SUBJECT- CRIMINAL JUSTICE AND HR

1. INTERNATIONAL REGIME OF ENFORCEMENT OF HR

In 1945, the Charter of the United Nations (UN) included the promotion of human
rights as one of the nascent international organisation’s main purposes. One year
later, following the mandate established by Article 68 of the UN Charter, 1 the
Economic and Social Council (ECOSOC) set up the UN Commission on Human
Rights (UNCHR) and, a few years later, in 1948, the General Assembly adopted the
Universal Declaration of Human Rights (UDHR).2 This is how what the field of
international relations (IR) calls an “international regime” was born. An international
regime is a set of principles, norms, rules and decision-making procedures
established by states to guide their behaviour in a particular thematic area. 3 Since
then, the international human rights regime has continued to be developed and
consolidated as an important component of the global institutional architecture.
In IR,4 two fundamental questions on international regimes can be posed: what are
their causes and what are their consequences? In other words, why did states
establish them and what impact have they had on state conduct? The responses to
these questions are particularly important in relation to human rights. Over the past
seven decades, although an increasingly complex and active regime has been
developed in this area, it does not seem to have the “teeth” it needs to significantly
influence states’ behaviour.

The concept of international

regime and its application to
the area of human rights
The “international regime” concept is one of the most important ones in the IR field. It
allows us to describe this key element of the international relations in the world today
with greater precision. According to the already classical “consensus” definition
offered by Stephen Krasner, an international regime is a type of international
institution formed by a set of principles, norms, rules and decision-making
procedures adopted and established by states to regulate or guide their interactions
in a particular thematic area.7
The international human rights regime (or regimes, as we will see shortly) is founded
on the principles of dignity, the equal worth of and equal rights for “all members of
the human family”, without distinction of any kind, such as “race, colour, sex,
language or religion”, as well as the idea that human rights are inalienable, universal,
interdependent and indivisible in nature.8 From a conceptual perspective, and even
moreso from an empirical point of view, these norms and rules seem to blend
together. Various articles of the UDHR establishe a wide range of concrete rights
held by individuals, which necessarily creates obligations for states. The
International Covenant on Civil and Political Rights (ICCPR), for example, stipulates
that the States Parties to the covenant commit “to respect and to ensure to all
individuals within its territory and subject to its jurisdiction the rights recognized” in
the covenant and therefore, they are obliged to take the necessary steps to “adopt
such laws or other measures as may be necessary to give effect to [them].” 9 Thus,
by creating rights and obligations, numerous international human rights instruments
establish a wide range of norms.10 They also prohibit certain types of conduct (such
as torture, forced disappearance or arbitrary or extrajudicial executions, for example)
and establish different prescriptions for action (such as guaranteeing the existence of
effective legal remedies or access to healthcare). In addition to defining the regime’s
norms, international human rights instruments establish a series of rules. As has
already been mentioned, these norms and rules seem to merge or overlap one
another. To take this into account, for the sake of conceptual simplicity and greater
clarity, we will use the concept of norms in broader terms to refer to both rights and
obligations and prohibitions and prescriptions of certain actions (thus including the
rules within a broader notion of international norms).
Finally, the founding charters of the different international organisations (such as the
Charter of the UN or the Charter of the Organization of American States) and the
international human rights instruments themselves (such as the American
Convention on Human Rights, ACHR, or the ICCPR) establish a range of bodies and
procedures11 to promote the implementation of the regime’s norms. Ultimately, the
bodies of international human rights regimes “make decisions”: through various
concrete monitoring and protection mechanisms or procedures, they determine, in
an authoritative way, to what extent states are complying with or violating the
international norms they have committed to respect.12
The explicit use of the concept of “international regime” is useful for descriptive and
analytical purposes. It is more precise than the vague notion of “system” (for
example, the “Inter-American system” of human rights) that is commonly used in the
legal literature or by “practitioners” or other actors directly involved in the promotion
and defence of human rights.

2. International human rights

regimes
Until now, we have referred to the “international human rights regime” in the singular.
However, in empirical terms, there is a much broader and more diverse reality. Even
when their principles do not vary and the norms are in some cases similar, in
practice, we can talk about the existence of several human rights regimes. The
international instruments containing human rights norms are numerous and very
diverse, as are the decision-making and implementing bodies. It is possible and, in
fact, necessary to regroup the different norms and decision-making and
implementing bodies according to certain criteria related to a particular aspect or
affinity. For example, some sets of norms and bodies are explicitly related to broad,
yet specific categories of rights (such as civil and political rights on one hand, and
economic, social and cultural rights, on the other) 13 or to specific rights (such as the
prohibition of torture and forced disappearance). Other sets of norms and bodies can
be regrouped according to the specific group of subjects they seek to protect (such
as women, children, migrant workers or persons with disabilities).
However, the most common way of disaggregating the complex international human
rights regime, or grouping together its components, is according to the international
(or intergovernmental) organisations from which they have originated or in which the
concrete groups of existing norms and bodies are inserted. Here, we can talk about
the UN or the universal regime; the Council of Europe (CoE) or European regime;
the OAS or Inter-American regime; or the African Union (AU) or the African regime
(see table 1).14 This classification criteria will be used in this article for two reasons.
On one hand, it corresponds to common practice in other fields (such as law) and
the world of “practitioners”. Secondly, it emphasises the key role international
organisations play not only in the promotion and defence of human rights in the
world, but also in the regulatory and institutional development of the international
system – an issue that is particularly important for IR.

Table 1. International human rights regimes16

International
Main decision-making and
Regime organisation to which Main international instruments
implementing bodies
it is linked

Universal
United Nations (UN) Charter of the UN Human Rights Council17
regime

Universal Declaration of Human Rights

Committee on the
International Convention on the Elimination of All
Elimination of Racial
Forms of Racial Discrimination
Discrimination

International Covenant on Economic, Social and Committee on Economic,

Cultural Rights Social and Cultural Rights

International Covenant on Civil and Political Rights Human Rights Committee

Committee on the
Convention on the Elimination of All Forms of
Elimination of Discrimination
Discrimination against Women
against Women

Convention against Torture and Other Cruel,

Committee against Torture
Inhuman or Degrading Treatment or Punishment
 Committee on the Rights of
Convention on the Rights of the Child
the Child

International Convention on the Protection of the Committee on the Protection

Rights of All Migrant Workers and Members of of the Rights of Migrant
Their Families Workers

Convention on the Rights of Persons with Committee on the Rights of

Disabilities Persons with Disabilities

International Convention for the Protection of All Committee on Enforced

Persons from Enforced Disappearance Disappearance

Inter- Organization of
Inter-American Commission
American American States Charter of the OAS
on Human Rights
regime (OAS)

American Declaration of the Rights and Duties of Inter-American Court of

Man Human Rights

American Convention on Human Rights

Inter-American Convention to Prevent and Punish

Torture

Additional Protocol to the American Convention on

Human Rights in the Area of Economic, Social and
Cultural Rights, “Protocol of San Salvador”

Inter-American Convention on the Prevention,

Punishment, and Eradication of Violence against
Women, Convention of Belém do Pará

Inter-American Convention on Forced

Disappearance of Persons

Inter-American Convention on the Elimination of All

Forms of Discrimination Against Persons with
Disabilities

European
Council of Europe Statute of the Council of Europe Committee of Ministers
regime
 European Convention for the Protection of Human
European Court of Human
Rights and Fundamental Freedoms (and its 14
Rights18
protocols)

Committee of Independent
European Social Charter Experts and Governmental
Committee

European Convention for the Prevention of Torture

European Committee for the
and Inhuman or Degrading Treatment or
Prevention of Torture
Punishment

African African Commission on

African Union Constitutive Act of the African Union
regime Human and Peoples’ Rights

African Charter on Human and Peoples’ Rights

Protocol to the African Charter on Human and

African Court on Human and
Peoples’ Rights on the Establishment of the
Peoples’ Rights
African Court on Human and Peoples’ Rights

Protocol to the African Charter on Human and

Peoples’ Rights on the Rights of Women in Africa

African Charter on the Rights and Welfare of the

Child

SUBJECT- POLICE LAW AND ADMINISTRATION

2. AMISSIBILITY AND INADMISSIBILITY OF EVIDENCE

The term “admissibility” means the state or quality of being admissible or

permissible. In the legal sense, the term “evidence” means anything
admitted by a Court to prove or disprove alleged matters of fact in a trial.
Thus, the admissibility of evidence means any document, testimony, or
tangible evidence used in a Court of Law. All evidence is not allowed in the
Court, only those evidence which is reliable and relevant are admitted in the
Court of Law. Evidence is introduced to a judge or a jury to prove a point or
an important element in a case. 

The term ‘admission’ is defined in Section 17 of the Indian Evidence Act,
1872. In general sense, the term admission means power or permission to
enter, admittance, entrance, access, the power to approach. In the legal
sense, acquiescence or concurrence in a statement made by another, and
distinguishable from a confession in that an admission presupposes prior
inquiry by another, but a confession may be made without such inquiry. A
fact, point, or statement admitted; as the admission made out of Court are
received in evidence. 

Definition of Evidence 

The term evidence is defined in Section 3 of the Indian Evidence Act, 1872.
In the general sense, the term evidence means facts or observations
presented in support of an assertion. In the legal sense, the term evidence
can be described as anything admitted by a Court to prove or disprove
alleged matters of fact in a trial. 

Conditions of Admissibility of Evidence in Court

Section 20 of the Indian Evidence Act, 1872 states about the admissions of

persons referred to or by a party to a particular suit. This section brings
another exception to the general principle of admissions made by strangers
to the suit. Admissions made by a third party are considered relevant and are
admissible when a party refers another to him for information in regard to
uncertain or disrupted manner.

There are two basic factors that are considered when determining whether
evidence is admissible or not:
Relevant
The evidence must prove or disprove an important fact in the criminal case.
If the evidence doesn’t relate to a particular fact, it is considered “irrelevant”
and is therefore inadmissible and is also not permissible in Court.

Reliable
Reliability refers to the credibility of a source that is being used as evidence.
This usually applies to witnesses’ testimonies.

What constitutes admissible evidence under the Indian

Evidence Act, 1872?

Evidence under the Indian Evidence Act, 1872 means and includes:

1. All the statements which are permissible and admissible by the

Court made by the witnesses before it or in front of the magistrate,
regarding the matters of a dispute under question.
2. All the statements which are permissible and admissible by the Court
made by the witnesses before it or in front of the magistrate,
regarding the matters of a dispute under question.

What kind of evidence are inadmissible in Court 

What are the factors that determine the

inadmissibility of the evidence?

Unfairly Prejudicial 

The word prejudicial means tending to convince based on past history rather
than on evidence about the case in hand. The evidence which is unfairly
harmful, detrimental, injurious, or biased towards the case without
establishing any proper fact and outraging the jury or the judge without
providing any material fact but conjecture is often excluded from the Court
proceedings. For example, a child’s photograph around the victim’s body.

Wastes Time 

During trials, the advocates representing their clients often provide with
evidence or witness which can lead to the wasting of time of the Court. Such
witnesses or evidence are excluded from a Court proceeding. For example, it
is a waste of time for the Court if the advocate produces twenty separate
people to prove that the accused is an honest person. 

Misleading

Evidence which could draw away the jury’s or the judge’s attention away
from the main issue or essence of the case such evidence is considered as
misleading evidence and excluded from the Court proceedings. For example,
a minor’s gender in a case of rape is irrelevant because the main fact to be
established is whether rape was conducted or not on the minor and it is not
important to know whether the minor was of which gender.

Hearsay evidence

Hearsay evidence is when a person has not particularly himself seen or heard
something in the happening of that event but got the knowledge of certain
happening of an event from someone else. Such evidence is inadmissible
because any human can lie and blame the other person for saving someone
or to escape from punishment. 

Character

The evidence produced by the plaintiff party to prove the character of the
defendant has certain traits which are excluded from the Court proceedings
unless the defendant introduces the evidence of character first in the
hearing.
Expert Testimony

Expert testimony is only admissible when originally given by an expert and

not by a layman. A layman cannot provide expert testimony, a layman’s
testimony is not admissible.

Privileges

The Court does not allow any kind of privilege information obtained by any
attorney-client privilege as well as any other self-incriminating information.
Such information is confidential and would perjure the attorney and is
inadmissible in the Court of law. 

‘A’ sold a car to ‘B’. ‘B’ asked ‘A’ whether the car sold by ‘A’ to ‘B’ functions
properly or not. ‘A’ replied to ‘B’ saying- “Go and ask ‘E’ as he knows all
about it”. Thus, a statement made by ‘E’ would be admissible in Court. But in
case ‘B’ himself went and asked ‘E’ whether the car is functional or not
without ‘A’ telling him to do so. Then the statement made by ‘E’ would be
inadmissible in Court.

Section 136 of the Act

Only the judge can decide whether evidence is admissible or relevant or

permissible in Court. The judge may ask an individual to explain in what way
or manner the individual person proposes to show proof or establish a fact.
The judge would allow the proof only if it is relevant enough to the matters in
dispute and if the judge is satisfied with the reaction of the particular
individual. The aspect of relevance supersedes the aspect of admissibility in
the Court proceedings.

Admissibility of Evidence in Courts

 In Civil proceedings- In Civil proceedings, an element of a case is

weighed by the standard or superiority or power of the evidence.
 However, the evidence produced is generally government
documents such as leases, sale deeds, rent agreements, gift deeds,
etc. 

 In Criminal proceedings- In Criminal proceedings, the evidence is

used to prove whether the defendant in a disputed matter is guilty or
not beyond a reasonable doubt. However, in criminal proceedings
evidence can only be used when it is considered admissible and
relevant to the facts or issues or matter or any other factor of dispute.
The decision of whether an evidence is admissible or not is on the
Court’s discretion.

Admissibility of Electronic Evidence under Act 

The Indian Evidence Act, 1872 was amended by manifestation of Section

92 of Information Technology Act, 2000 (Before the amendment). Section 3
of the Indian Evidence Act, 1872 was also amended that previously it only
included all the documents which were produced for inspection in the Court
as evidence but after the amendment the Act said that it included all the
documents including the electronic records which were produced for
inspection in the Court as evidence. And in regards to the documentary
evidence stated in Section 59 the words ‘Contents of documents’ and
‘Contents of documents or electronic records’ were substituted by Section
65A and Section 65B to include the admissibility of the electronic evidence
and other electronic records. Thus, just like other evidence, electronic
evidence or digital evidence is also considered as evidence admissible in
Court if it is relevant and not against any factors of inspection of the Court.

The term e-evidence can be expanded as electronic evidence. It is also said

to be digital evidence. In today’s world use of the internet, mobile phones,
mobile applications, laptops, computers, tablets, ipads, etc. is very common.
Almost every next person creates a profile on Facebook, Snapchat,
WhatsApp, Twitter, Instagram, etc. There is continuous monitoring of all the
activities and events taking place in a particular area by the guards and
policemen via CCTV cameras and other devices. The footages or snaps or call
records obtained from sources that are authentic in nature and can be
produced before the Court to prove the defendant guilty and are relevant and
admissible are termed as e-evidence. Examples of electronic evidence are
data stored in a computer system, information transmitted electronically
through any communication network, etc.

Section 65A and Section 65B of the Indian

Evidence Act
Section 65A and Section 65B were added by the Information Technology Act,
2000 substituting Section 59 of the said Act. Section 65A is always read
along with Section 65B as Section 65A contains the contents of electronic
records which have to be proved by the provisions mentioned in Section 65B.
Section 65B states the admissibility of electronic records. 

It states that any record which is contained in any electronic or digital

records which are printed on a sheet, copied from somewhere, stored in a
particular place or recorded in a device or copied in any visual media shall be
termed as a document. And if the terms specified are satisfied by such a
document it shall be necessarily admissible in Court proceedings without any
proving of such document in the future. 

Conclusion

Hence, an evidence is admissible in Court proceedings only if it is relevant to

the facts or issues or matters in dispute. If evidence is admissible but
irrelevant to the case then it is only a waste of time for the Court. Thus,
evidence shall be relevant and shall also satisfy all the specified provisions of
admissibility then only it can be admissible in the Court of Law. As of the
present situation, even the electronic or digital records are admissible as
evidence as they are reliable, relevant and obtained from an authentic source
of electronic communication. 
Evidence is the most integral and indispensable element of any proceedings
either criminal or civil and shall be safeguarded from any kind of
manhandling or else it might turn inadmissible in the Court.

The Indian Law

According to the general approach of the Indian legal system, illegality or impropriety in the
gathering or procuring of evidence does not, in itself, render the evidence so procured
inadmissible, though it may affect its weight in some cases. Courts in India have, in general,
treated such violations of the law as having no relevance to the admissibility of the evidence.

This approach might have been due, to some extent, to the fact that the Indian Law of
evidence is almost entirely codified, with an elaborate classification of facts into relevant
and irrelevant, and specific categorisation of admissible and inadmissible evidences and
similar other differentia laid down by statute. The Indian Evidence Act was perhaps the first
comprehensive code of evidence enacted in the entire commonwealth (1872). By the time
developments regarding the discretion of the court to exclude evidence on grounds of public
policy took shape elsewhere, the Act had already become firmly embedded in the training
and upbringing of the Indian Judiciary. The super-imposition of common law doctrines upon
the codified framework of the law of evidence did not find a very hospitable soil in the
Indian Legal System. Indian Courts, in deciding questions of the admissibility or otherwise of
evidence, had recourse only to the scheme and text of the Indian Evidence Act, 1872 and
were not inclined to go outside the four corners of the Evidence Act for determining the
questions of admissibility.

There is also another feature of the legal system of India, relevant to the matter under
discussion. It has so happened that by the time the Evidence Act came to be enacted, the
substantive criminal law and the law of 137 criminal procedure in India had also come to be
in a codified form. In its totality, this situation seems to have led to the implicit assumption
that one must, in this sphere, have recourse to the statute law only. This approach was
fortified by the well-known pronouncement of the Privy Council to the effect that the
“essence of a Code is to be exhaustive in respect of all matters dealt with by the Code.” This
statement of the Privy Council on the interpretation of Codes in general became a classical
test, which came to be cited almost on every occasion when an attempt was made in the
courts to persuade the judge to travel outside the code on a particular subject for seeking
guidance in evolving the law. The same approach prevailed as for the interpretation of the
Evidence Act.213 In short, the law of evidence ceased to draw its juices from any other roots
except what had been enacted in a codified form.

Besides this, there is yet another feature of the Indian legal system that might be
appropriately referred to in the present context. The topic of admissibility of confessions in
criminal cases has in other countries provided a fertile ground for the exercise of judicial
discretion to exclude evidence obtained unfairly. But, in India, the subject has been treated
elaborately in a chain of sections in the 213 Lekhraj v. Mahipal, (1878) I.L.R. 5 Cal. 744 (PC).
138 Evidence Act,214 thereby removing this particular topic from the area of discretion and
narrowing down the judicial creativity. Hence, in India, the question whether a particular
 confession can, or cannot, be admitted on the record falls to be determined almost
exclusively by the statutory law and interpretation thereof, rather than by drawing any
principles originating in uncodified law. “Justice, equity and good conscience” has been
almost barren in this area of the law.

This is not the place for setting out the gist of the sections of the Evidence Act relating to
confessions.215 The Law Commission of India has had occasion in the past to analyse, as
well as consider, these provisions in detail, in its comprehensive Report on the Evidence Act.
216 The point that is now being made is that matters which, if there had been no codified
law of evidence, would probably have been dealt with in a more elastic manner by the
exercise of the discretion of the court to exclude certain evidence have in India, been pre-
empted by statutory provisions enacted on specific topics, of which confessions are one
important example.

It is also probable that once this “statute-oriented” approach established itself in the sphere
of confessions 214 Sections 24-30, Indian Evidence Act, 1872. 215 Ibid 216 Law Commission
of India, 69th Report (on Indian Evidence Act, 1872) submitted to the Central Government in
May 1977. 139 where there are specific statutory provisions as to the admissibility of
confessions recorded in varying circumstances, it later became a matter of habit for the
courts to adopt the same approach on other topics as well. As a result, in regard to other
species of evidence also, even though there were no specific statutory provisions as to
admitting or not admitting a particular species of evidence obtained in violation of the law,
the same stance came to be adopted by the courts. The most familiar example of this is
furnished by the judicial approach in India in respect of evidence procured by search. The
Code of Criminal Procedure, 1973 lays down elaborate provisions as to the mode of search
to be carried out by the police for the purposes of investigation into an offence. 217 These
provisions incorporate a number of safeguards required to be observed by the police in
carrying out such searches. When questions arose as to the admissibility in evidence of
materials gathered in a search that had been conducted in violation of the relevant statutory
requirements (particularly, the statutory requirement that the search must have been
conducted in the presence of two independent witnesses),218 the courts, in general, started
adopting a legalistic approach. According to the trend of authority, evidence so obtained is
217 Section 100, Code of Criminal Procedure, 1973 218 Section 100(4), Code of Criminal
Procedure, 1973 140 not per se, inadmissible. 219 Nor is there recognised any discretion on
the part of the trial judge to exclude evidence obtained through a search not conducted in
accordance with law.

3. WHITE COLLAR CRIME

The white collar crime or we will say the “white collar criminality” are often
described as the crime committed by an individual of respectability and high
social station , within the course of his occupation, consistent with the
American Sociologist Edwin Sutherland.

In 1934 Elbert Moris drew attention of world to the need of a change in

emphasis regarding the crimes of upper society . He approve that anti- social
activities of person of high status committed in course of their profession
must be brought with the category of crime and will be made punishable , in
any case this Edwin Sutherland, through his extraordinary work emphasized
that these “upper class crimes which are committed by the people of upper
class or upper socio economic groups in course of their occupation , violating
the trust of subordinate class or group of individuals should be termed as
“white collar crime” So, on be distinguished from traditional crime which is
understood as blue collar crime, after this theory the concept white collar
crime found its place in criminology for the primary time in 1941.

So now it defines in a way that , white collar crime is an illegal act or illegal
acts or doing of legal act for achieving an illegal objective committed by a
person by non- physical and non- violent means to become financially
powerful on to avoid payment of legal dues or retain money or property
,wrongfully to get wrongful business of private advantage.

As per above definition of white collar crimes contains following attributes- it

is a crime, committed by a person of higher class, in the course of his
profession or occupation, it is usually a violation of trust, with non- physical
means.

Situation in India
India is the seventh largest country of the world , the home of several world
leaders and number of industrialist , multi – millionaires , business men and
financially powerful people. So , India is also vulnerable for white collar
crimes.

In India there has been prevalence of white collar crimes over a period of
time, they are spreading like a rapid fire in every sphere of society. Through
corruption , one of the species of white collar crime, has been the most
talked about issue in all sphere social , economic and political mostly in its
two forms including patronage and favoritism , not much strict action have
been taken to eradicate this evil. The Indian Penal Code 1860, is the earliest
comprehensive and codified criminal law of India. It specifically does not the
mention the word, “white collar crime.” But deals with many offences which
are closely linked to white collar crimes, such as bribery and other forms of
corruption and many others.

The reason for enormous increase in white collar crimes in recent decades is
to be found in the fast developing economy industrial growth of this
developing country. The Santhanam committee report in its findings gave a
clear picture of white collar crime committed by persons belonging to higher
social strata. It includes business, industrialists, contractors , suppliers as
well as corrupt public officials. The report of the Vivin Bose commission of
inquiry which looked into the affairs of Dalmia

Jain group of companies 1963,highlighted that how industrialists indulge

themselves in white collar crime such as forgery, fraud, falsification of
accounts, tempering with record for personal gains and tax, evasions etc.
Similar observations were made by Mr. Justice M.C Chagle while dealing with
the case of business tycoon Haridas Mundhra, an industrialist and stock
speculator sold fictitious shares to Life Insurance Corporation (LIC) and
thereby defrauding LIC by 125 crores. Mr. Jawaharlal Nehru, (the then Prime
Minister), set up a one-man commission headed by Justice Chagla to
Investigate. Justice Chagla  concluded the matter and Haridas was found
guilty and was sentenced to imprisonment of 22 years and T.T.
Krishnamachari, the then Finance Minister, resigned from his position.

Satyam Scam, 2009: Satyam was the biggest scam in the history of India.
The Satyam scam of 2009 has shatter the peace and tranquility of investors
in the share market. The chairman Ramalinga Raju has manipulated the
financial statement and the books of accounts. Satyam’s books of account
shows:

 Over stated Assets of Rs. 490 crores.

 Fake cash balance over Rs. 5000 crores in the balance sheet.

 Interest component of Rs. 376 crores which never flowed into the
company’s coffers.

 Understated Liabilities of Rs. 1,230 crores.

He has also inflated with revenues and net profit figures of the company,
with which he was charged with heavy penalty.

Sahara vs. SEBI [11] : It was a case of issuing misleading information and
clause in prospectus of company. 

 Here the question raised that whether the private placement of shares can
be treated as offer? 

 In this cases, Sahara India Real Estate Corporation Limited (SIRECL) and
Sahara Housing Investment Corporation Limited (SHICL) floated an issue of
option of fully convertible debenture (OFCD’s) to more than million investors
and termed their issued debenture as private placement, with a defense that
the company did not intend to get their OFCD’s listed because the security
which have been issued is a Hybrid Security. 

 During this period, the company had total collection of over Rs. 17,656
crore. This amount was collected from 30 million of investors.

 The Hon’ble Supreme Court on 31staugust, 2012 in one of the most

anticipated judgment of recent times has directed the Sahara Group and its
two group companies SIRECL and SHICL to refund around Rs. 17,400 crore
to their investors within 3 months.

 Supreme Court also ruled that SEBI has myriad powers to invest listed and
unlisted

companies functioning regarding the issue of securities in order to secure the

interest of investors. This was the landmark judgment in the field of Indian
corporate Law.

The PNB bank case: Nirav Modi and Mehul Choksi, in conspiracy with
several senior as well as junior officials, defrauded Punjab national bank of
several thousand crore of rupees. These PNB officials fraudulently issued
LoUs and LoCs on behalf of several companies belonging to the duo for
availing buyers; credit from overseas branches of Indian banks. None of the
transactions were routed through the Core Banking Solution system, thus
avoiding early detection of clear picture fraudulent activity, which was going
on since 2011.

Several other cases such as 2g spectrum scam, Adarsh housing society

scam, CwG fraud, various land scams etc. Have negatively impacted India’s
reputation internationally . The infringements are of various kinds with
bribery and corruption making 83% of cases. A large part of the frauds also
relate to cyber-crimes 71%, and diversion of assets 65%. The sector most
affected are financial services33% and information and entertainment 17% ,
according to the survey.

White collar crime:

White collar crimes are the crimes committed by people of
elite, respectability and high social status, in course of their profession.

White collar crimes covers criminal activities which are committed by people
in the regular course of their business including bribery, extortion, fraud, and
embezzlement 
White collar crimes are performed by people in the course of business
committed to become financially powerful .These crimes are committed out
of greed and most of the people who commits these crimes are financially
stable. The enhancement of technology, growing businesses, and political
pressures have created a wide scope for these white collar crimes.

There are various forms of white collar crime including internet fraud, Stock
fraud, Bribery, Income tax evasion, Bank Fraud, Cellular phone fraud, credit
card fraud, health care fraud, insurance fraud, etc.

OMBUDSMAN

Origin and Concept

The term “Ombudsman” is a Swedish term which means a person having an
ear to hear the people. The Ombudsman is appointed by the state for
redressal of grievances of common people against the state. The term is
used for impartial, confidential and independent institution to receive inquires
and work for solutions. When we use this term in banking it means, he is
appointed and controlled by the regulators of the banks i.e. Reserve bank of
India to decide the matters against any bank. In India, at the first time, it
was introduced in 1995 by the Reserve Bank of India . On the
recommendations of the informal group constituted by Reserve Bank of India
to improve upon the effectiveness of the scheme, the Banking Ombudsman
Scheme 1995. Accordingly, the revised Banking Ombudsman Scheme 2002
came into effect on 14th June 2002. Presently, Banking Ombudsman is
established under the provisions of the Banking Ombudsman Scheme 2006.

The Banking Ombudsman creates an onus through Section 35A of the

Banking Regulation Act, 1949 to appoint a banking ombudsman, who is a
senior official not below the rank of Chief General Manager or General
Manager appointed by the Reserve Bank of India. The scheme came into
effect from the year 1995 and presently the current operational scheme is
Banking Ombudsman Scheme (amended up to July 1, 2017). The main aim
of the scheme is to have a resolution scheme related to the services
rendered by the banks in case the customer is not satisfied with the same
and in cases where there is no solution provided by the banks for settlement
of such complaints and disputes.

The Banking Ombudsman Scheme extends to the whole country and covers
the business of banking industry in the country that means all scheduled
commercial banks, rural banks, cooperative banks will come under the
purview of the scheme. Reserve Bank of India shall specify the jurisdiction or
the territorial limits of the selected ombudsman. The ombudsman shall be
responsible for receiving and considering the complaints filed by the
aggrieved parties irrespective of the amount of money involved in the
complaint. He will be responsible for the settlement of the dispute between
the bank and the aggrieved party either by the process of mediation or
conciliation or if necessary by giving an award to the concerned party if the
circumstances require so. The appointed ombudsman has to submit a report
to the governor of the Reserve Bank on 30th June of every financial year
regarding the activities conducted through his office during the preceding
financial year and also any other details as asked by the Reserve Bank.

Can Banking Ombudsman award compensation for harassment

Yes, the Banking Ombudsman is empowered in this respect. In a case,
person started to get recovery calls from the bank and police though he had
not any relation with the bank. When this fact was known by the bank, the
bank apologized for the discomfort undergone by him and regretted the
recovery calls made erroneously to him for a credit card which was not his.
Taking note of bank gross deficiency , The banking Ombudsman directed the
bank to compensate the complainant by paying rs.10,000and also ensure
That his CIBIL records are updated suitably.

Ombudsman
An ombudsman (/ˈɒmbʊdzmən/, also US: /-bədz-, -bʌdz-/,[1][2][3] Swedish: [ˈɔ̂mːbʉːdsˌman]), ombud
sperson, ombud, or public advocate is an official who is charged with representing the
interests of the public by investigating and addressing complaints of maladministration or a
violation of rights. The ombudsman is usually appointed by the government or by parliament but
with a significant degree of independence. In some countries, an inspector general, citizen
advocate or other official may have duties similar to those of a national ombudsman and may
also be appointed by a legislature. Below the national level, an ombudsman may be appointed
by a state, local, or municipal government. Unofficial ombudsmen may be appointed by, or even
work for, a corporation such as a utility supplier, newspaper, NGO, or professional regulatory
body.
The typical duties of an ombudsman are to investigate complaints and attempt to resolve them,
usually through recommendations (binding or not) or mediation. Ombudsmen sometimes also
aim to identify systemic issues leading to poor service or breaches of people's rights. At the
national level, most ombudsmen have a wide mandate to deal with the entire public sector, and
sometimes also elements of the private sector (for example, contracted service providers). In
some cases, there is a more restricted mandate, for example with particular sectors of society.
More recent developments have included the creation of specialized Children's
Ombudsman and Information Commissioner agencies.

What Is an Ombudsman?
An ombudsman is an official, usually appointed by the government, who
investigates complaints (usually lodged by private citizens) against
businesses, financial institutions, or government departments or other public
entities, and attempts to resolve the conflicts or concerns raised, either by
mediation or by making recommendations.
Ombudsmen may be called by different names in some countries, including
titles such as a public advocate or national defender.

KEY TAKEAWAYS

 An ombudsman investigates complaints against businesses and other

organizations, including the government.
 Ombudsmen's decisions are not always legally binding.
 In the U.S. members of Congress serve as ombudsmen.

In politics[edit]
In general, an ombudsman is a state official appointed to provide a check on government activity
in the interests of the citizen and to oversee the investigation of complaints of improper
government activity against the citizen. If the ombudsman finds a complaint to be substantiated,
the problem may get rectified, or an ombudsman report is published making recommendations
for change. Further redress depends on the laws of the country concerned, but this typically
involves financial compensation. Ombudsmen in most countries do not have the power to initiate
legal proceedings or prosecution on the grounds of a complaint. This role is sometimes referred
to as a "tribunician" role, and has been traditionally fulfilled by elected representatives – the term
refers to the ancient Roman "tribunes of the plebeians" (tribuni plebis), whose role was to
intercede in the political process on behalf of common citizens.
The major advantage of an ombudsman is that he or she examines complaints from outside the
offending state institution, thus avoiding the conflicts of interest inherent in self-policing.
However, the ombudsman system relies heavily on the selection of an appropriate individual for
the office, and on the cooperation of at least some effective official from within the apparatus of
the state. The institution has also been criticized: "Ombudsmen are relics of absolutism,
designed to iron out the worst excesses of administrative arbitrariness while keeping the power
structures intact."[10]

In organisations[edit]
Main article: Organizational ombudsman

Many private companies, universities, non-profit organisations and government agencies also
have an ombudsman (or an ombuds office) to serve internal employees, and managers and/or
other constituencies. These ombudsman roles are structured to function independently, by
reporting to the CEO or board of directors, and according to International Ombudsman
Association (IOA) Standards of Practice they do not have any other role in the organisation.
Organisational ombudsmen often receive more complaints than alternative procedures such as
anonymous hot-lines.[11]
Since the 1960s, the profession has grown in the United States, and Canada, particularly in
corporations, universities and government agencies. The organizational ombudsman works as a
designated neutral party, one who is high-ranking in an organization, but who is not part of
executive management. Using an alternative dispute resolution (ADR) or appropriate dispute
resolution approach, an organisational ombudsman can provide options to whistleblowers or
employees and managers with ethical concerns; provide coaching, shuttle diplomacy, generic
solutions (meaning a solution which protects the identity of one individual by applying to a class
of people, rather than just for the one individual) and mediation for conflicts; track problem areas;
and make recommendations for changes to policies or procedures in support of orderly systems
change.
 INDIA

The Government of India has designated several ombudsmen (sometimes called Chief

Vigilance Officer (CVO)) for the redress of grievances and complaints from individuals in
the banking, insurance and other sectors being serviced by both private and public
bodies and corporations.[77] The CVC (Central Vigilance Commission) was set up on the
recommendation of the Santhanam Committee (1962–64).

LOKPAL

In India, the Ombudsman is known as the Lokpal or Lokayukta. An Administrative

Reforms Commission (ARC) was set up on 5 January 1966 under the Chairmanship
of Shri Morarji Desai. It recommended a two-tier machinery: Lokpal at the Centre
(parliamentary commissioner, as in New Zealand) and one Lokayukta each at
the State level for redress of people's grievances. However, the jurisdiction of the Lokpal
did not extend to the judiciary (as in case of New Zealand). The central Government
introduced the first Lokpal Bill, Lokpal and Lokayuktas Bill in 1968, and further legislation
was introduced in 2005. Final bill, after all the amendments, has been passed in Rajya
Sabha on 17 December 2013 and passed in Loksabha on 18 December 2013

LOKAYUKTAS
The state-level Lokayukta institution has developed gradually. Orissa was the first state to
present a bill on establishment of Lokayukta in 1970, but Maharashtra was the first to establish
the institution, in 1972. Other states followed: Bihar (1974), Uttar Pradesh (1977), Madhya
Pradesh (1981), Andhra Pradesh (1983), Himachal Pradesh (1983), Karnataka (1984), Assam
(1986), Gujarat (1988), Delhi (1995), Punjab (1996), Kerala (1998), Chhattishgarh (2002),
Uttaranchal (2002), West Bengal (2003) and Haryana (2004). The structure of the Lokayukta is
not uniform across all the states. Some states have UpaLokayukta under the Lokayukta and in
some states, the Lokayukta does not have suo moto powers of instigating an enquiry.
Kerala State has an Ombudsman for Local Self Government institutions like Panchayats,
Municipalities and Corporations.[79] He can enquire/investigate into allegations of action, inaction,
corruption and maladministration. A retired Judge of the High Court is appointed by the Governor
for a term of three years, under the Kerala Panchayat Raj Act.
In the State of Rajasthan, the Lokayukta institution was established in 1973 after the Rajasthan
Lokayukta and Up-Lokayuktas Act, 1973 was passed by the State Legislature.

How an Ombudsman Works

Depending on the jurisdiction, an ombudsman's decision may or may not be
legally binding. Even if not binding, the decision typically carries considerable
weight. When appointed, the ombudsman is typically paid via levies and case
fees. An ombudsman typically has a broad mandate that allows him or her to
address overarching concerns in the public, and sometimes the private,
sector.

However, sometimes an ombudsman’s mandate extends over only a specific

sector of society—for example, a children’s ombudsman may be tasked with
protecting the rights of the young people of a nation, while in Belgium, the
various linguistic and regional communities have their own ombudsmen. In the
United States, members of the United States Congress serve as ombudsmen
at the national level, representing the interests of their constituents and
maintaining staff tasked with advocating for constituents faced with
administrative difficulties, especially those caused by maladministration.

Ombudsmen are in place across a wide variety of countries and organizations

within those countries. They may be appointed at a national or local level, and
are often found within large organizations too. They may focus exclusively on
and deal with complaints regarding a particular organization or public office, or
they may have wider ranges.

For example, an industry ombudsman such as a consumer or insurance

ombudsman may deal with consumer complaints about unfair treatment the
consumer has received from a private company that operates within that
industry. Often—and especially at the government level—an ombudsman will
seek to identify systemic issues that can lead to widespread rights violations
or poor quality of service to the public by the government or institution in
question.

A large public entity or other organization may have its own ombudsman. (For
example, the California Department of Health Care Services has its own
ombudsman.) Depending on the appointment, an ombudsman may
investigate specific complaints about the services or other interaction a
consumer has had with the entity concerned; an ombudsman within an
organization may also have a primary function of dealing with internal issues
(such as complaints by employees, or, if an educational institution, complaints
by its students).

Special Considerations
Ombudsman duties may be more wide-ranging nationally. As an example of
this, some countries have ombudsmen in place to deal with issues such
as corruption or abuses of power by public officials. Furthermore, some
countries have ombudsmen whose main function is to protect human rights
within those countries.

Although an ombudsman is usually publicly appointed, he or she will typically

have a large degree of independence in fulfilling his or her function. This is to
enable the official to act in a fair and impartial way to all parties involved in a
complaint.
CONFIRMATION  OF DEATH SENTENCES (CHAPTER 28, Cr.P.C).

SUBJECT- SENTENCES AND SENTENCING

SUBMISSION OF DEATH SENTENCE FOR CONFIRMATION

Introduction

In India, death penalty often being awarded for committing heinous crimes
like murder, gang robbery with murder, abetting suicide of a child or insane
person, waging war against the government, and abetting mutiny by a
member of the armed forces. Death penalty depends upon intensity and
harshness of an act performed by the person. Presently, judges in India can
only award the death sentence in the ‘rarest of rare’ cases.  In 2013, an
amendment to the law permitted the death as a punishment in cases where
the rape was lead to the death of the victim or left the victim in a persistent
vegetative state, as well as for repeat offenders. The course of the trial of the
death penalty was followed by the procedure provided in the Criminal
Procedure code 1973. After the procedure, it is up to the discretion of the
Session Judge to provide death sentence subject to certain power defined in
the code.

What are the Inherent powers given to Session Judge?

“Section 28 of the Criminal Procedure Code 1973, gives the power to High
Court and Session Court to pass sentence on any convict which includes any
sentence which is conferred then by law.

Section 28(2) – A Session Judge or Additional Session Judge may pass any
sentence authorized by law, but any sentence of death passed by any Judge
shall be subject to confirmation by the High Court.
After the death sentence has been awarded by the Session Judge, it shall be
subject to confirmation by the High Court and the same sentence was sent to
High Court which is looked by the division bench.

What are the provisions given under Code of Criminal

Procedure 1973 regarding death sentence?

1. Section 366 of the Criminal Procedure code 1973 states that

“When the court of session passes a death sentence, the proceeding
shall be submitted to the high court and it shall not be implemented
unless it is approved by the high court.

It was held In Balak Ram case, that the High court needs to look both the
facts and question of law involved in awarding the death sentence by the
Session Court and after the High court properly investigated the matter
awards death sentence to the person. (A.I.R. 1974 S.C.2165).

Subject to provision given in Section 367 of the Code “When the death
sentence is submitted  to the high court subject to its confirmation, and if
high court is in the opinion that the case requires further inquiry, it may do
itself or directs Court of session to go to and the person to whom the death
sentence has been awarded directs to be suspended unless the High court
directs.

Whenever such case laid before the High Court, it may

1. Confirm the death sentence passed by a court of sessions,

2. Directs the Court of Sessions, to  further inquiries into the matter,
or order  a fresh trial,
3. If the court finds irrelevant considerations, lack of evidence, it may
acquit the accused.

Further,  Section 369 of the code provided in every such case of a death
sentence shall be presided by division bench or more, and order should be
signed by at least two judges of the bench.
Section 370 of the Code, When the bench presiding over the matter is equal
in terms of ratio, then the matter should be laid before another judge of
respective High court, who may after observing the circumstances of the
case, passed the judgment.

After the confirmation of death sentence by High Court, the authorized officer
of the High Court must, without any further delay, send an approved copy of
an order, under the seal of High Court, and attested with his official
signature, to the Sessions Court.

Whether an appeal lies to the Supreme Court, from the

order of High court?

Section 413 of the Code of Criminal Procedure provides that if a case is

submitted before the High Court, and after receiving approval of the death
sentence by the High Court, the Court of Session shall make such
arrangement so, as to give effect to the order confirmed by the High Court.

Further, Section 415 provides that if the order of death is confirmed by the

high court, it shall be subjected to appeal in the Supreme Court under clause
(a) or (b) of Article 134 (1) of the Constitution, the High Court must order
the execution of death sentence to be postponed until the period of appeal
has lapsed or such appeal is disposed of.

If a certificate is granted by the High Court under article 134 (1) of the
Constitution, the High Court must order the execution of the sentence to be
delayed until the period of appeal to Supreme Court on certificate made has
expired.

If a sentence of death is approved by the High Court, and the High Court on
finding relevant considerations in the case thinks fit that a special leave
under article 136 lies to the Supreme Court, it must order the execution of
sentence to be postponed for such period, so to enable a person to filed
petition.

After, the end of the judicial process and rejection of petition under article
136 by the Supreme Court of India, the only alternative left with the accused
is mercy petition to the President of India.

Last Resort: Pardoning powers of Governors /The

President

After, confirmation of death sentence by the Supreme Court, the provision

under section 354 (5) Cr.P.C.)  states that the convict shall be ‘hanged by
the neck till is dead’. The last resort which is available to the accused is to
appeal for mercy petition. The President of India and Governor under article
72 and 161 of Indian constitution respectively.

Article 72 states that “Power of president to grant pardon, reprieves,

respites or remissions commute sentences in the following cases:

 In every case where the punishment or sentence is by Court-

martial,
 in every case where the punishment or sentence is for an offence
against any law relating to the matter to which the executive power
of Union extends,
 in all cases where the sentence is a sentence of death.

Similarly, under article 161 of Indian Constitution Governor of a state has

the powers to grant pardon, reprieves, respites or commute sentences of any
person convicted of any offence against any law relating to a matter to which
the executive power of the State extends.

Whose Power will prevail?

In case, of the death sentence, only the President has the power to grant
pardons. No such power to grant the pardon in a death sentence has been
given to the governor of the state. The pardoning power of the president
is not absolute. It can only be exercised with “aid and advice” of the Council
of Ministers. Further, no provision under the constitution has mentioned the
mode of exercising the pardoning power of the President.

Thus, Article 161 gives powers to the Governors of States to grant pardons,
reprieves, respites or remissions of punishment or suspend, remit or
sentence of a convicted person of an offence against a law relating to which
the executive powers of the State extends.

Pardoning power under Judicial review

There has been always a question before the Supreme Court of India
whether the pardoning power of the executive should be subjected to judicial
review. Supreme Court in numerous judgements answer this question 

 In Maru Ram v Union of India, the Constitutional Bench of

Supreme Court held that power under article 72 is not absolute and
the President only on the advice  of the Government can exercise
such power.
 In Dhananjoy Chatterjee alias Dhana v State of West Bengal,
the Supreme Court considers its judgment in Maru Ram v Union of
India held that the power under article 72 and 161 of the
Constitution cannot be exercised by the President or Governor on
their own, they are bound with the advice of the Central and State
Governments.
 In Ranga Billa case, same question was laid before the Supreme
Court to decide whether powers under article 72 and article 161
subject to judicial review. In this case, the death sentence of
appellants was confirmed by the Supreme Court and also his
petition before the President was rejected. Then, the petitioner
again filed a writ petition questioning the pardoning powers of the
President under Article 72 of the Constitution . The Supreme Court
 dismissed the petition on the ground that the term “ pardon” itself
states it is the entirely discretionary remedy and grant or rejection
of it cannot be questioned.
 Similarly, In Kehar Singh v Union of India[3], of India applying
its previous view that power under article 72 is not an absolute
power, it can only exercise with the advice of the Central
Government.
 In Swaran Singh v State of U.P., the Governor of U.P.
while exercising his powers under article 161, had granted remission
of life sentence awarded to The Minister of State Legislature of
Assembly convicted for the offence of murder . The Supreme Court
interfere with the matter and held the order of the Governor was
arbitrary in nature.

 In the early case of K.M. Nanavati v State of Bombay[4] ,

Governor decision  under Article 161 which was held invalid  as it
was in against with the Supreme Court rulings under Article 145
 In a landmark judgment Epuru Sudhakar & Anr vs Govt. Of A.P. &
Ors, Supreme court gave some glimpse that the pardoning power
under article 161 and article 71 should be subjected to judicial
review on the following grounds :

If the order has been  without application of mind.

The order is arbitrary and violates constitutional provisions.

The order has been passed taken wholly irrelevant materials.

Now, it is a well-established law  that pardoning powers of the President and

Governor under Articles 72 and 161 respectively  is subject to judicial review.

Some of the Landmark cases dealing death

penalty in India
  In the prominent case of Jagmohan Singh v State of U.P.[5],
was the first case discussing the constitutional validity of death
penalty and it was held the provisions provided by the procedural
law is not sufficient and violative against the fundamental right
given under article 21 of the Constitution and held to be
unconstitutional by the Supreme Court.
 A similar opinion was laid down in case of Mithu v State of
Punjab[6] and  was held that provision of section 303 of Indian
penal code, which provides mandatory death sentence held violative
of article 14 and 21 of the constitution.
 In the cases of T.V. Vatheeswaran v State of Tamil Nadu[7]
and Sher Singh v State of Punjab[8], the same question
regarding the validity of the death sentence was put before the
Supreme Court.
 In the leading case of Machhi Singh v State of Punjab[9], it was
held the death sentence could be awarded in “rarest of rare case”.

Conclusion

After throwing a light on  the various provisions provided  in the Indian legal
system, it is clear that  even after the sentence of death was awarded to the
accused  by the Court of Session, he still has various other alternatives to
avoid the execution of order confirming sentence of death by the procedure
of appeal to the High Court and even after it was confirmed by the High
Court, the accused can knock the door of Supreme Court under its Appellate
jurisdiction or by way of Special leave petition (article 136) . The final
alternative the accused is left with is the Mercy petition( article 72) to the
President of India.

Also, it can be drawn that Indian Constitution provides a fair trial i.e. given
every possible chance to the accused to be heard properly and in fair
manner.
Since 1991, a total of thirty executions have taken place in India. Only
limited offences provide for the death penalty as a punishment that
includes- 

 rape (Section 376 of the Indian Penal Code, 1860 (IPC)), 

 murder (Section 302 of IPC), 
 dacoity with murder (Section 396 of IPC), 
 waging or attempting to wage war against the Government of India
(Section 121 of IPC), 
 certain offences after previous conviction (Section 31A of
the Narcotic Drugs and Psychotropic Substances Act, 1985), and 
 abetting or aiding the act of sati (Section 4(1) of the Commission of
Sati (Prevention) Act, 1987). 

The questions that arise are who can pass a verdict of the death penalty?
What is the procedure of its confirmation? What happens once the death
sentence is passed by a judge of the Sessions Court? Sections 366-371
of the Code of Criminal Procedure, 1973 deals with the ‘Submission of death
sentences for confirmation’. 

Submission for conformation to High Court (Section 366)

Section 366 partially answers the question of who can pass a verdict. This
section provides that if a Session Court passes the death sentence against
the accused(s) then the High Court needs to confirm it before it comes into
effect. Thereby, it is necessary to submit the proceedings before the High
Court and only after confirmation from the High Court the execution can be
brought into effect, and not before that.

The death penalty is the highest level of punishment and it follows the
principle of ‘rarest of rare’ (uncommon crime or that is unusual to a person of
ordinary prudence, the one which shocks and causes tremors throughout the
judiciary and the society). This section works as a precautionary step to
minimize the error while meeting the ends of justice. 
In the case of State of Punjab vs Kala Ram @ Kala Singh (2018), the Court
held that under Section 366(2) of CrPC the court while passing the conviction
shall grant the jail custody of the convicted person under a warrant i.e. the
person shall be kept in custody and not as a punishment. The ‘safe keeping’
in jail custody is the limited jurisdiction of the jailor. It is a trusteeship in the
hands of the Superintendent, and not an imprisonment in a real sense.

The case of Bantu Son of Vidya Ram Bediya vs State Of U.P. (2006) was
submitted to the Allahabad High Court from Agra’s Sessions Court under
Section 366 of CrPC. The accused had committed the offence of rape, murder
and kidnapping. The rape was so gruesome that during the postmortem a
stem of more than a feet was retrieved from her vagina which was inserted
by the accused while committing the offence. Allahabad High Court upheld
the death penalty of the accused stating that it was the rarest of rare case.

Further Sections provide the powers the High Court has in regard to cases
submitted under Section 366 of the CrPC.

Power to direct further inquiry to be made or additional

evidence to be taken (Section 367)

Sub-section (1) of Section 367 of the CrPC provides that when the
proceeding for confirmation of the death penalty is submitted to the High
Court and it notices any point of innocence or guilt of the accused, it may
either direct the Sessions Court or itself to make further inquiry into it or
take additional evidence into consideration. It is usually done when the High
Court feels that the Sessions Court has missed some points or factors.

Sub-section (2) of Section 367 provides that the convict can be directed to
dispense his/her presence during such inquiry or taking of the evidence
unless the High Court otherwise directs.
Sub-section (3) of Section 367 provides that if the Sessions Court (authority
other than the High Court) makes the enquiry or takes into consideration
such evidence then it shall be certified by the Sessions Court. 

In the case of Balak Ram Etc vs The State of U.P. (1974) the Supreme Court
in the final judgment stated that High Court had failed in properly
considering the pieces of evidence of the prosecutor’s witnesses and held
that while inquiring against a death penalty case or taking into consideration
different pieces of evidence, the High Court shall take into consideration all
the pieces of evidence itself as it is its duty.

Power to the High Court to confirm sentence or annul

conviction (Section 368)

Section 368 provides that when a case is submitted to the High Court under
Section 366 of the Code of Criminal Code, the High Court may;

 confirm the sentence passed by the Sessions Court, or pass a

sentence other than the one provided it is warranted by the law, or
 annul the conviction passed by the Sessions Court, and instead
either convict the accused under any other offence for which the
Session’s Court had convicted him/her or order for a trial on an
amended charge or on the same charge, or
 acquit the accused of the charges made against him.

The proviso to the section states that till the time the limitation period to file
an appeal against the verdict is not expired, or the appeal is still pending or
is not disposed of, the Court cannot pass an order of confirmation.

In the case of Kartarey and Ors. vs The State of Uttar Pradesh  (1975), the
Sessions Court had passed the verdict announcing the death sentence which
was later altered by the High Court. When the case reached the Supreme
Court it was observed that the High Court has committed a grave error in
examining the evidence or additional evidence. 
It states that it is the duty of the High Court to ‘reap-praise’ the evidence in
totality and it shall come to a conclusion on the merits of the case only after
considering the proceedings in all their aspects. It is important and crucial to
consider the defence evidence equally and not to neglect it as this is
contradictory to the settled rule of practice and law.

Confirmation or new sentence to be signed by two judges

(Section 369)

Section 369 provides that whenever a case is submitted to the High Court

under Section 366 of CrPC it shall be heard by a divisional bench i.e. at least
by two or more judges. For confirmation of: 

 the sentence, or
 any new sentence, or
 any order.

Passed by the High Court shall be ‘made, passed and signed’ by either two or
more judges. It is an essential condition that cannot be ignored.

Procedure in case of difference of opinion (Section 370)

A question that arises now is what happens when the judges in equal
proportion have conflicting opinions? Section 370 of CrPC provides the
answer to it and states that the manner provided in Section 392 of CrPC shall
be followed in the case when sitting judges that heard the case are equally
divided in opinion about the case. The parties do not have to specify it to the
court, the court takes the suo-moto and follows the procedure as per Section
392 of CrPC.

The Section 392 of states that when a High Court bench hears a case and
ends up having divided opinions, in such case the appeal along with the
diverging opinions shall be laid before a judge of the same Court. That judge
shall deliver his/her opinion only after hearing the judges, and that opinion
shall be followed by the judgment or order in question.

The proviso to the section states that if any of the sitting judge, or the judge
before whom the judgment or order in question is laid under this section,
requires the appeal to be heard again or be heard by a larger bench of
judges then it shall be done accordingly.

In various cases, this section has been applied including the case of Sri D N
Srinivash Reddy vs State of Karnataka   (2018). In this case, the judges while
deciding the case were not able to pass a majority decision due to difference
in opinion therefore, the procedure described under Section 392 was
followed. The judge who heard the matter under Section 370 of CrPC
quashed the proceedings against the accused who were arrested during a
raid.

Procedure in a case submitted to the High Court for

confirmation (Section 371)

Section 371 of the Code of Criminal Procedure provides that cases of the
death penalty which are submitted to the High Court by the Sessions Court
after being decided upon shall be sent to the Sessions Court. The order
passed by the High Court shall be one of the options provided in Section 368
i.e. confirmation, annulment of the conviction, the acquittal of the accused
among others. It is the duty of the concerned officer of the High Court to
send a copy of the order passed by the High Court to the Sessions Court
without any delay, under the seal of the High Court and attested with his/her
official signature.

Conclusion

Taking an individual’s life is one of the epoch-making decisions. It has been a

debatable topic since the beginning as it is always feared that an innocent
individual shall not be hanged for the offences he/she did not even commit.
All the sections provided in chapter 23 of the Code of Criminal Procedure
work as a tool to minimize the chances of an error. The party can appeal to
the Supreme Court if it is not satisfied with the High Court’s judgment and
feels that injustice has been served or the court has been erred. 

Firstly, after Sessions Court’s judgment regarding the death sentence shall
be submitted to the High Court for confirmation under Section 366. Then, the
court may make inquiries or take into consideration evidence, both existing
and additional as provided in Section 367. The High Court then passes the
order as per Section 368 which needs to be signed by at least two High Court
judges as mentioned in Section 369. In case of conflict in opinion, the case
shall be referred to a third judge and his/her opinion shall decide the final
decision as per Section 370 read with Section 392 of the Code of Criminal
Procedure. Finally, after the confirmation, or any other decision, it is sent to
the Sessions Court by the concerned officer as provided in Section 371 of the
Code of Criminal Procedure.