Tuesday, April 3, 2018

Fugitive Economic Offenders Bill 2018

The Fugitive Economic Offenders Bill, 2018 was introduced in Lok Sabha on March 12, 2018. 

It seeks to confiscate properties of economic offenders who have left the country to avoid facing criminal prosecution.

Fugitive economic offender:  A fugitive economic offender has been defined as a person against whom an arrest warrant has been issued for committing any offence (listed in the schedule).  Further the person has: (i) left the country to avoid facing prosecution, or (ii) refuses to return to face prosecution.  Some of the offences listed in the schedule are: (i) counterfeiting government stamps or currency, (ii) cheque dishonour for insufficiency of funds, (iii) money laundering, and (iv) transactions defrauding creditors. 

The Bill allows the central government to amend the schedule through a notification.

Application:  A director or deputy director (appointed under the Prevention of Money-Laundering Act, 2002) may file an application before a special court (designated under the 2002 Act) to declare a person as a fugitive economic offender.

  The application will contain: (i) the reasons to believe that an individual is a fugitive economic offender, (ii) any information about his whereabouts, (iii) a list of properties believed to be proceeds of a crime for which confiscation is sought, (iv) a list of benami properties or foreign properties for which confiscation is sought, and (v) a list of persons having an interest in these properties.
Upon receiving an application, the special court will issue a notice to the individual: (i) requiring him to appear at a specified place within six weeks, and (ii) stating that a failure to appear will result in him being declared a fugitive economic offender.  If the person appears at the specified place, the special court will terminate its proceedings under the provisions of this Bill.

Attachment of property:  The director or deputy director may attach any property mentioned in the application with the permission of a special court.  Further, these authorities may provisionally attach any property without the prior permission of the special court, provided that they file an application before the court within 30 days.  The attachment will continue for 180 days, unless extended by the special court.  If at the conclusion of proceedings, the person is not found to be a fugitive economic offender, his properties will be released.

Declaration as fugitive economic offender:  After hearing the application, the special court may declare an individual as a fugitive economic offender.  It may confiscate properties which: (i) are proceeds of crime, (ii) are benami properties in India or abroad, and (iii) any other property in India or abroad.  Upon confiscation, all rights and titles of the property will vest in the central government, free from all encumbrances (such as any charges on the property).  The central government will appoint an administrator to manage and dispose of these properties.

The Bill allows any civil court or tribunal to disallow a person, who has been declared a fugitive economic offender, from filing or defending any civil claim. 

Powers of the director:  The director or deputy director will have the powers vested in a civil court.  These powers include: (i) entering a place on the belief that an individual is a fugitive economic offender, and (ii) directing that a building be searched, or documents be seized.

Appeal:  Appeals against the orders of the special court will lie before the High Court.

 Source: prsindia.org

FEOB lists offences under 15 Indian laws including IPC and CGST Act. The government has multiple legal options to attach the property of economic-offenders.

The Indian government instead should have focussed upon the extradition treaties with different countries , so  that the option of fleeing the country would be no longer seen as the best way out. Since independence, India has signed treaties of extraction with 48 countries and extradition arrangements with 9 more. However this is not enough.

Until the extradition treaties are given priority the FEOB will not effective.

Tuesday, March 27, 2018

Contract Killings and Punishment

Anybody could be a hired killer in Delhi, say police; they are ready to pull the trigger for as low as Rs 40,000.

A mother of seven, a science graduate, a property dealer and a man looking for a job — the profiles of Delhi’s contract killers are diverse. For as little as Rs 40,000, some of these dreaded murderers for hire can fire a gun or wield a knife.

At least 50 contract killing cases were solved by the Delhi police in 2017. Not all of the accused had previous criminal records — some were first-time offenders with dreams of becoming rich overnight.

Former Delhi commissioner Ved Marwah said that though the phenomenon of professionals taking money to kill is spread across the world. “Contract killers are professionals and are everywhere in the world. But first-timers indulging in such crimes shows degeneration of social values. We have to strengthen the criminal justice system, raise the threshold of social behaviour and maintain higher standards.”

Source:  .hindustantimes.

Contract killings have not been alien to Delhiites but what is startling is the fact that they are no longer executed to simply settle scores in business or political rivalries but have even crept into family issues. 

A senior Gurgaon police official believes that over time contract killers have also become “sophisticated and smart.”

“They are no longer the rustic gangs from UP villages who usually worked under the patronage of some local politician or businessman. With landowners from Delhi’s fringe villages striking gold with the property boom, sufficient money has been pumped into these areas to fulfill the fancy for foreign-made guns. This explains the proliferation of guns in the NCR,” said the official.

Source: DNA

The Madras High Court Bench confirmed life sentence imposed on five contract killers, and speaking through the Division Bench of Justices A. Selvam and T. Mathivanan held :

“However high or wise a person is, when he happens to commit a crime against morality, he would certainly, in a flustered state, leave a mark of vestige. This is the archaism and that is what has happened in this case.” 

Source: the Hindu


The punishment for murder under India’s Penal Code is life imprisonment or death and the person is also liable to a fine.[16] 

Guidance on the application of the death sentence was provided by the Supreme Court of India in Jagmohan Singh v. State of Uttar Pradesh, where the Court enunciated an approach of balancing mitigating and aggravating factors of the crime when deciding on the imposition of capital punishment.[17]  However, this approach was called into question first in Bachan Singh v. State of Punjab where the Court emphasized that since an amendment was made to India’s Code of Criminal Procedure, the rule has changed so that “the offence of murder shall be punished with the sentence of life imprisonment.  The court can depart from that rule and impose the sentence of death only if there are special reasons for doing so.”[18]  The Court also emphasized that due consideration should not only be given to the circumstances of the crime but to the criminal also.[19] 

However, more recently the Court in Sangeet & Anr. v. State of Haryana, noted that the approach in Bachan has not been fully adopted subsequently,[20] that “primacy still seems to be given to the nature of the crime,” and that the “circumstances of the criminal, referred to in Bachan Singh appear to have taken a bit of a back seat in the sentencing process.”[21] The Court in Sangeet concluded as follows:

This Court has not endorsed the approach of aggravating and mitigating circumstances in [the 1971 case of] Bachan Singh.  However, this approach has been adopted in several decisions.  This needs a fresh look.  In any event, there is little or no uniformity in the application of this approach.

Aggravating circumstances relate to the crime while mitigating circumstances relate to the criminal.  A balance sheet cannot be drawn up for comparing the two.  The considerations for both are distinct and unrelated.  The use of the mantra of aggravating and mitigating circumstances needs a review.

In the sentencing process, both the crime and the criminal are equally important. We have, unfortunately, not taken the sentencing process as seriously as it should be with the result that in capital offences, it has become judge-centric sentencing rather than principled sentencing.

The Constitution Bench of this Court has not encouraged standardization and categorization of crimes and even otherwise it is not possible to standardize and categorize all crimes.

The grant of remissions is statutory.  However, to prevent its arbitrary exercise, the legislature has built in some procedural and substantive checks in the statute.  These need to be faithfully enforced.[22]

Source: https://www.loc.gov/law/help/sentencing-guidelines/india.php

After looking at the judgments of various cases, in my opinion, section 307 IPC is very confusing in so far as the basis of the conviction of accused is concerned. There is a common ingredient which is required for the conviction under this section and that element is intention along with the knowledge and the implication of the act done. All the courts across the board agree on the fact that the intention to commit murder and the preparation for the act must be present. However the element where the courts differ with each other is the matter of proving the intention.

The difference being that courts say that to prove the intention of the accused, the nature of the injury, the nature of the weapon used, preparation taken are taken into account however surprisingly the courts arrive at different conclusions regarding these facts. That is in some cases the courts have ruled that even if the weapon used was dangerous but caused a simple wound, there would be no conviction under section 307 and in another case the court rules that even if no injury is caused the accused can be convicted if intention to kill is proved. This is contradictory in nature. In one case the court also ruled that forced starvation can also be convicted under section 307.

The questioning of the constitutional validity of this section was a legitimate question which was solved by a very simple answer by the Andhra Pradesh High Court. The main conclusion is that there is no hard and fast rule about the methodology of proving the intention of the accused, that may vary from case to case and it is the judge’s responsibility to take cognizance of the facts before him and decide on the intention of the accused and it is the intention which matters the most in conviction.

The nature of the injuries, weapons used are merely clues that the judiciary uses to reach to a conclusion about the intention of the accused. So it can be safely said that even of no injury is caused a person can be convicted under this section.

Source: https://www.lawctopus.com/academike/attempt-murder-section-307-ipc/

Saturday, March 10, 2018

Plea before Supreme Court to declare Muslim Polygamy and Nikah-Halala as criminal offences

A mother of three who was divorced twice through instant triple talaq has approached the Supreme Court to declare polygamy and Nikah Halala as unconstitutional among Muslims.

Earlier, BJP leader Ashwini Upadhyay had filed a plea seeking a complete prohibition on polygamy and Nikah Halala for violating fundamental rights of Muslim women.

One of the earlier such pleas heard and decided by the court was that of Shayara Bano who had approached the apex court to declare triple talaq as a violation of gender justice. A five-judge bench had declared instant talaq to be an un-Islamic practice and struck it down.

Sameena Begum was first married in 1999 and she produced two sons. After repeated abuse and a consequent police complaint, she was given triple talaq. She was forced to marry again but to an already married man. After she got pregnant again, she was given triple talaq over the phone after a trivial argument.

Now, Sameena lives alone with her three children. She said she has filed the PIL not only for herself but also for others who have suffered the same plight.

She requested the court that Section 2 of Muslim Personal Law (Shariat) Application Act, 1937, be declared as arbitrary and violating Articles 14, 15, 21 and 25 of the Constitution, insofar as it seeks to recognise and validate polygamy and Nikah Halala.

It has also requested the court to ensure that provisions of the Indian Penal Code, 1860, are applicable on all Indian citizens. The plea also sought recognition that "triple talaq is a cruelty under IPC Section 498A, Nikah-Halala is rape under IPC Section 375, polygamy is an offence under Section 494 of the IPC".

"The concept of polygamy was allowed in this verse (Quran) because of utmost concern for the welfare of women and orphans who were left behind in the battle. It is pertinent to mention that by no means it is a general licence to Muslims in present times to marry with more than one woman. Besides it puts onus on them to treat the additional spouses justly, which is admittedly a difficult task," the plea said.

Bearing a similarity with the triple talaq plea, the plea too has cited international laws and countries where polygamy has been prohibited.

It also noted that polygamy is totally prohibited in Tunisia and Turkey. "In countries like Indonesia, Iraq, Somalia, Syria, Pakistan and Bangladesh, it is permissible only if authorised by the prescribed authority," it said.

Sameena said, “Equality should be the basis of all personal law since the Constitution envisages equality, justice and dignity for women."

​The petitioner contended that though it is illegal for Muslim women to marry a second time during subsistence of first marriage but "there is no requirement for Muslim husband so that the permission of the first wife is to be taken before contracting second marriage".

Source:  News18.com

Cabinet approves the Commercial Courts, Commercial Division and Commercial Division of High Courts (Amendment) Bill, 2018

The Union Cabinet has approved the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts (Amendment) Bill, 2018 for introduction in the Parliament.

The Bill seeks to achieve the following objectives:

• The Bill brings down the specified value of a commercial dispute to 3 Lakhs from the present one Crore. Therefore, commercial disputes of a reasonable value can be decided by commercial courts. This would bring down the time taken (presently 1445 days) in resolution of commercial disputes of lesser value and thus further improve India's ranking in the Ease of Doing Business.

• The amendment provides for establishment of Commercial Courts at district Judge level for the territories over which respective High Courts have ordinary original civil jurisdiction i.e in the cities of Chennai, Delhi, Kolkata, Mumbai and State of Himachal Pradesh. The State Governments, in such territories may by notification specify such pecuniary value of commercial disputes to be adjudicated at the district level, which shall 'not be less than three lakhs rupees and not more than the pecuniary jurisdiction of the district court. In the jurisdiction of High Courts other than those exercising ordinary original jurisdiction a forum of Appeal in commercial dispute decided by commercial courts below the level of District judge is being provided, in the form of Commercial Appellate Courts to be at district judge level.

• The introduction of the Pre-Institution Mediation process in cases where no urgent, interim relief is contemplated will provide an opportunity to the parties to resolve the commercial disputes outside the ambit of the courts through the authorities constituted under the Legal Services Authorities Act, 1987 will also help in reinforcing investor's confidence in the resolution of commercial disputes.

• Insertion of new section of 21A which enables the Central Government to make rules and procedures for PIM.

• To give prospective effect to the amendment so as not to disturb the authority of the judicial forum presently adjudicating the commercial disputes as per the extant provisions of the Act.

With the rapid economic development there has been considerable increase in commercial activities and consequent steep rise in number of commercial disputes at domestic and international level. Increase of Foreign Direct Investment (FDI) and overseas commercial transactions have further contributed to a significant increase of commercial disputes.

With a view to address the issue faster resolution of matters relating to commercial disputes and to create a positive image particularly among the foreign investors about the independent and responsive Indian legal system, the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 was enacted and commercial courts were established at District Levels in all jurisdictions, except in the territories over which the High Courts have original ordinary civil jurisdiction. These five High Courts i.e. the High Courts of Bombay, Delhi, Calcutta, Madras and of Himachal Pradesh, exercise ordinary original civil jurisdiction in regard to territories of cities of Mumbai, Delhi, Kolkata, Chennai and the territory of the State of Himachal Pradesh respectively. In such territories of these High Courts as per proviso to sub-section (1) of section 3 there are no commercial courts at district level and instead Commercial Divisions have been constituted in each of these High Courts.

The specified value of such commercial disputes to be adjudicated by the Commercial Courts or the Commercial Division of High Court, as the case may be is presently Rs. one Crore.

Ease of Doing Business is an index of World Bank which inter alia refers to the dispute resolution environment in a country which facilitates the investors in deciding for setting up of and operation of a business.