A lot of you have written to me – the past few weeks, seeking guidance on answer writing. The importance of writing better and more clearly cannot be emphasised enough. This is the area where one can get a cutting edge; this is important given the fact that most of us have access to broadly the same material, and writing is an area where one can distinguish oneself and be better than the next competitor.
I have a few broad tips for you before I share an answer:
- Never write anything that you can’t say out aloud to a friend of yours; this way you would normally cut through most of the BS that makes our writing clumsy and difficult to follow;
- The shortest distance between two points is a straight line; write straight and clear; nobody has the luxury of time.
- Steer clear of convoluted sentences. Write short sentences and in plain language. Remember, the literary letter that you’ve been meaning to write, “hand-woven or an email for that breathtaking female” can all wait! Leave literature/fiction for later. The key in answer or judgment writing is to communicate and to clarify. No metaphors, obscure references or ornamentalisation . Leave latin out too, as far as may be. You have none of the liberties that creative/fiction writers do. Stick to the basics; there’s nothing more beautiful, trust me!
- Much of the advice on good writing is largely about common-sensical, logical, and legal analysis. Good legal writing is mostly about good – logical and legal thinking. Bryan A. Garner says, “it’s impossible to separate good writing from clear thinking”.
- “Notwithstanding anything to the contrary contained in any other document (or any part thereof)….” Why write like this? Unless, of course, you are interpreting the meaning of ‘notwithstanding’ in a given case, in which you can use the phrase. Even in those cases, isolate it and then interpret it.
- Give out the essence of your case in the first few lines itself: “The judge or the examiner does not possess the luxury of time for leisurely, detached meditation. You’d better sell the sizzle as soon as possible; the steak can wait.”. Also, something we’ve successfully done in our chambers to get to the root of the matter quickly, we prepare your cases like an elevator pitch. You get to train your mind to get to the issue fast – that way.
- Frame strong specific issues. A problem well stated is a problem half solved.
- Prefer active voice over passive voice.
- If you’re writing an answer – sift the admitted from the contested quickly. Don’t waste your breath on admitted facts. Narrow down the point of controversy. The difference between a good mind and a great mind is the ability to cut through the morass of facts and straight to the point. Sifting the chaff from the grain and all that. Being, what we call – “quick on the uptake” (Don’t worry, this takes practice).
- Do not conflate style with substance. Substance is always more important than form.
- Don’t quote from case laws extensively (Law Reports have already done it!)
- Learn to detest simplifiable jargon. (For instance, “The patient is being given positive pressure ventilatory support” sucks. What is better is, “The patient is on a ventilator”. Similarly, substitute “Engaging in foot pursuit”, with “running after”.
Alright, enough with the broad gyaan! Since it’s better to ‘Show” than to “Tell”. I, with the help of some very able colleagues Rohit and Shreyash, managed to work on a few answers; just to put them out there for broad guidance. (Thank Gods that Courts are mostly closed, else I’d never be able to do this).
Please don’t emulate them! They may hardly be ‘Model’ and you must take them with a bucket of salt. Take what’s worthy of being taken from them, disregard the rest. Don’t even emulate the final conclusions or accept the accuracy of our legal assessments; just refer to these answers for broad guidance on how to write, how to frame issues and pin down the point of determination, how to reason, etc. Even if you learn what not to do while reading these, our job is done. Remember : The best style, always, is the one that you evolve for yourself. With that, here goes:
Question- A is arrested in a case for the commission of an offence punishable under Section 302 of the Indian Penal Code on 8th April 2018. He is subsequently remanded to police/judicial custody from time to time. The complainant moves the high court for a fair and impartial investigation. On the assurance of the Public Prosecutor that investigation would be conducted by an officer not below the rank of Assistant Commissioner of Police(ACP) and the report of the investigation with the opinion of the Investigating Officer (IO) shall be filed within two months, the High Court disposes of the petition on 03.07.2018.
On 05.07.2018 the police officer files a report under Section 173 of the Code of Criminal Procedure before the Metropolitan Magistrate (MM). Since the report was filed by a police officer below the rank of ACP contrary to the order dated 03.07.2018, the MM returned the chargesheet to the police for due compliance. On 09.07.2018, the accused filed an application for statutory bail under Section 167(2) of the Code of Criminal Procedure which was dismissed by the MM observing that the order dated 03.07.2018 of the High Court was an extension of the period within which the investigation could have been completed. The appellant challenges it before the High Court. Decide.DJS 2018 Criminal Law
Three issues arise for consideration: (Ed. Comment: Indeed you aren’t required to frame issues (as in CPC) while deciding an application or matter like this. But framing broad points/points of determination helps you stay anchored and tells the examiner that you know what you’re doing. I strongly advocate this approach. Read the problem. Think about it hard. Make rough notes. Come up with questions and then answer them)
Whether the police report, as filed on 05.07.2018, and without due compliance of the order of this court, can be said to have been properly filed?
Whether the police report has been filed in this case within the stipulated period of 90 days, and if yes, to what effect?
Whether the order passed by this court (High Court) on 03.07.2018 has the effect of extending the period of investigation, for the purposes of Proviso to S.167(2) CrPC?
Since these issues are interconnected, they are being taken up and disposed-of together:
The right to default bail arises out of the Proviso to Section 167(2) of the CrPC. The provision lays down that, if upon the expiry of a period of 90 days (as applicable to an offence under Section 302 of the Indian Penal Code), a police report is not filed before the Court, the accused “shall” be released on bail. The Supreme Court, in the case of Uday Mohanlal Acharya vs State of Maharashtra (2001) 5 SCC 453, has observed that such a right is indefeasible and arises automatically on the expiry of 90 days from the date of the first remand, and once properly availed, cannot be defeated by subsequent filing of a police report. Clearly, this provision is meant to incentivize speedier completion of investigation. Though the CrPC does not lay down a time-limit for completion of investigations per se but it indirectly disincentivizes delays in investigations by providing for automatic release of the accused upon expiry of a certain period. This is the salutary purpose in the light of which we decide the present case.
In the present case, the statutory period of 90 days expires on 09.07.2018. It is a matter of record that the police report in this case was filed on 05.07.2018, however, the same was admittedly returned by the Ld.Magistrate on the ground of improper filing. The impropriety in filing of police report is manifest. The police report ought to have been filed by or through an officer not below the rank of an ACP, as directed by this Court. This was not done. Therefore, we have no hesitation in concluding that the police report filed on 05.07.2018 cannot be said to be a proper police report and was rightly returned by the Ld. Magistrate. Consequently, the filing of the police report on 05.07.2018 would not have the effect of defeating the right to default bail. The police report appears to have been filed with the singular purpose of defeating the right of the accused. The right, however, does not stand defeated. Any other view will set an unfortunate precedent and allow unscrupulous investigators to bypass the salutary mandate of Section 167 of the CrPC and file incomplete reports.
The Ld.Magistrate erred in deciding to the contrary. Ld.Magistrate also erred in construing our order of 03.07.2018 to be an extension of the period mentioned u/s 167(2) Proviso of the CrPC. The order passed by this court was in the form a directive to the investigating agency as to the manner in which the investigation is to be conducted and was not an order meant, or intended, to over-ride the clear statutory provision of default bail under Sec. 167 CrPC. Especially given the mandatory language in which the right has been couched. Further, the directive was in the nature of an outer time limit for completion of the investigation. CrPC, notably, does not provide any time limit on investigations; all that Section 167(2) proviso does is that it creates a right in favour of the accused to mandatory bail, on the expiry of 60 or 90 days, as the case may be, if the police report has not been filed. Therefore, the directions passed by this Court would not over-ride the clear statutory provision of default bail.
To conclude, given the fact that the statutory period of 90 days already stands expired, consequently, the accused is held entitled to the benefit of Sec. 167(2) Proviso and is directed to be released on bail on furnishing of bail bonds/surety bonds to the satisfaction of the Ld.Magistrate.
(Ed. Comment: Conclude properly. Watch the question. If the question says “decide” – don the hat of a judge and decide. If it says “discuss”, discuss the law and lay it out.)
The facts in the present case are based on Achpal @ Ramswaroop and Another v. State of Rajasthan, (2019) 14 SCC 599 where the Hon’ble Supreme Court held:-
“Though the charge-sheet in terms of Section 173 came to be filed on 5-7-2018, such filing not being in terms of the order passed by the High Court on 3-7-2018, the papers were returned to the investigating officer. The fact of the matter is that as on completion of 90 days of prescribed period under Section 167 of the Code there were no papers of investigation before the Magistrate concerned. The accused were thus denied of protection established by law.”(the protection of default bail)
The provisions of the Code do not empower anyone to extend the period within which the investigation must be completed nor does it admit of any such eventuality. There are enactments such as the Terrorist and Disruptive Activities (Prevention) Act, 1985 and the Maharashtra Control of Organised Crime Act, 1999 which clearly contemplate extension of period and to that extent those enactments have modified the provisions of the Code including Section 167. In the absence of any such similar provision empowering the court to extend the period, no court could either directly or indirectly extend such period. In any event of the matter all that the High Court had recorded in its order dated 3-7-2018 was the submission that the investigation would be completed within two months by a gazetted police officer.”Achpal @ Ramswaroop and Another v. State of Rajasthan, (2019) 14 SCC 599