A CLARIFICATION ON CORPORATE CRIMINAL LIABILITY AND AN INTRODUCTORY COMMENT ON A CASE OF MURDER DURING COMMUNAL RIOTS

One may find that the scope and ambit of corporate sanctions is growing. One may also relate the issue of corporate criminal liability to the Satyam fiasco. However, I intend to clarify that in the case of Satyam the attempt is to identify and punish the individuals who have committed wrongs, and any form of sanction for Satyam as a company itself is not intended, which is why the issue becomes one of white-collar crime, that is, crime by individuals who are employed in respectable jobs in society, by misusing the resources offered to them by their jobs, and not about crimes by a company.

I shall discuss in greater detail on another topic, which surfaced last year before the Supreme Court, that is, the issue of crimes committed during times of riots. It is interesting to note that the Supreme Court has recently decided a case titled Harendra Sarkar v. State of Assam, which is a case on murder committed during the time of the Babri Masjid riots in 1992. A Division Bench of the Supreme Court, comprising Justices S. B. Sinha and H.S. Bedi disagreed in its conclusions on the case as a result of which, it has been referred to a larger bench for adjudication on all the issues raised by it. All the issues framed were regarding the appreciation of evidence- whether delay in lodging an FIR vitiates the investigative process itself, whether medical evidence is to be given higher weight than ocular or eyewitness’ evidence, whether the entire statement of a witness is to be disbelieved if some parts of it are found to be inconsistent or unreliable were raised. A certain relaxation was permitted in the rigours of the principles of evidence by Justice Bedi. Justice Sinha stated that the principles of appreciation cannot be relaxed even in time of riots. He opined that the relaxation of the principles of evidence could be done only on the presumption that the investigation was not of the standard that it would have otherwise been in a normal situation and because that was not the case.

At the outset, it may be noted that the conclusion of the entire case revolved on this general principle of appreciation, based on which the evaluation of individual issues would be done. Therefore, if at all there was any disagreement, a reference framed on this issue of law could have been made to a larger bench, which could have decided on these issues and then referred the matter back to the bench for adjudication accordingly. However, adjudication of all the issues by the smaller bench, with a reference to the larger bench to decide all the issues again shall result in wastage of time as it requires repetition of all the arguments that were raised before the smaller bench earlier, in a case relating to the facts of an event already seventeen years old. Secondly, the relaxation of appreciation itself is not a general rule as the Court has with itself the discretion, as per the Evidence Act, to be satisfied after taking all the matters before it into consideration, that certain facts have been proved. Thus, the Court has some level of discretion to appreciate the facts of every case in light of the circumstances of that case itself. Further, in interpreting any case, the Court may make certain presumptions of fact, as per the situation of that case. This would apply to a case of riots as well. The present case was one of a crime committed by a member of the majority against the religious minority during communal riots. In interpreting the present case it was clearly observed that the investigation had started even before the lodging of the FIR, something which should not ordinarily be done as per the law. Though this was an irregularity, the fact was used to conclude that since the investigation had commenced swiftly, an inference that the investigation was shoddy or biased cannot be raised. This amounts to negation of the possibility of one illegality by proving another illegality. It is clearly possible for the investigation to have started earlier and to have still been shoddy, if not biased. Thirdly, the case has used an incorrect interpretation of the meaning of presumption. To presume something implies to consider it proved, unless and until it is disproved. In the instant case, a relaxation of the rules was done to only recognise the possibility that the investigation may not have been up to the mark in all respects, but not to consider it proved for the time being that the investigation had indeed not been up to the mark. Therefore, in my opinion, relaxation of the principles of appreciation did not require one to presume the condition that the investigation was tainted.

For the above reasons, I support the judgment of Justice Bedi, affirming the conviction of the accused. In any case, I think if there was a disagreement, the case could have been referred to a larger Bench as restricted to the broader issue which formed the subject of disagreement, and not all its subcomponents, on the ground that it would result in wastage of resources and delay of justice.

Abhyudaya Agarwal, Director SACJ, 2009-10