Lawyersera

Tuesday, November 17, 2020

Format of FIR under Section 3 of Dowry Protection Act 1961


POLICE COM PLAINT LETTER 



To. Date: xxx/September/2019.

The Station House officer,

Xxx police station,

Hydererabad, Telangana State.

SUBJECT:- Reporting cognizable offence under Cr.P.C U/S 3 of Dowry Prohibition Act 1961 and not abiding the Rule 2 of D.P Rules, 1985 and also conspiracy and intimidation appears to be applicable and hence Requesting to take necessary action by immediately registering the FIR against all these persons (Mention the all person’s names here) and accomplices, promptly arrest all of them by taking necessary drastic and strict actions without delaying and prolonging the matter and then kindly start the further and preliminary enquiry and investigation in accordance with under the law and order and guidelines and directions. Somehow all of them have been participated, involved, claimed and categorically admitted and confessed even on oaths as abetted and given dowry as “Voluntary Confessional Admission” as cognizable offences and punishable up to 5 years imprisonment.

- - -

Respected Sir / Madam,

I am xxx (Complainant) S/o xxx, Age:35 yrs, Occupation: Daily wages work / Private job work, Qualification: MBA, R/o:xxx, xxx, xxx, Hyderabad, Pin-code: xxx, Telangana, in coalition SHO of xxx P.S., I got married on xxx in xxx, xxx, xxx, xxx, Hyderabad-xxx with xxx D/o xxx Age: 25 (DoB: xxx) R/o:xxx, xxx, xxx, Hyderabad, Telangana, xxx, Qualification: Graduate, Occ: Teaching & Tailoring at H.No:xxx, xxx, xxx, xxx, Hyderabad, xxx. My marriage has solemnized as per xxx at xxxwithout taking / demanding any kind of dowry and thereafter valima reception held on xxx at xxx, xxx, xxx. Hyderabad-xxx.

SHO of xxx Police Station on false complaint of Mrs. xxx and accomplices has registered the FIR No. xxx dated xxx and booked me and my family members u/s 498A I.P.C and 3/4 of DP Act as per the conspiracy and intimidation of all above mentioned persons. I got arrested dt:xxx, reminded and released on bail after 4 days dt:xxx. In the FIR No. xxx dated xxx at xxx Police Station, Mrs.xxx her parents, siblings, relatives have claimed to have abetted and given me huge and costly dowry in the marriage further revealed that as per other cases as they have stated and confessed as they gave Rs. 1 Lakh cash along with other few articles of almost Rs. 3 Lakhs and the total marriage expenditure of 7 lakhs, as they have managed all these by taking loans beyond their capacity which is prohibited as giving dowry under Section 3 of Dowry Prohibition Act as giving dowry is also cognizable offence and punishable up to 5 Years imprisonment and not abiding the Rule 2 of D.P Rules, 1985.

I Submit that, (Mention the all person’s names here) and accomplices are highly educated people. And they are very much aware of the fact as giving dowry is also a crime and criminal offence.

Further I request to the SHO of xxx Police Station to take drastic and strict necessary action immediately by arresting all of them promptly in accordance with under the law and soon after registering the FIR for cognizable offence of “Giving Dowry” under Section 3 of D.P Act 1961 as its being cognizable offence and punishable upto 5 years imprisonment and not abiding the Rule 2 of D.P Rules, 1985 and then kindly conduct the investigation in detail for truth in accordance with under the Law.

Monday, November 16, 2020

Is Right to Internet as a Fundamental Right?

I have internet and that's not a small thing to have because there are 60% of people in the world who doesn't have the right to the internet and if we look at least developed countries only 1 out of 10 people have internet access along with this there are many countries which don't allow their citizens to access specific contents, they restrict it to do so but in today's generation no development is possible without digitalization.

So looking at the suppressive tactics of the governments, In 2016 UNHRC said that Right To Internet should be made a fundamental right. Many years back like this only they asked for a new right to become a fundamental right which was “right to education”

So now let's talk about India, In past 10 years there were around 400 Internet shutdowns in India and if we talk about past one year, On 4th Aug 2019 when Indian parliament revoked Article 370 from the constitution and separated the state of Jammu and Kashmir in to two union territories  that is Jammu &  kashmir and Laddakh  for maintaining the security of nation, the government imposed section 144 which prohibits the assembly of more than five peoples, along with this they did Internet Shutdown and this shutdown becomes the longest internet shutdown of India

So due to security concerns, on 4th Aug 2019 the internet services of J&K was suspended and it gets restore after 213 days that was on 4th March 2020 and that's why it becomes the longest shutdown of the country between these two dates there was three important judgment made which in future decides the new right of the nation, Right to Internet.

We will discuss three important cases coving this topic.

The 1st  case is of Faheema Shirin R.K. v. State of Kerala

In this case Faheema Shirin who is a college student, in their girls hostel there was a rule that they are not allowed to use cell phones between 6 to10,  opposing this restriction of the hostel this case was filed in front of Justice P V Asha single judge bench of the kerala high court. Keeping in mind the learning process and development of the students, this court produced an imp judgment and said that Right to Access Internet is a fundamental right and it was added with Article 21 of the constitution that is Right to privacy and Right to Access Internet was added in relation with Right to Education So this was the case of Faheema shirin.

The 2nd case is Anuradha Bhasin v. Union of India

Now this case directly relates with Jammu and Kashmir, this case was filed on 10th January, in which the internet ban was challenged, which was imposed on 4th Aug they said that restricting physical movement along with shut downing all the mediums of online communication violates fundamental right under Article 19 of the constitution as Right to Internet is a part of Article 19 (1a)

Hon’ble Supreme court said, due to immediate threat or security concern a temporary ban on any services is permissible but for indefinite period, internet services cant be suspended, the balance should be maintained between national security and human rights.

So after the judgment of 10th January 2020, the lowest speed 2G internet was allowed in Jammu & Kashmir but after the case of Anuradha Bhasin one more cased was filed in court, the case was of Foundation of Media Professionals vs Union of India. In this case the ban on 3G and 4G internet service in Jammu and Kashmir was challenged. This case is popularly known as  4G case. In this case they said that such ban on internet services completely violates Right to Education, Right to Profession, Right to  Health and many fundamental rights

Supreme court issued directions to resume 4G services and also setup a committee along this after much discussion, center directed to resume 4G services as a trial basis on limited areas of Jammu & Kashmir .

it all started on 4th Aug 2019, when internet services of Jammu & Kashmir got suspended for indefinite period due to national security concerns, Now come to Sept 2019, the case of Faheema shirin, in which kerala the most literate state of India said that Right to Internet is a fundamental right. you should also know that Kerala State government is running a project in which they are providing internet at a subsidized rate to 20 lakh poor families so this was Faheema shirins case

Now let us look at Jan 2020, Anuradha Bhasins judgement, in this case supreme court said that due to immediate threat, you can disable services temporarily but indefinite ban is not at all right and after this case the 2G services got resumed in Jammu & Kashmir

Finally comes the case of Foundation For Media Professionals, in this case supreme court said that it is very important to maintain balance between national interest and human rights and due to this case 3G and 4G services got resumed in some areas of Jammu and Kashmir.



Saturday, November 14, 2020

How to draft a plaint or written statement for a civil suit

For the drafting of pleading, must have some different skills which are not taught at college, basic of drafting has been given in LLB paper but advanced drafting skills are required to be a good lawyer,   

The general meaning of “Pleading” is  a plaints or written statement, every pleading contains only  statements, and such statements must be in the concise form of material facts on which a party relies on his claim or defense as the case may be but it need not contain evidence by which they are to be proved.

This is a very important part of an advocate whose duty is to draft the pleadings of a plaint or written statement with the utmost care and caution and which forms the basis of the claim,

In case  of incorrect pleading, the suit is liable to be dismissed or it may lead to unnecessary amendment causing a delay in procedure.

For a junior lawyer or passed out student of LLB, it is always advisable to get the proper knowledge of drafting of plaints. See the plaints which are  drafted by a senior and experienced civil lawyer and it is always better to check the defects of plants, remove grammar or spelling error if any, remove unnecessary lines which are not material facts much prior to the hearing.    

It is also advisable for the junior lawyer to go through similar nature of cases decided by different Court of different states

What is good “legal drafting”?

Good writing is simply speech heightened and polished. Good writing is clear thinking madeVisible.” Good drafting satisfies the needs and desires of the petitioner and respondent. Good legal drafting helps the court to make important decisions

What are the qualities of good legal writing?

There are four qualities of good legal writing

  • Clear
  • Concise
  • Engaging
  • Elegant

Why good legal drafting is important?

Drafting is a skill of the legal profession.  Good drafting represents as you are a dignified lawyer and disciplined thinking. A good drafting skill helps you to do your job better and light in your advanced career.

What is important in drafting?

Drafting must be in an organized way, The court granted the defendant’s motion to dismiss for several reasons, including poor organization, stating. Organize material to serve the reader's needs 

Do and Don't in Drafting

  1. Use introductory paragraph
  2. Use transitional phrases between paragraphs (e.g., “however”)
  3. Begin each paragraph with a topic sentence
  4. Limit each paragraph to one topic
  5. Summarize message with concluding sentence or paragraph
  6. Break up lengthy documents by using short headings and subheading, short, numbered lists, bullets, table of content
  7. State general rule first, then exceptions, conditions, and specialized information
    Put context first, then details
  8. Use familiar, concrete words
  9. Organize material by using one of these methods
  • Chronology
  • Logic (cause and effect)
  • Problems/Solutions
  • Actor’s actions
  • Witnesses’ observations
  • Issue
Do not use the double negative
  • “There are” “It is”
  • “As stated previously,” “I might add”
  • “It should be noted that”
  • Replace "There are kids playing in the ground" with "Kids play in the ground."
  • “I would like to point out that” “I would argue that” “the fact that” “In fact” “the course of”
  • “It has been determined that”

Eliminate unneeded words

Don’t Use

Use

at this point in time

Now

despite the fact that

Although

for the duration of

during

in the event that

if

in accordance with

by, under, per

in order that

for, so

in the amount of

for

in the near future

shortly, soon

utilize, utilization

use

the manner in which

how

no fewer than

at least

has not yet attained

is under

is not…unless

is…only if

not uncommon

common

not insignificant

significant

no small part

large part


Drafting Classes

We provide online coaching classes for drafting, in which we cover almost all types of drafts with a nominal charge of 5000.

for more details, please contact us at 8800524507 

NOTICES Drafting
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INSOLVENCY Drafting
MAINTENANCE Drafting
MARRIAGE Drafting
MOTOR ACCIDENT CLAIM Drafting
NEGOTIABLE INSTRUMENTS Drafting
PARTITION Drafting
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DIVORCE-NUILTY OF MARRIAGE AND JUDICIAL
SEPERATION Drafting
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REPLY to Notice


Friday, November 6, 2020

Section 8 of Indian Evidence Act 1872

Motive, Preparation and Previous or Subsequent conduct.

Section 8 of Indian Evidence Act 1872, deals regarding  motive, preparation, and conduct, before interpretation of this section, we would like to explain why the language of the bare act is difficult to understand, because you do not pay attention on objective and purpose of act and section and that difficulties were also with me when I was in college. More students directly jump to the judgment having read the section.

Section 5 to 16 of Indian Evidence Act introduces only relevancy of fact and such relevant fact would be admitted in court. So the meaning of motive, preparation, and conduct must be aware to understand section 8 of the Indian Evidence Act 1872.


Let's explain each one


A Motive is that which moves a man to do a particular act, it lies in the mind of a man and it leads him to act. An action of man can be seen by eyes but his motive cannot be seen. A motive is something which prompts a person to do a certain illegal act or a legal act but with illegal means with a view to achieving that intention   


For example 

The common Inducement to acts is the desires of revenging some real or fancied wrong of getting rid of a rival, or an obnoxious connection or of escaping from the pressure of pecuniary or other obligation or burden, obtaining plunder or other coveted objects, of preserving reputation or of gratifying some other selfish or malignant passion.


Or we simplify more, Murder for revenge, Murder to disclose particular thing, like these are example motive, Previous threats, previous altercations, or previous litigations between parties are admitted to show motive


In any criminal proceeding, if the motive of the crime is known, but the question is that how motive is known so the answer is from the statement, or through any evidence, such statement and evidence shall be admitted in court.


The motive for commission of an offence is of particular importance only in cases of purely circumstantial evidence for, in such cases, motive itself would be a circumstance which the court would have to consider


The second part is Preparation, it means getting or making ready to something to achive aimed result, preparation signifies arranging or devising the means and measures necessary for the commission of offence, every offence consists of four stages 

  1. Intention and Motive

  2. Preparation

  3. Attempt 

  4. Actual Commission or Computed      


For Example,

Arranging or Buying poison for giving, Arranging or Buying Kirson oil for burning, arranging or buying the knife  to commit offence like those are example of preparation under section 8 of Indian Evidence Act

In any criminal proceeding, if the preparation is detected such preparation is a relevant fact and admissible in court.

Now the third and important part is Conduct, it is very technical to understand because it has not been defined in Evidence Act. The meaning of Conduct is the expression in outward behavior of a person of the quality, or condition operating to produce those effects.

For Example, 

The wife of a  person has suicided in the house and he is eating, it is the conduct of a person.

A person runs away after hearing the police vehicle, it is the conduct of a person.

So conduct is basically the external behavior of the person which is what is thought of a person by others.  

If the person behavior has changed from normal situation, and indicating his behaviour with fact in issue, it is conduct and admissible in court under section 8 of EA.


Interpretation of Section 8 of Indian Evidence Act 1872

Section 8 is in two parts 

  1. A fact which constitute “Motive” or “Preparation” and such fact inference to fact in issue, such facts are relevant, and admissible in court 

  2. Second Part is previous or subsequent conduct  of party or agent of party  is relevant, and admissible in court

The evidence of conduct of such parties are allowed if two conditions are fulfilled

  1. The conduct must be in reference to the fact in issue or relevant fact

  2. The conduct is such as influences or is influenced by the fact in issue or relevant fact


    The conduct of any party or his agent in reference to a suit or proceeding will be scanned under this section. A fact can be proved by conduct of a party and by surrounding circumstances.


For Example, The production of articles by an accused person is relevant as evidence of conduct


The word "party" includes the plaintiff and defendant in a civil suit as well as the accused in a criminal prosecution

.    

Case Law               



State of M.P vs Dhirendra Kumar 1997 SSC 318 

In this case, Munnibai was killed by respondent Dhirendra Kumar, he had an evil eye on her responded was tenant in the house of father in law of deceased Munnibai. Munnibai reported the matter to her mother-in-law who in turn told to her husband who asked the respondent to vacate the house this may be taken as a motive of nurder


Natha Singh vs Emperor, AIR 1946, PC 187 

In this case the privy Council pointed out that fact showing motive should be admitted even if it involves evidence of other crimes committed by the accused, which is ordinarily not allowed. The Lordship further pointed out, proof of motive or inducement for the commission of the offence is not necessary when there is clear evidence that a person has committed an offence. When evidence connecting the accused with the commission of the crime is weak, motive can hardly make up for the weakness of the prosecution case.  If a prosecution case is convincing beyond reasonable doubt, it is not necessary for the prosecution to prove motive or that motive was adequate.


A.N Venkatesh vs State of Karnataka 2005 AIR SCW 3914 

In this case  the dead body of the kidnapped boy was alleged to have been recovered on pointing out of the particulate spot by the accused person. The presence of the accused person at a place where the ransom demand was to be fulfilled and their action of fleeing on  Spotting police party and also their disclosure statement was held to be admissible under Section 8 but not under section 27 of the Indian Evidence Act.


Dr. AC Lagu vs State of Bombay, 1960 SCJ 779 


In this case the Bombay High Court held that,  Where the proof of the charge of murder by poisoning related principally on circumstantial evidence, the majority of Supreme Court Judges held that the evidence as to the conduct of the accused in a respect of property of the deceased before and after date was material link in the chain of evidence which the court could consider along with the other evidence in dittermining whether murder had in the fact been committed and committed by the accused.


RE Murgan AIR 1958 Mad 43

In this case, where the accused took the police to a spot and pointed out a place from where incriminating articles were recovered, the conduct of the accused in taking the police and showing the spot is admissible.


State of Madras vs Vaidyanath Iyyer (AIR 1958 SC 61)

 In this case,the accused was charged with the offence of bribery. Evidence to the effect that at the of raid by the police officer and trap witnesses, on the question “whether you have accepted bribe” the fact that accused was stunned and did not reply, he was confused and began to apologize, or that he  began to tremble 



Kuldeep Singh vs State of Punjab 1980 CLJ 71

In this case,  he was accused of murdering his wife. Burnt dead body of the wife of the accused was found in a closet. There was no direct evidence, the case depends on circumstantial evidence and accused stated that he had gone for a morning walk with Dharambir Mahajan and it was in his absence within short span of half an hour that his wife committed suicide. The facts that he had gone for a walk and that his wife committed suicide were found to be false. The statement of accused was held relevant  


     


Saturday, October 17, 2020

Question Hub asked by user week 42

Showing judgments where confession recorded by forest officials hit by Section 25 of the Indian Evidence Act ?

First of all you have good interpretation of Confession and police officer, The expression confession has not been defined in the Indian Evidence Act but Stephen in his book “Digest of the law of Evidence defines as A confession is an admission made at any time a person charged with crime, stating or suggesting the interference that he committed to crime

Under Section 25 of Indian Evidence Act, “No confession made to police officer shall be proved as against a person accused of any offence.

The objective of this section is to prevent the practice of torture by police officer for the purpose of extracting confession from accused person, under this section no confession made to police officer is admissible against the accused

But the question is Who is police officer , the term police officer used in section 25 of Indian Evidence Act should be ready as strict technical sense but according to its more comprehensive and poplar meaning. It applies to every police officer and is not restricted to officers in a regular police force.

Who are considered as police officers?
  1. Exercise Officer (Emperor vs Nanoo 1926 28 Bom LR 1196
  2. A special officer of the Commercial Tax Department 
  3. An officer appointed under Bombay Sales Tax Act 
  4. Security officer of HEC 
  5. Officer under Orissa Home Guard Act 1961 (State of Orissa vs Dubuga Tubud 1989) 
  6. Police officer Guarding Treasury 
  7. Police patel (Empress vs Rama Birapa 1878 3 Bombay 12 
  8. Village Administrative officer(Lu Bein vs Queen Impress 1889 26 CAL 569
  9. Officer of J.K Rifles 

Who are not considered as police officers?
  1. IPS Officer working on an administrative post and not authorized or empowered to conduct investigation
  2. Officer of railway Protection Force or under the Railway Property (Unlawful Possession) Act 1966 
  3. Member of the defence party under Assam Village defence Organization Act, 1966 
  4. Central Reserve Officer or Central Reserve Police force 
  5. Constable of Rajasthan Armed Constabulary 
  6. Sub-Divisional Officer 
  7. Officer of the security Force 
  8. Officers of Custom 
  9. Inspector of Mines 
  10. Prohibition officer 
  11. A jailor
  12. Forest officer 
  13. Officer under Narcotic Drugs Act 
  14. Enforcement officer investigating the officer under section 5(1)(aa) of the foreign Exchange Regulation Act 
  15. Village of Kotwal, Village Chowkidar, Gram Rakshi 
Matia Patel v State of Orissa, 2001 Cr LJ 1897 (Ori).
A forest officer under an Orissa legislation has been held to be not a police officer though certain powers of police officers have been conferred on him. A confession made to such an officer was held to be admissible in evidence

What are the question to the IO regarding section 380 and 457 and leading to discovery under Sec 27 of Evidence Act?

See section 27 of Indian Evidence Act 1872 deals with How much of information received from accused may be proved , for this there some provision given in section 27 of Indian Evidence Act. when any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police-officer so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

The fact said to have been discovered in consequence of information received from a person accused of an offence must be of a kind which such information really helps to bring to light and which it would be difficult to find out otherwise before it can be treated as of any substantial probative value.

The fact must be the consequence, and the information the cause of its discovery. The information and the fact should be connected with each other as cause and effect. The fact discovered must be in consequence of the information received from the accused, and the fact should not have been already within the prior knowledge of the police. The information should be free from any element of compulsion. If any portion of the information does not satisfy this test, it should be excluded.

Only those statements of the accused are admissible, which cannot be traced easily or cannot be recovered easily without statement of accused.

Suppose he has hidden stolen articles in a mud, or having dug under the ground, such type statement given to police will be admissible

Your questions were related to 380 of IPC which is related to theft. Theft in a building ten or vessel etc which is used as a human dwelling or a place for stocking things, is considered an aggravated form of theft because it involves trespass, further if it is dwelling place, it intimidates and causes fear to people living in the house. If it is used for the custody of property even then it is considered an aggravated form and a higher punishment is prescribed because it is intended as to give greater security

A person who assault in attempting wrong confinement will be punished under section Section 357 of Indian panel Code,

Means, A person who attacks or use criminal force to attempt wrongful confinements such person shall be punished under section 357 of Indian Panel Code whose punishment is imprisonment upto 1 Year or fine or both . Fine will not be greater 1000 Rs

There is no any provision given in Indian law, what type of question an IO can ask, Investigating Officer ask any question related to offence in any way, no court has power to intervene in his investigation

Whether section 90 Indian Evidence Act was declared unconstitutional by any courts in India ?

Not yet, It is constitutional, Section 90 of Indian Evidence Act 1872 deals with Presumption in respect of 30 years' old document coming from proper custody relates to the signature, execution and attestation of a document i.e. to its genuineness but it does not give rise to presumption of correctness of every statement contained in it. That the contents of the document are true or it had been acted upon, have to be proved like any other fact

When a document is or purports to be more than 30 years old, if it be produced from what the court considers to be proper custody, it may be presumed (a) that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and (b) that it was duly executed and attested by the person by whom it purports to be executed and attested

Thirty-year-old document, produced from proper custody, not looking ex facie suspicious, presumption could be drawn in favour of the document. Where the document relied on was not more than 30 years old, finding of the court based on no evidence could be interfered with.

It is not necessary that the signatures of the attesting witnesses or of the scribe be proved, for if everything was proved there would be no need to presume anything.

There can, however, be no presumption as to who the person who executed the document was and what authority he had to execute the document and whether he had the requisite authority,521 or whether the contents of the document are true or that the document has the legal effect that it purports to have.

Sunday, October 11, 2020

Provision of Bail in Bailable offence Section 436 of Criminal Procedure Code 1973

The term 'bail' is not defined under the Code of Criminal Procedure 1973. However, it is termed as “bail’ is a temporary release from legal custody on furnishing requisite security/surety to available for trial.

In other words, it is considered as the temporary release of an accused from legal custody upon giving sufficient security for his appearance later on. It is based on the principle that the law recognize that every person has liberty, which should be protected and that every person, including the accused, is entitled to liberty unless he is found guilty of committing a serious crime. Bail cannot be claimed as a matter of right in the case of non-bailable offense. However, this does not mean that there can be no bail for such offenses.

Section 436, gives power to court or police officer in charge of police station to release the accused of bailable offence on bail

The meaning of bail is temporarily release from legal custody on furnishing requisite security or surety to appear for trial. If we more simplify, if any acquainted person who takes a guarantee of accused that whenever the appearance of accused is required during trial, he will present him. Such person is known as bailer in the legal term, for this he will have to furnish a surety, surety amount will be guided by officer or court, Surety can be like as RC of Vehicle, FD, and Registry of land or any such type of asset whose value is more surety amount. Bailer must be owner of such assets only then he can be bailer.

According to section 436(1) of Criminal Procedure Code 1973, if a person arrested or detained without warrant by police officer in charge of police station in a bailable offence, during custody, officer in charge of police station shall be release such accused on bail.

Or if such person appears himself or brought before court by arresting him, hon’ble court shall be released him on bail during any stage proceeding.

If the accused person is poor and is unable to furnish surety, instead of taking bail from such person,  Police officer in charge of police station or court as he thinks fit may release him on personal bond, means release him without sureties.  Accused person will be presumed as poor, if he is unable to give sureties within a week from the date of arrest.

According to section 436(2), if the person has breached the condition of bail-bond as regard the time and place of his attendance, whenever he appears or brought in custody before court, court may refuse to release him on bail and Such refusal will not affect the powers of the Court to forfeit the bond and recover penalty from the surety as laid down by section 446

There is no express provision in the Code prohibiting the Court from re-arresting the accused who has been released on bail. The High Court in the exercise of its inherent powers can cancel a bail bond.

Section 436A was introduced in 2005 in amendment of Criminal Procedure code, this section provide a provision to undertrial prisoner about maximum detention
According to Section 436A, During a period of investigation, Inquiry or trial, if the person has undergone detention more than one half of the maximum imprisonment of the offence which he did, court shall be release him on personal bond with or without sureties, but the court may order to continue detention more than half of the maximum imprisonment of the offence after hearing the public prosecutor and reason to be recorded by it in writing about such prolong detention . 

 No person shall be detained in any case more than the maximum imprisonment of the offence during the period of investigation, enquiry or trial,  

Case Law

Talab Haji Hussain v Madhukar Purshottam Mondkar, (1958) SCR 1226 : 60 Bom LR 937 : AIR

1958 SC 376 : 1958 Cr LJ 701

The Supreme Court has held that though a person accused of a bailable offence is entitled to be released on bail pending his trial, if his conduct subsequent to his release, is found to be prejudicial to a fair trial, he forfeits his right to be released on bail and such forfeiture can be made effective by invoking the inherent power of the High Court under section 482 of the Code.

 Ratilal v Asst Collector of Customs, AIR 1967 SC 1639 : 1967 Cr LJ 1576 .

In this case it was held that , if at any subsequent stage of proceedings, it is found that any person accused of a bailable offence is intimidating, bribing or tampering with the prosecution witnesses or is attempting to abscond, the High Court has inherent power to cause him to be arrested and to commit him to custody for such period as it thinks fit. This power can be invoked in exceptional cases only when the High Court is satisfied that the ends of justice will be defeated unless the accused is committed to custody.

Virsa Singh v State through CBI, 1992 Cr LJ 164 (Del); Jagannath Mishra (Dr) v CBI, (1998) 9 SCC 611 : (1998) 9 JT 149 (1) : 1998 SCC (Cri) 1337

In this case, Accused was granted bail who was in jail for six years. No progress was made in trial because of an order of the President, not to remove the accused from the jail. There was no indication as to when the above order would be withdrawn. There was no apprehension that the accused would tamper with the evidence. The bail was granted

 

Chowriappa Constructions v Embassy Constructions & Developments Pvt Ltd, 2002 Cr LJ 3863 (Kant).

While granting bail in respect of a bailable offence, insistence on personal bond and surety is a matter of discretion and within the jurisdiction of the Court under section 436

   

Saturday, October 10, 2020

CHAPTER V (When Police may arrest without warrant)

When Police may arrest any person without a warrant? What do you mean by arrest, When can a person be arrested by a private person also? What are the various rights of arrested people?


Section 41 of the criminal procedure code 1973 gives the power to police to arrest any person without a warrant, but there are some guidelines given by the supreme court that need to be followed strictly by arresting officers.

Under Section 41(1) of the Criminal Procedure Code, police officers have the right to arrest a person without any order of magistrate or without a warrant

According to Section 41(1)(a), When a person committed a cognizable offence in front of a police officer

According to section 41(1)(b), A reasonable complaint has made against a person who has committed a crime whose punishment is imprisonment up to 7 years with or without fine

or

If credible information has been received against a person who has committed an offence whose punishment is imprisonment up to 7 years with or without fine

or

Police Officer have reasonable doubt that this person has committed an offence whose punishment is imprisonment up to 7 years with or without fine

But the question is that is it enough to arrest to any person by a police officer if a reasonable complaint has made, credible information has received or there is a doubt to a police officer,

So answer is No, there is some condition to arrest any person, provision has been given under section 41(1)(b)(i) & 41(1)(b)(ii)

Police officer may arrest any person under section 41(1)(b)(i) & 41(1)(b)(ii), if these conditions are satisfied

  1. According to Section 41(1)(b)(i), Police officers have certain reasons to believe upon such complaint, information or suspicion, this person has committed the said crime, then he may arrest
  2. According to Section 41(1)(b)(ii), if a police officer has satisfied that such arrest is necessary but this satisfaction is based on some principles which follow as
  • According to section 41(1)(b)(ii)(a), Police may arrest such person to prevent of further offence
  • According to section 41(1)(b)(ii)(b), Police officer may also arrest proper investigation
  • According to Section 41(1)(b)(ii)(c), To prevent causing evidence of the offence to disappear or tampering with evidence in any manner
  • According to Section 41(1)(b)(ii)(d), To prevent from such person from making inducement, threat, making a promise to any person acquainted with the fact of the case not disclose anything related case to any police officer or to the court 
  • According to Section 41(1)(b)(ii)(e), When the presence of any person is not sure whenever will be required, then such person may be arrested by a police officer.
Note: Police officer shall record reason to arrest where there is required similarly if an arrest is not required in that case he will also record the reason for not arresting

According to Section41(1)(b)(a), if the credible information has been received against a person who has committed a crime whose punishment is imprisonment more than 7 years with or without fine including death punishment, such person shall be arrested but there is reason to believe upon such credible information.

According to Section 41(c) Who has been declared offender already under section Indian Penal Code, or by state government

According to Section 41(d), he has been suspected to have stolen property under his possession or reason to suspect that crime was caused by such a thing which is in his possession.

According to Section 41(e), who obstructs to police while executing his duty.

According to Section 41(f), who is reasonably suspected of being a deserter from any armed force of India

According to Section 41(g), A person has committed a crime out of India, if such crime is related to arrestable under section 41, it would be considered as he has committed in India

According to Section 41(h), A person who has been released after conviction, violated any rule made in sub-section 5 of 356,

Other Police officers, Private persons may arrest any person, this provision has been given under section 43 of the Criminal Procedure Code 1973,

According to this section, a private person may arrest any person who has committed a Non-Bailable, cognizable offence in front of him or he can be arrested to prevent such crime also or any proclaimed offender.

Meaning of this, anyone committing any crime in our presence, it is our duty to prevent for this he may arrest that person, once he is arrested, will be handed over to a police officer, in case a police officer is unavailable, will have to send him to the nearest police station immediately.

Right of Arrested Person

  1. It is the right of the arrested person to know on which ground he has been arrested
  2. According to Section 41B(a), It is the right of an accused person to know the name, designation, and police station of the Police officer.
  3. According to Section 41B(b), Police will make a memo of arrest, which contains, grounds of arrest, date, and place of arrest.
  4. According to Section 41B(b)(i), On such memo of arrest, It would be attested by a family member of the arrested person or by a respected person of the locality as a witness
  5. According to Section 41B(b)(ii), On such memo of arrest, It would be countersigned by the arrested person
  6. According to Section 41B(b)(ii), In case, If would not be attested by any person upon memo of arrest, a Police officer may inform his family member, friend or anyone requested by the arrested person about his arrest within 12 hours.
  7. According to Section 41D, it is the right of the arrested person to meet with advocate of his choice
  8. According to section 55A, an arrested person may request to Police officer to prepare an inspection report, this report contains if there is any injury mark or health issue,   It is the duty of the officer in charge of the police station to take reasonable care of of the health and safety of the accused. 
  9. According to Section 57, an Arrested person cannot be detained more than 24 hours, the arrested person must be present before a magistrate having jurisdiction in this case
Case Law

Gopal Naidu v King-Emperor, (1923) ILR 46 Mad 605 : AIR 1923 Mad 523 FB.

In this case it was held that A step little short of arrest is the ascertainment of the name and residence of a person.The section applies only to a person (1) who commits a non-cognizable offence in the presence of a police officer, or (2) who is accused of committing such offence before such officer. If the name and address are ascertained or are otherwise known to the police officer,

Goolab Rasul, (1903) 5 Bom LR 597

It was held that the person is to be released on his executing a bond to appear before a Magistrate. If the person does not give his name or residence or gives a name and residence which the police officer believes to be false, he may be taken into custody. He cannot account be detained beyond 24 hours,but should be placed before a Magistrate.

Ins. by Act 5 of 2009, section 6 (w.e.f. 1-11-2010).

In this case it was held that Right of arrested person to meet an advocate of his choice during Interrogation, When any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout Interrogation.

Dr Rini Johar v State of MP, WP (Crl) No. 30/2015 as decided on 3 June 2016 by the Madhya Pradesh High Court.

Where the arrest was not made by following the procedure of arrest and section was not followed, the Supreme Court treated it as violation of Article 21 and granted a sum of Rs 5,00,000 (rupees five lakhs only) towards compensation to each of the petitioners to be paid by the State within three months hence

Hema Mishra v State of UP, AIR 2014 SC 1066 : (2014) 4 SCC 453 : 2014 Cr LJ 1107 (SC).

In this case it was held that Arrest of a person even in case of cognizable offences is not mandatory where the offence is punishable with a maximum sentence of seven years imprisonment. The provisions of section 41A make it compulsory for the police to issue a notice in all such cases where arrest is not required to be made under clause (u) of sub-section (1) of the amended section 41. But unwillingness of a person who has not been arrested to identify himself and to whom a notice has been issued under section 41A, could be a ground for his arrest. Legislation has laid down various parameters, warranting arrest of a person, which itself is a check on arbitrary or unwarranted arrest and the right to personal liberty.























































Tuesday, October 6, 2020

CHAPTER VII PROCESS TO COMPEL THE PRODUCTION OF THINGS

Summon to produce documents or things (Section 91 of the Criminal Procedure Code) 

It is a very important section of law professional, whenever any documents or things are required for the purpose of proper investigation, Enquiry or Trail, it can be summoned to produce such thing or documents to those who have other than accused in the trial. No court can compel anyone to produce any documents or any evidence which will be used against him.

But anyone who other than accused can be asked to produce, for example, any incident occurred in front of your shop, your shop equipped with CCTV then you can be asked to produce recording.

So according to section 91 of Criminal Procedure Code, Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceedings 

By using the power of Section 91, the Officer in charge of a police station may issue a written order to a person to produce such documents or things which is in possession of that person, or which is under supervision of him.

Or Court may summon to produce such documents or things which are in possession of that person, or which is under supervision of him by using the power of Section 91 of Criminal Procedure Code.

Case Law

Shyamlal v State of Gujarat, AIR 1965 SC 1251 : (1965) 2 Cr LJ 256 .

In this case clears the Section 91, on its true construction, does not apply to an accused person on trial. No Specific words indicate its application to accused persons on trial. A limitation should be put on the wide words used; otherwise calling upon an accused person to produce documents which are incriminating as against him will negate the safeguard of Article 20(3) of the Constitution of India. It may be that this construction of section 91 would render section 93 useless. But to a search by the police officer under section 165, Article 20(3) has no application.

Lotan Bhoji v The State of Maharashtra, (1974) 77 Bom LR 70 : 1975 Cr LJ 1577

It was held that, the Court must be informed of the name of the person in whose possession or power the document is; otherwise as application for issue of summons cannot be entertained

Om Prakash Sharma v CBI, AIR 2000 SC 2335 : 2000 Cr LJ 3478 : (2000) 5 SCC 679 ;

It was held that the circumstances in which this power can be exercised depends upon facts of each case. The Court has a wide discretion in the manner. It is only when the discretion is exercised neither judiciously nor judicially and there is gross or improper failure to exercise the discretion which is demonstrably unreasonable, that the superior Court would interfere. On the facts of the case, it was held that the Supreme Court's interference with the rejection of the accused's application under section 91 for summoning certain documents for CBI was not called for.

Subbiah v Ramaswamy, 1970 Cr LJ 254 : AIR 1970 Mad 85 .

In this the word things were interpreted as, the word refers to a physical object or material and does not refer to an abstract thing.

Issuing a summons to a person for the purpose of taking his specimen signature or Handwriting cannot be said to be for the production of document or a thing contemplated under this section.

Re Lakhmidas, (1903) 5 Bom LR 980 .

In this case Hon’ble court held that, this section deals with documents forming the subject of a criminal offence as also with documents which are or can be used only as evidence in support of a prosecution.

HH The Nizam of Hyderabad v AM Jacob, (1891) ILR 19 Cal 52, 64; Pratt, (1920) 47 Cal 647 ;

It was held that, the thing called for must have some relation to, or connection with, the subject matter of the investigation or inquiry, or throw some light on the proceeding, or supply some link in the chain of evidence.7.

Bashir Hussein v Gulam Mohomed Ismail Peshimam, (1965) 67 Bom LR 748 : AIR 1966 Bom 253 ,

It was held that, When an application is made to a Court, or to a police officer under this section, the Court is bound to consider whether there is a prima facie case for supposing that the documents are relevant, i.e., whether books of a particular type are likely to have a bearing on the case. If the Court thinks they are, then it can order production. The Court may also consider whether the document etc. is being suppressed or may be tampered with or destroyed by the party in whose possession it is or may be entirely lost.8.

Bajrangi Gope v Emperor, (1911) ILR 38 Cal 304, 306; Sheonandan Prasad v Bihar, 1979 Cr LJ

In this case, Hon'ble Court held that this section does not refer to stolen articles or to any incriminating document or thing in the possession of an accused person. 

Jagadish Prasad Sharma v State of Bihar, 1988 Cr LJ 287 (Pat).

The powers of the Court under section 91 of the Code could not be enlarged even if the accused person consented to such an order because the powers of the Magistrate are limited by the provisions of the Code.

D Veeraih v K Veeraih, 1988 Cr LJ 274 (AP).V

When the matter is in the investigation stage either on a private complaint referred by a Court or on a case registered on a police complaint, the Court is not entitled to pass any order by issuing summons or warrant against the accused for the production of a document or a thing that is in his custody which is incriminatory against him.



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