CRPC Procedure

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Courts, Police, Authorities & Common Man i
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 fromDelhi 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.
K
ii Courts, Police, Authorities & Common Man
Dated : 03.01.2004
FOREWARD
I went through the manuscript of the book titled 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
subject but when I went through the book, I found that both in design and expression,
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
easy of comprehension by the layman.
The author has put in considerable amount of work in the preparation of
this book. He has referred to the relevant authorities and explained them in a language
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.
I am sure this book will prove useful to lawyers, police officials and layman
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.
Justice P.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 : sunilgoel@rediffmail.com
Courts, Police, Authorities & Common Man ix
Abbreviations used in this book :
CrPC : Code of Criminal Procedure 1973
IPC : Indian Penal Code 1860
MM : Metropolitan Magistrate
(Wherever the term MM is used in this
Book, it should be understood as Judicial
Magistrate 1
st
Class, in case of areas other
than metropolitan areas)
IO : Investigating Officer
BW : Bailable warrant
NBW : Non-bailable warrant
Art. : Article of the Constitution of India
Sec : Section
EM : Executive Magistrate
SDM : Sub-divisional Magistrate
DM : District Magistrate
GOI : Govt. of India
UOI : Union of India
SHO : Station House Officer
PS : Police Station
ACP : Asst. Commissioner of Police
DCP : Deputy Commissioner of Police
CP : Commissioner of Police
FIR : First Information Report
SC : Supreme Court
HC : High Court
Min. : Minimum
Max. : Maximum
Govt. : Government
R.I. : Rigorous imprisonment
Deptt. : Department
x Courts, Police, Authorities & Common Man
CONTENTS
(i). Know your author i
(ii) Foreward by Justice P.N.Bhagwati, former Chief Justice of India ii
(iii) Foreward by Shri Ramphal Bansal, Senior Advocate, veteran
freedom fighter and Vice president, DAV Managing Committee iii
(iv) Foreward by Dr. V.K.Agarwal, former Law Secretary of India v
(v) Preface vi
(vi) Abbreviations used in this book ix
P a r t I : Courts
1. Constitution of India : Fountain head of all laws 1
2. Set up and functioning of courts (including qualifications,
eligibility & promotion of Judges)
1. Supreme Court 6
2. High Court 7
3. District & Subordinate Courts 9
4. Procedure for recruitment to judiciary 10
5. National Judicial Commission 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 25
a. Civil Judges b. Addl. District Judges c. Rent cases
d. Matrimonial cases e. Labour cases
(ii) Criminal set-up 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 xi
i. What is PIL ? 42
ii. What is the purpose of PIL ? 42
iii. In which courts PIL can be filed ? 42
iv. Who can file a PIL? 42
v. What is the method of filing a PIL? 43
vi. Role of PIL in expanding scope of Article 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. Traffic police G. Railway police
H. Home Guards I. Home Department
J. 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 #Mission
#Structure : 67
*District Police *Traffic Police*Police Control Room
*Licensing Deptt .*Vigilance Deptt. *Crime & Railways Deptt.
xii Courts, Police, Authorities & Common Man
*Crime against Women Cell *Narcotics & Crime Prevention Cell
#Achievements 70
*Help Line *Advertising compaign
*Special Police Officers *Computerised arms licensing unit
*Service oriented activities
#Schemes 71
*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 75
#Law relating to Delhi Police 75
*Various provisions of Delhi Police Act 1978 75
*What are the duties of a Police Officer? 77
*What are the penalties that can be imposed on a Police Officer? 78
6. Interpol 80
- What is Interpol, its aims, limitations and principles of its cooperation? 80
- India and Interpol 81
- Role and functions of Interpol wing of CBI 82
- Interpol notices 84
- A series notices (Red) 85
- B series notices (Blue) 86
- C series notices (Green) 86
- D series notices (Black) 87
- E series notices (stolen property) 87
- Modus Operandi Sheets 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
appear, what happens ? 105
8. What is the sequence of events before and after Arrest ? 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
5. Salient Features of Criminal Procedure Code 1973
(Cr.P.C.) at a glance 192
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 cant 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 194
FIR can be cancelled only by the court 194
Statement given to police can be retracted 195
Statement given to Magistrate can not be retracted 195
Right of bail in case of slow investigation 195
Right of arrested person to inform friend/relative 195
Inquest proceedings by SDM in case of unnatural death 196
Offence committed by an Indian in foreign country 196
Taking of cognizance by Magistrate 196
Accused can ask to transfer case to some other magistrate 197
Cognizance can be taken only by Magistrates court 197
When accused is a public servant 197
Complaint on behalf of a woman regarding torture 197
Committal of case to the sessions court 197
Magistrate can drop the proceedings against the accused even after
taking the cognizance 197
Discharge of accused 198
Accused to be present in court on every date 198
Compensation to accused if he is discharged/acquitted 199
Withdrawal of complaint 199
Evidence to be recorded in presence of accused 199
Recording of evidence of a witness 199
Formal Evidence can be given by affidavit 199
No one can be punished for the same offence twice 200
Duty of court to arrange lawyer for the accused 200
One of the accused turning approver 200
Trial in criminal case to be held day-to-day 200
Any witness can be summoned at any stage 200
Expenses to be paid to witnesses for attending court 201
Examination of accused by court after prosecution evidence is over 201
Non-accused can be summoned as accused by court 201
Compromise in criminal case 201
Court proceedings open to public 201
Trial to stop if accused found to be of unsound mind 201
Witness can be punished for giving false evidence 202
Release of convicted person on probation 202
Courts, Police, Authorities & Common Man xvii
Person sentenced to less than 3 years imprisonment entitled to bail
for filing appeal 202
Power of Supreme Court to transfer any case throughout India 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 ? 232
(important pieces of information relating to various Acts )
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 245
- criminal breach of trust 245
- forgery 246
- hurt 247
- grievous hurt 247
- murder 248
- kidnapping 250
- rape 250
- theft 251
- extortion 251
- robbery 252
- dacoity 253
- criminal trespass 253
- defamation 254
- criminal intimidation 256
12. Sample performa for various types of Petitions/applications in
criminal courts 257
1. Bail Application under Section 436 in a Magistrates court in a
case of bailable offence 257
2. Bail Application under Section 437 Cr.P.C. filed in a
Magistrates 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
High Court in a non-bailable offence 265
7. Application under Section 439(2) Cr.P.C. for cancellation of bail 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 277
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
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 318
( frequently used)
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)
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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 governments powers are
limited and clearly spelt out and under which the citizens 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 peoples 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
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.
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 societys
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
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, theirs 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.
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.Mehtas 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
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 :
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.
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;
(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
(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 sub-
clause (d) of clause (4).
Part I : Courts 15
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:
+ ~ 1 ~ . ~ ~ 1 ~ .
INDIA
.
States
.
. .
Sessions Division Metropolitan Area
. (treated as a separate
Districts 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 :
Supreme Court
(can pass any sentence)
.
High Court
(can pass any sentence)
.
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)
.

. . .
Asst. Sessions Judge CMM CJM
(including ACMM) (including ACJM)
(Imprisonment upto (Imprisonment upto (Imprisonment upto
10 years and/or fine) 7 years and/or fine) 7 years and/or fine)
.
SDJM
(same as for MM)
.
. . . .
MM Spl. MM JM1C JM2C
(incl. Spl. JM) (incl. Spl. JM)
(Imprisonment upto 3 years (-- Same) (same as for MM) (Imprisonment upto 1
and/or fine upto Rs.5000) year and/or fine upto
Rs.1000)
Part I : Courts 19
4
Judicial set-up in Delhi
1. History of Courts in Delhi
Delhi as a distinct legal entity was recognised by the Proclamation notifica-
tion 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 Sub-
Judges 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:
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
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. 1/2/70-
Dh(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.
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
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
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 magistrates 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
Judicial Service. Now these Courts are under direct supervision of the
Honble 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.
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 Vice-
President.
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
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).
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
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."
Part I : Courts 39
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.)
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 Beggars 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.
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.
Part I : Courts 43
# 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.
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. AIR 1981 SC 746
Olga Tellis vs Bombay Municipal Corp. AIR 1986 SC 180
DTC vs DTC Mazdoor Congress AIR 1991 SC 101
Boddistwa Gautam vs Subhra Chakraborty AIR 1996 SC 922
Part I : Courts 45
Part I
COURTS
Part II : Police 47
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
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.
Part II : Police 49
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 in-
charge 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
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.
Part II : Police 51
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 senior-
most 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.
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
in the next higher rank, i.e. Constable Head Constable Assistant
SubInspector Sub-Inspector Inspector Deputy Superintendent of
Police 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 1830-
1837. 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
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--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., Anti-
Corruption, 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:
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
CBIs 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
and Public Sector Undertakings.
The CBIs 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.
Part II : Police 61
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
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 Examiners 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,
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 CVCs
email address vigilance@hub.nic.in. 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.
Part II : Police 65
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 Balbans 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 todays 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, Indias 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.
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
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, Citizens 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 PCRs 100 No. telephone as a measure of citizens co-
operation 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 round-
the-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
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.
Delhi Polices 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 womens 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.
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 mans character.
They employ them at times without anybodys 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 employers
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 Divisions Officer/ SHOs 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, SDPOs
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
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.
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.
An Inspector may be designated as SHO or Addl. SHO.
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.
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)
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)
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).
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)
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)
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)
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 ?
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.
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.
To prevent, to the best of his ability, the commission of public
nuisances
To apprehend, without delay, all persons whom he is legally
authorized to apprehend and for whose apprehension there is
sufficient reason.
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
of the officer aided.
To prevent the breach of the public peace.
To arrange every assistance, within his power, to the disabled or
helpless persons in the streets.
To take custody of intoxicated persons and of lunatics at large, who
appear dangerous or incapable of taking care of themselves.
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.
To arrange for the proper sustenance and shelter of every person
who is under arrest or in custody.
To refrain from needless rudeness and the causing of unnecessary
annoyance, while conducting searches.
To act with strict regard to decency and with reasonable gentleness,
in dealing with women and children.
To use his best endeavours to avert any accident or danger to public.
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.
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.
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.
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?
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)
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)
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)
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.
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 Organizations
headquarters is in Lyon, France. ( See Appendix 9 for list of member
countries)
It is an international police organization to extend co-operation for co-
ordinated 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 Interpols Constitution, Interpols 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 Interpols
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 Organizations 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
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 Interpols 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
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 Interpols 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 co-
operation. 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.
(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 someones identity verified; to obtain particulars of a
persons 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.
(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)
Part II : Police 89
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 non-
criminals. 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 states 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
(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 prosecutors 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:
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).
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.
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
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).
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.}
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}
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).
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.
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.
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.
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.
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 accuseds counsel as well as by the prosecution on whether
charge can be framed against the accused.
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)]
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.
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.
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.
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.
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.
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.
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.
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.
If the appeal is dismissed by the High Court also, then the accused
can appeal to the Supreme Court.
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.
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 :
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.
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.
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.
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.
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.
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 non-
cognizable 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 Magistrates 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
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.
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.
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
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
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 persons 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
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).
(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).
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)
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.
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 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), 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
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.
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
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 accuseds 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 :
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 magistrates 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) )
(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)
Supreme 169 and certain procedure/guidelines were laid down by the
Court to be followed by the police in the matter of arrest :
+ 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.
+ 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.
+ 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.
+ In case a person has been arrested, he has every right to know the
ground for arrest.
+ Such person cannot be kept in detention for more than 24 hours
without being produced before a magistrate.
+ 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.
+ Such person should not be handcuffed. Such handcuffing is only
allowed after an order of the court in the interest of security.
+ A woman or a child below 15 years of age cannot be forced to go to
police station for interrogation.
+ 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.
+ 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
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
magistrates 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
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
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.
(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.
(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
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
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 non-
bailable 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 non-
bailable 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.
(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
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
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 magistrates 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
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,
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
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/
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 Magistrates 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 Honble 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
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 Bs
claim. A has given false evidence.
(b) A, being bound by an oath to state the truth, states that he believes a
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 Zs handwriting, states that he
believes a certain signature to be the handwriting of Z; A in good
faith believing it to be so. Here, As 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.
(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 Zs 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
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
misuse their powers and try to protect/save the actual offender. It is a
great set back to the victim and the victims 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
Magistrates 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,
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.
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 persons 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.
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,
- 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, ..
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,
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,
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
- 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,
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
believes to be incorrect,
- intending thereby to cause, or
- knowing it to be likely that he may thereby cause,
- injury to any person,
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
place knowing such information to be false, and knowing that it is
likely that the consequence of the information will be a search of Zs
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,
fine or with both.
Section 211: False charge of offence made with intent to injure:
Whoever
- with intent to cause injury to any person,
- 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,
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,
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.
(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
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.
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 (Peoples 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
conditions must be satisfied :
(a) the offence is one which can be lawfully compounded or is a non-
cognizable 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
complainants 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 -
- 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.
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 anybodys
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
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
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
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 mans 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
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
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
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 ones 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
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.
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
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
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
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
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
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
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
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 suretys 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
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 investigators 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
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
Procedure, 1973 (2 of 1974), the Central Government hereby specify that
a letter of request from any Criminal Court in India referred to in such-
section (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
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
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. (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).
2. Canada
3. France -do-
4. Russia -do-
5. Kyrgyzstan -do-
6. Kazakhstan -do-
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
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.
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.
(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. Nepal 2. Belgium 3. Canada
4. Netherlands 5. U.A.E 6. U.K
7. France 8. U.S.A 9. Switzerland
10. Bhutan 11. Hong Kong
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
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.
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
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
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
(b) Life imprisonment
(c) Imprisonment simple or rigorous ( i.e. with hard labour)
(d) Forfeiture of property
(e) 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 courts 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 convicts 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.
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
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 inches to the right or left of the middle line and free
from the flap of the cap.
(7) The warders holding the condemned mans 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.
* *
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
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
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
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.
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
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.
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 IV : 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 :
(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.
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 Magistrates
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
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, 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.
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
_g
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
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
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 Honble Court as and
when so required.
3. That I hold the ration card no. .. and/or Election I-card
No. .. and/or Passport No. ..
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
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
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
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
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)
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)
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)
The search of the person of a female can be made only by a female
police officer, with strict regard to decency. (Section 51)
Medical examination of arrested person
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 cant be kept in lock-up for more than 24 hours
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
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
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
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)
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
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
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
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
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.
Statement given to police can be retracted
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
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
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
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).
Inquest proceedings by SDM in case of unnatural death
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
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
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
- 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
When an accused appear before the Magistrate after taking of
cognizance on the information received from any person or
Magistrates 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 Magistrates court
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
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
The complaint by a woman against her in-laws for torturing her can
be filed also by her parents, brother, sister, fathers or mothers 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
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
When the Magistrate takes cognizance on a criminal complaint and
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
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
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,
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
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
The Magistrate may permit the complainant to withdraw his complaint
under section 257.
Evidence to be recorded in presence of accused
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
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)
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
The evidence of any person, whose evidence is of a formal character,
may be given by affidavit. (Section 296)
No one can be punished for the same offence twice
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
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
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
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
The court has the power to re-call any witness already examined or
to summon any witness at any stage, if essential.
Expenses to be paid to witnesses for attending court
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
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
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
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
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
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.
Witness can be punished for giving false evidence
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
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
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)
Power of Supreme Court to transfer any case throughout India
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
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)
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
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
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
pendency of the trial. This is called release of an article on superdari.
(Sections 451,457)
Power of court to order restoration of possession
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
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
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
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.
Act done by a person justified, or by mistake of fact believing himself
justified, by law
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
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
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, As 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 As act.
Act of a child under 7 years of age
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
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
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
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
persons benefit
Under Section 88 of the Indian Penal Code, an act which causes harm or
which is known by the doer to be likely to cause harm to any person for
whose benefit the act is doneis 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 Zs consent,
A performs operation on Z for Zs benefit in good faith without any
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
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 Bs benefit and in good faith and without Bs 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
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 persons
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.
(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 Zs 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, As
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 zs 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 childs 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 patients death. The patient dies due to shock on knowing this
news. The doctor is deemed to have committed no offence.
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.
(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
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.
Criminal force is defined in Section 350 to mean the intentional use of
force by a person A against a person B, without Bs 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.
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 wrong-
doer. 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.
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
causing such bodily injury to B which A knows that it is likely to
cause death of B, or
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
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.
(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, Zs 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 As 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 Zs 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.
(vi) Z strikes B. B is by this provocation excited to violent rage. A, a
bystander, intending to take advantage of Bs rage, and to cause him
to kill Z, puts a knife into Bs 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 Zs 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 boys 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
her or any person related to her to meet such demand.
As can be seen from the contents of Section 498A above, if a womans
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 husbands family and near relatives of her husband, exposing them
unnecessarily to the rigours of criminal law. The complaint is either filed
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
growing misuse of the provisions of Section 498A/406 IPC. The Honble
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
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
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
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 banks 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 banks employee due to variety of reasons mostly
the banks 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 banks 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).
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
complainants witnesses and the accuseds 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 complainants counsel.
When the evidence of the accuseds 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
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,
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 Courts 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 banks 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 banks 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)
O 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.
O The law relating to the acquisition of land and properties by the Govt.
for public purposes is governed by the Land Acquisition Act 1894.
O 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.
O 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).
O 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.
O 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.
O 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.
O The law governing the landlord tenant relations in Delhi is governed
by the Delhi Rent Control Act 1958.
O All the schools in Delhi are regulated by the Delhi School Education
Act 1973.
O 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
O 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
O 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.
O 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.
O 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.
O 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.
O 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.
O The law relating to the contracts, agreements etc. is governed by the
Indian Contract Act 1872.
O The law governing the sale, purchase, transfer of the property is
governed by the Transfer of Property Act 1882.
O The sale of goods i.e. every kind of movable property is governed by
the Sale of Goods Act 1930.
O The formation and functioning of a partnership firm is governed by
the Indian Partnership Act 1932.
O 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.
O The law relating to Co-operative Societies is contained in the Co-
operative 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).
O 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.
O The evidence in all matters in India, whether civil or criminal, its
mode, its application is governed by the Indian Evidence Act 1872.
O 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
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.
O 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.
O 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.
O 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.
O 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.
O 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 Pre-
natal Diagnostic Techniques (Regulation and Prevention of
Misuse) Act 1994. The medical termination of pregnancy is governed
by the Medical Termination of Pregnancy Act 1971.
O The law which provide for the punishment for public gambling and
for maintaining gaming houses is the Public Gambling Act 1867. In
Delhi, the gambling is punishable under the Delhi Public Gambling
Act 1955.
O 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.
O 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.
O 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.
O The law relating to the ports is governed by the Indian Ports Act,
1908.
O 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.
O 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 Workmens
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
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.
O Employment of child as labour is prohibited under Child Labour
(Prohibition and Regulation) Act 1986.
O 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.
O The import, export, manufacture, sale, distribution, transport and use
of the insecticides is regulated by the Insecticides Act 1968.
O 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.
O 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.
O 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.
O 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.
O The activities in the stock market are regulated by the Securities and
Exchange Board of India Act 1992 (SEBI).
O For the same type of work, men and women are entitled to the same
remuneration. This is provided under the Equal Remuneration Act
1976.
O The rates of the various medicines can be fixed by the Central Govt.
under the Drugs (Price Control) Order 1995 (made under Section
3 of the Essential Commodities Act 1955). The law governing the
drug, medicines, cosmetics etc. is the Drugs and Cosmetics Act
1940.
O 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.
O 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.
O 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.
O 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.
O 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.
O The telecommunication services including the cellular services are
regulated by the Telecom Regulatory Authority of India Act 1997.
O The Customs Act 1962 deals with the matters related to customs
and the Central Excise Act 1944 deals with the matters related to
excise.
O 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
particular, this Act deals with, what we call, cyber crimes.
O 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.
O 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).
O 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.
O 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
O 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).
O 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)
O There is Essential Commodities Act 1955 which specifies the
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.
O The Bureau of India Standards which grant the ISI mark to quality
goods is governed by the Bureau of Indian Standards Act 1986.
O 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.
O 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.
O 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.
O The Act providing much needed relief to the animals is the Prevention
of Cruelty to Animals Act 1960 and the Wildlife (Protection) Act
1972.
O The Birth certificate and the dearth certificate are granted under the
Registration of Births and Deaths Act 1969.
O 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
O 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]
O 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.)]
O 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
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 ]
O 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 ]
O 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]
O 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]
O 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
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 ]
O 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]
O 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
O 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 ]
O 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 ]
O 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)]
O 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]
O 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)]
O 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]
O Domiciliary visits by the police at night disturbing a persons 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
O 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 ]
O 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
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
(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
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
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
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.
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.
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
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
(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
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 persons 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
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
* * * * *
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
Dacoity
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
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
* * * * *
Defamation
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 As 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.
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)
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.
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
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
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 Magistrates 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 Honble 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 Through
Dated : 1.2.2005 Counsel
2. Bail Application under Section 437 Cr.P.C. filed in a Magistrates
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 : ............................
BEHALF OF THE ACCUSED DEEPAK SINGH S/O S.K.SINGH
The humble petition of the applicant Deepak Singh, accused in the above
case
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.
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 Honble Court may kindly be pleased
to pass order for releasing the applicant on bail.
It is prayed accordingly.
Delhi Through
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
FIR No.........................................
............................................... Act
Police Station : ............................
BEHALF OF THE ACCUSED RAM PRAKASH S/O SANGRAM
SINGH
The humble petition of the applicant Ram Prakash, accused in the above
case
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
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 Honble Court may kindly be
pleased to pass an order directing release of the applicant on bail.
New Delhi Through
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
Versus
State ...................................Respondent
FIR No.........................................
............................................... Act
Police Station : ............................
APPLICATION FOR BAIL UNDER SECTION 439 of CODE OF
CRIMINAL PROCEDURE
To,
Honble The Chief Justice and his companion Justices of the Delhi High
Court,
The humble petition of the petitioner abovenamed
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
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.
9. That the petitioner undertakes to abide by all the terms and conditions
that may be imposed upon him by this Honble 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 Honble Court may graciously
be pleased to direct the release of the petitioner on bail or pass such other
order or orders as this Honble Court deem fit and proper.
And the petitioner, as in duty bound, shall ever pray.
Petitioner
New Delhi Through
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.
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
FIR No.........................................
............................................... Act
Police Station : ............................
APPLICATION FOR ANTICIPATORY BAIL UNDER SECTION
438 of CODE OF CRIMINAL PROCEDURE
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
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 Honble Court.
PRAYER:
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.
Petitioner
Delhi Through
High Court in a non-bailable offence
In the matter of :
Ravi Agnihotri ..................................Petitioner
Versus
FIR No.........................................
............................................... Act
Police Station : ............................
APPLICATION FOR ANTICIPATORY BAIL UNDER SECTION
438 of CODE OF CRIMINAL PROCEDURE
To,
Honble The Chief Justice and his companion Justices of the Delhi High Court,
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.
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 non-
bailable 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 Honble Court.
9. That the earlier application for anticipatory bail was rejected by the
court of Shri................, Addl. Sessions Judge, Delhi on..........................
of justice.
PRAYER:
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 Honble Court deem fit and proper may
also be passed in favour of the petitioner.
Petitioner
New Delhi Through
Note :
court. Alternatively, the bail petition may be sworned. Kindly check the exact
High Court rules of the concerned High court.
7. Application under Section 439(2) Cr.P.C. for cancellation of bail
In the High Court of Bombay at Mumbai
In the matter of :
Prakash Lokhande ..................................Petitioner
Versus
Mohd. Iqbal & another ...................................Respondent
FIR No.........................................
............................................... Act
Police Station : ............................
APPLICATION UNDER SECTION 439(2) READ WITH SECTION
482 OF CODE OF CRIMINAL PROCEDURE FOR
CANCELLATION OF BAIL
To,
Honble The Chief Justice and his companion Justices of the Bombay
High Court,
1. That the petitioner filed a complaint against the accused respondent
no.1 for having committed the murder of petitioners 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 Honble Court for bail and
this Court was pleased to grant him bail with certain conditions.
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.
of justice.
PRAYER :
It is therefore humbly prayed that this Honble Court may graciously be
pleased to issue show cause upon the respondent no.1/accused and cancel
his bail.
also be passed.
Petitioner
Mumbai Through
Note:
1. The State is also to be made a party(respondent) to such petition.
8. Application for modification of conditions of bail
In the matter of :
Ramesh Jain ...................................Petitioner
Versus
FIR No.........................................
............................................... 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,
Court,
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
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.
of justice.
PRAYER:
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.........................................
also be passed in favour of the petitioner.
Petitioner
New Delhi Through
Note :
court. Alternatively, the bail petition may be sworned. Kindly check the
exact High Court rules of the concerned High court.
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 Honble 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 Honble 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 Honble 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.
PRAYER:
It is therefore respectfully prayed that the applicant may kindly be released
from the suretyship and all obligations arising thereunder.
Applicant
Delhi Through
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 suretys 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.
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
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
1. That in the above case, this Honble 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 Honble
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
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.
Applicant
Delhi Through
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.
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
THE ACCUSED FOR PERMISSION TO DEPOSIT MONEY
INSTEAD OF FURNISHING SURETY BOND
The humble petition of the abovenamed accused in the above case
1. That in the above case, this Honble 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 Honble court may kindly be
pleased to permit the accused to deposit Rs.15,000/- in lieu of the executing
the bail bond with sureties.
Applicant
Delhi Through
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.
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
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 Honble 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
complainants 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.
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 Honble Court.
PRAYER:
It is, therefore, respectfully prayed that the Honble court may kindly be
pleased to grant ad interim bail to the applicant pending the disposal of
the appeal.
Applicant
Alipore Through
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.
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. ........................................ .......................................Complainant
versus
Anupam Kapadia
S/o. ........................................
R/o. ........................................ ........................................Accused
FIR No.........................................
............................................... Act
Police Station : ............................
APPLICATION FOR RETURNING .................................... FOUND
ON THE PERSON OF THE APPLICANT/ACCUSED AT THE
TIME OF HIS ARREST
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 Honble Court was pleased to acquit the applicant.
PRAYER:
It is therefore respectfully prayed that the Honble 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.
Applicant
New Delhi Through
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.........................................
............................................... Act
Police Station : ............................
THE PETITIONER...................... S/o.......................r/o.............................
FOR RESTORATION/RETURN OF PROPERTY
The humble petition of the abovenamed petitioner
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 Honble Court convicted the accused.
The Honble court held in the said judgment that the articles mentioned
in Annexure A herein were stolen from the house of the petitioner.
PRAYER:
pleased to direct the police to return the articles mentioned in Annexure
A to the petitioner.
Petitioner
Delhi Through
Another situation :
THE ACCUSED FOR RESTORATION/RETURN OF PROPERTY
The humble petition of the accused in the above case
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 Honble
Court acquitted the applicant
3. That the accused was put to trial and ultimately, vide order and
judgment dated........................, this Honble Court convicted the
accused. The Honble court held in the said judgment that the articles
mentioned in Annexure A herein were stolen from the house of the
petitioner.
15. Application for payment of money involved in offence to the
innocent purchaser (section 453 Cr.P.C.)
MAGISTRATE, DELHI
In the matter of :
State versus Mihir Virani
S/o. .............................
R/o. ............................
FIR No.....................................
............................................... Act
Police Station : ............................
THE PETITIONER ................................ S/o ................................ r/o
................................ FOR RETURN OF AMOUNT PAID BY THE
PETITIONER TO THE ACCUSED
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 Honble Court vide its
judgment and order dated................................ and the said car has
been returned to its owner Shri ................................ vide order dated
................................ passed by this Honble Court.
PRAYER:
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.
Petitioner
Delhi Through
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.........................................
............................................... 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)
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 Honble 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 applicants
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.
Petitioner
Delhi Through
17. Application for restoration of possession of immovable property
(Section 456Cr.P.C.)
MAGISTRATE, DELHI
In the matter of :
State versus Ramesh Taurani
S/o. .............................
R/o. ............................
FIR No.........................................
..............................................Act
Police Station : ............................
APPLICATION UNDER SECTION 456 Cr.P.C. FOR RESTORING
POSSESSION OF PROPERTY BEARING NO...................................
TO THE APPLICANT/COMPLAINANT
1. That the applicant/complainant filed a complaint against the accused
for forcible dispossession of applicant from applicants property
bearing no...........................by the accused on....................................
2. That vide order and judgment dated ........................... passed by this
Honble 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:
pleased to pass order for restoration of possession of the property
no.......... to the applicant, in the interests of justice.
Applicant
Delhi Through
18. Application by the accused for personal exemption (sec.205)
IN THE COURT OF SHRI ............., METROPOLITAN
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
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 applicants 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 Honble Court.
PRAYER:
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.
Applicant
New Delhi Through
19. Application to Magistrate Court for withdrawal of criminal
complaint ( Section 257 Cr.P.C.)
IN THE COURT OF SHRI..........................................., METROPOLITAN
Complaint Case No.of 2005
In the matter of :
Ravi Kapoor
S/o. ........................................
R/o. ........................................ ....................................Complainant
versus
Sanjay Kapoor
S/o. ........................................
R/o. ........................................ ........................................Accused
THE COMPLAINANT FOR WITHDRAWAL OF THE COMPLAINT
The humble petition of the complainant in the above case
1. That the applicant/complainant had filed the above complaint against
the accused and the same is pending adjudication before this Honble
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 Honble Court may kindly be pleased
to allow the applicant to withdraw the complaint and acquit the accused.
Applicant
New Delhi Through
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 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,
Court,
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 complainants 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
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 ........................................
of justice.
PRAYER:
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.
Petitioner
New Delhi Through
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.........................................
............................................... 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
1. That the applicant/complainant filed a complaint for which a case
against the accused was registered for theft of certain articles from
applicants house and this Honble 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.
PRAYER:
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.
Applicant
Delhi Through
22. Application by an accused at the time of surrendering in the Court
IN THE COURT OF SHRI .................., METROPOLITAN
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
1. That a non-bailable warrant was issued by this Honble 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 applicants air ticket of said date and copy of medical
paper of his father are annexd herewith.
3. That the complainant maliciously represented this Honble Court
that the applicant was deliberately avoiding the service of summons,
which led the Honble 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.
PRAYER:
pleased to recall/cancel the arrest warrant and release the applicant on
regular bail.
Applicant
New Delhi Through
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.........................................
............................................... Act
Police Station : ............................
APPLICATION UNDER SECTION 360 FOR RELEASE OF THE
APPLICANT ON PROBATION
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
school at state level. The applicant is a victim of his poverty.
PRAYER:
It is therefore respectfully prayed that having regard to the applicants
character, age, antecedents and the circumstances in which the offence
was committed, the Honble 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.
Applicant
Delhi Through
APPENDIX 1 : JUDGES OF THE SUPREME COURT
(in the decreasing order of their seniority)
[ As on 15.02.2005]
1. Honble Mr.Justice R.C.Lahoti (Chief Justice of India) (01.11.2005)
2. Honble Mr.Justice N.Santosh Hegde (16.06.2005)
3. Honble Mr.Justice Y.K.Sabharwal (14.01.2007)
4. Honble Mrs.Justice Ruma Pal (03.06.2006)
5. Honble Mr.Justice S.N.Varaiva (08.11.2005)
6. Honble Mr.Justice Shivraj V.Patil (12.01.2005)
7. Honble Mr.Justice K.G.Balakrishnan (12.05.2010)
8. Honble Mr.Justice B.N.Aggarwal (15.10.2009)
9. Honble Mr.Justice P.Venkatarama Reddy (10.08.2005)
10. Honble Mr.Justice Ashok Bhan (02.10.2008)
11. Honble Mr.Justice Arijit Pasayat (10.05.2009)
12. Honble Mr.Justice Bisheshwar Prasad Singh (07.07.2007)
13. HonbleMr.Justice D.M.Dharmadhikari (14.08.2005)
14. Honble Mr.Justice H.K.Sema (01.06.2008)
15. Honble Mr.Justice S.B.Sinha (08.08.2009)
16. Honble Mr.Justice Arun Kumar (12.04.2006)
17. Honble Mr.Justice B.N. Srikrishna (21.05.2006)
18. Honble Mr.Justice A.R.Lakshmanan (22.03.2007)
19. Honble Mr.Justice G.P.Mathur (19.01.2008)
20. Honble Mr. Justice S.H.Kapadia (29.09.2012)
21. Honble Mr.Justice A.K.Mathur (07.08.2008)
22. Honble Mr.Justice C.K.Thakker (10.11.2008)
23. Honble Mr. Justice P.P.Neolekar (29.06.2008)
24. Honble Mr.Justice Tarun Chatterjee (14.01.2010)
25. Honble Mr.Justice P. K. Balasubramanyan (28.08.2007)
Note : The dates in bracket denotes the date of retirement.
APPENDIX 2 : JUDGES OF THE DELHI HIGH COURT
[ As on 15.02.2005]
1. Honble Mr.Justice B.C.Patel ( Chief Justice)
2. Honble Mr.Justice B.A.Khan
3. Honble Mr.Justice D.K.Jain
4. Honble Mr.Justice Vijender Jain
5. Honble Mr.Justice Dr.M.K.Sharma
6. Honble Mr.Justice Manmohan Sarin
7. Honble Mr.Justice C.K.Mahajan
8. Honble Mr.Justice Mukul Mudgal
9. Honble Mr.Justice Madan Lokur
10. Honble Mr.Justice S.K.Aggarwal
11. Honble Mr.Justice R.S.Sodhi
12. Honble Mr.Justice Vikramjeet Sen
13. Honble Mr.Justice A.K.Sikri
14. Honble Mr.Justice O.P.Dwivedi
15. Honble Mr.Justice B.N.Chaturvedi
16. Honble Mr.Justice R.C.Chopra
17. Honble Mr.Justice Sanjay Kishan Kaul
18. Honble Mr.Justice R.C.Jain
19. Honble Mr.Justice H.R.Malhotra
20. Honble Mr.Justice Badar Durez Ahmed
21. Honble Mr.Justice Pradeep Nandrajog
22. Honble Mr.Justice J.P. Singh
23. Honble Ms.Justice Manju Goel
24. Honble Mr.Justice T.S. Thakur
25. Honble Mr.Justice Anil Kumar
26. Honble Mr.Justice S. Ravindra Bhatt
27. Honble Ms.Justice Geeta Mittal
28. Honble Mr.Justice Swatantra Kumar
APPENDIX 3 : LIST OF CHIEF JUSTICES OF INDIA
1. Harilal J.Kania 26.1.1950 6.11.1951
2. M.Patanjali 7.11.1951 3.1.1954
3. Mehar Chand Mahajan 4.1.1954 22.12.1954
4. B.K.Mukherjee 23.12.1954 30.1.1956
5. S.R.Dass 1.2.1956 30.9.1959
6. B.P.Sinha 1.10.1959 31.1.1964
7. P.B.Gajendragadkar 1.2.1964 15.3.1966
8. A.K.Sarkar 16.3.1966 29.6.1966
9. K.Subbarao 30.6.1966 11.4.1967
10. K.N.Wanchoo 12.4.1967 24.2.1968
11. M.Hidayatullah 25.2.1968 16.12.1970
12. J.C.Shah 17.12.1970 21.1.1971
13. S.M.Sikri 22.1.1971 25.4.1973
14. A.N.Ray 26.4.1973 27.1.1977
15. M.H.Beig 28.1.1977 21.2.1978
16. Y.V.Chandrachud 22.2.1978 11.7.1985
17. P.N.Bhagwati 12.7.1985 21.12.1986
18. R.S.Pathak 21.12.1986 18.6.1989
19. E.S.Venkataramaiah 19.6.1989 18.12.1989
20. S.S.Mukherjee 18.12.1989 25.9.1990
21. Rang Nath Mishra 26.9.1990 24.11.1991
22. K.N.Singh 25.11.1991 12.12.1991
23. M.H.Kania 13.12.1991 17.11.1992
24. Lalit Mohan Sharma 18.11.1992 11.2.1993
25. Venkatchalliah 12.2.1993 24.10.1994
26. Aziz Mushabber Ahmadi 25.10.1994 24.3.1997
27. J.S.Verma 25.3.1997 17.1.1998
28. M.M.Punchhi 1.1.1998 9.10.1998
29. A.S.Anand 10.10.1998 31.10.2001
30. S.P.Bharucha 1.11.2001 5.5.2002
31. B.N.Kirpal 6.5.2002 7.11.2002
32. G.B.Pattanaik 8.11.2002 18.12.2002
33. V.N.Khare 19.12.2002 2.5.2004
34. Rajendra Babu 3.5.2004 31.5.2004
35. R. C. Lahoti 1.6.2004 1.11.2005
APPENDIX 4 : IMPORTANT ADDRESSES AND TEL.NOS.
President of India, 23015321, 23014030,
Presidents Secretariat, 23381873/Extn.4211
New Delhi Fax : 23017290
(His Secretary)
Prime Minister of India, 23012312, 23018939,
Safdarjung Road, 23017660
New Delhi Fax : 23016857
Chief Justice of India, Tel : 23387165,
Supreme Court, 23388922-23-24
Near Tilak Marg, New Delhi 23388942-43-45
Law Minister, Govt. of India 23387557, 23385235
Shastri Bhawan, 23794651
Dr. Rajender Prasad Road, Fax : 23387259
New Delhi
National Human Rights Commission Cell : 98102-98900
Sardar Patel Bhawan, Sansad Marg, Tel : 23347065,
New Delhi 2301891
Law Commission of India, 23384475
A Wing, Shastri Bhawan,
Dr. Rajender Prasad Road, New Delhi
Bar Council of India 23231647, 23351647-48,
21, Rouse Avenue Institutional area, 23331648
Near Bul Bhawan, New Delhi-110002
Bar Council of Delhi 23387701, 23385702
F-1, Chamber Block,
Lawyers Chambers, Delhi High Court,
New Delhi
Supreme Court Bar Association, 23385903, 23070803
Supreme court, New Delhi 23385551-52
Press Council of India 23387701,23381681
Faridkot House, Copernicus Marg,
New Delhi
Election Commission of India 23717391
Nirvachan Sadan 23713412
Ashoka Road, New Delhi
Central Pollution Control Board 22221955, 22217078
Parivesh Bhawan, East Arjun Nagar, Fax
Delhi - 110032
National Consumer Disputes 23712456,23327666
Redressal Commission 23016613
5th Floor, Old Indian Oil Bhawan,
Janpath, New Delhi - 110001
Monoplies & Restrictive Trade Practices 23388531,23388920
Commission (MRTPC),
Kota House Annexe, Shah Jahan Road,
New Delhi
National commission for Women, 23326153
CCW Building,
4, Din Dayal Upadhyay Marg,
New Delhi
Board for Industrial & Financial 23314964, 23315890
Reconstration (BIFR
Company Law Board 23382265
A Wing, Shastri Bhawan,
New Delhi
Central Administrative Tribunal 23387810
Copernicus Marg, New Delhi
Central Forensic Science Laboratory,
Block-4, CGO Complex, Lodhi Road,
New Delhi - 110003
Central Bureau of Investigation, 24360808, 24361644
CGO Complex, Lodhi Road, 24360422
New Delhi - 110003 Fax : 24364986
Ministry of Home Affairs 23092011, 23092161
North Block, Central Secretariat, Fax:309375, 23092763
New Delhi - 110001
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 24694246
11th Floor, Lok Nayak Bhawan,
Khan Market, New Delhi
The Chief Justice, Tel : 23387949
Delhi High Court, Fax : 23782731
Sher Shah Road, Res.: 23387989,
New Delhi-110003 Fax:23073485
Allahabad High Court, 0532-624811-624818,
Allahabad 211001 622605,623841/2708
Chief Justice 0532-622542
Registrar General 0532-622061, fax :622152
Lucknow Bench 0522-227395/6225/8341
Fax :272328, 225967
Andhra Pradesh High Court, 040-4525726/27/223349
Hyderabad 500266 4525017 Fax:4575789
Chief Justice 4577732 Fax: 3355121
Registrar General 4577844 Fax: 4417743
Email : aphc@apnic.in
Bombay High Court 022-22673468, 22673090,
Mumbai 400032 22673568/69, 22670769,
Email : hcbom@bom.nic.in 22672001, 22677066,
Fax : 22624358
Calcutta High Court, 033-22483787, 22487495,
Calcutta 700001 Fax : 22487835
Chhatisgarh High Court, 07752-66942, 23059/20
Bilaspur Fax : 26030
Guwahati High Court, 0361-540318, 540125,
Guwahati 781001 6000008, 637179
Fax : 540124/153, 604122
Gujarat High Court, 079-7494601 to 7494615
Ahmedabad- 380060 Fax : 7494621, 7494619/29
Himachal Pradesh High Court, 0177-253461, 258603/06
Shimla 171001 252401, 258456
Fax:202421,208338, 258616
Jammu & Kashmir High Court, 0191-533233, 532161/579
Jammu 180001 Fax : 532545, 537768
Jharkhand High Court, 0651-500307-09, 500312/13
Ranchi Fax : 501114, 253115
Karnataka High Court, 2861898, 2863356,
Bangalore 560001 Fax : 2868607, 2863841
Kerala High Court, 0484-393901-06, 394588-90
Kochi 682031 Fax : 391720, 352504
Madras High Court, 044-25340410-16,
Chennai 25359073-77, 25340418,25340420,
25350411 Fax : 25340942
Madhya Pradesh High Court, 0761-620380, 622674,
Jabalpur 482002 621135, 323653 Fax : 620659
Orissa High Court, 0671-607808, 607258
Cuttack 753002 Fax : 608507, 608855
Punjab & Haryana High Court, 0172-740071-78, 740272,
Chandigarh 160001 742654, 742713, 742732
Fax: 740579, 740055, 743033
Rajasthan High Court, 0291-545516, 545116,
Jodhpur 342001 544545, 544357, 541337-39
Fax : 544147
Sikkim High Court, 03592-23379, 22535, 26583
Gangtok 737101 Fax : 23529, 23485
Uttranchal High Court 05942-35388, 31691
Nainital Fax : 31692, 37721, 31692
Commissioner of Police, E-mail:delpol@del2.vsnl.net.in
Police Headquarters, Tel No.(central) : 100
I.T.O., New Delhi 23319721
Public Grievance Commission, 23359900
Govt. of NCT of Delhi Fax : 23359903
M Block, 2nd Floor, Vikas Bhawan,
I.P.Estate, New Delhi - 110002
(for complaints against authorities
including Delhi Police)
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
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, 95120-2511064-76
Essel Studio, FC-19, Sector 16A, Fax : 95120-2515381
Noida - 201301
Sahara Samay, 95-120-2444756
Sahara India complex,
C-2, C-3, C-4, Sector 11, Noida - 201301
Aaj Tak 23684848
8th Floor, Videocon Tower, 23684878
E-1, Jhandewalan Extn.,
New Delhi - 110055
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 Indian Express 23311111,23319812,2551052(R)
Prafulla Das The Hindu 3723808,23715426,23712153
Abhigyan Hans The Statesman 23315911,23316129,22250930
Amresh Kumar Rashtriya Sahara 23356336, 23356337
Vijay Singhal Dainik Jagran 23715792,23714588,27181023
APPENDIX 5 : IMPORTANT WEBSITES
http://cbi.nic.in Central Bureau of Investigation (CBI)
http://cvc.nic.in Central Vigilance Commission
http://mha.nic.in Ministry of Home Affairs
www.nhrc.nic.in National Human Rights Commission
www.nic.in/lawmin Ministry of Law, Justice &
Comp. Affairs
www.ncrbindia.org National Crime Records Bureau
www.nic.in/ceib/ceib.htm Central Economic Intelligence Bureau
www.nic.in/ceib/ed.htm Directorate of Enforcement
www.nic.in/ceib/dri.htm Dir.Genl.of Revenue Intelligence ( DRI)
www.nic.in/ceib/dgae.htm Directorate General of Anti-Evasion
www.nic.in/ceib/dgit.htm Dir. Gen. of Income Tax ( Investigation)
www.nic.in/ceib/ncb.htm Narcotics Control Bureau
http://customs.gov.in/ Central Board of Excise & Customs
http://rbi.org.in Reserve Bank of India
www.incometaxdelhi.nic.in Income Tax Deptt.
www.eci.gov.in Election Commission of India
www.upsc.gov.in Union Public Service Commission
www.pmindia.nic.in Prime Minister of India
www.meadev.gov.in Ministry of External Affairs
www.passport.nic.in Regional Passport Office
www.samvidhan.com Constitution of India ( in Hindi)
www.indlaw.com Bare Acts etc.
www.indiainfoline.com/lega Legal Portal
www.zeenet.com/legal Legal Portal
www.vakilbabu.com Legal Portal
www.kaanoonindia.com Legal Portal
www.lawsinindia.com Legal Portal
www.waqalat.com Legal Portal
www.vakilno1.com Legal Portal
www.lawguru.com Legal Portal
www.mtnl.net.in M.T.N.L.
www.delhipolice.nic.in Delhi Police
www.delhihighcourt.nic.in Delhi High Court
causelists.nic.in Cause lists of different courts in India
http://delhigovt.nic.in Delhi Government
www.delhividyut.com Delhi Vidyut Board
www.mcdonline.com Municipal Corporation of Delhi
www.ddadelhi.com Delhi Development Authority
www.interpol.int Interpol
http://andaman.nic.in Andaman & Nicobar Islands
www.cyberjournalist.org.in Andhra Pradesh Govt.
www.nic.in/persmin Ministry of Personnel, Public
Grievances & Pension
http://usembassy.state.gov/posts/in1/ US Embassy in India
http://arunpol.nic.in Arunachal Pradesh police
http://assamgovt.nic.in Assam Govt.
http://bihar.nic.in Bihar Govt.
http://chhattisgarh.nic.in Chhattisgarh Govt.
http://chandigarhpolice.nic.in Chandigarh police
http://delhigovt.nic.in Delhi Govt.
http://delhipolice.nic.in Delhi police
http://goagovt.nic.in Goa Govt.
www.goapolice.org Goa police
www.gujaratindia.com Gujarat Govt.
http://haryana.nic.in Haryana Govt.
http://haryanapolice.nic.in Haryana Police
http://himachal.nic.in Himachal Govt.
http://hppolice.nic.in Himachal police
http://jammukashmir.nic.in Jammu & Kashmir Govt.
http://jharkhand.nic.in Jharkhand Govt.
http://keralapolice.org Kerala police
http://lakshadweep.nic.in Lakshdweep Administration
www.mp.nic.in Madhya Pradesh Govt.
www.madhyapradeshpolice.com Madhya Pradesh police
http://manipur.nic.in Manipur Govt.
http://meghalaya.nic.in Meghalaya Govt.
http://mizoram.gov.in Mizoram Govt.
www.maharashtra.gov.in Maharashtra Govt.
www.mumbaipolice.com Mumbai police
http://nagaland.nic.in Nagaland Govt.
http://orissagov.nic.in Orissa Govt.
www.pon.nic.in Pondicherry Govt.
http://punjabgovt.nic.in Punjab Govt.
www.rajgovt.org Rajasthan Govt.
www.rajpolice.nic.in Rajasthan police
http://sikkim.nic.in Sikkim Govt.
www.tn.gov.in Tamil Nadu Govt.
http://tripura.nic.in Tripura Govt.
www.upindia.org Uttar Pradesh Govt.
http://uppolice.up.nic.in Uttar Pradesh police
www.uttaranchalpolice.com Uttaranchal police
www.wbgov.com West Bengal Govt.
www.eci.gov.in Election Commission of India
www.parliamentofindia.nic.in Parliament of India
www.usdoj.gov U.S. Dept. of Justice
http://tiharprisons.nic.in Tihar Jail
http://supremecourtofindia.nic.in Supreme Court of India
http://presidentofindia.nic.in President of India
APPENDIX 6 : IMPORTANT PHONE AND FAX NUMBERS OF
DELHI POLICE
S.No. Name and Designation Phone (Office) FAX No.
1. Commissioner of Police 23490201, 23319661 23722052
23490010/ Extn.201
2. Special CP/ (Administration) 23490202, 23490010/ 23490333
/Extn.202
3. Special CP/ (Intelligence) 23490203, 23490010/ 23711161
/ Extn.203
4. Special CP/ 23490204, 23490010/ 23490489
(Security & Operations) / 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 23490221, 23490010/ 23722236
/ Extn.221
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 23490240, 23490010/
Prevention / Extn.240
18. Addl.DCP/Railways 23222114
19. DCP/Traffic(Southern Range) 26190850
20. DCP/Traffic (Northern Range) 23978945
21. DCP/Traffic (New Delhi Range) 26190849
22. DCP/Traffic (VVIP Route) 23011182
23. DCP/New Delhi Distt. 23747777, 23347184
24. Addl. DCP/New Delhi (I) 23344452
25. Addl. DCP/New Delhi(II) & DSF 23361919
26. DCP/East Distt. 2204568, 22215577
27. Addl. DCP/East(I) 22448478
28. Addl. DCP/East(II) 22209745
29. DCP/North-East Distt. 22825655, 22826937
30. Addl. DCP/North East Distt. (I) 22825835
31. Addl. DCP/North East District (2)22825637
32 DCP/North Distt. 23937012, 23931770
33 Addl. DCP/North (II) 22923655
34. Addl. DCP/North (I) 22920208
35. DCP/Central Distt. 23261377, 23261330
36. Addl.DCP/Central Distt (I) 23262029
37. Addl. DCP/Central (II) 23277638
38. DCP/North-West Distt. 27229835 27462222
39. Addl. DCP/North-West (1) 27432141
40. Addl. DCP/North-West(2) 27454825
41. DCP/South Distt. 26857726 226512986
42. Addl. DCP/South Distt (1) 26852095
43. Addl. DCP/South District(I) 26865965
44. DCP/South West Distt. 26152626 26152782
45. Addl. DCP/South-West district (1) 26152864
46. Addl. DCP/South-west district(2) 26151617
47. 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 ]
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, 011-4360334/2415
CGO Complex, New Delhi-110003 011-3389056
2. Anti Corruption Branch-Chandigarh
(Co-ordination) 0172-651737
Sector 30-A, Chandigarh-160020 0172-657736,657102
3. Anti Corruption Jammu
24 New RehariGopal Bhawan Jammu &
Guest House, No.6, Near MLA Hostel, 0191-455514(Jammu)
Srinagar-190001, J&K 0194-452732(Srinagar)
4. Shimla Unit
31-32, Railway Board Building, 0177-254110
Shimla 170003 (H.P)
5. Anti Corruption Branch-Lucknow
7, Nawal Kishore Road, 0522-227378
Hazrat Ganj, Lucknow (U.P) 226001. 0522-222985
6. Anti Corruption Branch Dehradun
5, Teg Bahadur Road 0135-676727,676729
Dehradun-248001 0135-676726(ISDN)
7. Anti Corruption Branch-Bhopal
54, Baishali Nagar, Katra Sultanabad, 0755-575727
Bhopal(M.P)-462016 0755-556823,571257
8. Anti Corruption Branch-Jabalpur
1794/1, New Adarsh Colony, 0761-412102,323201
M R-4, Jabalpur,(M.P) 482002. 0761-414030(ISDN)
EAST-ZONE
1. Anti Corruption Branch-Calcutta 033-2807238
2nd MSO Building, Nizam Place, 033-241725,2470443
34/4,AJC Bose Road, 2409121,2409235,
Calcutta-700020 2808025(ISDN),
2. Silliguri Unit,
26,Belai Das Chatterjee Road, 0353-432685
Hakkimpara, Silliguri-734401
3. Gangtok Unit
Vigilance Office Building 03952-24862
Kazi Road, Gangtok (Sikkim)
4. Portblair Unit,
C/o Dy.SP. (Vigilance) A&N Admn., 03192-30362 (FAX)
Port Blair-744101
5. Anti Corruption Branch -Bhubaneshwar
Unit-VIII,Distt. Khurd, 0674-561567
Bhubaneshwar-751012 0674-566135(ISDN)
6. Rourkela Unit,
Office of the DSP CBI, 0661-540375
C-14, Sector-V, Rourkela (Orissa)-769002
7. Anti Corruption Branch-Guwahati
R.G. Baruah Road, Sunder Pur, 0361-551531
PO-Dispur, Guwahati-781005
8. Shillong Unit
Oakland, Shillong, (Meghalaya) 0364-223142
9. Itanagar Unit,
Police Complex, Ganga, Distt. Papumpura, 0360-212249
Arunachal Pradesh-791113
10. Silchar Unit, 03842-67630,
Panchayat Road, Near G.C. Collage 66622(Computer)
Distt. Chacher, Assam-788004 03842-67199 (Fax)
11. Agartala Unit,
Palace Compound, North Gate 0381-225474
Agartala, Tripura-799001
12. Imphal Unit
Qtr. No. 2 Type-IV, Lamhelapath, 0358-310673
Imphal, Manipur-795001
13. Aizwal Unit,
P.O. No. 38, Luangmula Complex. 0389-341459
Aizwal-796001
14. Anti Corruption Branch-Ranchi 0651-301299, 312175
2 Booty Road, Ranchi-834009 0651-312999
15. Anti corruption Branch-Dhanbad
VII/2, Karmik Bhawan, 0326-204455
PO ISF Campur, Dhanbad-826004
16. Anti Corruption Branch-Patna
Dr. S.K. Singh Path, 0612-235599, 235588
Jawahar lal Nehru Road, Patna-800001 0612-238574
WEST ZONE
1. Anti Corruption Branch Mumbai 022-2021490, 027941
11-A, Tanna House, N.L.P. Marg 022-2844348, 845134
Colaba, Mumbai-400039 022-2858200(ISDN)
2. Anti Corruption Branch-Goa
1st floor, Surekha Building 0832-432932,
Near Doordarshan Kendra, Altinho, 0832-421109(ISDN)
Panaji-403001,
3. Anti Corruption Branch-Nagapur
3rd Floor, Block No. C, CGO Complex, 0712-510382, 510150
Seminari Hills, Nagpur-440006 0712-5101589 (ISDN)
4. Anti Corruption Branch-Gandhinagar
Sector-10A, 02712-33188, 34301
Gandhinagar-32010(Gujarat) 079-38402(ISDN)
5. Anti Corruption Branch-Jaipur
1st Tilak Marg, CScheme, 0141-381476, 381277
Jaipur-302005 0141-202298
6. Anti Corruption Branch Jodhpur
Polo Ground No.1, 0291-644860,
Near Ship House Campus. 0141-383702
Jodhpur-342006 0291-547645
SOUTH ZONE
1. Anti Corruption Branch-Chennai 044-8273186,8270992
3rd Floor, Shastri Bhawan, 8276509, 8211138
26 Haddows Road, Chennai-600006 044-8238831,
(H. Court) 044-5341808
(CFSL) 044-8214340
(ISDN) 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
4. Anti Corruption Branch Hyderabad 040-4732762,4732763
3rd Floor, Block No.A, Sultan Bazar, 040-4732764,
Kendriya Sadan, Hyderabad-500195 040-4734667 (ISDN)
5. Anti Corruption Branch Visakhapatnam
1-83-21/4 Sector-8, M.V.P. Colony, 0891-530011, 534422
Vishakhapatnam-530017 0891- 534433
6. Anti Corruption Branch - Bangalore
36 Bellary Road, Gangana Halli, 080-3331026,
Bangalore-360032 080-2290909 (Court)
AC(HQ) ZONE
1. Anti Corruption-I,
7th Floor, Block No.3, 011 4360334
CGO Complex, New Delhi-110003 (Extension 2499)
2. Anti Corruption-II
8th Floor, Lok Nayak Bhawan, 011-4624884
Khan Market, New Delhi-110003 (Extension 113)
3. Anti Corruption-III
3rd Floor, Block No.4, 011-4360334,4363488
CGO Complex, New Delhi-110003 (Extension 2209)
SPECIAL CRIMES DIVISION
1. Special Investigation Cell-I
C-1 Hutments, Dalhousie Road, 011-3015229, 3011334
New Delhi-110011 011-3011082, 3015218
2. Special Investigation Cell - II
2nd Floor, Block No.3, 011-4360334/2402
CGO Complex, New Delhi - 110003 011-4362002,4360150
3. Special Investigation Unit - XV
Sector - 30A, Chandigarh-160020. 0172-651694
4. Special Investigation Unit - XVI
J&K Cell Jammu,
62/3, Trikuta Nagar, Jammu-180012 0191-463537
SC ZONE
1. Special Investigation Cell - IV 011-6888703(OS)
7th Floor, Yashwant Place, 011-4670940 (DO)
Chanakyapuri, New Delhi-110021 011-6881118 (Fax)
2. Special Investigation Cell - IV
447, Sector - 21, Indra Nagar, 0522-342214,
Lucknow (U.P.)-226004 0522-357606
3. Special Crime Branch
2nd Floor, Block No.4, 011-4360334/2500
CGO Complex, New Delhi-110003
4. Special Crime Branch - Calcutta
2nd Floor , A-Wing, 033-3217249, 3596119
D F Block, MSO Building, 033 - 3340981
Salt Lake, Calcutta-700064
5. Special Crime Branch Mumbai
A-2 Wing, 8th Floor, CGO Complex, 022-7576804, 7576820
Belapur, CBD, Navi Mumbai-400614
6. Special Crime Branch Chennai
3rd Floor, A Wing, Rajaji Bhawan, 044-4917144,
Besant Nagar, Chennai-600090 4919280
Special Task Force
1. Special Task Force - Delhi
6th Floor, Yashwant Place, 011-6117932, 6117933
Chanakyapuri, New Delhi-110021 011-6882895, 6117934
2. Special Task Force - Mumbai
C-7, Ministers Bangalow, 022-2831528 (DO)
Madam Cama Road, Nariman Point, 022-3098175 (TADA Court)
Mumbai - 400006 022-2820736 (ISDN)
Multi-Disciplinary Monitoring Agency (MDMA)
1. MDMA Delhi
8/10, Jamnagar House Hutments, 011-3070222, 3071148
New Delhi
2. MDMA Chennai
Malligai, 30 Greenways Road, 044 - 4937473
Chennai-600028
Economic Offences Division
1. Special Investigation Group
7th floor, Block No.3, CGO Complex, 011-4362643
New Delhi-110003
2. Special Investigation Cell - III
6th floor, Block No.3, 011-4360334 (Extn.-2467)
3. Economic Offence Wing
8th Floor, Loknayak Bhawan 011-4624884,
New Delhi-110003 011-4635367
4. Economic Offence Wing - Chennai
3rd Floor, A Wing, Rajaji Bhawan, 044-4901909,
IIIrd Avenue,Besant Nagar, Chennai 044-4462233
5. Economic Offence Wing - Mumbai
3rd Floor, Kitab Mahal, 192,
Dr. Dadabhai Naroji Road, 022 - 2073102
Fort, Mumbai-400001
6. Economic Offence Wing - Calcutta
Ground Floor, DF Block F Wing,
Salt lake, Calcutta-700064 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
Policy & Co-ordination Division
1. Policy Division
Room No.27, Ground Floor,
North Block, New Delhi - 110001 011-3011985
2. Co-ordination Division
8th Floor, Lok Nayak Bhawan, 011 - 4624884/132,
Khan Market, New Delhi-110003 4392170, 4361683
3. Interpol Wing,
Ground Floor, Block No.4, 011-4364070,
CGO Complex, New Delhi-110003 4392170, 4361683
4. Computer Division
6th Floor,Block No.4, 011-4364986,
Special Units
1. Special Unit Delhi 011-3386135,3386138
10/6, Jamnagar House, 011 - 3382605
Akbar Road, New Delhi-110011 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, 033 - 4787447
23/44K, Diamond Harbor road, 033 - 4787319
Calcutta-700053 033 - 4787316
4. Special Unit Chennai,
3rd Floor, A-Wing Block No-4, 044-4916257, 4918975
Rajaji Bhawan, Besant Nagar,
Chennai - 600090 E-mail:spcbi@giasmd.01.vsnl.net.in
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 Phone: 3012923, 4392424
5th Floor, Block No.3, CGO Complex
Lodhi Road, New Delhi - 3
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, or-
Secondly - 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, or-
Thirdly - 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.
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 ill-
will 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
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
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
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.
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
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 womans or childrens 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 :
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 - Womens or childrens institution means an institution,
whether called an orphanage or a home for neglected women or children
or a widows 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 persons consent,
moves that property in order to such taking, is said to commit theft.
Section 379. Punishment for theft.- Whoever commits theft shall be
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.
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
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
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
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
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
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.
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. ]
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 dIvoire
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
ADMINISTRA
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
Tanzania
Thailand
Togo
Tonga
Trinidad & Tobago
Tunisia
Turkey
Uganda
Ukraine
United Arab Emirates
United Kingdom
United States
Uruguay
Uzbekistan
Venezuela
Vietnam
Yemen
Zaire
Zambia
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
NorthernMariana Islands
Guam
Puerto Rico
U.S. Virgin Islands
Portugal Sub Bureau
Macao
China Sub Bureau
Hong Kong
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

CRPC Procedure

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