Bench– HON’BLE MR. JUSTICE K.S. RADHAKRISHNAN HON’BLE MR. JUSTICE JAGDISH SINGH KHEHAR

Citation– (2013) 1 SCC 1

Court– The Supreme Court of India

Date of Judgment– 31^st August 2012

Facts– In 2005, 2 new companies of Sahara i.e., Sahara India Real Estate Corporation Limited (SIRECL) and Sahara Housing Investment Corporation Limited (SHICL) got enrolled under the Companies Act, 1956 with the appropriate Registrar of Companies in Kanpur and Maharashtra.  A resolution was passed by the two companies in an annual meeting and it was to raise funds through a private placement of Optionally Fully Convertible Debentures (OFCD‘s) from friends, family members, and associates of the board of directors and to trusted investors by way of an information memorandum. The collection of subscriptions from the investors with effect from 25^th April 2008 up to 13^th April 2011. During this period, both the companies had a total collection of Rs.24, 029.73 crores from 30 million investors over 3 years in the guise of a “Private Placement”. In 2010, SEBI received a complaint from a man named Roshan Lal who claimed that SHICL and SIRECL used illegal means at the time of the issuance of  OFCD‘s. Keeping this in mind, SEBI started an investigation against Sahara India to know about the fundraising activities of SHICL and SIRECL along with the investor information. On receiving strong compliance from Sahara, SEBI passed an order on 23^rd June 2011 thereby directing the two companies to refund the money to the investors within three months from the date of the order with an interest of 15% per annum and conjointly restrained the promoters of the two companies including Mr. Subrata Roy from accessing the securities market till further orders.  Sahara then appealed before Securities Appellate Tribunal (SAT) against the order of SEBI. After hearing the appeal, the SAT confirmed and maintained the order of SEBI. Subsequently, Sahara then appealed in Supreme Court against the SEBI orders scrutinizing their jurisdiction in the issue.

Issues Raised–

• Whether SEBI has the power to investigate and adjudicate in this matter as per Sec 11, 11A, 11B of SEBI Act and under Sec 55A of the Companies Act. Or is it the MCA which has the jurisdiction under Sec 55A (c) of the Companies Act?

          55A (a) – those companies that have been publicly listed.

          55(b) – those companies that wish to be publicly listed.

          55A(c) – the remaining companies which come under the jurisdiction of the Central Government and the Ministry of Corporate Affairs.

•    Whether the hybrid OFCDs fall within the definition of “Securities” within the meaning of Companies Act, SEBI Act, and SCRA so as to vest SEBI with the jurisdiction to investigate and adjudicate
• Whether the issue of OFCDs to millions of persons who subscribed to the issue is a Private Placement so as not to fall within the purview of SEBI Regulations and various provisions of Companies Act.
•     Whether listing provisions under Sec 73 mandatorily applies to all public issues or depends upon the “intention of the company” to get listed.
•   Whether the Public Unlisted Companies (Preferential Allotment Rules) 2003 will apply in this case.
•   Whether OFCDs are Convertible Bonds and whether exempted from application of SCRA as per the provisions of sec 28(1) (b).

•  Whether OFCDs are Convertible Bonds and whether exempted from application of SCRA as per the provisions of sec 28(1) (b).

Contentions from both sides

Petitioner

The counsel from the petitioner side argued that:-

The motive behind the issuance of the OFCD‘s was to raise funds and hence the procedure was legal, adhering to all rules and guidelines. The OFCD‘s were issued to the persons who were associated with the Sahara group i.e., utilizing the private placement and was not a public issue. Moreover, the issued OFCD‘s were neither shares nor debentures but was of ‘hybrid’ nature and SEBI does not have any power to control those securities since hybrid securities are not circumfused in the definition of ‘securities’ under the SEBI Act, SCR Act, etc.

Furthermore, the power of such hybrid securities solely lie within the hands of the Central Government under Sec 55 A(c) of the Companies Act, and also Sec 67 and Sec 73 of the Companies Act could not be made applicable to hybrid securities, thus additionally the DIP Guidelines and ICDR 2009. Besides the RHP’s had been enlisted under the RoC’s- in Kanpur and Maharashtra with none demur and therefore it SEBI need not interfere.

Respondent

The counsel from the respondent’s side argued that:-

The issue of Housing Bonds by the Sahara Group was not obliged to the rules and guidelines. It was a public issue and hence Sahara cannot escape from obliging with the necessities of Sec 73(1) of the Companies Act, 1956, and besides such OFCD ‘s were issued to more than 50 investors which make Sahara prone to list the securities on a recognized Stock Exchange under Sec 73 of Companies Act, 1956. Additionally, SEBI held that the parliament had given the jurisdiction to it under Sec 55A to administer the issue of securities to the public. Moreover, such OFCD ‘s were transferable and also, Sahara violated the provision of Sec 73 of Companies Act, 1956 and subsequently, it comes under the ambit of  the provision of Sec 55 of Companies Act, 1956 under which listing of the instrument was obligatory. It was also contended that OFCD ‘s issued by Sahara would come within the definition of ‘securities’ under the provision of Sec 2(h) of the SCR Act.  Furthermore, Sahara’s violated DIP Guidelines and SCR Act regulations.

Judgment

After interpreting various provisions, rules and regulations of the Companies Act, SEBI Act, and Securities Contract (Regulation) Act, 1956 the Supreme Court there-under made some fascinating observations on the issues that were raised before it which forms the operative part of the judgment in the form of ratio decidendi.

For Issue (a) Supreme Court held that that SEBI does have the power to investigate and adjudicate in this matter. It said again that the SEBI Act is special legislation conferring SEBI with special powers to investigate and adjudicate to protect the interest of the investors. SEBI has special powers and such powers are not derogatory to any other provisions existing in any other law. Thus, there shouldn’t be any conflict between the MCA and the SEBI when it comes to the matter where the interest of the investors are at stake. To support this view, the Supreme Court laid priority to the legislative intent and the statement of objectives for the implementation of the SEBI Act and also the insertion of Section 55A within the Companies Act to delegate special powers to SEBI in matters relating to the issue, allotment, and transfer of securities. The Court further determined that as per provisions specified under Section 55A of the Companies Act, so far matters relating to issue and transfer of securities and non-payment of dividend, SEBI has the power to administer within the case of listed public companies and in the case of those public companies which intend to get their securities listed on a recognized stock exchange in India.

For Issue (b) the Supreme Court held that although Sahara classified the OFCDs are as “hybrid” instruments, it is a “Security” within the meaning of Companies Act, SEBI Act, and SCRA through the 2003 Amendment, the corresponding changes were not made in the SEBI and SCRA. It says that the definition of “Securities” under section 2(h) of SCRA does not contain the term “hybrid instruments”, but it is an inclusive definition and covers all “Marketable securities”. As in this case, OFCDs were offered to 30 million people hence its marketability cannot be denied. And in addition to it the name itself contains the term “Debenture”, it is considered to be security as per the provisions of the Companies Act, SEBI Act, and SCRA.

For Issue (c) the Supreme Court held that the intention of the two companies cannot be considered once the securities are offered to more than 50 persons. Sec 67(3) clearly states that when any security is offered to or subscribed by more than 50 persons it will be expressed as a Public Offer and therefore SEBI will have full power and control in the matter and hence, the issuer will have to oblige with the various provisions of the Act.  Though, the two companies of Sahara relied upon the argument that they were exempted by the provisions mentioned under 67(3) since the Information Memorandum primarily mentioned that the OFCD‘s were issued to only those who were associated with the Sahara Group and there was no public offer. However, the Supreme Court does not found any weightage in this argument. The Supreme Court held that as the companies evoked public demand for the OFCD ‘s this draws a clear outline that the issue was not meant for people related to the Sahara Group because in In such a case the introducer would not require any person as the person will be already a part of the Sahara group. The Supreme Court concluded by saying that the actions as well as the intentions on the part of the two companies undoubtedly portray that they wanted to issue securities to the public in the clothing of private placement to avoid the rules and regulations concerning that. The Court further observed that Sahara Companies violated the statutory limit fixed under the provision of Sec 67(3) and therefore attracted civil and criminal liability, also, issuance of OFCD ‘s through the circulation of Information Memorandum attracted public provisions of Section 60B of the Companies Act, which required the filing of a prospectus under Sec 60B(9) and here the companies did not come out with a final prospectus too on the closure of the offer and were unsuccessful to register it with the SEBI, it was observed that there was an infringement of Sec 60(B) of the Companies Act.

For Issue (d) Even though Sahara argued that listing a company under Sec 73 of Companies Act is not obligatory and applies to solely those company who “intent to get listed”, no company can be compelled to get listed on a stock exchange, and in such a case it will be a violation of corporate autonomy. The Supreme Court rejected this argument and held as long as the law is clear and not ambiguous if any issue is made to more then 49 persons as mentioned under Sec 67(3) of the Companies Act, then the intention of the companies to get listed does not matter at all and Sec 73 (1) is an obligatory provision of law which companies are required to comply with. The Supreme Court observed that Section 73(1) of the Act casts an obligation on every company intending to offer shares or debentures to the public to apply on a stock exchange for the listing of its securities. Also, the Supreme Court observed that the maxim ”acta exterior indicant interiora secreta” (external action reveals inner secrets) applies with all potency in the case of Saharas. The Court observed that the argument that they did not want their securities listed does not stand as any offering of securities to fifty or more is a public offering by  Section 67(3) of the Companies Act, which the Saharas very well knew; their subsequent actions and conducts undisputedly reveal so.

For Issue (e) the Supreme Court held that the legislative intent was not so, and such a Rule being a delegated piece of legislation cannot supersede the statutory provisions of Sec 67(3) and within the existence of Sec 67(3), it is implicit that even 2003 preferential allotment rules were filled to comply with the requirement of Sec 67(3). The Supreme Court observed that even if armed with a special resolution of shareholders, it can only be subjected to the provisions of Section 67 of the Company Act, that is if the offer is made to fifty persons or more, and then it will have to be treated as a public issue and not a private placement. The Court then held that 2003 Rules apply only in the ambiance of preferential allotment of unlisted companies; however, 2003 Rules would not be applicable if the preferential allotment is a public issue.

For Issue (f) The Supreme Court held that the amendment in the SCRA was made and subsequently Sec 28 was inserted to exempt convertible bonds by foreign financial institutions that had a choice to obtain shares at a later date. The Supreme Court further held that the inapplicability of SCRA, as contemplated in Section 28(1) (b), is not to the convertible bonds, but to the entitlement of a person to whom such share, warrant or convertible bond has been issued, to possess shares at his option. The Act is, therefore, irrelevant solely to the options or rights or the entitlement that are attached to the bond/warrant and not to the bond/warrant itself. The Supreme Court cleared out by saying that 28(1)(b), clearly indicates that it is solely the convertible bonds and share/warrant of the type stated in this are excluded from the pertinence of the SCRA and not debentures which are a separate category of securities in the definition contained in Section 2(h) of SCRA.

Effect of the Judgment: The Supreme Court dismissed the appeal and maintained the orders passed by SEBI and SAT. It appointed Mr. Justice B N Aggarwal to administer the activities for the effective implementation of the directions of the court. It ordered Sahara to refund the whole amount collected through RHP with an interest of 15% till the date of refund. Such a refund amount be deposited an interest-bearing deposit a/c with a nationalized bank and approved SEBI to take a legitimate plan of action if Sahara fails to comply with the directions.

Securities and Exchange Board of India barred Sahara India Pariwar chief Mr. Subrata Roy and two of its companies – Sahara India Real Estate Corp (SIREC) and Sahara Housing Investment Corp (SHIC) – from raising money from the public as they had raised several thousand crores through optionally fully convertible debentures (OFCDs) that SEBI deemed illegal. In February 2014, Subrata Roy got arrested by Uttar Pradesh police for failure to appear before the Supreme Court. In March 2014, he along with two other directors of Sahara was sent to Tihar jail. Thereafter in March 2015, SEBI canceled the license of Sahara’s mutual fund business. In May 2016, Subrata Roy mother got expired and he was released on parole.

A formal Memorandum of Understanding (MoU) was signed between the Ministry of Corporate Affairs (MCA) and the Securities and Exchange Board of India (SEBI) 07th June 2019.  This MoU was needed in this increasing need for surveillance in the context of Corporate Funds affecting the important sectors of the economy. The MoU will facilitate the sharing of data and information between SEBI and MCA on an automatic basis. It will enable the sharing of specific information such as details of suspended companies, delisted companies, shareholding pattern from SEBI and financial statements filed with the Registrar by Corporates, returns of allotment of shares, audit reports relating to corporates. In addition to its SEBI and MCA will also exchange with each other any information available in their respective databases for the purpose of carrying out scrutiny, inspection, investigation, and prosecution. This MoU marks the beginning of a new era of cooperation and synergy between the two regulators.

In September 2019, SEBI initiated the refund process for investors of Shah Group Builders and asked them to submit their bank details as well as other documents. The case was related to rising of money through the issuance of shares to more than 1,500 people between July-November 2008 without obliging with the regulatory provisions applicable for a public issue. More than 600 shareholders were asked to submit their entire details to the company with a copy marked to SEBI.  In July 2015, SEBI directed the company to refund the amount along with 15% per annum interest to the defaulters within one year.

SEBI barred Birla Pacific Medspa Ltd., Yashovrdhan Birla, and eight others from the securities market for two years for misutilization of IPO proceeds. The company came out with offer documents in March 2011 and had floated over Rs. 65-crore initial public offering (IPO) in June 2011. Thereafter, the regulator found that the company made misstatements in the prospectus in respect of the objects of the IPO.  Around 75 percent of the IPO  proceeds were promised to be utilized in setting up of Evolve Medspa centers as stated under the ‘objects of issue’ in the prospectus, no such centers ultimately have been set up, SEBI said. Further, it was added that 15 such centres were promised to be set up by the end of March 2012, but not even a single centre was set up by that time. On the contrary, SEBI said, 50 percent of the IPO proceeds or Rs 31.54 crore were deployed as inter-corporate deposits (ICDs) to group companies, out of which 60 per cent of ICD’s were never returned to the company. The prospectus permitted the interim deployment of proceeds as an investment in liquid instruments only and did not permit such deployment of funds as ICDs. Thus, the statement in the prospectus relating to ‘objects of the issue’ and ‘interim use of funds’ were untrue and inadequate on material terms, SEBI said in an order passed on 23^rd October, 2020. Through such acts, the entities violated the provisions of ICDR (Issue of Capital and Disclosure Requirements) Regulations.

For now, SEBI has barred the company, Yashovardhan Birla, and eight others from accessing the securities market and further prohibited them from buying, selling, or otherwise dealing in securities for two years, while one individual has been prohibited from the capital markets for six months.

SEBI on 23^rd October 2020 disposed of proceedings against IL & FS Financial Services Ltd without issuing any direction against it in a matter pertaining to an alleged violation of underwriter norms. The firm is a SEBI registered underwriter. The order came after MCA forwarded a report to SEBI to ascertain if the underwriter, which is a 100 per cent subsidiary of Infrastructure Leasing & Financial Services Ltd, was qualified to be a “fit and proper person” to continue as a SEBI registered intermediary.

Serious Fraud Investigation Office (SFIO) had conducted an investigation into the affairs of IL&FS and its subsidiary companies and the same report was forwarded by the MCA to SEBI. The report pointed out various irregularities, showing an apparent violation of various provisions of the Indian Penal Code, Companies Act 1956, the Companies Act 2013 and the RBI Act 1934, and leading to the rising of integrity issues in respect of IL&FS Financial Services. SEBI started its proceedings under Intermediaries norms and appointed a designated authority (DA) to look into the matter. The report was hence submitted by the DA in May 2020 which concluded that IL&FS Financial Services was no longer a fit and proper person as required under market norms. Further, the DA report demanded to cancel the certification registration of the firm.

SEBI also stated that IL&FS Financial Services has never undertaken activities as an underwriter from the date of the grant of certificate of registration since January 2009. Hence, without going into the merit of the issue at hand, SEBI has disposed of the proceedings without issuing any direction against.

Case Comment:  There is no doubt that this judgment served as a benchmark in India’s corporate terrain, as it not only provided SEBI with the power of investigation and adjudication into the matters of the listed companies but also sanctifies the power to investigate into the matters of unlisted companies. It vested SEBI with the jurisdiction to investigate any matter concerning the interest of the investor’s even if it concerns unlisted companies. It clears up the significant points of law and removes the doubts related to the issuance of the securities by the so-called unlisted companies who were taking advantage by raising huge money in the name of investments from the general public who were unaware of the risks involved in such investments. Another fruitful thing of this judgment is that it connected the gap which existed between the Ministry of Corporate Affairs and SEBI. This served as a relief because in the past many parties have taken advantage of this jurisdictional gap. The stand taken by SEBI in the matter relating to the protection of the investors is highly commendable.

The post Sahara India Real Estate Corporation Ltd & Ors vs. Securities & Exchange Board of India (SEBI) & Anr appeared first on Legal Desire Media and Insights.

The portrayal of the police system is quite ailing in authenticity. For instance, the show’s characters playing the role of CSI personnel’s not only investigating (“process”) crime scenes, however, they additionally conduct raids, engross in suspect pursuit and arrest, interrogate such people whom they have doubt on, and solve cases, all of which fall below the responsibility of uniformed officers and detectives, not CSI personnel. Although a few detectives are also registered as CSIs, this is extremely uncommon in real life. It is considered as a wrong practice to allow CSI personnel to be involved in detective work, as it would compromise the prejudice of scientific evidence and would be time-consuming. [1]

Who’s at the Scene?

Police officers are the first to arrive at the crime spot. They arrest the culprit if he’s there and also call for an ambulance if necessary. They have been authorized to secure the scene so as no evidence or proof is destroyed. The CSI unit documents the crime scene thoroughly and collects any physical evidence. The presence of a district attorney is to help in determining whether the investigator officers require any search warrants to proceed and therefore he only obtains them from the judge. The medical examiner may or may not be present for determining the cause of death. Specialists such as entomologists, forensic scientists, and forensic psychologists may be called in if the evidence requires expert analysis. The detective’s job is to interview the witnesses and covey the same to the CSI unit. They interrogate the crime by following leads provided by witnesses and evidence.[2]

But does Bollywood and Hollywood get it right? Do crime scene investigators take the DNA samples to the lab? Do they really interview suspects and catch the culprits, or is their job to collect physical evidence only? In this article, we will come to know what really goes on when a CSI “processes a crime scene” and get a real view of crime scene investigation.

What is Crime Scene Investigation?                                                             

Crime scene investigation is the meeting point of science, logic, and law. “Processing a crime scene” is a long, tedious process that involves purposeful documentation of the conditions at the scene and the collection of any physical evidence that could possibly illuminate what happened and point to who did it[3]. There is no particular crime scene, there is no particular body of evidence and there is no particular investigative approach. The CSI unit is divided into two groups- a) Those who work on the field, i.e., those who keep a track of what goes on at the crime scene and also known as crime scene investigation, b) those who work in the laboratory is called as forensic science, All CSIs are not scientists, so there work is to gather the evidence from the field and then pass it to the forensic lab. But in such a case too, CSIs must have a great skill and understanding of forensic science in order to recognize the specific types of evidence in the field.

Introduction to Physical Evidence[4]

Physical evidence that is procured from the crime spot or from the different portions of examination is often the foundation whereupon a fruitful result of the case is reliant. Many cases are never solved because of the lack of physical cases. Even it has been observed that some innocent people get arrested and prosecuted because the witnesses were not able to identify the culprits or there was a misuse of forensic proof. It has been also viewed that the culprit who performs their crime perfectly leaves insignificant evidence so almost certainly; the basic proof was rarely perceived or found.

The most important job is to collect everything from the crime spot in any possible manner, but this kind of practice is time-consuming and a waste of resources. The reason is that when every object that has been collected and submitted to the forensic laboratory such material acquired may be irrelevant to the incident and will lead the case falsely which will further lead to a waste of valuable time and moreover lead to the arrest of the wrong person. So the CSI officers should identify such evidence that has “probative value”, i.e., evidence that has proof or has a tendency to prove a fact at issue. So, there is a need for a careful approach so because if any basic or relevant evidence is omitted then no type of modern, laboratory instrumentation and technology will be able to rescue the investigation. Consequently, a framework must be created where the applicable physical evidence is perceived and located, while unneeded materials are rejected.

An alternative concept in the classification of physical evidence is based upon the nature and form of the evidence: transient, conditional, pattern, transfer, medical, electronic and associative:[5]

a. Transient evidence

This type of evidence is temporary in nature which can be easily changed or lost. It commonly includes odours, temperatures, colour, and some biological and physical phenomenon such as drying of blood. Due to its temporary nature, this type of evidence must be noted or documented as soon as the evidence is observed.

b. Conditional evidence

This type of evidence is similar to temporary evidence. If the evidence is not observed and documented immediately at the crime scene it will be lost forever. Examples include lighting condition, television set, computer set, smoke or fire, condition of the victim’s body.

c. Pattern evidence

There are a variety of patterns that can be found at a crime scene. These patterns are in the form of imprints, indentations, striations, or other marketing such as fractures, or depositions. The patterns commonly include modus operandi pattern, gun powder, or residue pattern, clothing, or article patterns.

d. Transfer evidence

This kind of evidence is also known as traced evidence. It is generally produced by closed contact between persons or objects. It is most commonly traced by blood, fingerprint, hair, fibre, body fluids, soils, glass, drugs, and chemicals. It is regarded as the traditional forensic evidence that is examined in the forensic laboratory.

e. Medical evidence[6]

Medical evidence not only consists of victim’s, suspect’s, or witness’s injuries, the type and degree of injury the location and condition of a wound, the number and size of the wounds, but also includes medical history, the type of medical equipment on the person, house or car, the prescription history, including date and amount prescribed.

f. Electronic evidence

The recent advancement in electronic devices paved a way for individuals to own a cell phone, iPod, PC, and other devices. Not only this but nowadays households and businesses have installed surveillance cameras, monitors, and other instruments used for recording. The role of the investigator is to procure and preserve all such devices. For instance, the information that will lead the investigation includes cell phone call records, e-mail messages recovered from a suspect’s computer hard drive, and videotape recorded from a bank security camera.

g. Associative evidence[7]

During the course of an investigation, specific items located at a crime scene may be used as evidence to associate a victim or suspect with a particular scene. It may also be used to associate a victim with a suspect. Examples of associative evidence include the suspect’s vehicle or wallet found at the crime scene, victim’s ring, watch, or other personal belongings found on the suspect, receipts, tickets, or business cards.

Crime Scene Documentation[8]

The crime scene documentation is conducted to a visual record as it will allow the forensics lab and the prosecuting attorney to easily recreate an accurate view of the scene. The CSI officers use digital and film cameras, different types of film, various lenses, flashes, filters, a tripod, a sketchpad, graph paper, pens, and pencils, measuring tape, rulers, and a notepad at this stage of the investigation. They may also use a camcorder and a camera boom.

Notes[9]

Note-taking at a crime scene isn’t as clear as it might appear. A CSI’s preparation embodies the skill of logical perception. Though a layman may see a huge, tannish red stain on the carpet, spreading outward from the body, and record “blood is spreading outward from underside of the body,” whereas a CSI would record “huge, caramel red liquid spreading outward from underside of the body.” This liquid may be blood; it may likewise be deterioration liquid, which looks like blood at a specific stage. While portraying a crime scene, a CSI mentions real observable facts without making any inferences.

Photographs[10]

CSIs take pictures of everything from every angle before touching or moving any piece of evidence. The CSI will take the photographs of the evidence and the surrounding area and then only the medical examiner can touch the corpse. A CSI takes three types of photographs at the crime scene:

·         Overview shots cover the widest possible views.

·         Mid-range shots show not only the evidence but also its location at the crime spot and its distance from other pieces of evidence.

Then at last comes the close-up of the dead body, single pictures of evidence. To obtain such pictures, the CSI uses a tripod and professional lighting techniques to achieve the best possible detail and clarity.

Sketches[11]

CSIs create sketches in addition to a photographic record of the scene. The sketches are made by the sketch artists who are drawn to indicate the exact size of the room, the distance of the evidence from the window, the height of the door.

Finding Crime Scene Evidence[12]

The end result is to find and collect all physical evidence that might be used to identify the culprit in a manner that will stand up in court. Such evidence includes:-

·         Trace evidence (gunshot residue, paint residue, broken glass, unknown chemicals, drugs)

·         Impressions (fingerprints, footwear, tool marks)

·         Body fluids (blood, semen, saliva, vomit)

·         Hair and fibres

·         Weapons and firearms evidence (knives, guns, bullet holes, cartridge casings)

·         Questioned documents (diaries, suicide note, phone books; also includes electronic documents like answering machines and caller ID units)

Examining the Body[13]

Before moving the body, the CSI makes note of details including:

1.       Stains or marks on the clothing?

2.      Is the clothing grouped in a particular direction? If there is then this could indicate dragging.

3.       Any kind of bruises, cuts, or marks on the body? Any wounds which can show that he/she defended?

4.       Is there a tan mark where a watch or ring should be?

5.      If blood is present in large amounts, does the direction of flow follow the laws of gravity? If the blood is not in the mentioned direction then the body has been moved.

6.      Any bodily fluids which can be traced besides blood?

7.      Any insect found on the body? If yes, then the CSI might call the forensic entomologist to study it to gather some clues as to how long the person has been dead.

8.      The body temperature and the present room temperature to assist in determining an estimated time of death.

9.      Is there a fingerprint of the deceased at the scene?

As soon as the CSI completes documenting the conditions of the body and the surrounding area, the technicians wrap the body in a white cloth and put paper bags over the hands and feet for an autopsy to the morgue. These precautions are taken to preserve any trace evidence on the victim. The CSI also attends the autopsy to take additional pictures or videos and also collect additional evidence such as tissue samples for analysis at the crime lab.

Examining the Scene[14]

A CSI has a couple of search patterns to assure complete coverage –

·         The inward spiral search: The CSI starts from the circumference of the scene and works toward the centre.

·         The outward spiral search: The CSI starts from the centre of the scene or the body and works towards the circumference.

·         The parallel search: The CSI members form a line and then walk straight at the same speed, from one end of crime spot to the other.

·         The grid search:  It is simply two parallel searches, offset by 90 degrees, performed one after the other.

·         The zone search: The CSI leader divides the crime scene into two sectors, and each team member is allotted one sector. After one search they can change their sectors to ensure complete coverage.

While analysing the scene, a CSI is looking for details including:

·         Were the doors and windows locked or unlocked? Open or closed? Any signs of forced entry, such as tool marks or broken locks?

·         Is the house in good order? If not so then was there some struggle or the victim liked to live in a messy way?

·         Is the kitchen in good order? Is there any partially eaten food? Is the table set? If so, for how many people?

·         Is there any indication of a party, such as empty glasses or bottles?

·         If there are full ashtrays, what brands of cigarettes are present? Any lipstick or teeth marks?

·         Is the rubbish in the garden bins? Is there anything strange in the garbage?

·         Do the clocks show the right time?

·         Are the bathroom towels wet or are they missing?

·         If the crime of shooting took place then the CSI will try to find the gun, search if any bullet is there around the crime scene or dead body and also how many bullet shots were there.

·         If the crime is stabbing then the knife must be missing from the victim’s kitchen.

·         Are there any shoe prints? Any marks on the tiles, woods, or outside the building.

·         Are there any tire marks in the driveway or in the area around the building?

·         Is there any blood splatter on floors, walls, or ceilings?

The procedure for collecting physical evidence is a slow process. As soon as the CSI collects an item, he must immediately preserve it, tag it, and log it for the crime scene record.

Trace Evidence[15]

Trace evidence includes GSR (gun-shot residue), paint residue, chemicals. To collect trace evidence, a CSI might use tweezers, plastic containers with lids, a filtered vacuum device, and a knife. They will also have a biohazard kit, containing disposable latex gloves, booties, face mask and gown, and a biohazard waste bag.

Body Fluids[16]

Body fluids found at a crime scene may comprise blood, semen, saliva, and vomit. To spot and collect these pieces of evidence, a CSI may use smear slides, a scalpel, tweezers, scissors, sterile cloth squares, a UV light, and protective eyewear. He will conjointly use a blood collection kit to induce samples from any suspects or from a living victim to use for comparison.

If the victim is dead and there is blood on the body, the CSI collects a blood sample by submitting a bit of clothing or by using a sterile cloth square and a small amount of distilled water to get rid of some blood from the body. Blood or saliva collected from the body might belong to somebody else, and the lab will perform DNA analysis so the sample is used later to compare to blood or saliva taken from a suspect. The CSI will also offcut the victim’s nails from the skin.  Also, if there is any dried blood on any furniture at the scene, the CSI will try to send the whole piece of furniture to the lab. If the blood is on any such thing that can’t reasonably go to the lab, like a wall or a bathtub, the CSI can collect it by scraping it into a sterile container using a scalpel.

In the event that there is blood at the scene, there may likewise be blood splash patterns. These patterns can uncover the sort of weapon that was utilized – for example, a “cast-off pattern” is left when something like a baseball stick contacts a blood source and afterward swings back. The beads are enormous and frequently tear-drop formed. This kind of pattern can demonstrate different blows from an unsharpened object, on the grounds that the main blow normally doesn’t contact any blood. A “high-energy design,” then again, is comprised of numerous little beads and may show a firearm fired. Blood splash investigation can show which direction the blood originated from and the number of independent episodes made the patterns. Examining a blood design includes contemplating the size and state of the stain, the shape and size of the blood beads, and the convergence of the drops inside the pattern. The CSI takes photos of the pattern and may bring in a blood-splash master to break the study.

Hair and Fibres[17]

A CSI may utilize brushes, tweezers, compartments, and a separated vacuum gadget to gather any hair or fibres at the scene. In an assault case with a live victim, the CSI goes with the victim to the clinic to acquire any hairs or fibres found on the victim’s body during the clinical examination. The CSI seals any hair or fibre proof in isolated holders for transport to the lab.

Fingerprints[18]

Tools for reviving fingerprints include brushes, powders, tape, chemicals, lift cards, a magnifying glass and Super Glue. An investigation lab can utilize fingerprints to recognize the victim or preclude a suspect. There are a few kinds of prints a CSI may discover at a crime scene:

·         Visible: Left by the exchange of blood, paint, or another liquid or powder onto a surface that is sufficiently smooth to hold the print; clear to the unaided eye.

·         Moulded: Left in a delicate medium like cleanser, clay, or light wax, framing an impression.

·         Latent: Left by the exchange of sweat and common oils from the fingers onto a surface that is sufficiently smooth to hold the print but not visible to the unaided eye.

A culprit might leave prints on absorbent or non-absorbent surfaces. Paper, unfinished wood, and cardboard are absorbent surfaces that will hold a print, and glass, plastic, and metal are non-absorbent surfaces. A CSI will typically look for idle prints on surfaces that the culprit is likely to have touched. For instance, if there are indications of forced entry on the front door, doorknob and door surfaces are intelligent places to look for prints. Legitimate strategies for recouping inert prints include:

Powder (for non-absorbent surfaces): Metallic silver powder or velvet black powder A CSI uses whichever powder stands out most with the shade of material holding the print. He delicately brushes powder onto the surface in a circular motion until a print is noticeable; then he starts brushing in the direction of the print ridges. They take a photo of the print before using string to lift it (this makes it stand up better in court).

Chemicals (for absorbent surfaces): Iodine, ninhydrin, silver nitrate. The CSI will sprinkle the chemical onto the surface of the material or dips the material into a chemical solution to reveal the latent print.

Cyanoacrylate (Super Glue) fuming (for porous or nonporous surfaces) The CSI pours Super Glue into the metal plate and heats it to about 120 F. He then places the plate, the heat source and the object containing the latent print in an airtight container. The fumes formed by the Super Glue make the latent print visible without disturbing the material is on.

Footwear Impressions and Tool Marks[19]

 A footwear impression in mud or a tool mark on a window frame is a case of a three-dimensional impression. On the off chance that it’s unrealistic to present the whole item containing the impression to the investigative laboratory, a CSI makes a casting at the scene.  

A casting kit may incorporate multiple casting compounds (dental gypsum, Silicone rubber), snow wax (for making a cast in snow), a bowl, a spatula, and cardboard boxes to hold the casts.

For tool mark impressions, a cast is a lot harder to use for correlation than it is with footwear. In the event of doing so, it is not achievable to transport the whole containing the tool mark, a CSI can make a silicone-rubber cast and trust in the best. There are two sorts of tool marks a CSI may discover at a crime scene:

·         Impressed: A hard item contacts a gentler object without moving to and fro (for instance, a hammer mark on the door). The tool mark is an impression of the apparatus’ shape. It’s hard to make an unmistakable match with a dazzled tool mark.

·         Striated: A hard item contacts a milder object and moves to and fro (for instance, pry blemishes on a window frame). The tool mark is a progression of equal lines. It’s simpler to make an unmistakable match with a striated tool mark.  

In tool mark examination, the lab may figure out what kind of tool made the imprint and whether a tool in the proof is the tool that made it. It can likewise contrast the tool mark in proof with another tool mark to decide whether the imprints were made by a similar tool.

Firearms[20]

When a CSI finds any firearms, bullets, or casings at the scene, they must first put on their gloves then pick up the barrels (not the grip) and bags everything separately to the lab. The forensic scientists then can recover serial numbers and match both bullets and casings not only to the weapon they were fired from but also to bullets and casings found at other scenes. The bullet holes in the victim or in other objects at the scene help the specialists to determine where and from what height the bullet was fired from, as well as the position of the victim when it was fired, using a laser trajectory kit. If there are bullets fixed in a wall or door frame, the CSI cuts out the portion of the wall or frame containing the bullet because digging the bullet out can damage it and make it unsuitable for comparison.

Documents[21]

A CSI collects and preserves any diaries, planners, phone books, or suicide notes found at a crime scene. He also delivers to the lab any signed contracts, receipts, a torn-up letter in the trash, or any other written, typed, or photocopied evidence that might be related to the crime. A documents lab can often remake a destroyed document, even one that has been burned, as well as determine if a document has been altered. Experts analyse documents for forgery, determine handwriting matches to the victim and suspects, and identify what type of machine was used to produce the document.

After gathering all the above evidence the crime report is prepared.

The job of a CSI doesn’t end when he completes neither evidence report nor does it end when the lab results of the evidence are delivered to the detectives. A major part of the CSI’s job is to testify all the evidence that he collected the methods he used and the number of people who came into the contact with them before it gets ended up in the prosecution Exhibit D in the court. The defense attorney questions the evidence which is like questioning the person who collected it, this reason why warrants, evidence logs, photographs, and crucially prepared reports are so critical in the  CSI process. The legitimacy of the search, the preservation of evidence from any pollutant, and full not questioned documentation of the crime scene are the primary considerations in crime scene investigation.

 Reconstructing or Restructuring a Crime Scene

A new area of forensic study was developed in the 1990s and came to be known as ‘Crime Scene Restructure’[22]. A crime scene restructure can be accomplished in a variety of ways. The data compiled at the scene which includes location of evidence and blood splashes interpretation, all the possible movements and final resting of the dead is later inserted into a computer to provide three-dimensional videos that will give an image of what all may have happened at the scene. Any crime scene can be restructured through proper interpretation or examination of the physical evidence gathered from the scene.

Association for Crime Scene Reconstruction defines crime scene reconstruction as “the use of scientific methods, physical evidence, deductive reasoning and their interrelationships to gain explicit knowledge of the series of events that surround the commission of a crime.”[23] The objective of restructuring a crime scene is to get answers for questions such as what might have happened, through what it may have happened, and how it happened. So, to get such answers human decision-making plays an integral role in the process. The evidence and other traces that have been collected throughout the investigation play a major role. After the evidence which has been collected gets examined, the CSI then offers a hypothesis of what all must have happened at the scene.

What is the importance of the Crime Scene Restructure?[24]

It is frequently helpful to decide the genuine course of a crime scene by restricting the potential outcomes that brought about the crime scene or the physical evidence as experienced. The conceivable need to restructure the crime is one significant purpose behind keeping up the uprightness of a crime scene. It ought to be perceived that recreation is unique to‘re-enactment’, ‘re-creation’, or ‘criminal profiling’. Re-enactment, by and large, eludes the victim, suspect, witness or other individual re-enact the occasion that created the crime scene or the physical evidence dependent on their insight into the crime. Re-creation is to supplant the fundamental things or activities back at a wrongdoing scene through unique scene documentation. Criminal profiling is a cycle dependent on the mental and measurable examination of the crime scene, which is utilized to decide the overall attributes of the most probable suspect for the crime. An examination might be useful for specific parts of a criminal examination.

For example- in a court of law, visual exhibits can be of two different categories: real or demonstrative.

“Real” evidence is tangible, like a weapon. Such a kind of evidence does not require the testimony of a witness or expert to identify it.

“Demonstrative” evidence is beneficial to help a jury to understand something. For instance, when a technician testifies that a victim died due to loss of blood, then he’ll point towards the diagram and explains how that occurred. There is much demonstrative evidence such as photographs, videotapes, Diagrams, sketches, maps, plaster casts, Computer reconstruction animation, scientific elements, or tests.

Classification of Restructure types[25]–

A. Specific type of incident reconstruction:

·         Accident reconstruction: (1) Traffic accident reconstruction: automobiles, trucks, motorcycles, etc.

                                                      (2) -Other transportation accident reconstruction: trains, airplanes, boat accidents, etc.

                                                       (3) -Industrial or construction accident reconstruction: ‘on the job’ or employee accidents, building collapses, machinery, etc.

B. Specific crime reconstruction:

             (1) Homicide reconstruction

             (2) Arson scene reconstruction

             (3) Rape case reconstruction

             (4) White-collar crime reconstruction

             (5) Other specific crime scenes reconstruction

·         Specific events reconstruction

1.      Sequence determination

2.      Directional determination

3.      Position determination

4.      Relational determination

5.      Conditional determination

6.      Identity determination

C. Degree of involvement reconstruction

1.      Partial case reconstruction

2.      Limited event reconstruction

3.      Specific pattern reconstruction

D. Specific type of physical evidence reconstruction:

1.      Pattern evidence

2.      Shooting investigation evidence

3.      Serological evidence

E. Special areas or determinations in reconstruction:

1.      Criminal profiling – including Modus operandi, motive, and psychological determinations, or organized or disorganized crime scene determination.

2.      Scene profiling – Primary scene or secondary scene determination, etc.

To reach after what might have happened, enough information is important. Three ingredients are necessary- photographs, physical evidence, and autopsy. Crime scene restructure can be made by the utilization of bullets or other missile trajectories, blood splash study, or location of victim’s, condition of physical evidence, any indication of broken glass or struggles.

Crime Scene Reconstruction Procedure and Protocol[26]

At the time of reconstructing a crime scene, many different aspects about the victim, the location, and the circumstances around his or her death will be examined. Such aspects are-

·         Victimology (Victim’s state of mind)

·         Victim’s prior health

·         Wound pattern study

The victim is the centre point of crime scene reconstruction. Everything is about the victim; the crime investigators study the employment records, school records, criminal records, asking friends and family about the behaviour and mental outlook of the victim. Any history of drugs or alcohol intake, sexual exploitation are some important aspects of victimology.

Some specific terminology is associated with the skills and knowledge that are needed to understand what crime scene restructure involves:

·         Analysis: The process involves starting with a whole and then breaking it down into single units of knowledge.

·         Deduction: The process starts with reasoning and then ends with logical consequences.

·         Induction: All the skills, experience, and knowledge are applied to a case, which results in the making of a hypothesis.

·         Typology: Sorting out facts into specific categories of knowledge.

Shooting Scenes – Investigation and Reconstruction[27]

The restructure of shooting scenes is necessary to determine basic elements critical to the investigation. Determining the manner of death – homicide, suicide, or accidental – may be difficult without a restructure. Notwithstanding giving information and aiding precise conclusions, shooting scene recreation can be used to help a lamenting family cope with the harsh reality that a loved one took their own life. A restructure can likewise provide information regarding the relative location(s) of the shooter(s) and victim throughout the incident. The parts of a fruitful shooting investigation incorporate investigative information, crime scene processing, autopsy and medical records, laboratory examination of physical and pattern evidence, and related reconstruction experiments. As with most examinations, the capacity to conduct a meaningful reconstruction in shooting cases is exceptionally reliant upon the quality of crime scene documentation, searching, and the collection and preservation of all significant evidence.

Requirements for Reconstructions after Crime Scene Released[28]

All the pieces of evidence gathered from the crime scene such as photographs, autopsy reports and photographs, videotapes of the scene, measurements, notes, crime scene reports, and laboratory reports of physical evidence testing that are available must be thoroughly examined. Whenever possible, visiting the crime scene at the time of the incident and direct observation of the scene and patterns is most desirable. Full and to the point documentation of a scene is also important. Direct examination of the physical evidence to observe any type of damage, stains, and conditions will provide the best opportunity for later reconstruction analysis. It should be noted that complete reconstructions are often not possible. However, partial reconstructions – reconstructing certain facts or aspects of the events without necessarily being able to reconstruct all of them – can be extremely valuable for the case investigation. Information that originated through reconstruction can often lead to the successful solution of a case. Investigators and laboratory personnel (as well as medical examiner personnel in death cases) must cooperate and work together to document every important aspect of a scene, carry out analysis of the physical evidence, and conduct a thorough and unbiased investigation of a case and share all the necessary information for reconstruction. A team approach concept should always apply to crime scene investigation and reconstruction.

Writing a Reconstruction Report General Recommendations[29]

·         Two examiners should audit and sign the report.

·         State what materials were looked into and utilized as a reason for the report.

·         Be exact and complete agreement with notes taken during the review and reconstruction process.

·         Use labelled photographs to aid in articulating your observations and comments.

·         Do not add or depend on unverified information.

·         Clearly express any significant facts or circumstances not known to you.

·         If your interpretations are restricted due to a lack of information state this.

·         Do not over-commit or too narrowly limit your opinions and observations:

      (a) -Use words like consistent with, similar to, most probable, inconsistent with available data or facts, inconclusive, cannot be determined with the available information, etc.

      (b) Keep an open, objective mind.

·         Be prepared to objectively evaluate a hypothetical with the stated facts, arriving at a different conclusion or opinion.

·         Be general; many of the underlying details should be reserved for oral testimony – remember, anything written will be carefully reviewed by other experts.

·         Stay objective and true to the facts.

Any reconstruction can only be as good as the information provided. Information may originate from the crime scene, physical evidence, records, statements, witness accounts, and known data. The process of information gathering and its use in reconstruction shows the scientific nature of crime scene reconstruction and will allow for its successful use by investigators.

Conclusion               

A crime scene investigator may face dangers and pitfalls because if they fall in their assumption, or fell prey to emotional involvement, or not take into consideration all the shreds of evidence before making a judgement. So it is important to collect all the evidence and wait for lab results before jumping to conclusions which will lead the investigation falsely. As it is for sure that crime scene restructures looks at more than physical evidence to create a picture of might have occurred at the crime scene. When going to the scene of a crime a CSI must go with an open mind, having the patience to gather the evidences for the tests before leaping to conclusions.

The post Crime Scene Investigation and Restructure appeared first on Legal Desire Media and Insights.

Cinema or motion picture has been defined as the art of colourful moving images[2]. Since the days of its establishment, it played an important role to bring out the problems, issues, thinking, and perspective of society. It has been viewed as a medium through which a larger picture of the society is portrayed on the screen. Movies have always been a source of entertainment and an excuse to refresh from one’s tiresome schedule. Not only had this it always played a great role to bring people together. Everyone is fond of movies irrespective of their age. Way back, all families were not so well-off to have a television in their homes. Only a few houses enjoyed the use of television. So a channel which is most popular then and now is Doordarshan and it used to show a movie every Sunday, which all the members of the family, relatives, friends, and neighbours used to see together.

In this entertainment world, crime, and courtroom dramas have been popular since the old days which majorly attract and engage the audience with the twists, turns, and suspense. These movies have the power to create a negative or positive side of the justice system because it also serves as a source of knowledge and information.

Cinema and legal framework

Cinema in India is managed under the Cinematograph Act of 1952[3]. Section 3 of this Act establishes an administrative body called as Central Board of Film Certification (CBFC), which is a statutory body i.e. one created by an Act of Parliament or State, under the Ministry of Information and Broadcasting, a body that certifies a film, is known by the name of Censor Board in common speaking. The first mentioned is a process by which the content of the films is classified regarding  certain restrictions such as the age of the viewer, its sexual and violent content, moral and ethical intimation, sentimental content related to any particular religion, and so on.

In 1913, when the first Indian film (Raja Harish Chandra) was produced, the Indian Cinematograph Act was not enacted. It came into force in the year 1920. But, in the year 1952, the board was reconstituted[4]. In the year 1983, the rules of Cinematograph (Certification) were modified and since then, the Central Board of Film Censor came to be known as the Central Board of Film Certification.[5]

As laid in Section 3 of the Cinematograph Act 1952, the CBFC consists of a chairman and 10-25 other members as appointed by the Central Government. Under section 5-A, certification is done for films for which an application is given for the examination of the movie for its exhibition[6]:

These 4 certificates are given to the movies (anyone)[7]–

·         “U”: Unrestricted Public exhibition

·         “UA”: unrestricted public exhibition, but requiring parental discretion needed for children below 12 years

·         “A: Restricted to adults         

·         “S”: restricted to any special class of persons

However, the powers granted to CBFC have been highly misused especially when Mr. Pahlaj Nihalani stepped in as the Chief of CBFC. He has been the buffet of controversies. There is also a rumor that his appointment to this post is through political pressure.

Under his chairmanship, Raj Amit Kumar’s movie on LGBT “Unfreedom” was stopped from releasing.

The movie Damini is famous for its ‘tareekh p tareekh’ scene. Being way forward than the time it was released, the movie provided a deep understanding of the journey of the struggles and problems faced by women. The movie revolves around the woman Damini who witnessed the rape of another woman and how she stood up for the rights and dignity of the raped woman without comprising her ethics. The movie showed the reality of the Indian judicial system, grant of justice in the courtroom, allegations, the murder of the victim, and trying to prove the witness mentally unfit. It also showed the insensitivity of the lawyers towards such cases. The movie lasted a positive impact on the minds of the people of that time. It also made us experience how the cases are dealt with long and long procedures in our system.

The courtroom scene of the movie Aitraaz was one of the most uplifting scenes of Bollywood as it shows how the woman misuses the law. The movie shows Sonia (Priyanka Chopra) was a model and tried to seduce Raj (Akshay Kumar) who was married to Priya (Kareena Kapoor). Sonia inflicted false allegations on him as result he was forced to resign from the company in which he worked. As Priya was a lawyer she fought for her husband and in the end, justice was served to him.

The movie Pink grabbed the attention of the viewers because of its amazing story which was focused on the issue of sexual assault and consent. It provided an insight into the audience by making them aware of Zero FIR and the availability of bail to women and minors in non-bailable offenses. The topic of consent has been discussed to a great extent for a while now. The movie implements a strong belief in understanding the meaning of the word “no.” Pink eventually impaired the court as it was inclined more towards persuasion than arguments. The working of courts and the lawful framework today wasn’t portrayed in its unique structure.

The movie Article 15 was based on the Badaun gang-rape and murder case. It was a hit because it raises some important issues related to the caste that is plaguing the country. There was also a plea submitted in the Supreme Court by the organization ‘Brahmin Samaj in India’ for the cancellation of the certificate issued to the movie. A bench of Justice(s)S A Bobde and B R Gavai told the counsel who was appearing on behalf of the petitioner to go to the appropriate authority under the Act and therefore the petition was withdrawn.

Hence, movies are the source of portraying social cause and it can leave a strong message for the society to think about. For example, the issue of reservation, women empowerment, corruption, rapes, misuse of law, and even highlights of the cases which took place in the country such as ‘Talvar’ which was based on the Aarushi Talvar and Hemraj murder case which shocked the country in 2008. The movie ‘No one killed Jessica’ followed the case which took place on 29 April 1999,  in which the model Jessica was shot with a 0.22 bore pistol in the presence of more than 100 ‘socialites’ at a party in New Delhi. So far, the accused Manu Sharma walked free in 2006 urging a newspaper headline that read ‘No One Killed Jessica’. The film surrounded and provided all the true happenings of the case.

Judicial Pronouncements and censorship

In the case of K.A. Abbas v. Union of India[8], the constitutional validity of the Cinematograph Act and rules framed subsequently in 1983 was challenged on the ground of it being violative of Article 19(1) (a) of the Constitution. The petitioner submitted that such provision as expressed in various sections of the Act, i.e., section 5(1) (B), Section 4 and the CFBC’s refusal to grant a certificate to his film without several cuts are in clear violation of the fundamental right of freedom of speech and expression. However, in this case, the Supreme Court took a stand in favor of reasonable censorship and rejected the challenge of vagueness. The guidelines held were nothing more than concrete manifestations of Article 19(2) of the Indian Constitution, which allows for reasonable restrictions upon the freedom of speech and expression in the interest of, among other things, morality. The K.A. Abbas’s judgment was a complete defeat for the cause of freedom of expression under the Constitution.

The Supreme Court in Rangarajan v. P. Jagjivan Ram[9] repealed the decision of Madras High Court which awarded a void U certificate to the film ‘Ore Oru Gramathille’. This film was based on the aspect of the government’s reservation policy.  Madras High Court saw it as a film that is depicting a theme which could cause widespread unrest in the state of Tamil Nadu. But when the matter was brought to Supreme Court, it nullified the argument submitted by the State – that the film should be refused a U certificate as it can cause agitation that may create a public fuss. The Court stated: “The State has to protect the freedom of expression since it is a liberty guaranteed against the State. The State cannot plead its inability to handle the hostile audience problem”[10].

The most recent case which served as a milestone was the case of Udta Punjab. In this case, the judiciary stepped in and defeated the Central Board of Film Certification. The Board refused to certify the film Udta Punjab as it was based on the drug jeopardy which was prevailing in the State of Punjab. After the refusal of certification, the board besides offered 13 cuts in the movie which was mandatory for its certification. However, when an appeal was made in the Bombay High Court by the filmmaker, the CBFC received criticism for its poor way of handling the issue. This is a landmark case as in this case the court had made an important observation that the Board is not necessarily empowered to censor the films as the Cinematograph Act does not include the word censor in it. It was also laid down that the board can make changes in the film but this power must be exercised following Constitutional Guarantee and Supreme Court orders[11].

As there is no separate censorship for television, a case came to the Supreme Court against the judgment passed by Bombay High Court in the case of Ramesh v. Union of India[12] a petition demanding to restrain the screening of serial ‘Tamas’ being violative of Section 5 B of the 1952 Act. The petitioner submitted that the serial portrays the Hindu-Muslim tension, Sikh- Muslim tension before the partition of India,  how communal violence was generated by fundamentalists and extremists in both communities and how an innocent boy is lured to violence resulting in his harming both the communities. But the Supreme Court held that there is no doubt that the serial represents violence but, it should be kept in mind that the violence between the communities took place before the pre-partition days. The serial is not based on any historical novel and it just takes into account certain events from history. Secondly, the judges have viewed it from “how the average person for whom the film is intended will view it”[13] and hence concluded that the people will learn from the mistakes of the past. Overall, the serial is capable of creating a lasting impact by giving the message of peace and co-existence and the people are not likely to be swayed by the scenes of violence shown in the serial. Hence, there is no such danger to screen it.

In the famous case of Harinder Singh Sikka v. Union of India & Ors[14], the film Nanak Shah Fakir was based on the life of Guru Nanak Dev and his teachings. The film received a green flag by CBFC after some alterations in the film. But the film was opposed for screening by Shiromani Gurdwara Prabandhak Committee (SGPC) a body of Sikhs. When the matter was brought to the Court, the former Chief Justice of India Deepak Mishra criticized the religious body and also stated that if CBFC grants certification to a movie, then no group, body, association, or individual can create any kind hindrance in the exhibition of the film. It was further noted that creating any hindrance even after the CBFC certifies it will signify becoming a law onto them and not respecting the law that governs the land. The bench also issued a notice to the Centre and all the States directing them to oversee that when a film is released, law and order are to be maintained and no one is allowed to create disturbances. Hence, it is the duty of the State to facilitate the enjoyment of the right.

There are several films which have been caught in the web of Certification Board such as Manikarnika, PK, MSG, and many more. Though they have been certified after some alterations or by the order of the court. Therefore, there is no doubt that censorship of law is justified under the Constitution and the Board is competent to adjudge the suitability of film on a much wider plane. But we cannot deny the fact that the censor board regulations affect the right of freedom of speech and expression of filmmakers whose content face restrictions and several movies become a victim of regressive laws of censorship. Even the Indian Constitution guarantees and protects the right of artists to portray social reality in all its forms. And the same is held by Justice D.Y. Chandrachud in the case of F.A. Pictures International v. Central Board of Film Certification, “Artists, writers, and filmmakers are the eyes and ears of a free society. They are the veritable lungs of a free society because the power of their medium imparts a breath of fresh air into the drudgery of daily existence. Their right to communicate their ideas in a medium of their choosing is as fundamental as the right of any citizen to speak.[15]”

Formation of Committees

The Government of India had set up an Expert Committee and entrusted them with the task of reviewing and recommending the ideas. To utmost despair very little has been done to implement the suggestions which had been put forward by these committees.

The board should follow certain guidelines while examining the film[16]:

The filmmakers should keep in mind the sensitive values and standards of society, context, theme, and what impacts will it bring in the society.

2.   If the details mentioned above are not up to the mark a film should not be certified for the exhibition. If the Board thinks that the film is violating Article 19(1) of the Indian Constitution than it has a full right to impose Article 19(2) of the Constitution which deals with the restrictions on freedom of speech and expression if it is against the interest of the sovereignty and the integrity of India, the security of the State, friendly relations with foreign States, public order, decency, or involves contempt of court or is likely to incite the commission of any offense [17].

A committee was commenced again by the Government of India in January 2016 and this time it was headed by the prestigious filmmaker Shyam Benegal. Various norms had been laid down in this committee. Some of the major guidance suggested is:

1.      The Committee Board should limit its boundary only to certification of films that will help in categorizing it according to the age and maturity of viewers.

2.      Even it was proposed that the size of the Board should be reduced keeping in view its limited functions.

3.      The role of the Chairman of the Board should be of advisory nature only.

 The Committee had abstained itself from touching the restrictions exploited under section 5.1(B) of the Cinematograph Act which in the opinion of the Committee should continue to serve as the ground of refusal of certification by the Board[18].

What is ‘Piracy’?

The term piracy was used during medieval times as an act of raiding or looting which involved ship-borne looters who then used to attack other ships to loot other belongings such as cargo or other important valuables.

But today this word has a modified meaning and now it is more relevant to stealing the copyrights and trademark i.e. unlawfully stealing someone else’s work and produce it as one’s own. Piracy in this digital era means when an individual unlawfully or illegally distributes a digital file on the internet for free then he is preventing the profit from the purchase of that item from going to the one who created it, therefore, creating an economic impact[19].

Types of Piracy

Piracy can be classified into 5 types, those being[20] –

Counterfeiting: It means illegally acquitting, duplicating, and distributing any copyrighted material, which directly emulates the copyrighted product. An example of distributing such pirated works is through compact discs.

Internet Piracy: It is an act of downloading a file from the internet or by acquiring online software through a compact disc. Internet piracy can be conducted through websites offering free downloads of software or P2P servers which transfer programs.

End-User Piracy: In this type of piracy the user illegally reproduces software which he is not authorized to do. For instance, a user using one license to the software and installing it on multiple devices or upgrading already pirated software.

Client-Server Overuse:  When the number of clients exceeds the number which is prescribed in the server license of a computer network, then it is termed as overuse piracy.

Hard-Disk Loading:  This type of piracy occurs once a business sells new computers with felonious copies of software loaded onto the hard-disks to make its purchase more enticing.

Websites to Pirate movie

With the unlawful distribution of movies such as shaky recordings on camcorders to dedicated sites and apps to physical hardware, piracy has grown as a dangerous practice. In the UK, people who are above the age of 16 pirate movies[21]

The process of pirating movies and uploading them online has grown difficult to track. The websites uploading free content experience network trafficking due to their popularity as a number of users access their domains to get their hands on the latest games, songs, movies or series.

ISPs (internet service providers) are installed by several governments to block these sites by default on their services but still these sites are visited on a regular basis through the use of VPNs (Virtual Private Networks). Some of these popular sites are[22]:-

Ø  The ‘YTS’ domains

Ø  The Private Bay

Ø  Torrentz2

India is one of the few countries that have three major cinema industries i.e. Bollywood, Hollywood, and Tollywood. As the torrent sites mentioned above are most popular across the world, people in India also tend to visit piracy sites that host Bollywood and Tollywood content exclusively. These sites are[23]:-

Ø  Filmywap

Ø  Todaypk

Ø  Bolly4u

Ø  Tamilrockers

What is Camcorder Piracy?

In this type of piracy, the pirate records the entire movie while sitting in the theatre using a camcorder. These movies are generally known as ‘Cam print’ movies. The point to be noted is that camcorder piracy is not only limited to the use of camcorders but any device which is capable of recording video comes under camcorder piracy[24].

Such pirated movies are of poor quality because of constant shaking, foreign audio, and low video pixels but still downloaded in large quantities. They are mostly downloaded within a couple of days after the release of the movie. Not only this but most of the movies are repacked into optical drivers for sale in black markets through local vendors.

The Legality of Recording Movies in the Theatre

After the amendment was made in the Cinematograph Act, 1952 it was laid down that recording movie in the theatre by any device which has the option of recording to produce pirated ‘cam print’ of the movie is unlawful and is punishable by law. Even the act of recording the movie for itself is punishable in law the rest of the process to pirate it successfully is a whole different thing. The punishment for the offense is imprisonment for up to 3 years and a fine payable up to Rs. 10 lakh[25].

What is the effect of Piracy on the film industry?

If we talk about the effects that piracy has on the film industry there is one article of Forbes as an example which told that the film, ‘The Expendables 3’ was acquired illegally by pirates and the entire movie was leaked online for people to download it. As per the statistics, it was estimated that the viewership of the pirated movie was close to 70 million viewers[26].

This matter needs a strong action because this act dangers the economic success of the movies as in today’s time every movie can be downloaded on every device, be it phones, tablets, laptops, desktops or even game consoles which leads to losses for the producers of the movie. In general, the more the viewership the more is the deduction of the profit margin for the producers of the movie. And this reduction in the profit is not only a setback to the producers but also a major loss to the employers who are associated with that film such as make-up artists, cameraman, set designers, electricians, composers, etc.

There is no doubt that Bollywood movies are popular at the global level. Still, its turnover constitutes only 8% of the overseas revenue collection. As per Germany- based data analytics firm ‘Tecxipio’, in the four years  i.e. from 2013-2017, the number of film downloads grew by 250% in Tanzania, while Ireland led the market with 100% growth[27].

Macedonia, Germany, Bosnia, Herzegovina and Turkey were the other countries with growing audiences of Bollywood movies, while Zimbabwe, Botswana, South Africa, Cameroon, Kenya, Nigeria, Uganda, Ghana, and Morocco were among the countries that were developing into hubs for Hindi movie downloads[28].

Padmaavat of Sanjay Leela Bhansali topped the Tecxipio’s list for being “the most pirated Hindi movies of 2018”. The piracy list relies upon the numbers of file-sharers who downloaded and shared the various movies in P2P (peer-to-peer) networks between 01 January 2018 and June 30, 2018. As stated by Shailesh Kapoor, CEO of Ormax Media, a consulting firm of media, maximum shares for a film happen in three-four months after its release. A spokesperson from Tecxipio stated that the P2P file-sharing activity reflects customer preferences and consumption patterns; such findings can be used to identify new target markets. “These findings can be used to cost-effectively optimize overseas film distribution strategies, especially for territories in which the content has not officially been released or audience measurements are not available,” said the spokesperson[29].

Some Hindi films downloaded and shared in P2P networks between 1/1/2018-6/30/2018 are[30]–

Rank Hindi Movie                                No. of file-sharers                              Days in Report

Padmaavat                                             7,355,459                                                   157

Tiger Zinda Hai                                     6,326,500                                                   181

Sonu Ki Titu Ki Sweety                        5,265,881                                                    128

Padman                                                  4,603,001                                                    142

Fukrey Returns                                       3,044,965                                                    181

“Days in Report” means the number of days i.e. (between the above- mentioned period) a title has been seen in P2P networks.

Punishment for Piracy

The punishments for piracy are covered in the provisions of the Copyright Act, 1957 and Information Technology Act, 2000. The punishments are-

Copyright Act: It is a tool through which the intellectual property of a person is prevented from being pirated. A legal right is given to the creator of the intellectual property to be able to reproduce and redistribute his work at his discretion. The punishment for infringing copyright is imprisonment for no less than 7 days, extending up to 3 years and a fine no less than Rs. 50 thousand, which may be extended up to Rs. 3 lakh[31].

Information Technology Act: The difference between the Copyright Act and Information Technology Act is that the former one acts as supervisor to monitor acts of piracy and punish the trespassers accordingly while the latter only extends to the unauthorized use of computers i.e. any data copied or reproduced from the system onto an external storage device counts as piracy. The punishment of piracy under the IT Act is to pay compensation for damages which amounts up to Rs. 1 Crore[32].

To decide the amount the pirate has to pay for the damages is qualified through these components–

1.      The amount of gain or unfair advantage, wherever quantifiable, made as to the result of the default

2.      The measure of misfortune caused to any person as a result of the default

3.      The monotonous nature of the default.

Internet Service Providers, however, are exempted from the provisions of this Act, if they can prove that they had no existing knowledge of the act of piracy committed.

Trademark Act[33]: A trademark or a brand name is an essential recognizable mark of intellectual property and is represented by the universal symbol (TM or ®), utilized by a particular organization, which implies that the intellectual property is unique and under their sole possession. A trademark can either be registered or unregistered, though being registered the organization enjoys many more legal remedies. The proprietor of an enlisted trademark can file a suit to protect the intellectual-property registered under it from any infringement or unauthorized use of the trademark. Whereas, the owner of the unregistered trademark can file a suit under the action of making similar remedies as an act of infringement, except the benefits, are limited to only the geographical area in which the owner operates.

What are the effects of leaking a movie through the censor board?

Way back when the movies were submitted to the Censor Board for review it was then submitted in a DVD format because through this it was easy to target the pirates. Most of the movies were leaked online before their official release and carried a watermark that said ‘For Censor’ to make it evident that these were pirated through the DVD copies which were submitted for review to the Censor Board. 

As soon as the Censor Board came to know about the piracy they took an action and changed the format of submission from DVD to an encrypted file format, commonly known as DCP (Digital Cinema Package)-KDM (Key Delivery Message) format i.e. the DCP is either submitted on a hard disk or USB Pen drive whereas the KDM part of the file contains a serial key which is then used to decrypt the movie for viewing[34].

India sees a big spike in film piracy post- Covid-19[35]

Movement restrictions around the world to stop the spread of Covid-19 created boredom for people at homes.  Most of the people in India are responsible for increasing piracy figures just because they cannot afford legal video streaming platforms or they want to consume free content through cheap internet connectivity. According to the digital piracy authority MUSO, online piracy in India rose 62% at the end of March compared with the end of February. Whereas, it increased by 41% in the US, 66% in Italy, 43% in the UK, and 50% in Spain.

According to Mr. Raj Kumar Akella who is an honorary member of the Telugu film industry anti-piracy chamber said, “A lot of pirated content in India is circulated through platforms that people technically use for other features”. As all cinema halls are shut, so people have plenty of time for television, video streaming platforms, and pirated content, he added further.

Akella also stated that piracy of movies at this time will affect the small producers because the theatres are shut and there is no box office to judge the value of the film, so the filmmakers and VoD services are likely to operate on a revenue-sharing basis in some cases, and divide profits based on how the film performs on the platform. Pirating from these services will take away a significant portion of their revenue.

 Piracy also extended to web originals. The second season of Netflix’s crime thriller Sacred Games had found pirated videos circulating on messaging app Telegram and multiple websites on the Internet. Damaged, a Hungama Digital Media original, had more than 169,000 downloads across different torrent websites since its premiere in June 2018. As per a report by Irdeto, a provider for global solutions in digital platform security, media, and entertainment, the Indian industry loses $2.8 billion of its annual revenue to piracy. India secures the fifth position in peer-to-peer downloading.

According to a study by Envisional Ltd, Indians are the largest group of visitors to visit the Indian content-focused torrent sites and also constitute the largest or second-largest group of people who visit major international bit-torrent sites like Mininova, Torrentz and The Pirate Bay.

Cinematograph (Amendment) Bill, 2019

This Bill was introduced by the Minister of State for Information and Broadcasting, Mr. Rajyavardhan Rathore in Rajya Sabha on February 12, 2019. The bill amends the Cinematograph Act, 1952[36].

The salient features of the bill are[37]–

Ø  The amendment in the bill makes film piracy a punishable offense with imprisonment up to three years and fines that may extend to 10 lakh or both.

Ø  The bill  mentions that any person, who without the written authorization of the copyright owner, uses any recording device to make or transmit a copy of a film or attempts to do so, or abet the making or transmission of such a copy, will be liable for such a punishment.

According to the original Cinematograph Act, 1952, section 7 deals with who can watch and exhibit the films and penalties or violating terms and conditions related to the exhibition of board-certified films. The amendment bill adds a new subsection (4) to section 7 of the Cinematograph Act, 1952 with the definition of piracy and the penal provisions for the same[38].

The Amendment in the Cinematograph Bill of 2019 dealt with the problem of film piracy and therefore included the penal provisions for illegal camcording and duplication of films. The Bill when passed can build reliable prevention which would raise industries revenues, support work creation, satisfy significant objectives of India’s National Intellectual Property policy and will give relief against piracy and infringing content online. To tackle hazardous film piracy, the Amendment Bill also provides for[39]:

A new section 6AA has been inserted for the prohibition of unlawful recording. The following section will come after Section 6A of the Cinematograph Act, 1952.

6AA[40]: “Notwithstanding any law for the time being in force, no person shall without the written authorization of the author be permitted to use any audio-visual recording device to knowingly make or transmit or attempt to make or transmit or abet the making or transmission of a copy of a film or a part thereof.”

*The expression “author” shall have the same meaning as assigned to it in clause (d) of section 2 of the Copyright Act, 1957.

Additionally, there has been an amendment proposed in Section 7 to introduce Penal Provisions for violating provisions of Section 6 AA. In Section 7 of the principal Act, after sub-section 1 the following subsection (1A) shall be inserted:

“If any person contravenes the provisions of Section 6AA, he shall be punishable with imprisonment for a term which may extend to 3 years or with a fine which may extend to 10 lakh rupees or with both[41].”

Recommendations by the Standing Committee on the Cinematograph (Amendment) Bill, 2019[42]

Ø  The Bill mentions punishment with imprisonment of up to 3 years or a fine up to Rs. 10 lakh, or both. But, the bill does not mention the minimum term for imprisonment or the minimum fine. Hence, the Committee recommended that both a minimum term for imprisonment and the minimum fine should be specified in the bill.

Ø  The Committee also observed that the fine of Rs. 10 lakh is insignificant and hence should be raised. The Committee then recommended enhancing the maximum fine to a range of 5%-10% of the audited gross production costs of a film.

Ø  According to the Standing Committee the bill does not specify the punishment for the mentioned offense i.e. whether it is bailable or non-bailable. The Committee, therefore, recommended that the Ministry should consider specifying the nature of the offense in this clause to remove any ambiguity.

Ø  The Bill lacked the fair use provision i.e. it lacked the provision which permits limited use of copyrighted material without acquiring permission from the copyright holder. The Committee also noted that the Copyright Act 1952 covers fair use while the Cinematograph Act, 1954 does not.  Hence, it was proposed that the Bill should have a fair use provision because it will provide adequate safeguards to persons utilizing short clips of films for non-commercial purposes.

Ø  The Bill prohibits knowingly making copies of a film without authorization. The Committee proposed that the Bill should clearly define the word ‘knowingly’ to prevent the prosecution of innocent persons.

Ø  The Committee observed that India is not a signatory to the anti-counterfeiting trade agreements. Such trade agreements cover intellectual property rights issues between countries ranging in various areas including movies and music. Hence, it will be difficult to apply provisions of the Bill in case of digital piracy originating across the border. The Committee recommended that a national law on the lines of the Digital Economy Act adopted by a few countries such as the USA and the UK should be considered. Such a law will provide a legal basis for mediation on these matters with other countries.

The Cinematograph (Amendment) Bill, 2019 was introduced in the Rajya Sabha on 12 February 2019 was then referred to the Standing Committee on Information Technology (16^th Lok Sabha) on 22 February 2019 for examination and the report which has to be submitted within two months. The Committee after hearing the views of the Ministry of Information and Broadcasting on the proposed amendment at their sitting held on 6^th March 2019, considering wide consequences of the proposed Amendment Bill on the film industry across the country and the public at large felt the urgent need to have a detailed examination of the Bill and to seek views/suggestions of experts/ associations/bodies/stakeholders/General Public. But, due to a shortage of time, owing to the declaration on General Elections, the Standing Committee on Information Technology (2018-19) left the matter of the examination of the Bill to the succeeding Committee in the new Lok Sabha[43].

At the time when the 17^th Lok Sabha held, the Bill was again referred to the Standing Committee on Information Technology (2019-20) on 4 October 2019 for examination and the prepared report within two months. Since the Committee was occupied with the time-bound exercise of examination of Demand for Grants (2019-20 and 2020-21) related to the four Ministries they sought an extension of time up to the second week of March 2020. The committee received thirteen views and suggestions and after the clarifications in the report, it was considered and adopted by the committee at their sitting held on 13 March 2020[44].     

According to the Union Minister Mr. Ravi Shankar Prasad, “There are penal provisions for unauthorized camcording and duplication of films.”  So keeping in mind all such conditions there should be stricter norms in the use of smartphones, Google glasses, and other such electronic devices in theatres.

Conclusion

Cinema being an important instrument for expressing ideas and free thoughts should not be subjected to any kind of censorship. Though one should remember the practical factors of our society in which such ideas are broadcasted i.e., in the process of expressing ideas and thoughts one should not disturb the peace and security of the society, since it can influence the society at large, caution must be taken while screening the film to avoid any kind of mayhem and danger to public security.

The vision of the filmmakers plays an important part because that is shown in the film and it has the power to bring about positive or negative change in the minds of people. Especially while showing crime and courtroom scenes one must portray the reality and not the imagination one. They should clearly show that the courtrooms are not ‘grand palaces’. That is why the lawyers keep taking digs at Bollywood by constantly stating things like, “This is not a filmy courtroom scene where you can just call in a witness without notice[45].”  Many a time, Bollywood has demonstrated law wrongly and compelled the audience that one cannot place confidence in the legal framework. But there are some movies which have done exceptionally well in depicting law, limitations, and boundaries that have been set by law, what all things create hindrance in the delivery of justice, etc. Through these movies, people have gained knowledge and attention to issues that were obscure to them.

The Certification Board must positively review a film and ensure harmony between freedom of expression and peace in society.

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