Archive

Archive for the ‘498A’ Category

CALCUTTA HC:- Coming with unclean hands – disqualifies litigant from obtaining any relief

September 24, 2014 Leave a comment

“….the contesting respondent has come to the High Court with unclean hands and withholds a vital document in order to gain advantage on the other side. In our opinion, he would be guilty of playing fraud on the Court as well as on the opposite party. A person whose case is based on falsehood can be summarily thrown out at any stage of the litigation. We have no hesitation to say that a person whose case is based on falsehood has no right to

approach the Court and he can be summarily thrown out at any stage of the litigation…………”

Pls refer the entire Judgment below

IN THE HIGH COURT AT CALCUTTA

Criminal Revisional Jurisdiction Appellate Side

PRESENT:THE HON’BLE MR JUSTICE KALIDAS MUKHERJEE

CRR NO. 999 OF 2006

Md. Ashiruddin & Anr.
Vs.
State of West Begal & Anr.

For the Petitioner :Mr. Milon Mukherjee, Sr. Adv. Mr. Lutful Haque,Ms. Ameena Kabir

For the State : Mrs. Krishna Ghosh

HEARD ON: 18.03.2008.

JUDGMENT ON:25.03.2008

KALIDAS MUKHERJEE, J.:

1. This is an application under Section 482 read with Section 300 Cr.P.C. praying for quashing of Hanskhali P.S. Case No. 281 dated 06.12.2005 under Section 498A/34 I.P.C. pending in the Court of learned Additional Chief Judicial Magistrate, Ranaghat, District – Nadia.

2. The petitioner No. 1 is a retired Sub-Inspector of Police and the petitioner No. 2 is a Constable. The first wife of petitioner No. 1 died and thereafter he again married O.P. No. 2 Rojina Bibi on 25.06.2004 according to Muslim Shariat Laws and both of them were leading conjugal life in village Murcha, P.S. Khargram, District – Murshidabad. O.P. No. 2 was a widow at the time of her marriage with petitioner No. 1 and had a son and two daughters out of her previous marriage. The petitioner No. 1 used to reside in Krishnanagar where he was posted and the O.P. No. 2 was residing in village Morcha. There was difference of opinion between the spouses. O.P. No. 2 filed a case against the petitioner No. 1 under Section 498A/325 I.P.C. being Kotwali P.S. Case No. 95/2005 dated 06.4.2005. Charge sheet was issued on 15.4.2005 being C.S. No. 80/2005 under Section 498A I.P.C. The O.P. No. 2 complained of mental and physical torture. On 11.4.2005 O.P. No. 2 made an affidavit before the learned Sub-Divisional Judicial Magistrate, Krishnanagar stating that she had no complaint against her husband whatsoever. In the affidavit she stated that when she went to Krishnanagar, a person took her signatures on some blank sheets and taking advantage of that filed a case against her husband. She also stated that her husband never committed torture upon her physically or mentally and that they had been leading a happy conjugal life. On 9th June, 2005 the petitioner No. 1 was discharged by the learned S.D.J.M., Krishnanagar on the basis of affidavit made on 11.4.2005. Thereafter the petitioner No. 1 divorced to the O.P. No. 2 on 04.8.2005 and communicated the same by registered post with A.D. dated 13.8.2005 and 18.8.2005, but, the registered letter dated 18.8.2005 came back to the petitioner as ‘refused’ by the O.P. No. 2. O.P. No. 2 filed a case in the Court of Chief Judicial Magistrate, Krishnanagar on 29.8.2005 under Section 498A/34 I.P.C. against the petitioners, but, no effective step was taken thereof. The O.P. No. 2 also filed a case in the Court of Additional Chief Judicial Magistrate, Krishnanagar against the petitioner No. 1 under Section 125 Cr.P.C. being case No. 481 of 2004. The O.P. No. 2 also filed another case under Section 498A/34 I.P.C. (G.R. No. 1343 of 2005) Hnaskhali P.S. Case No. 281 dated 06.12.2005, in the Court of Additional Chief Judicial Magistrate, Ranaghat. The allegations raised against the petitioners are false and concocted. The continuance of proceeding under Section 498A/34 I.P.C. in Hanskhali P.S. Case NO. 281 dated 06.12.2005 is unwarranted and will be the abuse of the process of the Court. In view of the discharge of the petitioner No. 1 from earlier case being Kotwali P.S. Case No. 95 of 2005, the instant case being Hanskhali P.S. Case No. 281 dated 06.12.2005 under Section 498A/34 I.P.C. cannot proceed and the same is not maintainable. Under the circumstances, the petitioner has filed the instant application praying for quashing of the proceeding under Section 482 Cr.P.C.

3. Mr. Mukherjee appearing on behalf of the petitioners submits that the earlier case ended in discharge on 09.6.2005 passed by learned S.D.J.M., Krishnanagar in G.R. Case No. 408 of 2005, Kotwali P.S. Case No. 95 of 2005. Mr. Mukherjee submits that the divorce was effected on 04.8.2005 when the factum of divorce was communicated to O.P. No. 2 herein. Mr. Mukherjee contends that same allegation as made in the earlier complaint was raised against the petitioner No. 1 herein in the subsequent petition of complaint which was sent to P.S. under Section 156(3) Cr.P.C. on 06.12.2005 bearing Hanskhali P.S. Case No. 281 dated 06.12.2005. Mr. Mukherjee contends that there is no allegation under Section 406 I.P.C. in the instant case and, moreover, there is suppression of material facts in the subsequent complaint being Hanskhali P.S. Case No. 281 date 06.12.2005. Mr. Mukherjee contends that when the petitioner No. 1 was discharged in the earlier case which ended in his discharge on 09.6.2005, the subsequent case on the same allegations bearing Hanskhali P.S. Case No. 281 dated 06.12.2005 is not maintainable. Regarding the suppression of material facts viz. discharge of the petitioner No. 1 in the earlier case, Mr. Mukherjee has referred to and relied on the decisions reported in 2005 SCC (Cri)1322 [MCD Vs. State of Delhi and another] para 21 and (2004)7 SCC 166 [S.J.S. Business Enterprises (P) Ltd. V. State of Bihar and others] para 13.

4. Mrs. Ghosh appearing on behalf of the State submits that the petitioner No. 1 herein was the Sub-Inspector of Police and regarding the alleged torture meted out to O.P. No. 2, there are medical reports and statements of the witnesses recorded under Section 161 Cr.P.C. It is contended that it is not clear whether there was divorce or not by way of Talaknama. As regards the allegation of torture under Section 498A I.P.C. on the same facts in the subsequent case, Mrs. Ghosh contends that the manner of alleged torture upon O.P. No. 2 in the second case was different and there is added period of alleged torture. Mrs. Ghosh contends that O.P. No. 2 was assaulted by the petitioner No. 1 as per allegation and in view of the medical reports and the statements of the witnesses recorded under Section 161 Cr.P.C., there is no ground to quash the proceedings pending in the learned Court below. Mrs. Ghosh contends that the petitioner No. 1 herein can raise such question in the Trial Court at the appropriate stage, but, not in the instant application under Section 482 Cr.P.C.

5. From the F.I.R. of Kotwali P.S. Case No. 95 of 2005 dated 06.4.2005 G.R. No. 408 of 2005 it appears that the occurrence of the alleged offence was after the marriage till the date of lodging the F.I.R. i.e. 06.4.2005. It further appears that the said case bearing No. 408 of 2005 ended in the discharge of the accused under Section 245 Cr.P.C. The learned Magistrate considered the affidavit filed by the defacto-complainant in the said case wherein it was stated that she was leading her conjugal life happily with her husband. On hearing the defacto-complaint and considering the contentions raised in the affidavit, the learned Magistrate recorded the order of discharge under Section 245 Cr.P.C. Subsequently, the instant case bearing Hanskhali P.S. Case No. 281 dated 06.12.2005 was started. The petition of complaint was sent to the P.S. under Section 156(3) Cr.P.C. and the F.I.R. was registered bearing No. 281 dated 06.12.2005. In the said petition of complaint the occurrence of the alleged offence was after marriage extending up to 24.8.2005. It is, therefore, clear that the period of alleged torture as per the subsequent complaint also includes the period of torture as raised in the earlier complaint which ended in discharge of the accused. By filing the affidavit stating that she was living happily with her husband which enabled the Court to record order of discharge, the defacto complainant put an end to the allegation of torture as raised in the earlier petition of complaint and, as such, the same allegation over the same period cannot be reopened.

6. Secondly, in the second petition of complaint there is no whisper about the contention raised in the earlier complaint and the order of discharge made therein. Mr. Mukherjee in this connection has referred to the decision reported in 2005 SCC (Cri) 1322 para 21 (Supra). The observation of the Hon’ble Apex Court made in para 21 of the aforesaid decision is quoted hereunder:-

“This apart, the respondent did not also disclose the fact in the criminal revision filed before the High Court that he has also been convicted in another Criminal Case No. 202 of 1997 by the Court of Metropolitan Magistrate, Patiala House, New Delhi. Thus, the contesting respondent has come to the High Court with unclean hands and withholds a vital document in order to gain advantage on the other side. In our opinion, he would be guilty of playing fraud on the Court as well as on the opposite party. A person whose case is based on falsehood can be summarily thrown out at any stage of the litigation. We have no hesitation to say that a person whose case is based on falsehood has no right to

approach the Court and he can be summarily thrown out at any stage of the litigation…………”

The observation of the Hon’ble Apex Court made in the decision reported in (2004)7 SCC 166 para 13 (Supra) is quoted hereunder:- “As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the Courts to deter a litigant from abusing the process of Court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case…………”

7. Since in the subsequent petition of complaint there is no whisper about the earlier petition of complaint followed by the order of discharge of the accused persons, such non-disclosure amounts to suppression of material facts, inasmuch as, had it not been suppressed, it would have an effect on the merits of the case. Following the ratio of the aforesaid decisions, I find that it is a fit case for quashing of the proceedings in the exercise of the jurisdiction under Section 482 Cr.P.C. The application under Section 482 read with Section 300 Cr.P.C. is allowed. Accordingly, the proceedings of Hanskhali P.S. Case No. 281 dated 06.12.2005 under Section 498A/34 I.P.C. pending in the Court of learned Additional Chief Judicial Magistrate, Ranaghat stand quashed.

8. Let a copy of this order be sent to the learned Court below immediately.

9. Urgent Xerox certified copy of this order, if applied for, be handed over to the parties as early as possible.

( Kalidas Mukherjee, J. )

Advertisements

SC: SC: dowry law the most misused, abused law in India. Police shld follow 9 point checklist as per 41 crpc

July 3, 2014 2 comments

The Supreme Court on Wednesday said women were increasingly using the anti-dowry law to harass in-laws and restrained police from mechanically arresting the husband and his relatives on mere lodging of a complaint under Section 498A of the Indian Penal Code.

Citing very low conviction rate in such cases, it directed the state governments to instruct police “not to automatically arrest when a case under Section 498A of IPC is registered but to satisfy themselves about the necessity for arrest under the parameters (check list) provided under Section 41 of Criminal Procedure Code“.

Section 41 lays down a nine-point check list police to weigh the need to arrest after examining the conduct of the accused, in cluding possibility of his absconding.

If police arrested the accused, “the magistrate, while authorizing detention of the accused shall peruse the report furnished by the police officer in terms of Section 41 and only after recording its satisfaction…will authorize detention,“ the bench bench of Justices C K Prasad and P C Ghose said. It also said that this checklist for arrest and detention would apply to all offences, which are punished with a prison term less than 7 years. Punishment under Section 498A is a maximum of three years but it had been made a cognizable and nonbailable offence, which made grant of bail to the accused a rarity in courts.

But the court singled out the dowry harassment cases as the most abused and misused provision, though the legislature had enacted it with the laudable object to prevent harassment of women in matrimonial homes.

Writing the judgment for the bench, Justice Prasad said there had been a phenomenal increase in dowry harass

ment cases in India in the last few years. “The fact that Section 498A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives,” he said.

“The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grandmothers of the husbands, their sisters living abroad for decades are arrested,” he said.

or long now, concerns have been expressed about stringent anti-dowry laws being misused by some women to harass or blackmail their in-laws. These apprehensions have not only been expressed by courts, women’s activists too have acknowledged that such misuse is not unknown. It was, therefore, necessary for the law to take this reality into account.

The apex court’s order does just that. Automatic arrest was one of the provisions that lent itself most to abuse and making it mandatory for a magistrate to sanction arrest should help curb this abuse of law. Beyond that, there’s a lesson for all of us – social ills can’t be eliminated just by enacting laws, as India tends to do. Society as a whole needs to join the movement against them.

Pls find the judgment below:-

 

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1277 OF 2014
(@SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013)
ARNESH KUMAR ….. APPELLANT

VERSUS

STATE OF BIHAR & ANR. …. RESPONDENTS
J U D G M E N T
Chandramauli Kr. Prasad

The petitioner apprehends his arrest in a case under Section 498-A of the Indian Penal Code, 1860 (hereinafter called as IPC) and Section 4 of the Dowry Prohibition Act, 1961. The maximum sentence provided under Section 498-A IPC is imprisonment for a term which may extend to three years and fine whereas the maximum sentence provided under Section 4 of the Dowry Prohibition Act is two years and with fine.

Petitioner happens to be the husband of respondent no.2 Sweta Kiran. The marriage between them was solemnized on 1st July, 2007. His attempt to secure anticipatory bail has failed and hence he has knocked the door of this Court by way of this Special Leave Petition.

 

Leave granted.

 

In sum and substance, allegation levelled by the wife against the appellant is that demand of Rupees eight lacs, a maruti car, an
air-conditioner, television set etc. was made by her mother-in-law and father-in-law and when this fact was brought to the appellant’s notice, he supported his mother and threatened to marry another woman. It has been alleged that she was driven out of the matrimonial home due to non- fulfilment of the demand of dowry.

 

Denying these allegations, the appellant preferred an application for anticipatory bail which was earlier rejected by the learned Sessions Judge and thereafter by the High Court.

There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested. “Crime in India 2012 Statistics” published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for offence under Section 498-A of the IPC, 9.4% more than the year 2011. Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share is 6% out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5% of total crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt. The rate of charge-sheeting in cases under Section 498A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal.

Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the police. There is a battle between the law makers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied in the Cr.PC. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of
arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive.

Law Commissions, Police Commissions and this Court in a large number of judgments emphasized the need to maintain a balance between individual liberty and societal order while exercising the power of arrest. Police officers make arrest as they believe that they possess the power to do so.
As the arrest curtails freedom, brings humiliation and casts scars forever, we feel differently. We believe that no arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify the reasons thereof. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation. Despite this legal position, the Legislature did not find any improvement. Numbers of arrest have not decreased. Ultimately, the Parliament had to intervene and on the recommendation of the 177th Report of the Law Commission submitted in the year 2001, Section
41 of the Code of Criminal Procedure (for short ‘Cr.PC), in the present form came to be enacted. It is interesting to note that such a recommendation was made by the Law Commission in its 152nd and 154th Report submitted as back in the year 1994. The value of the proportionality permeates the amendment relating to arrest. As the offence with which we
are concerned in the present appeal, provides for a maximum punishment of imprisonment which may extend to seven years and fine, Section 41(1)(b), Cr.PC which is relevant for the purpose reads as follows:

“41. When police may arrest without warrant.-(1) Any police officer may
without an order from a Magistrate and without a warrant, arrest any person

(a)x x x x x x

(b)against whom a reasonable complaint has been made, or credible
information has been received, or a reasonable suspicion exists that he has
committed a cognizable offence punishable with imprisonment for a term
which may be less than seven years or which may extend to seven years
whether with or without fine, if the following conditions are satisfied,
namely :-

(i) x x x x x

(ii) the police officer is satisfied that such arrest is necessary –

to prevent such person from committing any further offence; or

for proper investigation of the offence; or

to prevent such person from causing the evidence of the offence to
disappear or tampering with such evidence in any manner; or

to prevent such person from making any inducement, threat or promise to any
person acquainted with the facts of the case so as to dissuade him from
disclosing such facts to the Court or to the police officer; or

as unless such person is arrested, his presence in the Court whenever
required cannot be ensured,

 

and the police officer shall record while making such arrest, his reasons
in writing:

Provided that a police officer shall, in all cases where the arrest of a
person is not required under the provisions of this sub-section, record the
reasons in writing for not making the arrest.

 

X x x x x x

 

From a plain reading of the aforesaid provision, it is evident that a
person accused of offence punishable with imprisonment for a term which may
be less than seven years or which may extend to seven years with or without
fine, cannot be arrested by the police officer only on its satisfaction
that such person had committed the offence punishable as aforesaid. Police
officer before arrest, in such cases has to be further satisfied that such
arrest is necessary to prevent such person from committing any further
offence; or for proper investigation of the case; or to prevent the accused
from causing the evidence of the offence to disappear; or tampering with
such evidence in any manner; or to prevent such person from making any
inducement, threat or promise to a witness so as to dissuade him from
disclosing such facts to the Court or the police officer; or unless such
accused person is arrested, his presence in the court whenever required
cannot be ensured. These are the conclusions, which one may reach based on
facts. Law mandates the police officer to state the facts and record the
reasons in writing which led him to come to a conclusion covered by any of
the provisions aforesaid, while making such arrest. Law further requires
the police officers to record the reasons in writing for not making the
arrest. In pith and core, the police office before arrest must put a
question to himself, why arrest? Is it really required? What purpose it
will serve? What object it will achieve? It is only after these questions
are addressed and one or the other conditions as enumerated above is
satisfied, the power of arrest needs to be exercised. In fine, before
arrest first the police officers should have reason to believe on the basis
of information and material that the accused has committed the offence.
Apart from this, the police officer has to be satisfied further that the
arrest is necessary for one or the more purposes envisaged by sub-clauses
(a) to (e) of clause (1) of Section 41 of Cr.PC.

 

An accused arrested without warrant by the police has the
constitutional right under Article 22(2) of the Constitution of India and
Section 57, Cr.PC to be produced before the Magistrate without unnecessary
delay and in no circumstances beyond 24 hours excluding the time necessary
for the journey. During the course of investigation of a case, an accused
can be kept in detention beyond a period of 24 hours only when it is
authorised by the Magistrate in exercise of power under Section 167 Cr.PC.
The power to authorise detention is a very solemn function. It affects the
liberty and freedom of citizens and needs to be exercised with great care
and caution. Our experience tells us that it is not exercised with the
seriousness it deserves. In many of the cases, detention is authorised in a
routine, casual and cavalier manner. Before a Magistrate authorises
detention under Section 167, Cr.PC, he has to be first satisfied that the
arrest made is legal and in accordance with law and all the constitutional
rights of the person arrested is satisfied. If the arrest effected by the
police officer does not satisfy the requirements of Section 41 of the Code,
Magistrate is duty bound not to authorise his further detention and release
the accused. In other words, when an accused is produced before the
Magistrate, the police officer effecting the arrest is required to furnish
to the Magistrate, the facts, reasons and its conclusions for arrest and
the Magistrate in turn is to be satisfied that condition precedent for
arrest under Section 41 Cr.PC has been satisfied and it is only thereafter
that he will authorise the detention of an accused. The Magistrate before
authorising detention will record its own satisfaction, may be in brief but
the said satisfaction must reflect from its order. It shall never be
based upon the ipse dixit of the police officer, for example, in case the
police officer considers the arrest necessary to prevent such person from
committing any further offence or for proper investigation of the case or
for preventing an accused from tampering with evidence or making inducement
etc., the police officer shall furnish to the Magistrate the facts, the
reasons and materials on the basis of which the police officer had reached
its conclusion. Those shall be perused by the Magistrate while authorising
the detention and only after recording its satisfaction in writing that the
Magistrate will authorise the detention of the accused. In fine, when a
suspect is arrested and produced before a Magistrate for authorising
detention, the Magistrate has to address the question whether specific
reasons have been recorded for arrest and if so, prima facie those reasons
are relevant and secondly a reasonable conclusion could at all be reached
by the police officer that one or the other conditions stated above are
attracted. To this limited extent the Magistrate will make judicial
scrutiny.

 

Another provision i.e. Section 41A Cr.PC aimed to avoid
unnecessary arrest or threat of arrest looming large on accused requires to
be vitalised. Section 41A as inserted by Section 6 of the Code of
Criminal Procedure (Amendment) Act, 2008(Act 5 of 2009), which is relevant
in the context reads as follows:

“41A. Notice of appearance before police officer.-(1) The police officer
shall, in all cases where the arrest of a person is not required under the
provisions of sub-section (1) of Section 41, issue a notice directing the
person against whom a reasonable complaint has been made, or credible
information has been received, or a reasonable suspicion exists that he has
committed a cognizable offence, to appear before him or at such other place
as may be specified in the notice.

 

(2) Where such a notice is issued to any person, it shall be the duty of
that person to comply with the terms of the notice.

(3) Where such person complies and continues to comply with the notice, he
shall not be arrested in respect of the offence referred to in the notice
unless, for reasons to be recorded, the police officer is of the opinion
that he ought to be arrested.

 

(4) Where such person, at any time, fails to comply with the terms of the
notice or is unwilling to identify himself, the police officer may, subject
to such orders as may have been passed by a competent Court in this behalf,
arrest him for the offence mentioned in the notice.”

 

Aforesaid provision makes it clear that in all cases where the
arrest of a person is not required under Section 41(1), Cr.PC, the police
officer is required to issue notice directing the accused to appear before
him at a specified place and time. Law obliges such an accused to appear
before the police officer and it further mandates that if such an accused
complies with the terms of notice he shall not be arrested, unless for
reasons to be recorded, the police office is of the opinion that the arrest
is necessary. At this stage also, the condition precedent for arrest as
envisaged under Section 41 Cr.PC has to be complied and shall be subject to
the same scrutiny by the Magistrate as aforesaid.

We are of the opinion that if the provisions of Section 41,
Cr.PC which authorises the police officer to arrest an accused without an
order from a Magistrate and without a warrant are scrupulously enforced,
the wrong committed by the police officers intentionally or unwittingly
would be reversed and the number of cases which come to the Court for grant
of anticipatory bail will substantially reduce. We would like to emphasise
that the practice of mechanically reproducing in the case diary all or most
of the reasons contained in Section 41 Cr.PC for effecting arrest be
discouraged and discontinued.

Our endeavour in this judgment is to ensure that police officers do not
arrest accused unnecessarily and Magistrate do not authorise detention
casually and mechanically. In order to ensure what we have observed above,
we give the following direction:

All the State Governments to instruct its police officers not to
automatically arrest when a case under Section 498-A of the IPC is
registered but to satisfy themselves about the necessity for arrest under
the parameters laid down above flowing from Section 41, Cr.PC;

All police officers be provided with a check list containing specified sub-
clauses under Section 41(1)(b)(ii);

The police officer shall forward the check list duly filed and furnish the
reasons and materials which necessitated the arrest, while
forwarding/producing the accused before the Magistrate for further
detention;

The Magistrate while authorising detention of the accused shall peruse the
report furnished by the police officer in terms aforesaid and only after
recording its satisfaction, the Magistrate will authorise detention;

The decision not to arrest an accused, be forwarded to the Magistrate
within two weeks from the date of the institution of the case with a copy
to the Magistrate which may be extended by the Superintendent of police of
the district for the reasons to be recorded in writing;

Notice of appearance in terms of Section 41A of Cr.PC be served on the
accused within two weeks from the date of institution of the case, which
may be extended by the Superintendent of Police of the District for the
reasons to be recorded in writing;

Failure to comply with the directions aforesaid shall apart from rendering
the police officers concerned liable for departmental action, they shall
also be liable to be punished for contempt of court to be instituted before
High Court having territorial jurisdiction.

Authorising detention without recording reasons as aforesaid by the
judicial Magistrate concerned shall be liable for departmental action by
the appropriate High Court.

 

We hasten to add that the directions aforesaid shall not only apply to the
cases under Section 498-A of the I.P.C. or Section 4 of the Dowry
Prohibition Act, the case in hand, but also such cases where offence is
punishable with imprisonment for a term which may be less than seven years
or which may extend to seven years; whether with or without fine.

 

We direct that a copy of this judgment be forwarded to the Chief
Secretaries as also the Director Generals of Police of all the State
Governments and the Union Territories and the Registrar General of all the
High Courts for onward transmission and ensuring its compliance.

 

By order dated 31st of October, 2013, this Court had granted
provisional bail to the appellant on certain conditions. We make this order
absolute.

 

In the result, we allow this appeal, making our aforesaid order dated 31st
October, 2013 absolute; with the directions aforesaid.

 

………………………………………………………………J

(CHANDRAMAULI KR. PRASAD)

 

………………………………………………………………J

(PINAKI CHANDRA GHOSE)

 

NEW DELHI,
July 2, 2014.

 
———————–
21

 

 

 

 

Categories: 498A, 498A, Anticipatory Bail, NCRB Tags: , , ,

All About FIR

October 1, 2011 Leave a comment

It’s always scary interacting with the police. Knowing your rights helps. This article explains the situations in which the police is required to register an FIR.

 

 FIR is an acronym for ‘First Information Report’. An FIR is a report of a crime filed with the police to initiate the investigation process. However, an FIR cannot be registered for all crimes, and so it is important for one to know the crimes and circumstances in relation to which an FIR may be registered.

Offences for which you can file an FIR

Criminal offences are classified into two categories depending on the degree of seriousness: cognizable; and non cognizable.

Cognizable literally means to take note of. A crime is classified as cognizable if it is of a serious nature, e.g. murder, rape, robbery, kidnapping, etc. In cases of cognizable offences, the police can arrest an accused or suspect without a warrant (i.e. without an order from a court).

Non cognizable offences are minor offences, e.g. defamation, intimidation, theft etc. In case of non cognizable offences, the police can neither investigate nor arrest the suspect for a crime without an order/ warrant from the court.

An FIR is filed only in cases of cognizable offences, i.e. crimes of a serious nature.Non cognizable offences may also be reported to police but the police will not file an FIR for these offences. Instead, they will register the complaint in the Daily Diary Report (DDR).

Whether an offence is cognizable or not can be found out from the 1st Schedule of Code of Criminal Procedure. As per the schedule, theft is a cognizable offence without any qualification.

Filing an FIR

When a crime of a serious nature occurs, it is natural that one would want to inform the police so that the matter can be investigated. In order to do so, it is necessary to file an FIR. How does one do this?

Who can file an FIR?

It is not necessary that only a victim of a crime can file an FIR in relation to it. The following persons may file an FIR:

1.   the victim or any person on behalf of victim;

2.   any person who has witnessed the crime or has heard of the crime. In case the person has only heard of the crime and wants to file an FIR, then he must mention the source from where he/she has heard of the crime; and

3.   an officer in-charge of a police station.

So, if you are any of 1, 2 or 3 above, then go to the police station closest to the area where the crime has occurred and ask for the person-in-charge of the police station. When you have finished narrating the events surrounding the crime, if the person in- charge of the police station (not lower than the rank of head constable) is satisfied that the crime which took place is a cognizable offence and he is duty bound to register an FIR.

You may either give a written statement or make an oral statement to the officer in charge who will then write it down in FIR register. The officer in- charge is under an obligation to read over the statement written in the FIR register to you and then you must put your thumb impression or sign the FIR register.

Three carbon copies of an FIR are made, one copy each is sent to the Magistrate and the Superintendent of police and the third will be handed over to you. The original is retained, for record, in the police station.

Things one must consider while registering an FIR

There are a few things you should keep in mind if you are filing an FIR:

1. An FIR is recorded in first person, e.g. I was present on the scene of crime, I saw him taking out his gun.

2.The FIR should be registered immediately after the happening of crime. If there is any delay in registering an FIR, the reasons for the delay must be explained. Try to give a detailed description of the accused and other witnesses so that they can be easily identified.

3. Try to give as much information as possible about the scene of crime, e.g. the kind of weapon used, any physical damage caused to property, the date, time and place of the incident the question.

4. Ensure that you use simple language and not ambiguous, i.e., the meaning should be clear and obvious. Also make sure that you have not left out any relevant facts as FIR once registered cannot be modified again. Do not lie regarding any fact as it is a punishable offence under section 177 and 182 of Indian Penal Code.

In the FIR itself, make sure you mention:

1.      the date and time of reporting of the FIR by you.

2.      the date and time of the occurrence of the crime.

3.      that a signed and stamped copy of the FIR is given to you.

The police makes three copies of an FIR. The original is always kept as record in the police station and one carbon copy of original FIR is handed over to the informant. This carbon copy is also stamped and signed by the officer who has registered the FIR. The person filing the FIR must sign on the original and the 3 copies of the FIR.

What if the police refuse to file an FIR?

The person in- charge of a police station cannot refuse to register an FIR. It does not matter whether or not the information given is genuine. It is the statutory duty of a police officer to register an FIR whenever any information pertains to ant cognizable offence is reported to him/her.

In case the person in charge of a police station fails to register your FIR, you can approach superintendent of police who will either himself or through any other officer get the FIR registered.

You may inform the Superintendent of such non registration via a written complaint which may be sent to the Superintendent of Police through post. Note: This is an effective method of ensuring that your plea is heard – do mention in your letter the name of the police officer who refused to file an FIR.

Reporting of non-cognizable offence

As mentioned above, a non cognizable offence can also be reported to the police. This is registered in the DDR (daily diary register). After the crime has been so recorded, a signed and stamped copy of the DDR will be handed over to you.

However, the police will not take any action on the matter without the direction of a magistrate. In case you would like the police to investigate a matter, you must obtain an order from the magistrate directing the police to investigate in the matter. Generally you will have to go to the appropriate court in whose jurisdiction the matter falls and obtain the permission from the appropriate magistrate (who is competent to hear the matter) and ask him to pass an order for police to investigate the matter.

 

Courtesy:- RAJESH VAKHARIA NAGPUR

Categories: 498A Tags:

Police cannot call accuse to question or inquiry in Police Station

September 30, 2011 Leave a comment

Section 160 Cr.P.C. applies to Witness and not to Accused

 

 

 

 

2004 AIR 2282, 2004(2   )Suppl.SCR71  , 2004(5   )SCC729 , 2004(5   )

 

CASE NO.:

 

Appeal (crl.)  575-576 of 2004

 

 

PETITIONER:

 

State Rep. by Inspector of Police & Ors.

 

 

RESPONDENT:

 

N.M.T. Joy Immaculate

 

 

DATE OF JUDGMENT: 05/05/2004

 

 

BENCH:

 

Dr. AR. Lakshmanan.

 

 

JUDGMENT:

 

J U D G M E N T

 

 

(Arising out of S.L.P.(Crl.) Nos. 3143-3144 of  2002)

 

 

Dr. AR. Lakshmanan, J.

 

 

I have had the privilege of perusing the judgment proposed by my learned

 

brother Hon’ble Mr. Justice G.P. Mathur.  I respectfully agree with the opinion

 

expressed by him.  However, I would like to add the following few lines.

 

 

Section 160 of the Code of Criminal Procedure deals with police officer’s power

 

to require attendance of witnesses.  This Section aims at securing the attendance of

 

persons who would supply the necessary information in respect of the commission of

 

an offence and would be examined as witnesses in the inquiry or trial therefor.  This

 

Section applies only to the cases of persons who appear to be acquainted with the

 

circumstances of the case, i.e. the witnesses or possible witnesses only.  An order

 

under this Section cannot be made requiring the attendance of an accused person with

 

a view to his answering the charge made against him.  The intention of the legislature

 

seems to have been only to provide a facility for obtaining evidence and not for

 

procuring the attendance of the accused, who may be arrested at any time, if

 

necessary.  In other words, this Section has reference to the persons to be examined

 

as witnesses in the trial or inquiry to be held after the completion of the investigation.

 

As an accused cannot be examined as a witness either for or against himself, he

 

cannot be included in the class of persons referred to in the Section.  But the police

 

officers are fully authorised to require the personal attendance of the suspects during

 

the investigation.

 

 

In the instant case, the High Court, by an impugned order has given a direction

 

to the State Government to issue circulars to all the police stations instructing the police

 

officials that the woman accused/witness should not be summoned or required to attend

 

at any police station under Section 160 Cr.P.C. but they must be enquired only by

 

women police or in the presence of a women police, at the places where they reside.

 

The High Court has issued a further direction to the Government to ensure that this

 

instruction is strictly followed by the police in future.

 

 

In our opinion, the High Court has committed a serious error in giving such a

 

direction contrary to the statutory provisions under Section 160 of the Cr.P.C. which is

 

applicable only to the witnesses and not the accused.  The High Court has also

 

committed a grave error in giving a finding as to the confession and recovery of a nylon

 

rope alleged to have been used in the commission of murder, thereby

 

stifling/foreclosing the investigation into an offence of murder even before a final report

 

in the case as contemplated under Section 173(2) of the Cr.P.C. is filed.

 

 

The High Court, in the present case, while dealing with the revision has not only

 

set aside the order granting police custody, but has held that the consequent

 

confession and the alleged recovery have no evidentiary value in the case.  In other

 

words, what has got to be decided in a full-fledged trial, the High Court merely on the

 

pleadings of the parties has given a finding that the order granting police custody and

 

the consequent confession and the alleged recovery had no evidentiary value

 

whatsoever in the case.  The learned single Judge has also given a finding that records

 

were created to implicate the respondent-Joy Immaculate in the case.  Needless to

 

state that any further investigation in the case permitted by the learned Judge would be

 

an exercise in futility in the context of such finding which could be given only during the

 

course of a full-fledged trial.  The High Court, while disposing of the criminal revision,

 

has given several findings/directions in para 40 of the judgment/order.  In our opinion,

 

the learned Judge has miserably erred in allowing the criminal revision petition against

 

the order of the lower Court in criminal M.P. No. 5171/2001, as the order passed by the

 

lower Court was acted upon, i.e., one day police custody was granted, the accused was

 

taken into custody and surrendered back, and thus the petition to set aside that order

 

has become infructuous.  Further, the learned Judge has erred in directing the State

 

Government to issue a circular to all the police stations instructing the police officials

 

that the woman accused/witness should not be brought to the police station and that

 

they must be enquired only by women police or in the presence of women police at the

 

places where they reside.  The learned Judge has failed to note that the

 

aforementioned findings is contrary to the statutory provisions contained in Section 160

 

of the Cr.P.C.  In fact, the learned Judge has erred in expanding the scope of Section

 

160 Cr.P.C. to the accused as well, which might lead to hardship to an investigating

 

agency.  If the directions of the learned single Judge is accepted, no purposeful

 

investigation into any serious offence involving women accused could be conducted

 

successfully.

 

 

Above all, the learned Judge has committed a grave error in awarding a

 

compensation of Rs. 1 lakh on the ground that the police personnel committed acts of

 

obscene violation, teasing the respondent herein.  The learned Judge has relied upon

 

only on the basis of the affidavit filed in the case for coming to the conclusion and also

 

on the basis of the assumption that the respondent was not involved in the incident

 

which will foreclose the further enquiry ordered by the learned Judge in the matter.

 

There is no justification for awarding compensation to a person who is facing

 

prosecution for a serious offence like murder even before the trial has started.

 

The learned Judge has also directed to take immediate departmental action

 

against P-1 Inspector of Police and P-4 Inspector of Police and other Police Personnel

 

who were responsible for the detention and other alleged acts committed on the

 

respondent at P-4 police station.  This direction, in our opinion, is not warranted in view

 

of the fact of our allowing the criminal appeal and setting aside the judgment of the

 

learned single Judge.  The said direction issued by the learned Judge is set aside.

 

 

We, therefore, set aside the order in the criminal revision to prevent abuse of

 

process of court or otherwise to secure the ends of justice.  It is a principle of cardinal

 

importance in the administration of justice that the proper freedom and independence of

 

Judges and Magistrates must be maintained and they must be allowed to perform their

 

functions freely and fearlessly and without undue interference by anybody.  At the same

 

time, it is equally necessary that in expressing their opinions, Judges and Magistrates

 

must be guided by considerations of justice fair play and restraint.  It is not infrequent

 

that sweeping generalization defeat the very purpose for which they are made.  It has

 

been recognised that judicial pronouncements must be judicial in nature, and should not

 

normally depart from sobriety, moderation and reserve, as observed by this Court in

 

The State of Uttar Pradesh vs. Mohd. Naim AIR 1964 SC 703.  It is also very apt to

 

quote para 13 of the judgment in A.M. Mathur vs. Pramod Kumar Gupta AIR 1990 SC

 

1737 which reads thus:

 

“Judicial restraint and discipline are as necessary to the orderly

 

administration of justice as they are to the effectiveness of the army.  The

 

duty of restraint, this humility of function should be a constant theme of our

 

Judges.  This quality in decision making is as much necessary for Judges to

 

command respect as to protect the independence of the judiciary.  Judicial

 

restraint in this regard might better be called judicial respect; that is, respect

 

by the judiciary.  Respect to those who come before the Court as well to

 

other coordinate branches of the State, the Executive and Legislature.

 

There must be mutual respect.  When these qualities fail or when litigants

 

and public believe that the judge has failed in these qualities, it will be

 

neither good for the judge nor for the judicial process.”

 

 

This Court, in a number of other decisions, has also observed that the Courts

 

should not make unjustifiable observations and directions beyond the scope and ambit

 

of the lis pending before it and that such a direction and observation issued will only

 

hamper the free-flow of justice and cause lot of inconvenience to the litigants who come

 

before the Court for redressal of their genuine grievances.

 

 

It is also apt to quote hereinbelow the observations made by this Court in Kashi

 

Nath Roy vs. State of Bihar [(1996) 4 SCC 539] wherein this Court held that granting

 

of bail on the ground of an infirmity in evidence in the criminal trial was not a glaring

 

mistake or impropriety so as to attract adverse remarks and suggestion for initiation of

 

action against the Judge-Subordinate from the High Court Judge.  While stating the

 

proper course to be adopted in such a case, this Court held as follows:

 

“The courts exercising bail jurisdiction normally do and should refrain from

 

indulging in elaborate reasoning in their orders in justification of grant or

 

non-grant of bail.  For, in that manner, the principle of “presumption of

 

innocence of an accused” gets jeopardized; and the structural principle of

 

“not guilty till proved guilty” gets destroyed, even though all sane elements

 

have always understood that such views are tentative and not final, so as to

 

affect the merit of the matter.  Here, the appellant has been caught and

 

exposed to a certain adverse comment and action solely because in

 

reasoning he had disclosed his mind while granting bail.  This may have

 

been avoidable on his part, but in terms not such a glaring mistake or

 

impropriety so as to visit the remarks that the High Court has chosen to

 

pass on him as well as to initiate action against him, as proposed.

 

 

Whenever any such intolerable error is detected by or pointed out to

 

a superior court, it is functionally required to correct that error and may, here

 

and there, in an appropriate case, and in a manner befitting, maintaining the

 

dignity of the court and independence of judiciary, convey its message in its

 

judgment to the officer concerned through a process of reasoning,

 

essentially persuasive, reasonable, mellow but clear, and result-orienting,

 

but rarely as a rebuke.  The premise that a Judge committed a mistake or

 

an error beyond the limits of tolerance, is no ground to inflict condemnation

 

on the Judge-Subordinate, unless there existed something else and for

 

exceptional grounds.”

 

 

 

I respectfully agree with all other directions and the observations made by

 

brother G.P. Mathur, J. in allowing the criminal appeal and setting aside the impugned

 

judgment of the High Court dated 11.04.2002.

Categories: 498A, Strategy Tags: ,

498A

September 27, 2011 Leave a comment

Strategy and facts to remember to fight 498A

    • When you are anticipating 498a, first thing is to get Anticipatory bail.
    • Please note that it is easy to expose the people who lies. So remember that you read the FIR copy, complaint copy, charge sheet, evidence, cross examination etc very carefully. They will make blunder at some point of time and will be exposed.
    • Since 498a is filed hence it will be assumed that you are a criminal. So you have to show that you were a caring and loving husband and that you took care of your wife and children very much.
    • You have to keep collecting evidences. Some of the evidence you may think is not effective but remember that each piece of information will be somehow or other helpful to you at some stage.
    • Do not miss any legal avenues available. File counter cases under following sections.
    • GATHER PROOFS
    • RECORD PHONE CONVERSATIONS, OPEN CONVERSATIONS ETC.
    • KEEP STALLING TALKS TO MAKE THEM FRUSTRATED
    • Use RTI effectively
    • Track your wife’s activity, her job profile and details, spy on her

 

 

  • Go to the courts to understand the judges mind set , where ever your cases is going on.

Different modes for cracking 498a case:

  • Following the trial & proving innocentAdvantages:
    • Text book method by following judicial system & get the formal acquittal order.
    • During trial, we can file perjury U/s 0 & Defamation suit, which will destroy the 8a family completely.
    • Scope for financial compensation thru defamation suit.

    Disadvantages:

    • Time consuming; have to be patient with great Indian Judiciary’s efficiency.
    • Will take anything between – Yrs.
    • Need to cope up half baked lawyers.
  • Filing counter-cases against 498a familyAdvantages:
    • By giving the same medicine to the opponents, 8a case may get over in short time.

    Disadvantages:

    • Very delicate in nature. Needs to do lot of home work & legal analysis before retaliating with counter-cases.
    • Costly affair & time consuming.
    • Counter-cases may back fire, if not launched properly.
    • Some counter-cases may be of cooked nature, which will be a “misuse of law”.
  • Complaining to higher authoritiesAdvantages:
    • Taking the case details to all levels of higher authorities such as Human rights, DGP, Collector, Commissioner, Home Secretary, Income tax Dept. etc, will solve the case in shorter time.
    • Cheaper mode & can close the case in shorter time duration.( 6 Months)
    • Can handle without much legal aid.

    Disadvantages:

    • This mode will be applicable based on 8a family members’ profile.
    • Complaints have to be placed immediately after the threats.
    • Government machinery may not work with expected efficiency.
  • Using rti applications aginst 498a familyAdvantages:
    • Cheaper mode & consumes relatively lesser time to close the case.(5 – 6 Months)
    • We can screw the 8a family royally, with this “Legal Cruelty” tool.
    • May cause irretrievable damage to the opponents, apart from closure of 8a case.
    • Can handle without legal aid.
    • No limit & can fire numerous RTIs based on the opponents’ profile..

    Disadvantages:

    • 8a family members or witnesses needs to be government job.
    • Needs to cope up with time delay for RTI replies from govt. departments & information commission response for appeals.
    • Government machinery may not work with expected efficiency.
    • Very indirect method of attacking the opponents.
  • Filing Tax Evasion Petition aginst 498a familyAdvantages:
    • For sure this will og against the 498A family as it will expose their false allegations
    • We can screw the 498a family royally, with this “Legal Cruelty” tool.
    • Can handle without legal aid.
    • Fire numerous RTIs based on the opponents’ profile and fast track the TEP investigation..

    Disadvantages:

    • Will not work when less amount is claimed as dowry
    • Needs to cope up with time delay for RTI replies from govt. departments & information commission response for appeals.
    • Government machinery may not work with expected efficiency.
    • Very indirect method of attacking the opponents.

    Templates & Citations:

Categories: 498A, Strategy
Fight for Justice

A crusaders blog for inspiring thought.

Stand up for your rights

Gender biased laws

MyNation Foundation - News

News Articles from MyNation, india - News you can use

498afighthard's Blog

Raising Awareness About Gender Biased Laws and its misuse In India

The WordPress.com Blog

The latest news on WordPress.com and the WordPress community.