be the intentions), would be rendered redundant.

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[1] Pleas of the Crown, Book I, Chapter 9.

[2] ‘Law and Morality’, edited by Louis Bloom Cooper and Gravin Drewry, pp. 201-7 (1976).

[3] Indian Penal Code with Notes by W. Morgan and A.G. MacPherson, Harvard Law School Library, pp. 273, 276

[4] S. 299, Indian Penal Code 1860 states, “Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.”

[5] S. 300, Indian Penal Code 1860 states, “Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death…”

[6] S. 309, Indian Penal Code 1860 states, “Whoever attempts to commit suicide and does any act towards the commission of such offence, shall he punished with simple imprisonment for a term which may extend to one year or with fine, or with both.”

[7] (1917) 32 MLJ 494, para 16. (Chief Justice John Wallis in Majority Opinion)

Power of High Court to Waive off any need to Surrender for filing Revision

Vivek Rai & Anr. v. High Court of Jharkhand

Facts: 

Petitioners have been convicted under Section 498-A of the IPC and Sections 3 and 4 of the Dowry Prohibition Act. Appeal against the conviction was dismissed. The petitioners filed a revision petition before the High Court but the same was not registered on account of impugned Rule 159 of the Jharkhand High Court as failed to surrender to custody.

Rule 159 of the High Court of Jharkand Rules, 2001 reads:

““In the case of revision under Sections 397 and 401 of the Code of Criminal Procedure, 1973 arising out of conviction and sentence of imprisonment, the petitioner shall state whether the petition shall be accompanied by a certified copy of the relevant order. If he has not surrendered the petition shall be accompanied by an application seeking leave to surrender within a specified period. On sufficient cause if shown, the Bench may grant such time and on such conditions as it thinks and proper. No such revision shall be posted for admission unless the petitioner has surrendered to custody in the concerned Court (emphasis).”

The petition has been filed under Article 32 of the Constitution of India seeking to declare Rule 159 as violative of Articles 14 and 21 of the Constitution and provisions of Sections 397 and 401 of the Code of Criminal Procedure, 1973. Earlier the Division Bench of the Jharkhand High Court has upheld the validity of the Rule and the special leave petition was dismissed by the Court against the said judgment.

Issues:

• Whether the requirement for surrendering to custody as a condition precedent for registration of the Revision petition is violative of Sections 397 and 401 of CrPC?
• Whether the failure to mention the power of the High court to order exemption from such surrender makes it legally infirm?

Brief Answer:

•  No. The rules are in consonance with the CrPC provisions.
• No. Failure to mention does not take away the inherent power of the High Court and the same has to be assumed in the impugned rule.

Court’s reasoning:

•  It is an established practise that a revision against Conviction and sentence is filed after an appeal is dismissed and the convicted person is taken into custody in court itself. According to the Court, the object of the Rule is to ensure that a person who has been convicted by two courts obeys the law and does not abscond. They therefore hold that the provision is not arbitrary in nature and is merely a procedure to regulate the procedure of the Court. The Apex Court relied on Judgments including the Nanavati case[1] wherein the an identical provision of Order XXI Rule 5 of the Supreme Court Rules was challenged and held to be valid.  The Apex Court in that case had opined that the rule reflected the pre-existing practise of the Supreme Court and the High Courts. The provision read:

“When the petitioner has been sentenced to a term of imprisonment, the petition shall state whether the petitioner has surrendered. Unless the court otherwise orders, the petition shall not be posted for hearing until the petitioner has surrendered to his sentence”

     Supreme Court Rules also contain a similar provision in Order XXI Rule 6. 

•      Mere exclusion of the exemption power does not affect the inherent power of the Court to order such a remedy. The Court stated the High Court is not helpless in such situations even though the Rule does not specify that it can grant exemption in certain cases. They hold that such an exception as also found in the Supreme Court Rules has to be read into the High Court Rules.

Analysis:

While the reasoning of the Court in the first issue is logical and is supported by appropriate case laws, the second issue has been dealt with in a single with broad statements. The challenge was to a specific Rule of the High Court which had been created in 2001 to the exclusion of such an exemption which is clearly provided in other High Court Rules as well as the Supreme Court. In such a scenario, it can be argued that the later in time creation had deliberately tried to negate any such usage. Although one might argue that the High Court under its inherent power[2] can consider the grant of such remedy, the question in this case was limited to the infirmity of the specific Rule of the High Court. The Rule did not include such a power and should have been considered in opposition to the current regime.

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[1] KM Nanavati v. State of Bombay, (1961) 1 SCR 297.

[2] Section 482, Code of Criminal Procedure, 1973. 

Criminal Liability of Directors: Sunil Bharti v. CBI-Part II

In the last post we discussed that lifting of corporate veil would not affect criminal liability of a director for offences committed by the company itself. This post summarizes the judgement of Supreme Court in Sunil Bharti v. CBI.

I.                   Facts, Charges and Journey to Supreme Court:

In the 2G Spectrum scam, CBI named four persons as accused in the charge-sheet viz. Mr. Shyamal Ghosh and three companies (Bharti Cellualar Ltd., Hutchison Max Telecom (P) Ltd. and Sterling Cellular Ltd.). The Trial Court Judge[1] found that there is enough incriminating material to proceed against them on the charges made under Section 120B IPC r/w Sections 13(2) and 13(1)(d) of Prevention of Corruption Act, 1988.

At the same time, the Trial Court Judge found that Mr. Sunil Bharti (Chairman-cum-managing Director of Bharti Cellualar Ltd.), Mr. Asim Ghosh (Managing Director of Hutchison Max Telecom (P) Ltd.) and Mr. Ravi Ruia (Director in Sterling Cellular Ltd.) are “alter ego”[2] [see footnote for definition of "alter ego"] of their respective companies. According to the Trial Court Judge, the acts of the accused companies could be attributed and imputed on their respective “alter ego”.

On this premise, the Trial Court Judge felt that there was enough material on record to proceed against these three persons as well. Accordingly, apart from the four accused named in charge-sheet, these three persons were also put at trial and were proceeded against offences under Section 120B of IPC, and under Sections 13(2) and 13(1)(d) of Prevention of Corruption Act, 1988.

Two of the above two directors appealed in the Supreme Court against the order of Trial Court Judge implicating them as accused.

II.                Issue: Whether in the instant case the Director can be held liable for the offence committed by the company itself.

III.             Ratio:

A.     Company liable for acts of alter ego

While discussing the liability of company for acts of its alter ego, Supreme Court heavily relied on Iridium Motorola case. It discussed that as per Iridium Motorola case a company can be held liable for offences involving mens rea as necessary ingredient. And, to know the mental state of the company, the mental state of the person in control of affairs is attributed on the company.

Then, the Apex Court distinguished the present case from the Iridium Motorola case. Present case relates to criminal liability of alter ego for offences committed by the company whereas Iridium relates to criminal liability of company for acts of alter ego. Thus, present case is exactly reverse scenario of Iridium Motorola. Then, Supreme Court discussed this reverse situation.

B.     Alter ego liable for acts of the company

As per Supreme Court, an “alter ego” can be made held liable for the acts of the company only in two situations: 

    1.    When there is a categorical provision in the statute making such a person vicariously liable,[3]or

  2. When there is enough material to attribute the alleged acts of criminality to the said person.

Then Supreme Court determined whether any of these two situations is applicable in the instant case. The Court firstly discussed the second situation and held that second situation is completely inapplicable as the Trial Court Judge did not proceed against the directors on the basis of incriminating material. Rather, the judge proceeded on the basis of principle of “alter ego”. Further, Supreme Court ruled that even if he proceeded on the basis of incriminating material, his order does not state valid reasons for proceeding against the directors.

With this, the Supreme Court moved to the applicability of first situation in the instant case. With respect to first situation, it must be noted that the directors were charged under Section 12B IPC and Sections 13(2) and 13(1)(d) of Prevention of Corruption Act, 1988 for the offences committed by their respective companies. There is no provision in IPC and PC Act which states that whenever a company is proceeded against offences under PC Act its person in charge would also be proceeded. On this premise, the first situation is also inapplicable.

For these reasons, the charges against Appellant-Directors were ordered to be dropped and order of Trial Court Judge was dismissed accordingly.

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[1] In 2G Spectrum, case, a Special Court was established to conduct trial. Throughout the judgement in Sunil Bharti case, the judge conducting trial was called Special Judge.

[2] “Alter ego” of a company is a person who controls the affairs of the company and represents its directing mind and will.

[3] Examples of such categorical provision: Section 141 of Negotiable instruments Act which stipulates that when a person which is a company commits an offence, then certain categories of persons in charge as well as the company would be deemed to be liable for the offences under Section 138. Section 32 of Industrial Disputes Act.

Criminal Liability of Directors: An Analysis of Sunil Bharti Mittal v. Central Bureau of Investigation

Supreme Court in its judgement in Iridium Motorolla case had settled the issues of corporate criminal liability in India to a great extent. It held that a Company can be held for an offence involving mens rea as necessary ingredient. Further, it clarified that such mens rea would be attributed by applying the common law doctrine of directing mind and will in the sense that the metal state of the directing mind and will would be considered to be the mental state of the Company. In this way, a company is made liable for actions of its directors and other employers.

Whether its converse is possible is the issue Supreme Court was faced with in the case of Sunil Bharti Mittal v. Central Bureauof Investigation. The Apex Court appropriately held that converse of theory of attribution i.e. making directors and other employers of the company liable for the offences committed by the Company, is not permissible under criminal jurisprudence as that would amount to attribution of vicarious criminal liability.

It must be noted that vicarious criminal liability is generally not attributed. However, it can be done so whenever there is any specific provision in the penal statute providing for such attribution. It is apt to make reference to Section 141 of Negotiable Instruments Act, Section 32 of Industrial Disputes Act, environmental legislations (Air and Water Prevention and Control of Pollution Acts, Environment Protection Act), etc. These provisions permit the trial court to try both the company and directors at the same time by applying vicarious liability principle. Interestingly, even after recommendations made by Law Commission, no such provision has been added in IPC. Hence, a director cannot be penalized for IPC-offences committed by a company.

Further, in his blog, Umakanth V. has argued that the Supreme Court in Sunil Bharti case did not clarify as to “whether the invocation of the doctrine of piercing the veil would have resulted in a different outcome so long as the conditions for piercing exist in this case.” It is not uncommon to respond that corporate veil doctrine is generally founded in civil litigation cases only. It would be difficult to apply vicarious criminal liability through the back door of piercing the corporate veil.

Lastly, though very common to argue, it must be noted that applicability of above principles of criminal liability would depend on the question whether the person in charge acted in his individual capacity or official capacity.

Next post provides summary of the judgement in Sunil Bharti case.

Filing of Bail Applications Successively- Curbing Forum Shopping

Jagmahon Bahl and Anr. v. State of NCT of Delhi and Anr.

Recently, the Supreme Court had given an important ruling intending to curb the practice of forum shopping amongst lawyers, where they would after getting a bail application rejected/accepted from one judge, the aggrieved party (can be accused or prosecutor or complainant) would again file a similar bail application before another judge.

I. Facts of the Case

The appellants had earlier moved an application u/§ 438 CrPC for grant of anticipatory bail which was dismissed by one judge. Thereafter, the appellants after expiry of three weeks filed 2^nd application u/§ 438 Cr.PC which came to be considered by another judge, while the earlier judge who had decided the previous bail application was still available.

II. Decision in the Case

The Court categorically stated that such practice was not consistent with the judicial discipline which must be maintained by Courts both in the interest of administration of justice by assuring the binding nature of an order which becomes final, and the faith of the people in the judiciary.

Therefore, the Judge who has declined to entertain the prayer for grant of bail, if available, should hear the second bail application or the successive bail applications, as such practice is in consonance with the principle of judicial decorum, discipline and propriety.

Here, it is important to note that the acceptance of 2^nd bail application by another judge, i.e., when the 1^st application has been rejected by a different judge, “is a bail order passed in a perverse manner excluding the relevant matters”. Such ground of cancellation of bail order is different from the cancellation of the order of bail because of violation of the terms and conditions of the order granting bail and other supervening circumstances.

However, an obvious exception is provided in cases where a Judge has demitted the office or has been transferred. In such cases, the earlier judge was obviously “not available”.

III. Conclusion

It is obvious that the phrase “not available” can be construed to include where judges are on holidays. Though such cases are bound to happen, the judgment, however, is a welcome reminder for the lower Courts to uphold the judicial discipline of respecting one judge’s opinion and introduce a modicum of certainty in the decision making.