CrPC Procedure

July 6, 2017 | Author: Nagaraj Kumble | Category: Bail, Arrest, Criminal Procedure In South Africa, Crimes, Crime & Justice
Share Embed Donate


Short Description

Download CrPC Procedure...

Description

A-PDF Merger DEMO : Purchase from www.A-PDF.com to remove the watermark

Courts, Police, Authorities & Common Man

i

K

now your Author Shri Sunil Goel was born in New Delhi in the year 1971 in a traditional business family having interests in Iron & Steel, Real Estate, banquet, etc. He did his graduation in science from Kirorimal College, one of the prestigious colleges of the Delhi University. Mr.Goel took his degree in law from Delhi University and his Masters of Law from the M.D.University, Rohtak. He is enrolled as an advocate with the State Bar Council of Delhi and is member of a number of professional bodies like Delhi High Court Bar Association, Delhi Bar Association, Indian Council of Arbitration, etc. Within a short span of time, Mr. Sunil Goel has earned accolades and recognition as a lawyer. He has been representing clients like Govt. of India, Municipal Corporation of Delhi, National Thermal Power Corporation, Essar group, etc. Mr. Sunil Goel is an Arbitrator on the panel of Registrar Co-operative Societies, Delhi and Indian Council of Arbitration. He is also Guest lecturer, Directorate of Training, Govt. of NCT of Delhi, giving lectures on law subjects to UTCS and IAS probationers. He has also delivered lectures to members of North India Regional Council of Institute of Chartered Accountants of India and senior officials of Airports Authority of India. He was appointed as Amicus Curie in several matters before the National Consumer Disputes Resolution Commission. He is one of the professionals who successfully completed e-learning Certificate Course on Arbitration and Dispute Resolution conducted by United Nations Institute for Training & Research (UNITAR), Geneva, 2004. His articles on subjects concerning every man appear in papers and periodicals. Criminal law has been one of the favourite subjects of Mr. Sunil Goel. Infact, the subjects of study in his LL.M. degree were various aspects of criminal law. His articles on cheque bouncing are very popular with the masses.

ii

Courts, Police, Authorities & Common Man

Dated:03.01.2004 FOREWARD Iwentthroughthemanuscriptofthebooktitled“Courts,Police,Authorities and Common Man” by Shri Sunil Goel with great interest and I am glad to write a forward to the same. At first look, I thought this must be yet another work on the subjectbutwhenIwentthroughthebook,Ifoundthatbothindesignandexpression, this book marks an advance on anything written so far on the subject. The subject has been treated in depth and all aspects are adequately covered in simple language easyofcomprehensionbythelayman. The author has put in considerable amount of work in the preparation of thisbook.Hehasreferredtotherelevantauthoritiesandexplainedtheminalanguage which an ordinary reader can understand. The book contains a thorough analysis of the subject and bears testimony to the thorough grasp of the subject by the author and the hard work and industry brought to bear in the preparation of this book. Iamsurethisbookwillproveusefultolawyers,policeofficialsandlayman alike. I congratulate the author in preparing this excellent work and I have great pleasure in recommending it to all concerned with the administration of law and order. I wish Shri Sunil Goel all the best for the success of this book.

JusticeP.N.Bhagwati former Chief Justice of India

Courts, Police, Authorities & Common Man

iii

January 8th, 2004 FOREWARD This book written by Shri Sunil Goel, a practicing advocate of this Court, is worth commendation. We have many books and commentaries on the criminal law which explain the various provisions of Criminal Procedure Code and Indian Penal Code and discuss the judgments on relevant provisions delivered by the Courts. These books are meant for and are understood only by law professionals. There is hardly any book which I have come across which is meant for and is understood by common man or litigant. I find that this book is different from other books in this regard. The very purpose of the book is to educate and inform the people – whether it is professional, litigant, police officer, businessman, foreigner or any other person – about the criminal justice system applicable and prevalent in India. This is explained in a very simple language. Usually, the common man is not aware about his rights under the criminal law and thus is not able to avail these at times of acute need. This is where the high handedness comes in, leading ultimately to corruption. The law confers not only the powers upon the Govt. officers including police, but also assign certain duties to them to avoid misuse of powers by them. But most of the people are not aware of these duties and are thus forced to bear the harassment by corrupt and inefficient officers. This book also explains the working of the courts and attempts to answer probably all the queries which a person might want to ask but do not know whom to ask. While the overall emphasis is on criminal law, other important aspects of general law have also been dealt with. The chapter on history and working of police is really interesting. Various aspects relating to bail have been explained in very simple language. The rights of the arrested person are beautifully dealt with. One must go thoroughly through the chapter “ Frequently Asked

iv

Courts, Police, Authorities & Common Man

Questions” and “ Other Information” to get answers to most of their queries concerning the use of criminal law in day to day life. The addresses and telephone numbers and websites of important bodies given in the Appendix would be very handy to the people in emergent situations. The young entrants to the profession of law would find the sample proformas of various petitions to be very useful. I am really impressed by the treasure of information which the author has attempted to provide in this book. This is really a noble and laudable effort. This is really an informative handbook. Such useful and interesting information has been provided in this book which is normally not known even to advocates, and in some cases, even to judges. People want to know about these things but do not know the source. Most of the information given in this book is normally not available in any easily available book. Take an illustration : we all know that death sentence in India is executed by hanging the convict by neck till he is dead. But we do not know why death sentence is executed in this manner, why not in any other manner, from where this procedure is derived, what is the legal authority for such procedure. The answers to these questions are available in Section 354 of Cr.P.C. which cast an obligation upon the court that “ when any person is sentenced to death, the sentence shall direct that he be hanged by neck till he is dead”. Chapter 9 gives very useful information about the various subjects of common utility and the various Acts which deal with these subjects. The new entrants in the field of advocacy will particularly find this book very useful. Mr. Goel has really taken the pains to explain the complicated aspects of criminal law in a very simple way. I am sure that the litigants, the common man and the legal fraternity of India and abroad will find this book to be very useful. I congratulate Shri Goel for having written such an informative, educative and useful book. I wish Shri Sunil Goel and this book all the success.

Ramphal Bansal, Sr.Advocate & Vice President, D.A.V.Managing Committee

Courts, Police, Authorities & Common Man

v

1st January, 2004 FOREWARD While working for the Govt. of India in various capacities and finally as its Law Secretary, I had the opportunity to deal with various legal matters and participate in drafting of statutes and various reports. I was blessed with the opportunity to be part of several Indian delegations to various countries on various aspects of law, including mutual assistance in criminal matters. I found that most of the people, whether in India or abroad, are not aware about the basics and practical working of criminal justice system in India. The criminal justice system, codified mainly in Criminal Procedure Code 1973 and Indian Penal Code 1860, is too technical to be understood by common man. The present book on criminal law by Shri Sunil Goel is a ray of hope for all those who always wanted to have basic knowledge about Indian criminal justice system. Apart from explaining the relevant provisions of Criminal Procedure Code, it also inform the readers about various other unspecified aspects of criminal law. Infact, this book, when seen in broader perspective, attempts to give an insight into the working of justice system in India, with emphasis on criminal law. The information given in the Appendices is really precious and informative. The chapters on ‘Frequently Asked Questions’ and subsequent chapter giving other useful information are the life of this book. Shri Sunil Goel really deserves commendation for writing such a useful book. His in-depth knowledge about the criminal law at such a young age is really marvelous. I wish him all success in his life and particularly wish him good luck for the success of this venture.

Dr. V.K.Agarwal, Former Law Secretary, Govt. of India

vi

Courts, Police, Authorities & Common Man

PREFACE : As I grew up, I realized that there is a severe lack of knowledge among the general masses about the working of the Govt. and its various agencies. The day to day life of the people is affected by the courts, the police and other agencies. But people are not aware about the various aspects of courts, about the criminal justice system, about the procedure being followed in criminal courts, about the various restrictions on the exercise of powers by the police and the duties of the police officers, and so on. They are also not aware about their rights when they are accused of an offence. It is because of this lack of knowledge of the working of the system that the people are taken for a ride and are unnecessarily harassed and tortured at the hands of the prosecuting agencies. Through this book, I have made endeavour to present the working and set up of courts, the features of Code of Criminal Procedure and other Acts dealing with criminal law and the rights and safeguards available to people in times of needs, as nearly as possible, in the language which a common man understands. I have deliberately avoided using technical sounding words. In this process of simplifying the things, so that the common man understands the basic concepts of criminal law easily, I have not given or discussed the complete sections or provisions and only given the gist or simple interpretation of the law. For accurate version, kindly refer the relevant Bare Acts. This book is aimed at giving basic understanding of the criminal law and provide most easiest way to understand Code of Criminal Procedure which is considered the bible for every police officer and for every court, as every police officer and every criminal court throughout India is bound to proceed in accordance with the provisions contained in it. The working of the courts and the various terms and procedures associated with the courts and police agencies have also been explained in easy-to-understand way. I have tried to present the whole criminal justice system from the point of view of an average person. My endeavour has been to provide the maximum information to all. However, to thoroughly understand the information contained in various chapters, the readers are advised to simultaneously refer to the Criminal Procedure Code and the Indian Penal Code, the complete texts of which are given

Courts, Police, Authorities & Common Man

vii

in the appendix. While the Criminal Procedure Code lays down the procedure to be followed under the criminal law by all – the courts, the police, the litigants etc., the Indian Penal Code contains the definition of various offences and the punishment prescribed for the various offences. I hope that the public and the professionals alike will find this book useful and this book will serve as a reference for them in case of any contingency relating to criminal justice system. The foreigners, who want to have information on criminal justice system of India, particularly, will find this book very useful. I have added the website addresses and telephone numbers of various authorities and organisations in the appendix which most of you may find useful. The samples of various types of petitions and applications commonly made in the criminal courts have also been added. This, I believe, would be most handy, particularly for the budding lawyers. I would like to apprise the readers that the various forms envisaged under the Cr.P.C. are given in the Second Schedule of Cr.P.C. and the description of offences under IPC as to whether a particular offence is bailable or non-bailable, cognizable or non-cognizable, maximum punishment prescribed for that offence, etc., are specified in First Schedule of Cr.P.C. While all efforts have been made to ensure that the various concepts are explained in the most easiest and accurate way, however, to err is human, and therefore some errors might have crept up. I will be obliged if the readers of this book bring such errors to my knowledge so that the same can be rectified in the next edition. Of course, any suggestions for the improvement of this book are always welcome. The scope of this book is to inform the common man about the remedy available to him against atrocities and harassment, if any, by the public authorities including by the police. Therefore, I have mainly dealt with those provisions under which a person can take action against the public authorities. I have nothing personal against them and I do hope and believe that they would take this book in right spirit and would pardon me if they feel hurt. The entire emphasis is on the common man and the aspects of his vicitmisation. This book would be useful to students, lawyers, citizens, foreigners,

viii

Courts, Police, Authorities & Common Man

embassies, departments of Govt. and public bodies, officers, bureaucrats, scholars and just anybody who is interested in knowing the basic and unknown facts about criminal justice system of India. I am thankful to my whole family who motivated me and stood by me throughout the writing of this book. I am also thankful to all those who helped me in the writing of this book. I feel I would be unfair if I do not express my gratitude and regards to Dr. Sarbjit Sharma under whose able guidance I learnt the basics of law. Special regards are also due to Dr. V.K. Agarwal, former Law Secretary who guided and enlightened me on various finer aspects of law. I am also grateful to the authors and writers from whose work I drew freely including Shri R.V.Kelkar, and Mr. M.B.Chande whose book ‘The Police in India’ provided the inspiration and information for the chapter on police. I am highly grateful to Justice P.N.Bhagwati, Dr. V.K.Agarwal and Shri Ramphal Bansal for encouraging me and blessing me by writing foreward to this work. Most of the contents of the chapters on Delhi Police, Interpol, CBI and CVC have been taken from the respective websites. I dedicate this book to my late grandfather Lala Sohan Lal Goel who always inspired me to move ahead in life against all odds. New Delhi March 25th , 2005

Sunil Goel E-mail : [email protected]

Courts, Police, Authorities & Common Man

ix

Abbreviations used in this book :

CrPC IPC MM

: : :

IO BW NBW Art. Sec EM SDM DM GOI UOI SHO PS ACP DCP CP FIR SC HC Min. Max. Govt. R.I. Deptt.

: : : : : : : : : : : : : : : : : : : : : : :

Code of Criminal Procedure 1973 Indian Penal Code 1860 Metropolitan Magistrate (Wherever the term MM is used in this Book, it should be understood as Judicial st Magistrate 1 Class, in case of areas other than metropolitan areas) Investigating Officer Bailable warrant Non-bailable warrant Article of the Constitution of India Section Executive Magistrate Sub-divisional Magistrate District Magistrate Govt. of India Union of India Station House Officer Police Station Asst. Commissioner of Police Deputy Commissioner of Police Commissioner of Police First Information Report Supreme Court High Court Minimum Maximum Government Rigorous imprisonment Department

x

Courts, Police, Authorities & Common Man

CONTENTS (i). Know your author (ii) Foreward by Justice P.N.Bhagwati, former Chief Justice of India (iii) Foreward by Shri Ramphal Bansal, Senior Advocate, veteran freedom fighter and Vice president, DAV Managing Committee (iv) Foreward by Dr. V.K.Agarwal, former Law Secretary of India (v) Preface (vi) Abbreviations used in this book

i ii iii v vi ix

P a r t I : Courts

1. 2.

Constitution of India : Fountain – head of all laws Set up and functioning of courts (including qualifications, eligibility & promotion of Judges) 1. 2. 3. 4. 5.

1

Supreme Court High Court District & Subordinate Courts Procedure for recruitment to judiciary National Judicial Commission

6 7 9 10 11

3.

Hierarchy of Criminal Courts in India

15

4.

Judicial set up in Delhi

19

1. History of courts in Delhi

19

(i) Civil courts

(ii) Criminal courts

(iii) Seperation of Executive & Judiciary

(iv) Court buildings

2. State Judicial services

22

3. Overall courts set-up in Delhi

24

(i) Civil set-up a. Civil Judges b. Addl. District Judges d. Matrimonial cases (ii) Criminal set-up

25 c. Rent cases e. Labour cases 26

a. Metropolitan Magistrate b. Chief Metropolitan Magistrate c. Sessions court d. High Court e. Supreme Court f. Accident cases g. Mahila courts h. Special courts 4. Practical working of a typical subordinate court in Delhi 30 5.

Law Officers representing Govt. in the various Courts

32

6.

Powers of Court under ‘Contempt of Court Act 1971’

36

7.

Other Courts & Tribunals

39

8.

Public Interest Litigation

42

Courts, Police, Authorities & Common Man i. ii. iii. iv. v. vi.

What is PIL ? What is the purpose of PIL ? In which courts PIL can be filed ? Who can file a PIL? What is the method of filing a PIL? Role of PIL in expanding scope of Article

xi 42 42 42 42 43 44

P a r t II : Police 1.

History of Police in India

47

2.

Police set-up in India

49

3.

Various Departments/Wings related to Police

51

A. Prosecution Agency

51

B. Criminal Investigation Department (C.I.D.)

51

C. Armed Police

51

-Provincial Armed Constabulary in Uttar Pradesh (PAC) -Rajasthan Armed Constabulary (RAC) -Special Armed Police Force in Madhya Pradesh -Military Police in Bihar -Malabar Police in Tamil Nadu -Assam Rifles in Assam -Border Security Force (BSF) -Central Industrial Security Force (CISF) -Central Reserve Police Force (CRPF) -Indo-Tibetan Border Police. (ITBP) D. Wireless Section

E. Police training institutions

F.

G. Railway police

Traffic police

H. Home Guards J.

I. Home Department

Unarmed Police agencies under the control of Central Govt.

55

#Intelligence Bureau (I.B.) #Research and Analysis Wing (RAW) #Special Protection Group (SPG) #Central Bureau of Investigation (CBI) 4.

Central Vigilance Commission (CVC)

61

5.

Delhi Police

65

#History

#Organised Set-up

#Structure : *District Police *Licensing Deptt

#Mission 67

*Traffic Police *Police Control Room .*Vigilance Deptt. *Crime & Railways Deptt.

xii

Courts, Police, Authorities & Common Man

*Crime against Women Cell *Narcotics & Crime Prevention Cell #Achievements *Help Line *Advertising compaign *Special Police Officers *Computerised arms licensing unit *Service oriented activities #Schemes *free copy of FIR to complainant by post *arms licenses *helping stranded vehicles *Jan Sahayog Abhiyan *Neighbourhood Watch Scheme *Helpline for women in distress *Servant verification scheme #How to contact Delhi Police #Law relating to Delhi Police *Various provisions of ‘Delhi Police Act 1978’ *What are the duties of a Police Officer? *What are the penalties that can be imposed on a Police Officer? 6. Interpol -

What is Interpol, its aims, limitations and principles of its cooperation? India and Interpol Role and functions of Interpol wing of CBI Interpol notices ‘A’ series notices (Red) ‘B’ series notices (Blue) ‘C’ series notices (Green) ‘D’ series notices (Black) ‘E’ series notices (stolen property) Modus Operandi Sheets

70

71

75 75 75 77 78 80 80 81 82 84 85 86 86 87 87 88

P a r t III : Criminal Law Administration System 1.

Introduction

89

2.

Frequently Asked Questions (FAQs) :

91

1.

What is the complete procedure being followed after happening of a crime? 91

2.

What is an FIR? What is the procedure for lodging an FIR?

95

3.

What to do if the police does not register FIR on my complaint?

97

4.

What is the power of police to compel a person to appear before it ?

98

4A. What are the powers of Police to interrogate a person?

99

5.

What is the law relating to Arrest ?

100

6.

What are bailable and non-bailable warrants ? When are these issued ?

104

7.

What happens if I do not appear in court even after receiving summons as an accused in a criminal case ?

105

7A. If I am called as a witness by the criminal Court and I do not

Courts, Police, Authorities & Common Man

xiii

8.

appear, what happens ? What is the sequence of events before and after Arrest ?

105 106

9.

What are the rights of a person who is arrested ?

107

10. What should I do if I am arrested by the police ?

110

11. What is the remedy available to me if I am unlawfully detained or arrested? Can I file case against police ? Can I claim compensation from police?

111

11A. What is the power of Police to compel a person to appear before it?

113

12. What is the law relating to issue of summons and search warrant tocompel the production of things, documents etc. ?

114

13. How to know whether an offence is bailable or non-bailable, cognizable or non-cognizable ?

116

14. Who is a Proclaimed Offender (Bhagoda) ? What happenswhen a person is declared proclaimed offender ?

118

15. What is Kalandra ?

119

16. What is the remedy in the criminal law for removal of public nuisances?

120

17. What are the proceedings before an Executive Magistrate in case of dispute/ quarrel over immoveable property?

121

18. Can I compromise a criminal matter with the other party, so that the case is closed against me ?

122

19. If I am called as a witness and I then appear in the court, am I entitled to the expenses incurred by me ?

123

20. What questions can not be asked from a witness in a court?

125

21. Is there any punishment for giving false evidence or making false statement in affidavit or for fabricating false evidence for the purpose of falsely convicting others? ( perjury)

125

22. Under what circumstances, screening the offender from punishment is punishable?

128

23. What are the offences involving public servants ? Can they also be punished for any of their act or omission which amounts to an offence? 132 24. Is there any provision in law for compensating the victim of an offence?

138

25. What is the effect of absence of the accused or the complainant in a complaint case before a magistrate ?

140

26. Is there any limitation for entertaining a case against a person ?

141

27. Are there any circumstances when a criminal case can be disposed off without full trial ?

142

28. Is there any duty of a person under the law towards his parents, wife and children?

145

29. What is Curfew?

146

xiv

Courts, Police, Authorities & Common Man

30. What is the offence of obscenity ?

147

31. What is the remedy available to a woman in case of sexual harassment?

148

32. If a person has not committed an offence but only attempted to commit that offence, will he still be punished ? (attempt)

149

33. What is the power of the President of India or the Governor of a State to grant pardon to a person convicted of any offence?

150

34. What are the circumstances in which even the Govt. can also remit or commute or suspend the sentence of a convict ?

153

35. What are the circumstances in which a person despite being convicted (i.e. held guilty) can be released by the Court? (probation)

154

36. What is the law relating to the children?

156

37. What action I can take against police or any other public officer if they harass me ?

157

38. If I have given surety for some accused in Court and he runs away or does not appear in court, what is the worst that can happen to me ? 158 39. What is done when the Investigation of a case is to be carried out in a foreign country ?

159

40. What is the law in India enabling the courts to issue letters of request (letters of rogatory) to the authorities in foreign countries to take evidence in relation to cases pending in India ? 160 41. Is prior clearance of Central Govt. required before making a request to the Indian court for issueing Letter Rogatory to a foreign court ?

161

42. What happens when letter rogatory is issued by an Indian court to a foreign court?

162

43. Which are the countries with which India has Mutual Legal Assistance Treaties ?

163

44. What is extradition ?

164

45. What is the law in India regarding extradition of criminals from foreign countries to India and from India to foreign countries ?

164

46. What is the procedure for seeking the extradition of a criminal from a foreign country ? 165 47. Which are the countries with which India has extradition treaty ?

167

48. Which are the countries with which India has extradition arrangements?

167

49. What is done when foreigners are arrested in India ?

167

50. What happens when Indians are arrested in foreign countries ?

169

3.

Other information

170

1.

Where can I find the decisions delivered by the High Court and the Supreme Court ?

170

Courts, Police, Authorities & Common Man

xv

2.

What is a ‘cause list’ ?

170

3.

What are the various statutory bodies of advocates ?

171

4.

How to identify a senior advocate ?

171

5.

Who is ‘amicus curie’ ?

172

6.

What is the meaning of ‘Life Imprisonment’?

172

7.

What is the law relating to jails in India ?

174

8.

Why a person is always hanged in case of death penalty ? What is the procedure laid down for executing death sentence by hanging? 174

9.

What is parole ?

176

10. What are Lok Adalats ?

176

11. Do the politicians enjoy any privilege in respect of offences committed by them ?

177

12. Can a person file petition directly in the High Court or in the Supreme Court if he is harassed or tortured by Government functionaries ?

178

13. Where and how should I complain against Govt. servants and public authorities ?

179

14. What is Gazette ? What is its authority ? What is contained in it ? From where, I can procure the Gazette ?

181

4.

Law relating to Bail…

184

1. Bail

184

2. Right to Bail in case of slow investigation and slow trial

186

3. Bail granted by the court can be cancelled in certain situations

187

4. Anticipatory Bail

187

5. Bail bond and Surety bond

188

Salient Features of Criminal Procedure Code 1973 (Cr.P.C.) at a glance

192

5. —

Supremacy of Code of Criminal Procedure

192



Types of punishments by different courts

192



Arrest without warrant

192



Arrested person to be treated respectfully

192



Medical examination of arrested person

193



Arrested person can’t be kept in lock-up for more than 24 hours

193



Responsibility to look after wife, children and parents

193



Nuisance by a person

193



Disturbance of public peace ( curfew)

194



Quarrel concerning immoveable property

194

xvi

Courts, Police, Authorities & Common Man



Right of arrested person

194

— — — — — — — — — — — — — — —

Tainted investigation FIR can be cancelled only by the court Statement given to police can be retracted Statement given to Magistrate can not be retracted Right of bail in case of slow investigation Right of arrested person to inform friend/relative Inquest proceedings by SDM in case of unnatural death Offence committed by an Indian in foreign country Taking of cognizance by Magistrate Accused can ask to transfer case to some other magistrate Cognizance can be taken only by Magistrate’s court When accused is a public servant Complaint on behalf of a woman regarding torture Committal of case to the sessions court Magistrate can drop the proceedings against the accused even after taking the cognizance Discharge of accused Accused to be present in court on every date Compensation to accused if he is discharged/acquitted Withdrawal of complaint Evidence to be recorded in presence of accused Recording of evidence of a witness Formal Evidence can be given by affidavit No one can be punished for the same offence twice Duty of court to arrange lawyer for the accused One of the accused turning ‘approver’ Trial in criminal case to be held day-to-day Any witness can be summoned at any stage Expenses to be paid to witnesses for attending court Examination of accused by court after prosecution evidence is over Non-accused can be summoned as accused by court Compromise in criminal case Court proceedings open to public Trial to stop if accused found to be of unsound mind Witness can be punished for giving false evidence Release of convicted person on probation

194 194 195 195 195 195 196 196 196 197 197 197 197 197

— — — — — — — — — — — — — — — — — — — —

197 198 198 199 199 199 199 199 200 200 200 200 200 201 201 201 201 201 201 202 202

Courts, Police, Authorities & Common Man —

xvii



Person sentenced to less than 3 years imprisonment entitled to bail for filing appeal Power of Supreme Court to transfer any case throughout India

202 203



Pregnant woman not to be hanged to death

203



Power of Govt. to suspend sentence of convict (Remission)

203



How can surety get himself discharged

203



Releasing moveable property by court

203



Power of court to order restoration of possession

204



No judge can act as judge in his own cause

204



Extra ordinary powers of the High Court

204

6.

Situations when offence not punishable (General Exceptions)

205

7.

Matrimonial dispute culminating into harassment by women under criminal law

221

8.

Dishonor of Cheques

226

9.

Do you know ? (important pieces of information relating to various Acts )

232

10. Notable quotes from the Judgments of the Supreme Court and the High Courts

241

11. Ingredients of some common offences under I.P.C.

245

-

cheating criminal breach of trust forgery hurt grievous hurt murder kidnapping rape theft extortion robbery dacoity criminal trespass defamation criminal intimidation

12. Sample performa for various types of Petitions/applications in criminal courts

245 245 246 247 247 248 250 250 251 251 252 253 253 254 256 257

1. Bail Application under Section 436 in a Magistrate’s court in a case of bailable offence

257

2. Bail Application under Section 437 Cr.P.C. filed in a Magistrate’s Court in a non-bailable offence

258

xviii

Courts, Police, Authorities & Common Man 3. Bail Application under Section 439 Cr.P.C. filed in Sessions Court in a non-bailable offence

259

4. Bail Application under Section 439 Cr.P.C. filed in High Court in a non-bailable offence

261

5. Anticipatory Bail Application under Section 438 Cr.P.C. filed in Sessions Court in a non-bailable offence

263

6. Anticipatory Bail Application under Section 438 Cr.P.C. filed in High Court in a non-bailable offence 7. Application under Section 439(2) Cr.P.C. for cancellation of bail

265 267

8. Application for modification of conditions of bail

269

9. Application under Section 444 Cr.P.C. by a surety for his discharge

271

10. Application by surety for condonation of the penalty imposed by the court on forfeiture of surety bond for non-appearance of the accused on the date fixed (section 446 Cr.P.C.)

273

11. Application for depositing the money instead of furnishing surety (Section 445 Cr.P.C.)

275

12. Application under Section 389 Cr.P.C. moved before the Appellate Court for suspension of sentence and for release of appellant on bail pending the appeal, in case where the appellant has been convicted by the trial court 13. Application for returning articles seized from accused applicant at the time of his arrest under Section 51 Cr.P.C.

279

14. Application for return of property after the conclusion of the trial (Section 452 Cr.P.C.)

280

15. Application for payment of money involved in offence to the innocent purchaser (section 453 Cr.P.C.)

282

16. Application for return of original documents after the disposal of the case

284

277

17. Application for restoration of possession of immovable property (Section 456Cr.P.C.) 285 18. Application by the accused for personal exemption (sec.205)

286

19. Application to Magistrate Court for withdrawal of criminal complaint (Section 257 Cr. P.C.)

288

20. Petition under Section 407 Cr.P.C. to High Court for transfer of case from one subordinate court to any other subordinate court

289

21. Application under Section 94 Cr.P.C. for searching a particular place where stolen properties are supposed to have been kept

291

22. Application by an accused at the time of surrendering in the Court

293

23. Application for release of the applicant (convicted by the court) on probation (Section 360 Cr. P.C.)

295

Courts, Police, Authorities & Common Man

xix

APPENDIX 1

: Judges of Supreme Court ( as on 15.2.2005)

297

APPENDIX 2

: Judges of Delhi High Court ( as on 15.2.2005)

298

APPENDIX 3

: List of all Chief Justices of India uptill now

299

APPENDIX 4

: Important addresses, telephone and email numbers

300

APPENDIX 5

: Important websites

306

APPENDIX 6

: Important phone and fax numbers of Delhi Police

309

APPENDIX 7

: Important addresses, phone and fax numbers of CBI

311

APPENDIX 8

: Some important Sections of Indian Penal Code ( frequently used)

318

APPENDIX 9

: List of members of Interpol

330

APPENDIX 10

: List of District & Sessions Judges in Delhi from year 1967 onwards

335

Courts, Police, Authorities & Common Man

Sunil Goel B.Sc., LL.B, LL.M.

s r i s h t i

b o o k s

" With the Blessings of LORD SHIVA"

Edition : 2005

© All rights reserved with the author

Rs. 395. US $ 17 (for Overseas)

_________________________________________________________________________________ No part of this book may be reproduced in any manner whatsoever or translated in any other language without the permission in writing of the publishers. Although every care has been taken in the publication of this book, the authors, the publishers and printers shall not be responsible for any loss and damages caused to any person on account of errors or omissions which might have crept in. The publishers shall be obliged if mistakes are brought to their notice for carrying out corrections in the next edition. All disputes shall be subject to Delhi jurisdiction only.

Published by :

Composed & Printed by :

Srishti Books

Sundeep Printers

n 812, Surya Kiran Building

2249, Shora Kothi, Subzi Mandi 19, K. G. Marg, New Delhi 110 001 Delhi 110 007 Fax: 91-11-23320592 Tel.: 91-11-23853500, 9810050476 n 38/7, East Punjabi Bagh, [email protected] New Delhi-110026. Cell: 9810215488 E-mail : [email protected]

1 Constitution of India Fountain-head of all laws It is quite unfortunate that most of us are not aware of the various laws which affect us in our day to day life and our rights which we can enforce in case of breach thereof. It is only because of our ignorance of our rights and the safeguards provided in law that we are taken for a ride by various babus and functionaries of the government. We have a sort of fear psychosis in our mind when we are exposed to a ‘difficult’ situation - a simple situation but made difficult by our perception and style of thinking. Many of us nurse a fear from our early days and get panicked on seeing a policeman even though we are innocent. Such a feeling of scare and worry is genesis of the environment we have been brought up in. We feel afraid of going to police station or even approaching a police officer even in times of grave need and even when the situation so demands lest they implicate us in some false case or beat up us and put us behind bars. To live and exist in society, we have to interact with various government departments and agencies. But our mindset is such that we rely on getting our work done through ‘touts’ to avoid ‘problems’ - when there are none. We do not gather courage to directly contact the officer, apprise him of our facts and problems and get a just and speedy recourse to our problem. On the other hand, we succumb to the dictates of middlemen, waste away our hard earned money and still the work is far from complete. All this we do, though unwillingly, only because we are not aware of our rights. It is for the purpose of better governance and regulating the conduct of the public and various state functionaries that various laws are made by the Parliament, though after going through a well laid procedure. Once a law is made, it can not be changed except by way of an amendment. All the officers of the government, who appear to us as demi-gods at time, derive their power from the law under which their office is created or governed and they are bound to act strictly in accordance with the parameters laid down within the particular law/Act. If they exceed their powers or deviate from the procedure laid down, they can be taken to task by anyone of us by way of various safeguards under the law. All these laws derive their power and authority from the Constitution which is the most important and powerful document of post-independence

2

Courts, Police, Authorities & Common Man

India. The whole country, its people, government, various authorities and functionaries etc. are governed by it. No law can be made and no rule, order or direction can be passed which is contrary to any of the provisions of the Constitution. If any such law is made, the same is liable to be struck down by the courts. Such is the power of the Constitution. Constitution is the source of power and authority of the government. It is a fundamental legal document according to which the government functions. The government is rather under an obligation to function in accordance with the laws written in the Constitution. These laws are called the basic laws of the land. The Constitution lays down precisely what the powers of a particular organ of the gov-ernment are, what things it can or cannot do. The idea is to minimize confusion and conflict in the working of the various organs of the government. It is an instrument of controlling the abuse of power by the government. Its importance in democratic government is very important. It places limits on the activity of the government as well as the citizens. A democratic government is the one in which citizens partici-pate in the functioning of the government, directly or indirectly. It is a government in which the government’s powers are limited and clearly spelt out and under which the citizen’s rights are given clearly. The Constitution is the basic law which defines and delimits the main organs of the government and their jurisdiction. It also defines the basic rights of the citizens and guarantees the protection of the same. The Constitution, thus, is superior to all other laws of the country and no law can be enacted which is not in conformity with the Constitution. The Constitution of India was prepared by the Constituent Assembly having members belonging to different communities and regions of India. These included illustrious personalities like Dr.Rajendra Prasad, Pt.Jawahar Lal Nehru, Dr.B.R.Ambedkar, Sardar Vallabh Bhai Patel, Maulana Abul Kalam Azad, Dr.Shyama Prasad Mukherji, Sardar Baldev Singh, Mrs.Sarojini Naidu, etc. The Constituent Assembly elected Dr.Rajendra Prasad as its Chairman. Dr.B.R.Ambedkar was appointed as the Chairman of the drafting committee. The Constitution was passed by the Constituent Assembly on 26th November 1949 but was enforced on 25th January 1950. Since then we celebrate 26th January every year as our Republic Day as India became a republic with effect from this day. The Constitution of India, which is the second largest Constitution in the world, is a comprehensive document containing 395 articles and several schedules. It has preserved the democratic values to which we had attached the highest importance in our struggle for freedom.

Part I : Courts

3

Under our Constitution, the government performs its activities by dividing them into three categories. These three categories or types of functions or activities are given to three organs of the government. These organs are the Legislature, the Executive and the Judiciary. Each organ looks after one kind of work. 1. The Legislature The primary function of a government is to maintain law and order. For this, there must be laws. Now laws cannot be made by anyone. It is the function of a government to make laws. The purpose of a law is to introduce certain amount of order in people’s activities. The laws enable human beings to know what they can do and what they cannot and also what will happen if they behave in a particular manner. Legislation or making laws is one of the most important functions of the government. By virtue of the laws, the people know what to expect of each other and also from the government. Citizens have to obey the laws and if they do not obey them, they could be punished. Making of laws is, therefore, a very important activity. In a democratic country like India, laws can be made only by an institution which has proper authority and even this body has to follow a certain procedure in making laws. The branch or organ of the government which passes laws is called the Legislature. It comprises of the Lok Sabha and the Rajya Sabha. 2. The Executive After laws are passed, there must be some arrangement to ensure that they are obeyed. The organ of the government which implements or administers the laws is called the Executive because it executes laws which are made by the legislature. The President, the Vice President, the Prime Minister with his Council of Ministers and the Bureaucracy, are parts of the Executive. 3. The Judiciary But making laws and administering them is not the end of the story. Laws can give rise to disputes. There is a possibility that the laws may not be really obeyed. This can happen in two ways. The one is that the citizens might not sometimes obey the laws. But it is also possible that the government, particularly its executive branch, also does not obey a law which is passed by the legislature or may take an action contrary to certain law thereby unnecessarily harassing the citizens. In such cases, there has to be some organization which would look into the matter and decide if the law has been broken by the government or by the citizen and what

4

Courts, Police, Authorities & Common Man

punishment ought to be given to the offender. The organ of the government which does this very important function is called the Judiciary. The judiciary has to handle three kinds of disputes : (a) Disputes among citizens (b) a dispute between a citizen and government (c) a dispute between the central and state governments or between state governments inter-se Single Unified Judicial system We in India have two levels of legislature i.e. the legislature at the center, which is called Parliament (Sansad); and the legislature in a State, which is called the State Legislature (Vidhan Mandal). These are independent of each other. Similarly, we have two sets of executives i.e. the central Council of Ministers and the state Council of Ministers. They, too, have their independent areas of working. But unlike the legislature and the executive, there is one single unified judicial system for the entire country. The judicial institutions in our country go up like a pyramid. At the lowest level, there are courts in the districts, there is High Court at the state level and on top of the pyramid, there is one single Supreme Court for the entire country. The Supreme Court has the power to supervise and control the entire judicial system in India. Under Article 141, the law declared by the Supreme Court is binding on all courts in India. The important provisions in the Constitution of India which are relevant in relation to the criminal law are Articles 20, 21, 22, 32, 39-A, 72, 105, 134, 136, 141, 161, 194, 226, 227, 350, 361, 368 As per the mandate of Article 20(1), no one can be punished under the criminal law unless he violates some law which is in force at the time when he commits the act or omission in question. For example, even if some action or inaction of a person ‘A’ has caused injury to a person say ‘B’, then A can not be punished if he has not violated any law by his action/inaction. Therefore, to punish A, there must be some law which provides that if A acts or fails to act in a particular manner, then his action/ inaction would be deemed to constitute an offence. As an illustration, there is a law that if a person sell obscene objects to a young person, then he commits an offence punishable with upto 3 years imprisonment. This

Part I : Courts

5

law is provided in Section 293 of the Indian Penal Code. Suppose, on the day when ‘A’ sold the obscene object to a young person, there was no such law. However, after a few days, such a law is made. Then, ‘A’ can not be punished because what he did was not prohibited by law when he did it. ‘Offence’ means an act or omission punishable by law. I would have loved to discuss here the various provisions of the Constitution, particularly those having a direct bearing on the lives of all of us and affecting our rights, but that is a vast subject in itself and in doing so, I would run the risk of deviating from the subject matter of this book. Suffice it to say that besides other things, the Constitution guarantees certain rights to all the citizens (in certain cases, even to the non-citizens) popularly called the Fundamental Rights. Any violation of these rights by any govt. functionary can be remedied by invoking the jurisdiction of the High Court under Article 226 or by invoking the jurisdiction of the Supreme Court under Article 32 of the Constitution.

6

Courts, Police, Authorities & Common Man

2 Set-up and Functioning of Courts (Including Qualifications, Eligibility & Promotion of Judges) Before I start explaining about different courts, one must know that the courts can only interpret the law, they can not make the law. The function of making the law is with the Parliament or State Legislature. The judge can not go beyond the law even if he thinks that in the circumstances of the case, different view/decision should be given. Howsoever harsh the consequences may be, which may not be to his own taste or to society’s taste, he has to give the decision according to what the law says and on the basis of evidence, if any. The law passed by the Parliament and/or the Legislature of a State represent the will of the people and therefore the same can not be ignored. However, any law passed by the Parliament or any State Legislature has to be fair and reasonable, as implicit in Article 21 of the Constitution of India. If a law is unreasonable, it can be struck down by the Supreme Court and the High Courts as unconstitutional. Even if a matter is being adjudicated by a court, the Legislature can pass a law ( but satisfying the test of reasonableness) on the very same subject. Suppose, the Parliament makes a law that henceforth all persons convicted of the offence of rape would be given death penalty. In such a case, the judges are bound to give death punishment to persons who are ultimately held guilty of rape and they have no discretion to award lesser punishment even if they are of the view that lesser punishment should be awarded. Supreme Court Chapter IV ( articles 124-147) of the Constitution of India deals with the judiciary of the Union of India. All these articles basically deals with the Supreme Court. Every judge of Supreme Court is appointed by the President of India and can be removed from his office only by an order of the President which can be passed only after an impeachment motion against the judge on ground of misbehaviour or incapacity is passed by a majority of not less than 2/3rd members of each House of the Parliament and each House urges the President to remove the said judge. In practice, the procedure to remove a Supreme Court judge is very tedious and rarely a judge is removed from his office. There is only one instance, when impeachment motion was brought against Justice V. Ramaswamy (Judge

Part I : Courts

7

of Supreme Court) in the Parliament but the same could not find support of the majority and the hence the resolution to remove him fell. The qualifications for becoming a judge of Supreme Court, as prescribed in Article 124 of the Constitution of India, are that he must be a citizen of India, and (a) he must have been a judge of High Court for at least 5 years, or (b) he must have been an advocate of the High Court for at least 10 years, or (c) he must be, in the opinion of the President, a distinguished jurist. The seat of the Supreme Court is in Delhi. However, with the approval of the President, the Chief Justice of India may appoint other places also for sitting of the Supreme Court. The Article 141 states that the law declared by the Supreme Court is binding on all the courts in India. Under Article 143, the President can consult the Supreme Court on any question of public importance. The number of judges in the Supreme Court is fixed, which at present is 25. The seniormost judge of the Supreme Court is designated as Chief Justice of India. The age of retirement for a Supreme Court Judge is 65 years. After the retirement, no judge of the Supreme Court can practice in any Court or before any Authority in India. The basic salary of a Supreme Court judge at present is Rs.30,000 per month and that of the Chief Justice of India is Rs.33,000 per month. The service conditions of the judges of the Supreme Court, providing for their salaries, other perks and facilities, are governed by ‘The Supreme Court Judges (Salaries and Conditions of Service) Act 1958’. High Court Chapter V (articles 214-232) deals with the High Courts in the States. Every High Court consists of a Chief Justice and such number of other Judges as may be deemed necessary to appoint by the President from time to time. The Chief Justice of a High Court is generally the seniormost judge of the High Court. Every judge of High Court is appointed by the President of India, after consultation with the Chief Justice of India, the Governor and the Chief Justice of the concerned High Court and can be removed from his office only by an order of the President which can be passed only after an impeachment motion against the judge on ground of misbehaviour or incapacity is passed by a majority of not less than 2/3rd members of each House of Parliament and each House urges the President to remove the said judge. In practice, the procedure to remove a judge is

8

Courts, Police, Authorities & Common Man

very tedious and rarely a judge is removed from his office. Now, as per the procedure evolved by the Supreme Court, in case of a reasonable charge against a sitting judge of High Court, a committee comprising three Supreme Court judges is appointed by the Chief Justice of India to enquire into the allegations against the particular judge. This Committee make enquiries and make appropriate recommendations to the Chief Justice of India. Based on this report, either the judge concerned is absolved of the charges or is deprived of the judicial work or his name is recommended to the Govt. for impeachment. The age of retirement for a High Court Judge is 62 years. After the retirement, no judge of the High Court is allowed to practice in the same High Court ( i.e. the High Courts in which he has functioned as a Judge) or any other Authority or subordinate courts in India. However, he may practice in the Supreme Court and the other High Courts in which he has not served as a Judge. The basic salary of a High Court judge at present is Rs. 26,000 per month and that of the Chief Justice of High Court is Rs.30,000 per month. The service conditions of the judges of the High Court, providing for their salaries, other perks and facilities, are governed by ‘The High Court Judges (Salaries and Conditions of Service) Act 1954’. The qualifications for becoming a judge of High Court, as prescribed in Article 217 of the Constitution of India, are that he must be a citizen of India, and (a) he must have been a judicial officer anywhere in India for at least 10 years; or (b) he must have been an advocate of the High Court for at least 10 years. The High Court has been given the power under Article 226 to issue writs, orders and directions to the various authorities and functionaries of the Govt. if these authorities exceed the power given to them or if the fundamental rights of any person are violated. This is the most widely used article of the Constitution and almost every writ is filed in the High Court under this article by anyone feeling aggrieved by any action or inaction of any Govt. office or authority. Under article 227, the High Court has been given the power to act as superintendent over all the lower courts within its jurisdiction. For example, the Delhi High Court exercises powers over all the district courts like Tis Hazari, Patiala House, Karkardooma and may issue directions to the lower courts and may also call for the records/file of any case from them. However, the High Court does not have this power in respect of any court or tribunal constituted for the Armed Forces.

Part I : Courts

9

District and Subordinate Courts Chapter VI (articles 233-237) deals with the subordinate courts i.e the district courts under the control of the High Court. Every district in a State is headed by a District Judge. The District Judge is the seniormost judge amongst all the judges of the various courts within the particular district and is the incharge for all the courts within his district. The judges of the courts within a district are the judicial officers as they are appointed by the State Government. On the other hand, the judges of the High Court and the Supreme Court are called Justices and Lordships, their’s is a constitutional appointment and they enjoy wide constitutional powers. The District Judge is appointed by the Governor of the particular State in consultation with the High Court. The eligibility for appointment as a district judge are that : (a) he must have been an advocate/pleader for at least 7 years; and (b) High Court must recommend for his appointment. The other judges of the district courts are appointed by the Governor in accordance with the rules made in this behalf by him after consulting the State Public Service Commission and the High Court. Under Article 235, the High Courts exercises control over the district courts and courts subordinate to the district court. The High Court alone is empowered to decide the matters like posting, promotion, grant of leave of all judicial officers in the State inferior to the District Judge. The High Court keeps a constant and vigil watch over the functioning of the judges of the lower judiciary and if it finds that any of them is indulging in unfair practices, then it recommends for his suspension or supersession or demotion. By virtue of Article 236, the expression ‘district judge’ includes judge of a city civil court, additional district judge, joint district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrate, additional chief presidency magistrate, sessions judge, additional sessions judge and assistant sessions judge. The age of retirement of all judges in the District Courts and the subordinate courts is 60 years. It may be noted that the procedure in every civil court in India is governed by the Code of Civil Procedure 1908 and the procedure in every criminal court in India is governed by the Code of Criminal Procedure 1973.

10

Courts, Police, Authorities & Common Man

Procedure for recruitment to Judiciary : Broadly speaking, there can be said to be 4 levels of judiciary : The entry to the 1st level ( i.e. subordinate courts) is through entrance examination. Any law graduate enrolled with the state bar council and having min.3 years practice as an advocate and less than 32 years of age can appear in the competitive examination followed by interview held by the state government under supervision and control of the High Court and get appointed as Civil Judge or Metropolitan Magistrate (M.M). This is the only mode of entry to the first level. (This system of entry to the judiciary is prevalent in Delhi and several other States. Recently, the rerquirement of 3 years experience has been done away with in Delhi). The entry to the 2nd level (i.e. the District Courts) can be made through two modes: One, the judicial officers at the 1st level in due course are promoted to the 2nd level. Second mode of entry is directly from the advocates. Any law graduate having minimum 7 years standing as an advocate and minimum 35 years of age becomes entitled to appear in the examination held to appoint judges to the 2nd level. In this examination, only interview is held (recently a formal written examination has also been started) which is taken by the High Court judges. On selection, a person is directly appointed to the 2nd level of judiciary and designated as Addl. Sessions judge or Addl. District Judge or similar designations, which varies from State to State. (The actual eligibility conditions of a candidate for appointment to the 2nd level may vary from State to State). The District Judge is generally the seniormost judicial officer in the 2nd level. At the 1st and 2nd level, there is no transfer from one State to another State. The entry to the 3rd level, that is, the High Court, can also be made through two modes : One, the senior judicial officers at the 2nd level in due course are promoted to the 3rd level. Strictly speaking, it is not the promotion but a fresh appointment. The difference is that while the appointment to the 1st and 2nd levels is made by the Governor, the appointment to the 3rd level is made by the President of India. (On 30th November 2000, 6 judges from the 2nd level were appointed as Delhi High Court Judges, namely Justice M.A.Khan, Justice Sharda Aggarwal, Justice O.P.Dwivedi, Justice

Part I : Courts

11

B.N.Chaturvedi, Justice R.C.Chopra, Justice J.D.Kapoor. Thereafter, the District Judge Shri R.C.Jain was appointed as High Court Judge and his successor Shri H.R.Malhotra was also elevated to the High Court on 26.8.2002. The next District Judge Shri J.P. Singh and next senior most Additional District Judge Ms. Manju Goel were elevated as High Court Judges on 05.07.2004). Second mode of entry is directly from the advocates. Any law graduate having 10 year standing as high court advocate can be appointed directly as High court Judge by the President of India in consultation with the Chief Justice of India, the Governor of the State and the Chief Justice of the State High Court. (In this manner, on 20th December 2002, two advocates were directly appointed as Delhi High Court judges. They are Justice Predeep Nandrajog and Justice Badar Durej Ahmad. Thereafter, on 16.07.2004, three more advocates viz. Ms. Geeta Mittal, Shri Anil Kumar and Shri S.R. Bhatt were appointed as High Court Judges in Delhi). A High Court judge retires on attaining the age of 62 years. The entry to the 4th level, that is, the Supreme Court, can also be made through two modes : One, the High Court Judges (i.e. Judges at the 3rd level) in due course, basically depending upon their seniority, are elevated to the 4th level i.e. become Supreme Court judges. Strictly speaking, it is not the promotion but a fresh appointment by the President of India. Second mode of entry is directly from the advocates. Any person having 10 years standing as high court advocate or who is a distinguished jurist in the opinion of the President can be appointed directly as Supreme Court Judge by the President of India in consultation with the Chief Justice of India. In this manner, some time back Shri Santosh Hegde who was practicing as an advocate mainly in Supreme Court was appointed directly as Supreme Court Judge. Earlier to him, Shri Kuldip Singh, who is known for his landmark judgments on pollution and environment especially in M.C.Mehta’s cases, was appointed in this fashion as Supreme Court judge, elevated directly from advocate. A Supreme Court judge retires on attaining the age of 65 years. National Judicial Commission The Govt. of India on 8th May 2003 introduced a Bill (Bill No.41 of 2003) in the Lok Sabha to create a National Judicial Commission (NJC) for appointment of Supreme Court Judges, for appointment and transfer of High Court Judges, and to create a mechanism through which the NJC

12

Courts, Police, Authorities & Common Man

will discipline the erring Judges. The Bill is called the Constitution (Ninety-Eighth Amendment) Bill 2003. The need for such a Commission had been long felt to deal effectively with the matters concerning the cases of misconduct and deviant behaviour among the Judges. This need has been aggravated by recent cases of alleged corruption, favouritism and abuse of power among the members of the higher judiciary. The National Commission to Review the Working of Constitution (NCRWC) has in its report proposed the constitution of such a NJC. The Bill seeks to make the following changes in the Constitution of India : (i) in Article 124(2), the portion shown in italics hereunder is deleted : “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years : Provided that in the case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted : Provided further that-” And is substituted by the following portion shown in bold : “on the recommendation of the National Judicial Commission and shall hold office until he attains the age of sixty-five years: Provided that-” (ii) in Article 217, the portion shown in italics hereunder is deleted : “Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court and shall hold office, in the case of an additional or acting Judge, as provided in article 224, and in any other case, until he attains the age of sixty-two years :” And is substituted by the following portion shown in bold : “on the recommendation of the National Judicial Commission” (iii) in Article 222, the portion shown in italics hereunder is deleted :

Part I : Courts

13

“The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court.” And is substituted by the following portion shown in bold : “on the recommendation of the National Judicial Commission” (iv) in Article 231, the portion shown in italics hereunder is deleted : “(1) Notwithstanding anything contained in the preceding provisions of this Chapter, Parliament may by law establish a common High Court for two or more States or for two or more States and a Union Territory. (2) In relation to any such High Court,(a) the reference in article 217 to the Governor of the State shall be construed as a reference to the Governors of all the States in relation to which the High Court exercises jurisdiction;” And is substituted by the following portion shown in bold : “(a) the reference in clause (3) of article 147A to the Chief Minister of the State shall be construed as a reference to the Chief Ministers of all the States in relation to which the High Court exercises jurisdiction;” (v) in Part V of the Constitution, after Chapter IV, the following Chapter IVA is inserted : “CHAPTER IVA – NATIONAL JUDICIAL COMMISSION 147A. (1) The President shall by order constitute a Commission, referred to in this Constitution as the National Judicial Commission. (2) Without prejudice to the provisions of clause (3), the National Judicial Commission shall consist of the following :a) the Chief Justice of India, who shall be the Chairperson of the Commission; b) two other Judges of the Supreme Court next to the Chief Justice of India in seniority; c) the union Minister in-charge of Law and Justice; and d) one eminent citizen to be nominated by the President in consultation with the Prime Minister: provided that the eminent citizen nominated under sub-clause

14

Courts, Police, Authorities & Common Man

(d) shall hold office for a period of three years. (3) in the case of appointment or transfer of a Judge of a High Court, the Chief Justice of that High Court and the Chief Minister of that State or, when a proclamation under article 356 is in operation in that State, the Governor of that State, shall be associated with the Commission. (4) It shall be the duty of the Commission a) to make recommendation of persons for appointment of Judges of the Supreme Court, Chief Justices of High Courts and the Judges of the High Courts; b) to make recommendation for the transfer of the Chief Justices of High Courts and the Judges of High Courts from one High court to any other High Court; c ) to draw up a code of ethics for Judges of the Supreme court, Chief Justices of High Courts and the Judges of the High Courts; d) to inquire into suo motu or on a complaint or reference, cases of misconduct or such deviant behaviour of a Judge other than those calling for his removal and advise the Chief Justice of India or the Chief Justice of a High Court appropriately after such inquiry. (5) The recommendation made by the Commission under clause (4) shall be binding. (6) No person, who is not recommended for appointment as a Judge by the commission, shall be so appointed by the President. (7) The Commission shall have the power to regulate its own procedure including the procedure to be followed under subclause (d) of clause (4).”

15

Part I : Courts

3 Hierarchy of Criminal Courts in India The Code of Criminal Procedure 1973 is the basic document which governs the establishment and functioning of various courts and authorities under the criminal justice system. Apart from a High Court in each State, as mandated by Article 214 of the Constitution of India, the Code of Criminal Procedure prescribes in Section 6 that there should be following classes of Criminal Courts in every State: (i) Session Courts (ii) Judicial Magistrate of the 1st class (and a Metropolitan Magistrate in every Metropolitan area) (iii) Judicial Magistrate of the 2nd class (iv) Executive Magistrate For the purpose of dispensation of justice in the cases of criminal nature, each State is divided into certain divisions, which are commonly called the Sessions divisions. In certain situations, the whole State itself can be one Sessions division. Each Sessions division comprises one district or more than one districts, depending upon the size of the State. However, every metropolitan area (i.e., area/city/town having population of more than 10 lakhs and declared as Metropolitan area by the State Government by a notification) is necessarily treated as a district and a sessions division. Each District can be further sub-divided into sub-divisions, by the State Govern-ment after consultation with the High Court. The State Government after consultation with the High Court can increase or decrease the limits or the number of such sessions divisions, districts or sub-divisions in the State. The above provisions can be better understood by means of the following diagram:

|123456781234567

16

Courts, Police, Authorities & Common Man

INDIA

6 States

6

6

6

Sessions Division

Metropolitan Area

6 Districts

6

(treated as a separate Sessions Division and District)

Sub-Divisions It is the duty of the State Government to establish for every Sessions division a Sessions Court which is presided over by a Judge appointed by the High Court, designated as Sessions Judge. Depending upon the workload, the High Court can also appoint Additional Sessions Judges and Assistant Sessions Judges in a sessions court. Thus, informally speaking, there is one Sessions Court in a sessions division but in case of large workload, more benches can be created in the same Sessions Court, each bench presided by Addl. Sessions Judge or Asst. Sessions Judge. All Assistant Sessions Judges are subordinate to the Sessions Judge. The Sessions Judge allocates the cases to the Asst. Sessions Judges. In every district ( not being a metropolitan area), the State Govt. after consultation with the High Court establishes by notification Courts of Judicial Magistrates of the first class (JMIC) and of the second class (JM2C) (in respect of the sub-divisions), whose presiding officers are appointed by the High Court. One of the Judicial Magistrate of the first class is appointed by the High Court as Chief Judicial Magistrate (CJM) for the district. The High Court can also appoint any Judicial Magistrate of the first class as Additional Chief Judicial Magistrate (ACJM) who has all the powers of a CJM. In any sub-division, any Judicial Magistrate of the first class can be designated as Sub-divisional Judicial Magistrate (SDJM) by the High Court. Every SDJM exercises supervision and control over the work of the Judicial Magistrates in the sub-division. Every SDJM in turn is subject to the general control of the CJM.

Part I : Courts

17

At the request of the Central Govt. or the State Govt., the High Court can appoint Special Judicial Magistrates for a term not exceeding one year, to try particular class of cases for particular areas. The Chief Judicial Magistrate allocates the cases to the Judicial Magistrates subordinate to him. In every metropolitan area, the courts of Metropolitan Magistrates (MM) are established by the State Govt. by notification after consultation with the High Court. The presiding officers of such courts are appointed by the High Court. Every metropolitan magistrate has the jurisdiction throughout the metropolitan area. One of the Metropolitan Magistrate is appointed by the High Court as Chief Metropolitan Magistrate (CMM) for the district. The High Court can also appoint any Metropolitan Magistrate as Additional Chief Metropolitan Magistrate (ACMM) who has all the powers of a CMM. At the request of the Central Govt. or the State Govt., the High Court can appoint Special Metropolitan Magistrates for a term not exceeding one year, to try particular class of cases in any metropolitan area. Every MM is subordinate to the CMM and the CMM and the ACMM are subordinate to the Sessions Judge. The CMM allocates the work to the ACMM and the cases to the MMs. The State Govt. may appoint certain persons as Executive Magistrates in every district and in every metropolitan area and appoint one of them as the District Magistrate (DM). The State Govt. can also appoint any Executive Magistrate as the Addl. District Magistrate enjoying such powers of the DM as directed by the State Govt. The State Govt. can make an Executive Magistrate as the incharge of a sub-division, who then is called the Sub-Divisional Magistrate (SDM). The State Govt. may confer all or any of the powers of the Executive Magistrate on the Commissioner of Police. The State Govt. can appoint Special Executive Magistrates for particular areas or for performing particular functions and confer on them the powers of the Executive Magistrates. The DM distributes the work among the Executive Magistrates and allocates the work to the ADMs. The Hierarchy of the Criminal Courts in India with their respective powers to pass sentences can be summarized and better understood by means of the following diagram :

18

Courts, Police, Authorities & Common Man

Supreme Court (can pass any sentence)

6 High Court (can pass any sentence)

6 Sessions Judge (including Addl. Sessions Judge) (can pass any sentence, except that the sentence of death passed by it is subject to confirmation by the High Court)

6 ———————————————————————————

6

6

Asst. Sessions Judge (Imprisonment upto 10 years and/or fine) 6

6

CMM (including ACMM) (Imprisonment upto 7 years and/or fine)

CJM (including ACJM) (Imprisonment upto 7 years and/or fine) SDJM (same as for MM)

6 6 MM (Imprisonment upto 3 years and/or fine upto Rs.5000)

6

6

Spl. MM (-- Same)

JM1C (incl. Spl. JM) (same as for MM)

6 JM2C (incl. Spl. JM) (Imprisonment upto 1 year and/or fine upto Rs.1000)

19

Part I : Courts

4 Judicial set-up in Delhi 1. History of Courts in Delhi Delhi as a distinct legal entity was recognised by the Proclamation notification No No.911 dated 17.09.1912 issued by Governor General of India in Council. By this Notification, Delhi came under the immediate authority and management of the Governor General of India in Council and Mr. William Malcolm Hailey, C.I.E., I.C.S. was appointed the first Chief Commissioner of Delhi. Simultaneously the Delhi Laws Act, 1912 was enacted for enforcing the existing laws in Delhi. On 22.02.1915 the area falling on the other side of the river Yamuna (now known as Trans Yamuna) was also included in the newly created province of Delhi. (i). Civil Courts During the year 1913, the Delhi Judiciary consisted of : -

1 District & Sessions Judge

-

1 Senior Sub-Judge

-

1 Judge, Small Causes Court

-

1 Registrar, Small Causes Court

-

3 Sub-Judges

Two Courts of Sub-Judges were added in 1920. These Courts continued to function, although due to exigencies some temporary measures were adopted to clear back logs etc. In 1948, one more post of Sub-Judge was created to enforce the Rent Control Act. Thereafter six temporary Courts of Sub-Judges were created in 1953. In 1959, the strength of the SubJudges went upto 21. At that time there was one District & Sessions Judge and four Additional District & Sessions Judges. Till 1966, the District Courts of Delhi remained under the administrative control of Punjab High Court when Delhi High Court was established. (ii). Criminal Courts According to Delhi District Gazetteer (1912), the District Magistrate was responsible for the administration of criminal Justice, being Chief Magistrate and Supervisor of the police, as far as their duties related to crime. The staff in 1910 consisted of:

20

Courts, Police, Authorities & Common Man

Types of Magistrates

Stipendary

Honorary

First Class Magistrates

08

11

Second Class Magistrates

04

14

Third Class Magistrates

03

01

One of the first-class magistrates had always the powers of District Magistrate to enable him to try serious cases, and thus the District Magistrate and Section Judges were relieved of undesirable strain. The honorary magistrates were all but two located in Delhi itself, where they usually sat as a bench for the trial of minor offences (chiefly assault cases), which occurred in the city. A bench consisting of a Hindu and a Mohammedan, with Second-Class powers, was constituted for Raisina (New Delhi) in 1912 to deal with cases within the limits of the Imperial Delhi Municipal Committee to which the exercise of their powers was confined. The Najafgarh Bench of two Magistrates with Third Class powers was constituted in 1921, having the power throughout the province. During 1926, there were two First-Class and one Second-Class Honorary Magistrates at Delhi. The comparative strength of criminal courts in the Union Territory of Delhi during 1951 and 1961 was as follows: Type of Court

1951

1961

District Magistrate

01

01

Additional District Magistrate

01

03

Stipendary Magistrates

13

24

Honorary Magistrates

11

27

The institution of honorary magistrates was abolished in Delhi in October 1969. The magisterial strength in 1972 consisted of one District Magistrate, three Additional District Magistrates and twelve Sub-Divisional Magistrates. (iii).Separation of Executive and Judiciary The Judiciary of the Union Territory of Delhi was separated from the Executive in October 1969 under the Union Territories (Separation of Judicial and Executive Functions) Act, 1969. The Act provides for two classes of criminal courts, namely the Courts of Sessions and the Courts

Part I : Courts

21

of Magistrates. The latter consists of Judicial Magistrates namely (i) The Chief Judicial Magistrate and the Judicial Magistrate of the First and Second Class and (ii) the Executive Magistrates including the District Magistrate, Sub-Divisional Magistrates, Executive Magistrates of the First and the Second Class and the Special Executive Magistrates. Prior to the separation of judicial and executive functions, the entire Magistracy used to function under the direct control of the District Magistrate of Delhi. Under the new setup, the Judicial Magistrates were placed under the direct control of the High Court. The Chief Judicial Magistrate exercised most of the powers under the Criminal Procedure Code previously exercisable by the District Magistrate. For the proper implementation of the scheme of separation, Section 5 of the Criminal Procedure Code 1898 (as amended by Act 19 of 1969) streamlined the sphere of duties of both the Judicial and Executive Magistrates. The Judicial Magistrates were to deal with the matters which involved the appreciation of sifting of evidence or the formulation of any decision which exposes any person to any punishment or penalty or detention in custody pending investigation, inquiry or trial or would have the effect of sending him for trial before any court. But where such functions related to matters that are administrative or executive in nature, such as the grant of licence, sanctioning a prosecution or withdrawing from a prosecution, they fell within the purview of an Executive Magistrate. In brief, and Executive Magistrate was to deal with matters concerning law and order and with preventive measures while offences, under IPC, special or local laws, including petty offences came to be tried by Judicial Magistrates. The new Code of Criminal Procedure 1973 (Act No 2 of 1974) came into force on 1st of April 1974. The Code specifically provided for two types of Magistrates viz. Judicial Magistrates and Executive Magistrates. The towns having population exceeding one million could be declared as Metropolitan Areas. With effect from 1st April 1974 Delhi was declared the Metropolitan Area by a notification under Section 8 (1) of Criminal Procedure Code, 1973 being notification No. 155 dated 28th March 1974 of the Ministry of Home Affairs, New Delhi, published in Gazette of India (Extra) Part II Section 3 (ii). Accordingly, the designation of Judicial Magistrate First-Class or Judicial Magistrate Second-Class came to an end. The Judicial Magistrates functioning in Delhi were all conferred with the powers of Metropolitan Magistrates. The Courts of Metropolitan Magistrates were created by

22

Courts, Police, Authorities & Common Man

Section 16 of the Criminal Procedure Code. The Court of Chief Metropolitan Magistrate and those of The Additional Chief Metropolitan Magistrates were created by Section 17 of the Code. Section 18 of the Code also provided for Special Metropolitan Magistrates. As against these Metropolitan Magistrates, the other Magistrates created by the Code were Executive Magistrates with powers distinct from those given to the Metropolitan Magistrates. The Metropolitan Magistrates (MM), the Chief Metropolitan Magistrate (CMM) and the Additional Chief Metropolitan Magistrates (ACMM) are subordinate to the Sessions Judge whereas the Executive Magistrates are placed under the subordination of the District Magistrate. (iv). Court buildings Originally, District Courts were located in the house of Mrs. Forster, where only eight courts could be accommodated. In 1899 few more rooms were rented in H-Abdul Rehman Ataul Rehman Building. The old building at Kashmere Gate was declared unsafe in 1949. In the year 1953, twenty two Civil Subordinate Courts were moved to Hindu College Building (1,Skinners House), also at Kashmere Gate. The Courts continued to function in this building till 31-03-1958. Construction of Tis Hazari Courts Building started in 1953. It was raised at a cost of Rs.85.00 Lacs. The same was inaugurated on 19-03-1958 by Chief Justice Mr. A. N. Bhandari of the then Punjab High Court. All the civil courts and many criminal courts were housed in this building. Even today, Tis Hazari continues to be the principal court building in Delhi. A smaller number of criminal courts were functioning at Parliament Street and Shahdra. The criminal courts were shifted to Patiala House from Parliament Street in March 1977. The Karkardooma Courts Complex was inaugurated on 15-05-1993 and the courts functioning at Shahdra were shifted there. 2. State Judicial services On 27th August 1970, two judicial services were created for Delhi, namely Delhi Higher Judicial service (DHJS) and Delhi Judicial service DJS) and the the L.G. of Delhi in consultation with the High Court framed the rules for appointment of persons to these services. These rules are respectively called the Delhi Higher Judicial Service Rules 1970 and the Delhi Judicial Service Rules 1970 respectively. These rules were made in exercise of the powers of LG under proviso to Article 309 of Constitution of India read with Ministry of Home Affairs (Govt. of India) notification

Part I : Courts

23

No.1/2/70-Dh(S) dt. 29.5.1970 as amended by notification No. 1/2/70Dh(S) dt. 25.7.1970. These rules were published in Delhi Gazatte (Extra), Part IV, No.90 dated 27.8.1970. The strength of these two services has continuously increased. Now the sanctioned strength, as on 31.10.2003, of Delhi Higher Judicial Service is 169 and of the Delhi Judicial Service is 218 posts. For appointment to the Delhi Judicial Service (DJS), there is an entrance examination (written) followed by interview conducted by Delhi High Court. Based on the results, the High Court recommends the names of suitable candidates to the Lt. Governor, who makes the appointment. Till now, the eligibility for appearing in the examination used to be that one must be practicing as an advocate for the last 3 years. However recently, the Supreme Court accepting the recommendations of the Justice Shetty Commission, relaxed this condition and now from the year 2003 even the fresh law graduates can appear in this examination. For appointment to the Delhi Higher Judicial Service (DHJS), there is no written entrance examination. The applications for appointment are invited by the High Court from the advocates having minimum 7 years standing, which are then scrutinized. The persons, whose applications are found proper according to the rules, are called for interview and they are interviewed by an Interview Board generally consisting of seven Judges of the High Court (recently a formal written examination has also been started). The High Court then recommends to the Lt. Governor the names of the persons found fit by it for appointment to DHJS. The Delhi Judicial Service comprises the Civil Judge (CJ) and the Metropolitan Magistrate (MM). The Delhi Higher Judicial Service comprises the Addl. District Judge (ADJ) and the Addl. Sessions Judge (ASJ). The judicial officers belonging to the Delhi Judicial Service, in due course, get promoted to the Delhi Higher Judicial Service. The Civil Judge and the Addl. District Judge looks after the civil litigation whereas the Metropolitan Magistrate and Addl. Sessions Judge looks after the criminal litigation. A person appointed to the Delhi Judicial Service may sometimes be assigned the civil cases and sometimes he may be assigned the criminal cases. When he is adjudicating civil cases, he is referred to as Civil Judge and when he is adjudicating the criminal cases, he is referred to as the Metropolitan Magistrate. The posting as Civil Judge or Metropolitan Magistrate is done by the High Court. Similar is the case with a judicial officer appointed to the Delhi Higher Judicial Service, adjudicating as Addl. District Judge and/or Addl. Sessions Judge.

24

Courts, Police, Authorities & Common Man

3. Overall courts set-up in Delhi In any State, all civil courts in a District are headed by a District Judge and all criminal courts in the District (in the case of criminal courts, it is called sessions) are headed by a Sessions Judge. However, Delhi has a unique position as it is not a full state and thus it is treated as one District and one Sessions Division. In Delhi, there is one person who heads all the civil courts as well as the criminal courts and is designated as the District & Sessions Judge. He is generally the senior-most judicial officer in the State (however junior to High Court and Supreme Court judges). At present, in Delhi, all the civil courts as well as criminal courts are functioning in court complexes at Tees Hazari, Patiala House and Karkardooma. Following type of cases are taken up at these courts : -Tis Hazari Courts

: civil cases pertaining to North, West, Northwest, Central, New Delhi, South and Southwest districts and criminal cases (pertaining to North, West, Northwest and Central Districts)

-Patiala House Courts: only criminal cases, and that too pertaining to New Delhi, South and Southwest districts and Airport -Karkardooma Courts: only civil and criminal cases of trans-Yamuna area (East and Northeast districts) and labour cases of whole Delhi. However, new court buildings are coming up at Rohini, Dwarka and Saket and gradually some of the courts would be shifted to these places. However, a proposal is pending to bifurcate the courts in Delhi according to the 9 districts ( into which Delhi is presently divided for the purposes of revenue and police administration). If the proposal is ultimately implemented, there would be 9 District & Sessions Judges for each of these 9 districts. District & Sessions Judge (DJ) District and Sessions Judge is the head of the District Judiciary in Delhi. He also acts as Judge In-charge of Tis Hazari Courts Complex. However, day-to-day administrative work at Karkardooma and Patiala House Courts is looked after by senior additional district and sessions judges. He holds his Court in Room No.301, Tis Hazari Courts Complex. All the subordinate administrative offices of the District & Sessions Judge are also located in the same Courts Complex. Apart from administrative work, the District Judge looks after the work of assigning civil and criminal cases to the

Part I : Courts

25

Courts of Additional District Judges (ADJ) and Addl. Sessions Judges (ASJ) respectively. The District Judge also deals with probate and guardianship cases. A list of District & Sessions Judges in Delhi from year 1967 onwards is given in Appendix 10. (i). Civil set-up Delhi is one civil district headed by the District Judge. The majority of the civil courts are situated at District Courts Complex, Tis Hazari. Presently, Delhi has following tires of civil courts : 1.

Civil Judges (CJ)/Senior Civil Judges (SCJ)

2.

Addl. District Judges (ADJ)

a. Civil Judges Courts of Civil Judges deal with matters upto the valuation of Rs.3.00 Lacs. The procedure is that cases upto Rs.3.00 Lacs are filed in the Court of Senior Civil Judge who then assigns the same to different Courts of Civil Judges. There are some specialized Courts of Civil Judges concerning the Municipal Corporation of Delhi,Union of India,and Delhi Development Authority etc. There is an exclusive Court for commercial cases and remaining Courts deal with all types of cases. Most of the civil Courts are situated at Tis Hazari Complex and the rest are at Karkardooma Courts Complex. Some of the appellate powers have also been delegated to the Senior Civil Judge. Appeals from the judgements of the Civil Judges can be filed before the District Judge. b. Addl. District Judges The Courts of Additional District Judges hear original matters above Rs.3.00 Lacs and upto Rs.20.00 Lacs. The procedure is that the matters within money value like suits for recovery possession damages and partition etc. are filed at the filing branch attached with the office of the District Judge who then assigns these matters to different Courts of Additional District Judges for trial. The Additional District Judges also hear appeals against orders of the Civil Judges. c. Rent cases All matters under the Delhi Rent Control Act in respect of Landlord Tenant disputes are filed before the Rent Controller, who may either try the cases himself or assign them to Additional Rent Controllers (ARC). Most of the courts of addl. Rent controllers are at Tis Hazari and rest of them is at

26

Courts, Police, Authorities & Common Man

Karkardooma. As per the gazette notification dated 28.6.2000, all the officers of Delhi Judicial Service, who have completed five years in service, are automatically vested with the powers of Additional Rent Controllers. Appeals against the orders of ARCs lie to Rent Control Tribunal. d. Matrimonial cases Cases under the Hindu Marriage Act relating to Divorce, Restitution of Conjugal Rights and permanent alimony etc. are tried exclusively by Matrimonial Courts. About half a dozen such Courts are functioning in Tis Hazari Complex apart from one Court in Karkardooma Court Complex. The petitions are filed in the central registry situated in Room No. 204 in Tis Hazari and then the cases are assigned by the District Judge to respective Courts. e. Labour cases In Delhi, there are three Industrial Tribunals and 10 Labour Courts, which are situated in Karkardooma Courts Complex. These Courts are presided over by officers from Delhi Higher Judicial Service. The Labour Courts deal with all types of disputes between employers and employees under the provisions of Industrial Disputes Act and other Labour laws. Majority of disputes are referred to these courts by the Government after receiving failure report from the Conciliation Officers but some of the disputes can be directly raised before the Courts by the aggrieved parties. (ii). Criminal set-up Delhi occupies a unique position as it is not a full fledged State. Hence, in practice, the system in the hierarchy of the criminal courts in Delhi, at the district and subordinate level, is different from the other States. Delhi is one Sessions District and thus there is only one sessions judge for whole of Delhi, who is generally the Districts & Sessions Judge (DJ). The DJ is the head of the judiciary at the district level. He is assisted by several Addl. Sessions Judges (ASJ). The DJ assign the cases to the ASJs. All the ASJs are empowered to exercise the powers of the Sessions Judge except to assign the cases. The hierarchy of courts in Delhi under the criminal system is as under: a. Metropolitan Magistrate At the grass root level ( first stage), there are courts of the Metropolitan Magistrate (MM). There is a MM for each police station. However, a

Part I : Courts

27

MM may have two or more police stations under his jurisdiction. For example, the cases registered at police station Punjabi Bagh will go to the court of a particular MM who look after the cases of Punjabi Bagh police station. Similarly, there are courts of MM which are specially constituted to try the cases relating to particular offences. For example, there are special courts presided over by MMs which try cases of crime branch, CBI, etc. The Metropolitan Magistrates are holding their courts in three court complexes i.e., Tis Hazari, Karkardooma and Patiala House. The Criminal Complaints pertaining to North, Northwest, Central and West districts are filed in the Court of Chief Metropolitan Magistrate at Room No.54, Tis Hazari courts complex. The criminal complaints pertaining to South, Southwest and Central districts are filed in the Court of Additional Chief Metropolitan Magistrate at Patiala House courts complex. The criminal complaints pertaining to East and Northeast districts are filed in the Court of Additional Chief Metropolitan Magistrate at Karkardooma courts complex. On receiving the criminal complaints, the CMM or the ACMM, as the case may be, assigns them to the courts of respective MMs. An MM can try only those cases where the offence is punishable with maximum 3 years imprisonment and/or fine up to Rs.5000/-. b. Chief Metropolitan Magistrate The intermittent stage between the first stage and the second stage is that of Chief Metropolitan Magistrate (CMM) who is assisted by one or more Addl.Chief Metropolitan Magistrates (ACMM). The CMM is the Judge In-charge of the courts of MMs. He exercise powers on the administrative side as well as holds Special Court of Central Bureau of Investigation. The ACMMs in Karkardooma and Patiala House Courts exercise delegated powers of the CMM in respect of Magistrates posted there. The CMM and ACMMs can try cases where the offence is punishable with max.7 years imprisonment. At present, there is 1 CMM and 4 ACMMs for Delhi. c. Sessions Court The second stage in the hierarchy is the Sessions Court. Corresponding to several MM courts, there is one sessions court. In this manner, there are many sessions courts which hear appeals and revisions against the judgements passed by the courts of MMs. These courts also hear/try the cases ( after committal by the Magistrate court) which are punishable with more than 3 years imprisonment or as prescribed in the First Schedule of Cr.P.C. These courts are presided by Addl. Sessions Judges (ASJ) who

28

Courts, Police, Authorities & Common Man

are empowered to exercise the powers of the Sessions Judge except to assign the cases. If a case at the initial stage comes to the MM court but during proceedings it is discovered that the case is infact exclusively triable by the sessions court, then the court of MM is dutybound under section 209 to send the same to the sessions court, this in common parlance is called ‘commital’. The anticipatory bail application can be heard by the Sessions court and not by any magistrate’s court. Courts of ASJs are situated in the Court Complexes at Tis Hazari, Karkardooma and Patiala House. There are some special Courts like Central Bureau of Investiga-tion Court, Narcotics, Drugs & Psychopathic Substances Act Courts and Mahila Courts etc., which deal with cases related to a specific branch of Law. The number of the courts of the Sessions and Courts of Metropolitan Magistrates varies from time to time depending upon the quantity of work and the number of officers available at a time for presiding over these courts. The sessions court can pass any sentence and, even the death sentence but the same is subject to confirmation by the High Court. This means that if in a case, the accused is sentenced to death by the sessions court ( mostly in a murder case), then he is not hanged immediately. His case is referred to the High Court and the case is heard by the High Court generally under the nomenclature of ‘Murder Reference’, if it is a murder case. After hearing, the High Court may confirm the death sentence, in which case the accused has 60 days time to appeal to the Supreme Court (Article 133 of Limitation Act 1963). If he does not appeal within this period, then the order of the High Court confirming his death sentence is implemented and he is hanged. However, nowadays, death sentence is awarded in rarest of rare cases, the last hanging in Tihar Jail of Delhi was done in 1989. If the High Court does not confirm the death sentence, it may either alter the punishment to lesser punishment or may totally set aside the punishment. d. High Court The third stage is the High Court. A person feeling aggrieved by the order of the sessions court can appeal to the High Court within 60 days from the date of the order. In case of an appeal against the sentence of death passed by the Sessions court, the appeal to the High Court can be filed only within 30 days from the date of the order on sentence. (Article115 of Limitation Act 1963)

Part I : Courts

29

e. Supreme Court The fourth and the last stage is the Supreme Court. Any person feeling aggrieved from the judgment of the High Court can appeal to the Supreme Court by filing a petition under Article 136 of Constitution called the Special Leave Petition (SLP). This SLP can be filed within 90 days from the date of the judgment or order and within 60 days in a case involving death sentence. If the Supreme Court finds some merit in it, then it gives the permission and then the SLP is converted into an appeal and the same is heard by the Supreme Court. The Supreme Court then decides the appeal and either confirm the judgment of the High Court or set aside the same or reduce the sentence of the accused. If the Supreme Court confirms the judgment of the High Court awarding death sentence to the accused ( the death sentence is nowadays awarded in rarest of rare cases), then the convicted person may appeal to the President of India for mercy within 30 days. However, he can not claim it as a matter of right and it is purely within the discretion of the President. It is relevant to point out that the similar power is enjoyed by the Governor of a State and such mercy petitions can be filed at any stage of a criminal case. Such power can be exercised by the President or the Governor, as the case may be, suo motu also on their own accord. The President under Article 72 of the Constitution of India or the Governor under Article 161 of the Constitution of India may pardon him and set aside his punishment or may alter the punishment to some lesser punishment ( also see Note No.33 in the chapter ‘Frequently Asked Questions’). If no appeal is made to the President or if the appeal is turned down by the President, then the person is hanged to death. In India, the death sentence is executed by hanging the person by the neck till he is dead, as required under section 354(5) Cr.P.C. In several countries, besides hanging, the death sentence is executed through gas chambers, electric shock chair, injection of lethal dose or shooting simultaneously by a row of gunmen. Others Courts f. Accident cases Motor Accident Claims Tribunals (MACT) deal with claims relating to loss of life/property and injury cases resulting from Motor Accidents. There are eleven MACT Courts in Tis Hazari apart from four Courts in Karkardooma Courts Complex and three in Patiala House. The Claims are to be directly filed in the concerned Tribunal. MACT Courts are presided over by Judicial Officers from Delhi Higher

30

Courts, Police, Authorities & Common Man

Judicial Service. Now these Courts are under direct supervision of the Hon’ble High Court. g. Mahila courts Some courts exclusively deal with cases relating to women for grant of maintenance under Section 125 Cr.P.C. and under Sections 354 (Assault or criminal force to woman with intent to outrage her modesty), 363 (punishment for kidnapping) and 509 (word, gesture or act intended to insult the modesty of a woman) of Indian Penal Code. h. Special courts Some courts exclusively deals with offences under the Special Acts like the Excise Act, Customs Act, Bank Securitisation Act, CBI, Chit Fund, Copyright Act, Trademarks Act, Designs Act, Drugs Act, Electricity Act, FERA, Income Tax Act, Official Secrets Act, MCD Act, DDA Act, Prevention of Food Adulteration Act, Wildlife Act, etc. 4. Practical working of a typical subordinate court in Delhi Let us understand the practical working and procedure of a subordinate court in Delhi : A list of cases is prepared by every court for the cases to be taken up by that court every day. This list gives the serial number, the case no., the title of the case and categorizes them into fresh cases, misc. cases, cases for evidence, cases for arguments, cases for pronouncement of orders etc. in that order. This list is hanged outside the court for the litigants to know about their case. Each case is called one by one, as per the list, by a court staff generally standing at the door of the court. The case of that file is given by the courtmaster to the judge. (in district courts, the courtmaster is generally referred to as ‘reader’). Generally, the reader sits on one side of the judge and the steno/typist sits on the other side of the judge. On the case being called, the parties appear before the judge. The Counsel for the plaintiff/petitioner generally stands on the left hand side and counsel for the defendant/respondent on the right hand side (in the High Court, the current system is just the reverse). In a criminal case, it is mandatory for the parties to appear personally. If the opposite party in a criminal case does not appear personally, the judge may issue warrant against him and if the complainant/petitioner in a criminal case does not appear personally, then the judge may dismiss the complaint/petition. In a civil case, the parties can appear through their counsel and it is not mandatory to appear personally. After taking up the proceedings in the case depending upon the stage of the case, the case is adjourned by the judge to a further

Part I : Courts

31

date. The file is then placed aside by the judge and the next case is called. In civil courts, when no one appear for a party on a case being called, the courts normally do not take it adversely and pass over the case and after finishing other cases, call/take up that case again. For execution cases in a civil court, separate list of cases is prepared. Some courts take up this list first while some courts take up this list after finishing the main list. The files of execution cases are in the custody of a court staff called the nazir. The files of a court are kept in the custody of a court staff who in common parlance is called ‘ahalmad’ (record keeper). There is one ahalmad for each court. He normally sits in one corner of the court room. He is the person responsible for the preparation of the various summons, warrants, release orders (in case of bails) etc. in respect of the cases of his court. If a judge in a civil court at any stage of the case finds that the case is of such a nature which does not fall within the subject area of the roaster assigned to him at that time, then he can send the case to the District Judge for transferring the same to one of the courts dealing with the subject matter of the case. If one wants to inspect the court file, then an application for inspection is moved in the concerned court. After being allowed by the judge, one has to approach the ahalmad for inspecting the file. One can note down the contents of the file using a pencil only. For obtaining the certified copy of any of the order or document of a court file, one can submit the application in this regard in the prescribed performa with the requisite fees at the concerned counter and receive the same on the date given by the counter clerk. However, in pending cases, the inspection and certified copy can be availed only by a person who is party in the case, either himself or through his advocate. The actual method of working of the courts, as given above, may vary from State to State depending upon various factors.

32

Courts, Police, Authorities & Common Man

5 Law Officers representing Government in the various Courts The work related to the drafting of various bills, Acts, legislations etc. , appointment of judges, law officers etc., is done by the Ministry of Law, Justice & Company Affairs having its office at 5th Floor, Shastri Bhawan, New Delhi. The work within the law ministry is divided into three parts, each part being looked after by a separate department and each department being headed by a separate Secretary. The main department is the Deptt. of Legal Affairs, which renders advice to various Ministries/Departments of the Government of India (including PSUs) on legal matters and also carries out drafting work on their behalf. The deptt. also attends to the litigation work of the Central Government in the Supreme Court, various High Courts, Tribunals and some of the subordinate courts. This department is also concerned with entering into treaties and agreements with foreign Governments in matters of civil law, authorizing officers of the Central Government to execute contracts and assurance of property on behalf of the President under Article 299(1) of the Constitution and authorizing officers to sign and verify plaints, written statements in suits by or against the Governments. This deptt. is further concerned with the appointment of Law Officers. This deptt. administers the Advocates Act 1961, the Notaries Act 1952 and the Legal Services Authority Act 1987. This deptt. is also administratively in charge of the Appellate Tribunal for Foreign Exchange, Income-tax Appellate Tribunal, Indian Legal Service and Law Commission of India. The Legislative Deptt. mainly deals with the work of drafting Government Bills and subordinate legislation sponsored by the various Central Ministries. It has also administrative responsibility of the Election Commission and for work connected with elections to the Parliament and the State Legislatures and the offices of the President and the VicePresident. The duties of the Deptt. of Justice include the administration of justice and the processing of appointment of judges of the Supreme Court and the High Courts and looks after their conditions of service.

Part I : Courts

33

The law officers of the Central Govt., starting from the highest, are as follows : 1.

Attorney General (A.G.)

2.

Solicitor General (S.G.)

3.

Addl. Solicitor General (A.S.G.)

4.

Central Govt. Senior Counsel

5.

Central Govt. Standing Counsel

6.

Govt. Pleaders

The Attorney General is the highest law officer of the Central Govt. He is a constitutional functionary and is appointed by the President of India under Article 76 of the Constitution of India. He generally enjoys the status of a Supreme Court judge. He gives advice to the Central Govt. and to the President of India on crucial legal issues and perform other functions conferred upon him under the Constitution. He has the right of audience in all the courts in India, meaning thereby that the courts are bound to listen to him on an important issue. A person remain Attorney General only during the pleasure of the Central Govt., that is, if the term of the Govt. expires or the Govt. falls or the Govt. changes by any method, his term also expires and he has to resign, unless the new Govt. again appoints him. The remuneration of the Attorney General is decided by the Central Govt. In practice, he is paid on case to case basis for each appearance in a case, in addition to some amount as monthly retainership. As per Article 88 of the Constitution of India, like every Minister, he has the right to speak or take part in the proceedings of Rajya Sabha or Lok Sabha or any joint sitting of both houses or any parliamentary committee of which he has been appointed as a member. As the workload increased, the Central Govt. instead of amending the Constitution to create posts for more law officers, through administrative orders provided for a Solicitor General. The Solicitor General also attends to important cases in the Courts on behalf of the Central Govt. There is only one Attorney General and one Solicitor General for the whole of India and normally they attend to the cases in the Supreme Court only. With the passage of time, the Central Govt. provided provisions for the appointment of Addl. Solicitor Generals (ASGs) who also attends to important cases assigned to them by the Central Govt. Initially, there used to be only one ASG and that too, for Supreme Court. Gradually, the number of ASGs was increased in the Supreme Court and the Govt. also provided for the appointment of an ASG in High Court in each of the four metros

34

Courts, Police, Authorities & Common Man

of Delhi, Mumbai, Calcutta and Chennai. There are at present 4 ASGs in the Supreme Court. There is one ASG each in the High Courts of the four metros. Further, there are Senior Counsels, Standing Counsels and Govt. Pleaders in various Courts to attend to the Central Govt. cases. In the case of State Governments, the highest law officer is the Advocate General. He is also a constitutional functionary and is appointed by the Governor of respective State under Article 165 of the Constitution of India. He possess the qualifications of a High Court judge. He gives advice to the State Govt. and to the Governor on crucial legal issues and perform other functions conferred upon him under the Constitution. A person remain Advocate General only during the pleasure of the State Govt., that is, if the term of the Govt. expires or the Govt. falls or the Govt. changes by any method, his term also expires and he has to resign, unless the new Govt. again appoints him. The remuneration of the Advocate General is decided by the State Govt. Further, there are Addl. or Asst. Advocate Generals who also look after important cases on behalf of the State Govt. Further, there is a Standing Counsel of the State Govt. in the state High Court assisted by various other advocates for whom generally a panel of advocates is maintained by the State Govt. As far as attending specifically to the Criminal cases is concerned, the provisions for appointment of officers/advocates on behalf of the Govt. is provided in the Criminal Procedure Code : The Central Govt. appoints an advocate of minimum 7 years of practice as a Public Prosecutor (PP) for conduct of cases on its behalf in the High Court. Depending upon the workload, the Addl. Public Prosecutors (APP) are also appointed. They are all appointed after consultation with the High Court. Likewise, the Central Govt. can also appoint PPs and APPs for conduct of cases in the district and subordinate courts. However, in the lower courts, since the criminal cases are directed against the state, the role of Central govt. is limited and majority of the cases pertain to the State Govt. The State Govt. appoints an advocate of minimum 7 years of practice as a Public Prosecutor (PP) for conduct of cases on its behalf in the High Court. Depending upon the workload, the Addl. Public Prosecutors (APP) are also appointed. They are all appointed after consultation with the High Court. Likewise, the State Govt. is bound to appoint PPs and APPs for conduct of cases in the Sessions courts. However, for these courts, they are all selected from the list/panel prepared by the District Magistrate in consultation with the Sessions Judge. Likewise, the Central Govt. can also

Part I : Courts

35

appoint PPs and APPs for conduct of cases in the sessions courts. The State Govt. is also bound to appoint Assistant Public Prosecutors (APPs) for prosecuting cases on its behalf in the courts of the Magistrates. Any person can be appointed as APP, but generally a police officer can not be appointed as APP. The Central Govt. may also appoint APPs for prosecuting cases on its behalf in the courts of the Magistrates. The Central Govt. as well as the State Govt. can appoint any advocate of minimum 10 years practice as a Special Public Prosecutor (SPP) on their behalf in any Court for prosecuting any particular case(s).

36

Courts, Police, Authorities & Common Man

6 Powers of Court under ‘Contempt of Courts Act 1971’ The Supreme Court and the High Court have the powers, under Contempt of Court Act 1971, to punish anyone who commits contempt of the court. The contempt committed may be civil or criminal in nature. Civil contempt means knowingly and willfully disobeying any judgment, order, decree, direction, writ etc. issued by a court. Knowingly and willfully violating by a person, any undertaking given to the court by that person, is also civil contempt. Criminal contempt means speaking, publishing, writing any matter, words, signs or making gestures or doing any other act which - scandalizes or lower the prestige of any court - causes disturbance or interference in any judicial proceeding - causes obstruction or interference in the administration of justice in any other manner However, publication or distribution of any such matter, words etc. by a person in innocence does not amount to contempt of court. Publishing any fair comment on the merits of any decided case also does not amount to contempt of court. The complaint or statement made by a person in good faith against the presiding officer of court lower than High Court, to the High Court or any other court, does not amount to contempt of court. But it is to be kept in mind that publication of reports of proceedings before a court of law must be true, accurate and without malice. Freedom of speech and expression does not include making unfounded allegations of corruption against the judiciary. The contempt of court committed against any court subordinate to the High Court can be tried and punished only by the High Court. However, if the contempt committed against a subordinate court is such which is punishable under Indian Penal Code, then the High Court can not take cognizance of such a contempt. (section 10) A person found to have committed contempt of court may be punished with simple imprisonment for up to 6 months or with fine up to Rs.2,000/- or both. However, if the accused makes an apology to the

Part I : Courts

37

satisfaction of the court, then he may be discharged or if punishment has been pronounced, then his punishment may be withdrawn. The court may or may not accept the apology. The apology can not always be put as a weapon of defence. For an apology to be accepted, it must be tendered at the earliest and unconditionally and it must indicate free and frank confession of a wrong done. Some time back, in the month of May 2001, the Division Bench of Delhi High Court comprising Justice Anil Dev Singh and Justice O.P.Dwivedi sentenced a Junior Engineer of M.C.D. to 6 months imprisonment. The said J.E. had filed an affidavit in the court that no construction is going on and that the portions ordered to be demolished have been demolished in Sainik Farms area of New Delhi but Court, not satisfied, appointed a committee of three persons to visit the area and the committee gave its report that the properties, stated by the J.E. to have been demolished, have not been demolished and the construction was going on in defiance of the stay on construction. A person found to have committed contempt of court can be sent to jail by the court only if the contempt is of such a nature that it substantially interferes with the due course of justice or where there is willful and deliberate and reckless disobedience of the order of the court.(section 13) If the contempt is committed by a person in the presence or hearing of the Supreme Court or High Court, then that Court may order for taking the said person in custody and as early as possible, serve upon him a show cause/contempt notice. Pending the determination of charge of contempt against him, he may be kept in custody or released on bail. After taking evidence and after hearing the person, the Court may punish him or discharge him. (section 14) In case of any other contempt, which is criminal in nature, the Supreme Court or High Court may take action suo motu (i.e. on its own) or on an application made by the Advocate General ( or any other competent Law Officer) or by any other person, with the prior written permission of the Advocate General. (section 15). A Judge, Magistrate or any other Judicial Officer is also liable to be punished for contempt, just like any other individual. The Judge is expected to be conscious of his heavy responsibilities and should not act in a manner prejudicial to the litigants. (section 16) The person who has committed contempt, called contemnor, is treated like an accused and his personal presence is compulsory. The notice of

38

Courts, Police, Authorities & Common Man

the contempt proceedings, alongwith copy of the application or report made by Advocate General, or any other person or the subordinate court, and alongwith copies of supporting affidavits, must be served upon the contemnor. If the court is of the view that the contemnor is likely to abscond or avoid service of notice, the court may attach his property. The contemnor, on receipt of notice, may file an affidavit in support of his defence. The court considers the evidence and the report and affidavits of both the parties, and decide the contempt application. (section 17). The contempt proceedings can be initiated within one year from the date on which the contempt is alleged to have been committed. Any contempt proceeding initiated after one year, is barred by limitation. (section 20) This is a harsh reality that this Act has dissuaded even the honest and fair criticism of the corrupt or indisciplined judges or of the justice system. At times, the judiciary has used this Act as a sword to punish any such endeavour. The courts have held that even truth can not be pleaded as a defence to a charge of contempt of court. It is in deed surprising that in our country which proclaims “Satyameva Jayate” “Truth alone Triumphs” as its motto, truth is not available as a defence to a charge of contempt of court. Realising this anamoly and inspired by the report of the National Commission to Review the Working of the Constitution (NCRWC), the Govt. of India has introduced The Contempt of Courts ( amendment) Bill 2003 ( Bill No.34 of 2003) in the Lok Sabha on 2.5.2003. It aims to provide fairness in the procedure. The Bill seeks to add the following proviso in Section 13 of the Act : “provided that the court may permit the defence of justification by truth on satisfaction as to bonafides of the plea and it being in public interest”. Section 13 of the Contempt of Courts Act 1971 reads as under : "Section 13. Contempts not punishable in certain cases.— Notwithstanding anything contained in any law for the time being in force, no Court shall impose a sentence under this Act for a contempt of Court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice."

39

Part I : Courts

7 Other Courts & Tribunals Besides the district courts, the High Court and the Supreme Court, there are various other courts or Quasi-Judicial Authorities, known as Tribunals, Commissions etc. for particular purposes. Some of these are as follows : -for service matters of the Central Govt. employees, there is Central Administrative Tribunal (CAT) in each state i.e. if any person, who is an employee of the central govt. or of institutions run by central govt., is aggrieved by any action of the deptt., which has an effect on his service, then he can file a case (referred to as O.A. (Original Application) only in the C.A.T. These are governed by the Administrative Tribunals Act 1985. -the cases claiming compensation claims in motor accident cases can be filed only in the Motor Accident Claim Tribunals (M.A.C.T.) established under the Motor Vehicles Act 1988. -the cases for the recovery of dues above Rs.10 lakhs by any bank or Financial Institution can be filed only in Debts Recovery Tribunal established under the Recovery of Debts Due to Banks and Financial Institutions Act 1993. Recently, the parliament passed ‘The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002’, which now empower the banks to attach and auction the properties of the defaulters simply by giving a notice, without obtaining the order of the court. The appeal against the order of the commissioner of excise deptt. or the customs deptt., whereby the Commissioner refuses to give any relief to the assessee in respect of the case filed by the assessee against any action of the custom deptt. and the excise deptt. levying any penalty or charges or demand or forfeiting any goods, can be filed under the provisions of the Central Excise Act 1944 and Customs Act 1962, only in Customs Excise & Gold Control Appellate Tribunal (CEGAT) now known as CESAT. Such appeal in case of income tax cases can be filed under the provisions of the Income Tax Act, only in Income Tax Appellate Tribunal (I.T.A.T.) Such appeal in case of sales tax cases can be filed only in Sales Tax Appellate Tribunal (S.T.A.T.)

40

Courts, Police, Authorities & Common Man

Cases filed by consumers in respect of the consumer disputes are filed under the Consumer Protection Act 1986 only in the prescribed consumer courts. These consumer courts are arranged in 3 tiers. For every district in a State, the designation given to the consumer court is District Consumer Forum. The consumer cases upto the value of Rs.20 lakhs can be filed in the consumer forums. Above the consumer forums, is a State Consumer Disputes Redressal Commission in every State. The consumer cases of the value of Rs.20 lakhs to Rs. one crore and also appeals from the orders of the consumer forums can be filed in the State Commission. Above all, there is a National Consumer Dispute Redressal Commission for whole of the country. The consumer cases of the value above Rs.one crore and also appeals from the orders of the State Commissions can be filed in the National Commission. (In Delhi, there are different consumer forums for different areas).The National Commission is situated in Delhi at Janpath Bhawan, Janpath, New Delhi. The sitting members of the National Commission at present are : Justice M.B.Shah (retired Supreme Court Judge), Justice K.S. Gupta (retired Delhi High Court Judge), Justice S.N.Kapoor (retired Delhi High Court Judge), Shri B.K.Taimini, Mrs.Rajyalakshami Rao. The cases listed before the National Commission on any day can be seen on its website www.ncdrc.nic.in. Cases relating to monopolistic and restrictive trade practices being indulged into by the companies etc. can be filed under the provisions of the Monopolies and Restrictive Trade Practices Act 1969, only in the Monopolies and Restrictive Trade Practices Commission (M.R.T.P.C.). Now, the MRTP is being scrapped and is being replaced by the Competition Tribunal being constituted under the Competition Act 2002. Cases relating to juveniles are tried by a Juvenile Justice Board set up under The Juvenile Justice (Care and Protection of Children) Act, 2000 (before this Act, such cases were tried by a Juvenile Court). The Juvenile Justice Board consist of a Metropolitan Magistrate as Principal Magistrate and two social workers, out of whom one is a woman. In Delhi the Juvenile Justice Board is functioning since 01.06.2003. The Board holds its regular sittings at Poor House Building, Kingsway Camp, Delhi-110009. The present constitution of the Board is as under: Sl.

Name

Status

Designation

1.

Ms. Santosh Snehi Mann

M.M

Principal Magistrate

2.

Mr. R.C.Bhandari

Social worker

Member

3.

Mrs. Sheela Kaushal

Social worker

Member

Part I : Courts

41

The Beggar’s Court in Delhi is functioning at Poor House Building, Kingsway Camp, Delhi-110009 and is presided over by Shri Suraj Bhan, MM, Delhi. The appeals against the order of adjudication thereby levying of penalty by deptt. officers under the Foreign Exchange Management Act (FEMA) are filed in the Fema Tribunal called Appellate Tribunal for Foreign Exchange (ATFE). This tribunal functions at 6th Floor, Janpath Bhawan, New Delhi The claims under the Railways Act are preferred before the Railway Claims Tribunal.

42

Courts, Police, Authorities & Common Man

8 Public Interest Litigation 1. What is PIL ? PIL or ‘Public Interest Litigation’ is a right given to the members of the public to maintain an action for judicial redressal of public injury. Such injury may arise from breach of public duty or due to violation of some provision of the Constitution of India. The members of the public by filing a PIL are entitled to and seek enforcement of such public duty and observance of the constitutional law or legal provisions. 2. What is the purpose of PIL ? Public interest litigation is the device by which public participation in judicial review of the administrative action or remedy in case of administrative inaction is assured. 3. In which courts PIL can be filed ? PIL can be filed only in the Supreme court (under Article 32 of the Constitution of India) and the High Courts (under Article 226). It can not be filed in the district courts under the existing system. 4. Who can file a PIL ? Any public-spirited person can file a PIL. It is not necessary that the person filing the PIL has suffered any injury himself or has had personal grievance to litigate. The Supreme Court has laid down the following principles governing the question of locus standie of a person filing the PIL. As per these principles, any person having sufficient interest can file the PIL provided : #

There is a personal injury or injury to a disadvantaged section of the public for whom access to the legal justice system is difficult on account of financial incapacity or otherwise.

#

The petitioner (i.e. person filing the PIL) has sufficient interest to maintain an action of public injury

#

The injury must have arisen because of breach of public duty or violation of any law or of the any of the provisions of the Constitution particularly the fundamental rights, by the Govt. departments or the functionaries of the Govt.

43

Part I : Courts

#

The petitioner must seek enforcement of such public duty and observance and grant of the rights guaranteed under the Constitution and other laws.

However, Supreme Court sounded a word of caution in filing PILs in the wake of motivated PILs at the instance of some vested interests. It was held by Supreme Court in Ashok Kr. Pandey vs State of West Bengal VII(2003) SLT 343 that persons acting bonafide and having sufficient interest in proceeding of public interest litigation will alone have locus standie and can approach court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit. Court has to be extremely careful to see that under guise of redressing public grievance, it does not encroach upon sphere reserved by Constitution to Executive and Legislature. When frivolous pleas are taken, Court should do well not only to dismiss the petition but also to impose exemplary costs. Other important judgments of Supreme Court in this regard are : Chairman & MD, BPL Ltd.vs SP Gururaja

VI(2003) SLT 178

Guruvayur Devaswom vs C.K.Rajan

2003(6) SCALE 401

Balco Employees Union vs Union of India

VIII(2001) SLT 321

Raunaq International Ltd. Vs IVR Construction Ltd. X(1998) SLT 135 5. What is the method of filing a PIL ? The conventional method of filing a PIL is to file a petition, more or less in the form of a plaint, containing a list of facts that are necessary for deciding the case. However, over the years, the scope of PIL has been widened and now no particular format is required for filing the PIL. The court can admit a PIL even if it is not made in the form of a formal plaint. The Court can initiate a PIL even on receiving a letter addressed to the Court whether with or without an affidavit. In the case of Shri Rama Murthy vs State of Karnataka reported in 1997 II AD SC 1, a letter written by a prisoner from the jail to the Chief Justice of India was treated as PIL. The letter pointed out the horrible state of affairs in the prisons. The matter assumed great importance concerning the rights of prisoners and the delay in trial and various directions were issued by the Supreme Court in this PIL. However, once a PIL has been filed, it can not be subsequently withdrawn. The Court may proceed suo moto.

44

Courts, Police, Authorities & Common Man

These rules regarding the PIL have been enunciated by the Supreme court to ensure that the PIL does not become the device to settle personal scores and that the people who initiate the proceedings under a PIL do not have any vested interests. If personal litigation is filed by someone under the garb of public interest litigation, cost may be imposed on the person instituting such litigation, as observed by the Supreme Court in Chhetriya Pradushan vs State of U.P. AIR 1990 SC 2060. Most of the decisions concerning the environment and pollution have been passed by the Supreme court in the PILs filed by the public spirited people. Certain people are known for filing PILs in the public interest. These include Mr. M.C.Mehta (who is a lawyer and has even won Magsaysy Award for his remarkable work on environmental issues. It was on the petition filed by him that the Supreme Court passed orders regarding running of public transport on CNG, shifting of industries, removal of industries from within a particular distance from Taj Mahal, banning of parks for public functions, etc.), Mr. H.D.Shourie who files petitions under the banner of his society called Common Cause, Mr. Ashok Aggarwal, Mr. Prashant Bhushan etc. 6. Role of PIL in expanding scope of Article 21 The scope of article 21 of the Constitution of India has been expanded very wide while deciding various landmark PILs decided by the Supreme Court of India. The Supreme Court has held that Fundamental rights can be enforced even against private bodies and individuals. It has held that jurisdiction enjoyed by Supreme Court under Article 32 is very wide. For the exercise of this jurisdiction, it is not necessary that the person who is the victim of violation of his fundamental rights should personally approach the court as the court can itself take the cognizance of the matter and proceed suo motu or on a petition of any public spiritied individual. In recent time, the Supreme Court has expanded the scope of ‘right to life’ envisaged under article 21. It has held that Right to Life does not merely mean animal existence but means something more, namely, the right to live with human dignity. Right to life includes all those aspects of life which go to make a life meaningful, complete and worth living. See : Francis Coralie vs Delhi Admn. Olga Tellis vs Bombay Municipal Corp. DTC vs DTC Mazdoor Congress Boddistwa Gautam vs Subhra Chakraborty

AIR 1981 SC 746 AIR 1986 SC 180 AIR 1991 SC 101 AIR 1996 SC 922

45

Part I : Courts

Part I COURTS

47

Part II : Police

1 History of Police in India In early times in India, there was indigenous village police system wherein the police functions were based on the principle of collective responsibility. Major problems of crime, law and order were confined mainly to the villages and it was possible to solve them within the community itself on the principles of equity and justice. The village functionaries used to enjoy considerable faith and confidence of the masses. The Hindu kings did not disturb this system. However, under the rule of the Muslim Rulers, elements of coercion and compulsion were introduced in the system. This was because these rulers were always under the fear of attack by the uprooted Hindu kings and they did not have faith in the loyality of the Indian people. This affected the faith which people used to earlier have in the village functionaries. The use of military force became frequent. This led to bitterness and uncooperative attitude on the part of the masses. The arbitrary enforcement of laws and government orders increased. The orders of the rulers were ruthlessly and severely carried out. The only intention of the administration was to collect maximum revenue. The same system continued under the British rule. Until the year 1860, police was merely an instrument at the disposal of the chief revenue officers to enforce collection of revenue. In the year 1860, a Police Commission was set up for the first time to find ways and means of bringing about reforms in the police organisation. On the basis of recommendations of this police commission, the Police Act of 1861 was passed by British Government. This Act laid the foundation of the police-set up in India, which continues till date without any major changes. According to Section 4 of Police Act 1861, the administration of police throughout a general police district (in the case of the Stat) has been vested in the Inspector General of Police (now Director General) and his subordinates, such as Deputy Inspector General, Superintendent and Assistant or Deputy Superintendent of Police etc. This section also provide that the administration of the police throughout the district shall be under the general control of the District Magistrate of that district. In accordance with this stipulation, the Superintendent of Police, though in-charge of the police administration, was to function under the general control and direction of the District Magistrate. The concept of this provision in the Police Act 1861 had its foundation in the ‘Oriental Theory’ which was

48

Courts, Police, Authorities & Common Man

evolved during the British regime. Even after independence in 1947, this system has not been changed by the Indian Government for the very reason of concentration of authority in one designation. The country has adopted in its entirety the police organizational set up that British rulers had introduced and nurtured for their own ends. Incidentally, the British had in their own country abolished the magisterially controlled police as early as 1829, because of its inefficiency and corruption.

49

Part II : Police

2 Police Set-up in India The final set-up which emerged pursuant to ‘Police Act 1861’ is as follows: There is an Inspector General of Police ( now called Director General of Police) in each province for the direction and supervision of the police force, to be assisted by the Deputy Inspector General of Police. Each province is divided into ranges. Each range is under the charge of Deputy Inspector General. Similarly, functional Deputy Inspector General were established to look after auxiliary organizations throughout each province, such as, one for Criminal Investigation Department, another for Railways, Police Headquarters and so on. The provinces were divided into several districts. The district police chief was called the Superintendent of Police, assisted by an Assistant Superintendent or Deputy Superintendent. Each district was further divided into sub-divisions, circles and police stations respectively officered by a Sub-Divisional Police officer, Circle Police Inspector and Sub-Inspector. The Sub-Inspector was generally incharge of a Police Station covering approximately an area of about 400 kms on an average and assisted by Assistant Sub-Inspector, Head Constables and Constables. Thus, the nucleus of the police organization is the police station and on its efficiency, integrity and honesty depends the reputation of the entire police organization. The Indian Police Act 1861 governs the organization of police department throughout the country. However, several States have their own police Act which govern the working and function of the police in that State. For example, in Delhi, we have Delhi Police Act 1978. Metropolitan cities and Commissioner of Police The system of police administration in the presidency towns of Bombay, Calcutta and Madras was different. Here, the police worked directly under a Commissioner of Police without the magisterial control. The Commissioner of Police himself enjoys the essential magisterial powers for the control or regulation of assemblies etc. He is the senior-most police

50

Courts, Police, Authorities & Common Man

officer, but is junior to the Director General of the State. Down the hierarchy, he has several Deputy Commissioners, Assistant Commissioners, Inspectors and Sub-Inspectors for assisting him in policing the metropolitan town. Now, any city that has crossed the ten lakh population mark is being controlled by a Commissioner of Police vested with the same powers as those enjoined upon the police officers of the presidency towns. The recruitment to the rank of Asst. Commissioner of Police ( Asst./Deputy Superintendent of Police) is generally made by selecting officers from Indian Police Service (I.P.S.)., though in some cases (25%), the inspectors in due course are promoted to the rank of Asst. Commissioner. Thus, officers of the rank of ACP and above generally belong to the I.P.S. cadre. The IPS is constituted under the All India Services Act 1951. The IPS officers are recruited, trained and organized on all India basis.

51

Part II : Police

3 Various Departments/Wings of Police A. Prosecution Agency The function of this agency generally is to represent the State Govt. before the Courts in criminal matters. Before independence, the prosecutors were entirely a part of the police organization. However, after independence, the prosecution agency was made completely independent of the police organization. The manner of appointment of the prosecutors was laid down in the Criminal Procedure Code wherein the consent of the High Court in their appointment was made almost compulsory. B. Criminal Investigation Department (C.I.D.) This department with its other branches viz. Special Branch and Crime Branch was set up on the basis of the recommendations of the All India Police Commission of 1902-1903. Because of vast requirements of security and other correlated functions, some States have bifurcated the old department into two parts: one dealing entirely with security and intelligence and the other with investigation work and control of selected crime. Full fledged organizations for vigilance and anti-corruption work, manned by selected officers, have also been created at the State level to keep a watchful eye on the ever expanding government machinery with vast opportunities for corruption, collusion with undesirable elements and favouritism. The heads of these special departments are the seniormost officers of police hierarchy but mostly they are under the disciplinary control of the Chief of the Police organization of that State. C. Armed Police The military type of police force existed even during the British rule. However, this type of police was hardly ever used for normal police duties. Their deployment created a frightening impression about them in the minds of the general public. Their sight had the deterrent effect on the law breakers. Since independence, law and order problems have assumed stupendous proportions. Their frequency has been alarming. Violence has been so rampant that the normal law and order forces proved to be insufficient. In these circumstances, the State Police depend upon the Armed Police Battalions of the States or Central Government.

52

Courts, Police, Authorities & Common Man

The Armed Police Battalions are in the nature of reserves at the disposal of the Police Chief of the State. He can direct them to act either on a requisition of the Range Officer ( such as, Deputy Inspector General of Police) or suo motu on his own appreciation of a particular situation. These battalions are generally called to deal with major anti-dacoity operation, serious civil commotion, crowd control at the time of VIP visits, for duty at large fairs or festivals or any other law and order situation. Sometimes, they are used for guarding the national borders and for security duties in sensitive areas. They can also be deputed for duty in neighbouring States to assist local police of that State on the orders of their own State Government. This is done on a reciprocal basis on the principle of regional cooperation. These battalions are established under their respective Acts and Rules. A batallion has between 4 to 6 companies and each company is of 100-120 men. Each company has 4 platoons of about 35 men. Each battalion is commanded by a Commandant (of the rank of Superintendent of Police) assisted by Assistant Commandant (of the rank of Junior Superintendent of Police or Deputy Superintendent of Police). The Commandant is subject to the control of the Inspector General and Deputy Inspector General concerned. Each company is commanded by an officer of the rank of Deputy Superintendent of Police or Inspector of Police. Each platoon is headed by an officer of the rank of Inspector or Sub-Inspector of Police. The system differs from State to State. In some States, the ranks of Inspector and Sub-Inspector of the Armed Battalion are termed as Subedars and Jamadars respectively. Each State has on an average 12-15 battalions or more in bigger States. These armed battalions are called by different names in different States. For example, these are called as : - Provincial Armed Constabulary in Uttar Pradesh (PAC) - Rajasthan Armed Constabulary (RAC) in Rajasthan - Special Armed Police Force in Madhya Pradesh - Military Police in Bihar - Assam Rifles in Assam - Malabar Police in Tamil Nadu Para-military forces under the direct control of the Central Government are :

Part II : Police

53

- Assam Rifles - Border Security Force (BSF) - Central Industrial Security Force (CISF) - Central Reserve Police Force (CRPF) - Indo-Tibetan Border Police. (ITBP) They are deployed frequently to assist the State Police in the maintenance of law and order under Article 257A of the Constitution of India. D. Wireless Section All the district headquarters in a State, important sub-divisional headquarters and even police stations are connected with wireless communication. There is also inter-communication between various States. All this is co-ordinated by the Central Directorate under the Government of India. This organization in each State is headed by a technical expert of the rank of a Deputy Inspector General or a Senior Superintendent of Police. He has under him a set of technicians and a number of wireless operators. The radio section staff has put up very efficient control rooms in most of the important cities which have proved to be boon in times of emergencies as well as daily operations of mobile patrols, traffic control and other incidents. E. Police training institutions These institutions provide training to all ranks of the police force. The institutions which impart training to gazetted officers and Sub-Inspectors are called Police training colleges. Principal of such college is a Senior Suprintendent of Police or in some States a Deputy Inspector General of Police. The institutions which impart training to lower ranks are called schools or training centers. The Assistant Superintendent of Police, after their initial training at the National Police Academy, have also to spend some period varying from 1-6 months at the State Police Training College of their State to familiarize themselves with the local laws and conditions. The Police Training Colleges also organize refresher and promotion courses of various types in order to streamline the officers and their subordinates. The recruitment to State Police Forces is generally made beginning from the lowest grade, in the rank of Constables, Sub-Inspectors, in some cases Inspectors and Deputy Superintendents of Police. Promotions are made

à

54

Courts, Police, Authorities & Common Man

in the next higher rank, i.e. Constable àHead Constable à Assistant SubInspector à Sub-Inspector à Inspector à Deputy Superintendent of Police à and in rare cases Superintendent of Police. There are separate training schools for constables and head constables. Senior constables or head constables now undergo refresher training after some years of service or prior to their promotion to a higher grade. F. Traffic police The traffic police forms an appreciable part of the Police force, particularly in large cities The actual traffic control on the streets is done by police constables and head-constables. Their work is supervised by higher ranks. They have a distinctive uniform, usually of white colour to facilitate identification even during night hours. G. Railway police The railway police deals with crime control and detection in Railway premises. Earlier, we had Govt. Railway Police (G.R.P.), which is a part of the State Police, which could not grow much because of age-old conflict of financial control between the State Govt. and the Railway Administration. However, during the past few years, the Railway Administration has greatly improved their watch and ward system and has organized a regular All India force for the protection of the railway property called “Railway Protection Force” (R.P.F.). The R.P.F. is headed by an officer of the rank of Inspector General of Police ( recently upgraded to Director General) who is drawn from the Police and works under the Railway Board. He is assisted by officers of the rank of Inspector General. The members of this force are governed by Railway Protection Force Act 1985. H. Home Guards The function of this organization is to assist the police in its civic functions at the time of emergencies like natural calamities, wars, large scale disturbances, elections etc. They have a major role to play in situations in which additional civil force is necessary to augment the existing strength of the unarmed police in order to enable them to cope up with the extraordinary and additional stress of duty which they are often required to perform. They are voluntary organizations which are kept in constant training and are called out only when there is an extreme necessity. Although it is an independent organization, in a way it is subsidiary to the police department. The degree of dependence on and control of the police department varies from State to State.

Part II : Police

55

I. Home Department The police comes under the administrative control of the Home Department, whose Secretary belongs to the Indian Administrative Service (IAS). The Director General of Police is expected to keep direct touch with the Home Minister through the Home Secretary. The Chief Secretary of the Govt. (who also belongs to the IAS cadre) is the head of all services under the control of the State Government. Important service matters pertaining to the police department are advised by the Chief Secretary to the Government and all files relating to the police are channelised to the Home Minister by the Home Secretary through the Chief Secretary. J. Unarmed Police agencies under the control of Central Govt. : 1. Intelligence Bureau The history of IB can be traced back to a small group of officers and reliable network of informers employed by Sir William Sleeman for the supervision of Thugee organization between the period between 18301837. The thugs were secret gangs of criminals who used to travel in disguise and used to murder helpless travellers. Sir William established Thugee and Dakaiti Department in 1835 to eradicate this menace. In 1877, this deptt. was given the additional duty of collecting secret and political intelligence. In April 1904, the new organization with nomenclature of Central Criminal Intelligence Department came into being. This deptt. was instructed : (a) to deal with special forms of crime, some of which have been rendered more difficult of suppression by the recent extension of railways and the increased use of the Post Office and telegraph by natives. (b) to organize and supervise operations directed against criminal tribes, organized dacoits working over large areas, wandering gangs of criminals, note forgers, coiners, professional prisoners etc. (c) to collect and test intelligence upon political matters, including social, religious and political movements not necessarily of criminal character. In actual practice, the political intelligence work occupied the whole time of the deptt. and its functions in relations to special forms of crime were quietly dropped. For this reason, after the First World War (1914-1918), the name of the deptt. was changed to Intelligence Bureau. It collected

56

Courts, Police, Authorities & Common Man

all the intelligence regarding the anti-British Government activities and generally it was considered as the eyes and ears of the Government. After the achievement of Independence in 1947, Mr. T.G.Sanjeevi Pillai was appointed as the first Director General of Intelligence Bureau. Today, IB is supposed to be the most effective machinery in the maintenance of internal security of the country vis-à-vis the collection of the necessary intelligence. 2. Research and Analysis Wing (RAW) This is yet another Central Govt. intelligence agency. It s headed by an officer of the rank of Director General of Police and it works directly under the Prime Minister. Mostly, its functions are to collect political intelligence and undertake such special enquiries as are directed by the Prime Minister. 3. Special Protection Group (SPG) The SPG was established in 1987 as a new force in order to cater and provide security needs to the Prime Minister, ex-prime ministers and their families and various other dignatories. More or less, it is a commondo force and its members are specially trained for that purpose. The members of this force have special service conditions and privileges. 4. Central Bureau of Investigation (CBI) The Central Bureau of Investigation is the premier investigating police agency in India. It is also the nodal police agency in India which coordinates investigation on behalf of Interpol Member countries. The CBI has to investigate major crimes in the country having interstate and international ramifications. It is also involved in collection of criminal intelligence pertaining to three of its main areas of operation, viz., AntiCorruption, Economic Crimes and Special Crimes. It traces its origin to the Special Police Establishment (SPE) which was set up in 1941 by the Government of India. The functions of the SPE then were to investigate cases of bribery and corruption in transactions with the War & Supply Deptt. of India during World War II. Superintendence of the S.P.E. was vested with the War Department. Even after the end of the War, the need for a Central Government agency to investigate cases of bribery and corruption by Central Government employees was felt. The Delhi Special Police Establishment Act 1946 was therefore brought into force in 1946. This Act transferred the superintendence of the SPE to the Home Department and its functions were enlarged to cover all departments of the Govt. of India. The jurisdiction of the SPE extended to all the Union Territories and could be extended also to the States with the consent of the State Government concerned.

Part II : Police

57

The DSPE acquired its popular current name, Central Bureau of Investigation (CBI), through a Home Ministry resolution dated 1.4.1963. Initially, the offences that were notified by the Central Government related only to corruption by Central Govt. servants. In due course, with the setting up of a large number of public sector undertakings, the employees of these undertakings were also brought under CBI purview. Similarly, with the nationalisation of the banks in 1969, the Public Sector Banks and their employees also came within the ambit of the CBI. From 1965 onwards, the CBI has also been entrusted with the investigation of Economic Offences and important conventional crimes such as murders, kidnapping, terrorist crimes, etc., on a selective basis. The SPE initially had two Wings. They were the General Offences Wing (GOW) and Economic Offences Wing (EOW). The GOW dealt with cases of bribery and corruption involving the employees of Central Government and Public Sector Undertakings. The EOW dealt with cases of violation of various economic/fiscal laws. Under this set-up, the GOW had at least one Branch in each State and the EOW in the four metropolitan cities, i.e, Delhi, Madras, Bombay and Calcutta. These EOW Branches dealt with offences reported from the Regions, i.e, each Branch had jurisdiction over several States. Over the years, as the CBI established a reputation for impartiality and competence, demands were made on it to take up investigation of more cases of conventional crime such as murder, kidnapping, terrorist crime, etc. Apart from this, even the Supreme Court and the various High Courts of the country also started entrusting such cases for investigation to the CBI on petitions filed by aggrieved parties. Taking into account the fact that several cases falling under this category were being taken up for investigation by the CBI, it was found expedient to entrust such cases to the Branches having local jurisdiction. It was therefore decided in 1987 to constitute two investigation divisions in the CBI, namely, Anti-Corruption Division and Special Crimes Division, the latter dealing with cases of conventional crime, besides economic offences. The Anti-Corruption Division of the CBI has handled cases against Chief Ministers, Ministers, Secretaries to Government, Officers of the All India Services, CMDs of Banks, Financial Institutions, Public Sector Undertakings, etc. CBI investigations have a major impact on the political and economic life of the nation. The following broad categories of criminal cases are handled by the CBI:

58

Courts, Police, Authorities & Common Man

1. Cases of corruption and fraud committed by public servants of all Central Govt. Departments, Central Public Sector Undertakings and Central Financial Institutions. 2. Economic crimes, including bank frauds, financial frauds, Import Export & Foreign Exchange violations, large-scale smuggling of narcotics, antiques, cultural property and smuggling of other contraband items etc. 3. Special Crimes, such as cases of terrorism, bomb blasts, sensational homicides, kidnapping for ransom and crimes committed by the mafia/ the underworld. The CBI is headed by a Director. The other police ranks in CBI are Special Director/Addl. Director, Joint Director, Dy. Inspr. General of Police, Supdt. of Police, Dy. Supdt. of Police, Inspector, Sub-Inspector, Assistant Sub-Inspector, Head Constable and Constable. The total sanctioned police strength including all ranks is 3856. The sanctioned strength of administrative staff is 1231.CBI has also a sanctioned strength of 230 Law Officers, 154 Technical posts, 117 Forensic Scientists and 199 Group D and Canteen staff. As per an amendment brought about in the Delhi Special Police Establishment Act, 1946 by a Presidential Ordinance issued on 25.8.1998, the superintendence of CBI, in so far as it relates to investigation of offences under the Prevention of Corruption Act, 1988 vest in the Central Vigilance Commission. The superintendence of CBI in all other matters vest with the Central Govt. The legal powers of investigation of CBI are derived from the DSPE Act 1946. This Act confers concurrent and coextensive powers, duties, privileges and liabilities on the members of Delhi Special Police Establishment (CBI) with Police Officers of the Union Territories. The Central Government may extend to any area, besides Union Territories, the powers and jurisdiction of members of the CBI for investigation subject to the consent of the Government of the concerned State Govt. While exercising such powers, members of the CBI of or above the rank of Sub Inspector shall be deemed to be officers incharge of Police Stations of respective jurisdictions. The CBI can investigate only such of the offences as are notified by the Central Government under the DSPE Act. Law and Order is a State subject and the basic jurisdiction to investigate crime lies with State Police. Besides, due to limited resources, CBI is not able to investigate crimes of all kind. CBI may investigate:

Part II : Police

59

-

Cases which are essentially against Central Govt. employees or concerning affairs of the Central Govt.

-

Cases in which the financial interests of the Central Government are involved.

-

Cases relating to the breaches of Central Laws with the enforcement of which the Government of India is mainly concerned.

-

Big cases of fraud, cheating, embezzlement and the like relating to companies in which large funds are involved and similar other cases when committed by organised gangs or professional criminals having ramifications in several States.

-

Cases having interstate and international ramifications and involving several official agencies where, from all angles, it is considered necessary that a single investigating agency should be incharge of the investigation.

Due to growth of Information Technology, the spurt in the Cyber Crime is inevitable in foreseeable future. In keeping with the demand of the times, the Cyber Crime Investigation Cell (CCIC) of the CBI, notified in September 1999, started functioning w.e.f. 3.3.2000. The CCIC functions under the overall guidance of Special Director (E), Joint Director, Economic Offences Wing II and under the immediate supervision of DIG, Special Investigation Cell-III. The Cell is headed by a Superintendent of Police and has one Deputy Supdt. of Police, three Inspectors and one Sub-Inspector at present, besides other supporting staff. The jurisdiction of this Cell is all-India, and besides the offences punishable under IT Act,2000, it also has power to look into other high-tech crimes. The CBI does not entertain anonymous / pseudonymous complaints. The CBI does not take up investigation of conventional crimes unless directed by the Supreme Court / High Courts or referred by State Governments. This is because “police” is a State subject under the Indian Constitution and the basic jurisdiction to investigate crimes is that of State police. The CBI’s power to investigate cases is derived from the Delhi Special Police Establishment Act. The CBI can investigate the offences notified under this Act in the Union Territories and with the consent of State Governments, in the States. Besides, since the CBI is a small force, administra-tively also it has not been considered expedient for the CBI to investigate the conventional crimes unless directed by the Supreme Court/ High Courts or referred by State Governments. The core activity of the CBI is anti-corruption work relating to Central Government departments

60

Courts, Police, Authorities & Common Man

and Public Sector Undertakings. The CBI’s website can be used to pass on the information regarding corruption in Central Government departments and Central Public Sector Undertakings. The identity of the informant is kept secret. Every State in India has at least one CBI office headed by a Superintendent of Police, where a complaint can be lodged. The complaint can be sent by post, fax or in person. The important addresses, telephone and fax numbers of CBI offices all over India are given in Appendix 7.

61

Part II : Police

4 Central Vigilance Commission The Central Vigilance Commission is conceived to be the apex vigilance institution, free of control from any executive authority, monitoring all vigilance activity under the Central Government and advising various authorities in Central Government organizations in planning, executing, reviewing and reforming their vigilance work. It was set up by the Government in February,1964 on the recommendations of the Committee on Prevention of Corruption, headed by Shri K. Santhanam, to advise and guide Central Government agencies in the field of vigilance. Arising out of the case of Vineet Narain vs. Union of India , the Supreme court had directed the Central Government to confer statutory status to Central Vigilance Commission , which was hitherto an advisory body, and also made it responsible for effective supervision of the functioning of CBI. The institution is called the Central Vigilance Commission because its jurisdiction extends to all Central Government Departments, Central Government Companies including nationalised Banks and Central Government Organisations. In every State of India, there is either a State Vigilance Commission or Lok Ayukta which is looking after the vigilance matters of the State Governments. The CVC is not controlled by any Ministry/Department. It is an independent body which is responsible only to the Parliament. The CVC is not an investigating agency. The CVC either get the investigation done through the CBI or through the Departmental Chief Vigilance Officers. Secondly, the CVC orders investigation into cases of officials of Central Government Departments /Companies /Organisations only. The Commission is empowered to enquire or cause inquiries to be conducted into offences alleged to have been committed under the Prevention of Corruption Act, 1988 by certain categories of public servants. The following categories of public servants are within the advisory jurisdiction of the Commission ·

(a) Group “A” officers of the Central Government

·

(b) such level of officers of the corporations established by or under any Central Act, Government companies, societies and other local

62

Courts, Police, Authorities & Common Man

authorities, owned or controlled by the Central Government, as that Government may, by notification in the Official Gazette, specify in this behalf; Organisational set-up The CVC is headed by the Central Vigilance Commissioner, who is of the rank of Chairman, Union Public Service Commission. Consequent upon promulgation of an Ordinance by the President, the Central Vigilance Commission has been made a multi member Commission with “statutory status” with effect from 25th August, 1998. The Commission consist of(a) a Central Vigilance Commissioner - Chairperson; (b) not more than four Vigilance Commissioners-Members; The Central Vigilance Commission has its own Secretariat, Chief Technical Examiners’ Wing (CTE) and a wing of Commissioners for Departmental Inquiries (CDI). The Secretariat consists of a Secretary of the rank of Additional Secretary to the GOI, one officer of the rank of Joint Secretary to the GOI, ten officers of the rank of Director/Deputy Secretary, four Under Secretaries and office staff. The Chief Technical Examiner’s Organisation constitutes the technical wing of the Central Vigilance Commission (India) and is manned by two Engineers of the rank of Chief Engineers(designated as Chief Technical Examiners) with supporting engineering staff. The main functions assigned to this organisation are: ·

Technical audit of construction works of Governmental organisations, from a vigilance angle;

·

Investigation of specific cases of complaints relating to construction works;

·

Extension of assistance to CBI in their investigations involving technical matters and for evaluation of properties in Delhi; and

·

Tendering of advice/assistance to the Commission and Chief Vigilance Officers in vigilance cases involving technical matters.

There are fifteen posts of Commissioners for Departmental Inquiries (CDI) in the Commission, 14 in the rank of Deputy Secretaries/Directors and one in the rank of Joint Secretary to Government of India. The CDIs function as Inquiry Officers to conduct Oral inquiries in departmental proceeding initiated against public servants.

Part II : Police

63

Powers and Functions of the Central Vigilance Commission The powers and functions of CVC were provided in Chapter III of the CVC Ordinance 1998 which was in existence only upto 7th January 1999. Thereafter, another ordinance was issued in 1999 which also lapsed on 4th April 1999. The powers and functions of CVC as per the CVC Resolution, which are in force now, are : (i) To inquire or cause an inquiry or investigation to be made on a reference made by the Central Government wherein it is alleged that a public servant being an employee of the Central Government or a Corporation ,established by or under any Central Act, Government company, Society and any local authority owned or controlled by that Government, has committed an offence under the Prevention of Corruption Act 1988. (ii) To cause an inquiry or investigation to be made into any complaint against any official belonging to the following category of officials, namely:(a) Group ‘A’ Officers of the Central Government; (b) such level of officers of the Corporations established by or under any Central Act, (c) Government companies, societies and other local authorities, owned or controlled by the Central Government, as that Government may, by notification in the Official Gazette, specify in this behalf, wherein it is alleged that such official has committed an offence under the Prevention of Corruption Act, 1988; (iii) review the progress of applications pending with the competent authorities for sanction of prosecution under the Prevention of Corruption Act 1988; (iv) tender advice to the Central Government, Corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by the Central Government on such matters as may be referred to it by that Government, said Government companies, societies and local authorities owned or controlled by the Central Government or otherwise; (v) exercise superintendence over the vigilance administration of the various Ministries of the Central Government or corporations established by or under any Central Act, Government companies,

64

Courts, Police, Authorities & Common Man

societies and local authorities owned or controlled by that Government. 4.

The proceedings of the Commission shall be conducted at its present headquarters.

5.

The Commission shall observe such rules of procedure and the principles of the natural justice in regard to transaction of its business.

6.

The Central Vigilance Commissioner, or, if for any reason he is unable to attend any meeting of the Commission, the senior most Vigilance Commissioner present at the meeting, shall preside at the meeting.

If you want to lodge a complaint against any public servant who fall within the jurisdiction of the Commission, all you have to do is to lodge a complaint in writing either through post or through e-mail at the CVC’s email address [email protected] However, the complaints sent through email are accepted only in case complainants have given their full address and identity and subject to verification. This precaution is taken by CVC to prevent lodging of false and pseudonymous complaints through email.

65

Part II : Police

5 Delhi Police History of Delhi Police Delhi has a long history of policing through the famed institution of the Kotwal. Malikul Umara Faqruddin is said to be the first Kotwal of Delhi. He became the Kotwal at the age of 40 in 1237 A.D. and was also simultaneously appointed as the Naibe-Ghibat (Regent in absence). Because of his integrity and sagacity, he had a very long tenure, holding the post through the reigns of three Sultans Balban, Kaikobad and Kaikhusrau. On one occasion, when some Turkish nobles had approached him to secure the withdrawal of Balban’s order confiscating their estates, the Kotwal is recorded to have said, “My words will carry no weight if I accept any bribe from you”. It is presumed that the Kotwal, or Police Head quarters was then located at Qila Rai Pithora or today’s Mehrauli. Another Kotwal mentioned in history books is Malik Alaul Mulk, who was appointed by Sultan Allauddin Khilji in 1297 AD. Sultan Alauddin Khilji once said of him, “He deserves the Wizarat (Prime Ministership) but I have appointed him only the Kotwal of Delhi on account of’ his incapacitating corpulence.” When Emperor Shahjahan shifted his capital from Agra to Delhi, in 1648, he appointed Ghaznafar Khan as the first Kotwal of the new city, bestowing on him also the very important office of Mir-i-Atish (Chief of Artillery). The institution of Kotwal came to an end with the crushing of the 1857 Mutiny by the British. And, interestingly, the last Kotwal of Delhi, appointed just before the eruption of the Mutiny, was Gangadhar Nehru, father of Pandit Motilal Nehru and grand father of Pandit Jawaharlal Nehru, India’s first Prime Minister. Organised Set-up of Delhi Police An organised form of policing was established by the British after the Mutiny of 1857, with the adoption of the Indian Police Act of 1861. Delhi being a part of the Punjab, remained a unit of the Punjab Police even after becoming the Capital of India in 1912. In the same year, the first Chief Commissioner of Delhi was appointed and was vested with the powers and functions of the Inspector General of Police.

66

Courts, Police, Authorities & Common Man

According to the 1912 Gazette, Delhi District was under the control of a DIG of Police with his headquarters at Ambala. The police force in the Delhi district, however, was commanded by a Superintendent and a Deputy Superintendent of Police. The total composition of the force then was two Inspectors, 27 Sub-inspectors, 110 Head Constables, 985 Foot Constables and 28 Sawars. In the city, the rural police was in the charge of two Inspectors with their headquarters at Sonepat and Ballabgarh respectively with 10 police stations. In addition, there were 7 outposts and four ‘road posts’. In the city, there were three large police stations of Kotwali, Subzi Mandi and Paharganj. In the Civil Lines, there were spacious police barracks where the Reserve, Armed Reserve and recruits wereaccommodated. Delhi Police was re-organised in 1946 when its strength was almost doubled. In the wake of partition, a large influx of refugee population rolled in and there was a sharp rise in crime in 1948. It was on February 16, 1948 that the first IGP of Delhi was appointed and the total strength of Delhi Police was increased by 1951 to about 8,000 with one Inspector General of Police and eight Superintendents of Police. A post of Deputy Inspector General of Police was created in 1956. With the rise in the population of Delhi, the strength of Delhi Police kept on increasing and in the year 1961, it was over 12,000. In the year 1966, the Government of India constituted the Delhi Police Commission headed by Justice G.D.Khosla to go into the problems faced by Delhi Police and it was on the basis of the Khosla Commission Report that the Delhi Police was once again reorganised. Four Police districts, namely, North, Central, South and New Delhi were constituted. The Delhi Police Commission also recommended the introduction of Police Commissioner System which was eventually adopted from July 1,1978. The population of Delhi and the attendant problems of policing kept on multiplying and following the recommendations of the Srivastava Committee, the strength of Delhi Police was increased to the present level of 57,497. At present, there are 3 ranges, 9 districts and 123 police stations in Delhi. Today, Delhi Police is perhaps the largest metropolitan police in the world, larger than London, Paris, New York and Tokyo. Delhi Police Mission “The purpose of the Delhi Police is to uphold the law fairly and firmly: to prevent crime; to pursue and bring to justice those who break the law; to keep the peace in partnership with the community;

Part II : Police

67

to protect, help and reassure the people; and to be seen to do all this with integrity, common sense and sound judgment. We must be compassionate, courteous and patient, acting without fear or favour or prejudice to the rights of others, we need to be professional, calm and restrained in the face of violence and apply only that force which is necessary to accomplish our lawful duty. We must strive to reduce the fears of the public and, so far as we can, to reflect from priorities in the action we take. We must respond to well-founded criticism with a willingness to change.” STRUCTURE OF DELHI POLICE For an easy access, Delhi Police is divided into various Districts/Units, who cater to the general/specific needs of the people. The details of these units and the area of their operations is as follows:District Police District is the basic unit of policing, whose area is further divided into Sub-divisions and Police Stations. Police Station is the focal point of the most of the police activities. For any information pertaining to crime, criminal or for the redressal of a grievance, the access to the police station is must. In a P.S., every complainant or person with some information is attended to by the Duty Officer of the P.S. and complaint/information is lodged promptly for further investigation. The visitors can also expect a patient hearing from the SHO/Addl. SHO of a police station. In case a person involved or wanted in a crime is brought to the P.S., he too should expect a human and dignified treatment from the police. The use of third degree methods or brutalities against such persons is totally prohibited. No female/child can be brought to the P.S. for interrogation after the sun set. It has been decided that in cognizable cases, the copy of the FIR shall be dispatched to the complainant by post, notwithstanding the fact that one copy of the FIR had been provided to him by hand after recording the information. In case a complainant has telephone number or e-mail address etc., the same will also find mention in the column of the address so that the necessary cross-checking could be done to eliminate any foul play. Traffic police Delhi being the capital city of the country, is the hub of National as well as International activities. The unprecedented growth in population (1.6 crore approx.) has led to increase in the demand for transportation which

68

Courts, Police, Authorities & Common Man

has manifested itself in numerous transportation problems. With 33 lakh vehicles moving on Delhi roads and little scope of increase in road space, the Delhi Traffic Police is battling relentlessly to cope with the situation specially to achieve the following ends:a. To provide safe and smooth flow of traffic b. To effectively enforce traffic rules & regulations c. To prevent and reduce road accidents. d. To inculcate road safety awareness through education Action plan of the Delhi Traffic Police is focused on 3 major areas, which are mentioned below:a. Enforcement b. Education c. Engineering & regulation This Action Plan is implemented with the help of media and by improving road conditions and signals, Citizen’s participation/co-operation as a good road user, by actively helping traffic police in the traffic management and by obeying traffic rules can go a long way in bringing orderliness in Delhi roads. Police Control Room Police Control Room is the most popular and widespread unit of Delhi Police. The 100 No. telephone facility provided by Police Control Room is a ray of hope for a person in distress. Any information/complaint regarding crime, criminal & intelligence can also be pased on to PCR’s 100 No. telephone as a measure of citizen’s cooperation to the police. In case of an emergency, such as occurrence of a crime, natural calamity or any other important happening, PCR on receiving an information on 100 No. telephone immediately direct its van/vans located near the place of occurrence which reach within 2-5 minutes to provide immediate help to the caller/sufferer. In case of an accident, PCR Vans take the injured to the nearest hospital and in case of vehicle breakdown during the odd hours of the night, these vans try to help stranded people to reach their destinations. Besides, the Police Control Room maintains the record of the following information:A. Unidentified dead bodies B. Missing persons

Part II : Police

69

C. Vehicle thefts The woman & child under extreme pressure and in distress can make a call on telephone No. 23317004 or general number 100 and seek necessary help/guidance from the police. Licensing Deptt. This is a special unit dealing with the issuing renewing and cancellation of licenses under the following Acts/Rules:1. Arms Act 2. Indian Explosive Act 3. The Poison Act, 1919 & Rules 4. The Cinematography Act, 1952 5. Petroleum Act & Rules of 1976 6. The Press & Registration of Books Act, 1959 (as extended to Delhi). Apart from the above Acts, different regulations have been framed under Section 28 of Delhi Police Act to regulate the trade of Guest Houses, Amusement Centres and Swimming Pools. Vigilance Deptt. Vigilance Branch of Delhi Police maintains the internal check on Delhi Police personnel. Any complaint against police personnel regarding corruption, misbehavior, harassing, carelessness while on duty and other illegal activity, not permitted by laws can be lodged with the Vigilance Branch. The Flying Squad of the Vigilance Branch is kept ready roundthe-clock to attend such complaints.(Telephone No.3319922) Crime & Railways Deptt. The Crime Wing of Delhi Police deals with the cases which falls in one of the following categories:General Crime : a. Anti-Robbery Cell b. Anti-Kidnapping Cell c. Anti-Burglary Cell d. Anti-Homicide Cell e. Anti-Auto Theft Squad f. Inter-State Cell g. Special Investigation Team

70

Courts, Police, Authorities & Common Man

h. Bomb Disposal Squad i. Dog Squad j. Missing Persons Squad k. Cyber Crime Cell Economic Offences Wing : a. Anti-Forgery Cell b. Criminal Breach of Trust c. Fraud & Cheating Cell d. Land Building Racket Cell e. Intellectual Property Cell. Crime Against Women Cell Narcotics & Crime Prevention Cell Investigation is taken up by these Special Cells either by the court orders or at the instance of the Senior Officers CP/Jt.CP Suo-moto keeping in view heinous nature and magnitude of the crime. ACHIEVEMENTS : Help Line Women in distress can call at Phone No. 3317004. For traffic related problems call at Phone No. 3318840 Advertising Campaign Delhi Police is the first police organisation in the country to employ the very modern tool of advertising in the media with the objectives of informing and educating the people, of reaching out to them and seeking their cooperation in fighting crime. Special Police Officers The schemes of SPOs was introduced in 1985. Under this scheme, any able bodied adult who does not have a criminal background is entitled to function as a SPO on an honorary basis. Computerised Arms Licensing Unit Delhi Police has now computerised the Arms Licensing Unit in which name-wise, weapon-wise and retrieval of information whenever the validity of a license expires, are now being sent to all those licence holders whose validity would be expiring within a month.

Part II : Police

71

Service-Oriented Activities Delhi Police is running over a dozen de-addiction camps in several areas of Delhi. With the help of SPOs, Delhi Police is periodically organising blood donation camps. SCHEMES : 1. Ensuring free supply of copy of FIR to complainant It has been decided that in all cases, a copy of the FIR be dispatched to the complainant by post, not withstanding the fact that a copy had been provided to him when his report was lodged. 2. Arms Licences Procedures for obtaining licence has been simplified and following steps have been taken to provide better service to arms licencees :1. Licencees no longer need to produce their arms at the time of renewal. 2. A system of issuing reminders to the licencees whose arms are due for renewal has been started. 3. Training is being imparted to those who have no experience of use of arms. 4. Wide publicity has been given to the public for registration of outside licences in Delhi. 3. Helping stranded vehicles PCR vans have been instructed to provide assistance to the passengers of break-down vehicles at odd hours and help the stranded passengers to reach their destinations. Any body can call the police by dialing tel no.100. (This tel no. works in all metros). 4. Jan Sahyog Abhiyan A Jan Sahyog Abhiyan was started by Delhi Police to elicit support and cooperation of the residents of Delhi. Attractive exhibitions were set up on anti-terrorist and home security measures. Delhi Police had started Juvenile Aid Camps in which street children are being taught some trade and found jobs so that they do not take to crime. Delhi Police launched a scheme under which personnel of PCR vans have been trained in first-aid with the Heart Care Foundation of India for picking up the victims of accidents and taking them to the hospital.

72

Courts, Police, Authorities & Common Man

Delhi Police’s first Juvenile Aid Centre called “Prayas” was set up in 1988 at Jahangir Puri in which boys and girls put through orientation programmes including vocational guidance. Delhi Police has initiated special measures to check eve-teasing, so notoriously prevalent in the city. 5. Neighbourhood Watch Scheme (N.W.S.) The neighbourhood watch scheme, wherein vigilant members of the public have been organising themselves to ensure area security and even encouraging members of the public to take personal and physical security measures have been on the continuous list of nourishment and review by the DCP. The beat system has been recently strengthened by posting experienced Head Constables as beat officers in most of the places. This improvement has started paying dividends in terms of better patrolling and public relations as well as development of criminal intelligence. In the sphere of victimology, special attention has been paid to the victims of heinous crime. Officers from the police stations visit them for restoring their confidence during the times of crises. Arrangements have been made to help the victims of road accidents by delivering copies of various documents from the police station at their residences and offering them guidance so that they could claim compensation from the Insurance Company and others. The Neighbourhood Watch Scheme (NWS) run on the basis that law can be better enforced and crime can be better prevented with the cooperation of the people. This concept is known to have achieved considerable success in the countries where it has been introduced. These include U.K., USA, Canada and Australia. In fact, the objectives of the Scheme everywhere are broadly as follows: a.

to reduce property crime;

b.

to foster police-community relations;

c.

to increase community spirit;

d.

to reduce juvenile crime by getting the youths also involved in the Scheme.

Under the Scheme, the police first identifies a neighbourhood and then contacts its citizens in order to motivate them to together keep their eyes and ears open in their own neighbourhood in order to prevent crime. Apart from residential areas, similar schemes are likely to be planned for business areas, apartments, high-rise buildings, etc.

Part II : Police

73

The Scheme is proposed to be introduced gradually and, as a first step, it is proposed to introduce it in two or three crime-prone areas in each of the nine police districts. As the basic objective of the Scheme is to prevent crime, it is proposed to select those residential areas known to be vulnerable to the following property crimes:a)

robberies and burglaries

b)

thefts

c)

vehicle thefts

d)

snatchings

Once an area is identified, it is the task of the local police, especially the SHO and the ACP, to organise the residents into a cohesive and homogeneous group. For this purpose, the help of the local SPOs and residents’ associations, if any, is enlisted. The residents are persuaded to organise a meeting and efforts are made to motivate as many residents as possible to participate in it. As personal invitations are generally hard to decline, local police officers and SPOs individually contact the residents in order to motivate them to attend the meeting. The broad details of the Scheme are explained and Neighbourhood Watch Committee (NWC) are constituted. Headed by a coordinator, the NWC have representatives of the police, local bodies, residents’ associations, local voluntary organisations and the residents. Ideally, each NWC should cover not more than about 500 houses. Alternatively, the jurisdiction of each NWC could be equivalent to the beat of the local Beat Constable. 6. Helpline for Women in Distress Everyday, several innocent women are subjected to various forms of distress - eve-teasing, molestation, matrimonial disputes and more. And what makes such incidents happen again and again, is the women’s silence. Silence out of fear. Or to avoid scandal. Or out of a misplaced sense of devotion. But no woman need suffer so. All they need to do is to call Helpline at 3317004. Delhi Police has initiated a “Helpline Scheme” for women in distress since June 3rd, 1997 and a telephone No.3317004 has been ear-marked in Police Control Room to receive the calls. This telephone number has been given wide publicity through press. Attended round the clock by 4 trained Policewomen, the Helpline not only provides an emotional cushion to women in distress, but also access to voluntry social organisations and legal aid cells. So, you no longer have to suffer in silence.

74

Courts, Police, Authorities & Common Man

7. Servant Verfication Scheme A large number of immigrant servants and floating labourers, chowkidars, plumbers, electricians and other casual labourers come to Delhi/New Delhi in search of employment. Crime committed by this class of population in Delhi constitutes a big problem. Some of them are of dubious character and have previous convictions. The employers in many cases have no idea about the man’s character. They employ them at times without anybody’s recommendation and knowing nothing about them. To find out such bad elements, it is necessary to have verification of the character and antecedents of domestic servants, private employees and the chowkidars employed by the Resident Welfare Associations. It would help the local police greatly if previous convicts, suspects and other shady characters among such private employees are spotted. Recently, some domestic servants have been found responsible for even heinous crimes like murders. In spite of advising the public through the press, TV, cinema, slides, hand-bills and through personal contacts, the response has not been very encouraging. There are instances where complete strangers were accepted as domestic/private servants, chowkidars, plumbers, electricians and casual workers employed by Tent Houses and Halwai Shop etc. and they have decamped soon after, with valuables. The employers could not even produce their photographs and addresses. All resident and market associations should, therefore, be alerted to use the services of only verified people. Registration & Verifications : For convenience of the employers, servant verification is got done through beat constables. He go to the employer’s residences, request them to fill the forms and return the forms to the Divisions Officers at the police station after beat patrolling duty is over. Adequate attention is paid by the Division’s Officer/ SHO’s to this important matter. The division officer and the beat patrolling constable are required to jointly do this job from time to time. They take with them sufficient number of forms, go to the houses of the employers and get the forms filled in triplicate for all private/domestic servants/casual workers employed in tent houses, Halwai shops, casual labourers, plumbers, electricians and also the chowkidars employed by the Resident/Market Welfare Associations. One copy of their photographs is retained in Police Station and their forms are entered in the servant verification register and are sent to the Police Station concerned, in duplicate, for verification in the form of stranger Roll. Concerned SHO check their antecedents from CRO,

Part II : Police

75

whether they are involved in any cases in Delhi or otherwise. How to contact Delhi Police Any person can have access even to the senior most level of Delhi Police by addressing him in writing. Copy of such writing/complaint can be put in the complaint/suggestion boxes placed at every police station, SDPO’s office and on other senior officers’ offices. Besides, it can also be given by hand and a receipt can be obtained for the same. A Post Box No. 171 at GPO, New Delhi has also been earmarked for the same purpose. Any person who cannot visit the police in person and who is not in a position to write, can have access to the police on telephone. The details of telephone numbers of various units of Delhi Police are given in Appendix 6. Telephone number 100 is the centralized number which works round the clock. A Website http://www.delhipolice.nic.in/ has been introduced to interact with the Delhi Police through Internet. The e-mail address of Delhi Police is :- delpol @del2.vsnl.net.in [the contents of this chapter providing information and history of the Delhi Police have been taken from Delhi Police Website] LAW RELATING TO DELHI POLICE 1. Various Provisions of Delhi Police Act 1978 The Police force in Delhi is regulated by Delhi Police Act 1978. Under this Act, the hierarchy in the Delhi Police, from top to bottom, is as under: · Commissioner of Police (C.P.) · Additional Commissioner (Addl. C.P.) · Deputy Commissioner (or Addl. Deputy Commissioner) (D.C.P.) · Assistant Commissioner (A.C.P.) · Inspector (3 stars on uniform/shoulder) · Sub-Inspector (2 stars….) · Asst. Sub Inspector (1 star…) · Head Constable · Constable For the purpose of better functioning of police, Delhi is divided into 9 police districts. Each district is divided into police sub-divisions and each sub-division covers 2 or more police stations. Each police district is headed

76

Courts, Police, Authorities & Common Man

by a DCP, who is assisted in his duties by one or more Addl. DCPs. Each police sub-division within a district is headed by an ACP. Each police station within a sub-division is headed by an Inspector and he is known as Station House Officer (SHO). The police officers of the rank of ACP and above are officers generally belonging to the Indian Police Service (IPS) cadre and are selected directly through U.P.S.C through Civil Services Examination. However, in few cases, the Inspectors are able to reach the level of an ACP, in the course of their promotion. q Any able bodied male person above 18 years may be appointed as Special Police Officer (S.P.O.) by the Police Commissioner. On appointment, the SPO receive a certificate of appointment and he has the same powers, privileges and immunities; perform the same duties and be subject to the same authorities, as an ordinary police officer. q An Inspector may be designated as SHO or Addl. SHO. q The Police Commissioner may, by notification in the Official Gazette, make regulations to provide for regulating the traffic and for maintaining the law and order in public places and for such matters as enumerated in section 28 of the DP Act. Any police officer of the rank of Inspector and above, may give any order orally or in writing to the public for any of the purposes mentioned in section 29 including preventing obstructions at the time of processions, assemblies etc., regulating the playing of music, horns in/near public places, regulating the control of loud speakers in residential areas, streets etc. q If a person is carrying on his trade or operating in such a manner that generate sound and noise and which cause disturbance, annoyance, discomfort and injury to others, then the Police Commissioner can issue directions to such a person to stop creating such a nuisance. (section 32) q The Police Commissioner, Addl.C.P., D.C.P., Addl.DCP, A.C.P. of any other police officer of equivalent rank may suspend any subordinate police officer who is reasonably suspected to be guilty of misconduct, pending an investigation or enquiry into such misconduct. In the same manner, the Inspector may suspend any police officer below the rank of a Sub-Inspector. (section 21) q If a police officer is suspended, he can not use his powers and can not claim the privileges and immunities available to a police officer. But, he is liable to do his duties even under suspension. (section 14). q A police officer, if not on leave or suspended, is deemed to be always

Part II : Police

77

on duty and he has to perform his duties at any hour, whether its day or night. (section 24) q If a person ceases to be a police officer, he is bound to return the arms, ammunition, clothing etc. which were given to him as police officer. If he does not return, then a warrant can be issued to search and seize the same. (section 26) q If the activities of any person are causing or likely to cause harm, danger or if he is engaged in the commission of an offence involving violence, or if he has been threatening people, committing violence and spreading terror or teasing the women and girls and the witnesses are not coming forward to give evidence against him for out of fear and it appears that if he remain at large in Delhi, the same would be hazardous to the society, the Police Commissioner by a written order can direct such person to go out of Delhi and not to enter Delhi for a specified time period. If he violate the condition, then he is liable for imprisonment for up to 2 years (Tadipar, section 47, 48, 116) q A case against a police officer on the ground of commission of an offence or wrong by him under the colour of duty or authority or by exceeding his power, can be filed within 3 months from the date of the act complained of. It is compulsory to serve one month notice to the police officer concerned before filing the case against him. (Section 140) 2. What are the duties of a Police Officer ? n

To promptly serve every summons and execute every warrant or other order lawfully issued to him by any competent authority and to comply with all lawful commands of his seniors.

n

To use the best of his ability to obtain intelligence concerning the commission of cognizable offences or designs to commit such offences and to lay such information and to take lawful steps to bring offenders to justice and to prevent the commission of offence.

n

To prevent, to the best of his ability, the commission of public nuisances

n

To apprehend, without delay, all persons whom he is legally authorized to apprehend and for whose apprehension there is sufficient reason.

n

To aid any other police officer when called upon by such other officer or in the case of need in the discharge of the duty of such other police officer, in such ways as would be lawful and reasonable on the part

78

Courts, Police, Authorities & Common Man

of the officer aided. n

To prevent the breach of the public peace.

n

To arrange every assistance, within his power, to the disabled or helpless persons in the streets.

n

To take custody of intoxicated persons and of lunatics at large, who appear dangerous or incapable of taking care of themselves.

n

To take prompt measures to procure necessary help for any person under arrest or in custody, who is wounded or sick and whilst guarding or conducting such person to have due regard to his condition.

n

To arrange for the proper sustenance and shelter of every person who is under arrest or in custody.

n

To refrain from needless rudeness and the causing of unnecessary annoyance, while conducting searches.

n

To act with strict regard to decency and with reasonable gentleness, in dealing with women and children.

n

To use his best endeavours to avert any accident or danger to public.

n

To regulate and control the traffic in the streets, to prevent obstructions therein and to the best of his ability, to prevent the contravention of any rule, regulation or order made under the Delhi Police Act or any other law in force for observance by the public in or near the streets.

n

To keep order in the streets and at and within public bathing and washing places, fairs, temples and all other places of public resort and in the neighbourhood of places of public worship.

n

To regulate entry to public bathing and washing places and all other places of public resort, to prevent overcrowding there and to the best of his ability, to prevent the contravention of any regulation or order made for observance by the public at such place.

n

To discharge such other duties as are imposed upon him by any law. (Section 59 & 60)

These duties are mandatory and if the police officer fails to perform any of these duties or neglects to perform, then adverse action may be taken against him in the police department. 3. What are the penalties that may be imposed on a police officer? n

Any police officer -

who is guilty of cowardice

-

who being a subordinate police officer, resigns or withdraws

Part II : Police

79

himself from duties in contravention of section 25 (including failure to report on duty on the expiry of leave) -

who is guilty of any wilful breach or neglect of any provision of law or of any rule, regulation or order which he is bound to observe/obey

-

who is guilty of any violation of duty for which no punishment is expressly provided by any other law

shall, on conviction be punished with imprisonment for a term which may extend to 3 months or with fine up to Rs.100/- or both. (section 122) n

Any police officer who refuses or willfully neglect to hand over the arms, ammunition, uniform, appointment certificate etc. after he ceases to be a police officer, shall, on conviction be punished with imprisonment for a term which may extend to one month or with fine up to Rs.200/- or both. (section 123)

n

Any police officer -

who, without lawful authority or reasonable cause, enter or search, or cause to be entered or searched, any building or place

-

who, vexatiously ( i.e. with a view to harass) and unnecessarily, detain, search or arrest any person

-

who offers any unnecessary personal violence to any person in his custody

-

who give any threat or promise not warranted by law

shall, for every such offence, on conviction be punished with imprisonment for a term which may extend to 6 months or with fine up to Rs.500/- or both. (Section 124) n

Any police officer who, vexatiously and unnecessarily, delay the forwarding of any person arrested to a Magistrate or to any other authority to whom he is legally bound to forward such person, shall on conviction be punished with imprisonment for a term which may extend to 6 months or with fine up to Rs.5,000/- or both. (Section 125)

Apart from the Delhi Police Act 1978, there are Delhi Police (Punishment and Appeal) Rules 1980, which provides for punishment and penalty for the police officers of the rank of inspectors and below for committing various offences and acts of indiscipline.

80

Courts, Police, Authorities & Common Man

6 Interpol What is Interpol ? The word ‘INTERPOL’ is radio-telegraph code for the International Criminal Police Organization. This organization is an inter-governmental organisation which is second in size only to the United Nations. It consists of 179 member countries who have agreed to “ensure and promote the widest possible assistance between all criminal police authorities in the prevention and suppression of ordinary law crimes”. The Organization’s headquarters is in Lyon, France. ( See Appendix 9 for list of member countries) It is an international police organization to extend co-operation for coordinated action on the part of member countries and their police forces which may furnish or request for information or services for combating international crime. Tracing and arresting offenders committing crimes in different countries may prove extremely difficult and this is where the role of Interpol becomes important. Under Article 2 of Interpol’s Constitution, Interpol’s aims are : “(a) To ensure and promote the widest possible mutual assistance between all criminal police authorities, within the limits of the laws existing in the different countries and in the spirit of the Universal Declaration of Human Rights. b) To establish and develop all institutions likely to contribute effectively to the prevention and suppression of ordinary law crimes.” The limits of its operation are laid down in Article 3 : “It is strictly forbidden for the Organization to undertake any intervention or activities of a political, military, religious or racial character.” According to the interpretation given to Article 3, a political offence is one which is considered to be of a predominantly political nature because of the surrounding circumstances and underlying motives, even if the offence itself is covered by the ordinary criminal law in the country in which it was committed. This interpretation, based on the predominant aspects of the offence, is embodied in a resolution adopted by Interpol’s General Assembly in 1951.

Part II : Police

81

International police co-operation within the Interpol has always been conducted in accordance with the guiding principles listed below: a) Respect for national sovereignty Co-operation is based on the actions taken by the police forces in the various member States, operating within their own national boundaries and in accordance with their own national laws. b) Enforcement of ordinary criminal law. The Organization’s field of activities is limited to crime prevention and law enforcement in connection with ordinary criminal offences. This is the only basis on which there can be agreement between all member states. c) Universality Any member state may cooperate with any other and co-operation must not be impeded by geographical or linguistic factors. d) Equality of all Members States. All the member states are provided with the same services and have the same rights, irrespective of the size of their financial contributions to the Organization. e) Co-operation with other agencies Co-operation is extended through the National Central Bureaus to any Government agency concerned with combating ordinary criminal offences. f) Flexibility of working methods. Although governed by principles designed to ensure regularity and continuity, working methods are flexible enough to take account of the wide variety of structures and situations in different countries. Respect for these principles means that Interpol cannot have teams of detectives with supranational powers who travel around investigating cases in different countries. International Police cooperation has to depend on co-ordinated action on the part of the member States’ police forces, all of which may supply or request information or services on different occasions. India and Interpol India is one of the oldest members of Interpol, having joined the organization in 1949. The Central Bureau of Investigation, which is a Federal/Central investigating agency functioning under the Central

82

Courts, Police, Authorities & Common Man

Government, Department of Personnel & Training is designated as the National Central Bureau ( NCB) of India. The Director of the Central Bureau of Investigation is the ex-officio Head of the NCB-India. All matters relating to the NCB India are, however, dealt with by the Ministry of Home Affairs, Government of India. The Government of India, Ministry of Home Affairs vide its circular letter dated 18.3.1949 intimated to all State Governments and Union Territories that the Intelligence Bureau will serve as the Interpol’s NCB for India. Subsequently, vide its circular letter dated 17.10.1966, the Government of India, Ministry of Home Affairs to all the State Governments and Union Territories conveyed its decision that the Central Bureau of Investigation will henceforth be the representative of this country for the purposes of correspondence with the Interpol. Accordingly, the Interpol work was transferred from Intelligence Bureau to the Central Bureau of Investigation. To deal with this work, a Wing designated as “Interpol Wing” was created in the Co-ordination Division of the Central Bureau of Investigation. All correspondence with the General Secretariat of the Interpol and other NCBs is presently being conducted by the Interpol Wing of the C.B.I. located at Block No. 4, CGO Complex, Lodhi Road, New Delhi 110003. The Director, Central Bureau of Investigation is the Head of the Indian National Central Bureau i.e. Interpol-New Delhi which functions under the immediate control of an officer of the rank of Superintendent of Police. Role and Functions of Interpol Wing of CBI All the State Police forces and other law enforcement agencies in India have a link through Interpol-New Delhi to their counterparts in other member countries prepared to assist in dealing with criminal investigations. And this is the area where the greatest volume of work occurs. There is a daily inflow and outflow of communications between Interpol New Delhi and National Central Bureaus of member countries which ranges from a compassionate request to locate and notify the next-of-kin of a death; request to search for a missing person; criminal history requests for any number of reasons; requests to carry out investigations in cases of fraud, commercial crime, trafficking in narcotics drugs, and criminal code offences upto murder. Each department/police unit in the country has to have a clear understanding of its duties and functions in relation to the activities of Interpol so as to render as well as receive all possible assistance in the investigation and suppression of crime having international ramifications. The General Secretariat of the Interpol centralizes information received

Part II : Police

83

by it from various NCBs about crimes and criminals. The police information received at the General Secretariat is indexed under different heads by its Criminal Records Department. In regard to enquiries emanating from Interpol General Secretariat and other National Central Bureaus, the Interpol Wing of the C.B.I. makes further reference to the Interpol Liaison officers of State/UT and other agencies to obtain the information and then transmits it back to the General Secretariat and the requesting National Central Bureau for convenience and expeditious disposal. In order to present an unified image and in the interest of international police co-operation, it becomes necessary that whenever a request is received from the Interpol Wing on behalf of foreign NCBs, every department/organisation within the country must extend maximum co-operation and respond to the request in the quickest possible way. It is of utmost importance that the work relating to the Interpol is dealt with promptly in a spirit of courtesy and good will with a desire for mutual assistance. Similarly when requests or references are received from various State Police authorities and other law enforcement agencies in India such as the office of the Narcotics Commissioner of India, the Directorate of Revenue Intelligence, the Customs authorities, etc., the Interpol Wing requests the General Secretariat and the NCBs concerned to conduct necessary enquiries and intimate results thereof. According to the Rules governing the processing and communication of police information within the Interpol, the NCB nominated by each country is alone recognized by the General Secretariat and other NCBs for purposes of correspondence in criminal and other police matter. It is, therefore, essential that all matters of police interest pertaining to the Interpol or police departments of other countries should be transmitted through the Interpol Wing of the C.B.I. Thus Interpol Wing of the C.B.I. which is the NCB for India, endeavours to maintain close and continuous liaison with various departments and police orgainsations within the country on one hand and with the General Secretariat of the Interpol and the foreign NCBs on the other. One of the main activities of the Interpol Wing, CBI is to collect information relating to international law enforcement from State Police forces and other law enforcement agencies within India and transmit the same to the Interpol General Secretariat and the concerned NCBs. This function can be performed smoothly and efficiently only when the information relating to international law enforcement is regularly and

84

Courts, Police, Authorities & Common Man

promptly reported by the State Police authorities etc. to the Interpol Wing. India has also been one of the relatively more active members. We have had the privilege of hosting an Inter-Regional Meeting of Heads of Drug Services in 1988, the first Interpol Conference on Methaqualone in 1992, the 13th Asian Regional Conference in 1994, and the 66th General Assembly Session of ICPO-Interpol in 1997. This apart, CBI officials have also been closely associated with the activities of the Interpol. Mr. F.V.Arul served on the Executive Committee of the Interpol as Vice president for Asia. Later two other distinguished Directors of the CBI Mr. M.G.Katre and Mr. Joginder Singh served as delegates on the Executive Committee. To co-ordinate with the CBI in matters relating to Interpol, Liaison Officers have been designated in all States, with usually IG/DIG Crime Branch, CID acting in that capacity. The Interpol wing of CBI ( also called ‘Interpol’s NCB for India) can be contacted at : Assistant Director (Interpol), Central Bureau of Investigation, Block No.4, CGO Complex, New Delhi -110003 Tele No. - 24364000 Fax - 24364070, 24392170 INTERPOL NOTICES International notices are the main instruments of international police cooperation. These notices are usually published by the General Secretariat of the ICPO-Interpol at the request of a National Central Bureau. The General Secretariat may, however, publish blue or green notices on its own initiative. After publication these notices are circulated to all the NCBs. The purpose of these notices is to supply to the police services of member countries, through their NCBs, certain information about persons or objects. There are seven major types of international notices: - ‘A’ Series (red) notice (Wanted), - ‘B’ Series (blue) notice (Information sought), - ‘C’ Series (green) notice (Warning), - ‘D’ Series (black) notice (Unidentified dead body), - ‘E’ Series (stolen property) notice, - ‘F’ Series (Yellow) notice (missing person) and - Modus Operandi (MO) sheets.

Part II : Police

85

‘A’ Series(Red)Notices The ‘A’ series notices are also known as ‘Wanted notices’ and are published in respect of offenders wanted at international level. This type of notice invariably ask that the subject may be arrested, at least in certain countries, with a view to subsequent extradition to the country where he is wanted. The publication of an ‘A’ series notice is requested only if all the following conditions are fulfilled: (a) The person against whom the notice is to be published has committed an offence against ordinary criminal law. (b) The offence is an “extraditable offence” under the Indian Extradition Act, 1962. (c) A warrant of arrest has been issued for his/her arrest. (d) Extradition will be requested, at least from certain countries. If any of the above conditions is not satisfied, a ‘B’ series notice should probably be requested. If a person whether an Indian or a foreigner has committed an offence in India and is subsequently believed to have absconded to a foreign country, a request can be made by the concerned police authorities etc. to the Interpol Wing of the CBI for publication of an ‘A’ series (red) notice against that person provided all the conditions are satisfied. At the time of making such a request, efforts should be made to furnish maximum information as mentioned under : (i) Complete personal particulars of the person wanted i.e. full name, date and place of birth, parentage, family status, name of spouse, occupation, nationality, complete passport details, aliases and nicknames, address(es), etc. (ii) Descriptive particulars i.e. height, colour of eyes, colour of hair, beard, forehead , nose, chin, ears, face (shape), distinguishing identification marks (tattoos, scars, amputations, etc.). (iii) Three copies of photograph and fingerprints. Since photograph and fingerprints cannot be reproduced satisfactorily unless they are of high quality, original photograph and fingerprints should be sent wherever possible. These can be returned on request. (iv) Languages spoken. (v)

Previous convictions, if any.

86

Courts, Police, Authorities & Common Man

(vi) A short account of the circumstances of the case in which he/she is wanted including full details of the charge(s). (vii) The name of the court that issued the warrant, date and number of the warrant of arrest. (viii) An assurance that extradition will be requested ( if arrested anywhere in the world or at least in certain countries). (ix) The names of the countries from which extradition will be requested. If the wanted person is found and/or arrested in India or if the extradition has taken place, the Interpol Wing should be immediately informed so that the General Secretariat can be asked to publish a cancellation notice. ‘B’ Series(Blue)Notices The ‘B’ series notices are also called ‘enquiry notices’ and may be issued in order to have someone’s identity verified; to obtain particulars of a person’s criminal record; to locate someone who is missing or is an identified or unidentified international criminal or is wanted for a violation of ordinary criminal law and whose extradition may be requested. If it is considered necessary to make a request for publication of a ‘B’ series (blue) notice against any person for any of the reasons mentioned above, the requesting authorities should furnish the detailed information as mentioned above. If the notice is required to be published in respect of a missing person, the detailed account of disappearance of that person should also be mentioned. Once the notice is considered to be no longer valid, Interpol Wing, CBI should be notified for issue of a cancellation notice. ‘C’ Series(Green)Notices The purpose of ‘C’ series notices also called as ‘Warning notices’ is to give law enforcement agencies in member countries information about persons who have committed or are likely to commit offences affecting several countries and who might be on their territory. For Interpol purposes, an international criminal is someone who is known in his country as a habitual offender and operating in different countries or who is known in at least two other countries. A request of publication of a ‘C’ series notice should be made only about important international criminals and not about every criminal who fits the above definition. The degree of gravity of the convictions and the nature of the offences committed should be assessed. It should also be considered whether the criminal is or may be a member of a gang of international criminals.

Part II : Police

87

Green notices are not cancelled except in special circumstances or when the person concerned dies. ‘D’ Series(Black)Notices The purpose of ‘D’ series notices is to circulate information about unidentified dead bodies or deceased persons who were probably using false identities. A request for publication of a ‘D’ series notice must be accompanied by three copies of photographs of the entire body, and if possible, the fingerprints. It should also contain the date, place and circumstances of the recovery of the body; detailed descriptions of distinguishing features such as tattoos, scars, condition of teeth (with a dental chart, if possible), clothes and objects worn or carried by the victim, giving details of labels or trademarks, if any. If the deceased person is identified or if the identification is no longer necessary, cancellation of the notice should be requested. ‘E’ Series (Stolen Property) Notices These notices are published with a view to circulate information about stolen property or about objects found in circumstances which suggest that these may have been acquired illegally. Such objects may include cultural property i.e. idols, antiquities, paintings, etc. Publication of an ‘E’ series notice should only be requested if the stolen property has considerable cultural and /or commercial value and it can be satisfactorily identified from a description or photograph or because it bears identification numbers or markings. The request must contain maximum of the following information : (i) Date and place (address) of theft. (ii) Place of theft: (museum, temple, church, palace, private house, art gallery, etc.) (iii) Type of security system protecting the building and the stolen object. Was the system rendered inoperative by the thief? (iv) Modus operandi (during the day, at night, by climbing, by using duplicate keys, by breaking and entering, by using violence or weapons, theft by trickery or using forged documents, etc.) (v) Other information concerning the case including any information which may assist in identifying the offenders.

88

Courts, Police, Authorities & Common Man

(vi) Nature of the stolen object: (painting, sculpture, drawing, statue, engraving, gold/silver objects, books and manuscript, etc.) (vii) Detailed and accurate description of the object. Any diagram or photograph and particulars of the dimensions of the stolen object should be sent so that the information contained in the notice may be as comprehensive as possible. As soon as a stolen object is recovered, the fact of recovery should be reported so that the General Secretariat of the Interpol can be asked to cancel the relevant notice or portion of a notice. Modus Operandi (MO) Sheets The purpose of modus operandi notices is to notify the NCBs and through them, their police forces and law enforcement agencies, of certain modus operandi, procedures and hiding places used by criminals and to centralize information at the General Secretariat about similar methods used in different parts of the world and then circulate this information to the NCBs. The police departments and other law enforcement agencies should inform the Interpol Wing of any interesting methods used by criminals that come to their notice during their investigations. The modus operandi should be completely described and photographs should be sent, if they are useful. (Note : The readers are advised to also see the questions relating to extradition, investigation abroad, issue of letters rogatory etc. given in the end of Frequently Asked Questions chapter)

89

Part II : Police

Part II POLICE

1 INTRODUCTION The criminal laws in India are being administered and the various functionaries under the criminal justice system function in accordance with the provisions of the Code of Criminal Procedure 1973 ( referred to as ‘Cr.P.C.’ in this book). The purpose of the criminal procedure is to provide a mechanism for the enforcement of various criminal laws like Indian Penal Code etc. It is meant to complement the criminal law and has been designed to look after the process of its administration. It creates the necessary machinery for the detection of crime, arrest of suspected criminals, collection of evidence, determination of guilt or innocence of the suspected person, and the imposition of proper punishment on the guilty person. It also aims at providing due safeguards against possible harms to innocent persons in its process of sifting criminals from noncriminals. It further attempts to strike a just balance between the need to give wide powers to the functionaries under the Code to make the investigative and adjudicatory process strong and effective, and the need to control the probable misuse or abuse of these powers. It define the powers and limitations of various authorities and the rights of the persons named as accused by the police so that the accused persons get a fair trial. To achieve this purpose, an accused person has been given the right under Article 22(1) of the Constitution of India and Section 303 of Cr.P.C. to consult and be defended by a lawyer of his own choice. If he is unable to engage a lawyer due to poverty etc., then it is the duty of the state government to provide him a lawyer at the state’s expense. The criminal justice system in India is based on the concept that ‘every person is innocent unless proved guilty’. Thus, our system presumes a person to be innocent and the onus is upon the prosecution to prove the guilt of the accused beyond reasonable doubt. Even if there is a slight doubt about the commission of the offence by the accused, the courts have to acquit the accused. Since criminal law entails serious consequences, the burden is upon the police to prove very clearly and without any scope of doubt that the offence in question was infact committed by the accused. In this regard, the three cardinal principles of criminal law can be summarized as under : (a) that the accused has to prove his case by mere probability (b) that the prosecution has to stand on its own legs

90

Courts, Police, Authorities & Common Man

(c) that the benefit of doubt goes to the accused and the guilt of the accused must be proved beyond reasonable doubt Thus, if the accused is able to show to the court that there is a probability that the offence is not committed by him, he becomes entitled to be acquitted by the court. When a person has caused some loss or damages to the other person, then it is a case of civil wrong for which the person who has caused losses can be asked to compensate the person who has suffered losses, under the law of Torts. However, if the action of the person has criminal consequences and such action falls within the definition of any of the offences under the Indian Penal Code or any other law providing for criminal liability, then the act complained of is a wrong not only against the individual victim but against the State as a whole and thus, in criminal cases, the case to prosecute the wrong doer is filed by the Govt. and not by the victim. That is why, in criminal cases, the title of the case reads in the manner “State vs ABC” etc. In criminal cases, the State is the prosecutor whose aim is to convince the court that the offence in question has been committed by the accused and to ensure that the court convicts him. However, the law expects the prosecutor to place before the court all evidences in his possession whether it is in favour of the accused or against him and leave it to the court to decide whether the accused really committed the offence or not. It should not be the prosecutor’s endeavour to obtain conviction of the accused by hook or by crook. The matters of evidence in any criminal prosecution are governed by the ‘Indian Evidence Act 1872’. The period of limitation within which the appeal against order of acquittal or conviction can be filed is provided in ‘Limitation Act 1963’. The various facets of criminal law and the manner of its application can be further understood by the discussion in the following chapter, which has been put in question answer form to make it more convenient and lucid.

2 FREQUENTLY ASKED QUESTIONS ( FAQs) We all have so many questions in our mind regarding the various aspects of criminal law but at times, we feel handicapped as far as having access to information on these aspects is concerned. We do not know whom to ask the various fundamental questions. Though the answer to most of our queries lies in the Code of Criminal Procedure but the language used therein is too technical for all of us to thoroughly understand the same. Though the criminal law is so extensive and vast that it can not be covered in its entirety in a single book, however an attempt has been made in this chapter to put the various basic aspects of the criminal law in question answer format in a very simple manner to enable the readers to get the answers to their queries in the language they readily understand. To understand the contents of this chapter, it is advised that the chapter in this book on ‘Salient features of CrPC’ is also read together followed by a reading of the Code of Criminal Procedure in its original form. 1. What is the complete procedure being followed after happening of a crime ? The procedure being followed by the police and the criminal courts in India (particularly in Delhi), after an offence has been committed, is as follows: w

Information or complaint regarding commission of an offence or offences is given to the Officer-in-charge of the police station (commonly referred to as Station House Officer or SHO, in short).

w

The said information or complaint is entered in the station/general diary by the police officer on duty and a FIR (First Information Report) is registered.

w

If on the basis of the FIR or otherwise, the SHO has reason to suspect the commission of a cognizable offence, he forthwith sends a report (occurrence report of the incident) to the concerned Judicial Magistrate (MM, in metros). (Generally, serious offences entailing punishment of 3 years or more are cognizable offences). In reality, the copy of the FIR itself is sent to the MM. The purpose for forthwith sending the copy of FIR to the concerned Magistrate is to keep the concerned Magistrate informed of the investigation of a cognizable

92

Courts, Police, Authorities & Common Man

w

offence so that he may be able to control the investigation and if required, to issue appropriate directions. Sending the report to the MM at the earliest minimise the possibility of manipulating the FIR and it ensures that the FIR was recorded at the date and time mentioned therein. It further ensures fair investigation. Unreasonable delay in sending the report to the MM weakens the prosecution case. (If the complaint/FIR does not disclose cognizable offence, then the police can not investigate the case without the order of the concerned Magistrate. In a non-cognizable case, the police just registers the complaint and refer the complainant to the concerned Magistrate).

w

The SHO or the Investigating Officer(IO) then under section 157(1) proceed to the scene of crime, make investigations and make efforts to arrest the offender. The police is empowered to gather evidence to bring the culprit to book and for that purposes have the power to question the persons who are likely to have relevant information and the police also have the power of search and seizure. {If the FIR does not disclose any offence, no investigation is permitted and the investigation proceedings or court proceedings on the basis of such an FIR can be quashed by High Court under section 482 Cr.P.C.}

w

During investigation, the police carries out arrest of the offender(s), search and seizure of relevant documents and things, call and interrogate and examine the witnesses and record their statements under section 161. {The statements under section 161 are not required to be signed by the witnesses. Even if the witness is compelled to sign it, the same does not cause any harm since the same is not admissible in evidence and can be retracted in court}

w

If evidence against accused is not sufficient, then on his arrest, he may be released under section 169 on his executing a bond that he will appear if and when so required. If evidence against him is sufficient, he is forwarded by the police to the Metropolitan Magistrate. The Magistrate may either release him on bail, or send him to police custody (Police Remand), or send him to Judicial custody (jail).

w

Police officer conducting the investigation i.e. the I.O. is under a duty to enter his investigation proceedings day by day in the police diary under section 172. The investigation has to be conducted without unreasonable delay.

w

As soon as the investigation is completed, the police report under section 173, which is popularly called “Challan” or “Chargesheet”,

Part III : Criminal Law Administration System

93

is filed by the SHO in the court of concerned MM, if police is satisfied that there is prima facie case for proceeding against the accused. ( If the police forms an opinion that there is not enough ground for proceeding against the accused, then it files a nil report or closure report. However, it is in the discretion of the Magistrate whether to accept such report or to order fresh investigation). Alongwith the chargesheet, the police also file all the documents and evidence that are gathered during investigation. w

On receipt of the report under section 173, the MM is expected to apply his judicial mind to the chargesheet and documents and decide whether he should take cognizance or not. He is not bound by the police opinion in the matter. He is required to ascertain whether any prima facie case exists against the accused person. If in this opinion, it exists, he issues process (i.e. summons or warrant) against the accused thereby taking the cognizance of the offence. If he is not satisfied, he order for fresh/more investigation under section 156(3). In certain cases, i.e. where the accused is a public servant and the offence is one committed by him in discharge of his official duties, the magistrate can not take cognizance unless prior sanction for prosecution is granted by the Govt.

w

The accused appears and the copies of the documents filed by the police including the chargesheet are supplied to the accused. In case, the offence is exclusively triable by the sessions court, the magistrate has to commit the case to the sessions court.

w

The accused through his counsel argues that no offence against him is made out and he is entitled to be discharged. Arguments are made by the accused’s counsel as well as by the prosecution on whether charge can be framed against the accused.

w

If after considering the chargesheet and the documents annexed with it, and after examining the accused and after hearing the arguments on charge, the Judge is of the opinion that the charge against the accused is groundless, he is obliged to discharge the accused (Section 239). [In a case instituted on a criminal complaint by private person, the Magistrate can discharge the accused at any previous stage also if he considers the charges against the accused to be groundless – section 245(2)]

w

If the Judge is of the opinion that there is a ground for presuming that the accused has committed an offence, he shall frame charges against the accused.

94

Courts, Police, Authorities & Common Man

w

The charge is read over to the accused and he is asked whether he pleads guilty of the offence charged or wants to contest the case.

w

If the accused pleads not guilty, then actual Trial of the case starts. The Judge fix a date for examination of the witnesses. The Judge, on application of the prosecution, issue summons to the prosecution witnesses. On the date fixed, Judge take evidence produced in support of the prosecution. The accused cross- examine the prosecution witnesses.

w

Then the accused is examined under section 313. He then is asked to produce his evidence. The accused files his written statement and applies to the court for issue of summons to defence witnesses for examination and cross examination. Such witnesses then give their statement in court in favour of the accused, followed by their cross examination by the prosecution.

w

The Trial concludes and on the basis of the evidence led before the court by the prosecution and the defence, the accused is either acquitted or convicted by the court.

w

If the accused is convicted, he can file an appeal to the court of Addl.Sessions Judge (in a case adjudicated by Magistrate) within 30 days. To ensure that he is not arrested and put in jail in pursuance of the judgment of the Magistrate, he has to move an application for bail and the judge is bound to extend his bail. The Addl. Sessions Judge hears the appeal. He may either allow or dismiss the appeal.

w

If the appeal is dismissed by the said sessions court, the accused is given 30 days to appeal to the High Court. However, in this case, the accused cannot have his bail extended as a matter of right. The moment his appeal is dismissed, the police take him into custody. Immediately, the accused move an application for bail. It is in the discretion of the Court to either extend his bail or send him to the jail. In most cases, the Judge send him to jail.

w

The High Court hears the appeal of the accused. Alongwith the appeal, the accused can file an application under section 389 CrPC for suspension of his sentence and for releasing him on bail during the pendency of the appeal. The High court may allow the said application, in which case, the accused is released from the jail pending the disposal of the appeal.

w

If the appeal is dismissed by the High Court also, then the accused can appeal to the Supreme Court.

Part III : Criminal Law Administration System

95

w

If the appeal is dismissed by the Supreme Court also, then the accused has no remedy except to undergo the sentence. However, the Supreme Court may release the accused on the sentence already undergone by the accused. But in such case, he is deemed to be convicted.

w

At any stage of a criminal proceeding in any court in India, the President (under article 72 of the Constitution of India) or the Governor of the concerned State (under Article 161) can invoke their power, either themselves or on the mercy petition of the accused/ convict, and can pardon him or reduce his sentence. While exercising such power, the President and the Governor are not bound by any technicalities of law and they proceed purely on humanitarian basis without being influenced by the judgment of the Court. The Government also can exercise its power to suspend, remit or commute the sentence under Section 432-433 Cr.P.C.

2. What is a First Information Report (FIR) ? What is the procedure for filing an FIR ? First information report is the information that a police officer receives about the commission of a crime. Provision for FIR in cognizable case is contained in Section 154 and that for non-cognizable case is contained in Section 155 Cr.P.C. Some of the salient features of the law regarding the FIR are : w

An FIR must be in writing, duly signed by the maker thereof. A copy of the FIR is required to be given to the informant free of charge.

w

Any person can lodge a FIR. It is not necessary for such person, who lodges it, to be actually present at the scene of incident.

w

An FIR must contain the place, date and time of incident. An elaborate description of the incident is also necessary. The basic purpose of filing an FIR is to record the true and correct version of the incident or commission of the offence.

w

An FIR can be filed at any police station in the country. There is no necessity that it needs to be filed only at the place where the offence has taken place. It is the duty of the police officer to ensure that it is sent to the police station which has jurisdiction over the matter.

w

A denial to register an FIR(which discloses commission of a cognizable offence) on the part of the police officer is illegal. In any such case, the informant may report the matter in writing to the Deputy Commissioner of Police.

96

w

Courts, Police, Authorities & Common Man

If the complaint discloses the commission of only non-cognizable offence, the police just registers the complaint and refer the complainant to the concerned Magistrate. It can not investigate the case without the order of investigation by the concerned Magistrate.

Once an FIR has been registered, the police has no power to cancel the same. The same can be quashed only by the High Court by exercising its extra ordinary jurisdiction under section 482 Cr.P.C. The police can not refuse to register FIR in case of cognizable offence. If it does not so register, then a complaint can be made to the higher authorities – DCP or Commissioner of Police. If still, no action is taken, then a Criminal Writ Petition under Article 226 of the Constitution of India can be moved in the High Court for direction to the police to register the FIR. [Whether an offence under IPC is cognizable or non-cognizable, can be found out by looking into First Schedule of Cr.P.C. In respect of offences under other laws other than IPC, the same can be found out by looking into IInd part of First Schedule]. In case a person wants action to be taken against the offender in a noncognizable offence, he can make a complaint to the police and/or file a criminal complaint in the court of concerned Judicial Magistrate under Section 190 Cr.P.C. The Magistrate’s court can direct the police under Section 156(3) to investigate the case ( in which case, the police registers the FIR in terms of the complaint and the normal procedure of investigation follows which culminate into filing of chargesheet by the police, upon which the Magistrate takes the cognizance) or the Court can take the cognizance on the complaint itself and summon the accused under Section 204. When several offences are alleged in the complaint to the police, if even one of them is cognizable, then the case shall be deemed to be a cognizable case in spite of the fact that other offences are non-cognizable. Section 155(4) The police can investigate a cognizable case without the order from the Magistrate but it can not investigate into a non-cognizable case without the orders of the Magistrate. However, it was held by Supreme Court in H.N.Rishbud vs State of Delhi AIR 1955 SC 196 that investigation of a non-cognizable offence by police without order of the Magistrate is only a curable irregularity and the trial in pursuance of such investigation is not vitiated. It was held by the Supreme Court in Madan Bala vs Suresh Kumar AIR 1997 SC 3104 that the provisions of the Code do not, in any way, stand in

Part III : Criminal Law Administration System

97

the way of a Magistrate to direct the police to register a case at the police station and then investigate the same. When an order for investigation under Section 156(3) is to be made, the proper direction to the police would be to register a case at the police station treating the complaint as the FIR and investigate into the same. 3. What to do if the police does not register the FIR on my complaint ? Under the law, as expanded by the Supreme Court from time to time, the police is bound to register an FIR on your complaint disclosing commission of cognizable (generally non-bailable) offence. However, if the police does not do so, you can send your complaint by post to the Commissioner of Police, who on being satisfied that the complaint discloses the commission of a cognizable offence, is bound to investigate the matter. One more effective remedy available to you is to file a criminal complaint against the offenders in the court of Magistrate. Under section 190 Cr.PC, the magistrate can take cognizance of an offence on such a complaint, just as he can take cognizance on the basis of the challan (chargesheet) filed by the police after investigation. On the complaint being filed by you, the magistrate has two options. Ø

The first option is that he can exercise his power under section 156(3) Cr.P.C and order the police to investigate the facts and allegations narrated by you in your complaint, in which case the police is bound to register an FIR ( by reproducing your complaint) and investigate the matter. The police after investigation file its report to the Magistrate. The report may either say that after investigation, no case is made out against the accuseds named in the complaint. Such a report is called ‘closure report’ by which the police request the court to close the case. The Magistrate may act upon the report and order for closing the case. However, if not satisfied, he may order for investigation afresh. If police is satisfied that there is prima facie case for proceeding against the accused, the report filed by the police is popularly called challan or chargesheet, in which case the Magistrate proceeds to take cognizance and issue summons to the accused and after hearing both the prosecution and the defence, frame the charges in writing.

Ø

The second option available to the Magistrate is that he can record your statement and the statement of any of the witnesses produced by you and on the basis of evidence so available before him, he can take cognizance and issue summons to the accuseds named in your

98

Courts, Police, Authorities & Common Man

complaint. The accused appear before the court, apply for his bail ( or if bail was earlier granted, then he apply for extension of his bail), the bail is granted by the court ( in case of bailable offence), he is given copies of the documents filed by you and he is given time to argue against framing of charges against him. Thereafter, the court proceeds and either frame charges against him or discharges him. It is necessary that you are personally present in the court when your criminal case is called. However, it has been held by certain High Courts that complainant can be represented by his attorney. The magistrate may dismiss your complaint under section 249 on account of your absence. The magistrate can also dismiss your complaint under section 203 if after perusing your complaint and considering your statement and the statements of your witnesses, he is of the opinion that there is no sufficient ground for proceeding. The dismissal of the complaint has the effect of discharging the accused. One more remedy which can be exercised if the police fail to register FIR on your complaint which discloses commission of cognizable offence, is to file a Criminal Writ Petition under Article 226 of the Constitution of India in the High Court. 4. What is the power of police to compel a person to appear before it ? The power of the police relating to compelling a person to appear before it and relating to his interrogation are prescribed in Sections 160 and 161 of Cr.P.C. As per Section 160, any police officer who is conducting an investigation can ask the following persons to appear before him : (i) who appears to be acquainted with the facts and circumstances of the case, whether on the basis of any information received or otherwise. Only such person can be called by the police officer who is within the limits of his police station or the adjoining police station. However, the police officer can ask the person to appear, only through an order to that effect in writing. The person is not bound to appear on verbal direction of the police officer. As can be seen, the power given to the police officer is very wide. If it appears to him that the person is acquainted with the facts and circumstances of the case under investigation, he can order such person to appear before him and such person is bound to appear before him. However, there is an exemption in case of a woman and a male person

Part III : Criminal Law Administration System

99

under 15 years of age. Such persons can be interrogated only at their place of residence. The State Govt. is empowered to frame rules directing the police officer to pay the reasonable expenses incurred by a person in appearing before him. Under Section 161, the police officer may ask questions from such person who is bound to truly answer all those questions which relate to the case. However, he is not bound to answer those questions the answers to which might expose him to a criminal charge or to a penalty/forfeiture. The police officer may reduce into writing the verbal statement of the person. However, the person is not bound to sign it. Even if he is forced to sign it, he can retract this statement later on. It is also important to discuss here the powers of the police to arrest. At times, it so happen that a person is called to the police station for asking some questions and he is arrested by the police there. Such arrest action is taken by the police officer by using the powers available to him under section 41 Cr.P.C. Under said Section, the police officer can arrest without an arrest warrant any of the following persons : (a) who has been concerned in any cognizable offence, or (b) a reasonable complaint has been made against him, or (c) credible information has been received regarding his involvement in a cognizable offence, or (d) a reasonable suspicion exists regarding his involvement in a cognizable offence The police officer usually resort to arresting the person called for interrogation by claiming that the officer has a reasonable suspicion regarding said person’s involvement in a cognizable office. 4A. What are the powers of the police to interrogate a person ? The police officer can require the attendance of the person, who appears to be acquainted with the facts and circumstances in relation to the commission of an offence, to appear before him. The person has to answer the questions that may be put to him, but is not bound to answer such questions that have a tendency to expose him to a criminal charge or penalty. However, the police officer can not compel a woman or a child of less than 15 years to attend the police station (section 160). The police can record the statement of the person under section 161, but the person can not be asked to sign such a statement. Even if he is forced to sign, it

100

Courts, Police, Authorities & Common Man

carries no weight in evidence. A self incriminating confession made to the police officer is inadmissible in a court of law. During interrogation, the police is bound to permit the person being interrogated to be interrogated in the presence of his advocate. The questioning/interrogation of a suspect/witness must be made only between sunrise and sunset. (Susheela Mishra vs Delhi Administration AIR 1983 SC 1153). Beating the accused or any other person to extract information during interrogation is not permissible. (State of A.P. vs Venugopal AIR 1964 SC 33). The Police officer can not insist a woman to appear at the police station. ( Nandani Satpathy vs P.L.Dani AIR 1978 SC 1025). If there is any mode of pressure – subtle or crude, mental or physical, direct or indirect – but sufficiently substantial, applied by the police for obtaining information from an accused strongly suggestive of guilt, it becomes compelled testimony violative of Article 20(3) of Constitution of India. (Nandani Satpathy vs P.L.Dani AIR 1978 SC 1025) 5. What is the law relating to Arrest ? Arrest means apprehension of a person by legal authority resulting in deprivation of his liberty. For instance, when a policeman apprehends a pick pocket, he is arresting the pickpocket; but when a dacoit apprehends a person with a view to extract ransom, the dacoit is not arresting the person but wrongfully confining him. Arrest of a person might be necessary under the following circumstances: 1) As a preventive or precautionary measure : If there is imminent danger of the commission of a serious crime (cognizable offence), arrest of the person intending to commit such crime may become necessary as a preventive measure (Section 151Cr.P.C.). There may be other circumstances where it is necessary as a precautionary measure to arrest a habitual offender or an ex-convict (Section 41(2) read with Section 110) or a person found under suspicious circumstances (Section 41(1)(b) &(d), Section 41(2) read with Section 109). (2) For securing attendance of accused at trial : When a person is to be tried on the charge of some crime, his attendance at the time of trial becomes necessary. If his attendance is not likely to be ensured by issuing a notice or summons to him, probably his arrest and detention is the only effective method of securing his presence at the trial. (Section 87, 204).

Part III : Criminal Law Administration System

101

(3) For obtaining correct name and address : Where a person, on being asked by a police officer, refuses to give his name and address, then under certain circumstances, it would be proper on the part of the police to arrest such a person with a view to ascertain his correct name and address (Section 42). (4) For removing obstruction to police : Whoever obstructs a police officer in the execution of his duty is liable to be arrested then and there by such a police officer. This is essential for effective discharge of police duties. (Section 41(1)(e)) (5) For retaking a person escaped from custody : A person who has escaped from lawful custody is liable to be arrested forthwith by the police. (Section 41(1)(e)) The decision to arrest should be made fairly having regard to the liberty of the individual and the interests of the society. Ideally, a judicial officer is best suited to decide such issues with a fair measure of reasonableness, impartiality and detachment. Therefore, basically it is for a magistrate to make an arrest-decision on the information generally obtained from the police or the complainant. If the magistrate makes a decision to arrest, he would issue a warrant of arrest. An arrest warrant is a written order signed, sealed and issued by a magistrate and addressed to a police officer or some other person specially named and commanding him to arrest the body of the accused person named in it. Arrest with a warrant An arrest warrant may be issued by a magistrate after taking cognizance of any offence, whether cognizable or non-cognizable.(section 87, 204). If the case in which the cognizance has been taken is a summons case (i.e. offence punishable with upto 2 years imprisonment), a summons shall be issued to the accused person in the first instance for his attendance in court. If the case is a warrant case (i.e. offence punishable with more than 2 years imprisonment), a warrant for the arrest of the accused person may normally be issued for causing the accused to be brought before the court. In practice, however, there is no occasion for the magistrate to issue arrest warrant after taking cognizance of a cognizable offence on a police report because the police report is submitted to the magistrate after the police had completed the investigation and during the investigation the police has the power to arrest without warrant a person involved in the commission of a cognizable offence (section 41). The arrest warrant can be executed anywhere in India (Section 77).The police officer arresting a person under an arrest warrant is under a duty to show him the arrest warrant, if so required by him (Section 75).

102

Courts, Police, Authorities & Common Man

Arrest without a warrant There might be circumstances where prompt and immediate arrest is needed and there is no time to approach a magistrate and obtain a warrant from him. For instance, in a case where a serious crime has been perpetrated by a dangerous person and there is every chance of the person absconding unless immediately arrested, it would be unwise to insist on the arrest being made only after obtaining a warrant from a magistrate. There may be occasions when preventive action may be necessary in order to avert the danger of sudden outbreak of crime and immediate arrest of the trouble maker may be an important step in such preventive action. In such cases, often the arrest decision will have to be made by a person other than judicial magistrate. Thus, the Criminal Procedure Code empowers the police to arrest without warrant under some such situations (section 41, 151). The police can pursue a person in any place in India to arrest without warrant (Section 48). However, to ensure that such powers are not misused by the police, the Code stipulates in Section 56 that every person arrested without warrant is required to be produced before the judicial magistrate within 24 hours of his arrest (section 56). Further detention is illegal unless permitted by a competent judicial magistrate (section 57, 167). This is one of the fundamental rights also enshrined in Article 22(2) of the Constitution of India. Under Section 58, the SHO of the police station is under a duty to report to the District Magistrate or SDM the cases of all persons arrested without warrant. General : If the person to be arrested is available in any premises, then the police officer acting under arrest warrant or having authority to arrest can enter into such premises (Section 47). The person arrested shall not be subjected to more restraint than is necessary to prevent his escape (Section 49). If the person is in custody but upon investigation it appears to the SHO of the police station that there is not sufficient evidence or reasonable ground or suspicion to justify the forwarding of the accused to a magistrate, then instead of producing him before the magistrate, he can release him on his executing a bond ( with or without sureties) to appear before the magistrate if and when required (Section 169)

Part III : Criminal Law Administration System

103

Execution of arrest warrant in other State/District : If the arrest warrant is to be executed in some other State/District, then the Court issuing it can adopt either of the following two methods : I. The court can direct the warrant to a police officer in its jurisdiction. The police officer then take it to a Executive Magistrate or SHO of the police station of the area where the warrant is to be executed. The said Magistrate/SHO then endorse his name on the warrant. Such endorsement authorizes the officer (to whom the warrant is directed) to execute the same. The local police is under a duty to assist him in executing the warrant, if so required by him. In extreme situation, if there is a reasonable belief that taking endorsement may delay the matter which delay may prevent the execution of the warrant, the police officer may execute the same without such endorsement.(section79) OR II. The court may forward the warrant alongwith FIR and other documents, by post or otherwise, to any Executive Magistrate (EM) or District Superintendent of Police (DSP) or the Commissioner of Police (CP) of the area where the warrant is to be executed. The said authority is then bound to endorse his name on the warrant. If practicable, the said authority causes the warrant to be executed through his officers. (section 78) If the court which issued the warrant is more than 30 km away from the place of arrest or is farther than the EM or DSP or CP of the area in which the person is arrested, then the arrested person should be produced before such EM or DSP or CP. However, if there is an endorsement on the warrant under Section 71, then there is no need to produce him before them. He can be released on bail after taking bond and surety from him and asking him to appear before the issuing court on the date and time mentioned in the warrant. (section 80) If it appears to the EM or DSP or CP that the arrested person is the same person whose arrest is ordered by the court issuing the warrant, then he shall issue a transit remand directing the police to take the arrested person to the court issuing the warrant. However, if the offence is bailable or there is an endorsement on the warrant under Section 71 and such person is ready and willing to give bail to the satisfaction of such EM or DSP or CP, then the EM or DSP or CP should take such bail or security, release the person and forward the bond to the court which issued the warrant.

104

Courts, Police, Authorities & Common Man

If the offence is non-bailable, he has to be deported back under a transit warrant in custody to the court issueing the warrant. However, in such case, the arrested person is entitled to move a bail application before the court of Chief Judicial Magistrate or the Sessions Judge of the area where he is arrested and the said court can release him on bail after considering the FIR and other documents annexed with the warrant. ( Section 81) 6. What are bailable and non-bailable warrants ? When are these issued ? As discussed earlier, an arrest warrant may be issued by a magistrate after taking cognizance of any offence, whether cognizable or noncognizable. ( section 87, 204). If the case in which the cognizance has been taken is a summons case ( i.e. offence punishable with upto 2 years imprisonment), a summons shall be issued to the accused person in the first instance for his attendance in court. If the case is a warrant case ( i.e. offence punishable with more than 2 years imprisonment), an arrest warrant ( i.e. warrant for the arrest of the accused person) may normally be issued for causing the accused to be brought before the court. Arrest warrant is of two types : bailable and non-bailable. Bailable warrant is a sort of notice issued by the magistrate, generally to the police to arrest the person concerned named in the notice with the condition that if the said person execute a bond with sufficient sureties (of the amounts mentioned in the warrant) that he will appear before the court on the date and time mentioned in the warrant and thereafter also, then the police officer serving the said warrant shall release the person concerned from his custody on his executing such a bond (Section 71). Non-bailable warrant(NBW) is also a sort of notice, generally to the police to arrest the person concerned named in the notice but without any condition. The police officer to whom this warrant is addressed is obliged to trace out the person concerned and to arrest him and to produce him before the court without any delay (Section 76). It is normally issued when the person concerned does not appear before the court despite receipt of summons and/or bailable warrant. The NBW may be cancelled by the court when the person, against whom NBWs have been issued, appear in the court with an application for cancellation of NBWs explaining the reasons for his not appearing earlier. If the court is satisfied, it cancels the NBWs , but if it is not, then it sends him to jail for a few days so that he does not repeat it again. Bailable warrants are issued in criminal cases as well as civil cases. In

Part III : Criminal Law Administration System

105

criminal cases, non-bailable warrants (NBWs) are generally issued by the court when the person against whom bailable warrants have been issued fail to appear in the court despite receiving the warrant. However, this does not prevent the court from issueing the non-bailable warrants in the first instance if the court is of the opinion that the person concerned may not appear on receipt of summons or bailable warrants ( Section 87). 7. What happens if I do not appear in court even after receiving summons as an accused in a criminal case? If a person does not appear before the criminal court on the day mentioned in the summons served upon him, then the court may issue bailable warrants against him to ensure that next time he appears before the court. However, if the person concerned does not appear even on the next date, despite service of bailable warrants upon him, the court may take a serious view and may issue non-bailable warrants against him to compel his appearance before the court on the next date. However, if the person concerned does not appear even after issuance of non-bailable warrants against him, the court may draw a inference that he has absconded and is concealing himself deliberately so that the warrant can not be executed. In such a situation, the court may proceed under Section 82 CrPC and declare him as Proclaimed Offender (PO) by publishing a notice under section 82 in the newspaper and affixing a copy thereof in the area of the person concerned. The court may simultaneously order for attachment of the property ( moveable or immoveable) of the person concerned. If later on, at a subsequent stage, the person concerned is traced out, he is produced before the court and if the court is not satisfied with his explanation for his non-appearance on earlier occasions, the court may send him to jail. Thereafter, the case proceedings would start from the stage at which these were when the summons were issued against the aid person. One must remember that if summons are sent by registered post, then endorsement by postman that the witness refused to take the delivery of the summons may be treated by the court as due service of summons (Section 69) 7A. If I am called as a witness by the criminal Court and I do not appear, what happens ? Such a situation is dealt with in Section 350 and 349 of Cr.P.C. The failure to attend the court may be due to valid and just reasons or may be deliberate.

106

Courts, Police, Authorities & Common Man

If the failure to attend the court after receiving summons as witness is due to just and excusable reasons, the court can excuse the non-attendance. However, if the witness without any just excuse neglect or refuse to attend the court on the given day and time, the court may deem it as an offence and try him by summary procedure and give him opportunity to show cause as to why he should not be punished. Depending upon his response, the court can sentence him. However, there is no provision for imprisonment, only fine can be imposed. The maximum fine which can be imposed is Rs.100/-. However, as per Section 349, if a person has been called by the court to produce any document or thing and fails to produce the same on the given day and time and does not given any excusable explanation for such failure, the court may sentence him for up to 7 days. If he produce the thing in the meanwhile, he is released from custody. However, if he still persists with refusal, he may be tried under Section 345 or 346 of Cr.P.C. 8. What is the sequence of events before and after Arrest ? An offence is committed. FIR is lodged naming some persons as probable accused. The police conducts investigation. During investigation, the police arrest persons who appears to be connected with the commission of offence. It is the duty of the police officer arresting the accused without warrant to tell him the full particulars of the offence for which he is being arrested and the reasons for his arrest. ( section 50). The arrested person can not be kept by the police in lock up for more than 24 hours. If the police finds that it is unable to complete the investigation in 24 hours, it is bound to produce the arrested person (accused) before the concerned Magistrate. When the police produce the accused before the Magistrate, it makes an application that the investigation is not yet complete and that it needs the accused for interrogation in connection with the commission of the offence and therefore the custody of the accused may be given to them for some more days. The giving of custody of the accused to the police in this manner is called ‘police remand’. In such a situation , there are three possibilities : a.

The Magistrate may agree with the police and grant remand to the police. However, the Magistrate can not give police remand for more than 15 days in total.

b.

The Magistrate may not agree with the police and may be of the opinion that nothing is to be found out from the accused and that the police is requesting for remand only to torture him in custody. In this situation, the Magistrate reject the application of the police and send

Part III : Criminal Law Administration System

107

the accused to judicial custody i.e. jail. During investigation by police, the magistrate can authorize the detention of the accused person in judicial custody beyond 15 days if he is satisfied that adequate grounds exist for doing so. However, during investigation, he can not keep him in judicial custody for more than 60 days in case of offences punishable with less than 10 years imprisonment and for more than 90 days in case of other offences. While the person is in judicial custody, he is notionally in the custody of the court. (The incidents of torture mostly happen in police custody. In the jail, the accused has various safeguards and it is difficult to inflict torture upon him. The Hindi film movies exaggerate the conditions in jail. Particularly, the Tihar Jail in Delhi is perhaps the best jail in the country where the prisoners feel themselves to be the part of the society. The hygienic conditions in the kitchen there equals that of a Five star hotel. Computer courses are organized for the inmates of the jail. Inter-jail competitions are organized where the inmates display their skills and talent.) c.

The Magistrate may consider the application moved on behalf of the accused by his lawyer for grant of bail and may grant interim bail and fix a date for arguments on the bail application. On the subsequent dates, the arguments are made by the accused’s lawyer and the public prosecutor. The bail application is either allowed in which case the interim bail is confirmed, or the bail application is dismissed.

The investigation is considered to be completed on the day when the challan/chargesheet is filed in the court by the police (Section 173). If the investigation is not completed (i.e. if challan is not filed) by the police within 60 days from the date of arrest of the accused, the Magistrate is obliged to release him on bail on the 61st day. However in case of serious offences punishable with death, life imprisonment or imprisonment above 10 years, this period, within which the challan can be filed, is 90 days (Section 167). It must always be remembered that an accused becomes entitled to be released on bail under section 167 only if the police fails to file the chargesheet in the court within 60 or 90 days, as the case may be. However, if the police files it before the expiry of 60/90 days, say on 59th day or 89th day, then the accused can not claim any right to be released on bail under section 167. 9. What are the rights of a person who is arrested ? (1) Right to be informed of the grounds for arrest :

108

Courts, Police, Authorities & Common Man

In every case of arrest with or without a warrant, the person arresting shall communicate to the arrested person, without delay, the grounds for his arrest (Section 50,55,75). This is a precious right of the arrested person and has been recognized by the Constitution has one of the fundamental rights (Article 22(1) of the Constitution of India). (2) Right to be informed of the right to bail : Every police officer arresting without a warrant any person accused of a bailable offence is required to inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf. (Section 50(2). (3) Right to be produced before a magistrate without delay In case of every arrest, whether the arrest has been made with or without a warrant, the person arresting is required, without unnecessary delay and subject to the provisions regarding bail, to produce the arrested person before the magistrate or court having jurisdiction in the case (Section 56, 76). (4) Right of not being detained for more than 24 hours without judicial scrutiny : In case of every arrest, the person making the arrest is required to produce the arrested person without unnecessary delay before the magistrate and it has been categorically provided that such a delay in no case shall exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the magistrate’s court ( Section 57, 76). This right has been incorporated in the Constitution as one of the fundamental rights (Article 22(2)). It was held by the Supreme Court in Khatri (II) vs State of Bihar (1981) 1 SCC 627 that this healthy provision contained in Section 57 enables the magistrates to keep check over the police investigation and it is necessary that the magistrates should try to enforce this requirement and where it is found disobeyed, come down heavily upon the police. (5) Right to consult a legal practitioner Both the Constitution and the provisions of the Criminal Procedure Code recognize the right of every arrested person to consult a legal practitioner of his choice. The right begins from the moment of arrest. The consultation with the lawyer may be in the presence of the police officer but not within his hearing (Section 303 and Art.22(1) )

Part III : Criminal Law Administration System

109

(6) Right of an arrested indigent person to free legal aid and to be informed about it It was held by the Supreme Court in Khatri (II) vs State of Bihar (1981) 1 SCC 627 that the State is under a constitutional mandate implicit in Article 21 to provide free legal aid to an indigent accused person. The Court cast a duty on all magistrates and courts to inform the indigent accused about his right to get free legal aid. The Supreme Court went a step further in Suk Dass vs U.T. of Arunachal Pradesh (1986) 2 SCC 401 and laid down that this right can not be denied if the accused failed to apply for it and held that unless refused by the accused, the failure to provide free legal aid to an indigent accused person would vitiate trial, leading to setting aside of the conviction and sentence. [This right should not be confused with right of free legal aid to accused at State expense in a trial in a sessions court, as provided in Section 304 Cr.P.C. If the accused is not represented by a pleader in a sessions trial and it appears to the court that the accused does not have sufficient means to engage a pleader, it shall assign a pleader for his defence at the expenses of the State] (7) Right to be examined by a medical practitioner If any arrested person alleges, at the time when he is produced before a magistrate or at any time during the period of his detention in custody, that the examination of his body will afford evidence which will disprove the commission of any offence by him or which will establish the commission by any other person of any offence against his body, then the magistrate, on the request of the arrested person, is required to direct the examination of his body by a registered medical practitioner. ( However, the magistrate may not give such a direction if he considers that the request for examination has been made by the arrested person for the purpose of vexation or delay or for defeating the ends of justice) ( section 54). It was held by the Supreme Court in Sheela Barse vs State of Maharashtra (1983) 2 SCC 96 that the arrested person must be informed by the magistrate about his right to be medically examined in terms of Section 54.

The police officer arresting a person under an arrest warrant is under a duty to show him the arrest warrant, if so required by him ( Section 75). The matter regarding rights of arrested persons was deliberated at length by the Supreme Court in Dilip K.Basu vs State of West Bengal 1997(7)

110

Courts, Police, Authorities & Common Man

Supreme 169 and certain procedure/guidelines were laid down by the Court to be followed by the police in the matter of arrest : v The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags and their designations. v The person who arrests must prepare a memo of arrest, at the time of arrest, in the presence of a family member of the arrestee or a respectable person of the locality. It should mention the date and time of the arrest as well. v The person must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained. v In case a person has been arrested, he has every right to know the ground for arrest. v Such person cannot be kept in detention for more than 24 hours without being produced before a magistrate. v Such person has a right to have a lawyer even during interrogation. He has a right to remain silent and also entitled to free legal aid. v Such person should not be handcuffed. Such handcuffing is only allowed after an order of the court in the interest of security. v A woman or a child below 15 years of age cannot be forced to go to police station for interrogation. v If the offence alleged is of such a nature that the accused needs to be medically examined, then it shall be done at the instance of a police officer not below the rank of a sub inspector. v If a person is tortured by the police, then he can bring the incident to the light of the Magistrate when he is produced before him. In such a case, the magistrate is obliged not to send the person to the police custody. Instead, the magistrate can order for his medical examination and/or can send him to the judicial custody i.e. jail so that any further possibility of torture at the hands of the police or any other person is ruled out. 10. What should I do if I am arrested by the police? If you are arrested and during investigation, the SHO thinks that there is not sufficient evidence against you or that there is no need to forward you to the magistrate, the SHO, by exercising his power under section 169

Part III : Criminal Law Administration System

111

CrPC, may release you on your executing a bond ( with or without sureties) that you will appear before the magistrate if and when so asked. When you are so released, the police will continue its investigation and on conclusion of the same, it may either file a closure report or a chargesheet. If a closure report is filed, then you are not required to appear before the magistrate’s court and you are deemed to be discharged. However, if a chargesheet is filed by the police against you, then upon the magistrate taking cognizance, you are issued summons to appear before the court on a particular day. You are given copies of documents filed by the police and given time to argue against framing of charges against you. Thereafter, the court proceeds and after hearing the prosecution and your counsel, may either frame charges against you or may discharge you. If you are arrested and during investigation the SHO thinks that there is sufficient evidence against you, he may forward you to the magistrate. At this juncture, you can move an application for bail. If the offence is bailable, the magistrate is bound to release you on bail. If the offence is non-bailable, then it is in the discretion of the magistrate whether to grant you bail or not. He may either allow your bail application or dismiss the same. If you are arrested and the investigation can not be completed within 24 hours, and there are grounds for believing that the allegation or information against you is well founded, then the SHO or the IO( who can not be below the rank of a Sub Inspector) is bound to forward you to the magistrate, alongwith the copy of the police diary showing the investigation conducted so far. At this juncture, you can move an application for bail. If the offence is bailable, the magistrate is bound to release you on bail. However, if the offence is non-bailable, then it is in the discretion of the magistrate whether to grant you bail or not. He may either allow your bail application or dismiss the same. 11. What is the remedy available to me if I am unlawfully detained or arrested? Can I file case against police ? Can I claim compensation from police ? If you are unlawfully detained/arrested by any person including a police officer, it amounts to an offence of false imprisonment. ( Under Section 43 Cr.P.C., even a private person can arrest (i)a person having committed non-bailable and cognizable offence in his presence or (ii)any proclaimed offender. However, he is bound to hand him over to a police officer without unnecessary delay). A civil wrong is called a tort while a criminal wrong is called a crime or felony. The remedy to the victim in case of a tort is to file a claim for

112

Courts, Police, Authorities & Common Man

compensation in a civil court. The remedy in case of a crime is to prosecute the offender in a criminal court. In tort, the injured party files a suit in a civil court, with the dominant purpose of getting compensation for the injury suffered by him. In criminal law, the proceeding is initiated by the State in a criminal court with the purpose of punishing the person who has committed the crime. There are certain acts which constitute a civil wrong as well as a crime (criminal offence). Such acts are known as felonious torts. Some of these are negligence, nuisance, defamation, false imprisonment etc. Where without any lawful justification, there is a restraint imposed on the liberty of the person for any period whatsoever, it is called false imprisonment. To constitute a wrong under civil law, the restraint has to be total. If (i) you are allowed to go through the other direction or (ii) you are allowed to go back or (iii) if the place has the means of escape, it can not be said to be a case of false imprisonment under the law of torts. However, in criminal law, it is immaterial whether the restraint is total or partial. If the restraint is partial and you are prevented from going in a particular direction only where otherwise you have a right to go, then it constitute the offence of ‘wrongful restraint’ under Section 339 of IPC which is punishable with upto 1 month imprisonment and/or with fine upto Rs.500. If the restraint is total and you are prevented from going out of certain circumscribed limits, then it constitute the offence of ‘wrongful confinement’ under Section 340 of IPC which is punishable with upto 1 year imprisonment and/or with fine upto Rs.1000/-. Quite often, the police arrests people under Section 151 Cr.P.C. (under this section, the police officer can arrest without arrest warrant any person whom he knows is planning to commit a cognizable offence, if there is no other way to prevent the commission of such offence). The police for justifying its act of arrest take recourse to Sections 107 to 116 of Cr.P.C. However, the arrested/detained person can still make out a case of false imprisonment. In State of UP vs Tulsi Ram Patel (AIR 1971 SC) it was held that if an officer wrongfully orders arrest while acting in his official capacity, he would be liable for committing offence of false imprisonment. If the public servant (a police officer is a public servant) having authority to make arrests, knowingly exercises that authority in contravention of law and effects an illegal arrest, he can be prosecuted for an offence under

Part III : Criminal Law Administration System

113

Section 220 IPC. Following remedies are available to you in case you are unlawfully detained or arrested : (1) Self help: a person is always authorized to use reasonable force to escape from detention instead of waiting for legal action, in exercise of his right of private defence in accordance with the provisions contained in Section 96 to 106 IPC. (2) Habeas Corpus: A writ Petition for Habeas Corpus can be filed under Article 226 in the High Court or under Article 32 in the Supreme Court by any relative or friend or any other well wisher of the detained person. It is a speedier remedy for procuring the release/production of a person illegally detained. (3) Criminal complaint in the Magistrate Court under Sections 342 to 348, 220 and such other appropriate sections of IPC. (4) Suit for damages : You can also claim compensation from the police on account of your unlawful detention, by filing a civil suit for damages in a civil court. 11A. What is the power of police to compel a person to appear before it? The power of the police to call a person to appear before it is provided by Section 160 Cr.P.C. Following things are relevant to know in this regard : (1) Only a police officer making the investigation into any case can use such a power. He is generally called Investigating Officer (I.O.). No other police officer can exercise such power. (2) He can call the person to appear before him only by a written order. A person is not bound to appear before the police officer on his verbal order. (3) He can call only a person living within the limits of his police station or within the limits of any adjoining police station. (4) He can call only that person who appears to him, whether from the information given or otherwise, to be acquainted with the facts and circumstances of the case under investigation. (5) A male person below 15 years or any woman can not be called to the police station. They can be asked questions by the police officer only at their residence.

114

Courts, Police, Authorities & Common Man

(6) The person attending in pursuance of the order of the police officer can require the police officer to pay the reasonable expenses incurred by him for such attendence, depending upon the rules framed, if any, by the State Govt. in this regard. 12. What is the law relating to issue of summons and search warrant to compel the production of things, documents etc. ? This subject is dealt with in Cr.P.C. in Chapter VII in sections 91-105. If a court is of the opinion that a certain document or other thing is necessary for the purposes of the trial of the case, it may issue summons under section 91 to the person in whose possession such document or thing is believed to be, requiring him to produce the same before the court at the time and place mentioned in the summons. Such person is not under an obligation to attend personally. He may send the same through some other person. The SHO of a police station also can issue a written order to a person to produce a document or thing believed by him to be necessary for the purposes of any investigation or enquiry. If the court is of the opinion that the person against whom a summon to produce a thing has been issued would not produce the same or if it is not known as to in whose possession such thing is lying, then the court may issue a search warrant to search the place where the desired document or thing is believed to be available (Section 93). It is the duty of the police to search/inspect the place or part strictly according to its description in the search warrant and not beyond. A Judicial magistrate or SDM can issue a search warrant authorising any police officer above the rank of a constable to enter a premises and search for stolen goods, objectionable articles etc. as detailed in Section 94. The search procedure to be followed by a person ( including police officer) executing the search warrant is prescribed in Section 100 Cr.P.C. : (i) Before making search of a premises, he must call, for witnessing the search, 2 or more independent and respectable inhabitants of the said locality or of any other locality if no such person from that locality is willing to be a witness to the search. (ii) The search must be made in their presence. (iii) A list of the things seized during search and the places where these were found, is required to be prepared by the officer and must be got signed by such witnesses.

Part III : Criminal Law Administration System

115

(iv) Such witnesses can not be compelled by the police to attend the court as a witness, however, court may specially summon them but only if required. (v) The occupant of the place or any person on his behalf must be permitted to attend during search. (vi) A copy of the list prepared as above and signed by the said witnesses must be delivered to him. (vii) If any person in/about such premises is reasonably suspected of concealing about his person any article for which search is to be made, then body of such person may also be searched. A list of things taken from his possession should be prepared and copy thereof must be given to him. If a woman is so searched, she shall be searched by another woman with strict regard to decency. Quite often, the police do not comply with the requirement of arranging 2 independent witnesses and plant its own witnesses and take the excuse that independent witnesses were not forthcoming to witness the search. It was held by Punjab & Haryana High Court in Sadhu Singh vs State of Punjab (1997) 3 Crimes 55 that a streo-type statement of non-availability of any public witness will not be sufficient, particularly, when at the relevant time, it was not difficult to procure the services of public witnesses. Though there can be cases when the public witnesses are reluctant to join or are not available, but the prosecution must show a genuine attempt having been made to join public witnesses. Search without search warrant (Section 165) A police officer under following special circumstances is authorized to search a premises without a search warrant : (a) the SHO or I.O. (investigating officer of the case) has reasonable grounds for believing that anything (which is necessary for the purposes of an investigation into any offence which he is authorized to investigate) may be found in a place (b) such place must be within the jurisdiction of his police station (c) in his opinion, such thing can not otherwise be obtained without undue delay, then he may search for such thing at such place However, to make a search without a search warrant, he must fulfill the following conditions : (1) before proceeding to make search, he must record in writing the

116

Courts, Police, Authorities & Common Man

grounds of his belief and must specify therein, as far as possible, the thing for which search is to be made (2) he must conduct the search himself personally, if practicable. (3) If he is not able to conduct search personally, he may authorize by order in writing any subordinate officer. In the order, he must specify the place to be searched and also the thing to be searched, as far as possible. Before authorizing subordinate officer, he must record the reasons in writing why he is not able to carry out the search personally (4) He must forthwith send the copies of the writings recorded by him in (1) and (3) above to the nearest magistrate empowered to take cognizance of the offence (5) Copies of these writings must be given free of cost to the owner/ occupier of the place searched if application in this regard is made by him to the magistrate (6) Provisions of section 100 regarding procedure for search applies to search under this section also Under Section 153, the SHO can enter any place within his jurisdiction without a search warrant for the purpose of inspecting or searching for any false weights, measures or instruments if he has reason to believe that such things are kept therein. If he finds these during search, then he may seize the same and must forthwith give information of such seizure to the concerned magistrate. Seizure (Section 102) Any police officer can seize any property which may be alleged or suspected to have been stolen or which may be found under circumstances which create suspicion of the commission of any offence. This includes the power to seize/freeze the bank account also. He must forthwith report the seizure to the concerned magistrate. If he is subordinate to the SHO (Station House Officer i.e. officer in charge of the police station), then he must forthwith report the seizure to the SHO also. 13. How to know whether an offence is bailable or non-bailable, cognizable or non-cognizable ? Offences under the Indian Penal Code are classified on the basis of various criterion like Cognizable & Non-cognizable, bailable & non-bailable. The classification of various offences is given in the Schedule I of the Cr.P.C. A cognizable offence is one for which a police officer can arrest the

Part III : Criminal Law Administration System

117

accused person without any warrant or authority issued by a magistrate and can investigate into such a case without any order or directions from the magistrate. ( see section 2(c) A non-cognizable offence is one in which a police officer has no authority to arrest without warrant. He does not have the power to investigate into such offence without the authority given by a magistrate. ( see section 2(l) Generally speaking, all serious offences are considered as cognizable. Normally, offences which are punishable with imprisonment for 3 years or more are cognizable and those punishable with less than 3 years imprisonment are non-cognizable. However, whether an offence is cognizable or non-cognizable depends upon whether it is shown as cognizable or non-cognizable in the First Schedule. Bailable offence means an offence which is shown as bailable in the First Schedule or which is made as bailable by any other law. Any offence, other than this, is non-bailable. ( see section 2(a) Cognizable offences( these are generally serious offences) are generally non-bailable and non-cognizable offences are generally bailable. If a person accused of a bailable offence is arrested, he has a right to be released on bail. However, if a person is arrested in a non-bailable offence, he can not claim bail as a matter of right. But it does not mean that a person can never be granted bail in a non-bailable offence. The procedure in such a case is that he applies for bail to the concerned court ( given in the First Schedule) which allows or rejects the same after proper consideration. The First Schedule of Code of Criminal Procedure specifies as to what is the maximum punishment provided for offences under the various sections of the Indian Penal Code, which are bailable offences, which are nonbailable offences, etc. The IInd part of this Schedule specifies these parameters in respect of offences under any other law other than Indian Penal Code : (a) If offence is punishable with death, imprisonment for life or for imprisonment for more than 7 years, the offence is cognizable, is nonbailable and can be tried only by the sessions court. (b) If offence is punishable with imprisonment of more than 3 years but less than 7 years, the offence is cognizable, non-bailable and can be tried by the court of Metropolitan Magistrate.

118

Courts, Police, Authorities & Common Man

(c) If offence is punishable with imprisonment for less than 3 years or with fine, the offence is non-cognizable and is bailable and can be tried by Metropolitan Magistrate. 14. Who is a Proclaimed Offender(Bhagoda) ? What happens when a person is declared proclaimed offender ? Section 82 of Cr.P.C. incorporates the concept of ‘Proclaimed Offender’ or ‘PO’. If a court is of the opinion that a certain person against whom a warrant* ( bailable or non-bailable) has been issued by it is trying to hide away from the police so that the warrant can not be executed, then the court may publish a proclamation in writing thereby requiring him to appear on a particular day and at particular time and at a particular place (he is given at least 30 days from the date of publication). The proclamation is published in the following manner : (a) it is publicly read in a proper place in the area where the said person ordinarily resides (b) it is pasted on some prominent portion of the house or the area where he ordinarily resides (c) a copy of the proclamation is pasted at some prominent place in the court (d) a copy of the proclamation may also be published in a daily newspaper which has circulation in the area where that person ordinarily resides. (However, this is done if the court thinks it fit). Once a person is so declared a P.O. under section 82, the court may order for attachment of any property (whether moveable or immoveable) belonging to the said person under section 83. However, it may so happen that some other person or persons may also have some interest in the property so attached. In that case, such person(s) under section 84 may file their claim/objections against such attachment in the court within 6 months from the date of attachment. This is enquired into by the court and is allowed or disallowed in whole or in part by the court. If the claim is disallowed, the person may file a suit within one year of such order to establish his right/claim in respect of the property in question. If the PO appears within the time mentioned in the proclamation, the court make an order thereby releasing the property from attachment. However, if he does not so appear, the property is at the disposal of the state government which may dispose it off after first disposing off the

Part III : Criminal Law Administration System

119

claim/objection, if any, against such attachment. However, if the property is of such a nature that it is likely to decay with time or if the court is of the opinion that the sale would be for the benefit of the owner, the court may cause the property to be sold at any time it thinks fit. If the PO appears before the court himself or is brought before the court by the police after arresting him within 2 years from the date of attachment and he proves that he did not hide to avoid the warrant and that he was not aware of proclamation and thus he could not appear within the specified time and if the court is satisfied, then the property or the proceeds of the property after deducting the expenses of attachment are returned to him. In practice, if a PO appears after the expiry of the specified time, the judicial magistrates these days usually take a harsh stand and send him to judicial custody for at least 2-3 days. * warrant is issued by the court against a person when despite summons, notices etc. of the court, the person concerned does not appear before the court or if it appears to the court that he will not obey the summons. The warrant is usually effected through the police machinery of the place where the person concerned ordinarily resides or carries on business. 15. What is Kalandra ? Kalandra is a sort of notice issued under section 107 against a person against whom there is an information that he is likely to commit breach of peace or disturb the public tranquility or any other wrongful act leading to breach of peace or disturbance to the public. Such a show cause notice is issued to such person by the Executive Magistrate having jurisdiction over the area where the breach of peace or disturbance is apprehended or where the person likely to create such problem is available. The notice requires such a person to show cause why he should not be made to execute a bond for keeping peace and good behaviour, for a period up to one year. If it appears to the Magistrate that the breach of peace can not be prevented otherwise than by immediate arrest of the alleged person, the Magistrate may issue his arrest warrant. If it appears to the police officer that there is a likelihood of a cognizable offence taking place, then the police officer can arrest the person planning to commit such offence, without warrant. (section 151) In Delhi, the Asst. Commissioner of Police (ACPs) are generally delegated the power to function as Executive Magistrate for the purpose of proceedings of kalandra for the area falling under their respective

120

Courts, Police, Authorities & Common Man

jurisdictions. (under section 20(5), the State Govt. can confer all or any of the powers of the Executive Magistrate in relation to a metropolitan area upon the Commissioner of Police. Metropolitan area is an area having population of more than 10 lakh people and declared as such by the State Govt. by a notification under section 8). Generally, the kalandra is made by the police when there is clash between two groups or there is a public brawl etc. 16. What is the remedy in the criminal law for removal of public nuisances ? Public nuisance is both a civil wrong as well as a criminal wrong. A person aggrieved by the same can file a suit for damages/compensation in a civil court against the person causing the public nuisance. In criminal law, public nuisance is defined in section 268 IPC. As per this, a person is guilty of public nuisance - who does any act or is guilty of an illegal omission - which causes - any common injury, danger or annoyance - to the public, or - to the people in general who dwell or occupy property in the vicinity, or - which must necessarily cause - injury, obstruction, danger or annoyance - to persons who may have occasion to use any public right. Generally, negligence gives rise to the nuisance. Depending upon the type of negligence and nuisance, there are various offences specified in Sections 269 to 291 IPC. Several of such offences are cognizable. Thus, a FIR can be registered in respect of these. The police will then investigate the offence and file its chargesheet in the court of magistrate. Alternatively, a criminal complaint under section 190 CrPC can also be filed directly to the concerned magistrate’s court. It may be noted that almost all these offences are bailable. The result of FIR or the criminal complaint is the punishment of the person causing nuisance. Such an action seeks to punish the wrong doer. However, there are special provisions prescribed in the CrPC itself for removal of nuisance. These are provided in Chapter X(B) running from Sections 133 to 148 Cr.P.C. The main provision is section 133. The power for removal of nuisance is given to the District Magistrate or the S.D.M. or any other authorized Executive Magistrate. If any of these officers, on

Part III : Criminal Law Administration System

121

receipt of the report of a police officer or other information and on taking such evidence ( if any) as he thinks fit, considers that any act or conduct of a person or any thing is causing obstruction, nuisance etc. in any of the manner specified in section 133, then the officer can make a conditional order directing the person causing such obstruction or nuisance to remove it in the manner specified therein. If the offender objects, then he is given show cause notice as to why such conditional order be not made absolute. The offender must either comply with the said order within the time and manner specified therein or must appear and show cause. If he does neither of these, then he is guilty of offence under section 188 IPC ( disobedience to order duly promulgated by public servant) which is punishable with up one month imprisonment and/or fine upto Rs.200/-. However, if the disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, it is punishable with up six month imprisonment and/or fine upto Rs.1000/-. If the offender appears and show cause, then the magistrate takes evidence. If the magistrate is satisfied that the order is reasonable and proper, he must make the order absolute, with or without modification. If he is not so satisfied, no further proceedings are required in the case. ( section 138) If the order is made absolute, the magistrate must give notice thereof to the offender and require him to remove the nuisance specified in the notice within a time fixed in the notice. (sec.141) If the order/notice is not complied by the offender, the magistrate may himself cause the nuisance to be removed and recover the costs thereof by attachment and sale of any building, goods or property removed or any other movable property of the offender. Pending the inquiry, the magistrate can issue injunction order against the offender to prevent imminent danger or injury of a serious kind to the public. ( section 142) In urgent cases of nuisance or apprehended danger, an order under section 144 can be issued. ( see Note No.29 also) 17. What are the proceedings before an Executive Magistrate in case of dispute/ quarrel over immoveable property? Such proceedings are contemplated under Section 145 of the Code of Criminal Procedure 1973. If the Executive magistrate of an area comes to know that there exist a dispute regarding any land, water, building, market,

122

Courts, Police, Authorities & Common Man

crop, etc. in his area and he is satisfied that the said dispute is likely to cause a breach of peace in the area, then he can send notice to the parties involved in the dispute to appear before him on the given day and time and give in writing their submissions about their respective claims to the subject matter of the dispute. The parties can appear personally or through their pleader. After hearing the parties and after taking the evidence, the Magistrate can pass an order declaring which party is entitled to the possession of the property in dispute and can restore the possession to the party forcibly and wrongfully dispossessed. If the Magistrate is not able to find out as to which of them is entitled to possession, he may attach the property under dispute and appoint a receiver to collect the income from that property, until a competent court has decided such a question. The Magistrate can withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of peace with regard to property in dispute. Similarly, if any dispute exist regarding the right of usage of any land or water, which dispute is likely to cause breach of peace, the Magistrate can order the parties concerned to appear and file their respective claims. After hearing them and after taking evidence, he shall decide as to if any party has the right to use the land or water in question. While taking proceedings under section 145, the Magistrate can simultaneously exercise his powers of kalandra under section 107. If a police officer comes to know that some person is planning to commit any cognizable offence, then he may arrest such person under Section 151 without any warrant and without any order from the Magistrate if it appear to him that without arresting him, the commission of the said cognizable offence can not be prevented. 18. Can I compromise a criminal matter with the other party, so that the case is closed against me ? Compromising in a criminal matter is called compounding of offence. Suppose you are an accused in a cheating case under section 420 IPC. In such a case, you can compromise the matter with the person so cheated. This is legally permissible under section 320 Cr.P.C. wherein various offences under Indian Penal Code can be compounded. However, all offences are not compoundable. Only the offences mentioned in section 320(1) can be compounded by the persons mentioned therein. Section

Part III : Criminal Law Administration System

123

320(2) mention the offences which can be compounded only with the permission of the court before whom the case is pending. The compounding of an offence in this manner has the effect of the acquittal of the accused. For closing the case against you, you have to file an application before the Court, where the case is being tried, mentioning therein that you have compromised the matter with the affected person. It is better if the affected person also files his affidavit alongwith this petition that he has compromised the matter with you and that he has no objection if the FIR and the criminal proceedings against you are quashed. If there is a written compromise, a copy of the same should also be filed alongwith the petition. The court ordinarily send/refer the case to the Lok Adalat for settlement and disposal, if the offence is compoundable. In practice, the people mostly file a Criminal Miscellaneous Main petition in the High Court under section 482 Cr.P.C for quashing of the FIR and for quashing of the criminal proceedings pending in the trial court. The High Court, on recording the statements of both the parties, or after being satisfied in any other manner that no fruitful purpose would be served by continuing the proceedings against the accused, allows the petition and quashes the FIR and the criminal proceedings pending in the trial court. 19. If I am called as a witness and I then appear in the court, am I entitled to the expenses incurred by me ? There is mainly one provision in the entire Code which talks of payment of expenses to the witnesses, which is contained in Section 312 of the Code of Criminal Procedure : “312. Expenses of complainants and witnesses Subject to any rules made by the State Government, any Criminal Court may, if it thinks fit, order payment, on the part of the Government, of the reasonable expenses of any complainant or witness attending for the purposes of any inquiry, trial or other proceeding before such court under this Code.” Thus, any criminal court can order for the payment of reasonable expenses to a witness for attending the court. ‘Reasonable’ is not defined anywhere in the Code. Thus, it can be safely deduced that reasonable expenses would at least be the actual expenses incurred by the witness in traveling to and from the court and would also include the cost of time devoted by him in the court which he would otherwise devoted in his business/

124

Courts, Police, Authorities & Common Man

profession for earning money. As per the section, these expenses, which in common parlance is called diet money, can be ordered by the court only if it thinks it fit. In practice, the courts do order for the payment of expenses to witnesses but the amount ordered is very small amount compared to the actual expenses. If a witness fails to appear before the court on the date and time fixed, he can be sentenced to fine up to Rs.100 by the court under Section 350 after giving him a show cause notice. If a police officer making an investigation require a person to appear as witness before him by written order, then the State Govt. may provide for the payment by the police officer concerned of the reasonable expenses to every person attending at any place other than his residence (Section 160(2)). During trial of a complaint case, if the accused makes an application to the Magistrate’s court to summon certain witnesses, then before summoning the witnesses, the Magistrate can require the accused to deposit reasonable expenses, to be incurred by the witness in attending for the purposes of trial, in the court (Section 243(3) and 247). Though the witnesses are there to assist the court, but in practice, they are the most harassed one. Instead of receiving appreciation for assisting the court in coming to give evidence, they are often treated in the same manner as the accused. The Hon’ble Supreme Court was constrained to observe about the plight of the witneses in the following words in the case of Swaran Singh vs State of Punjab reported in IV (2000) SLT 138 (at page 147): “A criminal case is built on the edifice of evidence, evidence that is admissible in law. For that witnesses are required whether it is direct evidence or circumstantial evidence. Here are the witnesses who are harassed lot. A witness in a criminal trial may come from a far-off place to find the case adjourned. He has to come to the court many times and at what cost to his own self and his family is not difficult to fathom. It has become more or less a fashion to have a criminal case adjourned again and again till the witness tires and and he gives up. It is the game of unscrupulous lawyers to get adjournments for one excuse or the other till a witness is won over or is tired. Not only that a witness is threatened; he is abducted; he is maimed he is done away with; or even bribed. There is no protection for him. In adjourning the matter without any valid cause, a court unwittingly becomes a party to miscarriage of justice. A witness is then not treated with respect in the Court. He is pushed out from the crowded court room by the peon. He waits for the whole day and then he finds that the matter adjourned. He has no place to sit and no place even

Part III : Criminal Law Administration System

125

to have a glass of water. And when he does appear in court, he is subjected to unchecked and prolonged examination and cross-examination and finds himself in a hapless situation. For all these reasons and others, a person abhors becoming a witness. It is the administration of justice that suffers. Then appropriate diet money for a witness is a far cry. Here again, the process of harassment starts and he decides not to get the diet money at all. High Courts have to vigilant in these matters. Proper diet money must be paid immediately to the witness ( not only when he is examined but for every adjourned hearing) and even sent to him and he should not be left to be harassed by the subordinate staff. …” 20. What questions can not be asked from a witness in a court? The asking of questions from a witness or accused or any other person in a trial, whether in civil court or criminal court, is governed by the Indian Evidence Act 1872. Chapter IX (sections 118 to 134) and Chapter X (sections 135 to 166) of this Act deals with the witnesses, their examination, cross examination etc. Under Section 149, any question, which is not relevant to the case and which affect the credit of the witness by injuring his character, can not be asked from a witness unless the basis of allegation is well founded. Under Section 151, the court can prohibit asking of indecent and scandalous questions. Under Section 152, the court is bound to prohibit the advocate from asking any question which is intended to insult or annoy the witness or which is needlessly offensive. 21. Is there any punishment for giving false evidence or making false statement in affidavit or for fabricating false evidence for the purpose of falsely convicting others? (perjury) Yes. A person is said to ‘give false evidence’ if he makes a statement on oath, orally or in writing, which he either knows/believes to be false or which he does not believe to be true. For example : (a) A, in support of a valid claim which B has against Z for Rs.1000/-, falsely swears on a trial that he heard Z admit the justness of B’s claim. A has given false evidence. (b) A, being bound by an oath to state the truth, states that he believes a

126

Courts, Police, Authorities & Common Man

certain signature to be the handwriting of Z; when he does not believe it to be the handwriting of Z. Here A has stated that which he knows to be false and therefore gives false evidence. (c) A, knowing the general character of Z’s handwriting, states that he believes a certain signature to be the handwriting of Z; A in good faith believing it to be so. Here, A’s statement is merely as to his belief and is true as to his belief and therefore, although the signature may not be the handwriting of Z, A has not given false evidence. (d) A, being bound by an oath to state the truth, states that he knows that Z was at a particular place on a particular day, not knowing anything upon the subject. A gives false evidence whether Z was at that place on the day named or not. (e) A, an interpreter or translator, gives or certifies as a true interpretation or translation of a statement or document which he is bound by oath to interpret or translate truly, that which is not and which he does not believe to be a true interpretation or translation. A has given false evidence. (Section 191 IPC) A person is said to ‘fabricate false evidence’ who : - causes any circumstance to exist, or - makes any false entry in any book/record, or - makes any document containing a false statement - intending - that such circumstance, false entry or false statement may appear - in a judicial proceeding, or - in a proceeding taken by law - before a public servant as such, or - before an arbitrator - and that such circumstance, false entry or false statement so appearing in evidence may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding. For example, (a) A puts jewels into a box belonging to Z, with the intention that they may be found in that box, and that this circumstance may cause Z to be convicted of theft. A has fabricated false evidence.

Part III : Criminal Law Administration System

127

(b) A makes a false entry in his shop-book for the purpose of using it as corroborative evidence in a Court of Justice. A has fabricated false evidence. (c) A, with the intention of causing Z to be convicted of a criminal conspiracy, writes a letter in imitation of Z’s handwriting, purporting to be addressed to an accomplice in such conspiracy, and puts the letter in a place which he knows that the officers of the police are likely to search.A has fabricated false evidence. (Section 192 IPC) Such a person giving false evidence or fabricating false evidence also includes a police officer or any other Govt. servant and thus, a case can be instituted against them also for such acts. Punishment : #Intentionally giving or fabricating false evidence in any stage of a judicial proceeding is punishable with upto 7 years imprisonment and fine. An investigation directed by law prior to proceeding before a court or directed by the Court according to law and conducted under the authority of court, is a stage of judicial proceeding. Thus, investigation by a police officer or by a local commissioner under order of a court is a judicial proceeding. (Section 193) #

Intentionally giving or fabricating false evidence in any other case is punishable with upto 3 years imprisonment and fine.

#

If giving or fabricating false evidence is with the intention to cause or knowing that it is likely to cause any person to be convicted of an offence which is punishable with death, then the punishment is upto life imprisonment or rigorous imprisonment upto 10 years and fine.

#

If an innocent person is convicted of an offence punishable with death and such death punishment is carried out, in consequence of such false evidence, then the person giving false evidence is punishable with death or life imprisonment or rigorous imprisonment upto 10 years and fine. (Section 194)

#

If giving or fabricating false evidence is with the intention to cause or knowing that it is likely to cause any person to be convicted of an offence which is punishable with upto life imprisonment or minimum imprisonment of 7 years, then the punishment is the same to which the person convicted would be liable.

For example, A gives false evidence before a Court of Justice intending thereby to

128

Courts, Police, Authorities & Common Man

cause Z to be convicted of dacoity. The punishment of dacoity is imprisonment for life or rigorous imprisonment for upto 10 years, with or without fine. Therefore, A is liable to be punished for life imprisonment or rigorous imprisonment for upto 10 years, with or without fine. (Section 195) #

As per Section 196, if anyone corruptly uses or attempts to use as true/genuine any evidence which he knows to be false or fabricated, then he is also liable to be punished in the same manner as if he has given or fabricated the false evidence.

#

Issueing or signing false certificate with the knowledge or belief that such certificate is false in any material point, is also punishable in the same manner (Section 197).

#

Deliberately using a false certificate as a true certificate is also punishable in the same manner (Section 198).

#

Making a false statement in a declaration which is by law receivable as evidence, is also punishable in the same manner (Section 199).

#

Deliberately using such false declaration as true, is also punishable in the same manner (Section 200).

#

If a person knows or has reason to believe that an offence has been committed, but still gives false information in respect of that offence, he is liable to be punished with upto 2 years imprisonment or with fine or with both. (Section 203)

The readers must also see Chapter XVIII (Sections 463-477A) of IPC dealing with forgery etc. At the time of delivering judgment, if the court is of the opinion that any witness had knowingly or willfully given/fabricated false evidence, then it may try this offence summarily. It may give a show cause notice to him. Such witness can be sentenced for upto 3 months or fine upto Rs.500/- or both (Section 344 CrPC) In respect of an offence relating to false evidence committed under Sections 193-196, 199, 200, 205-211, 228, 463, 471, 475, 476 of Indian Penal Code where the offences are committed in relation to any proceeding in any court, the complaint can be filed by the court in which the offence was committed or by higher court (Section 195 CrPC). The procedure for such complaints is governed by Section 340 CrPC. 22. Under what circumstances, screening the offender from punishment is punishable ? Sometimes, the police or the other Govt. servants or any other person

Part III : Criminal Law Administration System

129

misuse their powers and try to protect/save the actual offender. It is a great set back to the victim and the victim’s family. However, there is a remedy. A case can be instituted under the following sections of IPC against such officers/persons through FIR or on criminal complaint to the Judicial Magistrate’s court, as the case may be, by any one : Section 201 : Causing disappearance of evidence: If an offence has been committed and someone knowing or having reason to believe that an offence has been committed, - causes any evidence of the commission of that offence to disappear - with the intention of screening the offender from legal punishment, or - with that intention gives any information in respect of the offence which he knows/believes to be false, then, (i) he is liable to be punished with upto 7 years and fine, if the offence which he knows/believes to have been committed is punishable with death. (ii) he is liable to be punished with upto 3 years and fine, if the offence which he knows/believes to have been committed is punishable with life imprisonment or imprisonment upto 10 years. (iii) he is liable to be punished with upto 1/4th of the longest term of imprisonment provided for the offence or with fine or both, in case the offence which he knows/believes to have been committed is punishable with less than 10 years imprisonment. Section 204 : Destruction of document to prevent its production as evidence : - Whoever secretes or destroys - any document - which he may be lawfully compelled to produce as evidence - in a court of justice, or - in any proceeding lawfully held before a public servant, - or, obligates or renders illegible the whole/part of such document - with the intention of preventing the same from being produced or used as evidence before such court or public servant - or after he shall have been lawfully summoned/required to produce the same for that purpose,

130

Courts, Police, Authorities & Common Man

he is liable to be punished with upto 2 years imprisonment or with fine or with both. Section 212 : Harbouring offender : If an offence has been committed and a person A harbours/conceals a person Z knowing or reason to believe him to be the offender, with the intention of screening Z from legal punishment, then he would be liable for punishment. The quantum of punishment would be as follows : (i) If the offence which has been committed is punishable with death, then A is liable to be punished with imprisonment of upto 5 years and fine. (ii) If the offence which has been committed is punishable with life imprisonment or with upto 10 years, then A is liable to be punished with imprisonment of upto 3 years and fine. (iii) If the offence which has been committed is punishable which may extend to 1 year and not to 10 years, then A is liable to be punished with upto 1/4th of the longest term of imprisonment provided for the offence or with fine or both. However, harbour/concealment of the offender by the husband or wife of the offender, is not an offence. Section 213 : Taking gift, etc., to screen offender from punishment: If someone - accepts, or - attempts to obtain, or - agrees to accept - any gratification for himself or any other person, or - any restitution of property to himself or any other person - in consideration of - his concealing an offence or - of his screening any person from legal punishment for any offence or - of his not proceeding against any person for the purpose of bringing him to legal punishment, then he would be liable to be punished. The quantum of punishment varies with the type of offence committed.

Part III : Criminal Law Administration System

131

Section 214 : Offering gift or restoration of property in consideration of screening offender : If someone - gives or causes, or - offers to give or cause, or - agrees to give or cause - any gratification to any person, or - restores or causes the restoration of any property to any person - in consideration of - that person’s concealing an offence or - of his screening any person from legal punishment for any offence or - of his not proceeding against any person for the purpose of bringing him to legal punishment, then he would also be liable to be punished. The quantum of punishment varies with the type of offence committed. Section 215 : Taking help to recover stolen property etc.: If someone - takes, or - agrees to take, or - consents to take - any gratification - under pretence or on account of helping any person to recover any moveable property of which he shall have been deprived by any offence punishable under IPC, then he would also be liable to be punished. The quantum of punishment varies with the type of offence committed. However, if he uses all means in his power to cause the offender to be apprehended and convicted of the offence, then he is not liable. Section 216 : Harbouring offender who has escaped from custody or whose arrest has been ordered If any person A convicted of or charged with an offence escapes from lawful custody or he has been lawfully ordered by a public servant to be arrested, then whoever harbours/conceals A ( knowing of such escape or arrest order) with the intention of preventing A from being arrested, is liable to be punished. The quantum of punishment varies with the type of offence committed.

132

Courts, Police, Authorities & Common Man

Section 216A : Penalty for harbouring robber or dacoits If someone knows or has reason to believe that any persons - are about to commit, or - have recently committed - robbery or dacoity, - but still harbours them or any of them, - with the intention - of facilitating the commission of such robbery or dacoity, or - of screening them or any of them from punishment, then he is liable to be punished with rigorous imprisonment for upto 7 years and fine. However, harbour by the husband or wife of the offender, is not an offence. 23. What are the offences which are punishable only when committed by public servants ? Can they also be punished for any of their act or omission which amounts to an offence ? Several such offences are dealt with in Sections 217-223, 225A, 166, 167 of Indian Penal code. Section 217 : Public Servant disobeying direction of law with intent to save person from punishment or property from forfeiture If any public servant - knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, - intending thereby - to save, or - knowing it to be likely that he will thereby save, - any person from legal punishment, or - subjects him to a lesser punishment that that to which he is liable, … then he is liable to be punished with upto 2 years imprisonment or with fine or with both. Section 218 : Public servant framing incorrect record or writing with intent to save person from punishment or property from forfeiture : If any public servant who is authorized to prepare any record or writing - frames that record or writing in a manner which he knows to be incorrect, - with intent to cause, or - knowing it to be likely that he will thereby cause,

Part III : Criminal Law Administration System

133

- loss or injury to the public or any other person, OR - with intent thereby to save, or - knowing it to be likely that he will thereby save, - any person from legal punishment, ….. then he is liable to be punished with upto 3 years imprisonment or with fine or with both. Section 219 : Public servant in judicial proceeding corruptly making report, etc., contrary to law: If a public servant - corruptly or maliciously - makes/pronounces in any stage of a judicial proceeding - any report, order, verdict or decision - which he knows to be contrary to law, then he is liable to be punished with upto 7 years imprisonment or with fine or with both. This section can also be invoked against a public servant passing order in quasi judicial capacity. Section 220 : Commitment for trial or confinement by person having authority who knows he is acting contrary to law : If any person who is authorized - to commit persons for trial or to confinement, or - to keep persons in confinement, - corruptly or maliciously - commits any person for trial or to confinement, or - keeps any person in confinement, - in the exercise of that authority, - knowing that in so doing he is acting contrary to law, then he is liable to be punished with upto 7 years imprisonment or with fine or with both. This section can be invoked in case of illegal arrest by a police officer. Section 221 : Intentional omission to apprehend on the part of the public servant bound to apprehend : If a public servant

134

Courts, Police, Authorities & Common Man

- who is legally bound to apprehend or to keep in confinement any person charged with or liable to be apprehended for an offence, - intentionally omits to apprehend such person, or - intentionally suffers such person to escape, or - intentionally aids such person in escaping or attempting to escape from such confinement, then he is liable to be punished. The quantum of punishment varies with the type of offence committed. Section 222, which is similar, is applicable in case of persons who are already sentenced by a Court and who escape. Section 223 : Escape from confinement or custody negligently suffered by public servant : If a public servant - who is legally bound to keep in confinement any person charged with or convicted of any offence or lawfully committed to custody, - negligently suffers such person to escape from confinement, then he is liable to be punished with upto 2 years imprisonment or with fine or with both. Section 166 : Public servant disobeying law, with intent to cause injury to any person : If any public servant - knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, - intending thereby - to cause, or - knowing it to be likely that he will, by such disobedience, cause - injury to any person then he is liable to be punished with upto 1 year imprisonment or with fine or with both. Section 167 : Public servant framing an incorrect document with intent to cause injury: If any public servant who is given charge of preparation or translation of any document - frames or translates that document in a manner which he knows or

Part III : Criminal Law Administration System

135

believes to be incorrect, - intending thereby to cause, or - knowing it to be likely that he may thereby cause, - injury to any person, then he is liable to be punished with upto 3 years imprisonment or with fine or with both. Under Section 168, if a Public servant unlawfully engages in trade, then he is liable to be punished with upto 1 year simple imprisonment or with fine or with both. Under Section 169, if a Public servant unlawfully buys or bids for property, then he is liable to be punished with upto 2 year simple imprisonment or with fine or with both It must be remembered that a public servant can also be punished for an offence for which an ordinary person can be punished. That is, apart from these special sections meant exclusively for public servants, the public servants can also be prosecuted for offences under other sections. OTHER RELATED OFFENCES : Section 182 : False information with intent to cause public servant to use his lawful power to the injury of another person : Whoever gives to any public servant - any information - which that person knows or believes to be false, - intending thereby to cause, or - knowing it to be likely that he will thereby cause, - such public servant - to do or omit to do anything ( which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known to him), or - to use the lawful power of such public servant to the injury or annoyance of any person, then he is liable to be punished with upto 6 months imprisonment or with fine or with both. Illustrations : (a) A falsely informs a public servant that Z has contraband in a secret

136

Courts, Police, Authorities & Common Man

place knowing such information to be false, and knowing that it is likely that the consequence of the information will be a search of Z’s premises, attended with annoyance to Z. A has committed the offence defined in this section. (b) A falsely informs a policeman that he has been assaulted and robbed in the neighbourhood of a particular village. He does not mention the name of any person as one of his assailiants, but knows it to be likely that in consequence of this information, the police will make enquiries and institute searches in the village to the annoyance of the villagers or some of them. A has committed an offence under this section. Section 209 : Dishonestly making false claim in court : Whoever - fraudulently, or - dishonestly, or - with intent to injure any person, or - with intent to annoy any person - makes any claim in a court - which he knows to be false then he is liable to be punished with upto 2 years imprisonment and fine. Section 210: Fraudulently obtaining decree for sum not due Whoever - fraudulently obtains a decree/order against any person - for a sum not due, or - for a larger sum than is due, or - for any property or interest in property to which he is not entitled, OR - fraudulently causes any decree/order to be executed against any person - after it has been satisfied, or - for anything in respect of which it has been satisfied, OR - fraudulently suffers/permits any such act to be done in his name, then he is liable to be punished with upto 2 years imprisonment or with fine or with both. Section 211: False charge of offence made with intent to injure: Whoever - with intent to cause injury to any person,

Part III : Criminal Law Administration System

137

- institutes or cause to be instituted any criminal proceeding against that person, or - falsely charges any person with having committed an offence, - knowing that there is no just or lawful ground for such proceeding or charge against that person, then he is liable to be punished with upto 2 years imprisonment and fine. If the criminal proceeding instituted is in respect of an offence punishable with death or life imprisonment or imprisonment of 7 years or above, then punishment may go upto 7 years, with fine. Section 330: Voluntarily causing hurt to extort confession, or to compel restoration of property Whoever - voluntarily - causes hurt (i) for the purpose of extorting from the sufferer or from any person interested in the sufferer, - any confession or any information which may lead to the detection of an offence or misconduct, or (ii) for the purpose of constraining the sufferer or any person interested in the sufferer - to restore or to cause the restoration of any property or valuable security or - to satisfy any claim or demand, or - to give information which may lead to the restoration of any property or valuable security, then he is liable to be punished with upto 7 years imprisonment and fine. Illustrations : (a) A, a police-officer, tortures Z in order to induce Z to confess that he committed a crime. A is guilty of an offence under this section. (b) A, a police-officer, tortures B to induce him to point out where certain stolen property is deposited. A is guilty of an offence under this section. (c) A, a revenue officer, tortures Z in order to compel him to pay certain arrears of revenue due from Z, A is guilty of an offence under this section.

138

Courts, Police, Authorities & Common Man

(d) A, a zamindar, tortures a raiyat in order to compel him to pay his rent. A is guilty of an offence under this section. Section 331: Voluntarily causing grievous hurt to extort confession, or to compel restoration of property Whoever - voluntarily - causes grievous hurt (i) for the purpose of extorting from the sufferer or from any person interested in the sufferer, - any confession or any information which may lead to the detection of an offence or misconduct, or (ii) for the purpose of constraining the sufferer or any person interested in the sufferer - to restore or to cause the restoration of any property or valuable security, or - to satisfy any claim or demand,

or

- to give information which may lead to the restoration of any property or valuable security, then he is liable to be punished with upto 10 years imprisonment and fine. In addition to above, public servant, like any other person, can also be punished for any of his act or omission which amounts to an offence, whether under IPC or any other law. Under the Official Secrets Act 1923, it is an offence to disclose confidential information to anybody. A public servant can be hauled up under this Act also. Apart from these, corrupt public servants and persons aiding corrupt public servants to take bribe, can be punished under the special law i.e. Prevention of Corruption Act 1988. 24. Is there any provision in law for compensating the victim of an offence ? Yes. Under Section 357(3) of Code of Criminal Procedure, if the court convicts the accused and imposes a sentence of imprisonment on him, the court can order in the judgment for the accused to pay specific amount as compensation to the person who has suffered any loss or injury due to the act for which the accused has been punished. There is no limit

Part III : Criminal Law Administration System

139

prescribed on the amount of compensation in this section and the court can order any amount of compensation. For the purpose of applying section 357(3), it is necessary that fine should not be a part of the sentence imposed by the court. If fine forms the part of the sentence or the only sentence is of fine, then Section 357(1) applies under which the court can order in the judgment that a part of the fine recovered from the accused be paid as compensation to any person for any loss or injury caused by the offence. However, the court can so order only if the person getting the compensation is entitled to recover such compensation in a civil court. Under Section 358, if the police arrest a person A at the instance of a person B and it appears to the Magistrate hearing the case that there was no sufficient ground to arrest A, the Magistrate can order B to pay compensation of upto Rs.100 to A for loss of time and expenses incurred by A. If this compensation is not paid by B, then he is bound to be sentenced to simple imprisonment of upto 30 days. If you have filed a criminal complaint in the Court against some offender in respect of a non-cognizable offence and if the court ultimately held the offender guilty and convicts him, the court can order him to pay you the costs/expenses incurred by you in pursuing your complaint (including your advocates fees and charges paid to witnesses and process servers), in addition to the penalty (of imprisonment or fine or both) imposed upon him. If the offender fails to pay you these costs, he can be further sentenced to simple imprisonment of upto 30 days. This remedy is provided under Section 359 of the Code of Criminal Procedure. Under Section 237, compensation of upto Rs.1000/- is payable to a person against whom a complaint of defamation under section 199 was made and he is ultimately discharged or acquitted by the court. However, this does not prevent the acquitted person to file a civil suit for damages. Under Section 250, compensation is payable to a person against whom a case was instituted (otherwise than on a police chargesheet) triable by a Magistrate and he is ultimately discharged or acquitted by the magistrate. The amount of compensation, however, can not exceed the amount of fine which the magistrate is empowered to impose. (Judicial Magistrate 1st class is empowered to impose fine of upto Rs.5000/-. Judicial Magistrate 2nd class is empowered to impose fine of upto Rs.1000/-). However, this does not prevent the acquitted person to file a civil suit for damages.

140

Courts, Police, Authorities & Common Man

Off late, the Supreme Court has, by various judicial pronouncements, evolved the concept of payment of compensation in writ jurisdiction by the Govt. functionaries for violation of the fundamental rights of the people. For example, in a case where two persons were killed by the police in Manipur (a troubled area) thinking them to be terrorists, Supreme Court held this to be infringement of right to life guaranteed under Article 21 of the Constitution of India and awarded compensation of Rs.1 lakh to the families of the deceased (People’s Union for Civil Liberties vs Union of India reported in 1997 II AD SC 377). 25. What is the effect of absence of the accused or the complainant in a complaint case before a magistrate ? Accused In any criminal case/trial, it is compulsory for the accused to be present on every date of hearing. If he is not present in the court when his case is called, the magistrate nowadays usually issue non-bailable warrants (NBWs) against him. It may so happen that the accused has come to the court but he is not present in the concerned court when his case is called by the court staff, may be on account of his waiting outside the court or gone for drinking the water. Once an order has been passed by a judge in a criminal court rightly or wrongly, he can not change the same, as power of review is not available to a criminal court. The option is to file an appeal against the said order. If NBWs have been issued, then the accused can move an application for cancellation of NBW, giving the reasons for his not appearing when his case was called. If satisfied, the Magistrate may cancel the NBWs. If the accused is not in a position to appear on a certain date, then he should move an application for exempting him from personal appearance on the date fixed. The court, if satisfied, may allow such application and allow the accused to appear through his lawyer, instead of requiring him to appear in person. However, every time a new application for exemption has to be moved whenever the accused is not in a position for personally appearing. However, if the Magistrate require the presence of the accused, he can direct the personal attendance of the accused at any stage. (Sec.205) Complainant If the case has been instituted on the criminal complaint filed by a complainant and on the day fixed for the hearing of the case, he is absent, the magistrate may in his discretion dismiss the complaint and discharge the accused. However, before exercising this discretion, following

Part III : Criminal Law Administration System

141

conditions must be satisfied : (a) the offence is one which can be lawfully compounded or is a noncognizable offence (b) Such an action can be taken by the magistrate at any time but before the charge has been framed This is the mandate of Section 249 which applies to the warrant cases only. There is somewhat similar provision contained in Section 256 which applies to the summons cases only : If summons have been issued on the complaint (any complaint) and on the day fixed for appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the magistrate is required to acquit the accused. However, he is not required to do so if for some reason, he thinks it proper to adjourn the hearing of the case to some other day. The magistrate can also dispense with complainant’s attendance and proceed with the case if : (a) the complainant is represented by a pleader or by the officer conducting the prosecution, or (b) the magistrate is of the opinion that the personal attendance of the complainant is not necessary. It was recently held by the Supreme court in Mohd. Azeem vs A.Venktesh and another VII (2002) SLT 433 that Magistrate is not justified in acquitting the accused for the absence of the complainant on just one day. He should restore the complaint if sufficient cause is shown for non-appearance. It has also been held by certain High Courts that there is no requirement for the complainant to be personally present and that he can appear through a attorney. In this regard, kindly see the following judgments : M/s Ruby Leather Exports vs K.Venu 1994(1) Crimes 820 (All) Anil G.Shah vs J.Chittaranjan 1998 (2)Crimes347 (Guj) Punno Devi vs John Impex 1996 (2) BCLR482(P&H) Manimekalai vs Chapaldas Kalyanji 1995 Cri.L.J 102 (Mad) 26. Is there any limitation for entertaining a case against a person ? Under Section 468 Cr.P.C., no court can take cognizance of an offence after the expiry of period of limitation. The period of limitation is different for different types of offences. The period of limitation is -

142

Courts, Police, Authorities & Common Man

- 6 months, if the offence is punishable with fine only; - 1 year, if the offence is punishable with term up to 1 year; - 3 years, if the offence is punishable with imprisonment of more than 1 year but not exceeding 3 years; The limitation starts - from the date of the offence, or - where the commission of offence was not known, from the day when the police officer or aggrieved person first comes to know of the commission of offence, or - where the identity of the offender was not known, from the day when the identity of the person is first made known to the police officer conducting investigation or the aggrieved person However, under section 473, any court may take cognizance after the expiry of period of limitation, if it is satisfied, on the facts and the circumstances of the case, that the delay has been properly explained or that it is necessary to do so in the interests of justice. There is no period of limitation for taking cognizance in relation to an offence punishable with more than 3 years imprisonment. 27. Are there any circumstances when a criminal case can be disposed off without full trial ? Normally, once the cognizance has been taken, the case proceeds and after full trial, results in conviction, acquittal or discharge of the accused. However, there are circumstances when it is not desirable to adopt the course of full trial. In some situations, the further trial becomes impossible or infructuous. These circumstances and situations when a criminal case can be disposed off without full trial are : A. Criminal proceedings barred by Limitation When the accused appears or is brought before the court, he can raise the preliminary objection that the criminal proceedings against him are barred by limitation under section 468 Cr.P.C. The reasons behind prescribing a limitation in respect of relatively less serious offences are : - With the passage of time, the memory of the witnesses fades and thus no useful purpose is served by entertaining a criminal case after a long gap and then call the witnesses, most of whom may have died, or may not be available or if available, may not remember the events exactly. In such a scenario, the accused, in all probability is likely to be acquitted.

Part III : Criminal Law Administration System

143

Thus, it would be unfair to force an accused to undergo the rigours of a criminal case, instituted belatedly, when it is apparent that he may be ultimately acquitted. Criminal Justice system is expected to be swift and speedy to ensure that the guilty is punished while the events are still fresh in public mind. - For the purpose of peace of mind, it is necessary that at least in case of petty offences, the accused is not kept in continuous apprehension that he may be prosecuted at any time. - The purpose behind giving the punishment is defeated if the offender is not prosecuted and punished within a reasonable time from the date of occurrence of the crime. - The period of limitation put pressure on the police and prosecution to make every effort to ensure detection and punishment of crime quickly. B. A person once tried and acquitted or convicted for an offence, can not be tried again for the same offence again. Section 300 Cr.P.C. and also Article 20(2) of Constitution of India. C. Compounding of offences A crime is essentially a wrong done to the society as a whole and therefore even if the wrongdoer compromise with the individual victim, it may not absolve the wrongdoer from criminal responsibility. However, in case of offences, which are basically of private nature and which are less serious, the Law has recognized the need to close such cases, if the victim desire (out of his own free will and without any pressure) that the case may be closed and the accused may be let off. There are certain offences which can be compromised by the accused and the victim without anybody’s intervention. However, there are certain offences which can be compromised by the victim and the accused, only with the permission of the court. The details of the offences which can be compounded are given in section 320 Cr.P.C. A compromise petition can not be withdrawn once it has been filed. A case can be compromised at any stage, before the sentence is pronounced. The compromise by the victim and the accused has the effect of acquittal of the accused. D. Withdrawal from prosecution The Public Prosecutor (P.P.) can withdraw from the prosecution of a criminal case, with the permission of the court. It is the duty of the court to see that the permission is not sought to favour someone or on grounds contrary to interests of justice. The P.P. can withdraw from the case at any

144

Courts, Police, Authorities & Common Man

stage, before the judgment is pronounced by the trial court. Such withdrawal has the effect of discharge or acquittal of the accused, as the case may be. (section 32) E. Withdrawal of complaint A summons case* initiated on a criminal complaint filed by an individual, is deemed to be closed if the complaint is withdrawn by that individual, with the permission of the court. The withdrawal of the complaint has the effect of acquittal of the accused. However, if a warrant case** has been initiated on the complaint, the complaint can not be withdrawn by that individual. (section 257) F. Absence or non-appearance of the complainant In a warrants case initiated on a complaint, if the complainant is absent on the date fixed, the court may, in its discretion, discharge the accused, if the charge has still not been framed and the offence is such which may be lawfully compounded or is not a cognizable offence. (section 249) In a summons case initiated on a complaint, if the complainant does not appear on the date fixed ( may be because of his death), the court may, in its discretion, acquit the accused. (section 256) G. Abatement of proceedings on the death of the accused The ultimate object of the criminal proceedings is to punish the accused on his conviction of any offence. Therefore, the criminal proceedings come to an end on the death of the accused, as their continuance thereafter is infructuous and meaningless. (section 394) H. Power of the court to close a case In a summons case, not instituted on a criminal complaint, the Magistrate has the power to stop the proceedings, at any stage, by giving reasons in writing. Such stoppage of proceedings has the effect of discharge or acquittal of the accused. However, for exercising this power, the Magistrate must be of the opinion that there are special and unusual circumstances to do so. (section 258). I. Conditional pardon to an accused The criminal proceedings against an accused come to an end if he agrees to give evidence against his accomplices (other co-accuseds). If the accused agrees to this condition, then he may be granted pardon. The idea is that that his evidence can be used to convict the other accuseds. Such a step is resorted to in case of a grave offence. Such a person, called approver, is

Part III : Criminal Law Administration System

145

liable to be kept in custody, if not on bail. However, if the accused fails to comply with the conditions of pardon and conceals the truth in the witness box, then the pardon is withdrawn and he is liable to be tried for the offence. (section 306) **warrant case is one which relates to an offence punishable with death, life imprisonment or imprisonment for more than 2 years (sec.2(x) *summons case is one which relates to an offence punishable with imprisonment for upto 2 years and/or with fine. (sec.2(w) 28. Is there any duty of a person under the law towards his parents, wife and children ? Yes. As provided in Section 125 of the Code of Criminal Procedure, a person is duty bound to maintain his parents, wife and children. If a man having the means to maintain his family but neglects or refuses to do so, the following (basically dependents) can claim maintenance from him under Section 125 of the Code of Criminal Procedure : a.

wife who is unable to maintain herself;

b.

legitimate major children unable to maintain themselves by reason of physical or mental abnormality or injury (this however does not include a married daughter);

c.

illegitimate major children unable to maintain themselves by reason of physical or mental abnormality or injury (this however does not include a married daughter);

d.

legitimate or illegitimate minor children whether or not unable to maintain themselves;

e.

father unable to maintain himself;

f.

mother unable to maintain herself.

In the case of a minor daughter whose husband does not have sufficient means, the Magistrate may order her father to grant maintenance to her until she has reached the age of majority. Any of the above can approach the Magistrate Court for claiming monthly allowance for their maintenance. In order to obtain an order of maintenance under this provision, such person should prove that he/she has been neglected and refused maintenance and that the person from whom he/ she is claiming maintenance has the means to provide it. Earlier, the maximum amount of maintenance that could be provided under this provision was Rs. 500 per person only. However, realizing the steep

146

Courts, Police, Authorities & Common Man

rise in inflation in last few decades, the Parliament vide Amending Act No.50 of 2001 (applicable w.e.f. 24.9.2001) has deleted the words “not exceeding five hundred rupees in the whole”. Now, there is no limit on the amount of compensation which can be granted under this Section. However, the discretion lies with the Court which has to grant reasonable compensation based on the financial capacity of the opposite party and the facts and circumstances of each case. In case the maintenance amount ordered by the Magistrate is not paid to the claimant, the provision provides for levy of fines and also imprisonment of upto one month or till payment is made, whichever is earlier. Under Section 125, a wife who has divorced her husband can also obtain maintenance till she gets married again. If an offer is made by the husband to provide maintenance only if the wife lives with him and she refuses to live with him, she can still claim maintenance after providing adequate reasons for refusing to live with her husband. If the reasons provided by her are to the satisfaction of the Magistrate, maintenance would be awarded. If the husband has married another woman or has a mistress, it would be a sufficient ground to claim maintenance without having to live with him. However, the wife would not be entitled to receive allowance for maintenance from her husband if she is living in adultery or if she refuses to live with her husband without providing adequate reasons or if she is living separately by mutual consent. A wife can also claim litigation expenses and maintenance (alimony), under Section 24 and 25 of The Hindu Marriage Act 1955, from her husband for her and for her children depending upon the financial status of her husband. There is no limit on the amount of maintenance under said provision. Similarly, under the said provisions, the husband can also claim maintenance and expenses from his wife. 29. What is Curfew? Curfew, in lay man’s language, is an order passed under Section 144 of the Code of Criminal Procedure when there is grave likelihood of a riot taking place or disturbance of public peace or risk of obstruction, annoyance or injury to any person or danger to human life, health or safety in an area. Such an order is passed by the Magistrate (District Magistrate or SDM or any other competent Executive Magistrate) in charge of the area concerned, when he is of the opinion that immediate prevention or speedy remedy is desirable. Such an order may be directed to a particular person directing him to abstain from a certain act or may

Part III : Criminal Law Administration System

147

be directed to all persons residing in a particular place/area or may be directed to the general public in a particular area/place. Such an order remain in force for up to 2 months, but is extendable by another 6 months by State Govt. if need so arises. The Magistrate can alter or withdraw such an order, either on his own or on the application of any aggrieved person. If the State Govt. has extended the order beyond 2 months, then it can alter or withdraw such order either itself or on the application of any aggrieved person. 30. What is the offence of obscenity ? Obscenity is not defined under the Indian Penal Code. However, Section 292 thereof makes a reference to ‘obscenity’ in reference to the said section, which can throw light on the meaning of the term ‘obscenity’. It follows from the language of this section that anything would be obscene - if it is lascivious or - if it appeals to the prurient interest or - if its effect is such as to tend to deprave and corrupt persons who are likely to read, see or hear it. Under Section 294, doing any obscene act in any public place or uttering/ singing any obscene words or songs in or near any public place, which has the effect of causing annoyance to others, is an offence punishable with imprisonment of upto 3 months or fine or with both. Under Section 292, sale, distribution, exhibition, circulation, advertisement, import, export etc. of any obscene book, paper, pamphlet, poster, painting, figure etc. in any manner whatsoever is an offence punishable with imprisonment of upto 2 years and fine upto Rs.2000. If the offence is repeated again by a person, then he can be punished with imprisonment for upto 5 years with fine upto Rs.5000. Under Section 293, sale etc. of obscene objects to young persons under the age of 21 years is an offence punishable with imprisonment upto 3 years with fine upto Rs.2000. On again doing the same offence, a person can be punished with imprisonment upto 7 years with fine upto Rs.5000. There is no provision in the Indian Penal Code specifically dealing with the indecent representation of women and probably, making use of this lacuna, a tendency started growing to represent women in a very indecent manner, particularly in advertisements and publications. This started affecting the morality of the society and had the effect of denigrating women. To curb such practices, the Parliament passed the Indecent

148

Courts, Police, Authorities & Common Man

Representation of Women (Prohibition) Act 1986. Under this Act, indecent representation of women in any form by way of any advertisement, book, pamphlet, film, painting, photograph, etc. is an offence punishable with imprisonment of upto 2 years and fine upto Rs.2000. If the offence is repeated again by a person, then he can be punished with imprisonment for upto 5 years subject to minimum imprisonment upto 6 months, with fine upto Rs.1,00,000 subject to minimum fine of Rs.10,000. (‘Indecent representation of woman’ has been defined under the Act to mean the depiction in any manner of the figure of a woman, her form or body or any part thereof in such a way as to have the effect of being indecent, or derogatory to, or denigrating, women, or is likely to deprave, corrupt or injure the public morality or morals). To prevent prostitution and protect the society from this menace, there is Immoral Traffic (Prevention) Act 1956. 31. What is the remedy available to a woman in case of sexual harassment ? One of the fundamental duties of an Indian citizen ( prescribed in Article 51A(e)) is to renounce practices derogatory to the dignity of women, yet we quite often find instances of acts targeted against the dignity and chastity of the women. Our criminal law system contains provisions to sternly deal with such practices. Under Section 354 of the Indian Penal Code, the intentional use of force against a woman without her consent which is likely to cause injury, fear or annoyance to her or making of any gesture which suggest that he is about to use such force, with the intention to outrage her modesty is an offence punishable with imprisonment upto 2 years or with fine or with both. Under Section 509, uttering any word or making any sound/gesture or exhibiting any object intending that it be seen/heard by a woman or intruding upon the privacy of that woman, the ultimate intention being to insult the modesty of that woman, is an offence punishable with simple imprisonment upto 1 year or with fine or with both. While, under section 354, physical contact with the lady is essential to constitute the offence, it is not essential to constitute an offence under section 509. Any woman feeling aggrieved by any of the above acts can file a complaint either to the police or directly in the court of the Magistrate. The offence of rape is the highest form of sexual harassment punishable under Section 376 with upto life imprisonment or for upto 10 years subject

Part III : Criminal Law Administration System

149

to minimum punishment of 7 years alongwith fine. Only for adequate and special reasons, the Court can award punishment of less than 7 years. Even an attempt to commit rape is an offence punishable with upto half the punishment provided for the offence of rape. The offence of rape has been time and again taken very seriously by the Supreme Court and the High Courts and public opinion currently is also in favour of awarding death penalty to the perpetrators of such heinous crime. 32. If a person has not committed an offence but only attempted to commit that offence, will he still be punished ? (Attempt) There are generally 4 stages in the commission of any offence : 1. Contemplation or intention of the commission of the offence 2. Preparation 3. Attempt 4. actual commission of intended crime The ‘mere intention to commit a crime’ is not punishable. However, law does take notice of an intention followed by some overt act of expression. For example, in Section 503 IPC, a person can be punished for criminal intimidation which is a mere expression of one’s intention to inflict loss or pain on another. ‘Preparation’ consists in devising or arranging means or measures necessary for the commission of the crime. Generally, preparations to commit offences are not punishable. But in exceptional cases, mere preparation to commit the offence is punished because they rule out the possibility of an innocent intention. For example, heinous offences like TADA, Pota etc. As illustration, some of the acts which merely amounts to preparation and which are punishable are Sections 122,126,399,402, 233,234,235,256,257,242,243,259,266 of IPC. ‘Attempt’ is a direct movement towards the commission of the offence after the preparations are over. For example, if a man after having procured a loaded gun pursues his enemy, but fails to kill him or is arrested before he is able to complete the offence or fires without effect, in all these cases he is liable for an attempt to murder. But if he purchases and loads a gun with the evident intention of shooting his enemy, but makes no movement to use the weapon against his intended victim, he remains only at the stage of preparation and his act does not amount to an attempt. Law take serious notice of attempts and punishes them accordingly. There are certain sections in IPC wherein the actual commission of the

150

Courts, Police, Authorities & Common Man

offence as well as the attempt thereof are made punishable equally. These are Sections 121, 124, 124A, 125, 130, 131, 15, 153A, 161, 162, 163, 165, 196, 198, 200, 213, 239, 240, 241, 251, 385, 387, 389, 391, 397, 398 and 460. There are certain sections wherein attempts are treated as separate offences and punished accordingly. These are Sections 307, 308, 309, 393. Section 309 i.e. attempt to commit suicide is unique in the sense that the completed offence itself is not punished as it can not be punished. Then, there is residuary section i.e. section 511. Under Section 511 of the Indian Penal Code, even an attempt to commit an offence punishable with upto life imprisonment is itself an offence which is punishable with upto half of the maximum punishment prescribed for the main offence. That it why, you would find that mostly, at the time of registering the FIR, the police often involve Section 511 alongwith the sections of the main offence. 33. What is the power of the President of India or the Governor of a State to grant pardon to a person convicted of any offence? The President of India and the Governor of a State in India enjoys, under the Constitution of India, very special powers relating to the criminal law. As we know, the Supreme Court is the highest court of law in India. However, the President and the Governor have the power to pardon any person who has been convicted by any court. This power can be exercised by them at any stage, it is not essential that the person must have exhausted the remedy of appeal upto the Supreme Court. That means, even if a person is convicted by the sessions court, he may move a mercy application to the President or Governor without prejudice to his right of filing an appeal to the High Court. However, a convicted person can not claim consideration of his mercy petition as a matter of right and it is the exclusive privilege of the President or Governor. There is no requirement of the convicted person moving a mercy application for the President or Governor to exercise this power. The President/Governor can exercise this power even suo motu on their own without any application from the convicted person in this regard. In exercising power under these Articles, the President and Governor are not bound by technicalities of law, as is in the case of the Courts, and they proceed purely on humanitarian basis without being influenced by the judgment of the convicting Court. This power is not subject to any constitutional or judicial restraints. This power is intended to afford relief from undue harshness.

Part III : Criminal Law Administration System

151

The pardoning power of the President is provided in Article 72 of the Constitution of India : 72(1). The President shall have the power to grant pardons, reprieves, respites, or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence— (a) in all cases where the punishment or sentence is by a Court Martial; (b) in all cases where the punishment or sentence is for an offence against any law relating to any law relating to a matter to which the executive power of the Union extends; (c ) in all cases where the sentence is a sentence of death. (2) Nothing in sub-clause (a) of clause (1) shall affect the power conferred by law on any officer of the Armed Forces of the Union to suspend, remit or commute a sentence passed by a Court Martial. (3) Nothing in sub-clause (c ) of clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force.” The pardoning power of the Governor is provided in Article 161 of the Constitution of India : “ 161. The Governor of a State shall have the power to grant pardons, reprieves, respites, or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to the matter to which the executive power of the State extends.” For understanding the difference in the power of the President and the Governor, one has to first understand that there are certain subjects on which only the Central Government ( through Parliament) can make laws. These subjects are contained in a list called the Union List or List I. There are certain subjects on which only the State Government ( through the State Legislature) can make laws. These subjects are contained in a list called the State List or List II. There are certain subjects on which both the Central as well as the State Government can make laws. These subjects are contained in a list called the Concurrent List or List III. All these three lists are given in the 7th Schedule of the Constitution of India. While the Governor can exercise his powers under Article 161 only in respect of the offences the subject matter of which forms part of the List

152

Courts, Police, Authorities & Common Man

II, the President has wider powers and he can exercise power under Article 72 in respect of the offences the subject matter of which forms part of the List I and also in respect of punishment by the Court Martial and also in all cases of death sentence. Thus, the Governor can not suspend, remit or commute a sentence for an offence under sections 489A-D of the Indian Penal Code because these sections deal with the offences pertaining to the currency and bank notes and the subject matter of currency and bank notes is within the exclusive jurisdiction of the Central Government under Entries 36 and 93 of the List I. Since the power under these two articles is residuary sovereign power, there is nothing to debar the President or the Governor to entertain another petition for pardon, commutation etc. once having rejected the same. There is nothing to debar them from reconsidering the relevant circumstances such as change in world opinion against capital punishment. One has to understand the difference between the various terms used in these articles : ‘Pardon’ means amnesty. ‘Reprieve’ means suspending a sentence. For example, suspending the sentence of an accused during pendency of an appeal. ‘Commute’ means to convert the sentence from one form to another. For example, converting sentence of death into sentence of life imprisonment. ‘Remitting a sentence’ means exempting the accused from undergoing the sentence or any part of it notwithstanding the decision of the Court imposing the sentence. The effect of granting pardon is to absolve the person not only from the penal consequences of the offence but also from civil disqualifications, such as loss of office following from his conviction. However, a suspension or remission of the sentence does not have the latter effect. Pardon has the effect of acquittal of the accused whereas in case of remission, only the punishment is removed but the conviction is maintained. The power of pardon can be exercised by the President or Governor at any stage, including the pendency of an appeal before the Supreme court and the Court would be debarred from hearing the appeal if a full pardon is granted by the President/Governor during pendency of an appeal. However, this is not so in case the President/Governor has issued order only for suspending or remitting the sentence. The power to suspend a sentence is subject to the Rules made by the Supreme Court in exercise

Part III : Criminal Law Administration System

153

of its powers under Article 142, in respect of cases pending before it, in appeal. Thus, if the President/Governor has merely suspended the sentence on the ground that the convict intended to file an appeal before the Supreme Court, the order of the President/Governor would cease to operate as soon as the convict files his petition for special leave to appeal. It would then be for the Supreme Court to pass such orders as it think fit as to whether the petitioner should, pending the disposal of his petition, be granted bail or should surrender to his sentence or the like. In the famous case of Nanavati vs State of Bombay reported in AIR 1961 SC 122, the accused Mr. Nanavati was held guilty of murder of his wife. He had taken the plea that he did so in the fit of grave and sudden provocation on seeing his wife in compromising position with another man, due to which he lost his power of self control and shot his wife. He was sentenced to death. His conviction was upheld upto the stage of Supreme Court. There was large public outcry. Ultimately, he was pardoned by the then President of India. 34. What are the circumstances in which even the Govt. can also remit or commute or suspend the sentence of a convict ? The power to suspend, remit or commute the sentence of a person is also enjoyed by the Government by virtue of provisions of Sections 432 and 433 of the Code of Criminal Procedure. However, the power of pardon is not available to the Government. The Government can suspend the execution of sentence of the offender or remit the whole or part of his punishment, at any time, with or without conditions. If the suspension or remission of sentence is done on conditions, the said conditions should be acceptable to the offender. On receipt of an application for suspension or remission of sentence, the Govt. can, if it so desires, seek the opinion of the Judge of the convicting court and may also require him to send the certified copy of the court record alongwith his written opinion. However, the Govt. is not bound by such opinion. The Govt. can cancel the suspension or remission if any condition, on which such suspension or remission was granted, is not fulfilled by the concerned person. On such cancellation, the person concerned is liable to be arrested by a police officer without warrant and sent to jail to undergo the unexpired potion of his sentence. To file a petition for suspension or remission of sentence in case of a

154

Courts, Police, Authorities & Common Man

male person above the age of 18 years, it is mandatory that he should be in jail and the petition should be filed through the jail superintendent (if he is personally filing the same). If the petition is filed by some other person on this behalf, it should contain a declaration that he is in jail. The Govt. can also commute (i.e. convert or lessen) the sentence of a person without his consent. However, if the accused is sentenced to life imprisonment in case of an offence the maximum punishment for which is death or if his death sentence is commuted to life imprisonment, he is bound to serve minimum 14 years imprisonment. The parallel provisions are contained in Sections 54 and 55 of IPC. The power under Sections 432-433 can be exercised either by the Central Govt. or the State Govt., depending upon the case. For example, if the offence relates to any matter in the List I, the Central Govt. exercises this power. In other cases, the Govt. of the State in which the offender is sentenced exercises this power. If the offence is one which was investigated by the CBI or any other agency of the Central Govt. or which involve misappropriation/destruction/ damage to any property of the Central Govt. or which was committed by a Central Govt. employee while acting in discharge of his official duty, then the State Govt. is bound to consult the Central Govt. before exercising powers under Sections 432-433. 35. What are the circumstances in which a person despite being convicted ( i.e. held guilty) can be released by the Court? The Court under certain circumstances, instead of sentencing to punishment an offender who has been convicted for committing certain offences, can release him. These circumstances are provided in Section 360 Cr.P.C. and almost same provisions reproduced in the Probation of Offenders Act 1958. Under Section 3 of the said Act, if a person is convicted for committing any offence punishable with imprisonment of upto 2 years under the Indian Penal Code (IPC) or any other law or an offence under Sections 379, 380, 381, 404 or 420 of IPC, and he has not been previously convicted, the court convicting him can release him after due admonition if the court is of the opinion that have regard to the circumstances of the case (including the nature of the offence and the character of the offender), it is expedient to do so. Under Section 4, if a person is convicted for committing any offence which is not punishable with death or life imprisonment, the court

Part III : Criminal Law Administration System

155

convicting him can release him on his executing a bond for a period of upto 3 years (with or without sureties) to appear and undergo sentence when called upon and in the meantime to keep the peace and be of good behaviour, if the court is of the opinion that have regard to the circumstances of the case ( including the nature of the offence and the character of the offender), it is expedient to do so. This is called the release on probation of good conduct. However, the court can not release an offender on probation of good conduct unless it is satisfied that the offender resides or would be available within its jurisdiction during the period mentioned in the bond. Before releasing an offender under this Section, the court is bound to take onto consideration the report, if any, of the concerned probation officer in relation to the case. The court may pass a further order, if it of the opinion that it is expedient to do so in the interests of the offender and the public, directing that the offender shall remain under the supervision of a probation officer named in the order for a period of upto 1 year. Conditions can be imposed in this supervision order which are deemed necessary for the due supervision of the offender. If a supervision order is made, the court is bound to require the offender to execute another bond to comply with the conditions mentioned in the supervision order. The intention behind imposing these conditions is to prevent repetition of the same offence or commission of other offences by the offender. The conditions of any bond can be varied by the court on application by the probation officer. If the offender fails to comply with any of the conditions of the bonds, the court may issue his arrest warrant or may issue summons to him and his sureties to appear before the court on the specified day. After hearing the case, if the court is satisfied that the offender has failed to observe any of the conditions of the bonds executed by him, then the court can forthwith sentence him to original imprisonment. If the failure is for the first time, the court may impose a penalty of upto Rs.50/- instead of sentencing him to imprisonment. While releasing an offender under Section 3 or Section 4, the court may make further order directing the offender to pay reasonable compensation for the loss or injury caused to the victim and also reasonable costs of the proceedings. If the offence is punishable with any imprisonment (but not life imprisonment) and the convicted person is under 21 years of age, then he must invariably be released on admonition or probation unless there are

156

Courts, Police, Authorities & Common Man

reasons to be recorded having regard to the nature of the offence and the character of the offender. A person dealt with under Section 3 or section 4 does not suffer any disqualification which is attached to a conviction for an offence under any law. # wherever the word ‘may’ or ‘can’ is there in any law, it should always be understood that it is discretionary and not mandatory. On the other hand, the word ‘shall’ or ‘should’ always mean mandatory or compulsory. 36. What is the law relating to the children? The law related to the children can be categorised into ‘offences by the children’ and ‘offences against the children’. In legal parlance, children are referred to as juveniles, that is, any boy below the age of 16 years or any girl of below the age of 18 years. Offences by children Nothing is an offence which is done by a child under 7 years of age (Section 82 Indian Penal Code). Thus, even if murder has been committed by a child below 7 years, it is no offence in the eyes of law. If the child is above 7 years of age but less than 12 years of age and has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct at the time of commission of the act, then such an act is not an offence in the eyes of law (as per Section 83 Indian Penal Code). If any offence ( bailable or non-bailable) is committed by a juvenile (i.e. any boy below the age of 16 years or any girl of below the age of 18 years), then such a child is entitled to the benefits of Juvenile Justice Act 1986 and he or she can not be sent to jail under any circumstances. Under section 21 of the said Act, he may be allowed to go home after advice or admonition, or he may be released on his executing a bond for keeping good behaviour for period ranging up to 3 years, or he may be sent to special home, or may be released under the supervision of some person appointed by the Competent Authority, etc. When any person accused of a bailable or non-bailable offence is arrested, the police officer or the Magistrate, if it appears to them, that the person is a juvenile, has to forward him/her to the Competent Authority (Juvenile Court, Juvenile Welfare Board etc.) at the earliest. Then the Competent Authority hold an enquiry as to the age of the person. It is the age of the person on the date when he first appear or brought before the Competent

Part III : Criminal Law Administration System

157

Authority, which is relevant. If on that day, he/she is less than 16/18 years, he/she is entitled to the benefits of the Act. Pending enquiry by the Competent Authority, such a person is entitled to bail. If the Competent Authority is of the view that he may again get exposed to criminal activities, it may send him to an observation home. [Arnit Das vs State of Bihar IV (2000) SLT 465 ] A juvenile and a person not a juvenile can not be tried together. Offences against children If any person, having the actual charge/control of a juvenile, - assaults, adandons, exposes or willfully neglect the juvenile or - causes/procures him to be assaulted, abandoned, exposed or neglected in a manner likely to cause such juvenile unnecessary mental or physical suffering, shall be punishable with imprisonment for a term which may extend to 6 months, or with fine, or with both. ( Section 41, Juvenile Justice Act) If a person forces a juvenile to indulge in begging or forces him to consume liquor or drug, he may be punished with up to 3 years imprisonment, besides fine. If a person employs a juvenile and withhold his earnings or uses such earnings for his own purpose, such person also is liable for punishment up to 3 years alongwith fine. This Act is now replaced by Juvenile Justice (Care and Protection of Children) Act 2000. 37. What action I can take against police or any other public officer if they harass me ? You can do all or any of the following : (1) file a criminal writ petition in the High Court (2) file a criminal complaint in Magistrate Court if you can show the action/inaction of the officer falling in any of the offences (3) make a complaint to vigilance wing of concerned deptt. and/or his higher authorities, who would take appropriate action against him under their department rules (4) make a complaint to the Govt. under Public Sevants ( Inquiries) Act 1850. (5) make a complaint to Central Vigilance Commission or Public Grievance Commission (6) send a complaint to Human Rights Commission, Chief Justice of

158

Courts, Police, Authorities & Common Man

Supreme Court and Chief Justice of concerned High Court (7) file a suit for compensation against him in the civil court (Note:kindly also see Notes 12 & 13 in Chapter 3 ‘Other information’) 38. If I have given surety for some accused in Court and he runs away or does not appear in court, what is the worst that can happen to me ? Suretyship is a sort of contract between the surety and the State whereby the surety notionally takes the custody of the accused and undertakes to produce the accused before the court on each date of hearing. If you as surety fails to perform your part, then the surety bond executed by you is forfeited and you are called upon to pay the amount specified in the surety bond. Thus, the maximum that can happen to you is that you can be forced to pay into court the amount mentined in surety bond signed by you, you can not be sent to jail for such failure to produce the accused. It is open to the surety to apply for his discharge at any time before the condition of the bond has been broken. If the surety produces the accused before the Magistrate and requests for discharge from suretyship, the Magistrate has no option but to discharge him from suretyship without reference to or hearing the accused. However, if the surety is not in a position to produce the accused, then (1) the Magistrate first issue warrant of arrest against the accused before discharging the surety. (a) If the accused is brought under arrest or appears in obedience to such warrant, the surety’s request is allowed and he is discharged. (i) If the accused furnish fresh surety, then the order of bail remains. (ii) If the accused is unable to furnish fresh surety, then his bail is cancelled and his bail bond is forfeited and is asked to pay the amount mentioned in his bail bond. (2) the Court on being satisfied that the surety bond has been contravened can pass the order of forfeiture of the surety bond. Before forfeiting the bond, no show cause notice is required to be issued. After forfeiting the bond, the court issue a show cause notice to the surety asking the surety to pay the penalty ( max. penalty is the amount specified in surety bond) or to show cause as to why he should not pay the penalty. No order of penalty can be passed under S.446(1) before issueing such a notice. If the surety satisfactorily explains the reason for non-appearance of the accused, then in spite of forfeiture of the bond the court may remit the whole amount

Part III : Criminal Law Administration System

159

of penalty. The fact that the surety is poor and that the accused had subsequently been arrested may be a good ground for remitting part of the penalty. 39. What is done when the Investigation of a case is to be carried out in a foreign country ? As a general rule, investigations within India are conducted by our police officers. Sometimes, during the course of investigation by local police authorities, it becomes necessary to conduct a part of the investigation e.g. interrogation of a witness/suspect/accused, verification of some facts, etc. in a foreign country, particularly keeping in view the importance of the case, its complicated nature, gravity of the offence, etc. For this purpose, a police officer or a team of police officers is required to be sent to the concerned foreign country. However, Indian police officers have no police powers in any foreign country. Any police action by an Indian police officer on a foreign land would amount to interference with the sovereignty of that country unless some required formalities have been observed. When it is considered necessary to send any investigator’s mission abroad, a message is sent to the Interpol Wing of the CBI so that a request to the National Central Bureau (NCB) of the country concerned can be made for permission by their competent authorities. In such cases, a note incorporating the relevant facts of the case along with the points on which investigation is required to be conducted in a foreign country is usually sent to the Interpol Wing of CBI. If any person is required to be interrogated, a questionnaire is also sent. The mission does not start before the requested NCB has informed that the competent authorities have granted permission. However, some countries do allow exceptions to this rule e.g. in urgent cases, but even in such exceptional cases, the NCB of the requested country is at least informed that investigators are going to be sent to that country. Before sending a mission abroad for investigation, following information is usually furnished to the Interpol Wing of the CBI: (a) Information about the date and duration of the Mission (b) Information about the Investigator(s) in the mission (c) names and ranks of the investigators and the language they use (d) Information about the penal offence to which the mission relates (e) Any other facts which might lead to legal or practical problems in the requested country, like bringing of some special item or some

160

Courts, Police, Authorities & Common Man

suspect etc. The following points should be borne in mind while sending a request to the Interpol Wing for causing investigation abroad : (a) The note/questionnaire/points for investigation should be sent in triplicate. (b) If the investigation is required to be conducted in more than one foreign country, there should be a separate set of questionnaire/points for investigation for each country. (c) A separate questionnaire should be prepared for each witness unless all the witnesses are required to be examined on the same points. (d) The note/questionnaire/points for investigation should be quite clear and specific. (e) The question should be brief and should be narrowed down as far as possible. (f) The material should be carefully examined and scrutinized by the Superintendents of Police concerned to ensure that only relevant material is incorporated in the note and to ensure correctness of the facts and figures. (Note : Kindly see the chapter on Interpol also.) 40. What is the law in India enabling the courts to issue letters of request (letters of rogatory) to the authorities in foreign countries to take evidence in relation to cases pending in India ? The procedure for carrying out investigation in a country or place outside India and also to provide similar assistance to Court or authority outside India for carrying out investigation in India, has been prescribed in Section 166-A and Section 166-B of the Code of Criminal Procedure, 1973 (which were inserted by way of an amendment w.e.f. 19.2.1990). As per these sections, a request can be sent by an Indian Court in which a case is pending to a foreign court/ Judge requesting the testimony of a witness residing within the jurisdiction of that foreign court. The statement of the witness can then formally be taken by the foreign court and transmitted to the issuing Indian court. Such a request or formal communication is also called Letter of Rogatory. Similar procedure is available when such request has come from a foreign court. Ministry of Home Affairs, Govt. of India has notified the procedure for sending such requests from India vide S.O. 444(E) which reads as under “In pursuance of subsection (2) of section 166A of the code of Criminal

Part III : Criminal Law Administration System

161

Procedure, 1973 (2 of 1974), the Central Government hereby specify that a letter of request from any Criminal Court in India referred to in suchsection (1) of that section shall be sent to the Interpol Wing, Central Bureau of Investigation, Government of India, New Delhi- 110003, for transmission to the concerned country or place outside India through the diplomatic channel.” Similarly, the Ministry of Home Affairs has notified the procedure for dealing with the requests for assistance received from abroad vide S.O. 445(E) as under : “In pursuance of subsection (2) of section 166B of the Code of Criminal Procedure, 1973 (2 of 1974), the Central Government hereby directs that all evidence taken or collected under subsection (1) of that section or authenticated copies thereof or the thing, so collected, shall be forwarded by the Magistrate or police officer, as the case may be, to the Ministry of Home Affairs, Government of India, New Delhi- 110001, for transmission to a Court or authority in a country or place outside India through the diplomatic channel.” Ministry of Home Affairs vide O.M. No. VI-25013/53/90-GPA-II dated 6/8th November 1990 has laid down that the following work is required to be handled by the Ministry of Home Affairs, GPA-II Desk in consultation with the Director CBI and Joint Director, Interpol Wing, CBI: (a) receipt of evidence from a court or authority in a foreign country in response to the letter of request sent by a court or authority in a foreign country under section 166-A, and its despatch to the concerned Court in India; (b) receipt of request from a court or authority in a foreign country under subsection 1) of Section 166-B, and after scrutiny thereof by the Interpol Wing of the CBI forwarding the same for taking appropriate action to the Magistrate or Police Officer, as the case may be; and (c) receipt of all evidence taken or collected by the Magistrate or the Police Officer, as the case may be, under subsection (2) of section 166B and its despatch to court or authority in the foreign country from whom the request was received through the diplomatic channel. All correspondence in this regard may be addressed to the Joint Secretary (CS), in the Ministry of Home Affairs/GPA-II Desk, Ministry of Home Affairs. 41. Is prior clearance of Central Govt. required before making a

162

Courts, Police, Authorities & Common Man

request to the Indian court for issueing Letter Rogatory to a foreign court ? Department of Personnel and Training have issued instructions that no request for issuance of a letter of request to any court will be made without prior clearance of the Central Govt. as certain difficulties were experienced in connection with execution of letter of request for investigation abroad and since the process involves matters relating to foreign policy, bilateral diplomatic relations, the procedure laid down in the requested foreign country to handle such requests, assurance for reciprocity, crime scenario at the international level and certain other relevant factors which may need prompt guidance and assistance from the Govt. It is also an expensive and time consuming exercise. It is, therefore, imperative that a reference to the Central Government be made to obtain this clearance whenever it is found that such an assistance is needed under section 166-A of the Cr.P.C. A reference to Interpol Wing may be made to ascertain the name of the competent authority in the requested country and also the requirements of the law of the requested foreign country to take up such requests, the language in which such requests are to be translated along with the documents accompanying the request and whether we have any legal mutual assistance treaty, agreement, MOU, or arrangement with the requested foreign country and the requirements thereof. Some countries have the requirement of obtaining an undertaking by the Government of India to assure reciprocity. The principle of dual criminality is relevant in most of the foreign countries and it has to be ensured that this requirement is duly attended to. A request to the Court of Competent jurisdiction may be made in the light of above information to issue a Letter of Request to the concerned Competent Judicial Authority in the requested country. This request should provide brief facts of the case, particulars of the witnesses to be examined, details of the documents to be collected, the evidence to be collected and the relevance of the same to the investigation of the case, the justification for investigation abroad to collect the said evidence and should indicate whether the requirements of the requested state have been complied with. 42. What happens when letter rogatory is issued by an Indian court to a foreign court ? In case the Court in India decides to issue the Letter of Request as prayed, the same is issued by the Court and is addressed to the competent judicial authority of the requested country and contain material showing the

Part III : Criminal Law Administration System

163

competence and jurisdiction of the issuing Indian court, identity particulars and brief facts of the case, names of the accused against whom the investigation is directed, relevant legal provisions and their description, punishment prescribed, etc. The relevant extracts of the legal provisions are usually enclosed for perusal and reference of the requested competent judicial authority in the requested country. The request clearly spell out the assistance sought. When requesting for statement of the witnesses, a detailed questionnaire is also enclosed for each witness separately to enable the requested judicial authority to record the evidence. Identity, particulars of each of the witnesses to be examined are also mentioned clearly with full address. When the assistance is sought to collect or prove any document, the requirements are clearly spelt out and a copy of the relevant enactment is also enclosed. The letter of request after it is issued is sent to the Interpol Wing of CBI, New Delhi for transmission to the requested authority through diplomatic channels. In certain countries viz, USA, their law requires that a notice has to be given to the accused while collecting evidence during investigation and the evidence collected without observing their procedure may not be allowed to be entered against the accused in that country. However, there is no such requirement under the criminal procedure law of our country and, therefore, it is not necessary to give such a notice while executing a request for such assistance from this country which would delay the process without any ensuring benefit. [Issued vide MHA Letter No. VI.25013/53/90.GPA.II dated 3.7.1996] 43. Which are the countries with which India has Mutual Legal Assistance Treaties ? India has Mutual Legal Assistance Agreements/Treaties in Criminal matters with following 6 countries : 1.

U.K.

2. 3. 4. 5. 6.

Canada France Russia Kyrgyzstan Kazakhstan

(Agreement concerning the investigation and prosecution of crime and the tracing, restraint and confiscation of the proceeds of and instrument of crime (including currency transfers & terrorist funds). -do-do-do-do-

164

Courts, Police, Authorities & Common Man

44. What is extradition ? Extradition may be briefly described as the surrender of an alleged or convicted criminal by one State to another. More precisely, extradition may be defined as the process by which one State upon the request of another surrenders to the latter a person found within its jurisdiction for trial and punishment or, if he has been already convicted, only for punishment, on account of a crime punishable by the laws of the requesting State and committed outside the territory of the requested State. Recently, the efforts for extradition of famous Indian music director Nadeem from U.K. and extradition of noted criminal Abu Salem and his accomplice Monika Bedi from Portugal has been in the news. 45. What is the law in India regarding extradition of criminals from foreign countries to India and from India to foreign countries ? In India, the extradition of a fugitive from India to a foreign country or vice-versa is governed by the provisions of Indian Extradition Act, 1962. The basis of extradition could be a treaty between India and a foreign country. Under section 3 of this Act, a notification could be issued by the Government of India extending the provisions of the Act to the country/ countries notified. Suppose, some criminal has committed an offence in India and has ran away to Italy. Then, the concerned police in India through diplomatic channels can request the Govt. of Italy to hand over the said criminal. However, such a request can be made by the Indian police only if (a) India has an extradition treaty/arrangement with Italy, and (b) The offence in question is an extraditable offence Information regarding the fugitive criminals wanted in foreign countries is received by India directly from the concerned country or through the General Secretariat of the Interpol in the form of red notices. The Interpol Wing of the Central Bureau of Investigation immediately passes it on to the concerned police organizations. The red notices received from the General Secretariat are circulated to all the State Police authorities and immigration authorities. The question arises that what action, if any, can be taken by the Police on receipt of an information regarding a fugitive criminal wanted in a foreign country and believed to be hiding in India. In this connection the following provisions of law are relevant : A. Action can be taken under the Indian Extradition Act 1962. This

Part III : Criminal Law Administration System

165

act provides procedure for the arrest and extradition of fugitive criminals under certain conditions. B. Action can also be taken under Section 41 (1) (g) of the Cr.P.C. which authorizes the police to arrest a fugitive criminal without a warrant if the following two conditions are fulfilled: (a) the person is concerned in or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, could have been punishable as an offence. (b) If he is under any law relating to extradition or otherwise liable to be apprehended or detained in custody in India. In view of the above it is clear that action to arrest a fugitive criminal wanted in a foreign country can be taken only in respect of those requesting countries who have extradition treaties/arrangements with India. In other cases, the police can only keep a discreet surveillance over the movements of the fugitive criminals keeping the Interpol Wing informed. In case the fugitive criminal is an Indian national, action can also be taken under section 188 Cr.P.C. as if the offence has been committed at any place in India at which he may be found. The trial of such a fugitive criminal can only take place with the previous sanction of the Central Government. 46. What is the procedure for seeking the extradition of a criminal from a foreign country ? The Central Bureau of Investigation vide its Circular No. IP-3/1/96/5982 dated 19th November, 1996 has laid down the following general procedure to be followed for seeking the extradition of a fugitive offender : A. For considering extradition of a fugitive offender from foreign State a request should be made through diplomatic channels. The request should normally be accompanied with the following documents: 1.

Facts of the case.

2.

Copy of FIR

3.

Copy of charge sheet, if already filed in the Court.

4.

Warrant of arrest.

5.

Nationality, identity and address of the accused including his photograph.

166

Courts, Police, Authorities & Common Man

6.

Evidence/statement of witnesses in support of the request for the purpose of establishing that a prima facie case is made out against the fugitive criminal.

7.

Copy of the relevant provisions under which the accused is charged along with the provisions indicating that the prosecution is not barred by time including a brief statement of the relevant laws indicating the maximum sentence prescribed for the offence for which the accused is charged or convicted.

8.

Proclamation by court, if any.

9.

If the accused is already convicted, then the copy of the relevant judgement of the court.

10. Relevant provisions of the Extradition Treaty under which the offences which are alleged to have been committed by the accused fall. B. The request should be supported by a self-contained affidavit containing the facts of the case and referring at the appropriate places the statements of witnesses and other documentary evidence, existence of the warrant issued against the fugitive criminals, establishing their identity; provisions of the law invoked, etc., etc., so that a prima facie case is made out against the fugitive criminals. This affidavit usually should be sworn by a senior officer in charge of the case. The affidavit should also include: (i) Paragraph 1 of the affidavit should indicate the basis/capacity in which the affidavit was executed. (ii) The statement of witnesses of the requesting State etc. should be admissible under the law. Accordingly, the affidavit should indicate that the statement of witnesses/confessional statements are admissible in that State. (iii) The affidavit should indicate that the law in question was enforced at the time of commission of offences and it is still in force including the penalty provisions. (iv) The affidavit should also indicate that the prosecution for the offences for which the accused is charged are not barred by time. (v) The affidavit should also indicate that the accused if extradition to the requesting State is granted, will be tried in that State for only those offences for which his extradition is being sought or for any other lesser offence disclosed by the facts proved for the purposes of securing his extradition.

167

Part III : Criminal Law Administration System

(vi) The affidavit should indicate the probable address of the fugitives in the requesting State. If any, and also establish the identity of the fugitive persons whose extradition is being sought. Photographs of the accused, their finger prints, etc. may be given for this purpose. (vii) The statement of witnesses etc. should be sworn statements. (viii) All the documents should be properly attested/authenticated by the competent authority. C. The complete extradition request should be properly stitched/bound and sealed which the official sell of the requesting State. The extradition request is usually required to be made in quadruplicate. The extradition request should be forwarded to Joint Secretary(CPV), Ministry of External Affairs, Patiala House, New Delhi who then forwards it to the appropriate authority in the concerned foreign country. 47. Which are the countries with which India has extradition treaty ? India has Extradition Treaty in operation with following countries : 1. 4. 7. 10.

Nepal Netherlands France Bhutan

2. 5. 8. 11.

Belgium U.A.E U.S.A Hong Kong

3. Canada 6. U.K 9. Switzerland

48. Which are the countries with which India has extradition arrangements? India has Extradition arrangements with following 8 countries : 1. Sweden

2.

Tanzania

3. Australia

4. Singapore

5.

Sri Lanka

6. Fiji

7. Papua New Guinea

8.

Thailand

49. What is done when foreigners are arrested in India ? On various occasions, foreigners are arrested in India for violation of existing laws particularly concerning customs, narcotics drugs, etc. A foreigner may be arrested in India for committing a trivial offence e.g. staying in India beyond the period of visa endorsed in his passport or possession of a few grams of narcotics drugs but at the same time, he may also be a dangerous criminal wanted in a foreign country for having committed any heinous offence and traveling or staying in India on the strength of a forged passport or he may be a habitual offender or a member

168

Courts, Police, Authorities & Common Man

of an international drug smuggling syndicate which the authorities effecting the arrest may not be aware. Therefore, whenever a foreigner is arrested in India, a report should immediately be sent to the Interpol Wing with a view to check the true identity of the foreigner and his criminal antecedents, if any. The arrest report of the foreigner should contain the following details: - Correct name of the foreigner arrested. - Nationality - Date and place of birth. - Parentage. - Residential address abroad. - Number, date and place of issue of the passport. - Photograph and fingerprints, in triplicate. - Details of the case including the date of arrest, nature of offence committed, etc. The above mentioned personal particulars of the foreigner arrested can be easily and correctly obtained from the passport in his possession. In case a foreigner is not in possession of a passport, he should be thoroughly interrogated to obtain these particulars. In almost all the American and European countries, the date and place of birth of a person is essential to check his antecedents from the computerized data. The date and place of birth of a foreigner should, therefore, always be furnished. Since the photograph and fingerprints are required to be sent to foreign NCBs, these should be of high quality so as to enable the General Secretariat and the foreign NCBs to conduct a proper check from their records. In order to complete the police information about a foreigner at national as well as international level, the results of judicial proceedings including the date of conviction, name of the court, details of charge (s) proved and sentence awarded by Indian court should be immediately furnished as soon as the trial is over. In case, a fine is imposed, it should be mentioned whether the fine has been paid by the accused or not. On various occasions, notices/requests are received from the Interpol for arrest of a person in India. Such requests are processed in the Interpol Wing and the police authorities concerned are requested to locate and arrest the wanted person only when the arrest is permissible under our law. In such cases arrest should only be made if it has clearly been requested for by the Interpol Wing and is otherwise legal under our law.

Part III : Criminal Law Administration System

169

Arrest should not be made merely at the request of the Interpol or a foreign NCB. It is, however, not so in case of a foreigner who has violated any law of our land, when the normal process of legal formalities will have to be observed. 50. What happens when Indians are arrested in foreign countries ? The Interpol Wing, CBI receives arrest reports along with photographs and fingerprints of Indian nationals from foreign NCBs. When such references are received, the fingerprints are sent to the National Crime Records Bureau for record and checking of pervious convictions, if any. Simultaneously, the concerned local police authorities are requested to cause enquiries about the true identity and antecedents of the Indian nationals arrested abroad. Such enquiries should be caused promptly and a report sent to the Interpol Wing, CBI for onward transmission to the General Secretariat and the NCBs concerned. The report should include all relevant information about true identities and antecedents of such persons and any other information which may be required by the foreign NCBs. The remedy available to the arrested Indians is to contest/challenge their arrest in the court of the country where they are arrested. In addition, they can also contact the Embassy/consulate of India in the said foreign country for helping them out. (Note : Kindly see the chapter on Interpol also.)

3 OTHER INFORMATION

1. Where can I find the decisions delivered by the High Court and the Supreme Court ? The decisions and judgments of the Courts are reported in various books/ journals called ‘reports’. Only the decisions of the High Courts and of the Supreme Court are reported. The decisions of the District Courts and the Subordinate Courts are not reported, as these are not binding. The decision of the High Court is binding on the District and Subordinate Courts and the decisions of the Supreme Court are binding upon all the Courts.(though some publishers report decisions of consumer courts, ITAT, STAT etc. also) The decisions of the Supreme Court are reported in various reports/journals such as AIR (All India Reporter), SCC (Supreme Court Cases), SLT (Supreme Law Times), AD (Apex Decisions), etc. The decisions of all the High Courts are reported in AIR, All India High Court Cases, etc. Several Journals only report the decisions of a particular High Court like DLT (Delhi Law Times), DRJ (Delhi Reported Judgments) report the decisions of Delhi High Court only. Nowadays, these decisions are also available on computers on CD-ROM and also through internet on subscription basis, by companies like Grand Jurix, Manupatra, etc. The select judgments of the Supreme Court and of certain High Courts can also be accessed via internet by logging on to the websites of the respective courts. However, as per The Indian Law Reports Act 1875, the Court is not bound to hear or rely on just any judgment of High Court cited by the parties. Only the judgments which have been reported in the Reports published under the authority of the State Government concerned are binding upon the Courts. 2. What is a ‘Cause List’ ? A cause list is the list of cases to be taken up by a court on a given day. On a given day, each court may have about 50-100 cases. All these cases are arranged in serial numbers in this list. These cases are taken up in the

Part III : Criminal Law Administration System

171

courts as per this list. The serial number of a case in the list in common parlance is called the ‘item number’. This list helps the litigant to find out as to when his matter will be taken up. In the High Courts and the Supreme Court, generally a case is called by its item number, unlike in the district courts where the case is usually called by its title (like Ram Kumar versus Shyam Lal). The cause list of the Supreme Court and of majority of the High Courts can be seen in advance nowadays on the internet by logging on the website www.causelists.nic.in. 3. What are the various statutory bodies of advocates ? Each profession is governed by a separate law/Act. The advocates throughout India are governed by the Advocates Act 1961. The supreme body of the advocates under this Act is the Bar Council of India followed by a separate Bar Council for each State. Any law graduate becomes entitled to practice in courts only after he enrolls himself with the Bar Council of the State where he practice. In practice, an advocate appear and argue in any court in India, though as per law, he can appear and argue only in the courts of the State where he is enrolled. All matters of discipline and professional ethics are controlled and administered by the State Bar Councils. There are various courts within a State. For the purpose of common benefit and interest, the advocates practicing in these courts associate themselves in the form of associations. However, these associations do not have statutory status and are merely private bodies, mostly registered under the Societies Registration Act. For example, advocates practicing in Delhi High Court have formed Delhi High Court Bar Association, those practicing in district courts at Tees Hazari in Delhi have formed Delhi Bar Association, those practicing in district courts at Patiala House in Delhi have formed New Delhi Bar Association, so on and so forth. There is no bar on an advocate becoming member of more than one Association. It is not mandatory for an advocate to become member of any such Association either. 4. How to identify a senior advocate ? The Advocates Act 1961 governs the profession of advocates. Based on the ability, knowledge, experience, expertise and standing at the bar, an advocate is designated as Senior advocate by the High Court or the Supreme Court, as the case may be, depending upon the court in which he is practicing. It is an honour and distinction conferred by the Court in

172

Courts, Police, Authorities & Common Man

recognition of the ability and standing of the concerned advocate. Section 23 of the Advocates Act provides for right of pre audience for senior advocates among others. However, in practice, there is no fixed criteria for designation of an advocate as senior advocate. One would find an advocate of even 40 years designated as Senior Advocate but an experienced advocate of even 60 years not designated as senior advocate despite applying by him. The type of dress to be worn by the advocates is prescribed in Chapter IV under Section 49(1)(gg) of the Advocates Act. It does not make any distinction between the dress of an advocate and a senior advocate. However, by convention and tradition which is being continued from the British days, the Senior Advocates wear a somewhat different dress. They wear Queens Council gowns having overflowing arms, embroidery and frills, which is different and distinct from the normal gown worn by all other advocates. Also, they wear a short jacket/coat decorated with frills and fineries in comparison to a simple coat worn by all other advocates. Recently, a petition challenging the practice of wearing of different gown and coat by the senior advocates as discriminatory and violative of Article 14 of the Constitution was turned down by the Delhi High Court in the case of J.R.Prashar vs Bar Council of India reported in 99(2002) DLT 441. 5. Who is ‘Amicus Curie’ ? ‘Amicus curie’ is a French phrase meaning ‘friend of the court’. When a person is present in person and is unable to plead its case properly, then the court can appoint any person, usually any advocate present at that time in that court, as the advocate to represent the person in question. This is done to assist the court for the better and proper adjudication of the matter in controversy and such a practice is in line with the constitutional provision that every person has a right to be defended by a legal practitioner. Such an advocate is then referred to as amicus curie. He is paid a notional amount as fee by the Govt. or by the Legal Aid or by the Bar Association concerned, by the order of the court, as token of appreciation for his services. The concept of amicus curie is mostly prevalent in the Supreme Court, the High Courts and the National Consumer Disputes Redressal Commission. 6. What is the meaning of ‘Life Imprisonment’? Various types of punishments are provided in the Indian Penal Code and other Acts dealing with criminal liability. The various types of punishments which can be awarded under the IPC are prescribed in Section 53 thereof (a) Death

Part III : Criminal Law Administration System

(b) (c) (d) (e)

173

Life imprisonment Imprisonment – simple or rigorous ( i.e. with hard labour) Forfeiture of property Fine

The imprisonment can be for any number of years/months/days, depending upon the nature and gravity of the offence. ( incidentally, the minimum punishment can even be -to sit in the court and remain in court’s custody ‘till rising of the court’, as indicated in Section 418 CrPC). The maximum punishment is the death sentence. The second maximum punishment is the Life Imprisonment. There has been different opinion as to what is the tenure of a life imprisonment. Some jail manuals prescribe it as for 14 years. But, the Courts have held that the jail manuals can not override the provisions of the IPC. Section 57 of IPC is in following terms : “ Fractions of terms of punishment : In calculating fractions of terms of imprisonment, imprisonment for life shall be reckoned as equivalent to imprisonment for 20 years”. Section 55 IPC authorize the Government to commute punishment for a term not exceeding 14 years in every case in which sentence of life imprisonment “shall have been” passed. The confusion was cleared up and true interpretation was laid by the Judicial committee of the Privy Council in the case of Pandit Kishori Lal vs King Emperor AIR 1945 PC 64 which was subsequently approved in G.V.Godse vs State of Maharashtra AIR 1961 SC 600 wherein the court observed : “ under Section 57 IPC, a person transported for life would be treated as a person sentenced to rigorous imprisonment for life”. In State of Madhya Pradesh vs Ratan Singh AIR 1976 SC 1552 a question arose whether sentence for life as defined in section 57 can be limited for a period of 20 years and does the govt. has a discretion to remit and commute sentence as under section 432 Cr.P.C. The court held that the prisoner who has been sentenced for life can not be released after 20 years as provided under various jail manuals and Prison Act 1894 as they can not supercede the statutory provisions of the IPC. A sentence for life means sentence for convict’s whole natural life i.e. the person has to spend his whole life in the prison unless the Govt. choses to exercise its discretion under relevant provisions of IPC or Cr.P.C.Thus, he can be released earlier also by the Govt., by exercising its powers under Section 432 of the Cr.P.C., after considering his good behaviour and attitude while in the jail.

174

Courts, Police, Authorities & Common Man

7. What is the law relating to jails in India ? The law relating to the jails in India is contained in The Prisons Act 1894 and the rules framed thereunder. The different State Governments have framed their own rules ( called Jail Manual) under Section 59 of the Prisons Act 1894 which govern the working and administration of jails in their respective States. The Jail Manual which is very exhaustive and is infact followed by most of the jails in India is the Punjab Jail Manual. This Manual interalia deals with Jail Superintendent, Inspector General, Medical officer, Jail officers, visitors, guarding of prisoners, entry and exit of prisoners in the jail, belongings of the prisoners, release of prisoners, classification and accommodation of prisoners, discipline in jail, daily routine of prisoners, offences committed inside prison, facilities to prisoners, employment of prisoners, death in jail, female and child prisoners, procedure in case of prisoners condemned to death, etc. etc. 8. Why a person is always hanged in case of death penalty ? What is the procedure laid down for executing death sentence by hanging ? The Code of Criminal Procedure provides in Section 354 as to what should be the language and contents of judgment in a criminal case. The Code makes it necessary under Section 354(5) that in cases where the accused is sentenced to death, the sentence be executed by hanging the accused by neck till he is dead. The Section 354(5) is reproduced herein below : “ When any person is sentenced to death, the sentence shall direct that he be hanged by neck till he is dead”. As can be seen, the section uses the word ‘shall’ and thus it is mandatory for all courts in India to provide for the execution of death sentence by hanging the person by neck till he is dead. The procedure for executing the death sentence by hanging is laid down in Rules 872 and 873 of the Punjab Jail Manual which contains the rules framed under the Prisons Act 1894 and which are followed by almost all States. The said Rules are reproduced as under : 872. Time of executions. Procedure to be adopted. (1) Executions shall take place at the following hours : November to February



8 A.M.

March, April, September and October



7 A.M.

May to August



6 A.M.

(2) The Superintendent and Deputy Superintendent will visit the

Part III : Criminal Law Administration System

175

condemned prisoner in his cell a few minutes before the hour fixed for execution. The Superintendent shall then first identify the prisoner as the person named in the warrant and read over a translation of the warrant in vernacular to the prisoner. Any other documents requiring attestation by the prisoner, such as his Will shall thereafter be signed and attested in the presence of the Superintendent. The Superintendent will then proceed to the scaffold, the prisoner remaining in his cell. In the presence of the Deputy Superintendent, the hands of the convict will next be pinioned behind his back and his leg irons ( if any) struck off. (3) The prisoner shall now be marched to the scaffold under the charge of the Deputy Superintendent and guarded by a head warder and six warders; two proceeding in front, two behind and one holding either arm. (4) On the arrival of the prisoner at the scaffold where the Superintendent, Magistrate and Medical Officer have already taken their places, the Superintendent shall inform the Magistrate that he has identified the prisoner and read that warrant over to him in vernacular. The prisoner shall then be made over to the executioner. (5) The criminal shall now mount the scaffold and shall be placed directly under the beam to which the rope is attached, the warders still holding him by the arms. (6) The executioner shall next strap his legs together, place the cap over his head and face and adjust the rope tightly round his neck, the noose being 1 ½ inches to the right or left of the middle line and free from the flap of the cap. (7) The warders holding the condemned man’s arms shall now withdraw and at a signal from the Superintendent, the executioner shall draw the bolt. 873. Body to remain suspended half an hour. Return of warrant. (1) The body shall remain suspended half an hour and shall not be taken down till the Medical Officer declares life extinct. (2) The Superintendent shall return the warrant of execution with an endorsement to the effect that the sentence has been carried out. This Manual also contains rules as to the diameter of the rope, the custody and testing of rope, fitness of hangman etc. etc.

**

176

Courts, Police, Authorities & Common Man

9. What is parole ? The condition of the prisoners is controlled by the Jail Manuals of the jails in which they are kept. ‘Parole’ is a term which finds mention in the jail manuals and not in any Act. Parole means the temporary release of a prisoner for a few days to meet some urgent pressing problem of the prisoner. While bail is applicable in case of the accused lodged in jail during the pendency of their case in the court, parole is applicable where the accused has been convicted by the court and he is serving the sentence of imprisonment in the prison. The jail manuals generally prescribe the situations when a prisoner can be granted parole. Parole is generally granted to a prisoner when a member of his family has died or is seriously ill or he himself is seriously ill or on the ground of his marriage or the marriage of his close relative or for any other sufficient cause. Ordinarily, the period during which the prisoner is out of jail on parole is counted towards the total period of imprisonment undergone by him unless the rules, instructions or the terms of grant of parole prescribe otherwise. The grant of parole is generally an administrative action and is usually granted by the Government. 10. What are Lok Adalats ? Lok Adalats are the special type of courts which have been constituted for the purpose of effecting compromise or settlement between the parties to a case. The Lok Adalats are constituted and are dealt with under Chapter VI and VII of the Legal Services Authorities Act 1987. However, the Lok Adalat can settle/entertain only those cases which are compoundable. It has no jurisdiction to entertain any case or matter relating to an offence not compoundable under any law. Generally, the petty cases are settled through Lok Adalats so as to reduce the burden on the regular courts and to provide speedy relief to the litigants. If the case is pending before the regular court and one of the parties make an application to the court for referring the case to the Lok Adalat on the ground that there are chances of settlement and that it would serve no purpose by continuing with the case, the court, if satisfied that the matter is compoundable, refer the matter to the Lok Adalat for settlement and disposal. Even both the parties can also make a joint application/prayer. If the matter is not sorted out amicably in the Lok Adalat, then the party can revive the case before the regular court on the ground that there is no possibility of settlement. In Delhi, in case of petty criminal offences, the Lok Adalats are currently held on Saturday/Sunday in the Tis Hazari courts complex. For this, a

Part III : Criminal Law Administration System

177

schedule is announced by the CMM / District Judge. For cases related to electricity, there is permanent lok adalat functioning in Vikas Bhawan, near Minto Road, New Delhi. For cases relating to accidents claims, the lok adalats are being held by the insurance companies to settle the claims. For cases relating to telephone deptt., the lok adalat is being held by MTNL periodically. For poor people who can not afford the cost of litigation, the Authorities under the Act have constitutued Legal Aid centers in all States where the poor litigants can avail legal services free of cost on applying in the prescribed performa. 11. Do the politicians enjoy any privilege in respect of offences committed by them ? The politicians, just like any other person, are liable to be punished for the offences committed by them. In addition, they are also liable to be punished under the Prevention of Corruption Act 1988 for acts of bribery and corruption. However, the politicians enjoy certain immunity from any proceeding in respect of anything said or done by them in the Parliament or Legislature. For anything said or done outside the Parliament or Legislature, they would be liable just like an ordinary person. Under Article 105, the MP (Members of Parliament) enjoy certain privileges and immunities. There is freedom of speech in the House, of course subject to other provisions of the Constitution and to the rules and standing orders regulating the procedure of the Parliament. No case can be filed against an MP in any court for anything said or any vote given by him in Parliament. Under Article 194, the MLA (Members of Legislative Assembly) in the State enjoy certain privileges and immunities. There is freedom of speech in the Assembly/Legislature, of course subject to other provisions of the Constitution and to the rules and standing orders regulating the procedure of the Legislature. No case can be filed against an MLA in any court for anything said or any vote given by him in the Legislature. It was held by the 5 Judge Constitution Bench of the Supreme Court (majority view of 3 judges)) in P.V.Narsimha Rao vs State AIR 1998 SC 2120 (also called JMM Bribery case) that : -

M.P. is covered within the definition of Section 2(c) (viii) of the Prevention of Corruption Act.

-

MP can be prosecuted. In his case, before filing the charge sheet, the

178

Courts, Police, Authorities & Common Man

permission can be obtained from the Chairman Rajya Sabha or the Speaker Lok Sabha, as the case may be. (However, the minority view i.e. the view of other 2 judges was that MP can not be prosecuted under sections 7, 10, 11 or 13 of the said Act for want of sanctioning authority. Under Section 197 CrPC, prior sanction is required for prosecution of judges and public servants) -

MP enjoy immunity from prosecution for an offence of bribery committed in relation to anything said or any vote given by him in Parliament, by virtue of Art. 105(2) of the Constitution. (However, minority view was that such interpretation would be repugnant to healthy functioning of parliamentary democracy and would be subversive of the rule of law, which is also an essential feature of the Basic structure of the Constitution). ‘Public servant’ is defined under IPC ( Section 21) as well as under Prevention of Corruption Act (section 2 (c) (viii). However, the definition under the said Act is more wider than in IPC. In section 21 IPC, the emphasis is on ‘employment’ while in the said Act, the emphasis is on ‘performance of ‘public duty’. This has enlarged the scope of ‘public servant’ so as to include MP, MLA, etc.

However, President and the Governors enjoy total protection from criminal proceedings. Under Article 361, the President of India and the Governor of a State can not be arrested or imprisoned nor any criminal proceeding can be instituted or continued against them, in any court, during the term of their office. However for any act done by them in their personal capacity whether before or after they became president/governor, civil proceedings can be instituted against them during the term of their office by giving 2 months notice in writing. The President or Governors are not answerable to any court for the exercise and performance of powers and duties of their office or for any act done or purporting to be done by them in the exercise and performance of those powers and duties. 12. Can a person file petition directly in the High Court or in the Supreme Court if he is harassed or tortured by Government functionaries ? Yes. Such a right is granted by the Constitution of India. The Constitution guarantees certain rights to the people of India (even to foreigners in some cases). These rights are enlisted in Part III of the Constitution comprising Articles 12 to 35. If any of these rights are violated by any person or authority including the

Part III : Criminal Law Administration System

179

Government, then the aggrieved person can file a writ petition under Article 226 of the Constitution of India in the concerned High Court for the enforcement of these rights. Such a writ petition before the High Court can be filed not only in respect of violation of fundamental rights, but also in respect of violation or breach of any right. If an order, rule or law is passed or any action/omission is done by any Government machinery which is contrary to the underlying spirit of the Constitution, the High Courts can struck down such an order, rule or law. Similarly, a writ petition under Article 32 of the Constitution can be filed directly in the Supreme Court for the enforcement of the fundamental rights. In the case of violation of any of the provisions of the Code of Criminal Procedure 1973 (Cr.P.C.) or when there is no other remedy available for getting justice as far as the criminal law is concerned, any one can approach the High Court by filing a petition under Section 482 of the Cr.P.C. 13. Where and how should I complain against Govt. servants and public authorities ? Generally, each Govt. department or Institution or Organisation has a vigilance deptt. of its own. In case you are aggrieved by the act or omission of any of their officers, you can make a complaint to the vigilance deptt. of the concerned organisation. In case you have to make a complaint regarding corruption by some officer, you can get in touch with the Crime Branch or anti-corruption branch of the State Police. In addition to this, you can also make complaint to the Central Bureau of Investigation (CBI) or the Central Vigilance Commission (CVC), if your case falls within the power of the said organizations. In certain States, Public Grievance Commission have been established wherein people can file their complaint regarding corruption etc. in respect of the State Govt. employees. In Delhi, this Commission is at Vikas Bhawan and it entertain complaints against various govt. authorities of Delhi including the Delhi Police. However, there is a set proforma and procedure to lodge the complaint. The complaint has to be in triplicate and has to be supported by an affidavit and the complainant has to appear personally. In Delhi, one can also make a complaint to the Lt. Governor by calling at his Complaint Cell at tel. no. 22945000. A complaint against a public servant regarding misconduct can also be given in writing on oath to the appropriate Government under the Public Servants ( Inquiries) Act 1850.

180

Courts, Police, Authorities & Common Man

There are proposals to bring into force Right to Information Act in various States and also at the Central level which would empower the people to seek information/report/follow up action on their correspondence in the different departments by paying a nominal fees. Delhi has taken the lead in this direction by enacting Delhi Right to Information Act 2001. By making an application to the competent authority in writing in the prescribed form accompanied with a fees of Rs.50, you can seek information or material relating to the affairs of the National Capital Territory of Delhi. You can also inspect the documents, records, works and can take the notes, extracts and certified copies of the documents. However, in case of seeking information relating to tender documents, bids, quotations, business contracts, the prescribed fees is Rs.500/-. If the authority fails to furnish the information asked for, within a maximum period of 30 days, it is liable to pay a penalty of Rs.50/- per day for the delayed period, subject to a maximum of Rs.500/-. However, the authority is not bound to provide information on certain serious matters specified in Section 6. The Central Govt. has recently enacted a similar Act i.e. Freedom of Information Act 2002 (5 of 2003) wherein information relating to any public authority (excluding certain specified intelligence and security organisations) can be obtained. In case you are aggrieved regarding the violation of the human rights of anybody, you can make a complaint to the National Human Rights Commission or the Human Rights Commission in your State which have been established under the Protection of Human Rights Act 1993. ‘Human rights’ have been defined in the said Act to mean the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution of India or embodied in the International Covenants (international covenants on civil, political, economic, social and cultural rights adopted by the General Assembly of the United Nations on 16th December 1966) and enforceable by courts in India. If case the act or omission of the officer falls within any of the offences prescribed in the Indian Penal Code or in any other Act/law/enactment, you can also file a criminal complaint in the court of the Magistrate of the first class (Metropolitan Magistrate in Delhi) under Section 190 of the Code of Criminal Procedure 1973. The procedure on filing of such complaint is governed by Chapter 15 of the said Code. If you have no other remedy or if your above efforts have failed to bring about any positive result, you can file a writ petition either in the High Court (under Article 226 of the Constitution of India) or in the Supreme Court (under Article 32, but only if your fundamental rights have been

Part III : Criminal Law Administration System

181

affected). In addition, there are C.C.S.(CCA) Rules 1965 including Conduct Rules which govern the service conditions of the Govt. officers and provide departmental penalties for them for acts of misconduct and other such acts. 14. What is Gazette? What is its authority? What is contained in it? From where, I can procure the Gazette ? Gazette is the official document of the Govt. which contains the orders, notifications, circulars etc. issued by the Govt./parliament/other authorities etc. from time to time. For the matters related to Centre (List I of Constitution), the notifications etc. are published in the Gazette of India. For matter related to State (List II of the Constitution), the notifications etc. are published in the Gazette of the respective State. Any law, after it is passed by the Parliament and after being signed by the President of India, is required to be published in the Gazette of India for it to become enforceable. Any law does not become an enforceable law until it is published in the Gazette. Same is the case with the State Gazette. The earliest Act related to Gazette in India is Act No. XXXI of 1863 which brought into existence the Gazette of India. It received the assent of the Governor General on 16th December 1863. There are many parts of Gazette of India. The Parts further are divided into Sections. The subjects dealt with under various Parts and Sections thereof are as under: PART I Section 1

: Notifications relating to Non-Statutory Rules, Regulations, Orders & Resolutions issued by the Ministeries of the Govt. of India (other than the Ministry of Defence) and by the Supreme Court.

Section 2

: Notifications regarding Appointments, Promotions, Leave etc. of Govt. Officers issued by the Ministry of Defence and by the Supreme Court.

Section 3

: Notifications relating to Resolutions and Non-Statutory Orders issued by the Ministry of Defence

Section 4

: Notifications regarding Appointments, Promotions, Leave etc. of Govt. Officers issued by the Ministry of Defence.

182

Courts, Police, Authorities & Common Man

PART II Section 1

: Acts, Ordinances and Regulations

Section 1A : Authoritative taxts in Hindi language of Acts, Ordinances and Regulations Section 2

: Bills and Reports of the Select Committee on Bills

Section 3(i) : General Statutory Rules (including Orders, Bye laws etc. of general character) issued by the Ministries of the Govt. of India ( other than the Ministry of Defence) and by Central Authorities (other than the Administration of Union Territories) Section 3(ii) : Statutory Orders and Notifications issued by the Ministries of the Govt. of India (other than the Ministry of Defence) and by Central Authorities (other than the Administration of Union Territories) Section 3(iii) : Authoritative texts in Hindi (other than such texts, published in Section 3 or Section 4 of the Gazette of India of General Statutory Rules & Statutory Orders (including Bye-Laws of a general character) issued by the Ministries of the Govt. of India (including the Ministry of Defence) and by Central Authorities (other than the Administration of Union Territories) Section IV

: Statutory Rules and Orders issued by the Ministry of Defence

PART III Section 1

: Notifications issued by the High Courts, the Comptroller and Auditor General, Union Public Service Commission, the Indian Govt. Railways & by Attached and Subordinate Offices of the Govt. of India

Section 2

: Notifications and Notices issued by the Patent Office, relating to Patents and Designs

Section 3

: Notifications issued by or under the authority of Chief Commissioners

Section 4

: Miscellaneous notifications including Notifications, Orders, Advertisements and Notices issued by Statutory Bodies

Part III : Criminal Law Administration System

PART IV

183

: Advertisements and Notices issued by Private Individuals and Private Bodies.

DELHI GAZETTE Part I

: Notifications regarding Appointments, Promotion, Leaves etc. of Government Officers of the Govt. of the National Capital Territory of Delhi

Part II (1)

: Notifications and Orders on Judicial and Magesterial matters, reproduction of High Coury Notifications and statutory notifications of the Election of India and other Election notifications

Part II(2)

: Notices of the Circuit Civil and Criminal Courts

Part III

: Notifications of statutory local bodies

Part IV

: Notifications of the Departments of the National Capital Territory of Delhi Administration other than Notifications included in Part-I

Part V (2)

: Notices and other matters published by Head Offices of the Delhi Administration and miscellaneous matters not included.

4 Law relating to Bail Bail When during investigation, a person is arrested and brought before the Magistrate, the lawyer of the arrested person moves an application to the court to release the accused on bail, pending the investigation and trial of the case, mainly on the ground that the accused has nothing to do with the offence in question, that he has been falsely implicated, that his presence is not required by the police and that he is the only bread earner of his family and that he is respectable person and there is no chance of his absconding or threatening the witnesses when out on bail. The Public Prosecutor on behalf of the police contest the bail application, mainly on the ground that the investigation is still going on and if the accused is released, then he can use his influence and can tamper with the prosecution witnesses and evidence and that he would abscond and would not be available to face the trial. The court may a. grant him the bail the same day b. keep the bail application pending and grant him interim bail c. keep the bail application pending, but send him to judicial custody If bail is granted to the accused and the Magistrate order to release the accused on bail, he specifies the amount of bail, the amount of surety and number of sureties. The lawyer of the accused is ready with the bail bond form duly filled in, but the entry regarding amount of bail as blank. On grant of bail, the lawyer fills in the amount of bail in the said form. The said form has two parts : (i) The upper part is the Bail Bond or Muchalka which is signed by the accused. It is very important to note that correct name of the accused and his father, as it appears in the FIR, should be written in bail bond otherwise the accused is not released by the Jail authorities in the fear of releasing someone else having similar name. (ii) The lower part is the Surety Bond which is signed by the surety of the accused. On the back of this form, the affidavit of the surety is typed, stating :

Part III : Criminal Law Administration System

185

(a) That I am the uncle/relative/close friend of the accused. (b) That I have full control over the accused. (c) That I am income tax assessee/car owner/property owner/FD owner having ration card/election card no. ….. The Bail Bond form duly filled in alongwith copies of the ration card, FD receipt/salary receipt/RC etc. annexed with this Bail Bond form, are handed over to the Magistrate. If the Magistrate is satisfied about the genuineness and financial capacity of the surety, the Magistrate accepts the bail bond and surety bond and order for preparing the Release Order. While the release order is being typed and signed by the Magistrate, the accused is taken to the temporary lock up of the jail authorities in the court premises and from there, he is taken to the Jail. The Release Order ( which is prepared from the entries in the Muchalka) is taken to the jail by the Naib court, who is the police employee and is a link between the court and the police/jail and takes the court summons etc. to the police station concerned and bring the copy of FIR and other documents from the police station to the court. On the basis of this release order, the Jail authorities verify about the entries in the release order with that of the accused and on being satisfied, release the accused. Only in rare cases, the accused is released from the court premises itself without going to the jail. If bail application is ultimately dismissed, the accused is sent to the jail, if he is out on interim bail. If the accused is aggrieved from the order of the Magistrate, he can again move the bail application before the same court or sessions court or before the High Court or before the Supreme Court. There is no concept of an appeal in the case of an order of dismissal of bail application. The accused is free to move the bail application whenever he wants and in any court he likes. However, it is advisable that he should file the bail application first in the lowest court and then go on to higher courts. This is because if he straightaway file it in higher court and the higher court dismisses it, then the chances of getting bail from the lower court are almost ruled out because the lower court, in such scenario, forms an opinion of dismissal on the basis of the higher court dismissing it on the basis of the same very facts and documents. If the bail application has been dismissed by a court, say a sessions court, the next bail application should not be moved in hurry before the same court. The next bail application should be moved in the same court after some time, preferable after some new ground is available with the passage of time and with the change in circumstances.

186

Courts, Police, Authorities & Common Man

The bail in case of bailable offences is granted under section 436 Cr.P.C. The bail in case of non-bailable offences is granted by the Magistrate’s court under section 437 and by the Sessions Court and the High Court under section 439. When a person is released on bail, he is notionally in the custody of the court, through the surety. Right to Bail in case of slow investigation and slow trial If the investigation is not completed by the police – l

within 90 days, in case of offences punishable with death, life imprisonment or more than 10 years imprisonment

l

within 60 days, in case of any other offence

then the accused earns a right to be released on bail on the expiry of the said 90 or 60 days, under Section 167 of the Code of Criminal Procedure. This is to ensure that the police conducts the investigation speedily. Similarly, if the trial in case of a non-bailable offence triable by a Magistrate court is not completed within 60 days from the first date fixed for taking evidence, the accused earns a right to be released on bail under Section 437(6) of Code of Criminal Procedure, if he has been in custody during the whole period of said 60 days. Unreasonable conditions can not be imposed while granting bail In one of the Delhi cases involving offence of cheating under Section 420 and 406 IPC, the Metropolitan Magistrate granted bail to the accused subject to the condition, apart from others, that he should pay a sum of Rs.2 lakh to the complainant through his surety. The surety issued cheques for said amount but the cheques were dishonored. On this ground, the court cancelled his bail and sent him again to prison. He moved the Sessions Court for releasing him on bail. When he failed, he moved to the High Court for some relief. But even the High Court did not help him. Ultimately, he filed petition in the Supreme Court. The Supreme Court expressed its unhappiness on such a state of affairs by stating : “we are unable to appreciate even the first order passed by the Metropolitan Magistrate imposing the onerous condition that an accused at the FIR stage should pay a huge sum of Rs. 2 lacs to be set at liberty. … Can he be detained in custody endlessly for his inability to pay the amount in the range of Rs. 2 lacs. … to keep him in prison for such a long period, that too in a case where bail would normally be granted for the offences alleged, is not only hard but improper.”

·ghjkl

Part III : Criminal Law Administration System

187

The said case is reported as Sandeep Jain vs Govt. of National Capital Territory of Delhi 2000 I AD (S.C.) 261. Bail granted by the court can be cancelled in certain situations Under Section 439(2) of the Code of Criminal Procedure, wide discretion has been conferred on the High Courts and the Sessions Courts to cancel the bail of any person. The said sub-section is reproduced herein : “ A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody ”. As can be seen, no ground is given which can form the basis for cancellation of the bail. Similar power has been given to other courts under section 437(5), which is reproduced herein below : “ Any court which has released a person on bail under sub-section (1), or sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody”. However, in practice, the bail is cancelled in exceptional cases when it is found that the bail was obtained by concealing the material facts or the conditions prescribed by the Court at the time of granting the bail are not fulfilled or are violated by the accused. Anticipatory Bail The anticipatory bail is dealt with under section 438 Cr.P.C. When a person feels that he may be arrested by the police in relation to the commission of some non-bailable offence, he may file an application for anticipatory bail to the Sessions Court or to the High Court. (The application for anticipatory bail can not be filed in the court of Magistrate). The court issues notice on the said application and a copy of the application is given to the prosecution. The public prosecutor appear before the court and apprise the court of the role, if any, of the accused in the commission of the offence and the need, if any, to arrest the person who has filed the application. The court hears the arguments on both sides. If the anticipatory bail application is allowed by the court, then the police is bound to release the accused, when he is arrested, on his executing a bond of the amount specified by the court while granting anticipatory bail. Ordinarily, when the anticipatory bail application is allowed, certain conditions are put by the court. In most cases, the conditions are that the

188

Courts, Police, Authorities & Common Man

accused will make available himself to the Investigating Officer whenever he is called by the I.O., that he will not tamper with the prosecution witnesses or evidence and that he would not leave the State or Country without the permission of the court. If the anticipatory bail is dismissed by the court, then it is open to the police whether to arrest or not the person who filed the application. If he is arrested, then he is produced before the court of magistrate concerned within 24 hours, and the same procedure is repeated, as discussed earlier. Earlier, invariably, on dismissal of the anticipatory bail application of a person, the IO used to immediately arrest the person. However, the Supreme Court has recently held in M.C.Abraham vs State of Maharashtra I (2003) SLT 121 that : ‘ Rejection of anticipatory bail application is no ground for directing immediate arrest of the applicant. A police officer is not always bound to arrest an accused during investigation even if the allegation against him is of having committed a cognizable offence. Since an arrest is in the nature of an encroachment on the liberty of the subject and does affect the reputation and status of the citizen, the power has to be cautiously exercised by the police officers’. Bail bond and Surety bond Suppose you are granted bail by the court on the condition “ the accused is enlarged on bail subject to his furnishing a bond of Rs.10,000/- with two sureties of the like amount”. This does not mean that you have to spend or deposit any amount at that time in lieu of you being released on bail by the court. This only means that you have to sign a personal bond to the effect that you will appear before the court or the investigating officer, as the case may be, on each date and that if you make a default and does not so appear, then you will be bound to pay Rs.10,000/- to the Govt. when you are ultimately brought before the court. The surety bond is a similar bond signed by your surety (i.e. a person having faith in you and who takes your responsibility) that in case you fail to appear before the court or the Investigating Officer on each date, then he will be bound to pay a sum of Rs.10,000/- to the Govt. (Under Section 445 Cr.P.C., a prisoner, who is not likely to abscond and who at the same time can not find surety to be bailed out, can deposit cash amount ( or Govt. promissory notes of such amount as the court or SHO of police station may fix) in lieu of executing bail bond). The surety has to furnish his identity and residence proof and has to submit

Part III : Criminal Law Administration System

189

some document to show that he is capable to pay Rs.10,000/- if the situation so arises. Generally, in case of low amounts of surety bond, he furnish some Fixed Deposit receipts etc. and in case of large amounts, he furnish the Registration Certificate (RC) of some vehicle or title deeds of property standing in his name. These documents are to be shown to the court in original. The court affix a rubber seal on these original documents ( showing that these documents have been tendered as surety in the court) and return these to the surety and take the photocopies of the said documents on record. However, nothing prevents the court from keeping original documents on its file. The surety arranged by you has to be to the satisfaction of the court, before you are released on bail from the jail. The court satisfies itself as to the genuineness of the surety, his financial and social status and his influence upon you. If the court is dissatisfied with the capacity of the surety to produce you as and when required, then the court may reject the said surety and ask you to arrange some other sound surety. Nowadays, the courts have started insisting on heavy amounts of surety bonds to ensure that the accused is positively available at the time of trial. For example, the Supreme Court sometime back allowed the Hinduja Brothers to go abroad on their furnishing surety of Rs.15 crores. In the sensational BMW case, the High Court of Delhi granted bail to the main accused Sanjeev Nanda on his furnishing a personal bond of Rs.15 crores and two sureties of Rs.15 crore each. Bail Bond & Surety Bond Performa ( Form No.45) In the Court of Shri ………………………………………………… FIR No. : ………………

Next date of hearing …….......................

Under Sections : …………..

Sent to jail on ………….............

Police Station : …………............. BAIL BOND I ............................ Son of Shri …………………….................................. Resident of …………………………having been arrested or detained without warrant by the officer-in-charge of.................................police station (or having been brought before the court of ..........................) charged with the offence of .................………………. And required to security for my attendence before such officer or court on condition that I shall attend such officer or court on every day on which any investigation

190

Courts, Police, Authorities & Common Man

or trial is held with regard to such charge, and in case of my making default herein, I bind myself to forfeit to Government the sum of Rupees ...................…………………… State : ……………......

Signature/

Dated : …………….....

Thumb Impression SURETY BOND

I …………………… Son of Shri ……………………................................ Resident of ……………………………............................................. Hereby declare myself surety for the abovesaid .........……………….. that he shall attend the officer-in-charge of ………............……. Police station or the court of …………………......... on every day on which any investigation into the charge is made or any trial on such charge is held, that he shall be, and appear before such officer or court for the purpose of such investigation or to answer the charge against him ( as the case may be), and, in case of his making default herein, I hereby bind myself to forfeit to Government the sum of Rupees …………………....… Dated this

day of

2004 Signature

Contents of the Affidavit filed by the Surety with the Bail Bond The Forms of Bail Bond and Surety Bond are available in printed form in the market. Generally, both are contained in one Form. The upper part is the Bail bond meant to be filled by the accused and the lower part is the surety bond meant to be filled by the surety. The affidavit of the surety is generally typed or hand written at the back of this form by the lawyer in the following words: AFFIDAVIT 1.

That I am the ………….. of the accused and I have full control over him. ( state the relation)

2.

That I undertake to produce him before this Hon’ble Court as and when so required.

3.

That I hold the ration card no. …………….. and/or Election I-card No. ………….. and/or Passport No. ………………..

191

Part III : Criminal Law Administration System

OR That I am a Govt. servant working as …………. in ………..deptt. drawing a salary of Rs. ….....………. per month ( attach Salary slip) 4.

That I have household articles worth more than Rs. ………. OR That I owns a motor cycle/car no. .....……………….., whose worth is more than Rs. ….....……………OR That I own a property bearing no. ….....………….., whose worth is more than Rs. ………………..... OR That I holds National Savings Certificates worth Rs. ………...... Sd/Deponent

Verification: Verified at ………….....… on this .....……….. day of .....………. 2004 that the contents of this affidavit are true and correct to the best of my knowledge. Sd/Deponent Note : 1. The copies of the various documents mentioned in the affidavit are required to be produced in original in the Court at the time of giving bail. 2. The surety should be present in person in the court at the time of giving bail. 3. The worth of the surety reflected in the documents filed should ideally be more than the amount of bail being given by him.

5 Salient Features of Cr.P.C. Supremacy of Code of Criminal Procedure l

All offences under the Indian Penal Code are investigated, inquired into, tried and dealt with according to the provisions of Cr.P.C.(Section 4) Types of punishments by different courts

l

High Court may pass any sentence authorized by law. Sessions Court also may pass any sentence, however any sentence of death passed by it is subject to confirmation by the High Court. The court of Chief Metropolitan Magistrate may pass any sentence except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding 7 years. The court of a Metropolitan Magistrate may pass a sentence of imprisonment up to 3 years or of fine up to Rs.5000/or both. (Section 28,29) Arrest without warrant

l

Any police officer may without an order from a Magistrate and without a warrant, arrest a person in the situations prescribed in section 41. Arrested person to be treated respectfully

l

The person, who has been arrested by the police, can not be subjected to more restraint than is necessary to prevent his escape.(Section 49)

l

It is the duty of the police officer arresting a person without warrant to tell that person the particulars of the offence for which he is arresting him and the grounds for arresting him. It is also his duty to inform the person arrested, in case of bailable offence that he is entitled to be released on bail if he execute bond and furnish surety. (Section 50)

l

When search of a person is carried out by police on arrest, the police officer is bound to give him a receipt showing the articles taken in possession by the police from his pockets etc. (Section 51)

l

The search of the person of a female can be made only by a female police officer, with strict regard to decency. (Section 51)

Part III : Criminal Law Administration System

193

Medical examination of arrested person l

If the person arrested by the police make a request, when he is produced before the Magistrate or at any time during custody, for his medical examination, the Magistrate is bound to order for his medical examination by a registered medical practitioner. The medical examination of the arrested person, at the first instance, prevent any possibility of torture by the police and/or discloses the torture committed by the police during remand and/or provide evidence to rule out the possibility of commission of offence by him. However, the Magistrate may decline to so order if he is of the view that the request has been made with bad intentions. (Section 54) Arrested person can’t be kept in lock-up for more than 24 hours

l

A person arrested by the police can not be kept by the police in its custody for more than 24 hours. The detention of the person by the police beyond 24 hours, in the absence of any remand order from the Magistrate under section 167, is illegal (Section 57). Similar provision exist in Article 22(2) of the Constitution of India. Responsibility to look after wife, children and parents

l

A person having sufficient means is bound to maintain and look after his wife, children and parents who are not able to maintain themselves. If he either neglects or refuse to maintain them, then he can be asked by the Metropolitan Magistrate on an application filed by his wife, children or parents, to give a allowance of up to Rs.500/ - per month. If the person does not comply with the order, then he can be sent to jail for up to one month. The ‘wife’ includes a woman who has been divorced from her husband and has not remarried.(Section 125) Nuisance by a person

l

If the District Magistrate or SDM or any Executive Magistrate is of the opinion, on receipt of a report from the police or otherwise, that a person is causing obstruction or nuisance or carrying on his trade/ occupation or keeping his goods or constructing or maintaining his premises in such a manner causing danger, discomfort, annoyance, injury to the public, then the said Authority can direct such person to desist from so doing. If the person concerned fail to obey such order, then he can be sent to jail for up to one month. Moreover, if such disobedience causes or tend to cause danger to human life, health or

194

Courts, Police, Authorities & Common Man

safety; or a riot or affray, then such person may be sent to jail for up to 6 months. (Section 133) Disturbance of public peace (curfew) l

When there is grave likelihood of a riot taking place or disturbance of public peace or risk of obstruction, annoyance or injury to any person or danger to human life, health or safety in an area, and the DM or SDM or any other Executive Magistrate is of the opinion that immediate prevention or speedy remedy is desirable, then such an Authority can impose curfew, under Section 144 Cr.P.C., in that area thereby directing a particular person or persons or general public in the area in question to abstain from a certain act and to follow the orders. Such an order remain in force for up to 2 months, but is extendable by another 6 months by State Govt. if need so arises. Quarrel concerning immoveable property

l

When there takes place a dispute or fight between certain persons over any land, property or its boundaries, then the SDM of the area concerned can order the parties concerned to appear before his court on a certain day and time and give their written statements in support of their respective claims regarding actual possession of the land in question. The Magistrate then, after taking evidence, decide as to which party is entitled to possession of the property in dispute. (Section 145) Right of arrested person

l

It is the duty of the police officer arresting the accused without warrant to tell him the full particulars of the offence for which he is being arrested and the reasons for his arrest. Tainted investigation

l

Investigation should be completed by the police as early as possible, without any unreasonable delay. If the police officer deliberately fail to record the FIR and prepare it after reaching the spot after due deliberations, the investigation is tainted. FIR can be cancelled only by the court

l

FIR once registered by the police, can not be cancelled by the police. It can be quashed only by High Court in exercise of its extra ordinary jurisdiction under section 482 CrPC.

Part III : Criminal Law Administration System

195

Statement given to police can be retracted l

The statements of the witnesses, during investigation, are recorded by the police under section 161 Cr.P.C. However, such statement is not admissible in court. This is to ensure that the police does not threaten the witnesses to give a favourable statement. If any witness is forced by the police to give a statement which he is not willing to give, then he can deny the same in the court. In such a scenario, the credibility of the police investigation comes under doubt. Statement given to Magistrate can not be retracted

l

The statement or confession made by anyone voluntarily out of his own free will and without any pressure, to any Magistrate under section 164 Cr.P.C. can not be later denied. Right of bail in case of slow investigation

l

If the investigation is not completed by the police -

-

within 90 days, in case of offences punishable with death, life imprisonment or more than 10 years imprisonment

-

within 60 days, in case of any other offence then the accused earns a right to be released on bail on the expiry of the said 90 or 60 days. This is to ensure that the police conducts the investigation speedily. (Section 167) Right of arrested person to inform friend/relative

l

An arrested person being held in custody is entitled, if he so requests, to have one friend, relative or other person who is known to him or likely to take an interest in his welfare, told as far as is practicable that he has been arrested and where he is being detained. The Police officer is duty bound to inform the arrested person, when he is brought to the police station, of this right. An entry shall be made in the Diary as to who was informed of the arrest. These protections flow from Articles 21 and 22(1) of Constitution of India and are to be enforced strictly. It is the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with and shall be followed in all cases of arrest till legal provisions are made in this behalf. These requirements are in addition to the rights of the arrested persons found in various Police Manuals. (as held by Supreme Court in Jogindar Kumar vs State of U.P. (1994) 2 Crimes 106 (SC).

196

Courts, Police, Authorities & Common Man

Inquest proceedings by SDM in case of unnatural death l

When the information, regarding death of a person by suicide or by another or by an animal or by machinery or by an accident under such circumstances which raise a reasonable suspicion of commission of an offence by some other person, is received by a competent police officer, he is bound to give this information immediately to the nearest SDM and proceed to the spot where the body of the deceased is lying and make investigation in the presence of 2 or more respectable persons of the locality and prepare a report of the apparent cause of death and specify therein the wounds, factures and other marks of injury on the body and further state as to by what weapon or instrument the said marks appear to have been inflicted. This report shall be signed by the police officer and other persons who concur with the said report and shall be forthwith forwarded to the SDM. If the case involves (a)suicide by a woman within 7 years of her marriage or (b)death of a woman within 7 years raising suspicion that someone has killed her or (c)death of a woman within 7 years and any relative of her has made a request for postmortem or (d)there is any doubt regarding cause of death, then the SDM is under a duty to send the body for post mortem. The SDM, in these cases and in case of death of a person in police custody, holds an enquiry into the cause of death by taking evidence. These proceedings by the SDM are called Inquest Proceedings. (Sections 174-176) Offence committed by an Indian in foreign country

l

If an offence is committed by an Indian citizen outside India or by any person (not an Indian citizen) on any ship or aircraft registered in India, then he can be tried for such offence in India at the place where he is found. However, for this, prior permission of the Central Govt. is compulsory. (Section 188) Taking of cognizance by Magistrate

l

In any criminal case, on filing of a chargesheet ( challan) by the police, the role of the police is over and the role of a Magistrate starts. This taking over of role by the Magistrate is called taking cognizance by him. If the Magistrate takes any action ( other than ordering for investigation under section 156(3)) after filing of the chargesheet by the police, he is said to have taken cognizance of the offence (Section 190). The cognizance of any offence can be taken by the Magistrate

Part III : Criminal Law Administration System

197

-

upon the chargesheet filed by police under section 173

-

upon a criminal complaint filed by any person

-

upon information received from any person or upon his knowledge, regarding commission of the offence.

Accused can ask to transfer case to some other magistrate l

When an accused appear before the Magistrate after taking of cognizance on the information received from any person or Magistrate’s own knowledge, before taking of evidence the accused is entitled to be informed that he can have the case tried by another Magistrate. If the accused raise objection to proceedings before the Magistrate who has taken cognizance, then it is mandatory to transfer the case to some other Magistrate. (Section 191) Cognizance can be taken only by Magistrate’s court

l

The cognizance of an offence can be taken only by the court of a Magistrate. The sessions court or any other court can not take cognizance of an offence. If the Magistrate taking cognizance finds that the case is exclusively triable by the sessions court, then he has to commit the case to the sessions court under section 209. When accused is a public servant

l

When the accused is a sitting or former Judge, Magistrate or public servant, then the cognizance can be taken by the court only after obtaining prior approval of the Govt. by the police. (Section 197) Complaint on behalf of a woman regarding torture

l

The complaint by a woman against her in-laws for torturing her can be filed also by her parents, brother, sister, father’s or mother’s brother or sister or, with the leave of the court, by any other person related to her by blood, marriage or adoption. (Section 198A) Committal of case to the sessions court

l

When the accused appears before the magistrate and it appears to the magistrate that the offence is triable exclusively by the sessions court, the magistrate must commit the case to the sessions court. (Section 209) Magistrate can drop the proceedings against the accused even after taking the cognizance

l

When the Magistrate takes cognizance on a criminal complaint and

198

Courts, Police, Authorities & Common Man

issues summons, the accused can plead of absence of any triable case against him and the Magistrate, on being satisfied on reconsideration of the complaint, has discretionary power to order for dropping of proceedings against the accused. (held by Patna High Court in Awadesh Prasad Singh vs State of Bihar (1997) 3 Crimes 70 (Pat.) Discharge of accused l

After the accused is summoned (after filing of criminal complaint by some complainant or after filing of challan by police) and the copies of the documents are given to him by the orders of the court, the prosecution starts the trial by describing the allegations against the accused. The accused can argue against framing of any charge against him. In support thereof, he can also produce documents. If the court is satisfied, the court may discharge the accused. (Section 227, in case of sessions court and section 245 in case of Magistrate court). This provision of ‘discharge’ has been made to enable the court to decide whether it is necessary to proceed to conduct the trial. If the case ends there, it saves a lot of time of the court and saves much human efforts and cost. If the materials produced by the accused even at that early stage clinch the issue, the court is not expected to refuse to consider the same saying that such documents should be produced only after wasting a lot more time in the name of trial proceedings. Accused to be present in court on every date

l

In any criminal case/trial, it is compulsory for the accused to be present on every date of hearing. If he is not present in the court when his case is called, the magistrate nowadays usually issue non-bailable warrants (NBWs) against him. It may so happen that the accused has come to the court but he is not present in the concerned court when his case is called by the court staff, may be on account of his waiting outside the court or gone for drinking the water. Once an order has been passed by a judge in a criminal court rightly or wrongly, he can not change the same. The option is to file an appeal against the said order. If NBWs have been issued, then the accused can move an application for cancellation of NBW, giving the reasons for his not appearing when his case was called. If satisfied, the Magistrate may cancel the NBWs. If the accused is not in a position to appear on a certain date, then he should move an application for exempting him from personal appearance on the date fixed. The court, if satisfied,

Part III : Criminal Law Administration System

199

may allow such application and allow the accused to appear through his lawyer. However, every time a new application for exemption has to be moved whenever the accused is not in a position for personally appearing. However, if the Magistrate require the presence of the accused, he can direct the personal attendance of the accused at any stage. (Sec.205) Compensation to accused if he is discharged/acquitted l

When in a case instituted on a criminal complaint or on the basis of information given to police officer or Magistrate, the accused is discharged or acquitted by the court, then the court may direct the complainant/informant to pay compensation to the accused for wrong accusation. This is in addition to any other civil or criminal liability against such complainant/informant. (Section 250) Withdrawl of complaint

l

The Magistrate may permit the complainant to withdraw his complaint under section 257. Evidence to be recorded in presence of accused

l

It is compulsory that the evidence in a case should be taken in the presence of the accused. If his personal appearance has been dispensed with, then the evidence should be taken in the presence of his lawyer. (Section 273) Recording of evidence of a witness

l

After the evidence of a witness is completed, it should be read over to him in the presence of the accused or his lawyer. If the witness denies the correctness of any part of his statement, the court may correct the same. If the witness gives his evidence in language A, but it has been recorded by the court in language B, then the evidence should be interpreted to him in language A or in any other language which the said witness understands. (Section 278)

l

If the evidence of any witness is in a language which the accused does not understand, then the said evidence should be interpreted to the accused in open court in a language which he understands. (Section 239) Formal Evidence can be given by affidavit

l

The evidence of any person, whose evidence is of a formal character, may be given by affidavit. (Section 296)

200

Courts, Police, Authorities & Common Man

No one can be punished for the same offence twice l

A person can not be tried twice i.e. if a person has been acquitted or convicted for an offence, he can not be tried again for the same offence. (Section 300) Duty of court to arrange lawyer for the accused

l

An accused person is free to have a lawyer of his choice to defend him in the court. If it appears to the court that the accused does not have sufficient means to hire a lawyer, then it is the duty of the court to arrange a lawyer for him at the Govt.’s expense. This entitlement to free legal aid is not dependent on the accused making an application to that effect and the court is obliged to inform the accused of his right to obtain free legal aid. (Section 304) One of the accused turning ‘approver’

l

The Magistrate may tender a pardon to any accused during any stage of investigation or trial on the condition that he will make full and true disclosure of the circumstances and of the persons involved in the offence (Section 306). Once an accused is granted pardon under section 306, he ceases to be an accused and becomes a witness for the prosecution. Such an accused is said to have become Approver. Trial in criminal case to be held day-to-day

l

The proceedings in a criminal case should be held as expeditiously as possible. If the examination of the witnesses has once begun, it should be held on day to day basis. If the court is unable to do so, then it can adjourn the same for the next day and that too, after recording the reasons in writing for such adjournment. However, if the witnesses are present, the case can not be adjourned without examining them. However, the court can adjourn the case in such situation but only for special reasons which too, are to be recorded in writing by the court. (Section 309) [However, in reality, this section is seldom followed and the courts grant long adjournments and that too, without giving any reasons in writing. The reasoning of the court behind granting long adjournments, even for routine purposes, is overload of work. Any witness can be summoned at any stage

l

The court has the power to re-call any witness already examined or to summon any witness at any stage, if essential.

Part III : Criminal Law Administration System

201

Expenses to be paid to witnesses for attending court l

The court can grant reasonable expenses to any complainant or witness, at the Govt.’s expenses, in lieu of his attending the court in connection with a criminal case. (Section 312) Examination of accused by court after prosecution evidence is over

l

After the prosecution witnesses have been examined, the court is obliged to examine the accused. Thereafter only, the accused can be allowed to examine defence witnesses. It is open to the accused to refuse to answer the questions so asked or give wrong answers. He can not be punished for this (Section 313). No court can compel the accused to give evidence. Non-accused can be summoned as accused by court

l

If during the course of an enquiry or trial, it appears to the court from the evidence so far recorded that some other person also has committed the offence, though he has not been named as an accused, the court may summon him and try him with the other accuseds. (Section 319) Compromise in criminal case

l

Many offences under the Indian Penal Code can be compounded i.e. can be compromised. The effect of such compromise is that the accused, with whom the offence has been compounded, is deemed to be acquitted. (Section 320) Court proceedings open to public

l

Any member of the public can have access to a criminal court room and watch the proceedings. However, the Judge may, by order, deny such access. The case of rape is compulsorily required to be conducted in a closed room. (Section 327). Trial to stop if accused found to be of unsound mind

l

If the accused is found to be of unsound mind and incapable of making his defence, the court may release him on bail ( whether bail may be taken or not) on sufficient security being given that he will be properly taken care of and will be produced as and when so directed by the court (Section 330). The trial can resume only after the accused ceases to be of unsound mind and become capable of making his defence.

202

Courts, Police, Authorities & Common Man

Witness can be punished for giving false evidence l

If any witness in a criminal case knowingly and willfully give or fabricate false evidence, the trial court at the time of judgment, can, after giving him show cause notice, punish him with imprisonment up to 3 months or fine up to Rs.500/- or both (Sections 344, 195). Such giving or fabricating false evidence is called perjury. The trial court can also make a criminal complaint against the said witness under section 340 to the concerned court. Release of convicted person on probation

l

Conviction and sentence are two different things. A convict is the person who has been finally held guilty by the court. If a person has been convicted, it is in the discretion of the court as to what sentence to impose upon him. But such sentence must be within the limits of sentence which can be imposed for that offence. When any person -

-

above 21 years of age is convicted of an offence punishable with imprisonment up to 7 years or with fine only

-

below 21 years of age or any woman is convicted of an offence not punishable with death or life imprisonment then the court may, release him/her on probation for a period up to 3 years on his executing a bond, with or without sureties, that he will keep peace and good behaviour during this period and will be ready to appear and serve jail sentence, if an when called upon. In doing so, the court take into consideration the age, character and antecedents of the convict and the circumstances in which the offence was committed. (Section 360) Person sentenced to less than 3 years imprisonment entitled to bail for filing appeal

l

When a person, on conviction is sentenced to less than 3 years imprisonment or if the offence is bailable and he is already on bail, and the said person satisfies the convicting court that he wants to present an appeal, then the convicting court is obliged to release him on bail for such period as to enable him to file the appeal. The execution of the sentence remain stayed during this bail period. Pending the appeal, the appellate court may suspend the execution of the sentence and may also order for releasing him on bail, if he is in confinement. (Section 389)

Part III : Criminal Law Administration System

203

Power of Supreme Court to transfer any case throughout India l

The Supreme Court can transfer any case from one court to another court anywhere in India, on the application by a party interested. (Section 406) Pregnant woman not to be hanged to death

l

If the accused sentenced to death is a pregnant woman, the High Court is bound to postpone the execution of sentence and may, if it thinks fit, reduce the sentence to life imprisonment. (Section 416) Power of Govt. to suspend sentence of convict (Remission)

l

If a person has been sentenced to any punishment, the Govt. may, at any time, without conditions or upon conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment. On any such application made by the convicted person, the Govt. may call for the opinion of the court which convicted or confirmed the conviction, whether to grant or refuse the application. If any of the conditions, on which the sentence is suspended or remitted, is not fulfilled by the convict, then the Govt. may withdraw the benefit and then the said person may be arrested by the police and put in jail for undergoing the unexpired portion of the sentence. (Section 432). How can surety get himself discharged

l

If any person, who has given surety for an accused at the time of bail, wants to be discharged as surety, then he can move an application to this effect to the Magistrate. The Magistrate is obliged to issue arrest warrant of the accused. If the accused is brought before the court or he voluntarily surrenders, the applicant surety is discharged and the Magistrate asks the accused to arrange for some other surety. If the accused fail to do so, the Magistrate may send him back to judicial custody (Section 444). If the surety is not able to produce the accused and the accused is not traceable, then the surety bond is forfeited and he is directed to pay the amount of surety bond. If he fails to pay, then he is liable to imprisonment in civil jail for a term up to 6 months. Releasing moveable property by court

l

When any property is produced before any criminal court during an enquiry or trial, the court may give the custody of the same to the person entitled thereto, on furnishing adequate security, during the

204

Courts, Police, Authorities & Common Man

pendency of the trial. This is called release of an article on superdari. (Sections 451,457) Power of court to order restoration of possession l

If a person is convicted for an offence relating to criminal force or criminal intimidation and it appears that some person has been dispossessed of his property by such offence, then the court may make an order for giving the possession of the property to the person who was dispossessed, even at the cost of removing by force any person who is found to be in possession. (Section 456) No judge can act as judge in his own cause

l

A Judge or Magistrate is under a duty not to try any case in which he is a party or in which he is personally interested. However, he may do so with the permission of his superior court. Further, no Judge or Magistrate can hear appeal against a judgment or order made by himself. (Section 479) Extra ordinary powers of the High Court

l

l

The High Court has extra ordinary wide and ample powers under Section 482 to pass any order as may be necessary -

to give effect to any of the provision of Cr.P.C., or

-

to prevent abuse of the process of any court, or

-

otherwise to secure the ends of justice.

When any person accused of a bailable or non-bailable offence is arrested, the police officer or the Magistrate, if it appears to them, that the person is a juvenile, has to forward him/her to the Competent Authority ( Juvenile Court, Juvenile Welfare Board etc.) at the earliest. Then the Competent Authority hold an enquiry as to the age of the person. It is the age of the person on the date when he first appear or brought before the Competent Authority, which is relevant. If on that day, he/she is less than 16/18 years, he/she is entitled to the benefits of the Act. Pending enquiry by the Competent Authority, such a person is entitled to bail. If the Competent Authority is of the view that he may again get exposed to criminal activities, it may send him to an observation home. [ Arnit Das vs State of Bihar IV (2000) SLT 465

6 Situations when offence not punishable (General exceptions) There are certain acts, which in normal circumstances may amount to an offence, but in special circumstances, they do not constitute an offence and the person doing the act is exempted from the criminal liability for such an act. These special circumstances are dealt with under the heading ‘General Exceptions’ in chapter IV of the Indian Penal Code (Sections 76 – 106). We will deal with such situations in brief one by one. Act done by a person bound, or by mistake of fact believing himself bound, by law Under Section 76 of the Indian Penal Code, an act howsoever grave is not an offence if it is done by a person who is bound by law to do it or done by him due to a factual mistake believing in good faith 1 that he is bound under the law to do that act. For example, if a soldier fires on a mob by the order of his superior officer, in conformity with the commands of law, he is not deemed to have committed any offence. Take another situation: A court directs its officer to arrest X. However, the officer actually arrests Y, believing him to be Z after due enquiry. The officer is not deemed to have committed any offence. 1 ‘good faith’ is defined in section 52 to mean ‘with due care and attention’. Act of Judge when acting judicially Under Section 77 of the Indian Penal Code, an act which may otherwise be an offence is not an offence if it is done by a Judge in discharge of his judicial power given to him by law or which he in good faith believes to be given to him by law. Act done pursuant to the judgment or order of Court Under Section 78 of the Indian Penal Code, an act howsoever grave is not an offence if it is done by a person in pursuance of the order of a Court provided the order of the court is in force at the time of doing the said act. This holds good even if the court which passed the order had no jurisdiction to pass the said order but it is necessary that the person doing the act must be under the belief in good faith that the court which passed the order had jurisdiction to pass that order.

206

Courts, Police, Authorities & Common Man

Act done by a person justified, or by mistake of fact believing himself justified, by law Under Section 79 of the Indian Penal Code, an act howsoever grave is not an offence if it is done by a person who is justified by law in doing it or who due to a factual mistake believes in good faith that he is justified by law in doing it. For example, a person A see another person B killing a person. Infact, B was acting in self-defence. But, A due to factual mistake, believed that B has committed murder and thus in exercise of the power given by law to all persons to arrest the murderers, A arrest Z and hand him over to the police. A has committed no offence. Accident in doing a lawful act Under Section 80 of the Indian Penal Code, an act howsoever grave is not an offence if it is done by accident or misfortune. However, to take benefit under this section, it is necessary that the act must have been done without any criminal intention or knowledge and the act must be a lawful act being done in lawful manner by lawful means and proper care and caution must have been taken by the offender. For example, a person A is working with a hatchet. Accidentally, the head of the hatchet flies off and kills a man who is standing nearby. If there is proper caution on the part of A, then his act is excusable and is not an offence. Act likely to cause harm, but done without criminal intent, and to prevent other harm Under Section 81, even if the person doing an act knows that his act is likely to cause harm, still his act will not be an offence if it does cause harm to someone. However, for taking benefit under this section, it is necessary that the act must have been done without any criminal intention to cause harm and secondly, it must have been done in good faith for the purpose of preventing or avoiding other harm to person or property. This can be explained by way of following illustrations : (a) The captain of a ship, suddenly and without any fault or negligence on his part, finds a boat carrying 20-30 passengers so close to the ship that even if he tries to stop the ship, the ship would run over the boat. If he tries to change the course of the ship, there is risk of running over another boat carrying only 2 passengers and there is a chance that he may be able to avoid colliding with the second boat. In these circumstances, if A changes the course of the ship (knowing that it entails danger to the passengers of the second boat but without

Part III : Criminal Law Administration System

207

any intention to run over the second boat and in good faith for the purpose of avoiding the danger to the passengers of the first boat) and in this process run over the second boat killing the two passengers on that boat, he is not guilty of the offence. However, he would have to prove that the danger which he intended to avoid was so imminent and of such a magnitude as to excuse him for incurring the risk of running over the second boat. (b) A major fire takes place in a locality and a person ‘A’ in order to avoid the fire from spreading, pulls down certain houses. He does this in good faith with the intention to save human life or property. Here, A’s act would not be an offence if it is found that the harm to be prevented by him was of such a nature and was so imminent so as to excuse A’s act. Act of a child under 7 years of age Under Section 82 of the Indian Penal Code, an act howsoever grave is not an offence if it is done by any child upto 7 years of age. Act of a child above 7 and under 12 of immature understanding An act, howsoever grave, is also not an offence if it is done by any child above 7 years but upto 12 years of age. Such a provision is to be found in Section 83 of the Indian Penal Code. However, to take benefit under this section, it is necessary to prove that the said child had not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct at the time of the commission of the act charged as offence. Act of a person of unsound mind Under Section 84 of the Indian Penal Code, an act howsoever grave is not an offence if it is done by a person who, at the time of doing it, was incapable of knowing the nature of his act or was incapable of knowing that what he is doing is either wrong or is contrary to law. However, to claim benefit under this section, his incapability must be due to the unsoundness of mind. Act of a person incapable of judgment by reason of intoxication caused against his will Under Section 85 of the Indian Penal Code, an act howsoever grave is not an offence if it is done by a person who, at the time of doing it, was incapable of knowing the nature of his act or was incapable of knowing that what he is doing is either wrong or is contrary to law. However, to

208

Courts, Police, Authorities & Common Man

claim benefit under this section, his incapability must be due to intoxication and the thing which intoxicated him must have been administered to him without his knowledge or against his will. Offence requiring a particular intent or knowledge committed by one who is intoxicated An offence committed by a person in a state of intoxication does not save him from the liability for that offence. To avoid liability for offence, he must prove that the thing which intoxicated him was administered to him without his knowledge or against his will. This is provided in Section 86 of the Indian Penal Code. Act not intended and not known to be likely to cause death or grievous hurt, done by consent Under Section 87 of the Indian Penal Code, an act which cause harm or an act which is intended by the person doing it to cause harm or an act which is known by the doer to be likely to cause harm to any person above 18 years of age who has given his consent to take the risk of that harm-is not an offence if it was not the intention of the doer to cause death or grievous hurt and if it was not known to him that his act is likely to cause death or grievous hurt. For example, A and Z agree to play the game of fencing with each other for amusement. This agreement implies their consent to suffer any harm which may be caused to any of them in the course of such fencing without foul play. A is deemed to have committed no offence if he while playing fairly hurts Z. Act not intended to cause death, done by consent in good faith for person’s benefit Under Section 88 of the Indian Penal Code, an act which causes harm or an act which is intended by the person doing it to cause harm or an act which is known by the doer to be likely to cause harm to any person for whose benefit the act is done—is not an offence if it was not the intention of the doer to cause death. However, to claim benefit under this section, the doer must prove that he did the act in good faith and the victim had given his consent (whether express or implied) to suffer that harm or take the risk of that harm. For example, a surgeon A knows that a particular operation is likely to cause death of the patient Z. Z is suffering under pain. With Z’s consent, A performs operation on Z for Z’s benefit in good faith without any

Part III : Criminal Law Administration System

209

intention to cause his death. If Z dies in consequence of this operation, A is deemed to have committed no offence. Act done in god faith for benefit of child or insane person, by or by consent of guardian Under Section 89 of the Indian Penal Code, an act which causes harm or an act which is intended by the person doing it to cause harm or an act which is known by the doer to be likely to cause harm to any person who is under 12 years of age or who is of unsound mind - is not an offence if it was done in good faith for the benefit of such person by his guardian or by someone else with the consent (express or implied) of the guardian. Here, guardian includes a person having lawful charge of the victim. However, the benefit of this section is not available in following situations: (1) If the doer intentionally causes or attempts to cause the death of such victim (2) If the doer knew that his act was likely to cause death. However, he can still claim the benefit if despite knowing that his act may cause death, he still does the act but for the purpose of preventing the death or grievous hurt or for the purpose of curing any grievous disease/ infirmity. (3) If the doer voluntarily causes or attempts to cause grievous hurt to such victim. However, he can still claim the benefit if he does the act for the purpose of preventing the death or grievous hurt or for the purpose of curing any grievous disease/infirmity. (4) If someone abets the offence provided under the above three situations. For example, A is the father of a child B who is suffering from stone problem. For B’s benefit and in good faith and without B’s consent, A take him to a surgeon for operation. A knew that the operation may cause death of B but it was not his intention to cause his death. During operation, B dies. A is deemed to have committed no offence as his object was the cure of the child. Consent known to be given under fear or misconception In cases where liability for any offence is avoidable on the ground of consent of someone (whether the victim or his guardian), it must be a valid consent. A consent is not valid if – (1) if the consent is given by the person under fear of injury or under a

210

Courts, Police, Authorities & Common Man

misconception of fact and the doer of the offence knows or had reason to believe that the consent was given in consequence of such fear or misconception (2) if the person giving the consent was unable to understand the nature and consequences of that to which he gave his consent. His inability to understand must be due to unsoundness of mind or due to intoxication. (3) if the consent is given by a child under 12 years of age. This is provided under Section 90 of the Indian Penal Code. Exclusion of acts which are offences independently of harm caused As per Section 91 of the Indian Penal Code, if the act contemplated in sections 87, 88 and 89 is itself an offence independent of any harm that it causes (or be intended to cause or be known to be likely to cause), then the doer can not avoid the liability for such offence. For example, the act of causing miscarriage (unless caused in good faith for the purpose of saving the life of the woman) is an offence independently of any harm which it may cause or be intended to cause to that woman. The consent of the woman or her guardian to the causing of such miscarriage does not justify the act of miscarriage and the doer will be penalized for the same. Act done in good faith for benefit of a person without consent Under Section 92 of the Indian Penal Code, an act done without a person’s consent which causes harm to such person is not an offence (i) if it is done in good faith for the benefit of such person and (ii) if the circumstances are such that it is impossible for him to give his consent or he is incapable of giving consent and has no guardian from whom consent could be taken Here, guardian includes a person having lawful charge of the victim. However, the benefit of this section is not available in following situations (1) If the doer intentionally causes or attempts to cause the death of such victim (2) If the doer knew that his act was likely to cause death. However, he can still claim the benefit if despite knowing that his act may cause death, he still does the act but for the purpose of preventing the death or grievous hurt or for the purpose of curing any grievous disease/ infirmity.

Part III : Criminal Law Administration System

211

(3) If the doer voluntarily causes or attempts to cause hurt to such victim. However, he can still claim the benefit if he does the act for the purpose of preventing the death or hurt. (4) If someone abets the offence provided under the above three situations. For example : (a) A person Z riding a horse falls down and become insensible. A person A, who is a surgeon, finds that urgent operation is required to be performed upon Z. In good faith and without any intention of causing death of Z, A performs the operation on Z. Thereafter, Z regain consciousness. A is deemed to have committed no offence if he caused some hurt to Z’s body due to operation. (b) A tiger pounce upon a person Z and speed away carrying Z along. To save Z and in good faith, a person A shot at the tiger knowing that the shot may even kill Z. A has no intention to kill Z. In the process, A’s shot wound Z. A is deemed to have committed no offence. (c ) A surgeon A sees a child Z suffering an accident. Unless an operation is immediately performed, z may die due to the impact of the accident. There is no time to take the consent of z’s guardian. A performs the operation in good faith for the benefit of z. A has committed no offence. (d) The situation is such that A is in a house with a child Z and the house is on fire. People below hold out a blanket for them to jump and escape. To save the life of Z, A drops him from the house top so that he can land on the blanket. A knows that dropping Z may kill Z. But he still drops Z without any intention of killing Z. He does so in good faith and for child’s benefit only. Even if Z is killed by such fall, A is deemed to have committed no offence. Communication made in good faith Under Section 93, if a communication made to a person A causes any harm to him, then the person sending this communication is deemed to have committed no offence if it is made for the benefit of A. For example, a doctor communicates his opinion to his patient that he can not live. The doctor does so in good faith, though he knows that such a news may cause the patient’s death. The patient dies due to shock on knowing this news. The doctor is deemed to have committed no offence.

212

Courts, Police, Authorities & Common Man

Act to which a person is compelled by threats Under Section 94, an offence (other than Murder and offences against the Govt. punishable with death) is not an offence if it is done by a person by compulsion under the threat of his instant death at the time of doing it. However, to take the benefit of this section, the person must show that such a situation was not his own creation or that there was reasonable apprehension of such harm to him equivalent to or just short of his instant death. The benefit of this Section can not be taken where the offence committed is murder or the offences against the Govt. which are punishable with death. A person who joins a gang of dacoits either on his own or by reason of a threat of being beaten, but knowing their character, can not take benefit of this section in respect of any offence committed by him on being compelled by his associates. However, if a person is caught by a gang of dacoits and is forced to do a thing which is an offence by law, under the threat of his instant death, such a person can take the benefit of this section. For example, a smith compelled to take his tools and to force open the door of a house for the dacoits to enter and plunder it. Act causing slight harm Under Section 95, an act (i) which causes, or (ii) which the doer intended to cause, or (iii) which the doer knew that it is likely to cause such harm which is so slight that no person of ordinary sense and temper would complain of it, then such an act is not an offence. Things done in private defence Under Section 96, an act howsoever grave is not an offence if it is done in the exercise of the right of private defence. The situations under which such a right is available to a person are dealt with in the Sections 97 to 106. Right of private defence of the body and of property Under Section 97, every person has a right to defend (i) his own body or the body of any other person, against any offence affecting the human body. For example, murder, hurt, grievous hurt, etc.

Part III : Criminal Law Administration System

213

(ii) his own property or the property of any other person (property may be moveable or immoveable), against any act which constitutes the offence of theft, robbery, mischief or criminal trespass or which is an attempt to commit these offences. However, such a right is subject to the restrictions contained in Section 99. Right of private defence against the act of a person of unsound mind etc. Under Section 98, a person has the right of private defence even against an act which is otherwise an offence but legally not an offence on account of its being done by a person contemplated in sections 82, 83, 84 or 85 or by a person under misconception. For example, Z under the influence of madness, attempts to kill A. Z is guilty of no offence by virtue of section 84. However, A would have the right of private defence against Z in the same manner as A would have against any sane person. Take another example : A enters a house in night, which he is legally entitled to enter. Z attacks him, in good faith, mistaking him to be the thief. Here, Z commits no offence. However, A would have the same right of private defence against Z, which A would have if Z was not acting under that misconception. Acts against which there is no right of private defence – Section 99 Suppose A has committed an offence in retaliation to an act of B. Then, (1) There is no right of private defence available to A against an act done or attempted to be done by a public servant acting in good faith in the performance of his duties, even if the act may not be strictly justifiable by law. However, A can not be deprived of his right of private defence if he did not know or had no reason to believe that B is such public servant. The right of private defence would also be available if such act of the public servant reasonably cause the apprehension of death or of grievous hurt. (2) There is no right of private defence against an act done or attempted to be done by the direction of a public servant acting in good faith in the performance of his duties, even if the direction may not be strictly justifiable by law. However, A can not be deprived of his right of private defence (i)if he did not know or had no reason to believe that the person doing the act is acting by the direction of a public servant or (ii) unless such person states the authority under which he is acting

214

Courts, Police, Authorities & Common Man

or (iii)unless he produces his authority if he has such authority in writing. The right of private defence would also be available if such act being done by the direction of a public servant reasonably cause the apprehension of death or of grievous hurt. (3) There is no right of private defence available to a person who had time to seek protection from the public authorities. This means, that such a right can be exercised only when there is instant threat. If someone is being challenged/attacked by a person and there is sufficient time available to him to seek the help of police, he is supposed to inform and take the help of police instead of himself fighting. (4) The right of private defence is meant only for defending oneself and not for attacking. Therefore, this right does not entitle a person to cause more harm than is necessary to defend himself. When the right of private defence of the body extends to causing death – Section 100 Even in case of causing voluntary death or any other harm to the assailant, the person A can take the benefit of the right of private defence of body if the act/offence of the assailant falls in any of the following descriptions : (1) such assault as may reasonably cause the apprehension to A that death would otherwise be the consequence of such assault (2) such assault as may reasonably cause the apprehension to A that grievous hurt would otherwise be the consequence of such assault (3) assault with the intention of committing rape (4) assault with the intention of gratifying unnatural lust (5) assault with the intention of kidnapping or abducting (6) assault with the intention of wrongfully confining A, under circumstances which reasonably cause A to apprehend that he will be unable to have recourse to the public authorities for his release The right under this Section is subject to the restrictions mentioned in Section 99. [‘Assault’ is defined in Section 351 to mean any gesture or any preparation by any person A intending to cause ( or knowing that he is likely to cause by such gesture or preparation) any person present to apprehend that A is about to use criminal force against him/her.

Part III : Criminal Law Administration System

215

‘Criminal force’ is defined in Section 350 to mean the intentional use of force by a person A against a person B, without B’s consent, in order to commit any offence or intending to cause (or knowing that he is likely to cause by use of such force) injury, fear or annoyance to B.] When such right extends to causing any harm other than death As per Section 101, the act of voluntary causing of death of the assailant can be excused on the ground of right of private defence of the body only when the act of the assailant falls in any of the categories enumerated in Section 100. However, if the act of the assailant does not fall in any of those categories, a person is justified in voluntary causing any other harm ( other than death) to the assailant in the exercise of right of private defence of the body. This is however subject to the restrictions mentioned in Section 99. Commencement and continuance of the right of private defence of the body As per Section 102, the right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt/threat to commit an offence, though the offence may not be committed. This right continues as long as such apprehension of danger to the body continues. When the right of private defence of property extends to causing death – Section 103 A person A can invoke the benefit of the right of private defence of property even to the extent of causing voluntary death or any other harm to the wrong doer if the act/offence committed or attempted to be commited by the wrong-doer falls in any of the following descriptions : (1) Robbery (2) House – breaking by night (3) Mischief by fire committed on any building, tent or vessel, which are being used as a human dwelling or as a place for the custody of property (4) theft, mischief or house-trespass under such circumstances as may reasonably cause the apprehension to A that death or grievous hurt would be the consequence if such right is not exercised The right under this Section is subject to the restrictions mentioned in Section 99.

216

Courts, Police, Authorities & Common Man

When such right extends to causing any harm other than death As per Section 104, if the offence committed or attempted to be commited by the wrong-doer is theft, mischief or criminal trespass and not of any of the descriptions enumerated in Section 103, then the right of private defence of property do not extend to the causing of death of the wrongdoer. But in such situations, the right do extend to the voluntary causing of any other harm ( other than death) to the wrong-doer. This is however subject to the restrictions mentioned in Section 99. Commencement and continuance of the right of private defence of property As per Section 105, the right of private defence of property commences when a reasonable apprehension of danger to the property commences. The right of private defence of property against theft continues till the offender has returned the property or the assistance of the public authorities has been obtained or the property has been recovered. The right of private defence of property against robbery continues as long as the offender causes (or attempts to cause) to any person death/ hurt/wrongful restraint or as long as the fear of instant death/instant hurt/ instant personal restraint continues. The right of private defence of property against criminal trespass/mischief continues as long as the offender continues in the commission of criminal trespass/mischief. The right of private defence of property against house breaking by night continues as long as the house-trespass, which has been begun by such house-breaking, continues. Right of private defence against deadly assault when there is risk of harm to innocent person – Section 106 If the assault on a person is such which reasonably causes apprehension of death and he is in such a situation that in exercising his right of private defence against the assault, he might cause harm to an innocent person, then the act of the person being assaulted is excused. For example, A is attacked by a mob who attempt to murder him. He can not effectually exercise his right of private defence without firing on the mob. However, he can not fire without risk of harming young children who are mingled with the mob. A commits no offence if by so firing, he harms any of the children.

Part III : Criminal Law Administration System

217

MURDER – causing death of a person One must always remember that causing the death of a person can not always be deemed as murder. To constitute the offence of murder, one thing which is most important is the criminal intention of the offender. You might think that when the ultimate result is the death of a person, what difference does it make as to whether the offence is within the definition of ‘murder’ or not. Yes, it does make a difference. Only, the offence of murder is punishable with upto death penalty. All other offences related to causing death of a person are punishable with upto life imprisonment. However, death penalty is the maximum punishment prescribed for murder. The court may impose even lesser punishment, depending upon the facts and circumstances. Nowadays, the court generally do not award death sentence as worldwide a theory is gaining momentum that awarding death penalty amounts to the violation of human rights. Nowadays, death penalty is awarded in the rarest of rare cases. The death penalty is also sometimes referred to as the ‘capital punishment’. Suppose, in a case, A is charged with the murder of B. Generally speaking, causing death of a person is called culpable homicide. Culpable homicide becomes murder if : (1) the act by which the death is caused is done with the intention of causing death, or (2) the act by which the death is caused is done with the intention of causing such bodily injury to B which A knows that it is likely to cause death of B, or (3) the act by which the death is caused is done with the intention of causing bodily injury to any person, which bodily injury is sufficient in the ordinary course of nature to cause death, or (4) the person committing the act knows that his act is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse. Illustrations : (i) A shoots Z with the intention of killing him. Z dies in consequence. A commits murder. (ii) A, knowing that Z is labouring under such a disease that a blow is

218

Courts, Police, Authorities & Common Man

likely to cause his death, strikes him with the intention of causing bodily injury. Z dies in consequence of the blow. A is guilty of murder, although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. But if A, not knowing that Z is labouring under any disease, gives him such blow as would not in the ordinary course of nature kill a person in a sound state of health, here A, although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death, or such bodily injury as in the ordinary course of nature would cause death. (iii) A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here, A is guilty of murder, although he may not have intended to cause Z’ death. (iv) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual. Under the following situations, culpable homicide is not murder: (1) if the offender, whilst deprived of the power of self-control by grave and sudden provocation, - causes the death of the person who gave the provocation, or - causes the death of any other person by mistake or accident However, to claim benefit under this section, the offender must prove that (a) the provocation was not sought by the offender as an excuse for killing or doing harm to any person (b) the provocation was not caused by - anything done in obedience to the law, or - a public servant in the lawful exercise of his powers (c) the provocation was not caused by anything done by the victim in the lawful exercise of his right of private defence (2) if the offender, in the exercise of right of private defence, in good faith, causes death of the person against whom he is exercising right of private defence. However, to claim benefit, the person must show that the act was done without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence.

Part III : Criminal Law Administration System

219

(3) If the offender, being a public servant or aiding a public servant for the advancement of public justice, causes death by doing an act which he in good faith believes to be lawful and necessary for due discharge of his duty as such public servant and without any ill-will towards the victim. (4) if the death is committed — (a) without premeditation (b) in a sudden fight (c) in the heat of passion (d) upon a sudden quarrel (e) without the offenders having taken undue advantage or acted in a cruel or unusual manner. (5) if the victim, being above 18 years of age, suffers death or take the risk of death with his own consent. Illustrations: (i) A, under the influence of passion excited by a provocation given by Z, intentionally kills Y, Z’s child. This is murder, in as much as the provocation was not given by the child, and the death of the child was not caused by accident or misfortune in doing an act caused by provocation. (ii) Y gives grave and sudden provocation to A. A, on this provocation, fires a pistol at Y, neither intending nor knowing himself to be likely to kill Z, who is near him, but out of sight. A kills Z. Here A has not committed murder, but merely culpable homicide. (iii) A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by the arrest, and kills Z. This is murder, in as much as the provocation was given by a thing done by a public servant in the exercise of his powers. (iv) A appears as a witness before Z, a Magistrate. Z says that he does not believe a word of A’s deposition and that A has perjured himself. A is moved to sudden passion by these words, and kills Z. This is murder. (v) A attempts to pull Z’s nose. Z, in the exercise of the right of private defence, lays hold of A to prevent him from doing so. A is moved to sudden and violent passion in consequence, and kills Z. This is murder, in as much as the provocation was given by a thing done in the exercise of the right of private defence.

220

Courts, Police, Authorities & Common Man

(vi) Z strikes B. B is by this provocation excited to violent rage. A, a bystander, intending to take advantage of B’s rage, and to cause him to kill Z, puts a knife into B’s hand for that purpose. B kills Z with the knife. Here B may have committed only culpable homicide, but A is guilty of murder. (vii) Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws out a pistol. Z persists in the assault. A believing in good faith that he can by no other means prevent himself from being horsewhipped, shoot Z dead. A has not committed murder, but only culpable homicide. (viii) A, by instigation, voluntarily causes Z, a person under eighteen years of age to commit suicide. Here on account of Z’s youth, he was incapable of giving consent to his own death. A has therefore abetted murder. Culpable homicide not amounting to murder is punishable with upto life imprisonment or imprisonment upto 10 years and fine. Death by negligence (Section 304A) If death is caused by a rash or negligent act not amounting to culpable homicide, then it is punishable with upto 2 years or with fine or with both. Dowry death (Section 304B) If death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances-

within 7 years of her marriage, and

-

it is shown that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of her husband

-

for, or in connection with, any demand for dowry,

then her husband or relative is punishable with imprisonment of at least 7 years which may be extended to life imprisonment. Death with intention to cause miscarriage ( Section 314) If a person, with the intention to cause miscarriage of a woman with child, does any act which causes the death of such woman, he is punishable with imprisonment upto 10 years and fine.

7 Matrimonial dispute culminating into harassment by women under criminal law The concept of dowry had started with the giving of gifts to a girl by her parents voluntarily out of natural love and affection at the time of her marriage. However, with the passage of time, the element of ‘voluntary’ disappeared and the bridegroom side started demanding the dowry as a matter of right. In the 1950s and 1960s, the dowry took the shape of a commercial transaction. It became so rampant and common that parents with meager means were unable to marry their daughters and even after the marriage, their daughters were subjected to torture and sometimes to death. The burning of the brides by the boy’s side for want of sufficient dowry became a common affair. Alarmed by such growing incidents, the Parliament passed the Dowry Prohibition Act 1961 which laid down stringent provisions to check this evil. With the passage of time, though this Act helped in putting a check on the growing incidents of bride burning, but the harassment by the in-laws of the girl continued. The in-laws of the girl used to torture the girl to such an extent that the girl in certain cases used to commit suicide or cause grave injury to herself. There was an increase in the dowry related deaths. To remedy such a situation, the Parliament in 1983 inserted Section 498A in the Indian Penal Code by way of an amendment. The said section is reproduced herein below : Section 498A. Husband or relative of husband of a woman subjecting her to cruelty.- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.- For the purpose of this section, “cruelty” means(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by

222

Courts, Police, Authorities & Common Man

her or any person related to her to meet such demand. As can be seen from the contents of Section 498A above, if a woman’s husband or his relatives; -

drive her to commit suicide; or drive her to injure herself; or drive her to cause danger to her life, limb or health (mental or physical); or - harass her/her relatives to give him/them property or valuable security or - harass her stating that she/her relatives did not give him/them property or valuable security then such person/s would be liable for imprisonment of upto 3 years and would also be liable to pay a fine. Thus, the husband and any relative of the husband who was found to inflict cruelty upon the girl were made punishable with 3 years imprisonment. The meaning of ‘cruelty’ was expanded to include not only the cases of physical torture but mental torture also. Thus, any act of the husband or his relatives which can be shown to have caused mental torture or harassment to the married woman would constitute ‘cruelty’ within the meaning of this section. Though Section 498A was introduced to prevent or minimize the cases of harassment of married women by their husband and in-laws. But, it is a tragedy that generally whenever a law is made in India for the benefit of a class of people, the same very law is misused by those people to harass others. The law which was supposed to protect the married women from the torture by their in-laws is nowadays widely used by the married women to torture their husband and in-laws to settle their personal scores and egos arising out of the matrimonial disputes. The modus operandi is that whenever a married woman (mostly, newly married woman) does not want to live with her husband/in-laws for whatever reasons, instead of filing proper proceedings in a civil court for seperation or divorce, she files a complaint under section 498A and 406 of Indian Penal Code alleging that her husband/in-laws have tortured her badly and they have also taken away her istridhan (i.e. gifts given to her at the time of marriage) and are not returning the same. She not only involve the husband in the complaint but also involves all the persons of her husband’s family and near relatives of her husband, exposing them unnecessarily to the rigours of criminal law. The complaint is either filed

Part III : Criminal Law Administration System

223

by her in the Crime Against Women Cell (a special cell created by the police to exclusively deal with the cases of harassment of women by relatives) or with the police station for registering an FIR or directly with the Court. The role of the CAW is that of a conciliator to bring about an amicable settlement between the parties. If the officer of the CAW cell (this cell is generally controlled by lady police officers of the rank of inspector and below) find that the amicable settlement is not possible despite best efforts, the officer refer the complaint to the police station concerned to formally register an FIR. The police station then files the copy of FIR in the concerned court and the criminal law is set in motion. The police investigates the complaint and in most cases, arrest the husband and his near relatives and produce them before the concerned magistrate. Tragically, in most of such cases, the court send the husband and his relatives to the jail . These people then apply for their bail, which is often refused than granted by the court. Normally, the complaint can be filed by the person affected only and he has to remain present on each date. However, special concession has been given to a married woman desiring to proceed against her in laws under section 498A. Section 198A was also inserted in the Code of Criminal Procedure, simultaneously with the introduction of Section 498A in Indian Penal Code, which provides that the complaint in such cases can be made by the affected women herself or even by her father, mother, brother, sister or by the brother/sister of her parents or even by any person related to her by blood, marriage or adoption. By the amendment in 1983, the Parliament also inserted Section 113A in the Indian Evidence Act. By virtue of this provision, if a married woman commits suicide within 7 years of her marriage and it is shown that her husband or his relatives had treated her with cruelty, it would be automatically presumed by the Court that her husband or relatives were instrumental in creating situations for her to commit suicide. The onus will then be upon the husband and his relatives to rebut this presumption and prove that they had no role to play in the suicide. There have been instances when the woman has falsely implicated the old parents of her husband who are in their seventies or eighties at the fag end of their lives. This was never the intention of the law. The courts are also conscious of this disturbing trend and there have been few cases wherein the High Court has deprecated such a practice and has granted bail to the relatives of the husband. Recently, in the case of Savitri Devi vs Ramesh Chand & others 104 (2003) DLT 824 decided on 19.5.2003, Justice J.D.Kapoor of Delhi High Court was constrained to point out the

224

Courts, Police, Authorities & Common Man

growing misuse of the provisions of Section 498A/406 IPC. The Hon’ble Judge observed : “ I feel constrained to comment upon the misuse of the provisions of Section 498A/406 IPC to such an extent that it is hitting at the foundation of marriage itself and has proved to be not so good fore the health of the society at large. … These provisions were though made with good intentions but the implementation has left a very bad taste and the move has been counter productive. There is a growing tendency amongst women which is further perpetuated by their parents and relatives- to rope in each and every relative including minors and even school going kids, nearer or distant relatives and in some cases against every person of the family of the husband whether living away or in other town or abroad and married, unmarried sisters, sister-in-laws, unmarried brothers, married uncles and in some cases grant parents or as many as 10 to 15 or even more relatives of the husband. Once a complaint is lodged under Sections 498A/406 IPC whether there are vague, unspecific or exaggerated allegations or there is no evidence of any physical or mental harm or injury inflicted upon woman that is likely to cause grave injury or danger to life, limb or health, it comes as an easy tool in the hands of the police and agencies like Crime Against Women Cell to hound them with the threat or arrest making them run here and there and force them to hide at their friends or relatives houses till they get anticipatory bail as the offence has been made cognizable and non-bailable. Thousands of such complaints and cases are pending and are being lodged day in and day out. These provisions have resulted into large number of divorce cases as when one member of the family is arrested and sent to jail without any immediate reprieve of bail, the chances of salvaging or surviving the marriage recede into background and marriage for all practical purposes becomes dead. The aftermath of this is burdensome, insupportable and miserable life for the woman. Remarriage is not so easy. Once bitten is twice scared. Woman lacking in economic independence start feeling as burden over their parents and brothers. Result is that major bulk of the marriages die in their infancy, several other in few years. The marriage ends as soon as a complaint is lodged and the cognizance is taken by the police. … There is a growing tendency to come out with inflated and exaggerated allegations roping in each and every relation of the husband and if one of them happens to be of higher status or of vulnerable standing, he or she becomes an easy prey for better bargaining and blackmailing.” There is already a provision of the offence of dowry death in Section

Part III : Criminal Law Administration System

225

304B which was inserted in the IPC in the year 1986 by way of an Amendment. As per this Section : If death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances – -

within years of her marriage, and

-

it is shown that soon before her death, she was subjected to cruelty or harassment by her husband of any relative of her husband

-

for, or in connection with, any demand for dowry

then such a death is called dowry death and such husband or relative is deemed to have caused her death. The offence of dowry death is punishable with min. 7 years and max. life imprisonment. Let us hope that the Parliament will take note of the increasing incidents of the misuse of the provisions of Section 498A and make suitable amendments in it to make it more balancing so that it does not become a tool in the hands of egoistic women to harass and torture their innocent husbands and his relatives.

8 Dishonor of Cheques The law relating to the offence of dishonour of cheques ( commonly known as bouncing of cheques) in contained in Chapter 17 of the Negotiable Instruments Act 1881. This Chapter was incorporated in this Act by the Parliament by amending this Act by Banking Public Financial Institutions & Negotiable Instruments Laws (Amendment) Act 1988. This was introduced in the backdrop of increasing instances of people being taken for a ride by the scrupulous persons who used to avail benefits against cheques and then used to get the cheques bounced. To take care of this problem and to restore the faith of the people in the efficacy of the negotiable instruments like cheques as the mode of payment in commercial transactions, this chapter was brought on the Statute book to provide penalty in case of dishonour of cheques. It is intended to prevent dishonesty on the part of the person issueing the cheque without sufficient funds in his account. The overall intention is to encourage the culture of use of cheques and enhancing the credibility of cheques. This chapter 17 at present consists of sections 138 to section 142. The charging section is Section 138, which is reproduced herein below ( prior to 6.2.2003) : 138. Dishonour of cheque for insufficiency etc. of funds in the account. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both. Provided that nothing contained in this section shall apply unless(a) the cheque has been presented to the bank within a period of

Part III : Criminal Law Administration System

227

six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and ( c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, the holder in due course of the cheque, within fifteen days of the receipt of the said notice. As can be seen, the offence of cheque bouncing is committed by the person issueing a cheque if the following ingredients are satisfied : (a) The person issues a cheque (b) The cheque is issued from an account maintained by him with a bank (c) The purpose of issuance of cheque must be to pay an amount of money to another person (d) The cheque must be for the discharge, in whole or in part, of any debt or other liability (e) The cheque is presented by the holder in his bank within the period of its validity (within 6 months from the date on the cheque) (f) The cheque is returned unpaid by the bank for the reason of insufficient funds or because the person has made an agreement with the bank not to honour the cheques above a particular limit (g) The holder serves a written demand notice upon the person, within 15 days of receipt of information from the bank about dishonour of cheque (h) The person fails to make the payment of the amount mentioned in the cheque within 15 days of the receipt of notice by him. Sometimes it may so happen that a person may issue a cheque inadvertently, without being aware that the balance in his account is less than the amount of cheque he is issueing. Hence, the Legislature deliberately avoided making the mere act of bouncing of cheque as an offence, to protect honest issuers of cheques. The Law gives such an honest person one more opportunity to rectify his mistake by making a

228

Courts, Police, Authorities & Common Man

provision allowing him 15 days more time to pay the amount of the cheque. However, if he still not pay the amount despite expiry of 15 days time, it is deemed that he is dishonest and the offence is deemed to be committed by him on the expiry of the said 15 days. If the person still does not make the payment even after expiry of 15 days from the date of receipt of notice by him, the holder can file, under section 142, a criminal complaint in the court of the concerned Metropolitan Magistrate. However, such a complaint can be filed only within one month from the date when the said 15 days time period expire. Under section 139, there is a presumption in law that the cheque was issued by the person for the discharge of any debt or other liability. The person can not plead that he was not aware about the insufficiency of funds in his account. If the person issueing the cheque is a company and the cheque bounce, then every person who was in charge of the company and was responsible to the company for the conduct of the business of the company, is deemed to be guilty of the said offence of bouncing of cheque. However, if such person proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of the said offence, then he is not guilty. Procedure followed in cheque dishonour case After the complaint is filed in the court, the procedure related to the criminal complaints, as contained in chapter XV and XVI (Sections 200 - 210) of the Cr.P.C., becomes applicable i.e. the court records the statement of the complainant and the statement of the bank’s employee (which in common parlance is called pre-summoning evidence) and issues summons to the accused ( i.e. the person who issued the cheque). Earlier, the proceedings in the case used to be got delayed because of non-recording of statement of the bank’s employee due to variety of reasons – mostly the bank’s employee did not turn up or used to come without the relevant bank records concerning the cheque in question. Thanks to several judgments by the High Courts on the growing instances of delays in cheque bouncing cases wherein the High Courts insisted on taking measures for speedy disposal of such cases, nowadays the courts dealing with cheque bouncing cases do not insist on the statement of the bank’s employee for the purpose of issueing summons to the accused. Also, the recording of the statement of the complainant is also not insisted by the court and the court issues summons to the accused on the basis of the affidavit of the complainant (whatever the complainant had to say as statement before the judge is put down in the form of an affidavit).

Part III : Criminal Law Administration System

229

On receipt of the summons, the accused is bound to appear in the court and obtain bail. Thereafter, he is given copy of the complaint and other documents and is given time to argue on charge i.e. he is free to argue that no case is made out against him. If the court is satisfied, then it may discharge him. If the court is not satisfied, it frames charge against him in writing and ask him whether he pleads guilty or not. If he pleads guilty, then the court convict him then and there and impose any sentence it deems fit (not more than what is prescribed). If he does not plead guilty and claim trial, then the court fix a date for the complainant (i.e. the prosecution) to produce his witnesses. The court examines the complainant’s witnesses and the accused’s counsel cross-examines the said witnesses. When the evidence of the witnesses of the complainant is over, the statement of the accused under section 313 CrPC is recorded. Then he is given time to produce his witnesses. Then his witnesses are examined by the court and cross-examined by the complainant’s counsel. When the evidence of the accused’s witnesses is over, both the complainant and the accused make their arguments before the court. When the oral arguments are completed, the court may ask both the parties to submit their written submission/arguments. Thereafter, the court go through the record, the evidence and the arguments and pronounces its judgment. Penalty If the offence is proved, then the accused can be punished with maximum imprisonment of one year or with a maximum fine of double the amount of cheque or with both imprisonment and fine. It may be remembered that the remedy under section 138 is criminal in nature and it can not be used to get the amount of the cheque. (at best, it can serve as a pressure for the accused to return your money). For that purpose, one has to file a civil suit in the civil court. However, since the cheque is a negotiable instrument, the suit can also be filed under the summary procedure contained in Order 37 of the Code of Civil Procedure 1908. Under the said procedure, the recovery of money is comparatively faster. However, one must always keep in mind that the civil suit, whether under the normal procedure or the summary procedure, can be filed only within 3 years from the date of the cheque. Torture for complainant It is a tragedy that whenever the Legislature makes a law to remedy some wrong, the scrupulous people always find loopholes in the same and start misusing the same, thereby defeating the very purpose for which the

230

Courts, Police, Authorities & Common Man

legislation was passed. The nasty people misuse the loopholes in the existing criminal system thereby delaying the proceedings. It may be noted that the complainant has to be present on every date in the court. He has to come to the court on every date at the cost of leaving his important work. (However, certain High Courts have held that complainant can appear through attorney. See Note 25 in FAQs). Then, once he is in the court, it is not known when his matter will be taken up and thus, practically his whole day is lost. Then the next date given in the case is generally of more than 2 months. Generally, it takes more than a year in only summoning the accused. Ultimately, when the summons are issued against the accused, the accuseds with criminal bent of mind avoid service of summons tactfully, thus further delaying the proceedings. Ultimately, when the accused is finally served, he comes to the court and obtain bail, as it is a bailable offence. Thereafter only, the accused has to be present on every date. Till the accused comes to the court and obtain bail, it is a sort of torture for the complainant. After the bail is granted to the accused, the case proceeds just like any other criminal case, which means another few years are gone. In the process, the complainant gets exhausted and finally settles for a compromise in majority of cases. Thus, the remedy under section 138 has not proved to be much helpful so far. [However, same solace can be drawn from the Supreme Court judgment in Mohd. Azeem vs A.Venktesh and another VII (2002) SLT 433, wherein the Court held that the Magistrate is not justified in acquitting the accused for the absence of the complainant on just one day. He should restore the complaint if sufficient cause is shown for non-appearance]. New developments However, with the growing inclination of the courts for speedier disposal of cheque bouncing cases, a ray of hope is finally emerging for the hapless complainants. Recently, the Govt. implemented the Fast Track Courts Scheme, thereby providing for the establishment and functioning of 1734 courts described as Fast Track Courts in various States to deal with long pending cases. Under the said Scheme, apart from other courts, the Courts exclusively dealing with cheque bouncing cases have been created. Now, the disposal of cases has become faster and speedier. The challenge made to the said scheme was rejected by the Supreme Court in the case of Brij Mohan Lal vs Union Of India reported in III(2002)SLT 593. Recently, the Negotiable Instruments (Amendment and Misc. Provisions) Bill, 2002 was passed by the Lok Sabha on 21.11.2002. This Bill became an Act and is in force from 6.2.2003. This amendment Act,

Part III : Criminal Law Administration System

231

apart from making amendments in related Acts and certain Sections of the Negotiable Instruments Act 1881, also make following amendments in the Sections relating to dishonour of cheques : 1.

The maximum punishment in such cases has been increased from one year to 2 years.

2.

Many a times, the period of 15 days within which the notice of demand was required to be sent by the complainant was found to be too short and the complainant used to lose the remedy under Section 138 due to his failure to send notice within 15 days of dishonour of the cheque. The said disability has been removed by this Amendment by providing for a period of 30 days in place of the present 15 days.

3.

Earlier, there was no provision for filing of the complaint after the expiry of one month from the cause of action. Now, the complaint can be filed after one month also, provided the complainant is able to satisfy the court that he had sufficient cause for not making the complaint within the prescribed one month.

4.

A new Section 143 has been inserted which provides for summary trial of the cheque dishonour cases by applying section 262-265 of the Cr.P.C.

5.

Earlier, the summons could be served only by registered AD post or through Court’s process server. Now, the summons can also be issued by Speed Post and by Courier.

6.

The evidence of the complainant can be given on affidavit.

7.

On being shown the bank’s cheque return memo or slip, the Court has to draw a presumption that the cheque was dishonoured. This means, no requirement now, at the stage of summoning of accused, to summon the bank’s employee for the purpose of proving the fact of dishonour of the cheque.

8.

The offence of cheque dishonour has been made compoundable. That is, the parties can lawfully enter into compromise in respect of this offence.

9 Do You Know ? (Important pieces of information relating to various Acts) q The law relating to corruption is governed by the Prevention of Corruption Act 1988. The Benami transactions i.e. any transaction in which property is transferred to one person for a consideration paid by another person, is prohibited under the Benami Transactions (Prohibition) Act 1988. Revealing the official secrets i.e. telling the contents of the confidential documents of the Govt. is prohibited under the Official Secrets Act 1923. The Central Govt. can appoint a commission to enquire into any incident under the Commissions of Inquiry Act 1952. q The law relating to the acquisition of land and properties by the Govt. for public purposes is governed by the Land Acquisition Act 1894. q The Displaced Persons (Compensation and Rehabilitation) Act 1954 governs the payment of compensation and allotment of land/ plots to the refugees i.e. those persons (including their heirs) who migrated from Pakistan to India at the time of partition after 1st March 1947. q The eviction of the unauthorized occupants from the public premises is provided in the Public Premises (Eviction of unauthorized Occupants) Act 1971. The public premises generally are the premises belonging to or leased by the Central Govt. or any of its institutions or the State Govt. or the MCD or DDA (in case of Delhi). q In Delhi, any construction or development has to be in accordance with the Master Plan of Delhi 2001, the Delhi Development Authority Act 1957 and the Building Byelaws 1983. The areas within the jurisdiction of M.C.D. (Municipal Corporation of Delhi) are governed by the Delhi Municipal Corporation Act 1957. The areas within the jurisdiction of N.D.M.C. (New Delhi Municipal Council) are governed by the New Delhi Municipal Council Act 1994. Most of the area in Delhi is under the jurisdiction of MCD. q The revenue matters in Delhi and all aspects relating to agricultural lands in Delhi are governed by the Delhi Land Revenue Act 1954 and the Delhi Land Reforms Act 1954.

Part III : Criminal Law Administration System

233

q The set-up and the functioning of the Govt. in Delhi is governed by the Govt. of National Capital Territory of Delhi Act 1991. This Act is in force w.e.f. 3.1.1992. This Act was brought into force by the 74th Amendment to the Constitution. Earlier to this, the Govt. in Delhi was governed by the Delhi Administration Act 1966. The rates of stamp duty on different types of transactions in Delhi including arbitration awards, trusts etc. are governed by the Indian Stamp (Delhi Amendment) Act 2001, in force with effect from 31.7.2001. The documents which require registration with the sub-registrar and the mode of registration is provided in the Registration Act 1908. q The law governing the landlord tenant relations in Delhi is governed by the Delhi Rent Control Act 1958. q All the schools in Delhi are regulated by the Delhi School Education Act 1973. q Any views, suggestions and complaint to the Prime Minister of India can be given directly to him by accessing his official website www.pmindia.nic.in q The websites of all High Courts and of Supreme Court of India can be accessed by logging on to the website www.indiancourts.nic.in q BSF Act 1968 governs the constitution and working of the Border Security Force. CRPF Act 1949 governs the constitution and working of the Central Reserve Police Force. CISF Act 1968 governs the constitution and working of the Central Industrial Security Force. The ITBP Force Act 1992 governs the constitution and working of the Indo-Tibetan Border Police. The Army Act 1950 govern the working of the Indian Army. The Navy Act 1957 governs the Indian navy. The Air Force Act 1950 governs the Indian Air force. q For the benefit of and to look after the interests of the Scheduled castes and the Scheduled tribes, the National Commission for Scheduled Castes and Scheduled Tribes is established by the Govt. under Article 338 of the Constitution of India. Whoever commits atrocities on the person belonging the SC or ST is punishable under the Scheduled Castes and the Scheduled Tribes ( Prevention of Atrocities) Act 1989. q For the welfare measures for the minorities, there are National Commission for Minorities Act 1992, National Commission for Women Act 1990, National Commission for Backward Classes Act 1993.

234

Courts, Police, Authorities & Common Man

q Most of the Acts/laws in force in India are not applicable to the State of Jammu and Kashmir. This is because of the special position accorded to the said State under Article 370 of the Constitution of India. q If an Act or enactment does not define a word, then General Clauses Act 1897 can be referred and relied for the meaning of that word, if it appear in the General Clauses Act. q The law relating to the contracts, agreements etc. is governed by the Indian Contract Act 1872. q The law governing the sale, purchase, transfer of the property is governed by the Transfer of Property Act 1882. q The sale of goods i.e. every kind of movable property is governed by the Sale of Goods Act 1930. q The formation and functioning of a partnership firm is governed by the Indian Partnership Act 1932. q The law relating to the private trusts and trustees is governed by the Indian Trusts Act 1882. The charitable and religious trusts are administered under the Charitable and Religious Trusts Act 1920. The Societies are registered and are governed under the Societies Registration Act 1860. q The law relating to Co-operative Societies is contained in the Cooperative Societies Act 1912. However, most of the States have framed their own Acts in this field. For example, in Delhi, we have Delhi Co-operative Societies Act 1972 (recently repealed by Delhi Co-operative Societies Act 2003). q The law to govern the sale and distribution of goods which are sold by weight, measure or number (to ensure that the consumer is getting the goods of the required weight, measure or number), is the Standards of Weights and Measures Act 1976. q The evidence in all matters in India, whether civil or criminal, its mode, its application is governed by the Indian Evidence Act 1872. q The Hindu Marriage Act 1955 governs the marriage of the Hindus. The divorce proceedings are also undertaken under the said Act. The marriage between any two persons (whether Hindus or non-Hindus) can be solemnized and registered under the Special Marriage Act 1954. The court marriage, as we understand in common parlance, is

Part III : Criminal Law Administration System

235

also done under this Act. The marriage in Christians is governed by Christian Marriage Act 1872. For the purpose of divorce, there is Divorce Act 1869. The rights of a Muslim woman on divorce are protected by the Muslim Women (Protection of Rights on Divorce) Act 1986. q The succession in Hindus is governed by the Hindu Succession Act 1956. The adoption of children and the maintenance of the wife and dependents in Hindus is governed by the Hindu Adoptions and Maintenance Act 1956. The law governing the Hindu minors and their guardians is the Hindu Minority and Guardianship Act 1956. For other religions, there is Guardians and Wards Act 1890. A person is determined to be a major as per the law contained in Majority Act 1975. q The general law in India governing the succession is the Indian Succession Act 1925. This Act provides for the grant of Succession Certificate and letters of Administration and Probate of a Will. q The family courts have been established under the Family Courts Act 1984. These courts exclusively deal with the disputes relating to marriage and family affairs. The purpose is to promote conciliation and speedy settlement. The proceedings are somewhat informal and the parties are not allowed to be represented by lawyers. q Representing women in indecent manner through advertisement, film, drawing, painting, photograph etc. is punishable with upto 5 years imprisonment and fine upto Rs. one lakh under the Indecent Representation of Women ( Prohibition) Act 1986. The Act which prohibits and prevents the soliciting in public and immoral sex is the Immoral Traffic (Prevention) Act 1956. The giving or taking of dowry is prohibited under the Dowry Prohibition Act 1961. q The commercial dealings in human organs is prohibited under the Transplantation of Human Organs Act 1994. The same Act governs the removal, storage and transplantation of the human organs. The use of diagnostic techniques for the purposes of determining the sex of the foetus leading to female foeticide is prohibited under the Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act 1994. The medical termination of pregnancy is governed by the Medical Termination of Pregnancy Act 1971. q The law which provide for the punishment for public gambling and for maintaining gaming houses is the Public Gambling Act 1867. In

236

Courts, Police, Authorities & Common Man

Delhi, the gambling is punishable under the Delhi Public Gambling Act 1955. q The improper use of certain emblems and names for professional and commercial use is prohibited under the Emblems and Names (Prevention of Improper Use) Act 1950. The use of Indian flag is governed by the Flag Code of India. q The Railways Act 1989 is the law governing the Indian Railways. The Motor Vehicles Act 1988 is the law governing the road traffic and the motor vehicles. The law relating to the telegraphs including telephones is contained in the Indian Telegraph Act 1885. q Under Section 39 read with Section 44 of the Electricity Act 1910, dishonest abstraction of electricity is an offence. However, it was held by the Delhi High Court in Ramesh Chandra vs State 1997(42) DRJ 607 that mere existence of the tampered meters is not enough to attract the provisions of section 39. There must be material on record to prima facie show dishonest abstraction, consumption or use of electricity. There must be something to show dishonest intention of the accused. q The law relating to the ports is governed by the Indian Ports Act, 1908. q The law regulating the works conditions of the labour employed in the plantations is provided in the Plantations Labour Act 1951. The law regulating the works conditions of the labour employed in the mines is provided in the Mines Act 1952. The matters related to fisheries are governed by the Indian Fisheries Act, 1897. q The payment of wages to the persons employed in any factory or establishment is regulated by the Payment of Wages Act 1936. Minimum rates of wages are prescribed for every State under the Minimum Wages Act 1948. Similarly, the payment of bonus to the persons employed in any factory or establishment is regulated by the Payment of Bonus Act 1965. The law dealing with the labour management disputes is the Industrial Disputes Act 1947. The law dealing with the registration and regulation of the trade unions is the Trade Unions Act 1926. The law providing for the compensation to the labours in case of injuries, accidents etc. is the Workmen’s Compensation Act 1923. The work conditions in the factories to ensure healthy and hygienic work atmosphere to the workers is regulated by the Factories Act 1948. The payment of provident fund

Part III : Criminal Law Administration System

237

to the employees is governed by the Employees Provident Fund Act 1952. The insurance of the employees by the employer is governed by the Employees State Insurance Act 1948. q Employment of child as labour is prohibited under Child Labour (Prohibition and Regulation) Act 1986. q The profession of pharmacy is regulated by the Pharmacy Act 1948. The profession of the doctors is governed by the Medical Council Act 1956. The profession of the Chartered Accountants is regulated by the Chartered Accountants Act 1949. The profession of the advocates is governed by the Advocates Act 1961. q The import, export, manufacture, sale, distribution, transport and use of the insecticides is regulated by the Insecticides Act 1968. q The Indian Institutes of Technology (IITs) have been set up under the Institutes of Technology Act 1961. Their working is governed by the said Act. q The Acts providing for the elections to Houses of Parliament and State Assemblies and for matters relating thereto is the Representation of the People Act 1950 and 1951. q The law relating to the rights and liabilities of the carriers i.e. persons or companies engaged in the transporting of property from place to place by land or sea, is governed by the Carriers Act 1865. The Indian Airlines and the Air India have been established under the Air Corporations Act 1953. q The law relating to banking is governed by the Banking Regulation Act 1949. The Reserve Bank of India, which regulates all banking activities in India, is governed by the Reserve Bank of India Act 1934. The Insurance business is governed by the Insurance Act 1938 and regulated by the Insurance Regulatory and Development Authority Act 1999. q The activities in the stock market are regulated by the Securities and Exchange Board of India Act 1992 (SEBI). q For the same type of work, men and women are entitled to the same remuneration. This is provided under the Equal Remuneration Act 1976. q The rates of the various medicines can be fixed by the Central Govt. under the Drugs (Price Control) Order 1995 (made under Section

238

Courts, Police, Authorities & Common Man

3 of the Essential Commodities Act 1955). The law governing the drug, medicines, cosmetics etc. is the Drugs and Cosmetics Act 1940. q There is generally a period prescribed for approaching the court for the enforcement of your rights. These time periods are provided in the Limitation Act 1963. q The consumers of goods or services can file complaint regarding defect in goods or deficiency in services under the Consumer Protection Act 1986. No court fee is payable in consumer cases. However, recently, notional court fees has been introduced. q To provide free legal services to the weaker sections of the society, legal services committees have been established under the Legal Services Authorities Act 1987. q The law dealing with grant of certificates to the films for exhibition in cinemas by the Censor Board is the Cinematograph Act 1952. The Act dealing with the registration of books etc. is the Press & Registration of Books Act 1867. The statutory body for the media is governed by the Press Council Act 1978. q The law dealing with the registration and protection of trade marks is the Trade and Merchandise Marks Act 1958. The law dealing with the registration and protection of copyrights in any artistic work is the Copyright Act 1957. The law dealing with the registration and protection of patents in respect of any new invention or manufacturing process is the Patents Act 1970. The law dealing with the registration and protection of designs is the Designs Act 1911. Due to the globalisation of trade and commerce, these Acts are in the process of being replaced by new Acts to be in line with the laws on these subjects in other countries. q The telecommunication services including the cellular services are regulated by the Telecom Regulatory Authority of India Act 1997. q The Customs Act 1962 deals with the matters related to customs and the Central Excise Act 1944 deals with the matters related to excise. q The law providing legal recognition to the electronic transactions including those on the internet and providing penalties for electronic frauds and for causing damage to the computer systems by use of virus etc. is contained in Information Technology Act 2001. In

Part III : Criminal Law Administration System

239

particular, this Act deals with, what we call, cyber crimes. q The law dealing with the prevention of the terrorist activities is the Prevention of Terrorism Act 2002 (POTA). The law dealing with keeping of arms and weapons is the Arms Act 1959. The Act dealing with explosives is the Explosives Act 1884. q The Act regulating the foreign exchange and providing for penalty in respect thereof is the Foreign Exchange Regulation Act 1973 (FERA) which has now been replaced by the Foreign Exchange Management Act 1999 (FEMA). q The Act dealing with the import export and other aspects of the development of the foreign trade is the Foreign Trade (Development & Regulation) Act 1992. q The Acts dealing with who are citizens, who are foreigners, about emigration, passport etc. are : Citizenship Act 1955 Foreigners Act 1946 Registration of Foreigners Act 1939 Emigration Act 1983 Passport Act 1967 q The law dealing with the detention of persons for the purpose of conservation of foreign exchange and for preventing smuggling activities is the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974. (commonly called COFEPOSA). The Act providing for the forfeiture of the property of the persons found involved in smuggling activities is the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property Act) 1976 (commonly called SAFEMA). The detention of a person when his activities are prejudicial to the national interest, is done by the Govt. under the National Security Act 1980 (NSA). q The law providing for the control and regulation of operations relating to the narcotic drugs is contained in Narcotic Drugs and Psychotropic Substances Act 1985 (NDPS). The Act providing for the detention of offenders for preventing illegal trade in narcotic drugs is the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act 1988. (commonly called PITNDPS) q There is Essential Commodities Act 1955 which specifies the

240

Courts, Police, Authorities & Common Man

commodity which are essential in nature. These are controlled by the Govt. The Govt. can declare any strike as illegal if it affected the goods or services of essential nature. The traders can not stock the essential commodities beyond a certain limit. The penalty can be imposed under the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act 1980 (commonly called ESMA). The measures and penalties to prevent the adulteration of food are provided in the Prevention of Food Adulteration Act 1954. q The Bureau of India Standards which grant the ISI mark to quality goods is governed by the Bureau of Indian Standards Act 1986. q The Act which seeks to provide equal opportunities to the handicapped persons is the Persons with Disabilities (Equal Protection of Rights and Full Participation) Act 1995. q The putting up of posters on walls etc. and writing on walls or in any manner damaging the public property is prohibited under the Prevention of Damage to the Public Property Act 1984 and also the West Bengal Prevention of Defacement of Property Act 1976. q Inquiries against the public servants can be conducted under the Public Servants (Inquiries) Act 1850. The public servants are governed by the CCS-CCA rules and conduct rules and departmental action can be taken against them if they violate these rules. q The Act providing much needed relief to the animals is the Prevention of Cruelty to Animals Act 1960 and the Wildlife (Protection) Act 1972. q The Birth certificate and the dearth certificate are granted under the Registration of Births and Deaths Act 1969. q The laws dealing with environment and pollution are : Air ( Prevention and Control of Pollution) Act 1981 Water ( Prevention and Control of Pollution) Act 1974 Environment (Protection) Act 1986 Forest Act 1927 Forest (Conservation) Act 1980 National Environmental Tribunal Act 1995 National Environment Appellate Authority Act 1997 Delhi Preservation of Trees Act 1994

10 Notable Quotes from the Judgments of the Supreme Court and the High Courts q Anticipatory Bail to be granted in cases where accused is not likely to abscond Law Commission of India in its 41st Report recommended the necessity of introducing a provision in the Criminal Procedure Code enabling the High Court and the Sessions court to grant anticipatory bail. It was observed by the Law Commission that necessity of granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond or otherwise misuse the liberty while on bail, there seems no justification to require him first to custody, remain imprisoned for some days and then apply for bail. [Roop Kishore Madan vs State 89(2001) DLT 150, dated 14.12.2000 Justice R.S.Sodhi of Delhi High Court] q Compensation payable by State for death of a person in custody Custodial death is one of the worst crimes in a civilized society. The Govt. is liable to pay compensation for the death of a person in police custody or in jail. Precious rights guaranteed by Article 21 of Constitution of India can not be denied to convicts, undertrials, detenues, etc. except according to the procedure established by law. The fact that large number of cases were registered against the deceased ca not be a ground for his being assaulted which resulted in injuries and subsequently death. Compensation of Rs.2 lakhs awarded. [Govt. of NCT of Delhi vs Nasiruddin 89(2001) DLT 91 (D.B.)] q Economic offences Economic offences should be tried speedily. The entire community is aggrieved if the economic offenders who ruin the economy of the country are not brought to book. An economic offence is committed with cool calculation and deliberate designs with an eye on personal

242

Courts, Police, Authorities & Common Man

profit regardless of the consequences to the community, unlike murder which may be committed in the heat of moment upon passions being aroused. [ State of Gujarat vs Mohan Lal AIR 1987 SC 1321 ] q Criminal proceedings initiated on a complaint to be quashed in certain cases Allowing the criminal proceedings to continue even where the allegations in the complaint do not make out any offence, would tantamount to an abuse of the process of court and therefore, there can not be any dispute that in such case, power under section 482 Cr.P.C. can be exercised and the proceedings can be quashed. [ Ashok Chaturvedi vs Shitul H.Chanchani VI(1998) SLT 665 ] q Criminal proceedings can be quashed even at preliminary stage in certain cases The Court can not be used for any oblique purpose and where, in the opinion of the Court, chances of an ultimate conviction are bleak and therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may, while taking into consideration the special facts of a case, also quash the proceeding even though it may be at a preliminary stage. [Madhavrao Jiwajirao Scindia vs Sambhajirao (1988) 1 SCC 692] q Magistrate has power to drop the proceedings against accused on re-consideration of the complaint It is open to the accused to plead before the MM that the process against him ought not to have been issued. The MM may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. It is his judicial discretion. No specific provision is required for the MM to drop the proceedings or rescind the process. The order issueing the process is an interim order and not a judgment. It can be varied or recalled. The fact that the process has already been issued is no bar to drop the proceedings if the complaint or the very fact of it does not disclose any offence against the accused. [ K.M.Mathew vs State of Kerala AIR 1992 SC 2209 ] [This Judgment has been disapproved by SC in another case in 2004] q Formation of opinion at the end of investigation to put the accused before Magistrate for trial can be only of SHO The investigation ends with the formation of an opinion by the police as to whether, on the basis of material collected, a case is made out to

Part III : Criminal Law Administration System

243

place the accused before the MM for trial. The submission of either a chargesheet or a final report (for discharge of the accused) is dependent upon the nature of the opinion so formed. This opinion can be only of S.H.O. of the police station concerned. There is no provision permitting delegation thereof. [Abhinandan Jha vs Dinesh Mishra AIR 1968 SC 117 ] q Accused should not suffer due to lethargic and slow investigation A lethargic and lackadaisical manner of investigation over a prolonged period makes an accused in a criminal proceeding to live every moment under extreme emotional and mental stress and strain and to remain always under a fear psychosis. Therefore, it is imperative that if investigation of a criminal proceeding staggers on with tardy pace due to the indolence or inefficiency of the investigating agency causing unreasonable and substantial delay resulting in grave prejudice or disadvantage to the accused, the courts as the protector of the rights and personal liberty of the citizens will step in and resort to the drastic remedy of quashing further proceedings in such investigation. [State of A.P. vs P.V.Pavithran AIR 1990 SC 1266] q When there is inordinate delay in recording of statements of witnesses by Investigating Officer under section 161 Cr.P.C. and there are glaring infirmities in the investigation, then the accused could be released on bail even in a murder case. [ Ravindra Pratap Shah vs State of U.P. 1988(25) All.C.C. 70 q Even a terrorist enjoys human rights That the terrorist has violated human rights of innocent citizens may render him liable for punishment but it can not justify the violation of his human rights except in the manner permitted by law. Using any form of torture for extracting any kind of information is violative of Article 21. [Ashok K.Johri vs. State of U.P. 1997 Cr.L.J. 643 ] q Police can not refuse to record FIR on the ground of jurisdiction Refusal of police to record FIR on the ground that the place of occurrence falls not within his jurisdiction constitutes a dereliction of duty. The proper course is to record the FIR and then to forward it to proper police station. [ State of A.P. vs Punati Ramulu AIR 1993 SC 2644 ]

244

Courts, Police, Authorities & Common Man

q A police officer can not refuse to record the FIR and/or investigate it on the ground that the offence did not take place in his area. [Satvinder Kaur vs Govt. of NCT of Delhi 82(1999) DLT 26 (SC)] q A person should be treated as innocent until proved guilty Accused should be considered innocent till the charge leveled against him and his guilt is established beyond all reasonable doubt. [Smt.Meena vs State of Maharashtra IV(2000) SLT 377] q Where the conclusion arrived by the court below is such as to shake the conscience, the Supreme Court would strike it down whether the judgment is one of conviction or acquittal. [Mahesh vs State of Delhi (1991) Cr.LJ 1703(SC)] q Right to information about Govt. activities A citizen has a right to know about the activities of the State, the instrumentalities, the departments and the agencies of the State. The privilege of secrecy which existed in old times, namely that the State is not bound to disclose the facts to the citizens or that the State can not be compelled by the citizens to disclose the facts, does not survive now to the great extent. [L.K.Koolwal vs State of Rajasthan AIR 1988 Raj 2] q Domiciliary visits by the police at night disturbing a person’s sleep infringe personal liberty under Artilce 21 of the Constitution and may not be constitutionally valid, except in the case of surveillance needed for the legitimate purpose of prevention of crime. ( flows from right under article 19(1)(d). kindly refer Khare vs State Delhi (1950) SCR 519, AIR 1953 SC 1295&1303, AIR 1975 SC 1278, AIR 1967 SC 110, AIR 1981 SC 760 (para 7,9,10), (1952) SCR 737 q A suit lies against the Government for wrongs done by public servants in the course of business, such as death or injury caused to a person by police atrocities. (art. 300) [Saheli vs Commisioner of Police AIR 1990 SC 513 ] q Attributes of a judge A Judge is looked upon as an embodiment of justice. He is known second to Parmeshwar. The society which keeps him to such a high esteem and crowns him with distinct soberity expects him to live upto its cherished expectations. Courts are guardians of human rights. Common man looks upon the court as the protector. The MMs are required to be sensitized to the values of human dignity and to the restraint on power. They should not allow inhumane conduct by police. [Gopalan Charya vs State of Kerala AIR 1981 SC 674, also AIR 995 SC 31]

11 Ingredients of some common offences under Indian Penal Code Cheating Cheating is defined in Section 415 of I.P.C. Following ingredients are must to make out an offence of cheating : (1) deceiving a person ‘A’ (2) (i) fraudulently or dishonestly inducing him to -

deliver any property to any person, or to

-

consent that any person shall retain any property OR

(ii) Intentionally inducing him to do what he would not do if he were not so deceived, or Intentionally inducing him to omit to do what he would not omit if he were not so deceived, and such act/ omission causes or is likely to cause damage/harm to him in body, mind, reputation or property. The word ‘fraudulently’ is defined in Section 25. A person is said to do a thing fraudulently if he does that thing with the intention to defraud. The word ‘dishonestly’ is defined in section 24. Whoever does any thing with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing dishonestly. Cheating under various situations is dealt with under Section 416 to 420 IPC. ***** Criminal breach of trust It is defined in Section 405 of IPC. Following ingredients are must to make out an offence of criminal breach of trust : (1) the offender, in any manner, is entrusted with some property or is given dominion over the property (2) he dishonestly misappropriates that property, or he dishonestly converts to his own use that property, or

246

Courts, Police, Authorities & Common Man

he dishonestly uses that property, or he dishonestly disposes of that property (3) he does so in violation of any direction of law which prescribes the mode in which such property is to be dealt with, or he does so in violation of any contract, whether express or implied, which he has made regarding the manner in which the said property is to be dealt with ***** Forgery It is defined in Section 463 IPC. Following ingredients are must to make out an offence of forgery : (1) the offender makes any false document or part of a document (2) the same is done with the intention : (i) to cause damage/injury to the public, or (ii) to cause damage/injury to any person, or (iii) to support any claim/title, or (iv) to cause any person to part with property, or (v) to enter into any express or implied contract, or (vi) to commit fraud, or (vii) that fraud may be committed Making a false document is defined in Section 464. A person is said to make a false document if: A. (1) he dishonestly or fraudulently (i) makes, signs, seals or executes a document or part of a document, or (ii) makes any mark denoting the execution of a document (2) (i) he does so with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed by a person ‘X’ or by the authority of a person ‘X’, and (ii) he knows that it was not made, signed, sealed or executed by ‘X’ or by authority of ‘X’ OR

Part III : Criminal Law Administration System

247

(3) (i) he does so with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed at a particular time, and (ii) he knows that it was not made, signed, sealed or executed at that time B. (1) he without lawful authority alters a document in any material part thereof (2) he does so after the document has been made/executed by himself or by any other person (whether such person is living or dead at the time of such alteration) (3) he does so either dishonestly or fraudulently (4) he does so by cancellation or otherwise C. (1) he dishonestly or fraudulently causes any person to sign, seal, execute or alter a document (2) he has the knowledge that such person does not know the contents of the document or the nature of alteration because of : (i) unsoundness of mind (ii) intoxication (iii) deception practiced upon him ***** Hurt It is defined in Section 319 IPC. Following ingredients are must to make out an offence of hurt: Causing to any person (i) bodily pain, or (ii) disease, or (iii) infirmity ***** Grievous Hurt It is defined in Section 320 IPC. Only following types of hurt are called as ‘grievous hurt’ : 1.

Emasculation

248

Courts, Police, Authorities & Common Man

2.

permanent deprivation of the sight of either eye

3.

permanent deprivation of the hearing of either ear

4.

deprivation of any part/organ or joint of body

5.

destruction or permanent impairing of the powers of any part/organ or joint of body

6.

permanent disfiguration of the head or face

7.

fracture or dislocation of a bone or tooth

8.

any hurt which i) endangers life, or ii) causes the sufferer to be during the space of 20 days in severe bodily injury iii) causes the sufferer to be during the space of 20 days unable to follow his ordinary pursuits *****

Murder It is defined in Section 300 IPC. Following ingredients are must to make out an offence of murder : (1) the offender does an act (2) the said act causes death of a person ‘A’ (a) the said act is done with the intention of causing death, OR (b) (i) the said act is done with the intention of causing bodily injury, and (ii) the bodily injury intended is such which the offender knows that it is likely to cause the death of ‘A’ OR (c) (i) the said act is done with the intention of causing bodily injury to any person (not necessarily ‘A’), and (ii) the bodily injury intended to be inflicted is sufficient to cause death in the ordinary course of nature OR (d) (i) the offender knows that his act is so imminently dangerous that it must, in all probability, - cause death or - such bodily injury as is likely to cause death, and (ii) he commits such act without any excuse.

Part III : Criminal Law Administration System

249

Exceptions: Under the following situations, the act of causing death (i.e. culpable homicide) is not murder: (1) if the offender, whilst deprived of the power of self-control by grave and sudden provocation, - causes the death of the person who gave the provocation, or - causes the death of any other person by mistake or accident However, to claim benefit under this exception, the offender must prove that (a) the provocation was not sought by him as an excuse for killing or doing harm to any person (b) the provocation was not caused by - anything done in obedience to the law, or - a public servant in the lawful exercise of his powers (c) the provocation was not caused by anything done by the victim in the lawful exercise of his right of private defence (2) if the offender, in the exercise of right of private defence, in good faith, causes death of the person against whom he is exercising right of private defence. However, to claim benefit, the person must show that the act was done without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence. (3) If the offender, being a public servant or aiding a public servant for the advancement of public justice, causes death by doing an act which he in good faith believes to be lawful and necessary for due discharge of his duty as such public servant and without any ill-will towards the victim. (4) if the death is committed — (a) without premeditation (b) in a sudden fight (c) in the heat of passion (d) upon a sudden quarrel (e) without the offender having taken undue advantage or acted in a cruel or unusual manner. (5) if the victim, being above 18 years of age, suffers death or take the risk of death with his own consent.

250

Courts, Police, Authorities & Common Man

Kidnapping Kidnapping is of two kinds : kidnapping from India and kidnapping from lawful guardianship. The first kind is defined in Section 360 IPC and second kind in Section 361 IPC. Following ingredients are must to make out an offence of kidnapping from India : (1) the offender conveys any person ‘A’ beyond the limits of India (2) (i) it is done without the consent of ‘A’, or (ii) it is done without the consent of some person who is legally authorized to consent on behalf of ‘A’ Following ingredients are must to make out an offence of kidnapping from lawful guardianship: (1) the offender takes or entices any minor or person of unsound mind out of the keeping of their lawful guardian (2) it is done without the consent of such lawful guardian (3) the minor is one who is a male below 16 years or a female below 18 years of age ***** Rape It is defined in Section 375 IPC. Following ingredients are must to make out an offence of rape: (1) the male offender has sexual intercourse with a woman, and (2) the same is done in either of the following six situations : (i) Against her will, or (ii) Without her consent, or (iii) With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or hurt, or (iv) With her consent, when the offender knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married, or

Part III : Criminal Law Administration System

251

(v) With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent, or (vi) With or without her consent, when she is under sixteen years of age. Explanation - Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. However, the sexual intercourse by a man with his own wife is not rape if the wife is of 15 years of age or above. ***** Theft It is defined in Section 378 IPC. Following ingredients are must to make out an offence of theft: (1) - dishonest intention on the part of the offender (2) - to take any movable property out of the possession of any person (3) - without that person’s consent (express or implied) (4) - an act by the offender whereby he moves that property in order to achieve his intention Explanation : A person is said to cause a thing to move by removing an obstacle which prevented it from moving or by separating it from any other thing, as well as by actually moving it. ***** Extortion It is defined in Section 383 IPC. Following ingredients are must to make out an offence of extortion : (1) putting any person ‘A’ in fear of any injury to him or to any other person (2) doing so intentionally (3) by doing so, dishonestly inducing ‘A’ to deliver to any person (i) any property, or (ii) valuable security, or (iii) anything signed or sealed which may be converted into a valuable security *****

252

Courts, Police, Authorities & Common Man

Robbery It is defined in Section 390 IPC. In robbery, there is either theft or extortion. Theft becomes robbery if : (1) (i) in order to commit theft, or (ii) in committing the theft, or (iii) in carrying away the property obtained by theft, or (iv) in attempting to carry away the property obtained by theft (2) the offender voluntarily causes or attempts to cause either of the following to any person : (i) death, or (ii) hurt, or (iii) wrongful restraint, or (iv) fear of instant death, or (v) fear of instant hurt, or (vi) fear of instant wrongful restraint Extortion becomes robbery if : (1) at the time of committing the extortion (2) the offender is in the presence of ‘A’ (i.e. person put in fear), and (3) the offender commits extortion by putting A in fear of i. instant death, or ii. instant hurt, or iii.instant wrongful restraint to A or to some other person (4) By so putting in fear - inducing A - then and there - to deliver up the thing extorted The offender is said to be present if he is sufficiently near to put the person in fear of instant death, or of instant hurt, or of instant wrongful restraint

Part III : Criminal Law Administration System

253

Dacoity It is defined in Section 391 IPC. Following ingredients are must to make out an offence of dacoity : (1) Five or more persons conjointly -

commit a robbery, or

-

attempt to commit a robbery OR

(2) The whole number of persons -

conjointly committing or attempting to commit a robbery, and

-

persons present and aiding such commission of robbery or such attempt to commit the robbery

amounts to five or more Every person who is so committing, attempting or aiding is said to commit dacoity. ***** Criminal Trespass It is defined in Section 441 IPC. Following ingredients are must to make out an offence of criminal trespass : (1) the offender enters into or upon a property (2) the said property is in the possession of another (3) the offender does so with the intention -

to commit an offence, or

-

to intimidate, insult or annoy any person in possession of said property OR

(4) the offender lawfully enters into or upon said property (5) but unlawfully remains there (6) with intention thereby -

to intimidate, insult or annoy any person in possession of said property

-

to commit an offence *****

254

Courts, Police, Authorities & Common Man

Defamation It is defined in Section 499 IPC. Following ingredients are must to make out an offence of defamation : (1) The offender (2) by words - either spoken, or - intended to be read or by signs or by visible representations, (5) makes or publishes (6) any imputation (7) concerning any person ‘A’ - intending to harm the reputation of A, or - knowing that such imputation will harm the reputation of A, or - having reason to believe that such imputation will harm the reputation of A However, an imputation is said to harm A’s reputation only if the imputation - directly or indirectly - in the estimation of others - lowers the moral or intellectual character of A, or - lowers the character of A in respect of his caste or of his calling, or - lowers the credit of A, or - cause it to be believed that the body of A is - in a lothsome state, or - in a state generally considered as disgraceful. Apart from above, following explanations are attached to the definition : 1. Imputing anything to a deceased person may also amount to defamation if - the said imputation would have harmed the reputation of that person if he were alive, and - the said imputation is intended to be hurtful to the feelings of the family or other near relatives of the deceased 2. Making an imputation concerning a company or an association/ collection of persons may also amount to defamation. 3. An imputation made in the form of an alternative or is expressed ironically, may also amount to defamation.

Part III : Criminal Law Administration System

255

Exceptions: In the following cases, the act of the offender does not amount to defamation : 1. if the imputation is true in respect of any person and it is in the interest of the public that such imputation should be made or published However, whether or not, the imputation is in the interest of the public, is a question of fact. 2. It does not amount to defamation to express, in good faith, any opinion whatsoever, about a public servant, - in respect of his conduct in the discharge of his public functions, or - in respect of his character ( limited to his said conduct) 3. It does not amount to defamation to express, in good faith, any opinion whatsoever, about any person, - in respect of his conduct touching any public question, and - in respect of his character ( limited to his said conduct) 4. It does not amount to defamation to publish report of the proceedings of a Court of Justice or of the result of any such proceedings. However, the report should be substantially true. 5. It does not amount to defamation to express, in good faith, any opinion whatsoever, - in respect of the merits of any decided case, whether civil or criminal, which has been decided by a Court of Justice, or - in respect of the conduct of any party, witness or agent in said case, or - in respect of the character of that person (limited to his said conduct) 6. It does not amount to defamation to express, in good faith, any opinion, - in respect of the merits of any public performance, or - in respect of the character of the author of such public performance (limited to his character appearing in such performance) 7. It does not amount to defamation on the part of a person ‘B’ ( who is having authority over ‘A’ which authority is conferred by law or arising put of a lawful contract between A and B) to pass, in good faith, censure on the conduct of ‘A’ ( however, limited to matters within the ambit of his lawful authority) 8. It does not amount to defamation to make, in good faith, an accusation

256

Courts, Police, Authorities & Common Man

about a person ‘A’ to someone having lawful authority over A in respect of the subject matter of the accusation. 9.

It does not amount to defamation to make an imputation on the character of ‘A’ if the imputation is made in good faith -

for the protection of the interests of the offender, or

-

for the protection of the interests of any other person, or

-

in the interest of public.

10. It does not amount to defamation to convey a caution to a person ‘B’ against a person ‘A’ if -

the caution is conveyed in good faith, and

-

such caution is intended for the benefit of B, or

-

such caution is intended for the benefit of some other person in whom B is interested, or

-

in the caution is conveyed in public interest. *****

Criminal Intimidation It is defined in Section 503 IPC. Following ingredients are must to make out an offence of criminal intimidation : (1) the offender threatens a person ‘A’ (2) the threat is to cause any injury to -

the person, reputation or property of A, or

-

the person or reputation of any one in whom A is interested

(3) the offender does so with the intention -

to cause alarm to A, or

-

to cause A to do any act which A is not legally bound to do, or

-

to cause A to omit to do any act which A is legally entitled to do

(4) the offender intends A to do what is stated in para (3) above as a means to avoid carrying out of said threat. A threat to A to injure the reputation of a deceased person in whom A is interested, is within the meaning of criminal intimidation. *****

12 Sample performa for various types of Petitions / Applications filed in Criminal Courts 1. Bail Application under Section 436 in a Magistrate’s court in a case of bailable offence: In the Court of Shri …….................….., Metropolitan Magistrate, Delhi In ref. : State

versus

Amit Sharma etc. FIR No. : …………………............ Under Sections : …………........... ....................…………............. Act. Police Station : ………….............

APPLICATION FOR BAIL UNDER SECTION 436 Cr.P.C. ON BEHALF OF THE ACCUSED RAM KUMAR S/O LATE SHRI HIRA LAL The humble petition of the applicant Ram Kumar, accused in the above case Most Respectfully showeth: 1.

That the applicant was arrested by the Police under Section 151 Cr.P.C. yesterday at 9.00 p.m. and were kept in the lock-up in the Subzi Mandi police station.

1.

That the bail offered by the applicant was refused by the police.

2.

That the applicant has been produced before this Hon’ble Court this day and he has been charged under Section ….. of Indian Penal Code.

3.

That the offences mentioned in para no.3 above are all bailable.

PRAYER: It is, therefore, respectfully prayed that the applicant may kindly be released on bail pending the disposal of the case. Applicant ( in custody) Delhi Dated : 1.2.2005

Through Counsel

258

Courts, Police, Authorities & Common Man

2. Bail Application under Section 437 Cr.P.C. filed in a Magistrate’s Court in a non-bailable offence In the Court of Shri......................................, Metropolitan Magistrate, Delhi

In ref. : State

versus

Deepak Singh (in custody since 23.6.2004) FIR No......................................... Under Sections ........................of ............................................... Act Police Station : ............................

APPLICATION FOR BAIL UNDER SECTION 437 Cr.P.C. ON

BEHALF OF THE ACCUSED DEEPAK SINGH S/O S.K.SINGH The humble petition of the applicant Deepak Singh, accused in the above case Most Respectfully showeth: 1.

That the applicant was arrested by the Police on mere suspicion on 23.6.2003. That nearly a month has passed after the arrest but still the Invstigating Officer (I.O.) has not filed the challan/charge sheet. ( or that the investigation has been completed and no useful purpose would be served by keeping him in jail).

2.

That the applicant was not identified by any inmate of the house of ……….. where the dacoity is alleged to have taken place, nor any incriminating article was found in his house.

3.

That the applicant is not named in the FIR. No offence is made out against the applicant. The applicant has not committed any offence as alleged. He has clean past record.

4.

That the applicant has reason to believe that one ………. with whom the applicant is on bad terms and who is looking after the case of the complainant has falsely implicated the applicant in this case out of grudge and malice and with ulterior motives.

4.

That the applicant is a respectable and law abiding person and a family man having deep roots in the society and is not likely to abscond.

259

Part III : Criminal Law Administration System

5.

That the applicant will not jump bail and will not tamper with the evidence and undertakes to abide by all the terms and conditions imposed upon him while releasing him on bail.

PRAYER: It is therefore respectfully prayed that this Hon’ble Court may kindly be pleased to pass order for releasing the applicant on bail. It is prayed accordingly.

Applicant ( in custody) Delhi

Through

Dated : 25.7.2004

Counsel

3. Bail Application under Section 439 Cr.P.C. filed in Sessions Court in a non-bailable offence In the Court of Shri ……................., Addl. Sessions Judge, New Delhi In ref. : State

versus

Ram Prakash (in custody since 22.12.2004) FIR No......................................... Under Sections ........................of ............................................... Act Police Station : ............................

APPLICATION FOR BAIL UNDER SECTION 439 Cr.P.C. ON BEHALF OF THE ACCUSED RAM PRAKASH S/O SANGRAM SINGH The humble petition of the applicant Ram Prakash, accused in the above case Most Respectfully showeth: 1.

That the abovesaid case was registered on the false complaint lodged by one Shri................................ The applicant has been falsely implicated in the case (give reasons for this statement).

2.

That the applicant is in custody for more than 40 days. The maximum

260

Courts, Police, Authorities & Common Man

punishment for the offence alleged against the applicant is only 2 years. 3.

That the investigation in this case is complete and the prosecution has also filed the challan.

4.

That no purpose would be served in keeping the applicant in jail.

5.

That the applicant is a respectable and law abiding person and a family man having deep roots in the society and there is no possibility of his escaping or absconding.

6.

That the applicant is the only bread earner of his family and his family comprising his wife, two minor children and old aged parents are dependent upon him

6.

That the applicant is willing to furnish proper security for appearance in court to take his trial.

7.

That the earlier bail application of the applicant was rejected by the court of Shri ..................................., Metropolitan Magistrate, Delhi on ................................ (give date).

PRAYER: It is therefore respectfully prayed that this Hon’ble Court may kindly be pleased to pass an order directing release of the applicant on bail. It is prayed accordingly. Applicant ( in custody) New Delhi Dated : 25.2.2005

Through Counsel

261

Part III : Criminal Law Administration System

4. Bail Application under Section 439 Cr.P.C. filed in High Court in a non-bailable offence In the High Court of Delhi at New Delhi (Criminal Miscellaneous Jurisdiction) Crl. Misc.(Main) No.

of 2005

In the matter of : Sushil Garg

...................................Petitioner

(in custody since 22.12.2004) Versus State

...................................Respondent FIR No......................................... Under Sections ........................of ............................................... Act Police Station : ............................

APPLICATION FOR BAIL UNDER SECTION 439 of CODE OF CRIMINAL PROCEDURE To, Hon’ble The Chief Justice and his companion Justices of the Delhi High Court, The humble petition of the petitioner abovenamed Most Respectfully showeth: 1. That the petitioner is a respectable person having deep roots in the society. He has his own business of ........................... under the name and style of ........................... And is an income tax payer. He is associated with may social and public welfare organizations. (give names and description). 2. That one Shri ..........................., who is an influential person, in order to harass and humiliate the petitioner, lodged a false complaint and got a false case of cheating registered against the petitioner vide FIR No. ........... Under Sections ............... at police station ........................... 3. That the said Shri ........................... is a business rival of the petitioner and he got the petitioner arrested on the basis of the said FIR. 4. That the investigation conducted so far by the police do not support the allegations in the FIR. The police has duly interrogated him during

262

Courts, Police, Authorities & Common Man

the police custody. His detention in custody is not required for the purpose of investigation of the case. 5. That the petitioner is in custody for more than 40 days. The maximum punishment for the offence alleged against the petitioner is only 2 years. 6. That the petitioner has his permanent residence at Delhi and carries on business. There is no possibility of his escaping or absconding. 7. That the petitioner is a senior citizen aged 65 years. The petitioner is suffering from several serious ailments. 8. That no purpose would be served in keeping the applicant in jail. 9. That the petitioner undertakes to abide by all the terms and conditions that may be imposed upon him by this Hon’ble Court and shall attend the court of the learned Magistrate as and when required. 10. That the earlier bail applications of the applicant was rejected by the court of Shri ...................., Metropolitan Magistrate, Delhi on ................ (give date) and by the court of Shri ..........................., Addl. Sessions Judge, Delhi on ........................... 11. That the present petition has been moved bona fide and in the interest of justice. PRAYER: It is therefore respectfully prayed that this Hon’ble Court may graciously be pleased to direct the release of the petitioner on bail or pass such other order or orders as this Hon’ble Court deem fit and proper. And the petitioner, as in duty bound, shall ever pray. Petitioner New Delhi Dated : 25.2.2005

Through Counsel

Note : 1.

An affidavit is required to be filed alongwith the bail petition in the High court. Alternatively, the bail petition may be sworned. Kindly check the exact High Court rules of the concerned High court.

2.

The petitioner can move the bail application in any court he likes. There is no legal bar. But, it is advisable that the bail petition should be first moved first before the Magistrate. If rejected, then before the Sessions Court and if rejected there also, then before the High Court. If rejected there also, then before the Supreme court.

Part III : Criminal Law Administration System

263

5. Anticipatory Bail Application under Section 438 Cr.P.C. filed in Sessions Court in a non-bailable offence IN THE COURT OF SESSIONS JUDGE, DELHI Criminal Misc. Case No.

of 2005

In the matter of : Ram Kumar Gupta

..................................Petitioner

Versus State

...................................Respondent FIR No......................................... Under Sections ........................of ............................................... Act Police Station : ............................

APPLICATION FOR ANTICIPATORY BAIL UNDER SECTION 438 of CODE OF CRIMINAL PROCEDURE The humble petition of the petitioner abovenamed Most Respectfully showeth: 1. That the petitioner is a respectable person and law abiding citizen having deep roots in the society. He has his own business of .......................... under the name and style of .......................... and is an income tax payer. He is associated with may social and public welfare organizations. (give names and description). (give details of any award etc. conferred by govt. or organisations). He is a permanent resident of Delhi. 2. That one Shri .........................., who is an influential person, is a business rival of the petitioner and is not on good terms with the petitioner. He is always on look out for the opportunities to malign and harass the petitioner. 3. That the petitioner has come to know that in order to harass and humiliate the petitioner, the said Shri ................... has got a false case of cheating registered against the petitioner vide FIR No. ...................... under Sections ........................ at police station ........................ 4. That the petitioner is innocent and the said case has been falsely

264

Courts, Police, Authorities & Common Man

registered against the petitioner at the behest of said Shri ....................... The petitioner has been falsely implicated in the said case. 5. That the petitioner has reasons to believe that he may be arrested on an accusation of having committed the said offence, which is a non-bailable offence, by the police at the instance of the said Shri........................... 6. That in these circumstances, the petitioner would suffer irreparable loss and injury in body, mind and reputation if an order for anticipatory bail is not passed in his favour. 7. That the petitioner has his permanent residence at Delhi and carries on business. There is no possibility of his escaping or absconding. He is a senior citizen. 8. That the petitioner undertakes to obey all the conditions mentioned in clauses (i) to (iv) of Section 438(2) Cr.P.C. and to obey any other conditions, if imposed by this Hon’ble Court. PRAYER: It is therefore respectfully prayed that this Hon’ble Court may graciously be pleased to issue a direction to the officer-in-charge (S.H.O.) of the police station ……….. that in the event of the petitioner being arrested, he be released on bail forthwith. It is prayed accordingly. Petitioner Delhi Dated : 1.3.2005

Through Counsel

Part III : Criminal Law Administration System

265

6. Anticipatory Bail Application under Section 438 Cr.P.C. filed in High Court in a non-bailable offence In the High Court of Delhi at New Delhi (Criminal Miscellaneous Jurisdiction) Crl. Misc.(Main) No. of 2005 In the matter of : Ravi Agnihotri

..................................Petitioner

Versus State

...................................Respondent FIR No......................................... Under Sections ........................of ............................................... Act Police Station : ............................

APPLICATION FOR ANTICIPATORY BAIL UNDER SECTION 438 of CODE OF CRIMINAL PROCEDURE To, Hon’ble The Chief Justice and his companion Justices of the Delhi High Court, The humble petition of the petitioner abovenamed Most Respectfully showeth: 1. That the petitioner is a respectable person having deep roots in the society. He is a reputed business man having a long standing business of ............................... in Delhi under the name and style of ............................... and is an income tax and sales tax payee. He is associated with may social and public welfare organizations. (give names and description). 2. That one Shri ............................... is a business rival of the petitioner and is not on good terms with the petitioner. He is always on look out for the opportunities to malign and harass the petitioner. 3. That the petitioner has come to know that the said Shri ............................... has lodged a false complaint to the police against the petitioner alleging cheating and forgery. The said complaint has been registered by the police as FIR No. ............................... under Sections ............................... at police station ............................... 4. That the said FIR is motivated and false and the only intention of the said complainant is to harass and humiliate the petitioner and to tarnish his image in the business circle.

266

Courts, Police, Authorities & Common Man

5. That the petitioner is innocent and the said case has been falsely registered against the petitioner at the behest of said Shri ............................... The petitioner has been falsely implicated in the said case. 6. That the petitioner has reasons to believe that he may be arrested on an accusation of having committed the said offence, which is a nonbailable offence, by the police. 6. That in these circumstances, the petitioner would suffer irreparable loss and injury in body, mind and reputation if an order for anticipatory bail is not granted in his favour. 7. That the petitioner is a permanent resident of Delhi. There is no possibility of his escaping or absconding. He is a senior citizen. 8. That the petitioner undertakes to obey all the conditions mentioned in clauses (i) to (iv) of Section 438(2) Cr.P.C. and to abide by all the terms and conditions that may be imposed upon him in the order of bail by the Hon’ble Court. 9. That the earlier application for anticipatory bail was rejected by the court of Shri................, Addl. Sessions Judge, Delhi on.......................... 10. That the present petition has been moved bona fide and in the interest of justice. PRAYER: It is therefore respectfully prayed that this Hon’ble Court may graciously be pleased to issue a direction to the officer-in-charge ( S.H.O.) of the police station ............................... that in the event of the petitioner being arrested, he be released on bail forthwith. Such other order or orders as this Hon’ble Court deem fit and proper may also be passed in favour of the petitioner. And the petitioner, as in duty bound, shall ever pray. Petitioner New Delhi Dated : 1.3.2005

Through Counsel

Note : 1.

An affidavit is required to be filed alongwith the bail petition in the High court. Alternatively, the bail petition may be sworned. Kindly check the exact High Court rules of the concerned High court.

267

Part III : Criminal Law Administration System

7.

Application under Section 439(2) Cr.P.C. for cancellation of bail In the High Court of Bombay at Mumbai (Criminal Miscellaneous Jurisdiction) Crl. Misc.(Main) No.

of 2005

In the matter of : Prakash Lokhande

..................................Petitioner

Versus Mohd. Iqbal & another

...................................Respondent FIR No......................................... Under Sections ........................of ............................................... Act Police Station : ............................

APPLICATION UNDER SECTION 439(2) READ WITH SECTION 482 OF CODE OF CRIMINAL PROCEDURE FOR CANCELLATION OF BAIL To, Hon’ble The Chief Justice and his companion Justices of the Bombay High Court, The humble petition of the petitioner abovenamed Most Respectfully showeth: 1. That the petitioner filed a complaint against the accused respondent no.1 for having committed the murder of petitioner’s father Shri .................................…. The police registered a FIR no.......................... under Section 302 IPC against the respondent no.1 and arrested him. The said accused was in custody only for a period of 15 days. 2. That in view of the gravity of the charge against the accused, the Judicial Magistrate 1st Class refused his bail on three occasions and his bail application before the Sessions Court was also rejected. 3. That the respondent no.1 then moved this Hon’ble Court for bail and this Court was pleased to grant him bail with certain conditions.

268

Courts, Police, Authorities & Common Man

4. That since his release on bail, the said accused is threatening the petitioner and other eye-witnesses with dire consequences if they deposed against him in the Court. ( narrate here the exact threats given by him and on what dates) 5. That the petitioner duly complained the local police regarding these threats. The G.D.entries are recorded in the register of the police station ............................... giving details of such threats. 6. That the petitioner apprehends that if the accused continues on bail, the eye-witnesses will feel insecure and may not come forward to state the true facts. 7. That the accused is an influential person and there is every likelihood of his tampering with the evidence. He may even abscond as his past record is criminal. 8. In these circumstances, his bail is required to be cancelled to uphold the majesty of law. 9. That the present petition has been moved bona fide and in the interest of justice. PRAYER : It is therefore humbly prayed that this Hon’ble Court may graciously be pleased to issue show cause upon the respondent no.1/accused and cancel his bail. Such other order or orders as this Hon’ble Court deem fit and proper may also be passed. And the petitioner, as in duty bound, shall ever pray. Petitioner Mumbai Dated : 1.3.2005

Through Counsel

Note: 1.

The State is also to be made a party(respondent) to such petition.

269

Part III : Criminal Law Administration System

8.

Application for modification of conditions of bail In the High Court of Delhi at New Delhi (Criminal Miscellaneous Jurisdiction) Crl. Misc.(Main) No.

of 2005

In the matter of : Ramesh Jain

...................................Petitioner

Versus State

...................................Respondent FIR No......................................... Under Sections ........................of ............................................... Act Police Station : ............................

PETITION UNDER SECTION 482 OF CODE OF CRIMINAL PROCEDURE FOR MODIFICATION OF CONDITION OF BAIL GRANTED BY THE COURT OF SHRI............................., SESSIONS JUDGE, DELHI IN CASE NO. .................................... To, Hon’ble The Chief Justice and his companion Justices of the Delhi High Court, The humble petition of the petitioner abovenamed Most Respectfully showeth: 1. That the petitioner is a reputed business man having a long standing business of.......................... in Delhi under the name and style of ............................... and is an income tax and sales tax payee. He is associated with may social and public welfare organizations in various capacities. ( give names and description). He is a respectable person having deep roots in the society. 2. That the petitioner has been falsely implicated in a false case under Sections ....................... of IPC vide FIR No. ........................... Police station .......................... at the instance of his business rival Shri.................................. 3. That the petitioner was granted bail by the court of Shri..........................., Sessions Judge, Delhi on ..................................... (give date) in Case no. ........................... 4. That the bail was granted by the Sessions court only on the condition

270

Courts, Police, Authorities & Common Man

that the petitioner shall not enter Delhi till the investigation is completed. 5. That the petitioner is a permanent resident of Delhi. He has his family and business here. He is the only earning member of the family. If he is not allowed to enter into Delhi, he would not be able to run his business and as a result, his family would be on the road and their very survival would be endangered. 6. That the petitioner moved an application before the same Sessions Court for removing this condition, but the learned Judge declined vide his order dated ........................... 7. That the family of the petitioner is suffering untold misery as the petitioner is unable to enter Delhi and earn the livelihood. 8. That the police is purposely delaying the investigation and is not submitting the charge sheet in order to harass the petitioner. 9. That the investigation is virtually complete and the condition of bail is operating harshly against the petitioner. 10. That the present petition has been moved bona fide and in the interest of justice. PRAYER: It is therefore respectfully prayed that this Hon’ble Court may graciously be pleased to set aside and/or modify the conditions of bail imposed by the learned Sessions Judge vide his order dt. ........................... in Case No......................................... Such other order or orders as this Hon’ble Court deem fit and proper may also be passed in favour of the petitioner. And the petitioner, as in duty bound, shall ever pray. Petitioner New Delhi Dated : 1.3.2005

Through Counsel

Note : 1. An affidavit is required to be filed alongwith the bail petition in the High court. Alternatively, the bail petition may be sworned. Kindly check the exact High Court rules of the concerned High court.

Part III : Criminal Law Administration System

271

9. Application under Section 444 Cr.P.C. by a surety for his discharge IN THE COURT OF SHRI ................................, METROPOLITAN MAGISTRATE, DELHI In the matter of : M/s Ram Bilas & co. —— address ——

......................................Complainant

versus Shyam Sunder S/o. ........................................ R/o. ........................................

........................................Accused

APPLICATION UNDER SECTION 444 Cr.P.C. ON BEHALF OF THE SURETY SHRI. ............................... SON OF ................................... FOR DISCHARGE FROM SURETYSHIP The humble petition of the abovenamed surety for the accused in the above case Most respectfully showeth: 1. That in the above case, this Hon’ble Court was pleased to order release of the accused on his furnishing bail to the extent of Rs.2000/- with one surety of the like amount. 2. That the applicant herein executed a surety bond for the said sum for the production of the accused before this Hon’ble Court on the date fixed for the trial. The accused had promised the applicant that he would diligently appear before the court on each date of hearing. 3. That off late, the accused has started disregarding the applicant. The applicant is realizing that he is losing control over the accused. In such a situation, the applicant may find it difficult to ensure that the accused appears before the Court on the date fixed. 4. That the applicant has much to fear if the accused does not prove as good as his promise and fail to appear before this Hon’ble Court on the date fixed for the hearing of the case. 5. That the accused is present in the court and the applicant begs leave to surrender him.

272

Courts, Police, Authorities & Common Man

PRAYER: It is therefore respectfully prayed that the applicant may kindly be released from the suretyship and all obligations arising thereunder. It is prayed accordingly. Applicant Delhi Dated : 1.3.2005

Through Counsel

Note : 1.

Suretyship is a sort of contract between the surety and the State whereby the surety takes the custody of the accused and undertakes to produce the accused before the court on each date of hearing. If the surety fails to perform his part, then the surety bond executed by him is forfeited and he is called upon to pay the amount specified in the surety bond.

2.

It is open to the surety to apply for his discharge at any time before the condition of the bond has been broken. If the surety produces the accused before the Magistrate and requests for discharge from suretyship, the Magistrate has no option but to discharge him from suretyship without reference to or hearing the accused.

3.

If the surety is not in a position to produce the accused, then the Magistrate first issue warrant of arrest against the accused before discharging the surety. If the accused is brought under arrest or appears in obedience to such warrant, the surety’s request is allowed and he is discharged. If the accused furnish fresh surety, then the order of bail remains. If the accused is unable to furnish fresh surety, then his bail is cancelled and his bail bond is forfeited and is asked to pay the amount mentioned in his bail bond.

Part III : Criminal Law Administration System

273

10. Application by surety for waiving of the penalty imposed by the court on forfeiture of surety bond for non-appearance of the accused on the date fixed ( section 446 Cr.P.C.) IN THE COURT OF SHRI..................................., METROPOLITAN MAGISTRATE, DELHI In the matter of : M/s Ram Bilas & co. —— address —

........................................Complainant

versus Shyam Sunder S/o. ........................................ R/o. ........................................

........................................Accused

APPLICATION UNDER SECTION 446 Cr.P.C. ON BEHALF OF THE SURETY SHRI..................................... SON OF ..................................... FOR REMISSION/WAIVER OF THE PENALTY IMPOSED ON FORFEITURE OF SURETY BOND FOR NON-APPEARANCE OF THE ACCUSED ON..................................... The humble petition of the abovenamed surety for the accused in the above case Most respectfully showeth: 1. That in the above case, this Hon’ble Court was pleased to order release of the accused on his furnishing bail to the extent of Rs.2000/- with one surety of the like amount. 2. That the applicant herein stood surety for the accused and executed a bond for Rs.2000/- for the appearance of the accused in Court on ……… 3. That the accused could not appear in the Court on the said date fixed as he suddenly fell ill due to the viral fever. 4. That due to non-appearance of the accused on the said day, the Hon’ble Court was pleased to forfeit the surety bond and direct the applicant to pay Rs.2000/- to the Government as penalty. 5. That the accused this day has come to the Court with a medical

274

Courts, Police, Authorities & Common Man

certificate from Dr. …….. of the …………. Hospital to show that the accused really fell ill on the date fixed for his appearance in the Court. 6. That the non-appearance of the accused on the said day was neither intentional nor willful but for the extra ordinary circumstances explained above. PRAYER: It is therefore respectfully prayed that the order of forfeiture of the bond executed by the applicant may kindly be recalled and the penalty imposed may kindly be remitted/waived. It is prayed accordingly. Applicant Delhi Dated : 1.3.2005

Through Counsel

Note : 1.

The Court on being satisfied that the bond has been contravened can pass the order of forfeiture of the surety bond. Before forfeiting the bond, no show cause notice is required to be issued.

2.

After forfeiting the bond, the court has to issue a show cause notice to the surety asking the surety to pay the penalty ( max. penalty is the amount specified in surety bond) or to show cause as to why he should not pay the penalty. No order of penalty can be passed under S.446(1) before issueing such a notice.

3.

If the surety satisfactorily explains the reason for non-appearance of the accused, then in spite of forfeiture of the bond the court may remit the whole amount of penalty.

4.

The fact that the surety is poor and that the accused had subsequently been arrested may be a good ground for remitting part of the penalty.

Part III : Criminal Law Administration System

275

11. Application for depositing the money instead of furnishing surety ( Section 445 Cr.P.C.) IN THE COURT OF SHRI..................................., METROPOLITAN MAGISTRATE, DELHI In the matter of : Ram Gopal Verma S/o. Shri ................................. R/o. ........................................ .......................................Complainant versus Sumit Guleri S/o. Shri ................................. R/o. ........................................ ........................................Accused APPLICATION UNDER SECTION 445 Cr.P.C. ON BEHALF OF THE ACCUSED FOR PERMISSION TO DEPOSIT MONEY INSTEAD OF FURNISHING SURETY BOND The humble petition of the abovenamed accused in the above case Most respectfully showeth: 1. That in the above case, this Hon’ble Court vide order dated.................... has been pleased to order release of the accused on his furnishing bail bond of Rs.5000/- with two sureties for the like amount, for appearance of the accused on the next day of hearing, that is, on............................ 2. That the accused is not in a position to furnish the sureties (here give reasons. One of the reasons can be that the accused is resident of other State. The other reasons may be that he is a foreigner) 3. That the applicant, instead of executing a bond with sureties, prays for permission to deposit Rs.15,000/- in Court and gives an undertaking for his appearance in the Court on the date fixed. 4. That the applicant accused further agrees that the same amount will be forfeited to the Government in case the applicant fails to appear in the aforesaid date without sufficient cause. PRAYER: It is therefore respectfully prayed that the Hon’ble court may kindly be pleased to permit the accused to deposit Rs.15,000/- in lieu of the executing the bail bond with sureties. It is prayed accordingly.

276

Courts, Police, Authorities & Common Man

Applicant Delhi Dated : 1.3.2005

Through Counsel

Note : 1.

Section 445 is an enabling provision. It enables a prisoner, who is not likely to abscond and who at the same time can not find surety to be bailed out, to deposit cash amount ( or Govt. promissory notes of such amount as the court or SHO of police station may fix) in lieu of executing bail bond.

277

Part III : Criminal Law Administration System

12. Application under Section 389 Cr.P.C. moved before the Appellate Court for suspension of sentence and for release of appellant on bail pending the appeal, in case where the appellant has been convicted by the trial court In the Court of the Sessions Judge at Alipore, 24 Parganas, West Bengal Appeal No.

of 2005

In the matter of : State

versus

Subrata Roy S/o. Shri ................................. R/o. ........................................

APPLICATION UNDER SECTION 389 Cr.P.C. FOR RELEASE ON BAIL DURING THE PENDENCY OF THE APPEAL The humble petition of the accused in the above case Most respectfully showeth: 1. That the applicant/petitioner was convicted by the Sub-Divisional Judicial Magistrate of.................................... under Section 379 IPC on ............................... and sentenced to under three months Rigorous imprisonment. 2. That the applicant has filed the accompanying appeal against the said order of conviction and sentence, which is pending adjudication before this Hon’ble Court. The contents of the said appeal may kindly be read as part and parcel of this application for the sake of brevity and to avoid repetition. 3. That the watch alleged to be stolen by the applicant from the complainant’s showroom was purchased by him from another shopkeeper on ..................................... for Rs.1000/-. This fact was proved by no less than five witnesses. 4. That the applicant was a bona fide purchaser of the said watch for value and had no knowledge or even suspicion that the watch was a stolen property. 5. That the petitioner has already served one month in the jail. 6. That the petitioner is a senior citizen aged 65 years. The petitioner is suffering from several serious ailments.

278

Courts, Police, Authorities & Common Man

7. That no purpose would be served in keeping the applicant in jail. 8. That the petitioner is a respectable person having deep roots in the society. He has his own business of ................................. under the name and style of ..................................... and is an income tax payer. He is associated with may social and public welfare organizations in various capacities. ( give names and description). 9. That the petitioner is a permanent resident of Alipore and carries on business here. There is no possibility of his escaping or absconding, pending the disposal of the appeal. 10. That the petitioner undertakes to abide by all the terms and conditions that may be imposed upon him by this Hon’ble Court. PRAYER: It is, therefore, respectfully prayed that the Hon’ble court may kindly be pleased to grant ad interim bail to the applicant pending the disposal of the appeal. Applicant Alipore Dated : 1.3.2005

Through Counsel

Note : 1.

The appellate court may order release of the accused on bail pending hearing of the appeal.

2.

When the situation is such that the accused person is likely to serve out the full or substantial part of his sentence before his appeal could be heard and disposed, bail is ordinarily granted.

3.

The trial court can also grant bail under S.389(2) to the convicted person who intends to prefer an appeal. This can be granted (i) if he was on bail during trial and had been sentenced to imprisonment not exceeding 3 years or (ii) the offence of which such person is convicted is bailable and he was on bail.

279

Part III : Criminal Law Administration System

13. Application for returning articles seized from accused applicant at the time of his arrest under Section 51 Cr.P.C. IN THE COURT OF SHRI........................., METROPOLITAN MAGISTRATE, NEW DELHI In the matter of : Vinod Khanna S/o. ........................................ R/o. ........................................ versus Anupam Kapadia S/o. ........................................ R/o. ........................................

.......................................Complainant

........................................Accused FIR No......................................... Under Sections ........................of ............................................... Act Police Station : ............................

APPLICATION FOR RETURNING .................................... FOUND ON THE PERSON OF THE APPLICANT/ACCUSED AT THE TIME OF HIS ARREST The humble petition of the abovenamed accused in the above case Most respectfully showeth: 1. That in the above case, the applicant/accused was arrested by the police officer of police station ............................ on .............................. 2. That the applicant was arrested under a warrant which did not provide for taking of bail. The person of the accused was searched and a sum of Rs.3000/- and a mobile phone and his purse containing two credit cards ( give details) found on his personal search was taken in custody by the said police officer. 3. That on ..........., this Hon’ble Court was pleased to acquit the applicant. PRAYER: It is therefore respectfully prayed that the Hon’ble Court may kindly be pleased to pass necessary order directing the SHO of the police station ………….. to return the said articles to the applicant/accused. It is prayed accordingly. Applicant New Delhi Dated : 1.3.2005

Through Counsel

280

Courts, Police, Authorities & Common Man

14. Application for return of property after the conclusion of the trial ( Section 452 Cr.P.C.) IN THE COURT OF SHRI.................................., METROPOLITAN MAGISTRATE, DELHI In the matter of : State ........................................Complainant versus Raju Karmakar S/o. ........................................ R/o. ........................................

........................................Accused FIR No......................................... Under Sections ........................of ............................................... Act Police Station : ............................

APPLICATION UNDER SECTION 452 Cr.P.C. ON BEHALF OF THE PETITIONER...................... S/o.......................r/o............................. FOR RESTORATION/RETURN OF PROPERTY The humble petition of the abovenamed petitioner Most respectfully showeth: 1. That the articles mentioned in annexure ‘A’ of this petition and other articles were stolen from the house of the petitioner on ......................... The petitioner had lodged complaint regarding the same on the same day at police station ......................... On the said complaint, FIR No. ......................... under Sections ......................... was registered. 2. That during investigation and search by the police, the said articles were recovered from the house of the accused Shri ......................... on ......................... 3. That the accused was put to trial and ultimately, vide order and judgment dated ………, this Hon’ble Court convicted the accused. The Hon’ble court held in the said judgment that the articles mentioned in Annexure ‘A’ herein were stolen from the house of the petitioner.

Part III : Criminal Law Administration System

281

PRAYER: It is therefore respectfully prayed that the Hon’ble court may kindly be pleased to direct the police to return the articles mentioned in Annexure ‘A’ to the petitioner. It is prayed accordingly. Petitioner Delhi Through Dated : 1.3.2005 Counsel Another situation : APPLICATION UNDER SECTION 452 Cr.P.C. ON BEHALF OF THE ACCUSED FOR RESTORATION/RETURN OF PROPERTY The humble petition of the accused in the above case Most respectfully showeth: 1. That the articles mentioned in annexure ‘A’ of this petition were seized by the police in connection with this case during investigation on............................... from the residence of the accused/applicant. 2. That the applicant during the seizure claimed the said articles to be his own. In defence also, the applicant claimed the said articles to be his own. 3. That the complainant Mr......................................, on his complaint this case was registered, had previous enemity with the applicant and out of grudge, he falsely claimed the said articles to be his. 4. That vide order and judgment dated..........................., this Hon’ble Court acquitted the applicant 3. That the accused was put to trial and ultimately, vide order and judgment dated........................, this Hon’ble Court convicted the accused. The Hon’ble court held in the said judgment that the articles mentioned in Annexure ‘A’ herein were stolen from the house of the petitioner.

282

Courts, Police, Authorities & Common Man

15. Application for payment of money involved in offence to the innocent purchaser (section 453 Cr.P.C.) IN THE COURT OF SHRI.................................., METROPOLITAN MAGISTRATE, DELHI In the matter of : State

versus

Mihir Virani S/o. ............................. R/o. ............................ FIR No..................................... Under Sections ........................of ............................................... Act Police Station : ............................

APPLICATION UNDER SECTION 453 Cr.P.C. ON BEHALF OF THE PETITIONER ................................ S/o ................................ r/o ................................ FOR RETURN OF AMOUNT PAID BY THE PETITIONER TO THE ACCUSED The humble petition of the abovenamed petitioner Most respectfully showeth: 1. That in connection with the investigation of the above noted case, the police seized a maruti zen car, having registration no. ................................ from the petitioner on ......................from his residence. 2. That the said car was genuinely and bonafidely purchased by the petitioner from Shri................................, who is the accused in this case. The petitioner was not aware that the said car is stolen property. The petitioner had purchased the said car on ................................ from the accused for Rs.two lakhs. 3. That the accused was arrested on ................................ on charges of theft and receiving stolen property and a sum of Rs.3 lakhs was recovered and seized by the police from his possession. 4. That the accused has been convicted by this Hon’ble Court vide its judgment and order dated................................ and the said car has

283

Part III : Criminal Law Administration System

been returned to its owner Shri ................................ vide order dated ................................ passed by this Hon’ble Court. PRAYER: It is therefore respectfully prayed that the Hon’ble court may kindly be pleased to order that a sum of Rs. 2 lakhs be delivered to the petitioner from out of Rs. 3 lakhs recovered from the accused. It is prayed accordingly. Petitioner Delhi Dated : 1.3.2005

Through Counsel

284

Courts, Police, Authorities & Common Man

16. Application for return of original documents after the disposal of the case IN THE COURT OF SHRI..............................., METROPOLITAN MAGISTRATE, DELHI In the matter of : State

versus

Deepak Ansal FIR No......................................... Under Sections ........................of ............................................... Act Police Station : ............................

APPLICATION ON BEHALF OF Shri...................................... S/o................................ R/o................................ FOR RETURN OF ORIGINAL DOCUMENTS FILED HIM IN THIS CASE AS WITNESS ( OR AS ACCUSED OR AS COMPLAINANT, AS THE CASE MAY BE) Most respectfully showeth: 1. That the applicant had submitted/filed, in the abovenoted case, documents in original, the details whereof are given in the Annexure A to this application. 2. That this case has been disposed off by this Hon’ble Court vide order and judgment dated........................... 3. That the said documents include the academic certificates of the applicant which he urgently need in connection with ............................. The original documents also include the title deeds of applicant’s property which he urgently require for................................ PRAYER: It is therefore respectfully prayed that the original documents, as mentioned in Annexure A, may kindly be ordered to be returned to the applicant. It is prayed accordingly. Petitioner Delhi Dated : 1.3.2005

Through Counsel

285

Part III : Criminal Law Administration System

17. Application for restoration of possession of immovable property (Section 456Cr.P.C.) IN THE COURT OF SHRI.................................., METROPOLITAN MAGISTRATE, DELHI In the matter of : State

versus

Ramesh Taurani S/o. ............................. R/o. ............................ FIR No......................................... Under Sections ........................of ..............................................Act Police Station : ............................

APPLICATION UNDER SECTION 456 Cr.P.C. FOR RESTORING POSSESSION OF PROPERTY BEARING NO................................... TO THE APPLICANT/COMPLAINANT The humble petition of the abovenamed petitioner Most respectfully showeth: 1.

That the applicant/complainant filed a complaint against the accused for forcible dispossession of applicant from applicant’s property bearing no...........................by the accused on....................................

2.

That vide order and judgment dated ........................... passed by this Hon’ble Court, the accused has been convicted of an offence attended by criminal force or show of force or by criminal intimidation. By such force or show of force or intimidation, the applicant was dispossessed of his said immoveable property (mention pnly the relevant case).

3.

That the present application has been filed within 1 month from the date of the order of conviction.

PRAYER: It is therefore respectfully prayed that the Hon’ble court may kindly be pleased to pass order for restoration of possession of the property no.........……………. to the applicant, in the interests of justice. It is prayed accordingly. Applicant Delhi Dated : 1.3.2005

Through Counsel

286

Courts, Police, Authorities & Common Man

18. Application by the accused for personal exemption (sec.205) IN THE COURT OF SHRI …………............., METROPOLITAN MAGISTRATE, NEW DELHI Complaint Case No.

of 2005

In the matter of : Laloo Kumar Yadav S/o. ........................................ R/o. ........................................

....................................Complainant

versus John Fernandes S/o. ........................................ R/o. ........................................

........................................Accused

APPLICATION BY THE ACCUSED UNDER SECTION 205 Cr.P.C. FOR PERSONAL EXEMPTION FROM APPEARANCE The humble petition of the abovenamed accused in the above case Most respectfully showeth: 1. That the summon was issued to the accused/applicant on the said complaint and the applicant has entered appearance this day in obedience to the said summons through his advocate Shri............................................ 2. That the allegations in the complaint are totally false and the applicant has been falsely impleaded/implicated out of grudge. 3. That the applicant is suffering from various serious ailments and has been advised medically to restrict his movements. A medical certificate from the doctor attending upon the applicant is annexed herewith. (here, give the details of the diseases/ailments, past history, etc. If applicant is old person, mention this also.) 4. That Shri............................................ advocate would be present in the Court on applicant’s behalf on all the hearings of this case. 5. That the applicant undertakes to appear in the court in person whenever he will be called upon by this Hon’ble Court.

287

Part III : Criminal Law Administration System

PRAYER: It is therefore respectfully prayed that the Hon’ble Court may kindly be pleased to exempt the applicant accused from appearing in the court in person at subsequent hearings and he may be permitted to appear through his advocate abovenamed, in the interests of justice. It is prayed accordingly.

Applicant New Delhi Dated : 1.3.2005

Through Counsel

288

Courts, Police, Authorities & Common Man

19. Application to Magistrate Court for withdrawal of criminal complaint ( Section 257 Cr.P.C.) IN THE COURT OF SHRI..........................................., METROPOLITAN MAGISTRATE, NEW DELHI Complaint Case No.of 2005 In the matter of : Ravi Kapoor S/o. ........................................ R/o. ........................................

....................................Complainant

versus Sanjay Kapoor S/o. ........................................ R/o. ........................................

........................................Accused

APPLICATION UNDER SECTION 257 Cr.P.C. ON BEHALF OF THE COMPLAINANT FOR WITHDRAWAL OF THE COMPLAINT The humble petition of the complainant in the above case Most respectfully showeth: 1. That the applicant/complainant had filed the above complaint against the accused and the same is pending adjudication before this Hon’ble Court. The evidence is to be recorded in this case. 2. That the accused is the ………......................… ( here, state the relation) of the applicant. The friends and relations of the parties intervened and brough about an amicable settlement of the case between the parties. 3. That in these circumstances, the applicant does not want to proceed with the complaint. Infact, no purpose would be served by pursuing this complaint any further as the dispute stands settled. PRAYER: It is therefore respectfully prayed that the Hon’ble Court may kindly be pleased to allow the applicant to withdraw the complaint and acquit the accused. It is prayed accordingly. Applicant New Delhi Dated : 1.3.2005

Through Counsel

289

Part III : Criminal Law Administration System

20. Petition under Section 407 Cr.P.C. to High Court for transfer of case from one subordinate court to any other subordinate court In the High Court of Delhi at New Delhi (Criminal Miscellaneous Jurisdiction) Crl. Misc.(Main) No.

of 2005

In the matter of : Dinesh Basu

........................................Petitioner

Versus Deepak Bajaj & others

........................................Respondent

APPLICATION UNDER SECTION 407 Cr.P.C. FOR TRANSFER OF CASE NO..................................... PENDING IN THE COURT OF............................................. TO THE COURT OF SOME OTHER MAGISTRATE To, Hon’ble The Chief Justice and his companion Justices of the Delhi High Court, The humble petition of the petitioner abovenamed Most Respectfully showeth: 1.

That the complainant/respondent got registered a false case against the petitioner/accused under Section ........................................ on the allegation that ........................................

2.

That the said case is pending before Shri ............................................, Judicial Magistrate First Class for more than six months but the learned Magistrate is not trying to expedite the hearing of the case and is allowing frequent adjournments to the opposite party on flimsy grounds.

3.

That the petitioner has come to know and is satisfied on enquiry that the said Magistrate and the complainant are on friendly terms and that the Magistrate had attended the marriage of complainant’s brother 2-3 months back.

4.

That on the last hearing of the case on ........................................, the learned Magistrate stated in the open Court that the petitioner was a

290

Courts, Police, Authorities & Common Man

man of violent temper and loose character and that he had heard complaints against him from the people of the locality. 5.

That the learned Magistrate first released the petitioner on a bail of Rs.10,000/- but on subsequent date, he directed the petitioner to furnish security of Rs. 1 lakh for his appearence in the court.

6.

That the petitioner filed application under section 408 Cr.P.C. before the Sessions Judge for transfer of the case, but the learned Sessions Judge dismissed the said application vide his order dated ........................................

7.

That being aggrieved by the aforesaid order of the Sessions Judge, the petitioner prays for transfer of the case on the following amongst other grounds :

GROUNDS : A. Because under the circumstances of the case, the learned Sessions Judge should have transferred the case to the court of some other competent magistrate for trial. B. Because there is a reasonable apprehension in the mind of the petitioner that he will not get a fair and impartial trial if the case is tried by the aforesaid Magistrate Shri ................................. C. Because ........................................ 8. That the present petition has been moved bona fide and in the interest of justice. PRAYER: It is therefore respectfully prayed that this Hon’ble Court may graciously be pleased to call for the records of the case and order for transfer of the case no. ........................................ from the court of Shri ........................................ to the court of some other competent magistrate. And the petitioner, as in duty bound, shall ever pray. Petitioner New Delhi Dated : 1.3.2005

Through Counsel

291

Part III : Criminal Law Administration System

21. Application under Section 94 Cr.P.C. for searching a particular place where stolen properties are supposed to have been kept IN THE COURT OF SHRI …………., METROPOLITAN MAGISTRATE, DELHI In the matter of : State

versus

Shyam Lal Bajpai State : ……………...... Dated : ……………..... FIR No......................................... Under Sections ........................of ............................................... Act Police Station : ............................

APPLICATION UNDER SECTION 94 Cr.P.C. FOR SEARCH OF PREMISES/PROPERTY BEARING NO. ...........................…. WHERE STOLEN ARTICLES ARE SUSPECTED TO HAVE BEEN KEPT Most respectfully showeth: 1.

That the applicant/complainant filed a complaint for which a case against the accused was registered for theft of certain articles from applicant’s house and this Hon’ble Court was pleased to issue warrant of arrest against the accused.

2.

That the accused was a domestic servant of the applicant. Taking advantage of the absence of the applicant and his family on.......................... as they had gone out on a picnic, the accused committed theft in the house and ran away with precious jewellery worth more than Rs.10 lakh and cash of Rs.5 lakh. So far, the accused has neither produced the articles nor could these be found at the place where he was arrested.

3.

That the applicant has come to know that the accused and his accomplices used to meet at house no.......................... belonging to one Shri.............................................. and it is believed that a search of that house will lead to the recovery of some of the articles stolen by the accused.

292

Courts, Police, Authorities & Common Man

PRAYER: It is therefore respectfully prayed that the Hon’ble court may kindly be pleased to issue a search warrant directing the local police to search the aforesaid house for the recovery of the stolen articles that may be found there, in the interests of justice. It is prayed accordingly. Applicant Delhi Dated : 1.3.2005

Through Counsel

Part III : Criminal Law Administration System

293

22. Application by an accused at the time of surrendering in the Court IN THE COURT OF SHRI ……….................., METROPOLITAN MAGISTRATE, NEW DELHI Complaint Case No.

of 2005

In the matter of : Sanjay Kumar S/o Shri ………................... R/o ……………...................

........................................Complainant

versus Rajiv Singh S/o. ........................................ R/o. ........................................

........................................Accused

APPLICATION ON BEHALF OF THE ACCUSED FOR SURRENDER AND FOR CANCELLATION OF WARRANT Most respectfully showeth: 1.

That a non-bailable warrant was issued by this Hon’ble court for arresting the applicant as an accused in the aforesaid case. The said warrant has not yet been executed. The applicant came to know about the same from his neighbour.

2.

That the summons issued earlier in this case could not be personally served upon the applicant as on the relevant date i.e. on …………, the applicant had to suddenly go to Mumbai to see his ailing father. The copy of applicant’s air ticket of said date and copy of medical paper of his father are annexd herewith.

3.

That the complainant maliciously represented this Hon’ble Court that the applicant was deliberately avoiding the service of summons, which led the Hon’ble Court to issue warrants against the applicant.

4.

That the absence of the applicant on the said date was neither intentional nor willful but for the bonafide reasons stated above.

5.

That the applicant surrenders himself in the court today and prays that he may be released on proper bail and that the warrant of arrest issued against him may be recalled/withdrawn.

294

Courts, Police, Authorities & Common Man

PRAYER: It is therefore respectfully prayed that the Hon’ble Court may kindly be pleased to recall/cancel the arrest warrant and release the applicant on regular bail. It is prayed accordingly. Applicant New Delhi Dated : 1.3.2005

Through Counsel

Part III : Criminal Law Administration System

295

23. Application for release of the applicant ( convicted by the court) on probation ( Section 360 Cr.P.C.) IN THE COURT OF SHRI ....................…………., METROPOLITAN MAGISTRATE, DELHI In the matter of : State

versus

Ram Lal Tiwari S/o. ........................................ R/o. ........................................ FIR No......................................... Under Sections ........................of ............................................... Act Police Station : ............................

APPLICATION UNDER SECTION 360 FOR RELEASE OF THE APPLICANT ON PROBATION Most respectfully showeth: 1. That the applicant/accused was accused of and has been convicted for the offence of theft of Rs.400/- from the galla of the complainant shopkeeper. 2. That the accused is a young boy of 18 years and is studying in Ramjas College of Delhi University. The applicant is the son of a teacher who has since died. 3. That the applicant works part time in the factory of the complainant and is the only earning member of his family comprising his ailing mother and two younger sisters. On the fateful day i.e. on….........................................., the mother of the applicant suffered a stroke and was hospitalized. Money was needed for immediate treatment of his mother but unfortunately, on the said day, he did not have any money. He requested his immediate neighbour to give him some money but refused. In these circumstances, he was compelled by circumstances to steal Rs.400/- from the galla of his employer/ complainant. 4. That the petitioner is a very bright student and has always stood first in his class. He bears a good moral character and has won awards in

296

Courts, Police, Authorities & Common Man

school at state level. The applicant is a victim of his poverty. PRAYER: It is therefore respectfully prayed that having regard to the applicant’s character, age, antecedents and the circumstances in which the offence was committed, the Hon’ble court may kindly be pleased direct his release on his entering into a bond with or without sureties to appear and receive sentence, if necessary, within a period to be fixed, and in the mean time to be of good character. It is prayed accordingly. Applicant Delhi Dated : 1.3.2005

Through Counsel

297

Part III : Criminal Law Administration System

APPENDIX 1 : JUDGES OF THE SUPREME COURT (in the decreasing order of their seniority) [ As on 15.02.2005]

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25.

Hon’ble Mr.Justice R.C.Lahoti (Chief Justice of India) Hon’ble Mr.Justice N.Santosh Hegde Hon’ble Mr.Justice Y.K.Sabharwal Hon’ble Mrs.Justice Ruma Pal Hon’ble Mr.Justice S.N.Varaiva Hon’ble Mr.Justice Shivraj V.Patil Hon’ble Mr.Justice K.G.Balakrishnan Hon’ble Mr.Justice B.N.Aggarwal Hon’ble Mr.Justice P.Venkatarama Reddy Hon’ble Mr.Justice Ashok Bhan Hon’ble Mr.Justice Arijit Pasayat Hon’ble Mr.Justice Bisheshwar Prasad Singh Hon’bleMr.Justice D.M.Dharmadhikari Hon’ble Mr.Justice H.K.Sema Hon’ble Mr.Justice S.B.Sinha Hon’ble Mr.Justice Arun Kumar Hon’ble Mr.Justice B.N. Srikrishna Hon’ble Mr.Justice A.R.Lakshmanan Hon’ble Mr.Justice G.P.Mathur Hon’ble Mr. Justice S.H.Kapadia Hon’ble Mr.Justice A.K.Mathur Hon’ble Mr.Justice C.K.Thakker Hon’ble Mr. Justice P.P.Neolekar Hon’ble Mr.Justice Tarun Chatterjee Hon’ble Mr.Justice P. K. Balasubramanyan

(01.11.2005) (16.06.2005) (14.01.2007) (03.06.2006) (08.11.2005) (12.01.2005) (12.05.2010) (15.10.2009) (10.08.2005) (02.10.2008) (10.05.2009) (07.07.2007) (14.08.2005) (01.06.2008) (08.08.2009) (12.04.2006) (21.05.2006) (22.03.2007) (19.01.2008) (29.09.2012) (07.08.2008) (10.11.2008) (29.06.2008) (14.01.2010) (28.08.2007)

Note : The dates in bracket denotes the date of retirement.

298

Courts, Police, Authorities & Common Man

APPENDIX 2 : JUDGES OF THE DELHI HIGH COURT [ As on 15.02.2005] 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28.

Hon’ble Mr.Justice B.C.Patel ( Chief Justice) Hon’ble Mr.Justice B.A.Khan Hon’ble Mr.Justice D.K.Jain Hon’ble Mr.Justice Vijender Jain Hon’ble Mr.Justice Dr.M.K.Sharma Hon’ble Mr.Justice Manmohan Sarin Hon’ble Mr.Justice C.K.Mahajan Hon’ble Mr.Justice Mukul Mudgal Hon’ble Mr.Justice Madan Lokur Hon’ble Mr.Justice S.K.Aggarwal Hon’ble Mr.Justice R.S.Sodhi Hon’ble Mr.Justice Vikramjeet Sen Hon’ble Mr.Justice A.K.Sikri Hon’ble Mr.Justice O.P.Dwivedi Hon’ble Mr.Justice B.N.Chaturvedi Hon’ble Mr.Justice R.C.Chopra Hon’ble Mr.Justice Sanjay Kishan Kaul Hon’ble Mr.Justice R.C.Jain Hon’ble Mr.Justice H.R.Malhotra Hon’ble Mr.Justice Badar Durez Ahmed Hon’ble Mr.Justice Pradeep Nandrajog Hon’ble Mr.Justice J.P. Singh Hon’ble Ms.Justice Manju Goel Hon’ble Mr.Justice T.S. Thakur Hon’ble Mr.Justice Anil Kumar Hon’ble Mr.Justice S. Ravindra Bhatt Hon’ble Ms.Justice Geeta Mittal Hon’ble Mr.Justice Swatantra Kumar

299

Part III : Criminal Law Administration System

APPENDIX 3 : LIST OF CHIEF JUSTICES OF INDIA 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35.

Harilal J.Kania M.Patanjali Mehar Chand Mahajan B.K.Mukherjee S.R.Dass B.P.Sinha P.B.Gajendragadkar A.K.Sarkar K.Subbarao K.N.Wanchoo M.Hidayatullah J.C.Shah S.M.Sikri A.N.Ray M.H.Beig Y.V.Chandrachud P.N.Bhagwati R.S.Pathak E.S.Venkataramaiah S.S.Mukherjee Rang Nath Mishra K.N.Singh M.H.Kania Lalit Mohan Sharma Venkatchalliah Aziz Mushabber Ahmadi J.S.Verma M.M.Punchhi A.S.Anand S.P.Bharucha B.N.Kirpal G.B.Pattanaik V.N.Khare Rajendra Babu R. C. Lahoti

26.1.1950 7.11.1951 4.1.1954 23.12.1954 1.2.1956 1.10.1959 1.2.1964 16.3.1966 30.6.1966 12.4.1967 25.2.1968 17.12.1970 22.1.1971 26.4.1973 28.1.1977 22.2.1978 12.7.1985 21.12.1986 19.6.1989 18.12.1989 26.9.1990 25.11.1991 13.12.1991 18.11.1992 12.2.1993 25.10.1994 25.3.1997 1.1.1998 10.10.1998 1.11.2001 6.5.2002 8.11.2002 19.12.2002 3.5.2004 1.6.2004

– – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – — —

6.11.1951 3.1.1954 22.12.1954 30.1.1956 30.9.1959 31.1.1964 15.3.1966 29.6.1966 11.4.1967 24.2.1968 16.12.1970 21.1.1971 25.4.1973 27.1.1977 21.2.1978 11.7.1985 21.12.1986 18.6.1989 18.12.1989 25.9.1990 24.11.1991 12.12.1991 17.11.1992 11.2.1993 24.10.1994 24.3.1997 17.1.1998 9.10.1998 31.10.2001 5.5.2002 7.11.2002 18.12.2002 2.5.2004 31.5.2004 1.11.2005

300

Courts, Police, Authorities & Common Man

APPENDIX 4 : IMPORTANT ADDRESSES AND TEL.NOS. President of India, President’s Secretariat, New Delhi (His Secretary)

23015321, 23014030, 23381873/Extn.4211 Fax : 23017290

Prime Minister of India, Safdarjung Road, New Delhi

23012312, 23018939, 23017660 Fax : 23016857

Chief Justice of India, Supreme Court, Near Tilak Marg, New Delhi

Tel : 23387165, 23388922-23-24 23388942-43-45

Law Minister, Govt. of India Shastri Bhawan, Dr. Rajender Prasad Road, New Delhi

23387557, 23385235 23794651 Fax : 23387259

National Human Rights Commission Sardar Patel Bhawan, Sansad Marg, New Delhi

Cell : 98102-98900 Tel : 23347065, 2301891

Law Commission of India, A Wing, Shastri Bhawan, Dr. Rajender Prasad Road, New Delhi

23384475

Bar Council of India 21, Rouse Avenue Institutional area, Near Bul Bhawan, New Delhi-110002

23231647, 23351647-48, 23331648

Bar Council of Delhi F-1, Chamber Block, Lawyer’s Chambers, Delhi High Court, New Delhi

23387701, 23385702

Supreme Court Bar Association, Supreme court, New Delhi

23385903, 23070803 23385551-52

Press Council of India Faridkot House, Copernicus Marg, New Delhi

23387701,23381681

301

Part III : Criminal Law Administration System

Election Commission of India Nirvachan Sadan Ashoka Road, New Delhi

23717391 23713412

Central Pollution Control Board Parivesh Bhawan, East Arjun Nagar, Delhi - 110032

22221955, 22217078 Fax

National Consumer Disputes Redressal Commission 5th Floor, Old Indian Oil Bhawan, Janpath, New Delhi - 110001

23712456,23327666 23016613

Monoplies & Restrictive Trade Practices Commission (MRTPC), Kota House Annexe, Shah Jahan Road, New Delhi

23388531,23388920

National commission for Women, CCW Building, 4, Din Dayal Upadhyay Marg, New Delhi

23326153

Board for Industrial & Financial Reconstration (BIFR Company Law Board A Wing, Shastri Bhawan, New Delhi

23314964, 23315890

Central Administrative Tribunal Copernicus Marg, New Delhi

23387810

23382265

Central Forensic Science Laboratory, Block-4, CGO Complex, Lodhi Road, New Delhi - 110003 Central Bureau of Investigation, CGO Complex, Lodhi Road, New Delhi - 110003

24360808, 24361644 24360422 Fax : 24364986

Ministry of Home Affairs North Block, Central Secretariat, New Delhi - 110001

23092011, 23092161 Fax:309375, 23092763

302

Courts, Police, Authorities & Common Man

Central Vigilance Commission, Room No.3, Jaiselmer House, New Delhi Also at : 1st Floor, Bikaner House, New Delhi Enforcement Directorate, 6th Floor, Lok Nayak Bhawan, Khan Market, New Delhi Central Administrative Tribunal Faridkot House, Copernicus Marg, New Delhi - 110001 Customs Excise Service Tax Appellate Tribunal (formerly CEGAT) West Block 2, R.K.Puram, New Delhi - 110066 Directorate General of Anti Evasion (Central Excise) Wing 6, West Block VIII, 2nd Floor, R.K.Puram, New Delhi - 110066 Income Tax Appellate Tribunal 11th Floor, Lok Nayak Bhawan, Khan Market, New Delhi

24694246

The Chief Justice, Delhi High Court, Sher Shah Road, New Delhi-110003

Tel : 23387949 Fax : 23782731 Res.: 23387989, Fax:23073485

Allahabad High Court, Allahabad – 211001

0532-624811-624818, 622605,623841/2708

Chief Justice Registrar General Lucknow Bench

0532-622542 0532-622061, fax :622152 0522-227395/6225/8341 Fax :272328, 225967

Andhra Pradesh High Court, Hyderabad – 500266 Chief Justice Registrar General

040-4525726/27/223349 4525017 Fax:4575789 4577732 Fax: 3355121 4577844 Fax: 4417743 Email : [email protected]

Part III : Criminal Law Administration System

303

Bombay High Court Mumbai – 400032 Email : [email protected]

022-22673468, 22673090, 22673568/69, 22670769, 22672001, 22677066, Fax : 22624358

Calcutta High Court, Calcutta – 700001

033-22483787, 22487495, Fax : 22487835

Chhatisgarh High Court, Bilaspur

07752-66942, 23059/20 Fax : 26030

Guwahati High Court, Guwahati – 781001

0361-540318, 540125, 6000008, 637179 Fax : 540124/153, 604122

Gujarat High Court, Ahmedabad- 380060

079-7494601 to 7494615 Fax : 7494621, 7494619/29

Himachal Pradesh High Court, Shimla – 171001

0177-253461, 258603/06 252401, 258456 Fax:202421,208338, 258616

Jammu & Kashmir High Court, Jammu – 180001

0191-533233, 532161/579 Fax : 532545, 537768

Jharkhand High Court, Ranchi

0651-500307-09, 500312/13 Fax : 501114, 253115

Karnataka High Court, Bangalore – 560001

2861898, 2863356, Fax : 2868607, 2863841

Kerala High Court, Kochi – 682031

0484-393901-06, 394588-90 Fax : 391720, 352504

Madras High Court, Chennai

044-25340410-16, 25359073-77, 25340418,25340420, 25350411 Fax : 25340942

Madhya Pradesh High Court, Jabalpur – 482002

0761-620380, 622674, 621135, 323653 Fax : 620659

Orissa High Court, Cuttack – 753002

0671-607808, 607258 Fax : 608507, 608855

Punjab & Haryana High Court, Chandigarh – 160001

0172-740071-78, 740272, 742654, 742713, 742732 Fax: 740579, 740055, 743033

304

Courts, Police, Authorities & Common Man

Rajasthan High Court, Jodhpur – 342001

0291-545516, 545116, 544545, 544357, 541337-39 Fax : 544147

Sikkim High Court, Gangtok – 737101

03592-23379, 22535, 26583 Fax : 23529, 23485

Uttranchal High Court Nainital

05942-35388, 31691 Fax : 31692, 37721, 31692

Commissioner of Police, Police Headquarters, I.T.O., New Delhi

E-mail:[email protected] Tel No.(central) : 100 23319721

Public Grievance Commission, Govt. of NCT of Delhi M Block, 2nd Floor, Vikas Bhawan, I.P.Estate, New Delhi - 110002 (for complaints against authorities including Delhi Police)

23359900 Fax : 23359903

Jail Supdt. ( Tihar Jail)

25555106, 25553404 25551570, 25554216

Lt. Governor, Delhi

23960809,23975022 Res : 23017278, 23010909 Fax : 2940721, 2932962

Complaint Cell of L.G. Delhi

2945000

Chief Minister of Delhi

23392030, Res : 23071313 Fax: 23392111

Anti Corruption Branch (Directorate of Vigilance) Govt. of NCT of Delhi Room No. 178-184, Old Secretariat, Delhi 110 054 Distt. & Sessions Judge, Delhi

2512529

Registrar of Companies (Delhi & Haryana) ‘B’ Block, 2nd Floor, Paryavaran Bhawan, CGO Complex, Lodhi Road, New Delhi - 110003

Part III : Criminal Law Administration System

305

Registrar of Societies, Delhi Room No.39, CPO Building, Kashmere Gate, Delhi - 110006 Registrar Co-operative Societies, Delhi Old Court Building, Sansad Marg, New Delhi - 110001 Zee News, Essel Studio, FC-19, Sector 16A, Noida - 201301

95120-2511064-76 Fax : 95120-2515381

Sahara Samay, 95-120-2444756 Sahara India complex, C-2, C-3, C-4, Sector 11, Noida - 201301 Aaj Tak 8th Floor, Videocon Tower, E-1, Jhandewalan Extn., New Delhi - 110055

23684848 23684878

NDTV

26218621

List of accredited Correspondents : S.S.Negi

PTI

23716621, 23717642, 23718713, 22718865 (R)

Sunil Jha

UNI

23711700,23718861,2718865

Bisheshwar Mishra Times of India

23312277,23318852,22228445

Rema Nagarajan

Hindustan Times

23318201, 23316517

Gaurav C Sawant Prafulla Das

Indian Express The Hindu

23311111,23319812,2551052(R) 3723808,23715426,23712153

Abhigyan Hans

The Statesman

23315911,23316129,22250930

Amresh Kumar

Rashtriya Sahara

Vijay Singhal

Dainik Jagran

23356336, 23356337 23715792,23714588,27181023

306

Courts, Police, Authorities & Common Man

APPENDIX 5 : IMPORTANT WEBSITES http://cbi.nic.in http://cvc.nic.in http://mha.nic.in www.nhrc.nic.in www.nic.in/lawmin www.ncrbindia.org www.nic.in/ceib/ceib.htm www.nic.in/ceib/ed.htm www.nic.in/ceib/dri.htm www.nic.in/ceib/dgae.htm www.nic.in/ceib/dgit.htm www.nic.in/ceib/ncb.htm http://customs.gov.in/ http://rbi.org.in www.incometaxdelhi.nic.in www.eci.gov.in www.upsc.gov.in www.pmindia.nic.in www.meadev.gov.in www.passport.nic.in www.samvidhan.com www.indlaw.com www.indiainfoline.com/lega www.zeenet.com/legal www.vakilbabu.com www.kaanoonindia.com www.lawsinindia.com www.waqalat.com www.vakilno1.com www.lawguru.com www.mtnl.net.in www.delhipolice.nic.in www.delhihighcourt.nic.in causelists.nic.in http://delhigovt.nic.in www.delhividyut.com www.mcdonline.com www.ddadelhi.com

Central Bureau of Investigation (CBI) Central Vigilance Commission Ministry of Home Affairs National Human Rights Commission Ministry of Law, Justice & Comp. Affairs National Crime Records Bureau Central Economic Intelligence Bureau Directorate of Enforcement Dir.Genl.of Revenue Intelligence ( DRI) Directorate General of Anti-Evasion Dir. Gen. of Income Tax ( Investigation) Narcotics Control Bureau Central Board of Excise & Customs Reserve Bank of India Income Tax Deptt. Election Commission of India Union Public Service Commission Prime Minister of India Ministry of External Affairs Regional Passport Office Constitution of India ( in Hindi) Bare Acts etc. Legal Portal Legal Portal Legal Portal Legal Portal Legal Portal Legal Portal Legal Portal Legal Portal M.T.N.L. Delhi Police Delhi High Court Cause lists of different courts in India Delhi Government Delhi Vidyut Board Municipal Corporation of Delhi Delhi Development Authority

Part III : Criminal Law Administration System

www.interpol.int http://andaman.nic.in www.cyberjournalist.org.in www.nic.in/persmin http://usembassy.state.gov/posts/in1/ http://arunpol.nic.in http://assamgovt.nic.in http://bihar.nic.in http://chhattisgarh.nic.in http://chandigarhpolice.nic.in http://delhigovt.nic.in http://delhipolice.nic.in http://goagovt.nic.in www.goapolice.org www.gujaratindia.com http://haryana.nic.in http://haryanapolice.nic.in http://himachal.nic.in http://hppolice.nic.in http://jammukashmir.nic.in http://jharkhand.nic.in http://keralapolice.org http://lakshadweep.nic.in www.mp.nic.in www.madhyapradeshpolice.com http://manipur.nic.in http://meghalaya.nic.in http://mizoram.gov.in www.maharashtra.gov.in www.mumbaipolice.com http://nagaland.nic.in http://orissagov.nic.in www.pon.nic.in http://punjabgovt.nic.in www.rajgovt.org www.rajpolice.nic.in http://sikkim.nic.in www.tn.gov.in http://tripura.nic.in

307

Interpol Andaman & Nicobar Islands Andhra Pradesh Govt. Ministry of Personnel, Public Grievances & Pension US Embassy in India Arunachal Pradesh police Assam Govt. Bihar Govt. Chhattisgarh Govt. Chandigarh police Delhi Govt. Delhi police Goa Govt. Goa police Gujarat Govt. Haryana Govt. Haryana Police Himachal Govt. Himachal police Jammu & Kashmir Govt. Jharkhand Govt. Kerala police Lakshdweep Administration Madhya Pradesh Govt. Madhya Pradesh police Manipur Govt. Meghalaya Govt. Mizoram Govt. Maharashtra Govt. Mumbai police Nagaland Govt. Orissa Govt. Pondicherry Govt. Punjab Govt. Rajasthan Govt. Rajasthan police Sikkim Govt. Tamil Nadu Govt. Tripura Govt.

308

Courts, Police, Authorities & Common Man

www.upindia.org http://uppolice.up.nic.in www.uttaranchalpolice.com www.wbgov.com www.eci.gov.in www.parliamentofindia.nic.in www.usdoj.gov http://tiharprisons.nic.in http://supremecourtofindia.nic.in http://presidentofindia.nic.in

Uttar Pradesh Govt. Uttar Pradesh police Uttaranchal police West Bengal Govt. Election Commission of India Parliament of India U.S. Dept. of Justice Tihar Jail Supreme Court of India President of India

Part III : Criminal Law Administration System

309

APPENDIX 6 : IMPORTANT PHONE AND FAX NUMBERS OF DELHI POLICE S.No. Name and Designation

Phone (Office)

FAX No.

23490201, 23319661 23490010/ Extn.201

23722052

1.

Commissioner of Police

2.

Special CP/ (Administration) 23490202, 23490010/ 23490333 /Extn.202

3.

Special CP/ (Intelligence)

23490203, 23490010/ 23711161 / Extn.203

4.

Special CP/ (Security & Operations)

23490204, 23490010/ 23490489 / Extn.204

5.

Jt. CP/Crime

23490209, 23490010/ 23490209 /Extn.209

6.

Jt.CP/New Delhi Range

23490207, 23490010/ 23358446 / Extn.207

7.

Jt. CP/Southern Range

23490208, 23490010/ 23490400 / Extn.208

8.

Jt. CP/Northern Range

23490206, 23490010/ 23490476 / Extn.206

9.

Jt. CP/ (Crime Against Women) 26110313, 26882691

10.

Joint CP/Traffic

11.

Jt. CP/ (Prov. & Lines & Vigilance) 23490214, 23490010, 23490214 / Extn.214

12.

Jt.CP/Operations

23490212, 23490010/ 23315456 / Extn.212

13.

DCP/Licensing

23490236, 23490010/2 3490236 / Extn.236

14.

Addl. CP/Crime

23490223, 23490010/ / Extn.223

15.

DCP/Crime & Railways

23490252, 23490010/ 23310040 / Extn.252

16.

DCP/Economic Offences Wing 26510008, 26510008

17.

DCP/ Narcotics &Crime Prevention

23490221, 23490010/ 23722236 / Extn.221

23490240, 23490010/ / Extn.240

310

Courts, Police, Authorities & Common Man

18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32 33 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47.

Addl.DCP/Railways 23222114 DCP/Traffic(Southern Range) 26190850 DCP/Traffic (Northern Range) 23978945 DCP/Traffic (New Delhi Range) 26190849 DCP/Traffic (VVIP Route) 23011182 DCP/New Delhi Distt. 23747777, 23347184 Addl. DCP/New Delhi (I) 23344452 Addl. DCP/New Delhi(II) & DSF 23361919 DCP/East Distt. 2204568, 22215577 Addl. DCP/East(I) 22448478 Addl. DCP/East(II) 22209745 DCP/North-East Distt. 22825655, 22826937 Addl. DCP/North East Distt. (I) 22825835 Addl. DCP/North East District (2)22825637 DCP/North Distt. 23937012, 23931770 Addl. DCP/North (II) 22923655 Addl. DCP/North (I) 22920208 DCP/Central Distt. 23261377, 23261330 Addl.DCP/Central Distt (I) 23262029 Addl. DCP/Central (II) 23277638 DCP/North-West Distt. 27229835 27462222 Addl. DCP/North-West (1) 27432141 Addl. DCP/North-West(2) 27454825 DCP/South Distt. 26857726 226512986 Addl. DCP/South Distt (1) 26852095 Addl. DCP/South District(I) 26865965 DCP/South West Distt. 26152626 26152782 Addl. DCP/South-West district (1) 26152864 Addl. DCP/South-west district(2) 26151617 DCP/West Distt. 25453992 25446552

48.

Addl. DCP/West(I)

25103699

49.

Addl. DCP/West(II)

25446100

50.

DCP/Indira Gandhi International 25665373 25665126/25696188 Airport / Extn.2224

51.

Public Relation Officer

23319404

23327147

[ Prefix ‘2’ to each tel. and fax no., wherever required ]

311

Part III : Criminal Law Administration System

APPENDIX 7 : IMPORTANT ADDRESSES, PHONE AND FAX NUMBERS OF C.B.I. ANTI-CORRUPTION DIVISION North Zone 1. Anti Corruption Branch-Delhi Ist Floor, Block No.4, CGO Complex, New Delhi-110003

011-4360334/2415 011-3389056

2. Anti Corruption Branch-Chandigarh (Co-ordination) Sector 30-A, Chandigarh-160020

0172-651737 0172-657736,657102

3. Anti Corruption – Jammu 24 New RehariGopal Bhawan Jammu & Guest House, No.6, Near MLA Hostel, Srinagar-190001, J&K

0191-455514(Jammu) 0194-452732(Srinagar)

4. Shimla Unit 31-32, Railway Board Building, Shimla – 170003 (H.P)

0177-254110

5. Anti Corruption Branch-Lucknow 7, Nawal Kishore Road, Hazrat Ganj, Lucknow (U.P) 226001.

0522-227378 0522-222985

6. Anti Corruption Branch – Dehradun 5, Teg Bahadur Road Dehradun-248001

0135-676727,676729 0135-676726(ISDN)

7. Anti Corruption Branch-Bhopal 54, Baishali Nagar, Katra Sultanabad, Bhopal(M.P)-462016

0755-575727 0755-556823,571257

8. Anti Corruption Branch-Jabalpur 1794/1, New Adarsh Colony, M R-4, Jabalpur,(M.P) 482002.

0761-412102,323201 0761-414030(ISDN)

EAST-ZONE 1. Anti Corruption Branch-Calcutta 2nd MSO Building, Nizam Place, 34/4,AJC Bose Road, Calcutta-700020

033-2807238 033-241725,2470443 2409121,2409235, 2808025(ISDN),

2. Silliguri Unit, 26,Belai Das Chatterjee Road, Hakkimpara, Silliguri-734401

0353-432685

312

Courts, Police, Authorities & Common Man

3. Gangtok Unit Vigilance Office Building Kazi Road, Gangtok (Sikkim)

03952-24862

4. Portblair Unit, C/o Dy.SP. (Vigilance) A&N Admn., Port Blair-744101

03192-30362 (FAX)

5. Anti Corruption Branch -Bhubaneshwar Unit-VIII,Distt. Khurd, 0674-561567 Bhubaneshwar-751012 0674-566135(ISDN) 6. Rourkela Unit, Office of the DSP CBI, C-14, Sector-V, Rourkela (Orissa)-769002

0661-540375

7. Anti Corruption Branch-Guwahati R.G. Baruah Road, Sunder Pur, PO-Dispur, Guwahati-781005

0361-551531

8. Shillong Unit Oakland, Shillong, (Meghalaya) 9. Itanagar Unit, Police Complex, Ganga, Distt. Papumpura, Arunachal Pradesh-791113 10. Silchar Unit, Panchayat Road, Near G.C. Collage Distt. Chacher, Assam-788004 11. Agartala Unit, Palace Compound, North Gate Agartala, Tripura-799001 12. Imphal Unit Qtr. No. 2 Type-IV, Lamhelapath, Imphal, Manipur-795001 13. Aizwal Unit, P.O. No. 38, Luangmula Complex. Aizwal-796001 14. Anti Corruption Branch-Ranchi 2 Booty Road, Ranchi-834009 15. Anti corruption Branch-Dhanbad VII/2, Karmik Bhawan, PO ISF Campur, Dhanbad-826004

0364-223142 0360-212249 03842-67630, 66622(Computer) 03842-67199 (Fax) 0381-225474

0358-310673

0389-341459 0651-301299, 312175 0651-312999 0326-204455

313

Part III : Criminal Law Administration System

16. Anti Corruption Branch-Patna Dr. S.K. Singh Path, Jawahar lal Nehru Road, Patna-800001 WEST ZONE

0612-235599, 235588 0612-238574

1. Anti Corruption Branch Mumbai 11-A, Tanna House, N.L.P. Marg Colaba, Mumbai-400039

022-2021490, 027941 022-2844348, 845134 022-2858200(ISDN)

2. Anti Corruption Branch-Goa 1st floor, Surekha Building Near Doordarshan Kendra, Altinho, Panaji-403001,

0832-432932, 0832-421109(ISDN)

3. Anti Corruption Branch-Nagapur 3rd Floor, Block No. C, CGO Complex, Seminari Hills, Nagpur-440006

0712-510382, 510150 0712-5101589 (ISDN)

4. Anti Corruption Branch-Gandhinagar Sector-10A, Gandhinagar-32010(Gujarat)

02712-33188, 34301 079-38402(ISDN)

5. Anti Corruption Branch-Jaipur 1st Tilak Marg, ”C”Scheme, Jaipur-302005

0141-381476, 381277 0141-202298

6. Anti Corruption Branch Jodhpur Polo Ground No.1, Near Ship House Campus. Jodhpur-342006

0291-644860, 0141-383702 0291-547645

SOUTH ZONE 1. Anti Corruption Branch-Chennai 3rd Floor, Shastri Bhawan, 26 Haddows Road, Chennai-600006 (H. Court) (CFSL) (ISDN)

044-8273186,8270992 8276509, 8211138 044-8238831, 044-5341808 044-8214340 044-8210850

2. Anti Corruption Branch-Cochin Katharidan, Cochin-682017

0484-348601, 338919

3. Thiruvananthapuram Unit T.C.No.25/1104, Manorama Road, 0471-338844 Thampanoor, Thiruvananthapuram-695001

314

Courts, Police, Authorities & Common Man

4. Anti Corruption Branch – Hyderabad 3rd Floor, Block No.A, Sultan Bazar, Kendriya Sadan, Hyderabad-500195

040-4732762,4732763 040-4732764, 040-4734667 (ISDN)

5. Anti Corruption Branch – Visakhapatnam 1-83-21/4 Sector-8, M.V.P. Colony, Vishakhapatnam-530017

0891-530011, 534422 0891- 534433

6. Anti Corruption Branch - Bangalore 36 Bellary Road, Gangana Halli, Bangalore-360032

080-3331026, 080-2290909 (Court)

AC(HQ) ZONE 1. Anti Corruption-I, 7th Floor, Block No.3, CGO Complex, New Delhi-110003

011 – 4360334 (Extension 2499)

2. Anti Corruption-II 8th Floor, Lok Nayak Bhawan, Khan Market, New Delhi-110003

011-4624884 (Extension 113)

3. Anti Corruption-III 3rd Floor, Block No.4, CGO Complex, New Delhi-110003

011-4360334,4363488 (Extension 2209)

SPECIAL CRIMES DIVISION 1. Special Investigation Cell-I C-1 Hutments, Dalhousie Road, New Delhi-110011 2. Special Investigation Cell - II 2nd Floor, Block No.3, CGO Complex, New Delhi - 110003

011-4360334/2402 011-4362002,4360150

3. Special Investigation Unit - XV Sector - 30A, Chandigarh-160020.

0172-651694

011-3015229, 3011334 011-3011082, 3015218

4. Special Investigation Unit - XVI J&K Cell Jammu, 62/3, Trikuta Nagar, Jammu-180012

0191-463537

SC ZONE 1. Special Investigation Cell - IV 7th Floor, Yashwant Place, Chanakyapuri, New Delhi-110021

011-6888703(OS) 011-4670940 (DO) 011-6881118 (Fax)

315

Part III : Criminal Law Administration System

2. Special Investigation Cell - IV 447, Sector - 21, Indra Nagar, Lucknow (U.P.)-226004

0522-342214, 0522-357606

3. Special Crime Branch 2nd Floor, Block No.4, CGO Complex, New Delhi-110003

011-4360334/2500

4. Special Crime Branch - Calcutta 2nd Floor , A-Wing, D F Block, MSO Building, Salt Lake, Calcutta-700064

033-3217249, 3596119 033 - 3340981

5. Special Crime Branch Mumbai A-2 Wing, 8th Floor, CGO Complex, Belapur, CBD, Navi Mumbai-400614

022-7576804, 7576820

6. Special Crime Branch Chennai 3rd Floor, A Wing, Rajaji Bhawan, Besant Nagar, Chennai-600090

044-4917144, 4919280

Special Task Force 1. Special Task Force - Delhi 6th Floor, Yashwant Place, Chanakyapuri, New Delhi-110021 2. Special Task Force - Mumbai C-7, Minister’s Bangalow, Madam Cama Road, Nariman Point, Mumbai - 400006

011-6117932, 6117933 011-6882895, 6117934 022-2831528 (DO) 022-3098175 (TADA Court) 022-2820736 (ISDN)

Multi-Disciplinary Monitoring Agency (MDMA) 1. MDMA Delhi 8/10, Jamnagar House Hutments, New Delhi

011-3070222, 3071148

2. MDMA Chennai Malligai, 30 Greenways Road, Chennai-600028

044 - 4937473

Economic Offences Division 1. Special Investigation Group 7th floor, Block No.3, CGO Complex, New Delhi-110003

011-4362643

316

Courts, Police, Authorities & Common Man

2. Special Investigation Cell - III 6th floor, Block No.3, CGO Complex, New Delhi-110003

011-4360334 (Extn.-2467) 011-4362745

3. Economic Offence Wing 8th Floor, Loknayak Bhawan New Delhi-110003

011-4624884, 011-4635367

4. Economic Offence Wing - Chennai 3rd Floor, A Wing, Rajaji Bhawan, IIIrd Avenue,Besant Nagar, Chennai

044-4901909, 044-4462233

5. Economic Offence Wing - Mumbai 3rd Floor, Kitab Mahal, 192, Dr. Dadabhai Naroji Road, Fort, Mumbai-400001 6. Economic Offence Wing - Calcutta Ground Floor, DF Block “F” Wing, Salt lake, Calcutta-700064

022 - 2073102

033 - 3342153

Bank Security & Frauds Cell 1. Bank Security & Frauds Cell-I Special Investigation Unit-X, 1st Floor, Block No. 3, New Delhi-110003 011 - 4360334 2. Bank Security & Frauds Cell - II 6th Floor, NDMC Building Yaswant Place, Chanakyapuri, New Delhi-110021

011 - 4679133

3. Bank Security & Frauds Cell - Mumbai 2nd Floor, White House, 022-3635004, 3646995 91 Walkeshwar Road, Mumbai-400006 022-3610441 4. Bank Security & Frauds Cell -Bangalore No.36, IInd Floor, CBI Complex, Bellary Road, Ganganahalli, 080-3534466 Bangalore-5600032 080-3534441

317

Part III : Criminal Law Administration System

Policy & Co-ordination Division 1. Policy Division Room No.27, Ground Floor, North Block, New Delhi - 110001 2. Co-ordination Division 8th Floor, Lok Nayak Bhawan, Khan Market, New Delhi-110003 3. Interpol Wing, Ground Floor, Block No.4, CGO Complex, New Delhi-110003 4. Computer Division 6th Floor,Block No.4, CGO Complex, New Delhi-110003

011-3011985 011 - 4624884/132, 4392170, 4361683 011-4364070, 4392170, 4361683 011-4364986, 011-4360668

Special Units 1. Special Unit Delhi 10/6, Jamnagar House, Akbar Road, New Delhi-110011

011-3386135,3386138 011 - 3382605 011-3386136 (After office hours)

2. Special Unit - Mumbai 192, Kitab Mahal, 3rd Floor, Dr. D.B.N. Road, Fort, Mumbai-400001 022-2076018, 2076024 3. Special Unit - Calcutta 3rd Floor, Jeevan Tara Building, 23/44K, Diamond Harbor road, Calcutta-700053

033 - 4787447 033 - 4787319 033 - 4787316

4. Special Unit Chennai, 3rd Floor, A-Wing Block No-4, 044-4916257, 4918975 Rajaji Bhawan, Besant Nagar, Chennai - 600090 E-mail:[email protected] Training Academy (Ghaziabad) CBI Training Academy, Kamla Nehru Nagar, 914 - 752985 to 88 Hapur Road, Ghaziabad (U.P.)-800001 0575-782985 to 88 Supdt. of Police Cyber Crime Investigation Cell Central Bureau of Investigation 5th Floor, Block No.3, CGO Complex Lodhi Road, New Delhi - 3

Phone: 3012923, 4392424

318

Courts, Police, Authorities & Common Man

APPENDIX 8 : SOME IMPORTANT SECTIONS OF INDIAN PENAL CODE ( frequently used)) Section 299. Culpable Homicide - Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Section 300. Murder - Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, orSecondly - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, orThirdly - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Exception 1.- When culpable homicide is not murder. - Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes death of any other person by mistake or accident. The above exception is subject to the following provisos:First.- That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly.- That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly.- That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation.- Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.

Part III : Criminal Law Administration System

319

Exception 2.- Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exceeding such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Exception 3.- Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without illwill towards the person whose death is caused. Exception 4.- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation.- It is immaterial in such cases which party offers the provocation or commits the first assault. Exception 5.- Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. Section 302. Punishment for murder.- Whoever commits murder shall be punished with death or imprisonment for life, and shall also be liable to fine. Section 304. Punishment for culpable homicide not amounting to murder.- Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. Section 304A.- Causing death by negligence.- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable

320

Courts, Police, Authorities & Common Man

homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Section 304B. Dowry death.- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death. Section 307. Attempt to murder.- Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. Section 319. Hurt.- Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt. Section 320. Grievous hurt.- The following kinds of hurt only are designated as “grievous” :First

- Emasculation.

Secondly - Permanent privation of the sight of either eye. Thirdly

- Permanent privation of the hearing of either ear

Fourthly - Privation of any member or joint Fifthly

- Destruction or permanent impairing of the powers of any member or joint

Sixthly

- Permanent disfiguration of the head or face

Seventhly - Fracture or dislocation of a bone or tooth Eighthly - Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in sever bodily pain, or unable to follow his ordinary pursuits. Section 321. Voluntarily causing hurt.- Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said “voluntarily to cause hurt”. Section 322. Voluntarily causing grievous hurt.- Whoever voluntarily

Part III : Criminal Law Administration System

321

causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which is causes is grievous hurt, is said “voluntarily to cause grievous hurt”. Section 323. Punishment for voluntarily causing hurt.- Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both. Section 324. Voluntarily causing hurt by dangerous weapons or means.- Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. Section 325. Punishment for voluntarily causing grievous hurt.Whoever, except in the case provided for by section 335, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Section 326. Voluntarily causing grievous hurt by dangerous weapons or means.- Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Section 327. Voluntarily causing hurt to extort property, or to constrain to an illegal act.- Whoever voluntarily causes hurt, for the purpose of extorting from the sufferer, or from any person interested in the sufferer, any property or valuable security, or of constraining the sufferer or any person interested in such sufferer to do anything which is

322

Courts, Police, Authorities & Common Man

illegal or which may facilitate the commission of an offence, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Section 329. Voluntarily causing grievous hurt to extort property, or to constrain to an illegal act.- Whoever voluntarily causes grievous hurt for the purpose of extorting from the sufferer or from any person interested in the sufferer, any property or valuable security, or of constraining the sufferer or any person interested in such sufferer to do anything which is illegal or which may facilitate the commission of an offence, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Section 363. Punishment for kidnapping.- Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Section 375. Rape.- A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following description : First - Against her will Secondly - Without her consent Thirdly - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or hurt Fourthly - With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married Fifthly - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent Sixthly - With or without her consent, when she is under sixteen years of age. Explanation - Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception - Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

Part III : Criminal Law Administration System

323

Section 376. Punishment for rape.- (1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both : Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term less than seven years. (2)Whoever, (a) being a police officer commits rape(i) within the limits of the police station to which he is appointed; or (ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or (iii) on a woman in his custody or in the custody of a police officer subordinate to him; or (b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or (c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman’s or children’s institution, takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or (d) Being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or (e) commits rape on a woman knowing her to be pregnant; or (f) commits rape on a woman when she is under twelve years of age; or (g)commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine :

324

Courts, Police, Authorities & Common Man

Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years. Explanation 1 - Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section. Explanation 2 - “Women’s or children’s institution” means an institution, whether called an orphanage or a home for neglected women or children or a widow’s home or by any other name, which is established and maintained for the reception and care of women or children. Explanation 3 - “Hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation. Section 378. Theft.- Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft. Section 379. Punishment for theft.- Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. Section 403. Dishonest misappropriation of property.- Whoever dishonestly misappropriates or converts to his own use any movable property, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Section 405. Criminal breach of trust.- Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits “criminal breach of trust”. Section 406. Punishment for criminal breach of trust.- Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

Part III : Criminal Law Administration System

325

Section 415. Cheating.- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”. Explanation.- A dishonest concealment of facts is a deception within the meaning of this section. Section 420. Cheating and dishonestly inducing delivery of property.Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Section 463. Forgery.- Whoever makes any false document or part of a document with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery. Section 468. Forgery for purpose of cheating.- Whoever commits forgery, intending that the document forged shall be used for the purpose of cheating, shall be punished with imprisonment of wither description for a term which may extend to seven years, and shall also be liable to fine. Section 471. Using as genuine a forged document.- Whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document. Section 498A. Husband or relative of husband of a woman subjecting her to cruelty.- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.- For the purpose of this section, “cruelty” means(a) any wilful conduct which is of such a nature as is likely to drive the

326

Courts, Police, Authorities & Common Man

woman to commit suicide or to cause grave injury or danger to life, limb or health ( whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. Section 500. Punishment for defamation.- Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both. Section 503. Criminal intimidation.- Whoever threatens another with any injury to this person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. Explanation.- A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section. Section 506. Punishment for criminal intimidation.- Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.- and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. Section 511. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment. - Whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the

Part III : Criminal Law Administration System

327

imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both. Section 34. Acts done by several persons in furtherance of common intention.- When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the manner as if it were done by him alone. Section 120A. Definition of criminal conspiracy.- When two or more persons agree to do, or cause to be done, (1) an illegal act, or (2) an act, which is not illegal, by illegal means, such an agreement is designated a criminal conspiracy : Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation - It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object. Section120B. Punishment for criminal conspiracy.- (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding sex months, or fine or with both. Section 193. Punishment for false evidence.- Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine, And whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for

328

Courts, Police, Authorities & Common Man

a term which may extend to three years, and shall also be liable to fine. Explanation 1 - A trial before a Court-martial is a judicial proceeding. Explanation 2 - An investigation directed by law preliminary to a proceeding before a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice. Section 209. Dishonestly making false claim in Court.- Whoever fraudulently or dishonestly, or with intent to injure or annoy any person, makes in a Court of Justice any claim which he knows to be false, shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine. Section 211. False charge of offence made with intent to injure.Whoever, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding against that person, or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge against that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; And if such criminal proceeding be instituted on a false charge of an offence punishable with death, imprisonment for life, or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Section 268. Public nuisance.- A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. A common nuisance is not excused on the ground that it causes some convenience or advantage. Section 269. Negligent act likely to spread infection of disease dangerous to life.- Whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.

Part III : Criminal Law Administration System

329

Section 273. Sale of noxious food or drink.- Whoever sells, or offers or exposes for sale, as food or drink, any article which has been rendered or has become noxious, or is in a state unfit for food or drink, knowing or having reason to believe that the same is noxious as food or drink, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Section 279. Rash driving or riding on a public way.- Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. ]

330

Courts, Police, Authorities & Common Man

APPENDIX 9 : List of Members of Interpol Member Countries Afghanistan Albania Algeria Andorra Angola Antigua & Barbuda Argentina Armenia Aruba Australia Austria Azerbaijan Bahamas Bahrain Bangladesh Barbados Belarus Belgium Belize Benin Bolivia Bosnia-Herzegovina Botswana Brazil Brunei Bulgaria Burkina Faso Burundi Cambodia Cameroon Canada Cape Verde Central African Republic Chad Chile China Colombia

Comoros Republic of Congo Congo Rep. Dem. of ex-Zaire Costa Rica Cote d’Ivoire Croatia Cuba Cyprus Czech (Republic) Denmark Djibouti Dominica Dominican Republic Ecuador Egypt El Salvador Equatorial Guinea Eritrea Estonia Ethiopia Fiji Finland France Gabon Gambia Germany Georgia Ghana Greece Grenada Guatemala Guinea Guinea-Bissau Guyana Haiti Honduras Hungary Iceland India Indonesia Iran Iraq

Part III : Criminal Law Administration System

Ireland Israel Italy Jamaica Japan Jordan Kazakhstan Kenya Korea (Republic of) Kuwait Kyrgystan Laos Latvia Lebanon Lesotho Liberia Libya Liechtenstein Lithuania Luxembourg Macedonia (former Yugoslav Republic of) Madagascar Malawi Malaysia Maldives Mali Malta Marshall Islands Mauritania Mauritius Mexico Moldova Monaco Mongolia Morocco Mozambique Myanmar Namibia Nauru Nepal

Netherlands Netherlands Antilles New Zealand Nicaragua Niger Nigeria Norway Oman Pakistan Panama Papua New Guinea Paraguay Peru Philippines Poland Portugal Qatar Romania Russia Rwanda St. Kitts & Nevis St.Lucia St. Vincent & the Grenadines Sao Tome & Principe Saudi Arabia Senegal Seychelles Sierra Leone Singapore Slovakia Slovenia Somalia South Africa Spain Sri Lanka Sudan Suriname Swaziland Sweden Switzerland Syria

331

A

332

Tanzania Thailand Togo Tonga Trinidad & Tobago Tunisia Turkey Uganda Ukraine United Arab Emirates United Kingdom United States Uruguay Uzbekistan Venezuela Vietnam Yemen Zaire Zambia

Courts, Police, Authorities & Common Man

Zimbabwe U.K. Sub Bureaus Anguilla Bermuda British Virgin Islands Cayman Islands Gibraltar Montserrat Turks & Caicos U.S. Sub Bureaus American Samoa Commonwealth of the Northern Mariana Islands Guam Puerto Rico U.S. Virgin Islands Portugal Sub Bureau Macao China Sub Bureau Hong Kong

Part III : Criminal Law Administration System

333

Appendix 10 : List of the District & Sessions Judges from 1967 onwards Sr. No.

Name

From

Till

1.

Sh. Mohan Lal Jain

1967

1967

2.

Sh. P.N. Thakural

1967

1968

3.

Sh. Jagjit Singh

1968

1971

4.

Sh. R.N. Aggarwal

08.06.1971

06.03.1972

5.

Sh. F.S. Gill

07.03.1972

17.12.1974

6.

Sh. K.S. Sidhu

18.12.1974

06.03.1976

7.

Sh. R.N. Aggarwal

07.03.1976

06.07.1977

8.

Sh. K.S. Sidhu

07.07.1977

16.07.1978

9.

Sh. O.N. Vohra

17.07.1978

07.03.1979

10.

Sh. J.D. Jain

07.03.1979

18.10.1979

11.

Sh. G.C. Jain

19.10.1979

06.01.1981

12.

Sh. Jagdish Chander

06.01.1981

12.08.1983

13.

Sh. M.K. Chawla

12.08.1983

31.05.1984

14.

Sh. N.C. Kochhar

01.06.1984

16.11.1986

15.

Sh. P.K. Bahri

17.11.1986

09.07.1987

16.

Ms. Santosh Duggal

10.07.1987

27.05.1988

17.

Sh. V.B. Bansal

28.05.1988

26.04.1989

18.

Sh. Jaspal Singh

27.04.1989

12.07.1990

19.

Sh. Mohd. Shamim

13.07.1990

19.03.1991

20.

Sh. P.K. Jain

19.03.1991

10.11.1994

21.

Sh. J.B. Goel

10.11.1994

17.05.1995

22.

Sh. S.P. Sabherwal

17.05.1995

30.11.1995

23.

Sh. K.S. Gupta

30.11.1995

08.04.1996

24.

Sh. K.P. Verma

09.04.1996

25.07.1998

25.

Sh. M.A. Khan

25.07.1998

30.11.2000

26.

Sh. R.C. Jain

01.12.2000

16.07.2001

27.

Sh. H.R. Malhotra

16.07.2001

25.08.2002

28.

Sh. J.P. Singh

26.08.2002

04.07.2004

29.

Mrs. Kanwal Inder Kaur

30.

Mrs. Rekha Sharma

Part III Criminal Law Administration System

View more...

Comments

Copyright ©2017 KUPDF Inc.
SUPPORT KUPDF