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your Author
Shri Sunil Goel was born in New Delhi in the year 1971 in a
traditional business family having interests in Iron & Steel, Real
Estate, banquet, etc. He did his graduation in science from
Kirorimal College, one of the prestigious colleges of the Delhi
University. Mr.Goel took his degree in law from Delhi University
and his Masters of Law from the M.D.University, Rohtak. He is
enrolled as an advocate with the State Bar Council of Delhi and
is member of a number of professional bodies like Delhi High
Court Bar Association, Delhi Bar Association, Indian Council of
Arbitration, etc.
Within a short span of time, Mr. Sunil Goel has earned accolades
and recognition as a lawyer. He has been representing clients
like Govt. of India, Municipal Corporation of Delhi, National
Thermal Power Corporation, Essar group, etc. Mr. Sunil Goel is
an Arbitrator on the panel of Registrar Co-operative Societies,
Delhi and Indian Council of Arbitration. He is also Guest lecturer,
Directorate of Training, Govt. of NCT of Delhi, giving lectures on
law subjects to UTCS and IAS probationers. He has also delivered
lectures to members of North India Regional Council of Institute
of Chartered Accountants of India and senior officials of Airports
Authority of India. He was appointed as Amicus Curie in several
matters before the National Consumer Disputes Resolution
Commission. He is one of the professionals who successfully
completed e-learning Certificate Course on Arbitration and
Dispute Resolution conducted by United Nations Institute for
Training & Research (UNITAR), Geneva, 2004. His articles on
subjects concerning every man appear in papers and periodicals.
Criminal law has been one of the favourite subjects of Mr. Sunil
Goel. Infact, the subjects of study in his LL.M. degree were various
aspects of criminal law. His articles on cheque bouncing are very
popular with the masses.
ii Courts, Police, Authorities & Common Man
Dated:03.01.2004
FOREWARD
Iwentthroughthemanuscriptofthebooktitled“Courts,Police,Authorities
and Common Man” by Shri Sunil Goel with great interest and I am glad to write a
forward to the same. At first look, I thought this must be yet another work on the
subjectbutwhenIwentthroughthebook,Ifoundthatbothindesignandexpression,
this book marks an advance on anything written so far on the subject. The subject
has been treated in depth and all aspects are adequately covered in simple language
easyofcomprehensionbythelayman.
The author has put in considerable amount of work in the preparation of
thisbook.Hehasreferredtotherelevantauthoritiesandexplainedtheminalanguage
which an ordinary reader can understand. The book contains a thorough analysis of
the subject and bears testimony to the thorough grasp of the subject by the author
and the hard work and industry brought to bear in the preparation of this book.
Iamsurethisbookwillproveusefultolawyers,policeofficialsandlayman
alike. I congratulate the author in preparing this excellent work and I have great
pleasure in recommending it to all concerned with the administration of law and
order.
I wish Shri Sunil Goel all the best for the success of this book.
JusticeP.N.Bhagwati
former Chief Justice of India
Courts, Police, Authorities & Common Man iii
Ramphal Bansal,
Sr.Advocate & Vice President, D.A.V.Managing Committee
Courts, Police, Authorities & Common Man v
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
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
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. 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
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
Rs. 395.
US $ 17 (for Overseas)
_________________________________________________________________________________
No part of this book may be reproduced in any manner whatsoever or translated
in any other language without the permission in writing of the publishers. Although
every care has been taken in the publication of this book, the authors, the publishers
and printers shall not be responsible for any loss and damages caused to any
person on account of errors or omissions which might have crept in. The publishers
shall be obliged if mistakes are brought to their notice for carrying out corrections
in the next edition. All disputes shall be subject to Delhi jurisdiction only.
It is quite unfortunate that most of us are not aware of the various laws
which affect us in our day to day life and our rights which we can enforce
in case of breach thereof. It is only because of our ignorance of our rights
and the safeguards provided in law that we are taken for a ride by various
babus and functionaries of the government. We have a sort of fear
psychosis in our mind when we are exposed to a ‘difficult’ situation - a
simple situation but made difficult by our perception and style of thinking.
Many of us nurse a fear from our early days and get panicked on seeing a
policeman even though we are innocent. Such a feeling of scare and worry
is genesis of the environment we have been brought up in. We feel afraid
of going to police station or even approaching a police officer even in
times of grave need and even when the situation so demands lest they
implicate us in some false case or beat up us and put us behind bars.
To live and exist in society, we have to interact with various government
departments and agencies. But our mindset is such that we rely on getting
our work done through ‘touts’ to avoid ‘problems’ - when there are none.
We do not gather courage to directly contact the officer, apprise him of
our facts and problems and get a just and speedy recourse to our problem.
On the other hand, we succumb to the dictates of middlemen, waste away
our hard earned money and still the work is far from complete. All this
we do, though unwillingly, only because we are not aware of our rights.
It is for the purpose of better governance and regulating the conduct of
the public and various state functionaries that various laws are made by
the Parliament, though after going through a well laid procedure. Once a
law is made, it can not be changed except by way of an amendment. All
the officers of the government, who appear to us as demi-gods at time,
derive their power from the law under which their office is created or
governed and they are bound to act strictly in accordance with the
parameters laid down within the particular law/Act. If they exceed their
powers or deviate from the procedure laid down, they can be taken to task
by anyone of us by way of various safeguards under the law.
All these laws derive their power and authority from the Constitution
which is the most important and powerful document of post-independence
2 Courts, Police, Authorities & Common Man
India. The whole country, its people, government, various authorities and
functionaries etc. are governed by it. No law can be made and no rule,
order or direction can be passed which is contrary to any of the provisions
of the Constitution. If any such law is made, the same is liable to be
struck down by the courts. Such is the power of the Constitution.
Constitution is the source of power and authority of the government. It is
a fundamental legal document according to which the government
functions. The government is rather under an obligation to function in
accordance with the laws written in the Constitution. These laws are called
the basic laws of the land. The Constitution lays down precisely what the
powers of a particular organ of the gov-ernment are, what things it can or
cannot do. The idea is to minimize confusion and conflict in the working
of the various organs of the government. It is an instrument of controlling
the abuse of power by the government. Its importance in democratic
government is very important. It places limits on the activity of the
government as well as the citizens. A democratic government is the one
in which citizens partici-pate in the functioning of the government, directly
or indirectly. It is a government in which the government’s powers are
limited and clearly spelt out and under which the citizen’s rights are given
clearly. The Constitution is the basic law which defines and delimits the
main organs of the government and their jurisdiction. It also defines the
basic rights of the citizens and guarantees the protection of the same. The
Constitution, thus, is superior to all other laws of the country and no law
can be enacted which is not in conformity with the Constitution.
The Constitution of India was prepared by the Constituent Assembly
having members belonging to different communities and regions of India.
These included illustrious personalities like Dr.Rajendra Prasad,
Pt.Jawahar Lal Nehru, Dr.B.R.Ambedkar, Sardar Vallabh Bhai Patel,
Maulana Abul Kalam Azad, Dr.Shyama Prasad Mukherji, Sardar Baldev
Singh, Mrs.Sarojini Naidu, etc. The Constituent Assembly elected
Dr.Rajendra Prasad as its Chairman. Dr.B.R.Ambedkar was appointed as
the Chairman of the drafting committee. The Constitution was passed by
the Constituent Assembly on 26th November 1949 but was enforced on
25th January 1950. Since then we celebrate 26th January every year as
our Republic Day as India became a republic with effect from this day.
The Constitution of India, which is the second largest Constitution in the
world, is a comprehensive document containing 395 articles and several
schedules. It has preserved the democratic values to which we had attached
the highest importance in our struggle for freedom.
Part I : Courts 3
law is provided in Section 293 of the Indian Penal Code. Suppose, on the
day when ‘A’ sold the obscene object to a young person, there was no
such law. However, after a few days, such a law is made. Then, ‘A’ can
not be punished because what he did was not prohibited by law when he
did it.
‘Offence’ means an act or omission punishable by law.
I would have loved to discuss here the various provisions of the
Constitution, particularly those having a direct bearing on the lives of all
of us and affecting our rights, but that is a vast subject in itself and in
doing so, I would run the risk of deviating from the subject matter of this
book. Suffice it to say that besides other things, the Constitution guarantees
certain rights to all the citizens (in certain cases, even to the non-citizens)
popularly called the Fundamental Rights. Any violation of these rights by
any govt. functionary can be remedied by invoking the jurisdiction of the
High Court under Article 226 or by invoking the jurisdiction of the
Supreme Court under Article 32 of the Constitution.
6 Courts, Police, Authorities & Common Man
Before I start explaining about different courts, one must know that the
courts can only interpret the law, they can not make the law. The function
of making the law is with the Parliament or State Legislature. The judge
can not go beyond the law even if he thinks that in the circumstances of
the case, different view/decision should be given. Howsoever harsh the
consequences may be, which may not be to his own taste or to society’s
taste, he has to give the decision according to what the law says and on
the basis of evidence, if any. The law passed by the Parliament and/or the
Legislature of a State represent the will of the people and therefore the
same can not be ignored.
However, any law passed by the Parliament or any State Legislature has
to be fair and reasonable, as implicit in Article 21 of the Constitution of
India. If a law is unreasonable, it can be struck down by the Supreme
Court and the High Courts as unconstitutional.
Even if a matter is being adjudicated by a court, the Legislature can pass
a law ( but satisfying the test of reasonableness) on the very same subject.
Suppose, the Parliament makes a law that henceforth all persons convicted
of the offence of rape would be given death penalty. In such a case, the
judges are bound to give death punishment to persons who are ultimately
held guilty of rape and they have no discretion to award lesser punishment
even if they are of the view that lesser punishment should be awarded.
Supreme Court
Chapter IV ( articles 124-147) of the Constitution of India deals with the
judiciary of the Union of India. All these articles basically deals with the
Supreme Court. Every judge of Supreme Court is appointed by the
President of India and can be removed from his office only by an order of
the President which can be passed only after an impeachment motion
against the judge on ground of misbehaviour or incapacity is passed by a
majority of not less than 2/3rd members of each House of the Parliament
and each House urges the President to remove the said judge. In practice,
the procedure to remove a Supreme Court judge is very tedious and rarely
a judge is removed from his office. There is only one instance, when
impeachment motion was brought against Justice V. Ramaswamy (Judge
Part I : Courts 7
of Supreme Court) in the Parliament but the same could not find support
of the majority and the hence the resolution to remove him fell.
The qualifications for becoming a judge of Supreme Court, as prescribed
in Article 124 of the Constitution of India, are that he must be a citizen of
India, and
(a) he must have been a judge of High Court for at least 5 years, or
(b) he must have been an advocate of the High Court for at least 10
years, or
(c) he must be, in the opinion of the President, a distinguished jurist.
The seat of the Supreme Court is in Delhi. However, with the approval of
the President, the Chief Justice of India may appoint other places also for
sitting of the Supreme Court. The Article 141 states that the law declared
by the Supreme Court is binding on all the courts in India. Under Article
143, the President can consult the Supreme Court on any question of
public importance. The number of judges in the Supreme Court is fixed,
which at present is 25. The seniormost judge of the Supreme Court is
designated as Chief Justice of India. The age of retirement for a Supreme
Court Judge is 65 years. After the retirement, no judge of the Supreme
Court can practice in any Court or before any Authority in India. The
basic salary of a Supreme Court judge at present is Rs.30,000 per month
and that of the Chief Justice of India is Rs.33,000 per month. The service
conditions of the judges of the Supreme Court, providing for their salaries,
other perks and facilities, are governed by ‘The Supreme Court Judges
(Salaries and Conditions of Service) Act 1958’.
High Court
Chapter V (articles 214-232) deals with the High Courts in the States.
Every High Court consists of a Chief Justice and such number of other
Judges as may be deemed necessary to appoint by the President from
time to time. The Chief Justice of a High Court is generally the seniormost
judge of the High Court. Every judge of High Court is appointed by the
President of India, after consultation with the Chief Justice of India, the
Governor and the Chief Justice of the concerned High Court and can be
removed from his office only by an order of the President which can be
passed only after an impeachment motion against the judge on ground of
misbehaviour or incapacity is passed by a majority of not less than 2/3rd
members of each House of Parliament and each House urges the President
to remove the said judge. In practice, the procedure to remove a judge is
8 Courts, Police, Authorities & Common Man
very tedious and rarely a judge is removed from his office. Now, as per
the procedure evolved by the Supreme Court, in case of a reasonable
charge against a sitting judge of High Court, a committee comprising
three Supreme Court judges is appointed by the Chief Justice of India to
enquire into the allegations against the particular judge. This Committee
make enquiries and make appropriate recommendations to the Chief
Justice of India. Based on this report, either the judge concerned is absolved
of the charges or is deprived of the judicial work or his name is
recommended to the Govt. for impeachment. The age of retirement for a
High Court Judge is 62 years. After the retirement, no judge of the High
Court is allowed to practice in the same High Court ( i.e. the High Courts
in which he has functioned as a Judge) or any other Authority or
subordinate courts in India. However, he may practice in the Supreme
Court and the other High Courts in which he has not served as a Judge.
The basic salary of a High Court judge at present is Rs. 26,000 per month
and that of the Chief Justice of High Court is Rs.30,000 per month. The
service conditions of the judges of the High Court, providing for their
salaries, other perks and facilities, are governed by ‘The High Court Judges
(Salaries and Conditions of Service) Act 1954’.
The qualifications for becoming a judge of High Court, as prescribed in
Article 217 of the Constitution of India, are that he must be a citizen of
India, and
(a) he must have been a judicial officer anywhere in India for at least 10
years; or
(b) he must have been an advocate of the High Court for at least 10
years.
The High Court has been given the power under Article 226 to issue
writs, orders and directions to the various authorities and functionaries of
the Govt. if these authorities exceed the power given to them or if the
fundamental rights of any person are violated. This is the most widely
used article of the Constitution and almost every writ is filed in the High
Court under this article by anyone feeling aggrieved by any action or
inaction of any Govt. office or authority. Under article 227, the High
Court has been given the power to act as superintendent over all the lower
courts within its jurisdiction. For example, the Delhi High Court exercises
powers over all the district courts like Tis Hazari, Patiala House,
Karkardooma and may issue directions to the lower courts and may also
call for the records/file of any case from them. However, the High Court
does not have this power in respect of any court or tribunal constituted
for the Armed Forces.
Part I : Courts 9
will discipline the erring Judges. The Bill is called the Constitution
(Ninety-Eighth Amendment) Bill 2003.
The need for such a Commission had been long felt to deal effectively
with the matters concerning the cases of misconduct and deviant behaviour
among the Judges. This need has been aggravated by recent cases of alleged
corruption, favouritism and abuse of power among the members of the
higher judiciary.
The National Commission to Review the Working of Constitution
(NCRWC) has in its report proposed the constitution of such a NJC.
The Bill seeks to make the following changes in the Constitution of India :
(i) in Article 124(2), the portion shown in italics hereunder is deleted :
“Every Judge of the Supreme Court shall be appointed by the President
by warrant under his hand and seal after consultation with such of the
Judges of the Supreme Court and of the High Courts in the States as the
President may deem necessary for the purpose and shall hold office until
he attains the age of sixty-five years :
Provided that in the case of appointment of a judge other than the Chief
Justice, the Chief Justice of India shall always be consulted :
Provided further that-”
And is substituted by the following portion shown in bold :
“on the recommendation of the National Judicial Commission and
shall hold office until he attains the age of sixty-five years:
Provided that-”
(ii) in Article 217, the portion shown in italics hereunder is deleted :
“Every Judge of a High Court shall be appointed by the President by
warrant under his hand and seal after consultation with the Chief Justice
of India, the Governor of the State, and, in the case of appointment of a
Judge other than the Chief Justice, the Chief Justice of the High Court
and shall hold office, in the case of an additional or acting Judge, as
provided in article 224, and in any other case, until he attains the age of
sixty-two years :”
And is substituted by the following portion shown in bold :
“on the recommendation of the National Judicial Commission”
(iii) in Article 222, the portion shown in italics hereunder is deleted :
Part I : Courts 13
“The President may, after consultation with the Chief Justice of India,
transfer a Judge from one High Court to any other High Court.”
And is substituted by the following portion shown in bold :
“on the recommendation of the National Judicial Commission”
(iv) in Article 231, the portion shown in italics hereunder is deleted :
“(1) Notwithstanding anything contained in the preceding provisions of
this Chapter, Parliament may by law establish a common High Court for
two or more States or for two or more States and a Union Territory.
(2) In relation to any such High Court,-
(a) the reference in article 217 to the Governor of the State shall be
construed as a reference to the Governors of all the States in relation to
which the High Court exercises jurisdiction;”
And is substituted by the following portion shown in bold :
“(a) the reference in clause (3) of article 147A to the Chief Minister
of the State shall be construed as a reference to the Chief Ministers of
all the States in relation to which the High Court exercises
jurisdiction;”
(v) in Part V of the Constitution, after Chapter IV, the following Chapter
IVA is inserted :
“CHAPTER IVA – NATIONAL JUDICIAL COMMISSION
147A.
(1) The President shall by order constitute a Commission, referred
to in this Constitution as the National Judicial Commission.
(2) Without prejudice to the provisions of clause (3), the National
Judicial Commission shall consist of the following :-
a) the Chief Justice of India, who shall be the Chairperson of
the Commission;
b) two other Judges of the Supreme Court next to the Chief
Justice of India in seniority;
c) the union Minister in-charge of Law and Justice; and
d) one eminent citizen to be nominated by the President in
consultation with the Prime Minister:
provided that the eminent citizen nominated under sub-clause
14 Courts, Police, Authorities & Common Man
3
Hierarchy of Criminal Courts in India
The Code of Criminal Procedure 1973 is the basic document which governs
the establishment and functioning of various courts and authorities under
the criminal justice system.
Apart from a High Court in each State, as mandated by Article 214 of the
Constitution of India, the Code of Criminal Procedure prescribes in Section
6 that there should be following classes of Criminal Courts in every State:
(i) Session Courts
(ii) Judicial Magistrate of the 1st class (and a Metropolitan Magistrate
in every Metropolitan area)
(iii) Judicial Magistrate of the 2nd class
(iv) Executive Magistrate
For the purpose of dispensation of justice in the cases of criminal nature,
each State is divided into certain divisions, which are commonly called
the Sessions divisions. In certain situations, the whole State itself can be
one Sessions division. Each Sessions division comprises one district or
more than one districts, depending upon the size of the State. However,
every metropolitan area (i.e., area/city/town having population of more
than 10 lakhs and declared as Metropolitan area by the State Government
by a notification) is necessarily treated as a district and a sessions division.
Each District can be further sub-divided into sub-divisions, by the State
Govern-ment after consultation with the High Court.
The State Government after consultation with the High Court can increase
or decrease the limits or the number of such sessions divisions, districts
or sub-divisions in the State.
The above provisions can be better understood by means of the following
diagram:
|123456781234567
INDIA
6
States
6
6 6
Sessions Division Metropolitan Area
6 (treated as a separate
Districts Sessions Division and
6 District)
Sub-Divisions
At the request of the Central Govt. or the State Govt., the High Court can
appoint Special Judicial Magistrates for a term not exceeding one year,
to try particular class of cases for particular areas.
The Chief Judicial Magistrate allocates the cases to the Judicial
Magistrates subordinate to him.
In every metropolitan area, the courts of Metropolitan Magistrates (MM)
are established by the State Govt. by notification after consultation with
the High Court. The presiding officers of such courts are appointed by
the High Court. Every metropolitan magistrate has the jurisdiction
throughout the metropolitan area. One of the Metropolitan Magistrate is
appointed by the High Court as Chief Metropolitan Magistrate (CMM)
for the district. The High Court can also appoint any Metropolitan
Magistrate as Additional Chief Metropolitan Magistrate (ACMM) who
has all the powers of a CMM. At the request of the Central Govt. or the
State Govt., the High Court can appoint Special Metropolitan
Magistrates for a term not exceeding one year, to try particular class of
cases in any metropolitan area.
Every MM is subordinate to the CMM and the CMM and the ACMM are
subordinate to the Sessions Judge. The CMM allocates the work to the
ACMM and the cases to the MMs.
The State Govt. may appoint certain persons as Executive Magistrates
in every district and in every metropolitan area and appoint one of them
as the District Magistrate (DM). The State Govt. can also appoint any
Executive Magistrate as the Addl. District Magistrate enjoying such
powers of the DM as directed by the State Govt. The State Govt. can
make an Executive Magistrate as the incharge of a sub-division, who
then is called the Sub-Divisional Magistrate (SDM). The State Govt.
may confer all or any of the powers of the Executive Magistrate on the
Commissioner of Police.
The State Govt. can appoint Special Executive Magistrates for particular
areas or for performing particular functions and confer on them the powers
of the Executive Magistrates.
The DM distributes the work among the Executive Magistrates and
allocates the work to the ADMs.
The Hierarchy of the Criminal Courts in India with their respective powers
to pass sentences can be summarized and better understood by means of
the following diagram :
18 Courts, Police, Authorities & Common Man
Supreme Court
(can pass any sentence)
6
High Court
(can pass any sentence)
6
Sessions Judge
(including Addl. Sessions Judge)
(can pass any sentence, except that the sentence of death passed
by it is subject to confirmation by the High Court)
6
———————————————————————————
6 6 6
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)
6
SDJM
(same as for MM)
6
6 6 6 6
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
MM may have two or more police stations under his jurisdiction. For
example, the cases registered at police station Punjabi Bagh will go to the
court of a particular MM who look after the cases of Punjabi Bagh police
station. Similarly, there are courts of MM which are specially constituted
to try the cases relating to particular offences. For example, there are
special courts presided over by MMs which try cases of crime branch,
CBI, etc.
The Metropolitan Magistrates are holding their courts in three court
complexes i.e., Tis Hazari, Karkardooma and Patiala House. The Criminal
Complaints pertaining to North, Northwest, Central and West districts
are filed in the Court of Chief Metropolitan Magistrate at Room No.54,
Tis Hazari courts complex. The criminal complaints pertaining to South,
Southwest and Central districts are filed in the Court of Additional Chief
Metropolitan Magistrate at Patiala House courts complex. The criminal
complaints pertaining to East and Northeast districts are filed in the Court
of Additional Chief Metropolitan Magistrate at Karkardooma courts
complex. On receiving the criminal complaints, the CMM or the ACMM,
as the case may be, assigns them to the courts of respective MMs. An
MM can try only those cases where the offence is punishable with
maximum 3 years imprisonment and/or fine up to Rs.5000/-.
b. Chief Metropolitan Magistrate
The intermittent stage between the first stage and the second stage is that
of Chief Metropolitan Magistrate (CMM) who is assisted by one or more
Addl.Chief Metropolitan Magistrates (ACMM). The CMM is the Judge
In-charge of the courts of MMs. He exercise powers on the administrative
side as well as holds Special Court of Central Bureau of Investigation.
The ACMMs in Karkardooma and Patiala House Courts exercise delegated
powers of the CMM in respect of Magistrates posted there. The CMM
and ACMMs can try cases where the offence is punishable with max.7
years imprisonment. At present, there is 1 CMM and 4 ACMMs for Delhi.
c. Sessions Court
The second stage in the hierarchy is the Sessions Court. Corresponding
to several MM courts, there is one sessions court. In this manner, there
are many sessions courts which hear appeals and revisions against the
judgements passed by the courts of MMs. These courts also hear/try the
cases ( after committal by the Magistrate court) which are punishable
with more than 3 years imprisonment or as prescribed in the First Schedule
of Cr.P.C. These courts are presided by Addl. Sessions Judges (ASJ) who
28 Courts, Police, Authorities & Common Man
d. High Court
The third stage is the High Court. A person feeling aggrieved by the order
of the sessions court can appeal to the High Court within 60 days from
the date of the order. In case of an appeal against the sentence of death
passed by the Sessions court, the appeal to the High Court can be filed
only within 30 days from the date of the order on sentence. (Article115 of
Limitation Act 1963)
Part I : Courts 29
e. Supreme Court
The fourth and the last stage is the Supreme Court. Any person feeling
aggrieved from the judgment of the High Court can appeal to the Supreme
Court by filing a petition under Article 136 of Constitution called the
Special Leave Petition (SLP). This SLP can be filed within 90 days from
the date of the judgment or order and within 60 days in a case involving
death sentence. If the Supreme Court finds some merit in it, then it gives
the permission and then the SLP is converted into an appeal and the same
is heard by the Supreme Court. The Supreme Court then decides the appeal
and either confirm the judgment of the High Court or set aside the same
or reduce the sentence of the accused.
If the Supreme Court confirms the judgment of the High Court awarding
death sentence to the accused ( the death sentence is nowadays awarded
in rarest of rare cases), then the convicted person may appeal to the
President of India for mercy within 30 days. However, he can not claim it
as a matter of right and it is purely within the discretion of the President.
It is relevant to point out that the similar power is enjoyed by the Governor
of a State and such mercy petitions can be filed at any stage of a criminal
case. Such power can be exercised by the President or the Governor, as
the case may be, suo motu also on their own accord. The President under
Article 72 of the Constitution of India or the Governor under Article 161
of the Constitution of India may pardon him and set aside his punishment
or may alter the punishment to some lesser punishment ( also see Note
No.33 in the chapter ‘Frequently Asked Questions’). If no appeal is made
to the President or if the appeal is turned down by the President, then the
person is hanged to death. In India, the death sentence is executed by
hanging the person by the neck till he is dead, as required under section
354(5) Cr.P.C. In several countries, besides hanging, the death sentence
is executed through gas chambers, electric shock chair, injection of lethal
dose or shooting simultaneously by a row of gunmen.
Others Courts
f. Accident cases
Motor Accident Claims Tribunals (MACT) deal with claims relating to
loss of life/property and injury cases resulting from Motor Accidents.
There are eleven MACT Courts in Tis Hazari apart from four Courts in
Karkardooma Courts Complex and three in Patiala House. The Claims
are to be directly filed in the concerned Tribunal.
MACT Courts are presided over by Judicial Officers from Delhi Higher
30 Courts, Police, Authorities & Common Man
Judicial Service. Now these Courts are under direct supervision of the
Hon’ble High Court.
g. Mahila courts
Some courts exclusively deal with cases relating to women for grant of
maintenance under Section 125 Cr.P.C. and under Sections 354 (Assault
or criminal force to woman with intent to outrage her modesty), 363
(punishment for kidnapping) and 509 (word, gesture or act intended to
insult the modesty of a woman) of Indian Penal Code.
h. Special courts
Some courts exclusively deals with offences under the Special Acts like
the Excise Act, Customs Act, Bank Securitisation Act, CBI, Chit Fund,
Copyright Act, Trademarks Act, Designs Act, Drugs Act, Electricity Act,
FERA, Income Tax Act, Official Secrets Act, MCD Act, DDA Act,
Prevention of Food Adulteration Act, Wildlife Act, etc.
4. Practical working of a typical subordinate court in Delhi
Let us understand the practical working and procedure of a subordinate
court in Delhi :
A list of cases is prepared by every court for the cases to be taken up by
that court every day. This list gives the serial number, the case no., the
title of the case and categorizes them into fresh cases, misc. cases, cases
for evidence, cases for arguments, cases for pronouncement of orders etc.
in that order. This list is hanged outside the court for the litigants to know
about their case. Each case is called one by one, as per the list, by a court
staff generally standing at the door of the court. The case of that file is
given by the courtmaster to the judge. (in district courts, the courtmaster
is generally referred to as ‘reader’). Generally, the reader sits on one side
of the judge and the steno/typist sits on the other side of the judge. On the
case being called, the parties appear before the judge. The Counsel for
the plaintiff/petitioner generally stands on the left hand side and counsel
for the defendant/respondent on the right hand side (in the High Court,
the current system is just the reverse). In a criminal case, it is mandatory
for the parties to appear personally. If the opposite party in a criminal
case does not appear personally, the judge may issue warrant against him
and if the complainant/petitioner in a criminal case does not appear
personally, then the judge may dismiss the complaint/petition. In a civil
case, the parties can appear through their counsel and it is not mandatory
to appear personally. After taking up the proceedings in the case depending
upon the stage of the case, the case is adjourned by the judge to a further
Part I : Courts 31
date. The file is then placed aside by the judge and the next case is called.
In civil courts, when no one appear for a party on a case being called, the
courts normally do not take it adversely and pass over the case and after
finishing other cases, call/take up that case again.
For execution cases in a civil court, separate list of cases is prepared.
Some courts take up this list first while some courts take up this list after
finishing the main list. The files of execution cases are in the custody of
a court staff called the nazir.
The files of a court are kept in the custody of a court staff who in common
parlance is called ‘ahalmad’ (record keeper). There is one ahalmad for
each court. He normally sits in one corner of the court room. He is the
person responsible for the preparation of the various summons, warrants,
release orders (in case of bails) etc. in respect of the cases of his court.
If a judge in a civil court at any stage of the case finds that the case is of
such a nature which does not fall within the subject area of the roaster
assigned to him at that time, then he can send the case to the District
Judge for transferring the same to one of the courts dealing with the subject
matter of the case.
If one wants to inspect the court file, then an application for inspection is
moved in the concerned court. After being allowed by the judge, one has
to approach the ahalmad for inspecting the file. One can note down the
contents of the file using a pencil only. For obtaining the certified copy
of any of the order or document of a court file, one can submit the
application in this regard in the prescribed performa with the requisite
fees at the concerned counter and receive the same on the date given by
the counter clerk. However, in pending cases, the inspection and certified
copy can be availed only by a person who is party in the case, either
himself or through his advocate.
The actual method of working of the courts, as given above, may vary
from State to State depending upon various factors.
32 Courts, Police, Authorities & Common Man
5
Law Officers representing
Government in the various Courts
The work related to the drafting of various bills, Acts, legislations etc. ,
appointment of judges, law officers etc., is done by the Ministry of Law,
Justice & Company Affairs having its office at 5th Floor, Shastri Bhawan,
New Delhi.
The work within the law ministry is divided into three parts, each part
being looked after by a separate department and each department being
headed by a separate Secretary. The main department is the Deptt. of
Legal Affairs, which renders advice to various Ministries/Departments
of the Government of India (including PSUs) on legal matters and also
carries out drafting work on their behalf. The deptt. also attends to the
litigation work of the Central Government in the Supreme Court, various
High Courts, Tribunals and some of the subordinate courts. This
department is also concerned with entering into treaties and agreements
with foreign Governments in matters of civil law, authorizing officers of
the Central Government to execute contracts and assurance of property
on behalf of the President under Article 299(1) of the Constitution and
authorizing officers to sign and verify plaints, written statements in suits
by or against the Governments. This deptt. is further concerned with the
appointment of Law Officers. This deptt. administers the Advocates Act
1961, the Notaries Act 1952 and the Legal Services Authority Act 1987.
This deptt. is also administratively in charge of the Appellate Tribunal
for Foreign Exchange, Income-tax Appellate Tribunal, Indian Legal
Service and Law Commission of India.
The Legislative Deptt. mainly deals with the work of drafting Government
Bills and subordinate legislation sponsored by the various Central
Ministries. It has also administrative responsibility of the Election
Commission and for work connected with elections to the Parliament and
the State Legislatures and the offices of the President and the 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
34 Courts, Police, Authorities & Common Man
appoint PPs and APPs for conduct of cases in the sessions courts.
The State Govt. is also bound to appoint Assistant Public Prosecutors
(APPs) for prosecuting cases on its behalf in the courts of the Magistrates.
Any person can be appointed as APP, but generally a police officer can
not be appointed as APP. The Central Govt. may also appoint APPs for
prosecuting cases on its behalf in the courts of the Magistrates.
The Central Govt. as well as the State Govt. can appoint any advocate of
minimum 10 years practice as a Special Public Prosecutor (SPP) on
their behalf in any Court for prosecuting any particular case(s).
36 Courts, Police, Authorities & Common Man
6
Powers of Court under
‘Contempt of Courts Act 1971’
The Supreme Court and the High Court have the powers, under Contempt
of Court Act 1971, to punish anyone who commits contempt of the court.
The contempt committed may be civil or criminal in nature.
Civil contempt means knowingly and willfully disobeying any judgment,
order, decree, direction, writ etc. issued by a court. Knowingly and willfully
violating by a person, any undertaking given to the court by that person,
is also civil contempt.
Criminal contempt means speaking, publishing, writing any matter, words,
signs or making gestures or doing any other act which
- scandalizes or lower the prestige of any court
- causes disturbance or interference in any judicial proceeding
- causes obstruction or interference in the administration of justice in any
other manner
However, publication or distribution of any such matter, words etc. by a
person in innocence does not amount to contempt of court. Publishing
any fair comment on the merits of any decided case also does not amount
to contempt of court. The complaint or statement made by a person in
good faith against the presiding officer of court lower than High Court, to
the High Court or any other court, does not amount to contempt of court.
But it is to be kept in mind that publication of reports of proceedings
before a court of law must be true, accurate and without malice. Freedom
of speech and expression does not include making unfounded allegations
of corruption against the judiciary.
The contempt of court committed against any court subordinate to the
High Court can be tried and punished only by the High Court. However,
if the contempt committed against a subordinate court is such which is
punishable under Indian Penal Code, then the High Court can not take
cognizance of such a contempt. (section 10)
A person found to have committed contempt of court may be punished
with simple imprisonment for up to 6 months or with fine up to
Rs.2,000/- or both. However, if the accused makes an apology to the
Part I : Courts 37
7
Other Courts & Tribunals
Besides the district courts, the High Court and the Supreme Court, there
are various other courts or Quasi-Judicial Authorities, known as Tribunals,
Commissions etc. for particular purposes. Some of these are as follows :
-for service matters of the Central Govt. employees, there is Central
Administrative Tribunal (CAT) in each state i.e. if any person, who is
an employee of the central govt. or of institutions run by central govt., is
aggrieved by any action of the deptt., which has an effect on his service,
then he can file a case (referred to as O.A. (Original Application) only in
the C.A.T. These are governed by the Administrative Tribunals Act 1985.
-the cases claiming compensation claims in motor accident cases can be
filed only in the Motor Accident Claim Tribunals (M.A.C.T.) established
under the Motor Vehicles Act 1988.
-the cases for the recovery of dues above Rs.10 lakhs by any bank or
Financial Institution can be filed only in Debts Recovery Tribunal
established under the Recovery of Debts Due to Banks and Financial
Institutions Act 1993. Recently, the parliament passed ‘The Securitisation
and Reconstruction of Financial Assets and Enforcement of Security
Interest Act 2002’, which now empower the banks to attach and auction
the properties of the defaulters simply by giving a notice, without obtaining
the order of the court.
The appeal against the order of the commissioner of excise deptt. or the
customs deptt., whereby the Commissioner refuses to give any relief to
the assessee in respect of the case filed by the assessee against any action
of the custom deptt. and the excise deptt. levying any penalty or charges
or demand or forfeiting any goods, can be filed under the provisions of
the Central Excise Act 1944 and Customs Act 1962, only in Customs
Excise & Gold Control Appellate Tribunal (CEGAT) now known as
CESAT.
Such appeal in case of income tax cases can be filed under the provisions
of the Income Tax Act, only in Income Tax Appellate Tribunal (I.T.A.T.)
Such appeal in case of sales tax cases can be filed only in Sales Tax
Appellate Tribunal (S.T.A.T.)
40 Courts, Police, Authorities & Common Man
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
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
48 Courts, Police, Authorities & Common Man
evolved during the British regime. Even after independence in 1947, this
system has not been changed by the Indian Government for the very reason
of concentration of authority in one designation. The country has adopted
in its entirety the police organizational set up that British rulers had
introduced and nurtured for their own ends. Incidentally, the British had
in their own country abolished the magisterially controlled police as early
as 1829, because of its inefficiency and corruption.
Part II : Police 49
2
Police Set-up in India
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.
52 Courts, Police, Authorities & Common Man
The Armed Police Battalions are in the nature of reserves at the disposal
of the Police Chief of the State. He can direct them to act either on a
requisition of the Range Officer ( such as, Deputy Inspector General of
Police) or suo motu on his own appreciation of a particular situation.
These battalions are generally called to deal with major anti-dacoity
operation, serious civil commotion, crowd control at the time of VIP visits,
for duty at large fairs or festivals or any other law and order situation.
Sometimes, they are used for guarding the national borders and for security
duties in sensitive areas. They can also be deputed for duty in neighbouring
States to assist local police of that State on the orders of their own State
Government. This is done on a reciprocal basis on the principle of regional
cooperation.
These battalions are established under their respective Acts and Rules. A
batallion has between 4 to 6 companies and each company is of 100-120
men. Each company has 4 platoons of about 35 men. Each battalion is
commanded by a Commandant (of the rank of Superintendent of Police)
assisted by Assistant Commandant (of the rank of Junior Superintendent
of Police or Deputy Superintendent of Police). The Commandant is subject
to the control of the Inspector General and Deputy Inspector General
concerned.
Each company is commanded by an officer of the rank of Deputy
Superintendent of Police or Inspector of Police. Each platoon is headed
by an officer of the rank of Inspector or Sub-Inspector of Police. The
system differs from State to State. In some States, the ranks of Inspector
and Sub-Inspector of the Armed Battalion are termed as Subedars and
Jamadars respectively.
Each State has on an average 12-15 battalions or more in bigger States.
These armed battalions are called by different names in different States.
For example, these are called as :
- Provincial Armed Constabulary in Uttar Pradesh (PAC)
- Rajasthan Armed Constabulary (RAC) in Rajasthan
- Special Armed Police Force in Madhya Pradesh
- Military Police in Bihar
- Assam Rifles in Assam
- Malabar Police in Tamil Nadu
Para-military forces under the direct control of the Central Government
are :
Part II : Police 53
- Assam Rifles
- Border Security Force (BSF)
- Central Industrial Security Force (CISF)
- Central Reserve Police Force (CRPF)
- Indo-Tibetan Border Police. (ITBP)
They are deployed frequently to assist the State Police in the maintenance
of law and order under Article 257A of the Constitution of India.
D. Wireless Section
All the district headquarters in a State, important sub-divisional
headquarters and even police stations are connected with wireless
communication. There is also inter-communication between various States.
All this is co-ordinated by the Central Directorate under the Government
of India.
This organization in each State is headed by a technical expert of the rank
of a Deputy Inspector General or a Senior Superintendent of Police. He
has under him a set of technicians and a number of wireless operators.
The radio section staff has put up very efficient control rooms in most of
the important cities which have proved to be boon in times of emergencies
as well as daily operations of mobile patrols, traffic control and other
incidents.
E. Police training institutions
These institutions provide training to all ranks of the police force. The
institutions which impart training to gazetted officers and Sub-Inspectors
are called Police training colleges. Principal of such college is a Senior
Suprintendent of Police or in some States a Deputy Inspector General of
Police. The institutions which impart training to lower ranks are called
schools or training centers.
The Assistant Superintendent of Police, after their initial training at the
National Police Academy, have also to spend some period varying from
1-6 months at the State Police Training College of their State to familiarize
themselves with the local laws and conditions. The Police Training
Colleges also organize refresher and promotion courses of various types
in order to streamline the officers and their subordinates.
The recruitment to State Police Forces is generally made beginning from
the lowest grade, in the rank of Constables, Sub-Inspectors, in some cases
Inspectors and Deputy Superintendents of Police. Promotions are made
à
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
56 Courts, Police, Authorities & Common Man
4
Central Vigilance Commission
5
Delhi 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
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
70 Courts, Police, Authorities & Common Man
Service-Oriented Activities
Delhi Police is running over a dozen de-addiction camps in several areas
of Delhi. With the help of SPOs, Delhi Police is periodically organising
blood donation camps.
SCHEMES :
1. Ensuring free supply of copy of FIR to complainant
It has been decided that in all cases, a copy of the FIR be dispatched to
the complainant by post, not withstanding the fact that a copy had been
provided to him when his report was lodged.
2. Arms Licences
Procedures for obtaining licence has been simplified and following steps
have been taken to provide better service to arms licencees :-
1. Licencees no longer need to produce their arms at the time of
renewal.
2. A system of issuing reminders to the licencees whose arms are
due for renewal has been started.
3. Training is being imparted to those who have no experience of
use of arms.
4. Wide publicity has been given to the public for registration of
outside licences in Delhi.
3. Helping stranded vehicles
PCR vans have been instructed to provide assistance to the passengers of
break-down vehicles at odd hours and help the stranded passengers to
reach their destinations. Any body can call the police by dialing tel no.100.
(This tel no. works in all metros).
4. Jan Sahyog Abhiyan
A Jan Sahyog Abhiyan was started by Delhi Police to elicit support and
cooperation of the residents of Delhi. Attractive exhibitions were set up
on anti-terrorist and home security measures.
Delhi Police had started Juvenile Aid Camps in which street children are
being taught some trade and found jobs so that they do not take to crime.
Delhi Police launched a scheme under which personnel of PCR vans have
been trained in first-aid with the Heart Care Foundation of India for picking
up the victims of accidents and taking them to the hospital.
72 Courts, Police, Authorities & Common Man
Delhi Police’s first Juvenile Aid Centre called “Prayas” was set up in
1988 at Jahangir Puri in which boys and girls put through orientation
programmes including vocational guidance.
Delhi Police has initiated special measures to check eve-teasing, so
notoriously prevalent in the city.
5. Neighbourhood Watch Scheme (N.W.S.)
The neighbourhood watch scheme, wherein vigilant members of the public
have been organising themselves to ensure area security and even
encouraging members of the public to take personal and physical security
measures have been on the continuous list of nourishment and review by
the DCP. The beat system has been recently strengthened by posting
experienced Head Constables as beat officers in most of the places. This
improvement has started paying dividends in terms of better patrolling
and public relations as well as development of criminal intelligence.
In the sphere of victimology, special attention has been paid to the victims
of heinous crime. Officers from the police stations visit them for restoring
their confidence during the times of crises. Arrangements have been made
to help the victims of road accidents by delivering copies of various
documents from the police station at their residences and offering them
guidance so that they could claim compensation from the Insurance
Company and others.
The Neighbourhood Watch Scheme (NWS) run on the basis that law can
be better enforced and crime can be better prevented with the cooperation
of the people. This concept is known to have achieved considerable success
in the countries where it has been introduced. These include U.K., USA,
Canada and Australia. In fact, the objectives of the Scheme everywhere
are broadly as follows:
a. to reduce property crime;
b. to foster police-community relations;
c. to increase community spirit;
d. to reduce juvenile crime by getting the youths also involved in the
Scheme.
Under the Scheme, the police first identifies a neighbourhood and then
contacts its citizens in order to motivate them to together keep their eyes
and ears open in their own neighbourhood in order to prevent crime. Apart
from residential areas, similar schemes are likely to be planned for business
areas, apartments, high-rise buildings, etc.
Part II : Police 73
by a DCP, who is assisted in his duties by one or more Addl. DCPs. Each
police sub-division within a district is headed by an ACP. Each police
station within a sub-division is headed by an Inspector and he is known
as Station House Officer (SHO). The police officers of the rank of ACP
and above are officers generally belonging to the Indian Police Service
(IPS) cadre and are selected directly through U.P.S.C through Civil
Services Examination. However, in few cases, the Inspectors are able to
reach the level of an ACP, in the course of their promotion.
q Any able bodied male person above 18 years may be appointed as
Special Police Officer (S.P.O.) by the Police Commissioner. On
appointment, the SPO receive a certificate of appointment and he
has the same powers, privileges and immunities; perform the same
duties and be subject to the same authorities, as an ordinary police
officer.
q An Inspector may be designated as SHO or Addl. SHO.
q The Police Commissioner may, by notification in the Official Gazette,
make regulations to provide for regulating the traffic and for
maintaining the law and order in public places and for such matters
as enumerated in section 28 of the DP Act. Any police officer of the
rank of Inspector and above, may give any order orally or in writing
to the public for any of the purposes mentioned in section 29 including
preventing obstructions at the time of processions, assemblies etc.,
regulating the playing of music, horns in/near public places, regulating
the control of loud speakers in residential areas, streets etc.
q If a person is carrying on his trade or operating in such a manner that
generate sound and noise and which cause disturbance, annoyance,
discomfort and injury to others, then the Police Commissioner can
issue directions to such a person to stop creating such a nuisance.
(section 32)
q The Police Commissioner, Addl.C.P., D.C.P., Addl.DCP, A.C.P. of
any other police officer of equivalent rank may suspend any
subordinate police officer who is reasonably suspected to be guilty
of misconduct, pending an investigation or enquiry into such
misconduct. In the same manner, the Inspector may suspend any police
officer below the rank of a Sub-Inspector. (section 21)
q If a police officer is suspended, he can not use his powers and can
not claim the privileges and immunities available to a police officer.
But, he is liable to do his duties even under suspension. (section 14).
q A police officer, if not on leave or suspended, is deemed to be always
Part II : Police 77
on duty and he has to perform his duties at any hour, whether its day
or night. (section 24)
q If a person ceases to be a police officer, he is bound to return the
arms, ammunition, clothing etc. which were given to him as police
officer. If he does not return, then a warrant can be issued to search
and seize the same. (section 26)
q If the activities of any person are causing or likely to cause harm,
danger or if he is engaged in the commission of an offence involving
violence, or if he has been threatening people, committing violence
and spreading terror or teasing the women and girls and the witnesses
are not coming forward to give evidence against him for out of fear
and it appears that if he remain at large in Delhi, the same would be
hazardous to the society, the Police Commissioner by a written order
can direct such person to go out of Delhi and not to enter Delhi for a
specified time period. If he violate the condition, then he is liable for
imprisonment for up to 2 years (Tadipar, section 47, 48, 116)
q A case against a police officer on the ground of commission of an
offence or wrong by him under the colour of duty or authority or by
exceeding his power, can be filed within 3 months from the date of
the act complained of. It is compulsory to serve one month notice to
the police officer concerned before filing the case against him.
(Section 140)
2. What are the duties of a Police Officer ?
n To promptly serve every summons and execute every warrant or other
order lawfully issued to him by any competent authority and to comply
with all lawful commands of his seniors.
n To use the best of his ability to obtain intelligence concerning the
commission of cognizable offences or designs to commit such
offences and to lay such information and to take lawful steps to bring
offenders to justice and to prevent the commission of offence.
n To prevent, to the best of his ability, the commission of public
nuisances
n To apprehend, without delay, all persons whom he is legally
authorized to apprehend and for whose apprehension there is
sufficient reason.
n To aid any other police officer when called upon by such other officer
or in the case of need in the discharge of the duty of such other police
officer, in such ways as would be lawful and reasonable on the part
78 Courts, Police, Authorities & Common Man
6
Interpol
What is Interpol ?
The word ‘INTERPOL’ is radio-telegraph code for the International
Criminal Police Organization. This organization is an inter-governmental
organisation which is second in size only to the United Nations. It consists
of 179 member countries who have agreed to “ensure and promote the
widest possible assistance between all criminal police authorities in the
prevention and suppression of ordinary law crimes”. The Organization’s
headquarters is in Lyon, France. ( See Appendix 9 for list of member
countries)
It is an international police organization to extend co-operation for 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 Interpol’s Constitution, Interpol’s aims are :
“(a) To ensure and promote the widest possible mutual assistance between
all criminal police authorities, within the limits of the laws existing in the
different countries and in the spirit of the Universal Declaration of Human
Rights.
b) To establish and develop all institutions likely to contribute effectively
to the prevention and suppression of ordinary law crimes.”
The limits of its operation are laid down in Article 3 :
“It is strictly forbidden for the Organization to undertake any intervention
or activities of a political, military, religious or racial character.”
According to the interpretation given to Article 3, a political offence is
one which is considered to be of a predominantly political nature because
of the surrounding circumstances and underlying motives, even if the
offence itself is covered by the ordinary criminal law in the country in
which it was committed. This interpretation, based on the predominant
aspects of the offence, is embodied in a resolution adopted by Interpol’s
General Assembly in 1951.
Part II : Police 81
promptly reported by the State Police authorities etc. to the Interpol Wing.
India has also been one of the relatively more active members. We have
had the privilege of hosting an Inter-Regional Meeting of Heads of Drug
Services in 1988, the first Interpol Conference on Methaqualone in 1992,
the 13th Asian Regional Conference in 1994, and the 66th General
Assembly Session of ICPO-Interpol in 1997. This apart, CBI officials
have also been closely associated with the activities of the Interpol. Mr.
F.V.Arul served on the Executive Committee of the Interpol as Vice
president for Asia. Later two other distinguished Directors of the CBI
Mr. M.G.Katre and Mr. Joginder Singh served as delegates on the
Executive Committee.
To co-ordinate with the CBI in matters relating to Interpol, Liaison Officers
have been designated in all States, with usually IG/DIG Crime Branch,
CID acting in that capacity.
The Interpol wing of CBI ( also called ‘Interpol’s NCB for India) can be
contacted at :
Assistant Director (Interpol), Central Bureau of Investigation, Block No.4,
CGO Complex, New Delhi -110003
Tele No. - 24364000 Fax - 24364070, 24392170
INTERPOL NOTICES
International notices are the main instruments of international police 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.
86 Courts, Police, Authorities & Common Man
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 state’s expense.
The criminal justice system in India is based on the concept that ‘every
person is innocent unless proved guilty’. Thus, our system presumes a
person to be innocent and the onus is upon the prosecution to prove the
guilt of the accused beyond reasonable doubt. Even if there is a slight
doubt about the commission of the offence by the accused, the courts
have to acquit the accused. Since criminal law entails serious
consequences, the burden is upon the police to prove very clearly and
without any scope of doubt that the offence in question was infact
committed by the accused. In this regard, the three cardinal principles of
criminal law can be summarized as under :
(a) that the accused has to prove his case by mere probability
(b) that the prosecution has to stand on its own legs
90 Courts, Police, Authorities & Common Man
(c) that the benefit of doubt goes to the accused and the guilt of the
accused must be proved beyond reasonable doubt
Thus, if the accused is able to show to the court that there is a probability
that the offence is not committed by him, he becomes entitled to be
acquitted by the court.
When a person has caused some loss or damages to the other person, then
it is a case of civil wrong for which the person who has caused losses can
be asked to compensate the person who has suffered losses, under the law
of Torts. However, if the action of the person has criminal consequences
and such action falls within the definition of any of the offences under
the Indian Penal Code or any other law providing for criminal liability,
then the act complained of is a wrong not only against the individual
victim but against the State as a whole and thus, in criminal cases, the
case to prosecute the wrong doer is filed by the Govt. and not by the
victim. That is why, in criminal cases, the title of the case reads in the
manner “State vs ABC” etc. In criminal cases, the State is the prosecutor
whose aim is to convince the court that the offence in question has been
committed by the accused and to ensure that the court convicts him.
However, the law expects the prosecutor to place before the court all
evidences in his possession whether it is in favour of the accused or against
him and leave it to the court to decide whether the accused really
committed the offence or not. It should not be the prosecutor’s endeavour
to obtain conviction of the accused by hook or by crook.
The matters of evidence in any criminal prosecution are governed by the
‘Indian Evidence Act 1872’. The period of limitation within which the
appeal against order of acquittal or conviction can be filed is provided in
‘Limitation Act 1963’.
The various facets of criminal law and the manner of its application can
be further understood by the discussion in the following chapter, which
has been put in question answer form to make it more convenient and
lucid.
2
FREQUENTLY ASKED QUESTIONS ( FAQs)
We all have so many questions in our mind regarding the various aspects
of criminal law but at times, we feel handicapped as far as having access
to information on these aspects is concerned. We do not know whom to
ask the various fundamental questions. Though the answer to most of our
queries lies in the Code of Criminal Procedure but the language used
therein is too technical for all of us to thoroughly understand the same.
Though the criminal law is so extensive and vast that it can not be covered
in its entirety in a single book, however an attempt has been made in this
chapter to put the various basic aspects of the criminal law in question
answer format in a very simple manner to enable the readers to get the
answers to their queries in the language they readily understand. To
understand the contents of this chapter, it is advised that the chapter in
this book on ‘Salient features of CrPC’ is also read together followed by
a reading of the Code of Criminal Procedure in its original form.
1. What is the complete procedure being followed after happening of
a crime ?
The procedure being followed by the police and the criminal courts in India
(particularly in Delhi), after an offence has been committed, is as follows:
w Information or complaint regarding commission of an offence or
offences is given to the Officer-in-charge of the police station
(commonly referred to as Station House Officer or SHO, in short).
w The said information or complaint is entered in the station/general
diary by the police officer on duty and a FIR (First Information
Report) is registered.
w If on the basis of the FIR or otherwise, the SHO has reason to suspect
the commission of a cognizable offence, he forthwith sends a report
(occurrence report of the incident) to the concerned Judicial
Magistrate (MM, in metros). (Generally, serious offences entailing
punishment of 3 years or more are cognizable offences). In reality,
the copy of the FIR itself is sent to the MM. The purpose for forthwith
sending the copy of FIR to the concerned Magistrate is to keep the
concerned Magistrate informed of the investigation of a cognizable
92 Courts, Police, Authorities & Common Man
w If the appeal is dismissed by the Supreme Court also, then the accused
has no remedy except to undergo the sentence. However, the Supreme
Court may release the accused on the sentence already undergone by
the accused. But in such case, he is deemed to be convicted.
w At any stage of a criminal proceeding in any court in India, the
President (under article 72 of the Constitution of India) or the
Governor of the concerned State (under Article 161) can invoke
their power, either themselves or on the mercy petition of the accused/
convict, and can pardon him or reduce his sentence. While exercising
such power, the President and the Governor are not bound by any
technicalities of law and they proceed purely on humanitarian basis
without being influenced by the judgment of the Court. The
Government also can exercise its power to suspend, remit or commute
the sentence under Section 432-433 Cr.P.C.
2. What is a First Information Report (FIR) ? What is the procedure
for filing an FIR ?
First information report is the information that a police officer receives
about the commission of a crime. Provision for FIR in cognizable case is
contained in Section 154 and that for non-cognizable case is contained in
Section 155 Cr.P.C. Some of the salient features of the law regarding the
FIR are :
w An FIR must be in writing, duly signed by the maker thereof. A copy
of the FIR is required to be given to the informant free of charge.
w Any person can lodge a FIR. It is not necessary for such person, who
lodges it, to be actually present at the scene of incident.
w An FIR must contain the place, date and time of incident. An elaborate
description of the incident is also necessary. The basic purpose of
filing an FIR is to record the true and correct version of the incident
or commission of the offence.
w An FIR can be filed at any police station in the country. There is no
necessity that it needs to be filed only at the place where the offence
has taken place. It is the duty of the police officer to ensure that it is
sent to the police station which has jurisdiction over the matter.
w A denial to register an FIR(which discloses commission of a
cognizable offence) on the part of the police officer is illegal. In any
such case, the informant may report the matter in writing to the Deputy
Commissioner of Police.
96 Courts, Police, Authorities & Common Man
the way of a Magistrate to direct the police to register a case at the police
station and then investigate the same. When an order for investigation
under Section 156(3) is to be made, the proper direction to the police
would be to register a case at the police station treating the complaint as
the FIR and investigate into the same.
3. What to do if the police does not register the FIR on my complaint ?
Under the law, as expanded by the Supreme Court from time to time, the
police is bound to register an FIR on your complaint disclosing commission
of cognizable (generally non-bailable) offence. However, if the police
does not do so, you can send your complaint by post to the Commissioner
of Police, who on being satisfied that the complaint discloses the
commission of a cognizable offence, is bound to investigate the matter.
One more effective remedy available to you is to file a criminal complaint
against the offenders in the court of Magistrate. Under section 190 Cr.PC,
the magistrate can take cognizance of an offence on such a complaint,
just as he can take cognizance on the basis of the challan (chargesheet)
filed by the police after investigation.
On the complaint being filed by you, the magistrate has two options.
Ø The first option is that he can exercise his power under section 156(3)
Cr.P.C and order the police to investigate the facts and allegations
narrated by you in your complaint, in which case the police is bound
to register an FIR ( by reproducing your complaint) and investigate
the matter. The police after investigation file its report to the
Magistrate. The report may either say that after investigation, no
case is made out against the accuseds named in the complaint. Such
a report is called ‘closure report’ by which the police request the
court to close the case. The Magistrate may act upon the report and
order for closing the case. However, if not satisfied, he may order for
investigation afresh. If police is satisfied that there is prima facie
case for proceeding against the accused, the report filed by the police
is popularly called challan or chargesheet, in which case the
Magistrate proceeds to take cognizance and issue summons to the
accused and after hearing both the prosecution and the defence, frame
the charges in writing.
Ø The second option available to the Magistrate is that he can record
your statement and the statement of any of the witnesses produced
by you and on the basis of evidence so available before him, he can
take cognizance and issue summons to the accuseds named in your
98 Courts, Police, Authorities & Common Man
complaint. The accused appear before the court, apply for his bail (
or if bail was earlier granted, then he apply for extension of his bail),
the bail is granted by the court ( in case of bailable offence), he is
given copies of the documents filed by you and he is given time to
argue against framing of charges against him. Thereafter, the court
proceeds and either frame charges against him or discharges him.
It is necessary that you are personally present in the court when your
criminal case is called. However, it has been held by certain High Courts
that complainant can be represented by his attorney. The magistrate may
dismiss your complaint under section 249 on account of your absence.
The magistrate can also dismiss your complaint under section 203 if after
perusing your complaint and considering your statement and the statements
of your witnesses, he is of the opinion that there is no sufficient ground
for proceeding. The dismissal of the complaint has the effect of discharging
the accused.
One more remedy which can be exercised if the police fail to register FIR
on your complaint which discloses commission of cognizable offence, is
to file a Criminal Writ Petition under Article 226 of the Constitution of
India in the High Court.
4. What is the power of police to compel a person to appear before it ?
The power of the police relating to compelling a person to appear before
it and relating to his interrogation are prescribed in Sections 160 and 161
of Cr.P.C.
As per Section 160, any police officer who is conducting an investigation
can ask the following persons to appear before him :
(i) who appears to be acquainted with the facts and circumstances of
the case, whether on the basis of any information received or otherwise.
Only such person can be called by the police officer who is within the
limits of his police station or the adjoining police station.
However, the police officer can ask the person to appear, only through an
order to that effect in writing. The person is not bound to appear on
verbal direction of the police officer.
As can be seen, the power given to the police officer is very wide. If it
appears to him that the person is acquainted with the facts and
circumstances of the case under investigation, he can order such person
to appear before him and such person is bound to appear before him.
However, there is an exemption in case of a woman and a male person
Part III : Criminal Law Administration System 99
(3) For obtaining correct name and address : Where a person, on being
asked by a police officer, refuses to give his name and address, then under
certain circumstances, it would be proper on the part of the police to
arrest such a person with a view to ascertain his correct name and address
(Section 42).
(4) For removing obstruction to police : Whoever obstructs a police
officer in the execution of his duty is liable to be arrested then and there
by such a police officer. This is essential for effective discharge of police
duties. (Section 41(1)(e))
(5) For retaking a person escaped from custody : A person who has
escaped from lawful custody is liable to be arrested forthwith by the police.
(Section 41(1)(e))
The decision to arrest should be made fairly having regard to the liberty
of the individual and the interests of the society. Ideally, a judicial officer
is best suited to decide such issues with a fair measure of reasonableness,
impartiality and detachment. Therefore, basically it is for a magistrate to
make an arrest-decision on the information generally obtained from the
police or the complainant. If the magistrate makes a decision to arrest, he
would issue a warrant of arrest. An arrest warrant is a written order
signed, sealed and issued by a magistrate and addressed to a police officer
or some other person specially named and commanding him to arrest the
body of the accused person named in it.
Arrest with a warrant
An arrest warrant may be issued by a magistrate after taking cognizance
of any offence, whether cognizable or non-cognizable.(section 87, 204).
If the case in which the cognizance has been taken is a summons case (i.e.
offence punishable with upto 2 years imprisonment), a summons shall be
issued to the accused person in the first instance for his attendance in
court. If the case is a warrant case (i.e. offence punishable with more
than 2 years imprisonment), a warrant for the arrest of the accused person
may normally be issued for causing the accused to be brought before the
court. In practice, however, there is no occasion for the magistrate to
issue arrest warrant after taking cognizance of a cognizable offence on a
police report because the police report is submitted to the magistrate after
the police had completed the investigation and during the investigation
the police has the power to arrest without warrant a person involved in
the commission of a cognizable offence (section 41). The arrest warrant
can be executed anywhere in India (Section 77).The police officer arresting
a person under an arrest warrant is under a duty to show him the arrest
warrant, if so required by him (Section 75).
102 Courts, Police, Authorities & Common Man
If the failure to attend the court after receiving summons as witness is due
to just and excusable reasons, the court can excuse the non-attendance.
However, if the witness without any just excuse neglect or refuse to attend
the court on the given day and time, the court may deem it as an offence
and try him by summary procedure and give him opportunity to show
cause as to why he should not be punished. Depending upon his response,
the court can sentence him. However, there is no provision for
imprisonment, only fine can be imposed. The maximum fine which can
be imposed is Rs.100/-.
However, as per Section 349, if a person has been called by the court to
produce any document or thing and fails to produce the same on the given
day and time and does not given any excusable explanation for such failure,
the court may sentence him for up to 7 days. If he produce the thing in the
meanwhile, he is released from custody. However, if he still persists with
refusal, he may be tried under Section 345 or 346 of Cr.P.C.
8. What is the sequence of events before and after Arrest ?
An offence is committed. FIR is lodged naming some persons as probable
accused. The police conducts investigation. During investigation, the
police arrest persons who appears to be connected with the commission
of offence. It is the duty of the police officer arresting the accused without
warrant to tell him the full particulars of the offence for which he is being
arrested and the reasons for his arrest. ( section 50). The arrested person
can not be kept by the police in lock up for more than 24 hours. If the
police finds that it is unable to complete the investigation in 24 hours, it
is bound to produce the arrested person (accused) before the concerned
Magistrate. When the police produce the accused before the Magistrate,
it makes an application that the investigation is not yet complete and that
it needs the accused for interrogation in connection with the commission
of the offence and therefore the custody of the accused may be given to
them for some more days. The giving of custody of the accused to the
police in this manner is called ‘police remand’.
In such a situation , there are three possibilities :
a. The Magistrate may agree with the police and grant remand to the
police. However, the Magistrate can not give police remand for more
than 15 days in total.
b. The Magistrate may not agree with the police and may be of the
opinion that nothing is to be found out from the accused and that the
police is requesting for remand only to torture him in custody. In this
situation, the Magistrate reject the application of the police and send
Part III : Criminal Law Administration System 107
CrPC, may release you on your executing a bond ( with or without sureties)
that you will appear before the magistrate if and when so asked. When
you are so released, the police will continue its investigation and on
conclusion of the same, it may either file a closure report or a chargesheet.
If a closure report is filed, then you are not required to appear before the
magistrate’s court and you are deemed to be discharged. However, if a
chargesheet is filed by the police against you, then upon the magistrate
taking cognizance, you are issued summons to appear before the court on
a particular day. You are given copies of documents filed by the police
and given time to argue against framing of charges against you. Thereafter,
the court proceeds and after hearing the prosecution and your counsel,
may either frame charges against you or may discharge you.
If you are arrested and during investigation the SHO thinks that there is
sufficient evidence against you, he may forward you to the magistrate. At
this juncture, you can move an application for bail. If the offence is bailable,
the magistrate is bound to release you on bail. If the offence is non-bailable,
then it is in the discretion of the magistrate whether to grant you bail or not.
He may either allow your bail application or dismiss the same.
If you are arrested and the investigation can not be completed within 24
hours, and there are grounds for believing that the allegation or information
against you is well founded, then the SHO or the IO( who can not be
below the rank of a Sub Inspector) is bound to forward you to the
magistrate, alongwith the copy of the police diary showing the
investigation conducted so far. At this juncture, you can move an
application for bail. If the offence is bailable, the magistrate is bound to
release you on bail. However, if the offence is non-bailable, then it is in
the discretion of the magistrate whether to grant you bail or not. He may
either allow your bail application or dismiss the same.
11. What is the remedy available to me if I am unlawfully detained or
arrested? Can I file case against police ? Can I claim compensation
from police ?
If you are unlawfully detained/arrested by any person including a police
officer, it amounts to an offence of false imprisonment. ( Under Section
43 Cr.P.C., even a private person can arrest (i)a person having committed
non-bailable and cognizable offence in his presence or (ii)any proclaimed
offender. However, he is bound to hand him over to a police officer without
unnecessary delay).
A civil wrong is called a tort while a criminal wrong is called a crime or
felony. The remedy to the victim in case of a tort is to file a claim for
112 Courts, Police, Authorities & Common Man
(6) The person attending in pursuance of the order of the police officer
can require the police officer to pay the reasonable expenses incurred
by him for such attendence, depending upon the rules framed, if any,
by the State Govt. in this regard.
12. What is the law relating to issue of summons and search warrant
to compel the production of things, documents etc. ?
This subject is dealt with in Cr.P.C. in Chapter VII in sections 91-105. If
a court is of the opinion that a certain document or other thing is necessary
for the purposes of the trial of the case, it may issue summons under
section 91 to the person in whose possession such document or thing is
believed to be, requiring him to produce the same before the court at the
time and place mentioned in the summons. Such person is not under an
obligation to attend personally. He may send the same through some other
person.
The SHO of a police station also can issue a written order to a person to
produce a document or thing believed by him to be necessary for the
purposes of any investigation or enquiry.
If the court is of the opinion that the person against whom a summon to
produce a thing has been issued would not produce the same or if it is not
known as to in whose possession such thing is lying, then the court may
issue a search warrant to search the place where the desired document
or thing is believed to be available (Section 93). It is the duty of the
police to search/inspect the place or part strictly according to its description
in the search warrant and not beyond.
A Judicial magistrate or SDM can issue a search warrant authorising any
police officer above the rank of a constable to enter a premises and search
for stolen goods, objectionable articles etc. as detailed in Section 94.
The search procedure to be followed by a person ( including police officer)
executing the search warrant is prescribed in Section 100 Cr.P.C. :
(i) Before making search of a premises, he must call, for witnessing the
search, 2 or more independent and respectable inhabitants of the said
locality or of any other locality if no such person from that locality is
willing to be a witness to the search.
(ii) The search must be made in their presence.
(iii) A list of the things seized during search and the places where these
were found, is required to be prepared by the officer and must be got
signed by such witnesses.
Part III : Criminal Law Administration System 115
(iv) Such witnesses can not be compelled by the police to attend the court
as a witness, however, court may specially summon them but only if
required.
(v) The occupant of the place or any person on his behalf must be
permitted to attend during search.
(vi) A copy of the list prepared as above and signed by the said witnesses
must be delivered to him.
(vii) If any person in/about such premises is reasonably suspected of
concealing about his person any article for which search is to be
made, then body of such person may also be searched. A list of things
taken from his possession should be prepared and copy thereof must
be given to him. If a woman is so searched, she shall be searched by
another woman with strict regard to decency.
Quite often, the police do not comply with the requirement of arranging 2
independent witnesses and plant its own witnesses and take the excuse
that independent witnesses were not forthcoming to witness the search. It
was held by Punjab & Haryana High Court in Sadhu Singh vs State of
Punjab (1997) 3 Crimes 55 that a streo-type statement of non-availability
of any public witness will not be sufficient, particularly, when at the
relevant time, it was not difficult to procure the services of public
witnesses. Though there can be cases when the public witnesses are
reluctant to join or are not available, but the prosecution must show a
genuine attempt having been made to join public witnesses.
Search without search warrant (Section 165)
A police officer under following special circumstances is authorized to
search a premises without a search warrant :
(a) the SHO or I.O. (investigating officer of the case) has reasonable
grounds for believing that anything (which is necessary for the
purposes of an investigation into any offence which he is authorized
to investigate) may be found in a place
(b) such place must be within the jurisdiction of his police station
(c) in his opinion, such thing can not otherwise be obtained without
undue delay, then he may search for such thing at such place
However, to make a search without a search warrant, he must fulfill the
following conditions :
(1) before proceeding to make search, he must record in writing the
116 Courts, Police, Authorities & Common Man
grounds of his belief and must specify therein, as far as possible, the
thing for which search is to be made
(2) he must conduct the search himself personally, if practicable.
(3) If he is not able to conduct search personally, he may authorize by
order in writing any subordinate officer. In the order, he must specify
the place to be searched and also the thing to be searched, as far as
possible. Before authorizing subordinate officer, he must record the
reasons in writing why he is not able to carry out the search personally
(4) He must forthwith send the copies of the writings recorded by him in
(1) and (3) above to the nearest magistrate empowered to take
cognizance of the offence
(5) Copies of these writings must be given free of cost to the owner/
occupier of the place searched if application in this regard is made
by him to the magistrate
(6) Provisions of section 100 regarding procedure for search applies to
search under this section also
Under Section 153, the SHO can enter any place within his jurisdiction
without a search warrant for the purpose of inspecting or searching for
any false weights, measures or instruments if he has reason to believe
that such things are kept therein. If he finds these during search, then he
may seize the same and must forthwith give information of such seizure
to the concerned magistrate.
Seizure (Section 102)
Any police officer can seize any property which may be alleged or
suspected to have been stolen or which may be found under circumstances
which create suspicion of the commission of any offence. This includes
the power to seize/freeze the bank account also.
He must forthwith report the seizure to the concerned magistrate. If he is
subordinate to the SHO (Station House Officer i.e. officer in charge of the
police station), then he must forthwith report the seizure to the SHO also.
13. How to know whether an offence is bailable or non-bailable,
cognizable or non-cognizable ?
Offences under the Indian Penal Code are classified on the basis of various
criterion like Cognizable & Non-cognizable, bailable & non-bailable. The
classification of various offences is given in the Schedule I of the Cr.P.C.
A cognizable offence is one for which a police officer can arrest the
Part III : Criminal Law Administration System 117
jurisdictions. (under section 20(5), the State Govt. can confer all or any
of the powers of the Executive Magistrate in relation to a metropolitan
area upon the Commissioner of Police. Metropolitan area is an area having
population of more than 10 lakh people and declared as such by the State
Govt. by a notification under section 8). Generally, the kalandra is made
by the police when there is clash between two groups or there is a public
brawl etc.
16. What is the remedy in the criminal law for removal of public
nuisances ?
Public nuisance is both a civil wrong as well as a criminal wrong. A person
aggrieved by the same can file a suit for damages/compensation in a civil
court against the person causing the public nuisance.
In criminal law, public nuisance is defined in section 268 IPC. As per
this, a person is guilty of public nuisance
- who does any act or is guilty of an illegal omission
- which causes
- any common injury, danger or annoyance
- to the public, or
- to the people in general who dwell or occupy
property in the vicinity, or
- which must necessarily cause
- injury, obstruction, danger or annoyance
- to persons who may have occasion to use any public right.
Generally, negligence gives rise to the nuisance. Depending upon the type
of negligence and nuisance, there are various offences specified in Sections
269 to 291 IPC. Several of such offences are cognizable. Thus, a FIR can
be registered in respect of these. The police will then investigate the offence
and file its chargesheet in the court of magistrate. Alternatively, a criminal
complaint under section 190 CrPC can also be filed directly to the
concerned magistrate’s court. It may be noted that almost all these offences
are bailable. The result of FIR or the criminal complaint is the punishment
of the person causing nuisance. Such an action seeks to punish the wrong
doer.
However, there are special provisions prescribed in the CrPC itself for
removal of nuisance. These are provided in Chapter X(B) running from
Sections 133 to 148 Cr.P.C. The main provision is section 133. The power
for removal of nuisance is given to the District Magistrate or the S.D.M.
or any other authorized Executive Magistrate. If any of these officers, on
Part III : Criminal Law Administration System 121
crop, etc. in his area and he is satisfied that the said dispute is likely to
cause a breach of peace in the area, then he can send notice to the parties
involved in the dispute to appear before him on the given day and time
and give in writing their submissions about their respective claims to the
subject matter of the dispute. The parties can appear personally or through
their pleader.
After hearing the parties and after taking the evidence, the Magistrate
can pass an order declaring which party is entitled to the possession of
the property in dispute and can restore the possession to the party forcibly
and wrongfully dispossessed.
If the Magistrate is not able to find out as to which of them is entitled to
possession, he may attach the property under dispute and appoint a receiver
to collect the income from that property, until a competent court has
decided such a question. The Magistrate can withdraw the attachment at
any time if he is satisfied that there is no longer any likelihood of breach
of peace with regard to property in dispute.
Similarly, if any dispute exist regarding the right of usage of any land or
water, which dispute is likely to cause breach of peace, the Magistrate
can order the parties concerned to appear and file their respective claims.
After hearing them and after taking evidence, he shall decide as to if any
party has the right to use the land or water in question.
While taking proceedings under section 145, the Magistrate can
simultaneously exercise his powers of kalandra under section 107.
If a police officer comes to know that some person is planning to commit
any cognizable offence, then he may arrest such person under Section
151 without any warrant and without any order from the Magistrate if it
appear to him that without arresting him, the commission of the said
cognizable offence can not be prevented.
18. Can I compromise a criminal matter with the other party, so that
the case is closed against me ?
Compromising in a criminal matter is called compounding of offence.
Suppose you are an accused in a cheating case under section 420 IPC. In
such a case, you can compromise the matter with the person so cheated.
This is legally permissible under section 320 Cr.P.C. wherein various
offences under Indian Penal Code can be compounded. However, all
offences are not compoundable. Only the offences mentioned in section
320(1) can be compounded by the persons mentioned therein. Section
Part III : Criminal Law Administration System 123
320(2) mention the offences which can be compounded only with the
permission of the court before whom the case is pending. The
compounding of an offence in this manner has the effect of the acquittal
of the accused.
For closing the case against you, you have to file an application before
the Court, where the case is being tried, mentioning therein that you have
compromised the matter with the affected person. It is better if the affected
person also files his affidavit alongwith this petition that he has
compromised the matter with you and that he has no objection if the FIR
and the criminal proceedings against you are quashed. If there is a written
compromise, a copy of the same should also be filed alongwith the petition.
The court ordinarily send/refer the case to the Lok Adalat for settlement
and disposal, if the offence is compoundable.
In practice, the people mostly file a Criminal Miscellaneous Main petition
in the High Court under section 482 Cr.P.C for quashing of the FIR and
for quashing of the criminal proceedings pending in the trial court. The
High Court, on recording the statements of both the parties, or after being
satisfied in any other manner that no fruitful purpose would be served by
continuing the proceedings against the accused, allows the petition and
quashes the FIR and the criminal proceedings pending in the trial court.
19. If I am called as a witness and I then appear in the court, am I
entitled to the expenses incurred by me ?
There is mainly one provision in the entire Code which talks of payment
of expenses to the witnesses, which is contained in Section 312 of the
Code of Criminal Procedure :
“312. Expenses of complainants and witnesses
Subject to any rules made by the State Government, any Criminal Court
may, if it thinks fit, order payment, on the part of the Government, of the
reasonable expenses of any complainant or witness attending for the
purposes of any inquiry, trial or other proceeding before such court under
this Code.”
Thus, any criminal court can order for the payment of reasonable expenses
to a witness for attending the court. ‘Reasonable’ is not defined anywhere
in the Code. Thus, it can be safely deduced that reasonable expenses
would at least be the actual expenses incurred by the witness in traveling
to and from the court and would also include the cost of time devoted by
him in the court which he would otherwise devoted in his business/
124 Courts, Police, Authorities & Common Man
profession for earning money. As per the section, these expenses, which
in common parlance is called diet money, can be ordered by the court
only if it thinks it fit. In practice, the courts do order for the payment of
expenses to witnesses but the amount ordered is very small amount
compared to the actual expenses. If a witness fails to appear before the
court on the date and time fixed, he can be sentenced to fine up to Rs.100
by the court under Section 350 after giving him a show cause notice.
If a police officer making an investigation require a person to appear as
witness before him by written order, then the State Govt. may provide for
the payment by the police officer concerned of the reasonable expenses to
every person attending at any place other than his residence (Section 160(2)).
During trial of a complaint case, if the accused makes an application to
the Magistrate’s court to summon certain witnesses, then before
summoning the witnesses, the Magistrate can require the accused to
deposit reasonable expenses, to be incurred by the witness in attending
for the purposes of trial, in the court (Section 243(3) and 247).
Though the witnesses are there to assist the court, but in practice, they are
the most harassed one. Instead of receiving appreciation for assisting the
court in coming to give evidence, they are often treated in the same manner
as the accused. The Hon’ble Supreme Court was constrained to observe
about the plight of the witneses in the following words in the case of
Swaran Singh vs State of Punjab reported in IV (2000) SLT 138 (at page
147):
“A criminal case is built on the edifice of evidence, evidence that is
admissible in law. For that witnesses are required whether it is direct
evidence or circumstantial evidence. Here are the witnesses who are
harassed lot. A witness in a criminal trial may come from a far-off place
to find the case adjourned. He has to come to the court many times and at
what cost to his own self and his family is not difficult to fathom. It has
become more or less a fashion to have a criminal case adjourned again
and again till the witness tires and and he gives up. It is the game of
unscrupulous lawyers to get adjournments for one excuse or the other till
a witness is won over or is tired. Not only that a witness is threatened; he
is abducted; he is maimed he is done away with; or even bribed. There is
no protection for him. In adjourning the matter without any valid cause,
a court unwittingly becomes a party to miscarriage of justice. A witness
is then not treated with respect in the Court. He is pushed out from the
crowded court room by the peon. He waits for the whole day and then he
finds that the matter adjourned. He has no place to sit and no place even
Part III : Criminal Law Administration System 125
For example :
(a) A, in support of a valid claim which B has against Z for Rs.1000/-,
falsely swears on a trial that he heard Z admit the justness of B’s
claim. A has given false evidence.
(b) A, being bound by an oath to state the truth, states that he believes a
126 Courts, Police, Authorities & Common Man
(b) A makes a false entry in his shop-book for the purpose of using it as
corroborative evidence in a Court of Justice. A has fabricated false
evidence.
(c) A, with the intention of causing Z to be convicted of a criminal
conspiracy, writes a letter in imitation of Z’s handwriting, purporting
to be addressed to an accomplice in such conspiracy, and puts the
letter in a place which he knows that the officers of the police are
likely to search.A has fabricated false evidence. (Section 192 IPC)
Such a person giving false evidence or fabricating false evidence also
includes a police officer or any other Govt. servant and thus, a case can
be instituted against them also for such acts.
Punishment :
#Intentionally giving or fabricating false evidence in any stage of a judicial
proceeding is punishable with upto 7 years imprisonment and fine. An
investigation directed by law prior to proceeding before a court or directed
by the Court according to law and conducted under the authority of court,
is a stage of judicial proceeding. Thus, investigation by a police officer or
by a local commissioner under order of a court is a judicial proceeding.
(Section 193)
# Intentionally giving or fabricating false evidence in any other case
is punishable with upto 3 years imprisonment and fine.
# If giving or fabricating false evidence is with the intention to cause
or knowing that it is likely to cause any person to be convicted of an
offence which is punishable with death, then the punishment is upto
life imprisonment or rigorous imprisonment upto 10 years and fine.
# If an innocent person is convicted of an offence punishable with
death and such death punishment is carried out, in consequence of
such false evidence, then the person giving false evidence is
punishable with death or life imprisonment or rigorous
imprisonment upto 10 years and fine. (Section 194)
# If giving or fabricating false evidence is with the intention to cause
or knowing that it is likely to cause any person to be convicted of an
offence which is punishable with upto life imprisonment or minimum
imprisonment of 7 years, then the punishment is the same to which
the person convicted would be liable.
For example,
A gives false evidence before a Court of Justice intending thereby to
128 Courts, Police, Authorities & Common Man
believes to be incorrect,
- intending thereby to cause, or
- knowing it to be likely that he may thereby cause,
- injury to any person,
then he is liable to be punished with upto 3 years imprisonment or with
fine or with both.
Under Section 168, if a Public servant unlawfully engages in trade, then
he is liable to be punished with upto 1 year simple imprisonment or with
fine or with both.
Under Section 169, if a Public servant unlawfully buys or bids for property,
then he is liable to be punished with upto 2 year simple imprisonment or
with fine or with both
It must be remembered that a public servant can also be punished for an
offence for which an ordinary person can be punished. That is, apart from
these special sections meant exclusively for public servants, the public
servants can also be prosecuted for offences under other sections.
OTHER RELATED OFFENCES :
Section 182 : False information with intent to cause public servant to use
his lawful power to the injury of another person :
Whoever gives to any public servant
- any information
- which that person knows or believes to be false,
- intending thereby to cause, or
- knowing it to be likely that he will thereby cause,
- such public servant
- to do or omit to do anything ( which such public servant ought not to do
or omit if the true state of facts respecting which such information is
given were known to him), or
- to use the lawful power of such public servant to the injury or annoyance
of any person,
then he is liable to be punished with upto 6 months imprisonment or with
fine or with both.
Illustrations :
(a) A falsely informs a public servant that Z has contraband in a secret
136 Courts, Police, Authorities & Common Man
rise in inflation in last few decades, the Parliament vide Amending Act
No.50 of 2001 (applicable w.e.f. 24.9.2001) has deleted the words “not
exceeding five hundred rupees in the whole”. Now, there is no limit on
the amount of compensation which can be granted under this Section.
However, the discretion lies with the Court which has to grant reasonable
compensation based on the financial capacity of the opposite party and
the facts and circumstances of each case.
In case the maintenance amount ordered by the Magistrate is not paid to
the claimant, the provision provides for levy of fines and also imprisonment
of upto one month or till payment is made, whichever is earlier.
Under Section 125, a wife who has divorced her husband can also obtain
maintenance till she gets married again. If an offer is made by the husband
to provide maintenance only if the wife lives with him and she refuses to
live with him, she can still claim maintenance after providing adequate
reasons for refusing to live with her husband. If the reasons provided by
her are to the satisfaction of the Magistrate, maintenance would be
awarded. If the husband has married another woman or has a mistress, it
would be a sufficient ground to claim maintenance without having to live
with him. However, the wife would not be entitled to receive allowance
for maintenance from her husband if she is living in adultery or if she
refuses to live with her husband without providing adequate reasons or if
she is living separately by mutual consent.
A wife can also claim litigation expenses and maintenance (alimony),
under Section 24 and 25 of The Hindu Marriage Act 1955, from her
husband for her and for her children depending upon the financial status
of her husband. There is no limit on the amount of maintenance under
said provision. Similarly, under the said provisions, the husband can also
claim maintenance and expenses from his wife.
29. What is Curfew?
Curfew, in lay man’s language, is an order passed under Section 144 of
the Code of Criminal Procedure when there is grave likelihood of a riot
taking place or disturbance of public peace or risk of obstruction,
annoyance or injury to any person or danger to human life, health or
safety in an area. Such an order is passed by the Magistrate (District
Magistrate or SDM or any other competent Executive Magistrate) in
charge of the area concerned, when he is of the opinion that immediate
prevention or speedy remedy is desirable. Such an order may be directed
to a particular person directing him to abstain from a certain act or may
Part III : Criminal Law Administration System 147
offence as well as the attempt thereof are made punishable equally. These
are Sections 121, 124, 124A, 125, 130, 131, 15, 153A, 161, 162, 163, 165,
196, 198, 200, 213, 239, 240, 241, 251, 385, 387, 389, 391, 397, 398 and
460.
There are certain sections wherein attempts are treated as separate offences
and punished accordingly. These are Sections 307, 308, 309, 393. Section
309 i.e. attempt to commit suicide is unique in the sense that the completed
offence itself is not punished as it can not be punished.
Then, there is residuary section i.e. section 511. Under Section 511 of the
Indian Penal Code, even an attempt to commit an offence punishable
with upto life imprisonment is itself an offence which is punishable with
upto half of the maximum punishment prescribed for the main offence.
That it why, you would find that mostly, at the time of registering the FIR,
the police often involve Section 511 alongwith the sections of the main
offence.
33. What is the power of the President of India or the Governor of a
State to grant pardon to a person convicted of any offence?
The President of India and the Governor of a State in India enjoys, under
the Constitution of India, very special powers relating to the criminal
law. As we know, the Supreme Court is the highest court of law in India.
However, the President and the Governor have the power to pardon any
person who has been convicted by any court. This power can be exercised
by them at any stage, it is not essential that the person must have exhausted
the remedy of appeal upto the Supreme Court. That means, even if a
person is convicted by the sessions court, he may move a mercy application
to the President or Governor without prejudice to his right of filing an
appeal to the High Court. However, a convicted person can not claim
consideration of his mercy petition as a matter of right and it is the
exclusive privilege of the President or Governor. There is no requirement
of the convicted person moving a mercy application for the President or
Governor to exercise this power. The President/Governor can exercise
this power even suo motu on their own without any application from the
convicted person in this regard.
In exercising power under these Articles, the President and Governor are
not bound by technicalities of law, as is in the case of the Courts, and they
proceed purely on humanitarian basis without being influenced by the
judgment of the convicting Court. This power is not subject to any
constitutional or judicial restraints. This power is intended to afford relief
from undue harshness.
Part III : Criminal Law Administration System 151
II, the President has wider powers and he can exercise power under Article
72 in respect of the offences the subject matter of which forms part of the
List I and also in respect of punishment by the Court Martial and also in
all cases of death sentence. Thus, the Governor can not suspend, remit or
commute a sentence for an offence under sections 489A-D of the Indian
Penal Code because these sections deal with the offences pertaining to
the currency and bank notes and the subject matter of currency and bank
notes is within the exclusive jurisdiction of the Central Government under
Entries 36 and 93 of the List I.
Since the power under these two articles is residuary sovereign power,
there is nothing to debar the President or the Governor to entertain another
petition for pardon, commutation etc. once having rejected the same. There
is nothing to debar them from reconsidering the relevant circumstances
such as change in world opinion against capital punishment.
One has to understand the difference between the various terms used in
these articles :
‘Pardon’ means amnesty.
‘Reprieve’ means suspending a sentence. For example, suspending the
sentence of an accused during pendency of an appeal.
‘Commute’ means to convert the sentence from one form to another. For
example, converting sentence of death into sentence of life imprisonment.
‘Remitting a sentence’ means exempting the accused from undergoing
the sentence or any part of it notwithstanding the decision of the Court
imposing the sentence.
The effect of granting pardon is to absolve the person not only from the
penal consequences of the offence but also from civil disqualifications,
such as loss of office following from his conviction. However, a suspension
or remission of the sentence does not have the latter effect. Pardon has
the effect of acquittal of the accused whereas in case of remission, only
the punishment is removed but the conviction is maintained.
The power of pardon can be exercised by the President or Governor at
any stage, including the pendency of an appeal before the Supreme court
and the Court would be debarred from hearing the appeal if a full pardon
is granted by the President/Governor during pendency of an appeal.
However, this is not so in case the President/Governor has issued order
only for suspending or remitting the sentence. The power to suspend a
sentence is subject to the Rules made by the Supreme Court in exercise
Part III : Criminal Law Administration System 153
of its powers under Article 142, in respect of cases pending before it, in
appeal. Thus, if the President/Governor has merely suspended the sentence
on the ground that the convict intended to file an appeal before the Supreme
Court, the order of the President/Governor would cease to operate as
soon as the convict files his petition for special leave to appeal. It would
then be for the Supreme Court to pass such orders as it think fit as to
whether the petitioner should, pending the disposal of his petition, be
granted bail or should surrender to his sentence or the like.
In the famous case of Nanavati vs State of Bombay reported in AIR 1961
SC 122, the accused Mr. Nanavati was held guilty of murder of his wife.
He had taken the plea that he did so in the fit of grave and sudden
provocation on seeing his wife in compromising position with another
man, due to which he lost his power of self control and shot his wife. He
was sentenced to death. His conviction was upheld upto the stage of
Supreme Court. There was large public outcry. Ultimately, he was
pardoned by the then President of India.
34. What are the circumstances in which even the Govt. can also remit
or commute or suspend the sentence of a convict ?
The power to suspend, remit or commute the sentence of a person is also
enjoyed by the Government by virtue of provisions of Sections 432 and
433 of the Code of Criminal Procedure. However, the power of pardon is
not available to the Government.
The Government can suspend the execution of sentence of the offender
or remit the whole or part of his punishment, at any time, with or without
conditions. If the suspension or remission of sentence is done on
conditions, the said conditions should be acceptable to the offender.
On receipt of an application for suspension or remission of sentence, the
Govt. can, if it so desires, seek the opinion of the Judge of the convicting
court and may also require him to send the certified copy of the court
record alongwith his written opinion. However, the Govt. is not bound by
such opinion.
The Govt. can cancel the suspension or remission if any condition, on
which such suspension or remission was granted, is not fulfilled by the
concerned person. On such cancellation, the person concerned is liable to
be arrested by a police officer without warrant and sent to jail to undergo
the unexpired potion of his sentence.
To file a petition for suspension or remission of sentence in case of a
154 Courts, Police, Authorities & Common Man
convicting him can release him on his executing a bond for a period of
upto 3 years (with or without sureties) to appear and undergo sentence
when called upon and in the meantime to keep the peace and be of good
behaviour, if the court is of the opinion that have regard to the
circumstances of the case ( including the nature of the offence and the
character of the offender), it is expedient to do so. This is called the release
on probation of good conduct. However, the court can not release an
offender on probation of good conduct unless it is satisfied that the offender
resides or would be available within its jurisdiction during the period
mentioned in the bond.
Before releasing an offender under this Section, the court is bound to
take onto consideration the report, if any, of the concerned probation officer
in relation to the case.
The court may pass a further order, if it of the opinion that it is expedient
to do so in the interests of the offender and the public, directing that the
offender shall remain under the supervision of a probation officer named
in the order for a period of upto 1 year. Conditions can be imposed in this
supervision order which are deemed necessary for the due supervision
of the offender. If a supervision order is made, the court is bound to require
the offender to execute another bond to comply with the conditions
mentioned in the supervision order. The intention behind imposing these
conditions is to prevent repetition of the same offence or commission of
other offences by the offender. The conditions of any bond can be varied
by the court on application by the probation officer.
If the offender fails to comply with any of the conditions of the bonds, the
court may issue his arrest warrant or may issue summons to him and his
sureties to appear before the court on the specified day. After hearing the
case, if the court is satisfied that the offender has failed to observe any of
the conditions of the bonds executed by him, then the court can forthwith
sentence him to original imprisonment. If the failure is for the first time,
the court may impose a penalty of upto Rs.50/- instead of sentencing him
to imprisonment.
While releasing an offender under Section 3 or Section 4, the court may
make further order directing the offender to pay reasonable compensation
for the loss or injury caused to the victim and also reasonable costs of the
proceedings.
If the offence is punishable with any imprisonment (but not life
imprisonment) and the convicted person is under 21 years of age, then he
must invariably be released on admonition or probation unless there are
156 Courts, Police, Authorities & Common Man
reasons to be recorded having regard to the nature of the offence and the
character of the offender.
A person dealt with under Section 3 or section 4 does not suffer any
disqualification which is attached to a conviction for an offence under
any law.
# wherever the word ‘may’ or ‘can’ is there in any law, it should always
be understood that it is discretionary and not mandatory. On the other
hand, the word ‘shall’ or ‘should’ always mean mandatory or compulsory.
36. What is the law relating to the children?
The law related to the children can be categorised into ‘offences by the
children’ and ‘offences against the children’. In legal parlance, children
are referred to as juveniles, that is, any boy below the age of 16 years or
any girl of below the age of 18 years.
Offences by children
Nothing is an offence which is done by a child under 7 years of age (Section
82 Indian Penal Code). Thus, even if murder has been committed by a
child below 7 years, it is no offence in the eyes of law.
If the child is above 7 years of age but less than 12 years of age and has
not attained sufficient maturity of understanding to judge the nature and
consequences of his conduct at the time of commission of the act, then
such an act is not an offence in the eyes of law (as per Section 83 Indian
Penal Code).
If any offence ( bailable or non-bailable) is committed by a juvenile (i.e.
any boy below the age of 16 years or any girl of below the age of 18
years), then such a child is entitled to the benefits of Juvenile Justice
Act 1986 and he or she can not be sent to jail under any circumstances.
Under section 21 of the said Act, he may be allowed to go home after
advice or admonition, or he may be released on his executing a bond for
keeping good behaviour for period ranging up to 3 years, or he may be
sent to special home, or may be released under the supervision of some
person appointed by the Competent Authority, etc.
When any person accused of a bailable or non-bailable offence is arrested,
the police officer or the Magistrate, if it appears to them, that the person
is a juvenile, has to forward him/her to the Competent Authority (Juvenile
Court, Juvenile Welfare Board etc.) at the earliest. Then the Competent
Authority hold an enquiry as to the age of the person. It is the age of the
person on the date when he first appear or brought before the Competent
Part III : Criminal Law Administration System 157
Authority, which is relevant. If on that day, he/she is less than 16/18 years,
he/she is entitled to the benefits of the Act. Pending enquiry by the
Competent Authority, such a person is entitled to bail. If the Competent
Authority is of the view that he may again get exposed to criminal
activities, it may send him to an observation home. [Arnit Das vs State of
Bihar IV (2000) SLT 465 ]
A juvenile and a person not a juvenile can not be tried together.
Offences against children
If any person, having the actual charge/control of a juvenile,
- assaults, adandons, exposes or willfully neglect the juvenile or
- causes/procures him to be assaulted, abandoned, exposed or neglected
in a manner likely to cause such juvenile unnecessary mental or physical
suffering,
shall be punishable with imprisonment for a term which may extend to 6
months, or with fine, or with both. ( Section 41, Juvenile Justice Act)
If a person forces a juvenile to indulge in begging or forces him to consume
liquor or drug, he may be punished with up to 3 years imprisonment,
besides fine. If a person employs a juvenile and withhold his earnings or
uses such earnings for his own purpose, such person also is liable for
punishment up to 3 years alongwith fine. This Act is now replaced by
Juvenile Justice (Care and Protection of Children) Act 2000.
37. What action I can take against police or any other public officer
if they harass me ?
You can do all or any of the following :
(1) file a criminal writ petition in the High Court
(2) file a criminal complaint in Magistrate Court if you can show the
action/inaction of the officer falling in any of the offences
(3) make a complaint to vigilance wing of concerned deptt. and/or his
higher authorities, who would take appropriate action against him
under their department rules
(4) make a complaint to the Govt. under Public Sevants ( Inquiries) Act
1850.
(5) make a complaint to Central Vigilance Commission or Public
Grievance Commission
(6) send a complaint to Human Rights Commission, Chief Justice of
158 Courts, Police, Authorities & Common Man
of penalty. The fact that the surety is poor and that the accused had
subsequently been arrested may be a good ground for remitting part of
the penalty.
39. What is done when the Investigation of a case is to be carried out
in a foreign country ?
As a general rule, investigations within India are conducted by our police
officers. Sometimes, during the course of investigation by local police
authorities, it becomes necessary to conduct a part of the investigation
e.g. interrogation of a witness/suspect/accused, verification of some facts,
etc. in a foreign country, particularly keeping in view the importance of
the case, its complicated nature, gravity of the offence, etc. For this
purpose, a police officer or a team of police officers is required to be sent
to the concerned foreign country. However, Indian police officers have
no police powers in any foreign country. Any police action by an Indian
police officer on a foreign land would amount to interference with the
sovereignty of that country unless some required formalities have been
observed.
When it is considered necessary to send any investigator’s mission abroad,
a message is sent to the Interpol Wing of the CBI so that a request to the
National Central Bureau (NCB) of the country concerned can be made
for permission by their competent authorities. In such cases, a note
incorporating the relevant facts of the case along with the points on which
investigation is required to be conducted in a foreign country is usually
sent to the Interpol Wing of CBI. If any person is required to be
interrogated, a questionnaire is also sent. The mission does not start before
the requested NCB has informed that the competent authorities have
granted permission. However, some countries do allow exceptions to this
rule e.g. in urgent cases, but even in such exceptional cases, the NCB of
the requested country is at least informed that investigators are going to
be sent to that country. Before sending a mission abroad for investigation,
following information is usually furnished to the Interpol Wing of the
CBI:
(a) Information about the date and duration of the Mission
(b) Information about the Investigator(s) in the mission
(c) names and ranks of the investigators and the language they use
(d) Information about the penal offence to which the mission relates
(e) Any other facts which might lead to legal or practical problems in
the requested country, like bringing of some special item or some
160 Courts, Police, Authorities & Common Man
suspect etc.
The following points should be borne in mind while sending a request to
the Interpol Wing for causing investigation abroad :
(a) The note/questionnaire/points for investigation should be sent in
triplicate.
(b) If the investigation is required to be conducted in more than one
foreign country, there should be a separate set of questionnaire/points
for investigation for each country.
(c) A separate questionnaire should be prepared for each witness unless
all the witnesses are required to be examined on the same points.
(d) The note/questionnaire/points for investigation should be quite clear
and specific.
(e) The question should be brief and should be narrowed down as far as
possible.
(f) The material should be carefully examined and scrutinized by the
Superintendents of Police concerned to ensure that only relevant
material is incorporated in the note and to ensure correctness of the
facts and figures.
(Note : Kindly see the chapter on Interpol also.)
40. What is the law in India enabling the courts to issue letters of
request (letters of rogatory) to the authorities in foreign countries to
take evidence in relation to cases pending in India ?
The procedure for carrying out investigation in a country or place outside
India and also to provide similar assistance to Court or authority outside
India for carrying out investigation in India, has been prescribed in Section
166-A and Section 166-B of the Code of Criminal Procedure, 1973
(which were inserted by way of an amendment w.e.f. 19.2.1990).
As per these sections, a request can be sent by an Indian Court in which a
case is pending to a foreign court/ Judge requesting the testimony of a
witness residing within the jurisdiction of that foreign court. The statement
of the witness can then formally be taken by the foreign court and
transmitted to the issuing Indian court. Such a request or formal
communication is also called Letter of Rogatory. Similar procedure is
available when such request has come from a foreign court.
Ministry of Home Affairs, Govt. of India has notified the procedure for
sending such requests from India vide S.O. 444(E) which reads as under
“In pursuance of subsection (2) of section 166A of the code of Criminal
Part III : Criminal Law Administration System 161
(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
168 Courts, Police, Authorities & Common Man
Arrest should not be made merely at the request of the Interpol or a foreign
NCB. It is, however, not so in case of a foreigner who has violated any
law of our land, when the normal process of legal formalities will have to
be observed.
50. What happens when Indians are arrested in foreign countries ?
The Interpol Wing, CBI receives arrest reports along with photographs
and fingerprints of Indian nationals from foreign NCBs. When such
references are received, the fingerprints are sent to the National Crime
Records Bureau for record and checking of pervious convictions, if any.
Simultaneously, the concerned local police authorities are requested to
cause enquiries about the true identity and antecedents of the Indian
nationals arrested abroad. Such enquiries should be caused promptly and
a report sent to the Interpol Wing, CBI for onward transmission to the
General Secretariat and the NCBs concerned. The report should include
all relevant information about true identities and antecedents of such
persons and any other information which may be required by the foreign
NCBs.
The remedy available to the arrested Indians is to contest/challenge their
arrest in the court of the country where they are arrested. In addition, they
can also contact the Embassy/consulate of India in the said foreign country
for helping them out.
(Note : Kindly see the chapter on Interpol also.)
3
OTHER INFORMATION
1. Where can I find the decisions delivered by the High Court and the
Supreme Court ?
The decisions and judgments of the Courts are reported in various books/
journals called ‘reports’. Only the decisions of the High Courts and of the
Supreme Court are reported. The decisions of the District Courts and the
Subordinate Courts are not reported, as these are not binding. The decision
of the High Court is binding on the District and Subordinate Courts and
the decisions of the Supreme Court are binding upon all the Courts.(though
some publishers report decisions of consumer courts, ITAT, STAT etc.
also)
The decisions of the Supreme Court are reported in various reports/journals
such as AIR (All India Reporter), SCC (Supreme Court Cases), SLT
(Supreme Law Times), AD (Apex Decisions), etc.
The decisions of all the High Courts are reported in AIR, All India High
Court Cases, etc. Several Journals only report the decisions of a particular
High Court like DLT (Delhi Law Times), DRJ (Delhi Reported Judgments)
report the decisions of Delhi High Court only.
Nowadays, these decisions are also available on computers on CD-ROM
and also through internet on subscription basis, by companies like Grand
Jurix, Manupatra, etc. The select judgments of the Supreme Court and of
certain High Courts can also be accessed via internet by logging on to the
websites of the respective courts.
However, as per The Indian Law Reports Act 1875, the Court is not
bound to hear or rely on just any judgment of High Court cited by the
parties. Only the judgments which have been reported in the Reports
published under the authority of the State Government concerned are
binding upon the Courts.
2. What is a ‘Cause List’ ?
A cause list is the list of cases to be taken up by a court on a given day. On
a given day, each court may have about 50-100 cases. All these cases are
arranged in serial numbers in this list. These cases are taken up in the
Part III : Criminal Law Administration System 171
courts as per this list. The serial number of a case in the list in common
parlance is called the ‘item number’. This list helps the litigant to find out
as to when his matter will be taken up. In the High Courts and the Supreme
Court, generally a case is called by its item number, unlike in the district
courts where the case is usually called by its title (like Ram Kumar versus
Shyam Lal).
The cause list of the Supreme Court and of majority of the High Courts
can be seen in advance nowadays on the internet by logging on the website
www.causelists.nic.in.
3. What are the various statutory bodies of advocates ?
Each profession is governed by a separate law/Act. The advocates
throughout India are governed by the Advocates Act 1961. The supreme
body of the advocates under this Act is the Bar Council of India followed
by a separate Bar Council for each State. Any law graduate becomes
entitled to practice in courts only after he enrolls himself with the Bar
Council of the State where he practice. In practice, an advocate appear
and argue in any court in India, though as per law, he can appear and
argue only in the courts of the State where he is enrolled. All matters of
discipline and professional ethics are controlled and administered by the
State Bar Councils.
There are various courts within a State. For the purpose of common benefit
and interest, the advocates practicing in these courts associate themselves
in the form of associations. However, these associations do not have
statutory status and are merely private bodies, mostly registered under
the Societies Registration Act. For example, advocates practicing in Delhi
High Court have formed Delhi High Court Bar Association, those
practicing in district courts at Tees Hazari in Delhi have formed Delhi
Bar Association, those practicing in district courts at Patiala House in
Delhi have formed New Delhi Bar Association, so on and so forth. There
is no bar on an advocate becoming member of more than one Association.
It is not mandatory for an advocate to become member of any such
Association either.
4. How to identify a senior advocate ?
The Advocates Act 1961 governs the profession of advocates. Based on
the ability, knowledge, experience, expertise and standing at the bar, an
advocate is designated as Senior advocate by the High Court or the
Supreme Court, as the case may be, depending upon the court in which
he is practicing. It is an honour and distinction conferred by the Court in
172 Courts, Police, Authorities & Common Man
condemned prisoner in his cell a few minutes before the hour fixed
for execution. The Superintendent shall then first identify the prisoner
as the person named in the warrant and read over a translation of
the warrant in vernacular to the prisoner. Any other documents
requiring attestation by the prisoner, such as his Will shall thereafter
be signed and attested in the presence of the Superintendent. The
Superintendent will then proceed to the scaffold, the prisoner
remaining in his cell. In the presence of the Deputy Superintendent,
the hands of the convict will next be pinioned behind his back and
his leg irons ( if any) struck off.
(3) The prisoner shall now be marched to the scaffold under the charge
of the Deputy Superintendent and guarded by a head warder and six
warders; two proceeding in front, two behind and one holding either
arm.
(4) On the arrival of the prisoner at the scaffold where the Superintendent,
Magistrate and Medical Officer have already taken their places, the
Superintendent shall inform the Magistrate that he has identified the
prisoner and read that warrant over to him in vernacular. The prisoner
shall then be made over to the executioner.
(5) The criminal shall now mount the scaffold and shall be placed directly
under the beam to which the rope is attached, the warders still holding
him by the arms.
(6) The executioner shall next strap his legs together, place the cap over
his head and face and adjust the rope tightly round his neck, the
noose being 1 ½ inches to the right or left of the middle line and free
from the flap of the cap.
(7) The warders holding the condemned man’s arms shall now withdraw
and at a signal from the Superintendent, the executioner shall draw
the bolt.
873. Body to remain suspended half an hour. Return of warrant.
(1) The body shall remain suspended half an hour and shall not be taken
down till the Medical Officer declares life extinct.
(2) The Superintendent shall return the warrant of execution with an
endorsement to the effect that the sentence has been carried out.
This Manual also contains rules as to the diameter of the rope, the custody
and testing of rope, fitness of hangman etc. etc.
**
9. What is parole ?
The condition of the prisoners is controlled by the Jail Manuals of the
jails in which they are kept. ‘Parole’ is a term which finds mention in the
jail manuals and not in any Act. Parole means the temporary release of a
prisoner for a few days to meet some urgent pressing problem of the
prisoner. While bail is applicable in case of the accused lodged in jail
during the pendency of their case in the court, parole is applicable where
the accused has been convicted by the court and he is serving the sentence
of imprisonment in the prison. The jail manuals generally prescribe the
situations when a prisoner can be granted parole. Parole is generally
granted to a prisoner when a member of his family has died or is seriously
ill or he himself is seriously ill or on the ground of his marriage or the
marriage of his close relative or for any other sufficient cause. Ordinarily,
the period during which the prisoner is out of jail on parole is counted
towards the total period of imprisonment undergone by him unless the
rules, instructions or the terms of grant of parole prescribe otherwise.
The grant of parole is generally an administrative action and is usually
granted by the Government.
10. What are Lok Adalats ?
Lok Adalats are the special type of courts which have been constituted
for the purpose of effecting compromise or settlement between the parties
to a case. The Lok Adalats are constituted and are dealt with under Chapter
VI and VII of the Legal Services Authorities Act 1987. However, the
Lok Adalat can settle/entertain only those cases which are compoundable.
It has no jurisdiction to entertain any case or matter relating to an offence
not compoundable under any law. Generally, the petty cases are settled
through Lok Adalats so as to reduce the burden on the regular courts and
to provide speedy relief to the litigants.
If the case is pending before the regular court and one of the parties make
an application to the court for referring the case to the Lok Adalat on the
ground that there are chances of settlement and that it would serve no
purpose by continuing with the case, the court, if satisfied that the matter
is compoundable, refer the matter to the Lok Adalat for settlement and
disposal. Even both the parties can also make a joint application/prayer.
If the matter is not sorted out amicably in the Lok Adalat, then the party
can revive the case before the regular court on the ground that there is no
possibility of settlement.
In Delhi, in case of petty criminal offences, the Lok Adalats are currently
held on Saturday/Sunday in the Tis Hazari courts complex. For this, a
Part III : Criminal Law Administration System 177
Government, then the aggrieved person can file a writ petition under
Article 226 of the Constitution of India in the concerned High Court for
the enforcement of these rights. Such a writ petition before the High Court
can be filed not only in respect of violation of fundamental rights, but
also in respect of violation or breach of any right. If an order, rule or law
is passed or any action/omission is done by any Government machinery
which is contrary to the underlying spirit of the Constitution, the High
Courts can struck down such an order, rule or law.
Similarly, a writ petition under Article 32 of the Constitution can be filed
directly in the Supreme Court for the enforcement of the fundamental
rights.
In the case of violation of any of the provisions of the Code of Criminal
Procedure 1973 (Cr.P.C.) or when there is no other remedy available for
getting justice as far as the criminal law is concerned, any one can approach
the High Court by filing a petition under Section 482 of the Cr.P.C.
13. Where and how should I complain against Govt. servants and
public authorities ?
Generally, each Govt. department or Institution or Organisation has a
vigilance deptt. of its own. In case you are aggrieved by the act or omission
of any of their officers, you can make a complaint to the vigilance deptt.
of the concerned organisation. In case you have to make a complaint
regarding corruption by some officer, you can get in touch with the Crime
Branch or anti-corruption branch of the State Police. In addition to
this, you can also make complaint to the Central Bureau of Investigation
(CBI) or the Central Vigilance Commission (CVC), if your case falls
within the power of the said organizations.
In certain States, Public Grievance Commission have been established
wherein people can file their complaint regarding corruption etc. in respect
of the State Govt. employees. In Delhi, this Commission is at Vikas
Bhawan and it entertain complaints against various govt. authorities of
Delhi including the Delhi Police. However, there is a set proforma and
procedure to lodge the complaint. The complaint has to be in triplicate
and has to be supported by an affidavit and the complainant has to appear
personally. In Delhi, one can also make a complaint to the Lt. Governor
by calling at his Complaint Cell at tel. no. 22945000. A complaint against
a public servant regarding misconduct can also be given in writing on
oath to the appropriate Government under the Public Servants ( Inquiries)
Act 1850.
180 Courts, Police, Authorities & Common Man
There are proposals to bring into force Right to Information Act in various
States and also at the Central level which would empower the people to
seek information/report/follow up action on their correspondence in the
different departments by paying a nominal fees. Delhi has taken the lead
in this direction by enacting Delhi Right to Information Act 2001. By
making an application to the competent authority in writing in the
prescribed form accompanied with a fees of Rs.50, you can seek
information or material relating to the affairs of the National Capital
Territory of Delhi. You can also inspect the documents, records, works
and can take the notes, extracts and certified copies of the documents.
However, in case of seeking information relating to tender documents,
bids, quotations, business contracts, the prescribed fees is Rs.500/-. If the
authority fails to furnish the information asked for, within a maximum
period of 30 days, it is liable to pay a penalty of Rs.50/- per day for the
delayed period, subject to a maximum of Rs.500/-. However, the authority
is not bound to provide information on certain serious matters specified
in Section 6. The Central Govt. has recently enacted a similar Act i.e.
Freedom of Information Act 2002 (5 of 2003) wherein information
relating to any public authority (excluding certain specified intelligence
and security organisations) can be obtained.
In case you are aggrieved regarding the violation of the human rights of
anybody, you can make a complaint to the National Human Rights
Commission or the Human Rights Commission in your State which have
been established under the Protection of Human Rights Act 1993. ‘Human
rights’ have been defined in the said Act to mean the rights relating to
life, liberty, equality and dignity of the individual guaranteed by the
Constitution of India or embodied in the International Covenants
(international covenants on civil, political, economic, social and cultural
rights adopted by the General Assembly of the United Nations on 16th
December 1966) and enforceable by courts in India.
If case the act or omission of the officer falls within any of the offences
prescribed in the Indian Penal Code or in any other Act/law/enactment,
you can also file a criminal complaint in the court of the Magistrate of
the first class (Metropolitan Magistrate in Delhi) under Section 190 of
the Code of Criminal Procedure 1973. The procedure on filing of such
complaint is governed by Chapter 15 of the said Code.
If you have no other remedy or if your above efforts have failed to bring
about any positive result, you can file a writ petition either in the High
Court (under Article 226 of the Constitution of India) or in the Supreme
Court (under Article 32, but only if your fundamental rights have been
Part III : Criminal Law Administration System 181
affected).
In addition, there are C.C.S.(CCA) Rules 1965 including Conduct Rules
which govern the service conditions of the Govt. officers and provide
departmental penalties for them for acts of misconduct and other such
acts.
14. What is Gazette? What is its authority? What is contained in it?
From where, I can procure the Gazette ?
Gazette is the official document of the Govt. which contains the orders,
notifications, circulars etc. issued by the Govt./parliament/other authorities
etc. from time to time. For the matters related to Centre (List I of
Constitution), the notifications etc. are published in the Gazette of India.
For matter related to State (List II of the Constitution), the notifications
etc. are published in the Gazette of the respective State. Any law, after it
is passed by the Parliament and after being signed by the President of
India, is required to be published in the Gazette of India for it to become
enforceable. Any law does not become an enforceable law until it is
published in the Gazette. Same is the case with the State Gazette.
The earliest Act related to Gazette in India is Act No. XXXI of 1863
which brought into existence the Gazette of India. It received the assent
of the Governor General on 16th December 1863.
There are many parts of Gazette of India. The Parts further are divided
into Sections. The subjects dealt with under various Parts and Sections
thereof are as under:
PART I
Section 1 : Notifications relating to Non-Statutory Rules,
Regulations, Orders & Resolutions issued by the
Ministeries of the Govt. of India (other than the Ministry
of Defence) and by the Supreme Court.
Section 2 : Notifications regarding Appointments, Promotions, Leave
etc. of Govt. Officers issued by the Ministry of Defence
and by the Supreme Court.
Section 3 : Notifications relating to Resolutions and Non-Statutory
Orders issued by the Ministry of Defence
Section 4 : Notifications regarding Appointments, Promotions, Leave
etc. of Govt. Officers issued by the Ministry of Defence.
182 Courts, Police, Authorities & Common Man
PART II
Section 1 : Acts, Ordinances and Regulations
Section 1A : Authoritative taxts in Hindi language of Acts, Ordinances
and Regulations
Section 2 : Bills and Reports of the Select Committee on Bills
Section 3(i) : General Statutory Rules (including Orders, Bye laws etc.
of general character) issued by the Ministries of the Govt.
of India ( other than the Ministry of Defence) and by
Central Authorities (other than the Administration of
Union Territories)
Section 3(ii) : Statutory Orders and Notifications issued by the Ministries
of the Govt. of India (other than the Ministry of Defence)
and by Central Authorities (other than the Administration
of Union Territories)
Section 3(iii) : Authoritative texts in Hindi (other than such texts,
published in Section 3 or Section 4 of the Gazette of India
of General Statutory Rules & Statutory Orders (including
Bye-Laws of a general character) issued by the Ministries
of the Govt. of India (including the Ministry of Defence)
and by Central Authorities (other than the Administration
of Union Territories)
Section IV : Statutory Rules and Orders issued by the Ministry of
Defence
PART III
Section 1 : Notifications issued by the High Courts, the Comptroller
and Auditor General, Union Public Service Commission,
the Indian Govt. Railways & by Attached and Subordinate
Offices of the Govt. of India
Section 2 : Notifications and Notices issued by the Patent Office,
relating to Patents and Designs
Section 3 : Notifications issued by or under the authority of Chief
Commissioners
Section 4 : Miscellaneous notifications including Notifications,
Orders, Advertisements and Notices issued by Statutory
Bodies
Part III : Criminal Law Administration System 183
DELHI GAZETTE
Part I : Notifications regarding Appointments, Promotion, Leaves
etc. of Government Officers of the Govt. of the National
Capital Territory of Delhi
Part II (1) : Notifications and Orders on Judicial and Magesterial
matters, reproduction of High Coury Notifications and
statutory notifications of the Election of India and other
Election notifications
Part II(2) : Notices of the Circuit Civil and Criminal Courts
Part III : Notifications of statutory local bodies
Part IV : Notifications of the Departments of the National Capital
Territory of Delhi Administration other than Notifications
included in Part-I
Part V (2) : Notices and other matters published by Head Offices of
the Delhi Administration and miscellaneous matters not
included.
4
Law relating to Bail
Bail
When during investigation, a person is arrested and brought before the
Magistrate, the lawyer of the arrested person moves an application to the
court to release the accused on bail, pending the investigation and trial of
the case, mainly on the ground that the accused has nothing to do with the
offence in question, that he has been falsely implicated, that his presence
is not required by the police and that he is the only bread earner of his
family and that he is respectable person and there is no chance of his
absconding or threatening the witnesses when out on bail. The Public
Prosecutor on behalf of the police contest the bail application, mainly on
the ground that the investigation is still going on and if the accused is
released, then he can use his influence and can tamper with the prosecution
witnesses and evidence and that he would abscond and would not be
available to face the trial.
The court may
a. grant him the bail the same day
b. keep the bail application pending and grant him interim bail
c. keep the bail application pending, but send him to judicial custody
If bail is granted to the accused and the Magistrate order to release the
accused on bail, he specifies the amount of bail, the amount of surety and
number of sureties. The lawyer of the accused is ready with the bail bond
form duly filled in, but the entry regarding amount of bail as blank. On
grant of bail, the lawyer fills in the amount of bail in the said form. The
said form has two parts :
(i) The upper part is the Bail Bond or Muchalka which is signed by the
accused. It is very important to note that correct name of the accused
and his father, as it appears in the FIR, should be written in bail bond
otherwise the accused is not released by the Jail authorities in the
fear of releasing someone else having similar name.
(ii) The lower part is the Surety Bond which is signed by the surety of
the accused. On the back of this form, the affidavit of the surety is
typed, stating :
Part III : Criminal Law Administration System 185
The bail in case of bailable offences is granted under section 436 Cr.P.C.
The bail in case of non-bailable offences is granted by the Magistrate’s
court under section 437 and by the Sessions Court and the High Court
under section 439. When a person is released on bail, he is notionally in
the custody of the court, through the surety.
Right to Bail in case of slow investigation and slow trial
If the investigation is not completed by the police –
l within 90 days, in case of offences punishable with death, life
imprisonment or more than 10 years imprisonment
l within 60 days, in case of any other offence
then the accused earns a right to be released on bail on the expiry of the
said 90 or 60 days, under Section 167 of the Code of Criminal Procedure.
This is to ensure that the police conducts the investigation speedily.
Similarly, if the trial in case of a non-bailable offence triable by a
Magistrate court is not completed within 60 days from the first date fixed
for taking evidence, the accused earns a right to be released on bail under
Section 437(6) of Code of Criminal Procedure, if he has been in custody
during the whole period of said 60 days.
Unreasonable conditions can not be imposed while granting bail
In one of the Delhi cases involving offence of cheating under Section 420
and 406 IPC, the Metropolitan Magistrate granted bail to the accused
subject to the condition, apart from others, that he should pay a sum of
Rs.2 lakh to the complainant through his surety. The surety issued cheques
for said amount but the cheques were dishonored. On this ground, the
court cancelled his bail and sent him again to prison. He moved the
Sessions Court for releasing him on bail. When he failed, he moved to the
High Court for some relief. But even the High Court did not help him.
Ultimately, he filed petition in the Supreme Court. The Supreme Court
expressed its unhappiness on such a state of affairs by stating :
“we are unable to appreciate even the first order passed by the
Metropolitan Magistrate imposing the onerous condition that an accused
at the FIR stage should pay a huge sum of Rs. 2 lacs to be set at liberty. …
Can he be detained in custody endlessly for his inability to pay the amount
in the range of Rs. 2 lacs. … to keep him in prison for such a long period,
that too in a case where bail would normally be granted for the offences
alleged, is not only hard but improper.”
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Contents of the Affidavit filed by the Surety with the Bail Bond
The Forms of Bail Bond and Surety Bond are available in printed form in
the market. Generally, both are contained in one Form. The upper part is
the Bail bond meant to be filled by the accused and the lower part is the
surety bond meant to be filled by the surety. The affidavit of the surety is
generally typed or hand written at the back of this form by the lawyer in
the following words:
AFFIDAVIT
1. That I am the ………….. of the accused and I have full control over
him. ( state the relation)
2. That I undertake to produce him before this Hon’ble Court as and
when so required.
3. That I hold the ration card no. …………….. and/or Election I-card
No. ………….. and/or Passport No. ………………..
Part III : Criminal Law Administration System 191
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.
safety; or a riot or affray, then such person may be sent to jail for up
to 6 months. (Section 133)
Disturbance of public peace (curfew)
l When there is grave likelihood of a riot taking place or disturbance
of public peace or risk of obstruction, annoyance or injury to any
person or danger to human life, health or safety in an area, and the
DM or SDM or any other Executive Magistrate is of the opinion that
immediate prevention or speedy remedy is desirable, then such an
Authority can impose curfew, under Section 144 Cr.P.C., in that area
thereby directing a particular person or persons or general public in
the area in question to abstain from a certain act and to follow the
orders. Such an order remain in force for up to 2 months, but is
extendable by another 6 months by State Govt. if need so arises.
Quarrel concerning immoveable property
l When there takes place a dispute or fight between certain persons
over any land, property or its boundaries, then the SDM of the area
concerned can order the parties concerned to appear before his court
on a certain day and time and give their written statements in support
of their respective claims regarding actual possession of the land in
question. The Magistrate then, after taking evidence, decide as to
which party is entitled to possession of the property in dispute.
(Section 145)
Right of arrested person
l It is the duty of the police officer arresting the accused without warrant
to tell him the full particulars of the offence for which he is being
arrested and the reasons for his arrest.
Tainted investigation
l Investigation should be completed by the police as early as possible,
without any unreasonable delay. If the police officer deliberately fail
to record the FIR and prepare it after reaching the spot after due
deliberations, the investigation is tainted.
FIR can be cancelled only by the court
l FIR once registered by the police, can not be cancelled by the police.
It can be quashed only by High Court in exercise of its extra ordinary
jurisdiction under section 482 CrPC.
Part III : Criminal Law Administration System 195
may allow such application and allow the accused to appear through
his lawyer. However, every time a new application for exemption
has to be moved whenever the accused is not in a position for
personally appearing. However, if the Magistrate require the presence
of the accused, he can direct the personal attendance of the accused
at any stage. (Sec.205)
Compensation to accused if he is discharged/acquitted
l When in a case instituted on a criminal complaint or on the basis of
information given to police officer or Magistrate, the accused is
discharged or acquitted by the court, then the court may direct the
complainant/informant to pay compensation to the accused for wrong
accusation. This is in addition to any other civil or criminal liability
against such complainant/informant. (Section 250)
Withdrawl of complaint
l The Magistrate may permit the complainant to withdraw his complaint
under section 257.
Evidence to be recorded in presence of accused
l It is compulsory that the evidence in a case should be taken in the
presence of the accused. If his personal appearance has been dispensed
with, then the evidence should be taken in the presence of his lawyer.
(Section 273)
Recording of evidence of a witness
l After the evidence of a witness is completed, it should be read over
to him in the presence of the accused or his lawyer. If the witness
denies the correctness of any part of his statement, the court may
correct the same. If the witness gives his evidence in language A, but
it has been recorded by the court in language B, then the evidence
should be interpreted to him in language A or in any other language
which the said witness understands. (Section 278)
l If the evidence of any witness is in a language which the accused
does not understand, then the said evidence should be interpreted to
the accused in open court in a language which he understands. (Section 239)
Formal Evidence can be given by affidavit
l The evidence of any person, whose evidence is of a formal character,
may be given by affidavit. (Section 296)
200 Courts, Police, Authorities & Common Man
any intention to run over the second boat and in good faith for the
purpose of avoiding the danger to the passengers of the first boat)
and in this process run over the second boat killing the two passengers
on that boat, he is not guilty of the offence. However, he would have
to prove that the danger which he intended to avoid was so imminent
and of such a magnitude as to excuse him for incurring the risk of
running over the second boat.
(b) A major fire takes place in a locality and a person ‘A’ in order to
avoid the fire from spreading, pulls down certain houses. He does
this in good faith with the intention to save human life or property.
Here, A’s act would not be an offence if it is found that the harm to be
prevented by him was of such a nature and was so imminent so as to
excuse A’s act.
Act of a child under 7 years of age
Under Section 82 of the Indian Penal Code, an act howsoever grave is not
an offence if it is done by any child upto 7 years of age.
Act of a child above 7 and under 12 of immature understanding
An act, howsoever grave, is also not an offence if it is done by any child
above 7 years but upto 12 years of age. Such a provision is to be found in
Section 83 of the Indian Penal Code. However, to take benefit under this
section, it is necessary to prove that the said child had not attained sufficient
maturity of understanding to judge of the nature and consequences of his
conduct at the time of the commission of the act charged as offence.
Act of a person of unsound mind
Under Section 84 of the Indian Penal Code, an act howsoever grave is not
an offence if it is done by a person who, at the time of doing it, was
incapable of knowing the nature of his act or was incapable of knowing
that what he is doing is either wrong or is contrary to law. However, to
claim benefit under this section, his incapability must be due to the
unsoundness of mind.
Act of a person incapable of judgment by reason of intoxication caused
against his will
Under Section 85 of the Indian Penal Code, an act howsoever grave is not
an offence if it is done by a person who, at the time of doing it, was
incapable of knowing the nature of his act or was incapable of knowing
that what he is doing is either wrong or is contrary to law. However, to
208 Courts, Police, Authorities & Common Man
(3) If the doer voluntarily causes or attempts to cause hurt to such victim.
However, he can still claim the benefit if he does the act for the
purpose of preventing the death or hurt.
(4) If someone abets the offence provided under the above three
situations.
For example :
(a) A person Z riding a horse falls down and become insensible. A person
A, who is a surgeon, finds that urgent operation is required to be
performed upon Z. In good faith and without any intention of causing
death of Z, A performs the operation on Z. Thereafter, Z regain
consciousness. A is deemed to have committed no offence if he caused
some hurt to Z’s body due to operation.
(b) A tiger pounce upon a person Z and speed away carrying Z along. To
save Z and in good faith, a person A shot at the tiger knowing that the
shot may even kill Z. A has no intention to kill Z. In the process, A’s
shot wound Z. A is deemed to have committed no offence.
(c ) A surgeon A sees a child Z suffering an accident. Unless an operation
is immediately performed, z may die due to the impact of the accident.
There is no time to take the consent of z’s guardian. A performs the
operation in good faith for the benefit of z. A has committed no
offence.
(d) The situation is such that A is in a house with a child Z and the house
is on fire. People below hold out a blanket for them to jump and
escape. To save the life of Z, A drops him from the house top so that
he can land on the blanket. A knows that dropping Z may kill Z. But
he still drops Z without any intention of killing Z. He does so in good
faith and for child’s benefit only. Even if Z is killed by such fall, A is
deemed to have committed no offence.
Communication made in good faith
Under Section 93, if a communication made to a person A causes any
harm to him, then the person sending this communication is deemed to
have committed no offence if it is made for the benefit of A. For example,
a doctor communicates his opinion to his patient that he can not live. The
doctor does so in good faith, though he knows that such a news may
cause the patient’s death. The patient dies due to shock on knowing this
news. The doctor is deemed to have committed no offence.
212 Courts, Police, Authorities & Common Man
(ii) his own property or the property of any other person (property may
be moveable or immoveable), against any act which constitutes the
offence of theft, robbery, mischief or criminal trespass or which is
an attempt to commit these offences.
However, such a right is subject to the restrictions contained in Section 99.
Right of private defence against the act of a person of unsound mind
etc.
Under Section 98, a person has the right of private defence even against
an act which is otherwise an offence but legally not an offence on account
of its being done by a person contemplated in sections 82, 83, 84 or 85 or
by a person under misconception.
For example, Z under the influence of madness, attempts to kill A. Z is
guilty of no offence by virtue of section 84. However, A would have the
right of private defence against Z in the same manner as A would have
against any sane person.
Take another example : A enters a house in night, which he is legally
entitled to enter. Z attacks him, in good faith, mistaking him to be the
thief. Here, Z commits no offence. However, A would have the same
right of private defence against Z, which A would have if Z was not acting
under that misconception.
Acts against which there is no right of private defence – Section 99
Suppose A has committed an offence in retaliation to an act of B. Then,
(1) There is no right of private defence available to A against an act
done or attempted to be done by a public servant acting in good faith
in the performance of his duties, even if the act may not be strictly
justifiable by law. However, A can not be deprived of his right of
private defence if he did not know or had no reason to believe that B
is such public servant. The right of private defence would also be
available if such act of the public servant reasonably cause the
apprehension of death or of grievous hurt.
(2) There is no right of private defence against an act done or attempted
to be done by the direction of a public servant acting in good faith in
the performance of his duties, even if the direction may not be strictly
justifiable by law. However, A can not be deprived of his right of
private defence (i)if he did not know or had no reason to believe that
the person doing the act is acting by the direction of a public servant
or (ii) unless such person states the authority under which he is acting
214 Courts, Police, Authorities & Common Man
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.
Part III : Criminal Law Administration System 217
likely to cause his death, strikes him with the intention of causing
bodily injury. Z dies in consequence of the blow. A is guilty of murder,
although the blow might not have been sufficient in the ordinary
course of nature to cause the death of a person in a sound state of
health. But if A, not knowing that Z is labouring under any disease,
gives him such blow as would not in the ordinary course of nature
kill a person in a sound state of health, here A, although he may
intend to cause bodily injury, is not guilty of murder, if he did not
intend to cause death, or such bodily injury as in the ordinary course
of nature would cause death.
(iii) A intentionally gives Z a sword-cut or club-wound sufficient to cause
the death of a man in the ordinary course of nature. Z dies in
consequence. Here, A is guilty of murder, although he may not have
intended to cause Z’ death.
(iv) A without any excuse fires a loaded cannon into a crowd of persons
and kills one of them. A is guilty of murder, although he may not
have had a premeditated design to kill any particular individual.
Under the following situations, culpable homicide is not murder:
(1) if the offender, whilst deprived of the power of self-control by grave
and sudden provocation,
- causes the death of the person who gave the provocation, or
- causes the death of any other person by mistake or accident
However, to claim benefit under this section, the offender must prove that
(a) the provocation was not sought by the offender as an excuse for
killing or doing harm to any person
(b) the provocation was not caused by
- anything done in obedience to the law, or
- a public servant in the lawful exercise of his powers
(c) the provocation was not caused by anything done by the victim
in the lawful exercise of his right of private defence
(2) if the offender, in the exercise of right of private defence, in good
faith, causes death of the person against whom he is exercising right
of private defence. However, to claim benefit, the person must show
that the act was done without premeditation and without any intention
of doing more harm than is necessary for the purpose of such defence.
Part III : Criminal Law Administration System 219
(3) If the offender, being a public servant or aiding a public servant for
the advancement of public justice, causes death by doing an act which
he in good faith believes to be lawful and necessary for due discharge
of his duty as such public servant and without any ill-will towards
the victim.
(4) if the death is committed —
(a) without premeditation
(b) in a sudden fight
(c) in the heat of passion
(d) upon a sudden quarrel
(e) without the offenders having taken undue advantage or acted in a
cruel or unusual manner.
(5) if the victim, being above 18 years of age, suffers death or take the
risk of death with his own consent.
Illustrations:
(i) A, under the influence of passion excited by a provocation given by
Z, intentionally kills Y, Z’s child. This is murder, in as much as the
provocation was not given by the child, and the death of the child
was not caused by accident or misfortune in doing an act caused by
provocation.
(ii) Y gives grave and sudden provocation to A. A, on this provocation,
fires a pistol at Y, neither intending nor knowing himself to be likely
to kill Z, who is near him, but out of sight. A kills Z. Here A has not
committed murder, but merely culpable homicide.
(iii) A is lawfully arrested by Z, a bailiff. A is excited to sudden and
violent passion by the arrest, and kills Z. This is murder, in as much
as the provocation was given by a thing done by a public servant in
the exercise of his powers.
(iv) A appears as a witness before Z, a Magistrate. Z says that he does not
believe a word of A’s deposition and that A has perjured himself. A is
moved to sudden passion by these words, and kills Z. This is murder.
(v) A attempts to pull Z’s nose. Z, in the exercise of the right of private
defence, lays hold of A to prevent him from doing so. A is moved to
sudden and violent passion in consequence, and kills Z. This is murder,
in as much as the provocation was given by a thing done in the exercise
of the right of private defence.
220 Courts, Police, Authorities & Common Man
The concept of dowry had started with the giving of gifts to a girl by her
parents voluntarily out of natural love and affection at the time of her
marriage. However, with the passage of time, the element of ‘voluntary’
disappeared and the bridegroom side started demanding the dowry as a
matter of right. In the 1950s and 1960s, the dowry took the shape of a
commercial transaction. It became so rampant and common that parents
with meager means were unable to marry their daughters and even after
the marriage, their daughters were subjected to torture and sometimes to
death. The burning of the brides by the boy’s side for want of sufficient
dowry became a common affair. Alarmed by such growing incidents, the
Parliament passed the Dowry Prohibition Act 1961 which laid down
stringent provisions to check this evil.
With the passage of time, though this Act helped in putting a check on the
growing incidents of bride burning, but the harassment by the in-laws of
the girl continued. The in-laws of the girl used to torture the girl to such
an extent that the girl in certain cases used to commit suicide or cause
grave injury to herself. There was an increase in the dowry related deaths.
To remedy such a situation, the Parliament in 1983 inserted Section 498A
in the Indian Penal Code by way of an amendment. The said section is
reproduced herein below :
Section 498A. Husband or relative of husband of a woman subjecting
her to cruelty.- Whoever, being the husband or the relative of the husband
of a woman, subjects such woman to cruelty shall be punished with
imprisonment for a term which may extend to three years and shall also
be liable to fine.
Explanation.- For the purpose of this section, “cruelty” means-
(a) any wilful conduct which is of such a nature as is likely to drive the
woman to commit suicide or to cause grave injury or danger to life,
limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to
coercing her or any person related to her to meet any unlawful demand
for any property or valuable security or is on account of failure by
222 Courts, Police, Authorities & Common Man
by her in the Crime Against Women Cell (a special cell created by the
police to exclusively deal with the cases of harassment of women by
relatives) or with the police station for registering an FIR or directly with
the Court. The role of the CAW is that of a conciliator to bring about an
amicable settlement between the parties. If the officer of the CAW cell
(this cell is generally controlled by lady police officers of the rank of
inspector and below) find that the amicable settlement is not possible
despite best efforts, the officer refer the complaint to the police station
concerned to formally register an FIR. The police station then files the
copy of FIR in the concerned court and the criminal law is set in motion.
The police investigates the complaint and in most cases, arrest the husband
and his near relatives and produce them before the concerned magistrate.
Tragically, in most of such cases, the court send the husband and his
relatives to the jail . These people then apply for their bail, which is often
refused than granted by the court.
Normally, the complaint can be filed by the person affected only and he
has to remain present on each date. However, special concession has been
given to a married woman desiring to proceed against her in laws under
section 498A. Section 198A was also inserted in the Code of Criminal
Procedure, simultaneously with the introduction of Section 498A in Indian
Penal Code, which provides that the complaint in such cases can be made
by the affected women herself or even by her father, mother, brother,
sister or by the brother/sister of her parents or even by any person related
to her by blood, marriage or adoption.
By the amendment in 1983, the Parliament also inserted Section 113A in
the Indian Evidence Act. By virtue of this provision, if a married woman
commits suicide within 7 years of her marriage and it is shown that her
husband or his relatives had treated her with cruelty, it would be
automatically presumed by the Court that her husband or relatives were
instrumental in creating situations for her to commit suicide. The onus
will then be upon the husband and his relatives to rebut this presumption
and prove that they had no role to play in the suicide.
There have been instances when the woman has falsely implicated the
old parents of her husband who are in their seventies or eighties at the fag
end of their lives. This was never the intention of the law. The courts are
also conscious of this disturbing trend and there have been few cases
wherein the High Court has deprecated such a practice and has granted
bail to the relatives of the husband. Recently, in the case of Savitri Devi
vs Ramesh Chand & others 104 (2003) DLT 824 decided on 19.5.2003,
Justice J.D.Kapoor of Delhi High Court was constrained to point out the
224 Courts, Police, Authorities & Common Man
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
provision allowing him 15 days more time to pay the amount of the cheque.
However, if he still not pay the amount despite expiry of 15 days time, it
is deemed that he is dishonest and the offence is deemed to be committed
by him on the expiry of the said 15 days.
If the person still does not make the payment even after expiry of 15 days
from the date of receipt of notice by him, the holder can file, under section
142, a criminal complaint in the court of the concerned Metropolitan
Magistrate. However, such a complaint can be filed only within one month
from the date when the said 15 days time period expire.
Under section 139, there is a presumption in law that the cheque was
issued by the person for the discharge of any debt or other liability. The
person can not plead that he was not aware about the insufficiency of
funds in his account. If the person issueing the cheque is a company and
the cheque bounce, then every person who was in charge of the company
and was responsible to the company for the conduct of the business of the
company, is deemed to be guilty of the said offence of bouncing of cheque.
However, if such person proves that the offence was committed without
his knowledge or that he exercised all due diligence to prevent the
commission of the said offence, then he is not guilty.
Procedure followed in cheque dishonour case
After the complaint is filed in the court, the procedure related to the
criminal complaints, as contained in chapter XV and XVI (Sections 200
- 210) of the Cr.P.C., becomes applicable i.e. the court records the statement
of the complainant and the statement of the bank’s employee (which in
common parlance is called pre-summoning evidence) and issues
summons to the accused ( i.e. the person who issued the cheque). Earlier,
the proceedings in the case used to be got delayed because of non-recording
of statement of the bank’s employee due to variety of reasons – mostly
the bank’s employee did not turn up or used to come without the relevant
bank records concerning the cheque in question. Thanks to several
judgments by the High Courts on the growing instances of delays in cheque
bouncing cases wherein the High Courts insisted on taking measures for
speedy disposal of such cases, nowadays the courts dealing with cheque
bouncing cases do not insist on the statement of the bank’s employee for
the purpose of issueing summons to the accused. Also, the recording of
the statement of the complainant is also not insisted by the court and the
court issues summons to the accused on the basis of the affidavit of the
complainant (whatever the complainant had to say as statement before
the judge is put down in the form of an affidavit).
Part III : Criminal Law Administration System 229
legislation was passed. The nasty people misuse the loopholes in the
existing criminal system thereby delaying the proceedings. It may be noted
that the complainant has to be present on every date in the court. He has
to come to the court on every date at the cost of leaving his important
work. (However, certain High Courts have held that complainant can
appear through attorney. See Note 25 in FAQs). Then, once he is in the
court, it is not known when his matter will be taken up and thus, practically
his whole day is lost. Then the next date given in the case is generally of
more than 2 months. Generally, it takes more than a year in only
summoning the accused. Ultimately, when the summons are issued against
the accused, the accuseds with criminal bent of mind avoid service of
summons tactfully, thus further delaying the proceedings. Ultimately, when
the accused is finally served, he comes to the court and obtain bail, as it is
a bailable offence. Thereafter only, the accused has to be present on every
date. Till the accused comes to the court and obtain bail, it is a sort of
torture for the complainant. After the bail is granted to the accused, the
case proceeds just like any other criminal case, which means another few
years are gone. In the process, the complainant gets exhausted and finally
settles for a compromise in majority of cases. Thus, the remedy under
section 138 has not proved to be much helpful so far. [However, same
solace can be drawn from the Supreme Court judgment in Mohd. Azeem
vs A.Venktesh and another VII (2002) SLT 433, wherein the Court held
that the Magistrate is not justified in acquitting the accused for the absence
of the complainant on just one day. He should restore the complaint if
sufficient cause is shown for non-appearance].
New developments
However, with the growing inclination of the courts for speedier disposal
of cheque bouncing cases, a ray of hope is finally emerging for the hapless
complainants. Recently, the Govt. implemented the Fast Track Courts
Scheme, thereby providing for the establishment and functioning of 1734
courts described as Fast Track Courts in various States to deal with long
pending cases. Under the said Scheme, apart from other courts, the Courts
exclusively dealing with cheque bouncing cases have been created. Now,
the disposal of cases has become faster and speedier. The challenge made
to the said scheme was rejected by the Supreme Court in the case of Brij
Mohan Lal vs Union Of India reported in III(2002)SLT 593.
Recently, the Negotiable Instruments (Amendment and Misc.
Provisions) Bill, 2002 was passed by the Lok Sabha on 21.11.2002. This
Bill became an Act and is in force from 6.2.2003. This amendment Act,
Part III : Criminal Law Administration System 231
q Most of the Acts/laws in force in India are not applicable to the State
of Jammu and Kashmir. This is because of the special position
accorded to the said State under Article 370 of the Constitution of
India.
q If an Act or enactment does not define a word, then General Clauses
Act 1897 can be referred and relied for the meaning of that word, if
it appear in the General Clauses Act.
q The law relating to the contracts, agreements etc. is governed by the
Indian Contract Act 1872.
q The law governing the sale, purchase, transfer of the property is
governed by the Transfer of Property Act 1882.
q The sale of goods i.e. every kind of movable property is governed by
the Sale of Goods Act 1930.
q The formation and functioning of a partnership firm is governed by
the Indian Partnership Act 1932.
q The law relating to the private trusts and trustees is governed by the
Indian Trusts Act 1882. The charitable and religious trusts are
administered under the Charitable and Religious Trusts Act 1920.
The Societies are registered and are governed under the Societies
Registration Act 1860.
q The law relating to Co-operative Societies is contained in the 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).
q The law to govern the sale and distribution of goods which are sold
by weight, measure or number (to ensure that the consumer is getting
the goods of the required weight, measure or number), is the
Standards of Weights and Measures Act 1976.
q The evidence in all matters in India, whether civil or criminal, its
mode, its application is governed by the Indian Evidence Act 1872.
q The Hindu Marriage Act 1955 governs the marriage of the Hindus.
The divorce proceedings are also undertaken under the said Act. The
marriage between any two persons (whether Hindus or non-Hindus)
can be solemnized and registered under the Special Marriage Act
1954. The court marriage, as we understand in common parlance, is
Part III : Criminal Law Administration System 235
place the accused before the MM for trial. The submission of either
a chargesheet or a final report (for discharge of the accused) is
dependent upon the nature of the opinion so formed. This opinion
can be only of S.H.O. of the police station concerned. There is no
provision permitting delegation thereof.
[Abhinandan Jha vs Dinesh Mishra AIR 1968 SC 117 ]
q Accused should not suffer due to lethargic and slow investigation
A lethargic and lackadaisical manner of investigation over a prolonged
period makes an accused in a criminal proceeding to live every
moment under extreme emotional and mental stress and strain and to
remain always under a fear psychosis. Therefore, it is imperative
that if investigation of a criminal proceeding staggers on with tardy
pace due to the indolence or inefficiency of the investigating agency
causing unreasonable and substantial delay resulting in grave
prejudice or disadvantage to the accused, the courts as the protector
of the rights and personal liberty of the citizens will step in and resort
to the drastic remedy of quashing further proceedings in such
investigation.
[State of A.P. vs P.V.Pavithran AIR 1990 SC 1266]
q When there is inordinate delay in recording of statements of witnesses
by Investigating Officer under section 161 Cr.P.C. and there are glaring
infirmities in the investigation, then the accused could be released
on bail even in a murder case.
[ Ravindra Pratap Shah vs State of U.P. 1988(25) All.C.C. 70
q Even a terrorist enjoys human rights
That the terrorist has violated human rights of innocent citizens may
render him liable for punishment but it can not justify the violation
of his human rights except in the manner permitted by law. Using
any form of torture for extracting any kind of information is violative
of Article 21.
[Ashok K.Johri vs. State of U.P. 1997 Cr.L.J. 643 ]
q Police can not refuse to record FIR on the ground of jurisdiction
Refusal of police to record FIR on the ground that the place of
occurrence falls not within his jurisdiction constitutes a dereliction
of duty. The proper course is to record the FIR and then to forward it
to proper police station.
[ State of A.P. vs Punati Ramulu AIR 1993 SC 2644 ]
244 Courts, Police, Authorities & Common Man
q A police officer can not refuse to record the FIR and/or investigate it
on the ground that the offence did not take place in his area.
[Satvinder Kaur vs Govt. of NCT of Delhi 82(1999) DLT 26 (SC)]
q A person should be treated as innocent until proved guilty
Accused should be considered innocent till the charge leveled against
him and his guilt is established beyond all reasonable doubt.
[Smt.Meena vs State of Maharashtra IV(2000) SLT 377]
q Where the conclusion arrived by the court below is such as to shake
the conscience, the Supreme Court would strike it down whether the
judgment is one of conviction or acquittal.
[Mahesh vs State of Delhi (1991) Cr.LJ 1703(SC)]
q Right to information about Govt. activities
A citizen has a right to know about the activities of the State, the
instrumentalities, the departments and the agencies of the State. The
privilege of secrecy which existed in old times, namely that the State
is not bound to disclose the facts to the citizens or that the State can
not be compelled by the citizens to disclose the facts, does not survive
now to the great extent.
[L.K.Koolwal vs State of Rajasthan AIR 1988 Raj 2]
q Domiciliary visits by the police at night disturbing a person’s sleep
infringe personal liberty under Artilce 21 of the Constitution and
may not be constitutionally valid, except in the case of surveillance
needed for the legitimate purpose of prevention of crime. ( flows
from right under article 19(1)(d). kindly refer Khare vs State Delhi
(1950) SCR 519, AIR 1953 SC 1295&1303, AIR 1975 SC 1278,
AIR 1967 SC 110, AIR 1981 SC 760 (para 7,9,10), (1952) SCR 737
q A suit lies against the Government for wrongs done by public servants
in the course of business, such as death or injury caused to a person
by police atrocities. (art. 300)
[Saheli vs Commisioner of Police AIR 1990 SC 513 ]
q Attributes of a judge
A Judge is looked upon as an embodiment of justice. He is known
second to Parmeshwar. The society which keeps him to such a high
esteem and crowns him with distinct soberity expects him to live upto
its cherished expectations. Courts are guardians of human rights.
Common man looks upon the court as the protector. The MMs are
required to be sensitized to the values of human dignity and to the
restraint on power. They should not allow inhumane conduct by police.
[Gopalan Charya vs State of Kerala AIR 1981 SC 674, also AIR 995 SC 31]
11
Ingredients of some common offences under
Indian Penal Code
Cheating
Cheating is defined in Section 415 of I.P.C. Following ingredients are
must to make out an offence of cheating :
(1) deceiving a person ‘A’
(2) (i) fraudulently or dishonestly inducing him to
- deliver any property to any person, or to
- consent that any person shall retain any property
OR
(ii) Intentionally inducing him to do what he would not do if he were
not so deceived, or Intentionally inducing him to omit to do what
he would not omit if he were not so deceived, and such act/
omission causes or is likely to cause damage/harm to him in body,
mind, reputation or property.
The word ‘fraudulently’ is defined in Section 25. A person is said to do a
thing fraudulently if he does that thing with the intention to defraud.
The word ‘dishonestly’ is defined in section 24. Whoever does any thing
with the intention of causing wrongful gain to one person or wrongful
loss to another person, is said to do that thing dishonestly.
Cheating under various situations is dealt with under Section 416 to 420
IPC.
*****
Criminal breach of trust
It is defined in Section 405 of IPC. Following ingredients are must to
make out an offence of criminal breach of trust :
(1) the offender, in any manner, is entrusted with some property or is
given dominion over the property
(2) he dishonestly misappropriates that property, or
he dishonestly converts to his own use that property, or
246 Courts, Police, Authorities & Common Man
Exceptions:
Under the following situations, the act of causing death (i.e. culpable
homicide) is not murder:
(1) if the offender, whilst deprived of the power of self-control by grave
and sudden provocation,
- causes the death of the person who gave the provocation, or
- causes the death of any other person by mistake or accident
However, to claim benefit under this exception, the offender must prove that
(a) the provocation was not sought by him as an excuse for killing or
doing harm to any person
(b) the provocation was not caused by
- anything done in obedience to the law, or
- a public servant in the lawful exercise of his powers
(c) the provocation was not caused by anything done by the victim
in the lawful exercise of his right of private defence
(2) if the offender, in the exercise of right of private defence, in good
faith, causes death of the person against whom he is exercising right
of private defence. However, to claim benefit, the person must show
that the act was done without premeditation and without any intention
of doing more harm than is necessary for the purpose of such defence.
(3) If the offender, being a public servant or aiding a public servant for
the advancement of public justice, causes death by doing an act which
he in good faith believes to be lawful and necessary for due discharge
of his duty as such public servant and without any ill-will towards
the victim.
(4) if the death is committed —
(a) without premeditation
(b) in a sudden fight
(c) in the heat of passion
(d) upon a sudden quarrel
(e) without the offender having taken undue advantage or acted in a
cruel or unusual manner.
(5) if the victim, being above 18 years of age, suffers death or take the
risk of death with his own consent.
250 Courts, Police, Authorities & Common Man
Kidnapping
Kidnapping is of two kinds : kidnapping from India and kidnapping from
lawful guardianship. The first kind is defined in Section 360 IPC and
second kind in Section 361 IPC.
Following ingredients are must to make out an offence of kidnapping
from India :
(1) the offender conveys any person ‘A’ beyond the limits of India
(2) (i) it is done without the consent of ‘A’, or
(ii) it is done without the consent of some person who is legally
authorized to consent on behalf of ‘A’
Following ingredients are must to make out an offence of kidnapping
from lawful guardianship:
(1) the offender takes or entices any minor or person of unsound mind
out of the keeping of their lawful guardian
(2) it is done without the consent of such lawful guardian
(3) the minor is one who is a male below 16 years or a female below 18
years of age
*****
Rape
It is defined in Section 375 IPC. Following ingredients are must to make
out an offence of rape:
(1) the male offender has sexual intercourse with a woman, and
(2) the same is done in either of the following six situations :
(i) Against her will, or
(ii) Without her consent, or
(iii) With her consent, when her consent has been obtained by putting
her or any person in whom she is interested in fear of death or
hurt, or
(iv) With her consent, when the offender knows that he is not her
husband, and that her consent is given because she believes that
he is another man to whom she is or believes herself to be lawfully
married, or
Part III : Criminal Law Administration System 251
(v) With her consent, when, at the time of giving such consent, by
reason of unsoundness of mind or intoxication or the administration
by him personally or through another of any stupefying or
unwholesome substance, she is unable to understand the nature
and consequences of that to which she gives consent, or
(vi) With or without her consent, when she is under sixteen years of age.
Explanation - Penetration is sufficient to constitute the sexual intercourse
necessary to the offence of rape.
However, the sexual intercourse by a man with his own wife is not rape
if the wife is of 15 years of age or above.
*****
Theft
It is defined in Section 378 IPC. Following ingredients are must to make
out an offence of theft:
(1) - dishonest intention on the part of the offender
(2) - to take any movable property out of the possession of any person
(3) - without that person’s consent (express or implied)
(4) - an act by the offender whereby he moves that property in order to
achieve his intention
Explanation : A person is said to cause a thing to move by removing an
obstacle which prevented it from moving or by separating it from any
other thing, as well as by actually moving it.
*****
Extortion
It is defined in Section 383 IPC. Following ingredients are must to make
out an offence of extortion :
(1) putting any person ‘A’ in fear of any injury to him or to any other
person
(2) doing so intentionally
(3) by doing so, dishonestly inducing ‘A’ to deliver to any person
(i) any property, or
(ii) valuable security, or
(iii) anything signed or sealed which may be converted into a valuable
security
*****
252 Courts, Police, Authorities & Common Man
Robbery
It is defined in Section 390 IPC. In robbery, there is either theft or extortion.
Theft becomes robbery if :
(1) (i) in order to commit theft, or
(ii) in committing the theft, or
(iii) in carrying away the property obtained by theft, or
(iv) in attempting to carry away the property obtained by theft
Dacoity
It is defined in Section 391 IPC. Following ingredients are must to make
out an offence of dacoity :
(1) Five or more persons conjointly
- commit a robbery, or
- attempt to commit a robbery
OR
(2) The whole number of persons
- conjointly committing or attempting to commit a robbery, and
- persons present and aiding such commission of robbery or such
attempt to commit the robbery
amounts to five or more
Every person who is so committing, attempting or aiding is said to commit dacoity.
*****
Criminal Trespass
It is defined in Section 441 IPC. Following ingredients are must to make
out an offence of criminal trespass :
(1) the offender enters into or upon a property
(2) the said property is in the possession of another
(3) the offender does so with the intention
- to commit an offence, or
- to intimidate, insult or annoy any person in possession of said
property
OR
(4) the offender lawfully enters into or upon said property
(5) but unlawfully remains there
(6) with intention thereby
- to intimidate, insult or annoy any person in possession of said
property
- to commit an offence
*****
254 Courts, Police, Authorities & Common Man
Defamation
It is defined in Section 499 IPC. Following ingredients are must to make
out an offence of defamation :
(1) The offender
(2) by words - either spoken, or
- intended to be read
or by signs
or by visible representations,
(5) makes or publishes
(6) any imputation
(7) concerning any person ‘A’
- intending to harm the reputation of A, or
- knowing that such imputation will harm the reputation of A, or
- having reason to believe that such imputation will harm the
reputation of A
However, an imputation is said to harm A’s reputation only if the imputation
- directly or indirectly
- in the estimation of others
- lowers the moral or intellectual character of A, or
- lowers the character of A in respect of his caste or of his calling, or
- lowers the credit of A, or
- cause it to be believed that the body of A is
- in a lothsome state, or
- in a state generally considered as disgraceful.
Apart from above, following explanations are attached to the definition :
1. Imputing anything to a deceased person may also amount to
defamation if
- the said imputation would have harmed the reputation
of that person if he were alive, and
- the said imputation is intended to be hurtful to the feelings
of the family or other near relatives of the deceased
2. Making an imputation concerning a company or an association/
collection of persons may also amount to defamation.
3. An imputation made in the form of an alternative or is expressed
ironically, may also amount to defamation.
Part III : Criminal Law Administration System 255
Exceptions:
In the following cases, the act of the offender does not amount to
defamation :
1. if the imputation is true in respect of any person and it is in the
interest of the public that such imputation should be made or published
However, whether or not, the imputation is in the interest of the
public, is a question of fact.
2. It does not amount to defamation to express, in good faith, any opinion
whatsoever, about a public servant,
- in respect of his conduct in the discharge of his public functions, or
- in respect of his character ( limited to his said conduct)
3. It does not amount to defamation to express, in good faith, any opinion
whatsoever, about any person,
- in respect of his conduct touching any public question, and
- in respect of his character ( limited to his said conduct)
4. It does not amount to defamation to publish report of the proceedings
of a Court of Justice or of the result of any such proceedings. However,
the report should be substantially true.
5. It does not amount to defamation to express, in good faith, any opinion
whatsoever,
- in respect of the merits of any decided case, whether civil or
criminal, which has been decided by a Court of Justice, or
- in respect of the conduct of any party, witness or agent in said
case, or
- in respect of the character of that person (limited to his said
conduct)
6. It does not amount to defamation to express, in good faith, any
opinion,
- in respect of the merits of any public performance, or
- in respect of the character of the author of such public performance
(limited to his character appearing in such performance)
7. It does not amount to defamation on the part of a person ‘B’ ( who is
having authority over ‘A’ which authority is conferred by law or
arising put of a lawful contract between A and B) to pass, in good
faith, censure on the conduct of ‘A’ ( however, limited to matters
within the ambit of his lawful authority)
8. It does not amount to defamation to make, in good faith, an accusation
256 Courts, Police, Authorities & Common Man
In ref. :
State versus Deepak Singh
(in custody since 23.6.2004)
FIR No.........................................
Under Sections ........................of
............................................... Act
Police Station : ............................
APPLICATION FOR BAIL UNDER SECTION 437 Cr.P.C. ON
BEHALF OF THE ACCUSED DEEPAK SINGH S/O S.K.SINGH
The humble petition of the applicant Deepak Singh, accused in the above
case
Most Respectfully showeth:
1. That the applicant was arrested by the Police on mere suspicion on
23.6.2003. That nearly a month has passed after the arrest but still
the Invstigating Officer (I.O.) has not filed the challan/charge sheet.
( or that the investigation has been completed and no useful purpose
would be served by keeping him in jail).
2. That the applicant was not identified by any inmate of the house of
……….. where the dacoity is alleged to have taken place, nor any
incriminating article was found in his house.
3. That the applicant is not named in the FIR. No offence is made out
against the applicant. The applicant has not committed any offence
as alleged. He has clean past record.
4. That the applicant has reason to believe that one ………. with whom
the applicant is on bad terms and who is looking after the case of the
complainant has falsely implicated the applicant in this case out of
grudge and malice and with ulterior motives.
4. That the applicant is a respectable and law abiding person and a
family man having deep roots in the society and is not likely to
abscond.
Part III : Criminal Law Administration System 259
5. That the applicant will not jump bail and will not tamper with the
evidence and undertakes to abide by all the terms and conditions
imposed upon him while releasing him on bail.
PRAYER:
It is therefore respectfully prayed that this Hon’ble Court may kindly be pleased
to pass order for releasing the applicant on bail.
It is prayed accordingly.
Applicant ( in custody)
Delhi Through
Dated : 25.7.2004 Counsel
the police custody. His detention in custody is not required for the
purpose of investigation of the case.
5. That the petitioner is in custody for more than 40 days. The maximum
punishment for the offence alleged against the petitioner is only 2
years.
6. That the petitioner has his permanent residence at Delhi and carries
on business. There is no possibility of his escaping or absconding.
7. That the petitioner is a senior citizen aged 65 years. The petitioner is
suffering from several serious ailments.
8. That no purpose would be served in keeping the applicant in jail.
9. That the petitioner undertakes to abide by all the terms and conditions
that may be imposed upon him by this Hon’ble Court and shall attend
the court of the learned Magistrate as and when required.
10. That the earlier bail applications of the applicant was rejected by the
court of Shri ...................., Metropolitan Magistrate, Delhi on
................ (give date) and by the court of Shri ..........................., Addl.
Sessions Judge, Delhi on ...........................
11. That the present petition has been moved bona fide and in the interest
of justice.
PRAYER:
It is therefore respectfully prayed that this Hon’ble Court may graciously
be pleased to direct the release of the petitioner on bail or pass such other
order or orders as this Hon’ble Court deem fit and proper.
And the petitioner, as in duty bound, shall ever pray.
Petitioner
New Delhi Through
Dated : 25.2.2005 Counsel
Note :
1. An affidavit is required to be filed alongwith the bail petition in the High
court. Alternatively, the bail petition may be sworned. Kindly check the
exact High Court rules of the concerned High court.
2. The petitioner can move the bail application in any court he likes. There is
no legal bar. But, it is advisable that the bail petition should be first moved
first before the Magistrate. If rejected, then before the Sessions Court and if
rejected there also, then before the High Court. If rejected there also, then
before the Supreme court.
Part III : Criminal Law Administration System 263
5. 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 Hon’ble Court.
9. That the earlier application for anticipatory bail was rejected by the
court of Shri................, Addl. Sessions Judge, Delhi on..........................
10. That the present petition has been moved bona fide and in the interest
of justice.
PRAYER:
It is therefore respectfully prayed that this Hon’ble Court may graciously
be pleased to issue a direction to the officer-in-charge ( S.H.O.) of the
police station ............................... that in the event of the petitioner being
arrested, he be released on bail forthwith.
Such other order or orders as this Hon’ble Court deem fit and proper may
also be passed in favour of the petitioner.
And the petitioner, as in duty bound, shall ever pray.
Petitioner
New Delhi Through
Dated : 1.3.2005 Counsel
Note :
1. An affidavit is required to be filed alongwith the bail petition in the High
court. Alternatively, the bail petition may be sworned. Kindly check the exact
High Court rules of the concerned High court.
Part III : Criminal Law Administration System 267
4. That since his release on bail, the said accused is threatening the
petitioner and other eye-witnesses with dire consequences if they
deposed against him in the Court. ( narrate here the exact threats
given by him and on what dates)
5. That the petitioner duly complained the local police regarding these
threats. The G.D.entries are recorded in the register of the police station
............................... giving details of such threats.
6. That the petitioner apprehends that if the accused continues on bail,
the eye-witnesses will feel insecure and may not come forward to
state the true facts.
7. That the accused is an influential person and there is every likelihood
of his tampering with the evidence. He may even abscond as his past
record is criminal.
8. In these circumstances, his bail is required to be cancelled to uphold
the majesty of law.
9. That the present petition has been moved bona fide and in the interest
of justice.
PRAYER :
It is therefore humbly prayed that this Hon’ble Court may graciously be
pleased to issue show cause upon the respondent no.1/accused and cancel
his bail.
Such other order or orders as this Hon’ble Court deem fit and proper may
also be passed.
And the petitioner, as in duty bound, shall ever pray.
Petitioner
Mumbai Through
Dated : 1.3.2005 Counsel
Note:
1. The State is also to be made a party(respondent) to such petition.
Part III : Criminal Law Administration System 269
that the petitioner shall not enter Delhi till the investigation is
completed.
5. That the petitioner is a permanent resident of Delhi. He has his family
and business here. He is the only earning member of the family. If he
is not allowed to enter into Delhi, he would not be able to run his
business and as a result, his family would be on the road and their
very survival would be endangered.
6. That the petitioner moved an application before the same Sessions
Court for removing this condition, but the learned Judge declined
vide his order dated ...........................
7. That the family of the petitioner is suffering untold misery as the
petitioner is unable to enter Delhi and earn the livelihood.
8. That the police is purposely delaying the investigation and is not
submitting the charge sheet in order to harass the petitioner.
9. That the investigation is virtually complete and the condition of bail
is operating harshly against the petitioner.
10. That the present petition has been moved bona fide and in the interest
of justice.
PRAYER:
It is therefore respectfully prayed that this Hon’ble Court may graciously
be pleased to set aside and/or modify the conditions of bail imposed by
the learned Sessions Judge vide his order dt. ........................... in Case
No.........................................
Such other order or orders as this Hon’ble Court deem fit and proper may
also be passed in favour of the petitioner.
And the petitioner, as in duty bound, shall ever pray.
Petitioner
New Delhi Through
Dated : 1.3.2005 Counsel
Note :
1. An affidavit is required to be filed alongwith the bail petition in the High
court. Alternatively, the bail petition may be sworned. Kindly check the
exact High Court rules of the concerned High court.
Part III : Criminal Law Administration System 271
PRAYER:
It is therefore respectfully prayed that the applicant may kindly be released
from the suretyship and all obligations arising thereunder.
It is prayed accordingly.
Applicant
Delhi Through
Dated : 1.3.2005 Counsel
Note :
1. Suretyship is a sort of contract between the surety and the State whereby the
surety takes the custody of the accused and undertakes to produce the accused
before the court on each date of hearing. If the surety fails to perform his
part, then the surety bond executed by him is forfeited and he is called upon
to pay the amount specified in the surety bond.
2. It is open to the surety to apply for his discharge at any time before the
condition of the bond has been broken. If the surety produces the accused
before the Magistrate and requests for discharge from suretyship, the
Magistrate has no option but to discharge him from suretyship without
reference to or hearing the accused.
3. If the surety is not in a position to produce the accused, then the Magistrate
first issue warrant of arrest against the accused before discharging the surety.
If the accused is brought under arrest or appears in obedience to such warrant,
the surety’s request is allowed and he is discharged. If the accused furnish
fresh surety, then the order of bail remains. If the accused is unable to furnish
fresh surety, then his bail is cancelled and his bail bond is forfeited and is
asked to pay the amount mentioned in his bail bond.
Part III : Criminal Law Administration System 273
certificate from Dr. …….. of the …………. Hospital to show that the
accused really fell ill on the date fixed for his appearance in the Court.
6. That the non-appearance of the accused on the said day was neither
intentional nor willful but for the extra ordinary circumstances
explained above.
PRAYER:
It is therefore respectfully prayed that the order of forfeiture of the bond
executed by the applicant may kindly be recalled and the penalty
imposed may kindly be remitted/waived.
It is prayed accordingly.
Applicant
Delhi Through
Dated : 1.3.2005 Counsel
Note :
1. The Court on being satisfied that the bond has been contravened can pass the
order of forfeiture of the surety bond. Before forfeiting the bond, no show
cause notice is required to be issued.
2. After forfeiting the bond, the court has to issue a show cause notice to the
surety asking the surety to pay the penalty ( max. penalty is the amount
specified in surety bond) or to show cause as to why he should not pay the
penalty. No order of penalty can be passed under S.446(1) before issueing
such a notice.
3. If the surety satisfactorily explains the reason for non-appearance of the
accused, then in spite of forfeiture of the bond the court may remit the whole
amount of penalty.
4. The fact that the surety is poor and that the accused had subsequently been
arrested may be a good ground for remitting part of the penalty.
Part III : Criminal Law Administration System 275
Applicant
Delhi Through
Dated : 1.3.2005 Counsel
Note :
1. Section 445 is an enabling provision. It enables a prisoner, who is not likely
to abscond and who at the same time can not find surety to be bailed out, to
deposit cash amount ( or Govt. promissory notes of such amount as the
court or SHO of police station may fix) in lieu of executing bail bond.
Part III : Criminal Law Administration System 277
12. Application under Section 389 Cr.P.C. moved before the Appellate
Court for suspension of sentence and for release of appellant on bail
pending the appeal, in case where the appellant has been convicted
by the trial court
In the Court of the Sessions Judge at Alipore, 24 Parganas, West Bengal
Appeal No. of 2005
In the matter of :
State versus Subrata Roy
S/o. Shri .................................
R/o. ........................................
APPLICATION UNDER SECTION 389 Cr.P.C. FOR RELEASE ON
BAIL DURING THE PENDENCY OF THE APPEAL
The humble petition of the accused in the above case
Most respectfully showeth:
1. That the applicant/petitioner was convicted by the Sub-Divisional
Judicial Magistrate of.................................... under Section 379 IPC
on ............................... and sentenced to under three months Rigorous
imprisonment.
2. That the applicant has filed the accompanying appeal against the said
order of conviction and sentence, which is pending adjudication before
this Hon’ble Court. The contents of the said appeal may kindly be
read as part and parcel of this application for the sake of brevity and
to avoid repetition.
3. That the watch alleged to be stolen by the applicant from the
complainant’s showroom was purchased by him from another
shopkeeper on ..................................... for Rs.1000/-. This fact was
proved by no less than five witnesses.
4. That the applicant was a bona fide purchaser of the said watch for
value and had no knowledge or even suspicion that the watch was a
stolen property.
5. That the petitioner has already served one month in the jail.
6. That the petitioner is a senior citizen aged 65 years. The petitioner is
suffering from several serious ailments.
278 Courts, Police, Authorities & Common Man
PRAYER:
It is therefore respectfully prayed that the Hon’ble court may kindly be
pleased to direct the police to return the articles mentioned in Annexure
‘A’ to the petitioner.
It is prayed accordingly.
Petitioner
Delhi Through
Dated : 1.3.2005 Counsel
Another situation :
APPLICATION UNDER SECTION 452 Cr.P.C. ON BEHALF OF
THE ACCUSED FOR RESTORATION/RETURN OF PROPERTY
The humble petition of the accused in the above case
Most respectfully showeth:
1. That the articles mentioned in annexure ‘A’ of this petition were seized
by the police in connection with this case during investigation
on............................... from the residence of the accused/applicant.
2. That the applicant during the seizure claimed the said articles to be
his own. In defence also, the applicant claimed the said articles to be
his own.
3. That the complainant Mr......................................, on his complaint
this case was registered, had previous enemity with the applicant
and out of grudge, he falsely claimed the said articles to be his.
4. That vide order and judgment dated..........................., this Hon’ble
Court acquitted the applicant
3. That the accused was put to trial and ultimately, vide order and
judgment dated........................, this Hon’ble Court convicted the
accused. The Hon’ble court held in the said judgment that the articles
mentioned in Annexure ‘A’ herein were stolen from the house of the
petitioner.
282 Courts, Police, Authorities & Common Man
versus
John Fernandes
S/o. ........................................
R/o. ........................................ ........................................Accused
APPLICATION BY THE ACCUSED UNDER SECTION 205 Cr.P.C.
FOR PERSONAL EXEMPTION FROM APPEARANCE
The humble petition of the abovenamed accused in the above case
Most respectfully showeth:
1. That the summon was issued to the accused/applicant on the said
complaint and the applicant has entered appearance this day in
obedience to the said summons through his advocate
Shri............................................
2. That the allegations in the complaint are totally false and the applicant
has been falsely impleaded/implicated out of grudge.
3. That the applicant is suffering from various serious ailments and has
been advised medically to restrict his movements. A medical certificate
from the doctor attending upon the applicant is annexed herewith.
(here, give the details of the diseases/ailments, past history, etc. If
applicant is old person, mention this also.)
4. That Shri............................................ advocate would be present in
the Court on applicant’s behalf on all the hearings of this case.
5. That the applicant undertakes to appear in the court in person whenever
he will be called upon by this Hon’ble Court.
Part III : Criminal Law Administration System 287
PRAYER:
It is therefore respectfully prayed that the Hon’ble Court may kindly be
pleased to exempt the applicant accused from appearing in the court in
person at subsequent hearings and he may be permitted to appear through
his advocate abovenamed, in the interests of justice.
It is prayed accordingly.
Applicant
New Delhi Through
Dated : 1.3.2005 Counsel
288 Courts, Police, Authorities & Common Man
20. Petition under Section 407 Cr.P.C. to High Court for transfer
of case from one subordinate court to any other subordinate court
In the High Court of Delhi at New Delhi
(Criminal Miscellaneous Jurisdiction)
Crl. Misc.(Main) No. of 2005
In the matter of :
Dinesh Basu ........................................Petitioner
Versus
Deepak Bajaj & others ........................................Respondent
APPLICATION UNDER SECTION 407 Cr.P.C. FOR TRANSFER
OF CASE NO..................................... PENDING IN THE COURT
OF............................................. TO THE COURT OF SOME OTHER
MAGISTRATE
To,
Hon’ble The Chief Justice and his companion Justices of the Delhi High
Court,
The humble petition of the petitioner abovenamed
Most Respectfully showeth:
1. That the complainant/respondent got registered a false case against
the petitioner/accused under Section ........................................ on the
allegation that ........................................
2. That the said case is pending before Shri ............................................,
Judicial Magistrate First Class for more than six months but the
learned Magistrate is not trying to expedite the hearing of the case
and is allowing frequent adjournments to the opposite party on flimsy
grounds.
3. That the petitioner has come to know and is satisfied on enquiry that
the said Magistrate and the complainant are on friendly terms and
that the Magistrate had attended the marriage of complainant’s brother
2-3 months back.
4. That on the last hearing of the case on ........................................, the
learned Magistrate stated in the open Court that the petitioner was a
290 Courts, Police, Authorities & Common Man
man of violent temper and loose character and that he had heard
complaints against him from the people of the locality.
5. That the learned Magistrate first released the petitioner on a bail of
Rs.10,000/- but on subsequent date, he directed the petitioner to
furnish security of Rs. 1 lakh for his appearence in the court.
6. That the petitioner filed application under section 408 Cr.P.C. before
the Sessions Judge for transfer of the case, but the learned Sessions
Judge dismissed the said application vide his order dated
........................................
7. That being aggrieved by the aforesaid order of the Sessions Judge,
the petitioner prays for transfer of the case on the following amongst
other grounds :
GROUNDS :
A. Because under the circumstances of the case, the learned Sessions
Judge should have transferred the case to the court of some other
competent magistrate for trial.
B. Because there is a reasonable apprehension in the mind of the
petitioner that he will not get a fair and impartial trial if the case is
tried by the aforesaid Magistrate Shri .................................
C. Because ........................................
8. That the present petition has been moved bona fide and in the interest
of justice.
PRAYER:
It is therefore respectfully prayed that this Hon’ble Court may graciously
be pleased to call for the records of the case and order for transfer of the
case no. ........................................ from the court of Shri
........................................ to the court of some other competent magistrate.
And the petitioner, as in duty bound, shall ever pray.
Petitioner
New Delhi Through
Dated : 1.3.2005 Counsel
Part III : Criminal Law Administration System 291
PRAYER:
It is therefore respectfully prayed that the Hon’ble court may kindly be
pleased to issue a search warrant directing the local police to search the
aforesaid house for the recovery of the stolen articles that may be found
there, in the interests of justice.
It is prayed accordingly.
Applicant
Delhi Through
Dated : 1.3.2005 Counsel
Part III : Criminal Law Administration System 293
PRAYER:
It is therefore respectfully prayed that the Hon’ble Court may kindly be
pleased to recall/cancel the arrest warrant and release the applicant on
regular bail.
It is prayed accordingly.
Applicant
New Delhi Through
Dated : 1.3.2005 Counsel
Part III : Criminal Law Administration System 295
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.
308 Courts, Police, Authorities & Common Man
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
Part III : Criminal Law Administration System 313
Section 376. Punishment for rape.- (1) Whoever, except in the cases
provided for by sub-section (2), commits rape shall be punished with
imprisonment of either description for a term which shall not be less than
seven years but which may be for life or for a term which may extend to
ten years and shall also be liable to fine unless the women raped is his
own wife and is not under twelve years of age, in which cases, he shall be
punished with imprisonment of either description for a term which may
extend to two years or with fine or with both :
Provided that the court may, for adequate and special reasons to be
mentioned in the judgment, impose a sentence of imprisonment for a
term less than seven years.
(2)Whoever, -
(a) being a police officer commits rape-
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house whether or not situated in
the police station to which he is appointed; or
(iii) on a woman in his custody or in the custody of a police officer
subordinate to him; or
(b) being a public servant, takes advantage of his official position and
commits rape on a woman in his custody as such public servant or
in the custody of a public servant subordinate to him; or
(c) being on the management or on the staff of a jail, remand home or
other place of custody established by or under any law for the time
being in force or of a woman’s or children’s institution, takes
advantage of his official position and commits rape on any inmate
of such jail, remand home, place or institution; or
(d) Being on the management or on the staff of a hospital, takes
advantage of his official position and commits rape on a woman in
that hospital; or
(e) commits rape on a woman knowing her to be pregnant; or
(f) commits rape on a woman when she is under twelve years of age; or
(g)commits gang rape,
shall be punished with rigorous imprisonment for a term which shall not
be less than ten years but which may be for life and shall also be liable to
fine :
324 Courts, Police, Authorities & Common Man
Provided that the court may, for adequate and special reasons to be
mentioned in the judgment, impose a sentence of imprisonment of either
description for a term of less than ten years.
Explanation 1 - Where a woman is raped by one or more in a group of
persons acting in furtherance of their common intention, each of the
persons shall be deemed to have committed gang rape within the meaning
of this sub-section.
Explanation 2 - “Women’s or children’s institution” means an institution,
whether called an orphanage or a home for neglected women or children
or a widow’s home or by any other name, which is established and
maintained for the reception and care of women or children.
Explanation 3 - “Hospital” means the precincts of the hospital and includes
the precincts of any institution for the reception and treatment of persons
during convalescence or of persons requiring medical attention or
rehabilitation.
Section 378. Theft.- Whoever, intending to take dishonestly any moveable
property out of the possession of any person without that person’s consent,
moves that property in order to such taking, is said to commit theft.
Section 379. Punishment for theft.- Whoever commits theft shall be
punished with imprisonment of either description for a term which may
extend to three years, or with fine, or with both.
Section 403. Dishonest misappropriation of property.- Whoever
dishonestly misappropriates or converts to his own use any movable
property, shall be punished with imprisonment of either description for a
term which may extend to two years, or with fine, or with both.
Section 405. Criminal breach of trust.- Whoever, being in any manner
entrusted with property, or with any dominion over property, dishonestly
misappropriates or converts to his own use that property, or dishonestly
uses or disposes of that property in violation of any direction of law
prescribing the mode in which such trust is to be discharged, or of any
legal contract, express or implied, which he has made touching the
discharge of such trust, or willfully suffers any other person so to do,
commits “criminal breach of trust”.
Section 406. Punishment for criminal breach of trust.- Whoever
commits criminal breach of trust shall be punished with imprisonment of
either description for a term which may extend to three years, or with
fine, or with both.
Part III : Criminal Law Administration System 325
a term which may extend to three years, and shall also be liable to fine.
Explanation 1 - A trial before a Court-martial is a judicial proceeding.
Explanation 2 - An investigation directed by law preliminary to a
proceeding before a Court of Justice, is a stage of a judicial proceeding,
though that investigation may not take place before a Court of Justice.
Section 209. Dishonestly making false claim in Court.- Whoever
fraudulently or dishonestly, or with intent to injure or annoy any person,
makes in a Court of Justice any claim which he knows to be false, shall be
punished with imprisonment of either description for a term which may
extend to two years, and shall also be liable to fine.
Section 211. False charge of offence made with intent to injure.-
Whoever, with intent to cause injury to any person, institutes or causes to
be instituted any criminal proceeding against that person, or falsely charges
any person with having committed an offence, knowing that there is no
just or lawful ground for such proceeding or charge against that person,
shall be punished with imprisonment of either description for a term which
may extend to two years, or with fine, or with both;
And if such criminal proceeding be instituted on a false charge of an
offence punishable with death, imprisonment for life, or imprisonment
for seven years or upwards, shall be punishable with imprisonment of
either description for a term which may extend to seven years, and shall
also be liable to fine.
Section 268. Public nuisance.- A person is guilty of a public nuisance
who does any act or is guilty of an illegal omission which causes any
common injury, danger or annoyance to the public or to the people in
general who dwell or occupy property in the vicinity, or which must
necessarily cause injury, obstruction, danger or annoyance to persons who
may have occasion to use any public right.
A common nuisance is not excused on the ground that it causes some
convenience or advantage.
Section 269. Negligent act likely to spread infection of disease
dangerous to life.- Whoever unlawfully or negligently does any act which
is, and which he knows or has reason to believe to be, likely to spread the
infection of any disease dangerous to life, shall be punished with
imprisonment of either description for a term which may extend to six
months, or with fine, or with both.
Part III : Criminal Law Administration System 329
Ireland Netherlands
Israel Netherlands Antilles
Italy New Zealand
Jamaica Nicaragua
Japan Niger
Jordan Nigeria
Kazakhstan Norway
Kenya Oman
Korea (Republic of) Pakistan
Kuwait Panama
Kyrgystan Papua New Guinea
Laos Paraguay
Latvia Peru
Lebanon Philippines
Lesotho Poland
Liberia Portugal
Libya Qatar
Liechtenstein Romania
Lithuania Russia
Luxembourg Rwanda
Macedonia (former Yugoslav St. Kitts & Nevis
Republic of) St.Lucia
Madagascar St. Vincent & the Grenadines
Malawi Sao Tome & Principe
Malaysia Saudi Arabia
Maldives Senegal
Mali Seychelles
Malta Sierra Leone
Marshall Islands Singapore
Mauritania Slovakia
Mauritius Slovenia
Mexico Somalia
Moldova South Africa
Monaco Spain
Mongolia Sri Lanka
Morocco Sudan
Mozambique Suriname
Myanmar Swaziland
Namibia Sweden
Nauru
Nepal
Switzerland
Syria A
332 Courts, Police, Authorities & Common Man
Tanzania
Zimbabwe
Thailand
Togo U.K. Sub Bureaus
Tonga Anguilla
Trinidad & Tobago Bermuda
Tunisia British Virgin Islands
Turkey Cayman Islands
Uganda Gibraltar
Ukraine Montserrat
United Arab Emirates Turks & Caicos
United Kingdom U.S. Sub Bureaus
United States American Samoa
Uruguay Commonwealth of the
Uzbekistan Northern Mariana Islands
Venezuela Guam
Vietnam Puerto Rico
Yemen U.S. Virgin Islands
Zaire Portugal Sub Bureau
Zambia Macao
China Sub Bureau
Hong Kong
Part III : Criminal Law Administration System 333
Appendix 10 : List of the District & Sessions Judges from 1967 onwards
Sr. No. Name From Till
1. Sh. Mohan Lal Jain 1967 1967
2. Sh. P.N. Thakural 1967 1968
3. Sh. Jagjit Singh 1968 1971
4. Sh. R.N. Aggarwal 08.06.1971 06.03.1972
5. Sh. F.S. Gill 07.03.1972 17.12.1974
6. Sh. K.S. Sidhu 18.12.1974 06.03.1976
7. Sh. R.N. Aggarwal 07.03.1976 06.07.1977
8. Sh. K.S. Sidhu 07.07.1977 16.07.1978
9. Sh. O.N. Vohra 17.07.1978 07.03.1979
10. Sh. J.D. Jain 07.03.1979 18.10.1979
11. Sh. G.C. Jain 19.10.1979 06.01.1981
12. Sh. Jagdish Chander 06.01.1981 12.08.1983
13. Sh. M.K. Chawla 12.08.1983 31.05.1984
14. Sh. N.C. Kochhar 01.06.1984 16.11.1986
15. Sh. P.K. Bahri 17.11.1986 09.07.1987
16. Ms. Santosh Duggal 10.07.1987 27.05.1988
17. Sh. V.B. Bansal 28.05.1988 26.04.1989
18. Sh. Jaspal Singh 27.04.1989 12.07.1990
19. Sh. Mohd. Shamim 13.07.1990 19.03.1991
20. Sh. P.K. Jain 19.03.1991 10.11.1994
21. Sh. J.B. Goel 10.11.1994 17.05.1995
22. Sh. S.P. Sabherwal 17.05.1995 30.11.1995
23. Sh. K.S. Gupta 30.11.1995 08.04.1996
24. Sh. K.P. Verma 09.04.1996 25.07.1998
25. Sh. M.A. Khan 25.07.1998 30.11.2000
26. Sh. R.C. Jain 01.12.2000 16.07.2001
27. Sh. H.R. Malhotra 16.07.2001 25.08.2002
28. Sh. J.P. Singh 26.08.2002 04.07.2004
29. Mrs. Kanwal Inder Kaur
30. Mrs. Rekha Sharma
Part III
Criminal Law
Administration
System