INDIA Law and Practice Contributed by: Vijayendra Pratap Singh, Asif Ahmed, Bhanu Jindal and Khushi Mittal, AZB & Partners
economic condition of the country or has been com - mitted against a woman, or a child under the age of 14 years. A person accused of an offence may file a plea-bar - gaining application in the jurisdictional court with a brief description of the facts of the case. A prerequi - site for such an application is that the accused person has not previously been convicted of the same offence by a court. After understanding the nature and extent of punishment provided by the law for the offence, the application is voluntarily preferred. Once the court is satisfied the application is voluntary, it allows time for the prosecutor and complainant to mutually resolve the matter. Upon such resolution, the court awards compensation to the victim and may impose half or one-fourth of the minimum punishment after hearing the parties. Every person must co-operate with investigation agencies, providing requested materials, information, or documents, and appear when summoned to give statements or submit evidence. There is also a legal duty to furnish correct and accu - rate information to the investigation officer. Failure of such duty is punishable under law. However, the con - stitutional right against self-incrimination is an excep - tion. Further, except for certain offences listed under Section 33 of the BNSS, or any other law requiring active disclosure, there is no general duty to disclose the commission of an offence. If an accused pleads guilty voluntarily before or dur - ing trial, the court may exercise discretion to impose a lighter sentence, provided it does not fall below the minimum statutory limit for that offence, except where The Whistle Blowers Protection Act establishes a mechanism for receiving complaints relating to dis - closure of allegations of corruption or wilful misuse of power by public servants and providing adequate safeguards against victimisation. While the Act was notified in May 2014, it is yet to be enacted. One of plea bargaining provisions apply. 4.4 Whistle-Blower Protection
the drawbacks of the Act is that it does not cover corporate whistle-blowers. There are certain other voluntary mechanisms in India to deal with whistle-blowing. The SEBI Act mandates that every listed company must have a whistle-blower policy in place. SEBI has also introduced a reward mechanism from 2019 onwards to encourage employ - ees of listed companies to come forward with their concerns. In 2020, the Ministry of Corporate Affairs implement - ed a new format for conducting statutory audits of companies, known as the Company Auditors Report Order, 2020, which is applicable for audits beginning from FY 2021–2022. The auditor of the company is now obligated to generate reports regarding whistle- blower complaints filed against the company during the said financial year. The Companies Act also creates an obligation on auditors to report fraud in the company they are audit - ing. Failure to do so shall render such auditor ineligi - ble to be appointed an auditor of any company for a period of five years and liable for fraud under the Companies Act. In addition, the BNSS, for the first time, has provided for witness protection schemes to be notified by a state government. Moreover, under the BNSS, with - drawal of prosecution can now only take place with the prior permission of the complainant (which can include a whistle-blower). This allows a whistle-blower to be a formal participant in proceedings before the concerned criminal court. 4.5 Cross-Border Defence Strategies When white-collar investigations or prosecutions span across multiple jurisdictions, defence strategies are often significantly impacted. A central challenge lies in the need to maintain consistency and coherence across jurisdictions. Accordingly, defence strategies, if co-ordinated, can ensure that the positions taken in each jurisdiction remain uniform, while still tailored to the specific procedural and substantive requirements of that jurisdiction. A co-ordinated defence strategy must also carefully assess the implications of disclo - sure obligations in each jurisdiction.
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