INDIA Law and Practice Contributed by: Priyank Ladoia, Asif Ahmed, Puneet Dhanoa and Utkarsh Routh, AZB & Partners
for offences by the target entity subject to the terms of the scheme of the merger, the nature of allegations and existence of proof against the entity. After exam - ining the law on this subject, the Supreme Court held that criminal liability of a company: • is recognised where it can be attributable to indi - vidual acts of employees, directors or officials of a company, or to juristic persons (while relying on Tesco , Meridian Global Funds , Standard Chartered Bank and Iridium ); • is recognised even if its conviction results in a term of imprisonment ( Meridian Global Funds and Iridium ); • cannot be transferred ipso facto, except when in the nature of penalty proceedings (relying on McLeod Russel ); • ceases to exist given that the legal effect of amal - gamation of two companies is the destruction of the corporate existence of the transferor company; and • is succeeded to by the transferee company, apart from only in defined legal proceedings. In criminal cases in India, an effective defence strat - egy must be based on facts that are plausible and backed by credible and admissible evidence. There cannot be a straight-jacket formula for defence, since each criminal trial turns on its own facts and evidence. Further, the defence strategy keeps evolving as and when evidence is produced and as testimonies are recorded in court. During a trial, an accused person has a chance to establish their defence against the charges brought by the prosecution, including by cross-examining wit - nesses and bringing witnesses of their own. For certain specific offences relating to a public servant under the PCA, no inquiry or investigation can be initiated without the prior sanctioning of the State or the Central Government (as the case may be). The issue of whether this procedural requirement for obtaining a prior sanction (as introduced by the 4. Defences and Exceptions 4.1 Defences
Amendment Act in 2018) will apply retrospectively is currently pending before the Supreme Court. Further, if a person is found to have been “compelled” to give undue advantage to a public servant, they shall not be punished for an offence of bribing the public servant, subject to the “compelled” person report - ing the matter to law enforcement agencies within a period of seven days of giving the undue advantage. Further, if a person gives undue advantage in order to assist law enforcement agencies in their investigation under the PCA, such persons are not liable for the offence of bribing public officials. The PCA recognises that a “commercial organisation” shall not be liable to such prosecution if it is able to prove that it had in place adequate procedures for preventing persons associated with the commercial organisation from undertaking such conduct. Perti - nently, the PCA states that the Central Government shall prescribe such adequate procedures; however, none have been notified to date. Until such time, a commercial organisation may choose to frame its own policies and conduct regular internal training in order to present a defence that it took steps to prevent any such acts from being committed by its officials. 4.2 Exceptions There are no exceptions to the previously discussed See 4.1 Defences for any and all exceptions avail - able to a person or commercial organisation under the PCA. 4.4 Exempt Sectors/Industries There are no sectors or industries that can plead exemption from the applicability of the PCA. 4.5 Safe Harbour or Amnesty Programme defences (see 4.1 Defences ). 4.3 De Minimis Exceptions In the course of proceedings under the PCA, the court may, at any stage of inquiry or trial, grant a pardon to a person on condition of their making a full and true dis - closure of the circumstances within their knowledge with respect to the offence in question, with a view to obtaining evidence of any person supposed to have
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