The law of Arrest in India

Topics Covered:
1) Preface
2) Arrests
3) Supreme Court on Law of Arrests
4) Format of Complaint to Human Rights Commission over illegal (unjustified) Arrests by Police
5) Format for filing Complaint with Supreme Court for not observing directions given in Joginder Kumar Case while effecting Arrests:
6) FIR
7) Draft Format for making Complaint to Police to register FIR or a NC- as facts of the case suggests.
8) Bails
9) Police Torture & Brutality
10) Role of Police in curbing Public Nuisance
11) Police Willful disregard in discharge of his duties, a Criminal Contempt Of Court
12) Some Landmark High Court and Supreme Court Judgments
13) Role of Human Rights Commission
14) Role of Legal Services Authorities
15) Accident Victims and Role of Good Samaritan (Citizen)
16) Important Voluntary Organizations
17) Complaint to United Nations
18) Right to Information & Police
19) Among many other duties of police, important are:
20) Contacts of Media for Police Excesses:
21) FORMAT OF THE F.I.R. / NC
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1) PREFACE:
Everyone cherish freedom, be it leftist or rightist, human being or animal being, Prime minister of India or a footpath dweller of Mumbai. The right of personal liberty of every individual is one of the most cherished fundamental right in our Constitution of India.
The post Independence era OF INDIA shows that most of the laws inherited from British Rule that had colonial exploitation as their basis, were left untouched. The present Police Laws indeed so inherited is largely left intact.
The modern legal system provides that as soon as an offence is committed the Criminal Law is set into motion, irrespective of the wishes of the injured party.
Although The Police force in India is known for all the wrong reasons- inefficiency, high handedness, brutality, corruption and being politicized, yet, it must also be stated that mere ruthless criticism will not improve Police efficiency for they function with a lot of constraints cannot be lose sight of.
We love to break traffic signals if there are NO "watchdogs". We all so afraid of Police, ever thought why? Our watchdogs, our Justice System to check Police is simply absent.
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One thing that terrorizes the most to a common man is fear of highhandedness of police who has presumably unbridled power to detain any person though maliciously.
The trauma and agony of an accused Undertrial prisoner and of his family members is beyond to be described and no amount of money compensation can bring back the valuable years of the innocent accused. The damage inflicted by unlawful detention is massive and ruthless. It bleeds the soul of the victim and may occasion the loss of livelihood of a family resulting in trap of ugly poverty.
Last and not the least. The accused is innocent till proven guilty. That ten guilty Man may escape but even one innocent should not be punished. This is the foundation on which the entire criminal Jurisprudence is built upon. That been so, how an innocent accused can be justified in captivity even for a day.
Citizenry Ignorance is the chief cause of Police causing excesses to them. Yet mere knowledge of laws and rights doesnt guarantee Justice, asKing for Justice, Uninterrupted, makes the difference. This small literature is aimed at informing Common man about various safeguards provided in law and so as to prevent police acting fanciful.
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2) ARRESTS:
The National Police Commission in its Third Report and the Law Commission in Oct 2000 on Law of Arrest have both identified indiscriminate arrests by Police in India is the chief source of Corruption in the Police. The Report, among other things, said, “the Power of Arrest must be used in the rarest of rare cases and not in a routine manner. A mere allegation of Commission of offence cannot constitute ground for arrest. It would be desirable that a Police Officer making an arrest should also record in the case diary, the reason for making the arrest.”
In the historic judgment of Hon SC in D K Basu Vs State of West Bengal, among other things, directed-
1) That Policemen must wear visible and legible identification when arresting a person and when carrying out interrogation. Names and Particulars of police personnel handling interrogation must be recorded in the register.
2) It is the right of every person detained or questioned by Police to know the grounds for detention or questioning.
3) The Person arrested must be made aware of his right to have someone informed of his arrest Or detention as soon as he is put under arrest or detention.
4) A person arrested must be produced before a Judicial Magistrate/ Judge within 24 hours of his/her arrest.
5) A person arrested should be medically examined at the time of arrest and major & minor injuries on arrested person be recorded in Inspection Memo
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duly signed by both Police Officer carrying out the arrest and the person arrested and the copy of this memo be provided to the person arrested.
6) Any person arrested must be medically examined by a doctor from an independent and approved panel of doctors, every 48 hours during detention.
7) Arrest or Search of women should only take place in presence of Women Police Officers and it should not take place in night. And women should be detained separately from men.
8) While an accused is in Police custody, his lawyer should be permitted to visit him.
9) Information of the arrest of accused person should be given to the district Control Room and the State Police Headquarters.
However, this menace is to a substantial extent will dry down in the light of very recent Amendment brought in CrPC 1973 law. President Of India has already given its assent to this Law and it is only need to be notified to be operational.
This newly enacted law will take away the powers of the police to arrest in cases of alleged offences which carry a maximum sentence up to seven years of imprisonment.
Bar associations across the country have been protesting under the pretext that these CrPC amendment (Section 41, CrPC), doing away with mandatory arrest provisions, would remove fear from the minds of criminals who would misuse the provisions under the garb of personal liberty.
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“What the bar associations will never tell you is that the police never had the power to make such arrests and that arrest is an exception and not the norm”, Said our new Home Minister Shri P Chidamabaram in an media interview.
Once the law, CrPC (Amendment) Act 2008, becomes effective, the police, instead of arresting the accused, will be obliged to issue him/her a “notice of appearance” for any offence punishable with imprisonment up to seven years. The person can be arrested only if he/she does not appear before the police in response to the notice.
3) SUPREME COURT ON LAW OF ARRESTS:
I would be failing in my duties if I did not mention that the Landmark Judgment in the history of Indian Justice System is shared by one Dr Arun Agarwal of Noida.
In the words of Justice MN VENKATACHALLIAH in Joginder Kumar Vs State Of UP – 1994
“No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another.
The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest
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can be made in a routine manner on a mere allegation of commission of an offence made against a person.
It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person‟s complicity and even so as to the need to effect arrest.
Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence.
There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do.“
Third Report of the National Police Commission at page 32 suggested:
…An arrest during the investigation of a cognizable case may be considered justified in one or other of the following circumstances :
(i) The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror stricken victims.
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(ii) The accused is likely to abscond and evade the processes of law.
(iii) The accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restraint.
(iv) the accused is a habitual offender and unless kept in custody he is likely to commit similar offences again.
It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines….
The SC thus vide para 29 of the order said These requirements are not exhaustive. The Directors General of Police of all the States in India shall issue necessary instructions requiring clue observance of these requirements. In additions, departmental instruction shall also be issued that a police officer making an arrest should also record in the case diary, the reasons for making the arrest.
Link to complete Judgment.
http://74.125.153.132/search?q=cache:b7CLWQL8m8cJ:www.pwtn.org/pictures/EU_pics/FINAL_STANDARDS/standards/National%2520documents%255CII%2520cases%255C35%2520Joginder%2520Kumar.doc+joginder+kumar+V+State+of+UP&cd=5&hl=en&ct=clnk
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4) FORMAT OF COMPLAINT TO STATE / NATIONAL HUMAN RIGHTS COMMISSION OVER ILLEGAL (UNJUSTIFIED) ARRESTS:
To, Date:
The Hon Chairperson
The State/ National Human Rights Commission Of India.
Address:
The Complainant:
The Respondents:
1) Names of the police Officers who effected Arrest /
Address
2) The State Govt of
Regarding: Illegal arrest effected by Police Officials in Wilful disregard to Order Pass by Hon Supreme Court in Joginder Kumar Case and Ignorance of Law is no excuse to escape illegal acts committed resulting/ sounding in damages/ Compensations.
Hon Chairperson,
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The Complainant contends that the issue raised here is of paramount importance concerning the liberty of every individual.
The Complainants states that Human Rights are dignity and worth inherent in every Human Person. Whoever been interrupted in the beneficial enjoyment of his/her Life may approach this Commission for the enforcement of his/her rights so given by the Constitution of India and by other Laws. Even a stranger or a Friend or Relative may approach this Commission on behalf of the victim for the relief.
The Complainant states that this Commission, which is headed by Former Chief Justices, comes into existence for “Better” Protection of Human Rights and the Complainant consider this Commission as a better forum, for this is an informal forum where every common man can approach without the help of Lawyers. One page letter will do the needful and no fee is charged.
“Better” protection implies that this Commission is empowered to render Speedy and Effective Justice to the People, in Comparison to traditional Law Courts who by reason of their complex procedural compliance, costly Lawyers and time consuming litigation are unable to render/give speedy redressal to the grievances of the people.
This Commission is capable of giving all relief, concerning the Life and dignity of Life of People of India, the fundamental rights so guaranteed by
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the Constitution of India, which can be obtained from the Constitutional Courts viz.the High Courts and the Supreme Court.
The Complainant regards this forum as instrumental in stimulating the movement for enforcing Human Rights against the „State‟ and also against Private persons.
With this Complaint Letter the Complainant invokes the Jurisdiction of this Hon Commission and Calls upon this Commission to decide if the Complainants are entitled to any compensation for Police Officials disregarding the directions so given by Hon Supreme Court in Joginder Kumar Case as stated hereinafter.
At the outset the Complainant crave leave to deal with the position in Law:
The Hon Supreme Court in Writ Petn. (Criminal) No. 9 of 1994, Decided On: 25.04.1994, Citation: AIR1994SC1349, Appellants: Joginder Kumar Vs. Respondent:State of U.P. and others, Hon'ble Judges: M.N. Venkatachaliah, C.J.I., S. Mohan and Dr. A.S. Anand, JJ., Observed and directed, among other things,
Para 9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligation and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which
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comes first - the criminal or society, the law violator or the law abider; of meeting the challenge which Mr. Justice Cardozo so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because, the constable blundered. In People v. Lefore, 242 N.Y. 13, 24, 150 N.E. 585, 589 (1926), Justice Cardozo observed :
The question is whether protection for the individual would not be gained at a disproportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of offence. There are dangers ?? any choice. The rule of the Adams case People v. Adams 176 N.Y. 351, 68 N.E. 636 (1903) strikes a balance between opposing interests. We must hold it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has came to pass.
Para 24. In India, Third Report of the National Police Commission at page 32 also suggested: …An arrest during the investigation of a cognizable case may be considered justified in one or other of the following circumstances :
(i) The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror stricken victims.
(ii) The accused is likely to abscond and evade the processes of law.
(iii) The accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restraint.
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(iv) the accused is a habitual offender and unless kept in custody he is likely to commit similar offences again.
It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines….
For effective enforcement of these fundamental rights, we issue the following requirements:
Para 29. These requirements are not exhaustive. The Directors General of Police of all the States in India shall issue necessary instructions requiring clue observance of these requirements. In additions, departmental instruction shall also be issued that a police officer making an arrest should also record in the case diary, the reasons for making the arrest.
In the light of Article 141 of Constitution of India Law declared by Supreme Court is binding on all courts, binding on all public or private entities.
The Complainant now states the Reality: The biggest common fear of People in India is that the moment an FIR is filed with Police, they are liable to be arrested, unless Politics or money intervenes.
Apart from inducement to make arrest for malafide considerations, several Policemen appear to think that arrest is mandatory under the law while investigating a cognizable case.
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In the instant case, the Police have simply refused to follow the law settled by Hon SC in Joginder Kumar Case as stated hereinbefore.
The Complainants was arrested on charges of ……….
The Complainant whilst borrowing the words of Hon Justice Venkatchaliah in para 25 of the instant case which states that: The above guidelines are merely the incidents of personal liberty guaranteed under the Constitution of India. No arrest can be made because it is lawful for the Police Officer to do so. The existence of the power to arrest is one thing. The justification of the exercise of it is quite another. The Police Officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. 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 for a Police Officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the Officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences,
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an arrest must be avoided if a police Officer issues notice to person to attend to Station House and not to leave Station without permission would do.
The Hon Supreme Court while quoting passage from Police Powers and Accountability by John L. Lambert followed by „necessity of Principle‟ as suggested by the Royal Commission, followed by Third Report of the National Police Commission which outlined the circumstances under which Police can effect arrest-
(i) The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror stricken victims.
(ii) The accused is likely to abscond and evade the processes of law.
(iii) The accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restraint.
(iv) the accused is a habitual offender and unless kept in custody he is likely to commit similar offences again.
The National Police Commission went on to suggest that it would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines….
The SC thus vide para 29 of the order said The Directors General of Police of all the States in India shall issue necessary instructions requiring clue observance of these requirements. In additions, departmental instruction
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shall also be issued that a police officer making an arrest should also record in the case diary, the reasons for making the arrest.
The Complainants says that neither he had been accused of having committed grave offences as outlined above, nor he had showed any violent behavior, nor he is anyway a habitual offenders and nor he was in anyway tried to abscond to evade the process of law. A brief Social background of Complainant should be brought to the notice of the Commission.
The Complainants don‟t know if Police had recorded any reasons as why they deemed expedient that the accused should be arrested, yet nothing has been placed on record by the Police or Public Prosecutor while in Bail Proceedings, nor the Hon Magistrate deemed expedient to sought details from the Police for most likely Hon Magistrate is likely to be unaware of this Case Law.
Given the understanding, it can safely be alleged that if Police of any State have ever acted according to the directions and law settled by Hon Supreme Court in Joginder Kumar Case stated hereinbefore.
The Complainant humbly submits before this Hon Court- My liberty is my life, in the absence of which I am left paralyzed, both in my rights and in my duties- right of life and duty to my family and duty towards my country.
The Relief prayed for:
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1) This Hon Commission in the light of submission made hereinbefore, to decide if the Complainant is entitled to any compensation for his unlawful arrest. That the Commission may grant a symbolic compensation to the Complainant of Rs.100 and may also grant him the real Compensation of Rs. One Lakh. However whatever Compensation this Commission may grant, it is humbly requested that the same must be recovered from the guilty Police Officials.
2) In the light of guiding words of Hon Justice Hidaytullah wherein he said- You take my life when you take away the means whereby I live. It‟s a fact that mainly poor people comprise the Undertrial prisoners and captivity of bread earner of a family can safely translate life of dependent of Undertrial prisoners into ugly poverty. The Hon Commission may seriously consider directing every State Govt to takes the responsibility of family members of every undertrial prisoners.
3) It is seen that none of the State Govts are following the directions so given by Hon Supreme Court in Joginder Kumar case. The Hon Commission may in their discretion direct every State Govt to follow in letter & spirit, the directions so given in Joginder Kumar Case. Considering the importance of the issue, the Complainant also pleads before this Hon Commission in the exercise the powers vested in it u/s 18(b) of the Protection of Human Rights Act 1993, to approach every High Court for necessary directions.
The whole scheme of Justice is a Quest for truth and Lawyers & Counsels may be representing their Clients, yet in reality they assist the Court to reach truth and administer Justice. The Complainants seeks to release their
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personal right of hearing before this Hon Commission and Hon Commission may pass Orders after giving due opportunity of being heard to the Respondents.
However the Commission is within its rights as not to grant all or any of the reliefs so sought. Yet, the Commission being a Quasi Judicial authority, humbly submitted, is obliged to pass reasoned Orders as to why it deemed expedient to not to grant reliefs sought. The reasoned orders will be helpful to the High Court whilst they will deal with appeal, if any, is filed in pursuant to the Orders of this Commission.
The Complainants finally prays this Hon Commission to accept their Complaint granting leave for any technical limitations in presentation with a view to securing ends of justice.
Thanking you,
XYZ.
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5) FORMAT FOR FILING COMPLAINT WITH SUPREME COURT FOR NOT OBSERVING DIRECTIONS GIVEN IN JOGINDER KUMAR CASE WHILE EFFECTING ARRESTS:
The Complainant:
The Respondents:
1) Names of the police Officers who effected Arrest / Address
2) The State Govt of
To,
The Hon Chief Justice Of India
The Hon Supreme Court Of India
Tilak Road,
New Delhi.
Reg: Wilful disregard to Order Pass by this Hon Court and Ignorance of Law is no excuse to escape acts committed.
Hon Chief Justice of India,
With this Complaint Letter the Complainant invokes the Jurisdiction of this Hon Court and Calls upon this Hon Court to initiate Contempt of Court Proceedings against Police Officials for they disregarding the directions so given by this Hon Court in Joginder Kumar Case as stated hereinafter.
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The Position in Law: As on today, arrest with or without warrant depending upon the circumstances of a particular case is governed by the Code of Criminal Procedure.
The Hon Supreme Court in Writ Petn. (Criminal) No. 9 of 1994, Decided On: 25.04.1994 Appellants: Joginder Kumar Vs. Respondent:State of U.P. and others, Hon'ble Judges: M.N. Venkatachaliah, C.J.I., S. Mohan and Dr. A.S. Anand, JJ., Observed and directed, among other things,
Para 9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligation and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first - the criminal or society, the law violator or the law abider; of meeting the challenge which Mr. Justice Cardozo so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because, the constable blundered. In People v. Lefore, 242 N.Y. 13, 24, 150 N.E. 585, 589 (1926), Justice Cardozo observed :
The question is whether protection for the individual would not be gained at a disproportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of offence. There are dangers ?? any
21
choice. The rule of the Adams case People v. Adams 176 N.Y. 351, 68 N.E. 636 (1903) strikes a balance between opposing interests. We must hold it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has came to pass.
Para 24. In India, Third Report of the National Police Commission at page 32 also suggested:
…An rest during the investigation of a cognizable case may be considered justified in one or other of the following circumstances :
(i) The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror stricken victims.
(ii) The accused is likely to abscond and evade the processes of law.
(iii) The accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restraint.
(iv) the accused is a habitual offender and unless kept in custody he is likely to commit similar offences again.
It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines….
Para 25. The above guidelines are merely the incidents of personal liberty guaranteed under the Constitution of India. No arrest can be made because it is lawful for the Police Officer to do so. The existence of the power to arrest
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is one thing. The justification of the exercise of it is quite another. The Police Officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. 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 for a Police Officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the Officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police Officer issues notice to person to attend to Station House and not to leave Station without permission would do.
For effective enforcement of these fundamental rights, we issue the following requirements:
Para 29. These requirements are not exhaustive. The Directors General of Police of all the States in India shall issue necessary instructions requiring clue observance of these requirements. In additions, departmental instruction
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shall also be issued that a police officer making an arrest should also record in the case diary, the reasons for making the arrest.
In the light of Article 141 of Constitution of India Law declared by Supreme Court is binding on all courts, binding on all public or private entities.
The Reality: The biggest common fear of People in India is that the moment an FIR is filed with Police, they are liable to be arrested, unless Politics or money intervenes.
Apart from inducement to make arrest for malafide considerations, several Policemen appear to think that arrest is mandatory under the law while investigating a cognizable case.
In the instant case, the Police have simply refused to follow the law settled by Hon SC in Joginder Kumar Case as stated hereinbefore.
The Complainants have been arrested on charges of ……….
The Hon Supreme Court while quoting passage from Police Powers and Accountability by John L. Lambert followed by „necessity of Principle‟ as suggested by the Royal Commission, followed by Third Report of the National Police Commission which outlined the circumstances under which Police can effect arrest-
(i) The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror stricken victims.
(ii) The accused is likely to abscond and evade the processes of law.
(iii) The accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restraint.
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(iv) the accused is a habitual offender and unless kept in custody he is likely to commit similar offences again.
The National Police Commission went on to suggest that it would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines….
The SC thus vide para 29 of the order said The Directors General of Police of all the States in India shall issue necessary instructions requiring clue observance of these requirements. In additions, departmental instruction shall also be issued that a police officer making an arrest should also record in the case diary, the reasons for making the arrest.
The Complainants says that neither they have accused of having committed grave offences as outlined above, nor they showed any violent behavior, nor are they anyway habitual offenders and nor were they in anyway tried to abscond to evade the process of law. A brief Social background of Complainant should be brought to the notice of the Court.
The Complainants don‟t know if Police has recorded any reasons as why they deemed expedient that the accused should be arrested, yet nothing has been placed on record by the Police or PP while in Bail Proceedings, nor the Hon Magistrate deemed expedient to sought details from the Police for most likely Hon Magistrate is likely to be unaware of this Case Law.
Given the understanding, it can safely be alleged that if Police of any State have ever acted according to the directions and law settled by Hon Supreme
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Court in Joginder Kumar Case stated hereinbefore. Annexed herewith Copy of Supreme Court Judgment. EXHIBIT B
The Petitioners humbly submits before this Hon Court- My liberty is my life, in the absence of which I am left paralyzed, both in my rights and in my duties- right of life and duty to my family and duty towards my country.
The Relief: This Hon Court is thus requested to initiate Civil Contempt proceedings against ………….. for showing wilful disregard of Judgment of this Hon Court given in Joginder Kumar Case as stated hereinbefore. The Copy of Judgment is annexed herewith.
The whole scheme of Justice is a Quest for truth and Lawyers & Counsels may be representing their Clients, yet in reality they assist the Court to reach truth and administer Justice.
The Complainants has earned an impression that in our Law Courts the face of Counsels makes a crucial factor in litigations and these Counsels comes at a fortune which Complainant cannot afford and while appearing in person from all the way to Delhi to be allowed few seconds or minutes to present their cases compel the Complainants to release their personal right of hearing before this Hon Court and Hon Court may pass Orders after giving due opportunity of being heard to the Respondents.
The Complainants finally prays this Hon Court to accept their Complaint Granting leave for any technical limitations in presentation with a view to securing ends of justice.
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Thanking you,
Signed
Complainants
ILLEGAL DETENTIONS: A person so arrested / detained illegally even for one hour can file a Complaint against the person for making false Complaint (FIR), including the Police Officer causing illegal arrest/detention.
FALSE COMPLAINTS: Where a false complaint been registered against any person, he may register an FIR against that person u/s 182 and 211 of IPC for making false complaint.
IPC Section 182. False information, with intent to cause public servant to use his lawful power to the injury of another person. IPC Section 211. False charge of offence made with intent to injure.
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6) FIR:
Police not registering FIR is a lucrative traditional practice. However there are legal provisions in the event police refuses to register FIR, yet they may turn out to be costly and time consuming for a man who barely makes a living. What he can do in the said circumstances. Some of the things which comes to mind, apart from legal provisions, I state.
a) Registering complaint against Police officials with Anti Corruption Bureau of the State Govt. Follow up of the same with Right to Information application. Public Officials not doing their entrusted duties constitutes corruption.
b) Recording a letter to the Chief Justice of the respective High Court of the State, informing them briefly about the incident and stating that “I am a poor man, Pls help”. Police are not even registering complaints.
c) Approaching nearby civil society organizations / voluntary groups, Journalists or getting addresses of the same from friends and relatives.
d) Simply walk to any of the Court room and tell the presiding judge of the incident and tell the judge that police is not even registering FIR.
e) Might sound crazy, recording a symbolic complaint with Parliament of England at hcinfo@parliament.uk making copy of the mail to "Hon'ble Prime Miister of India Dr. Man Mohan Singh" at pmosb@pmo.nic.in, manmohan@sansad.nic.in, supremecourt@nic.in, The idea is that those occupying high political office may feel ashamed in the International forum where its Citizens calls the Parliament of another country for Justice.
The Rule is that after a Complaint of an Offence is given, it should be immediately registered and it is the right of the Complainant to receive a
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Copy of the First Information Report (FIR) or NC (Non Cognizable Offence), as the nature of the complaint suggests. If Police refuses to register Complaint, the same can be sent by Post/ Telegram, to that Police Station or to Superintendent of Police of the district or Commissioner of Police as in Metropolitan cities.
In case of Non Cognizable Offences, after registering the same, since Police do not investigate the case, Complainant must be advised to approach the Magistrate court for further action. The address of Magistrate Court may be obtained from the Police Station itself.
Police cannot evade registering an offence on the plea that they do not have Jurisdiction. It is necessary that Offence is registered and the same is sent to the Police Station concerned.
If Police refuses to register complaint, than a Complaint may be made to Judicial/ Metropolitan Magistrate. There are series of HC and SC judgments wherein they have warned Police that they must register Complaint whoever comes to them.
Very Important: Also, wherever need so arises, relevant section of Indian Penal Code and / or Bombay High Court and Supreme Court Judgments, as stated hereinafter, must be brought before the Police, either verbally or by incorporating the same in written Complaint.
WHO CAN LODGE AN F.I.R.?
(1) Who is an aggrieved person or some body on his behalf.
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(2) By any person who is aware of the offence OR who is a witness to any offence.
(3) Provided the person in possession of the hearsay is required to subscribe his signature to it and mention the source of his information so that it does not amount to irresponsible rumors. The rule of law is, if general law is broken any person has a right to complain whether he has suffered an injury or not.
(4) By the accused himself.
(5) By the SHO (Station House Officer) on his own knowledge or information even when a cognizable offence is committed in view of a officer incharge he can register a case himself and is not bound to take down in writing any information. Under the order of Magistrate u/s 156 (3) Criminal Procedure code, when a complaint is forwarded to officer incharge without taking cognizance. If information is only hear say, then SHO should register case only if person in possession of hearsay subscribes his signature to it and mentions the source of his information so that it does not amount to irresponsible rumors. The information must be definite, not vague, authentic, not baseless, gossip or rumors, clearly making out a cognizable case.
WHAT ACTION CAN BE EXPECTED FROM THE POLICE IN NON-COGNIZABLE OFFENCE ?
1. The information regarding non-cognizable offence ought to get lodged in the Daily Diary Register.
2. Complainant ought to get advised & briefed properly to approach the Court.
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3. Police officer can not investigate into the Non-cognizable cases without the order of the court hence complainant should be informed.
5. If an order regarding investigation into non-cognizable cases is received, the same procedure should be adopted as in the cognizable cases.
6. Orders of the court should be obtained to arrest the accused in Non cognizable cases after the investigation.
7. If one of the offences in the commission of crime is cognizable office then Non-cognizable offence should also be investigated in the same manner( as Cognizable offences are investigated.
WHAT DOES THE POLICE DO WHEN THE COMPLAINTS ARE DOUBTFUL ?
If the information or other intelligent relating to the alleged commission of a cognizable offence is such that an officer-in-charge of the police station has reason to suspect that the alleged offence has not been committed, he shall record the same in the station diary along with his reasons for not investigating the crime and also nullify the informer.
Inspector or Supervising Officer can direct the investigation in such case and may send the report to the District Magistrate for perusal and order.
Finger Tips:
1) FIR should be lodged immediately. The longer the delay, the stronger the suspicion. The delay should satisfactorily be explained. Delay, if any, in registering the case should be recorded in FIR.
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2) Written complaint should be given. But complainant should be specific while giving written statement.
3) Written statement should be duly signed or put thumb impression.
4) Only a report of cognizable offence should be lodged in FIR.
5) Place, Date & Time of occurrence should be mentioned in the FIR.
6) Arrival & Departure of the informer should be mentioned in the FIR as well as Daily Dairy Register.
7) Four copies of FIR should be prepared simultaneously by carbon paper process.
8) FIR should be lodged in neat & clean hand writing and be kept in safe custody being a permanent record.
9) A copy of FIR should be sent to Magistrate concerned immediately.
10) A copy of FIR should be provided to the complainant free of cost.
11) Care should be taken that all the material facts are mentioned in FIR as known to the complainant.
12) If information is available at the time, Names of the accused persons should occur in F.I.R., if not, FIR can be registered in unknown accused person.
13) An FIR once registered can only be quashed (cancelled) by High Court concerned.
Police If incorrectly framing FIR: When the victim or anybody on his behalf approaches the Police station to register/ file complaint, whether in the nature of Cognizable offence ( FIR) or Non Cognizable (N.C.) offence, it is the responsibility of police to correctly take down the complaint and thus register FIR or NC as the nature of offence so emerge from the complaint. Also, if the Complaint comprises both Cognizable and non Cognizable
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offences, then the offence should be treated as Cognizable Offence and thus FIR should be registered. Yet, if Police manipulate with registering FIR to NC or the other way round, then they may be charged with offence u/s 218 of IPC.
A copy of Every FIR or NC so registered by Police must be sent to respective Judicial/ Metropolitan Magistrate within 24 hours so that it cannot be tempered with.
Offence under IPC Section 218. Public servant framing incorrect record or writing with intent to save person from punishment or property from forfeiture.
Filing Complaint with Judicial/ Metropolitan Magistrate: Where Police refuses to register Complaint, than a Complaint may be made to Judicial/ Metropolitan Magistrate of that area where the incident has took place, directing Police to register FIR and carry out investigation and submit report.
Also, a Person instead of going to Police, may directly approach Judicial/ Metropolitan Magistrate to file an Complaint u/s 190 of CrPC and thus the Magistrate on the merits of the case may direct the Police to register FIR/NC and investigate the case.
Very Important: High Court Criminal Manual Appellate Side- Chapter 3, Section 1A(IIa) mandate that where an Complaint is filed before Judicial/ Metropolitan magistrate, he must hear the complainant and his witnesses within 7 days of filing of Complaint and than pass Orders accordingly.
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The details of Judicial/ Metropolitan Magistrate can be obtained from respective Police station or from any Court.
7) DRAFT FORMAT FOR MAKING COMPLAINT TO POLICE REGISTER FIR OR NC AS FACTS OF THE CASE SUGGESTS:
From,
ABC
Address
To,
Name of the Police Station,
Address.
Subject: Please Register FIR or NC as the facts of the case indicate.
Respected Police Officer,
With this letter I request you to register my complaint either in the form of FIR or NC whilst my incident suggests having regard to laws of the land.
(Write down incident which led to the filing of this complaint.)
Also, I respectfully bring to your notice the following laws which have come to my knowledge:
a) The complainant is conscious that making False Complaint against any person is an offence u/s 182 and 211 of IPC 1860.
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IPC Section 182. False information, with intent to cause public servant to use his lawful power to the injury of another person. IPC Section 211. False charge of offence made with intent to injure.
b) The complainant has come to know of this landmark Judgment which must be shared. In Joginder Kumar Vs State Of UP – 1994
“No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another.
The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. 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 for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person‟s complicity and even so as to the need to effect arrest.
c) The complainant has come to know where If Police incorrectly frame FIR/NC, it is an offence u/s 218 of IPC.
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Offence under IPC Section 218. Public servant framing incorrect record or writing with intent to save person from punishment or property from forfeiture.
A copy of Every FIR or NC so registered by Police must be sent to respective Judicial/ Metropolitan Magistrate within 24 hours so that it cannot be tempered with.
d) The Complainant has come to know that- Police Willful disregard in discharge of his duties may constitutes a Criminal Contempt Of Court: The process of administration of justice begins with the violation of a right of a person or the committing of an offence by a person, well before any FIR is filed OR case is registered in the court.
e) The Complainant brings to the notice of Police Officer of this landmark judgment of Bombay High Court:
COMPULSORY REGISTRATION OF FIR: “In BOMBAY(Criminal) 08/10/2008 (J-R) APPW/271/2007, a full bench judgment of the Bombay High Court had laid down that cops should register the FIR against the accused person within two days of being informed of commission of any cognizable offence.” The comprehensive judgment, among other things, says that, The law inescapably requires the police officer to register the information received by him in relation to commission of a cognizable offence. Under the scheme of the CrPC, no choice is vested in the police officer between recording or not recording the information received.
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Link to the judgment:
http://bombayhighcourt.nic.in/ordqryfbench_action.php?auth=cGFnZW5vPTUmam9mbGFnPUo= This Judgment of Bombay High Court or Judgments of any High Court can be used in any Court in India.
f) Right to Information & Police: Every action of Police can be monitored with the help of RTI Act 2005. Like investigation so carried out in pursuant to a case, asking copy of FIR or any other document.
8) BAILS:
Every offence is classified as either Bailable or Non bailable. The offences which are minor in nature are usually classifieds as bailable and In case of Bailable offences; it is binding on Police officer to grant bail if the person arrested produces proper surety.
In cases of Non Bailable offences, the Police may arrest the alleged offenders as stated hereinbefore and Police has no powers to grant bail, the decision is taken by Judicial Magistrate/ Judge only. In such cases the accused may seek bail from Judicial Magistrate/ Judge concerned through his representative/ Lawyer when he is produced within 24 hours of his/her arrest. Also, if he has been subjected to any beating or torture, the same should be brought before the Judicial Magistrate/ Judge.
9) POLICE TORTURE AND BRUTALITY:
Section 330 and 331 of IPC provide for punishment for voluntarily causing hurt and section 29 of Indian Police Act 1861 provides for imprisonment for
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offences including unwarranted personal violence to any person in his custody.
In the light of Section 176 of CrPC 1973 Magistrate is bound to investigate every death in Custody. Even it is mandatory for police to inform State Human Rights Commission or National Human Rights Commission about every custodial death.
Failure to implement strictest of guidelines on law of arrests and on Tortures as laid down by the SC in DK Basu Vs State Of West Bengal will render any Policeman to be hauled for Contempt of Court in any High Court of the Country.
Offences are also classifieds as Compoundable/ Non Compoundable: It implies that offences which can be settled between the accused person and the victim are termed as Compoundable offences; and offences which cannot be settled between the accused and the victim are termed as Non Compoundable offences.
10) ROLE OF POLICE IN CURBING PUBLIC NUISANCE:
CrPC 1973 Section 133. Conditional order for removal of nuisance (1) Whenever a District Magistrate or Sub-Divisional Magistrate or any other Executive Magistrate specially powered in this behalf by the State Government on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, consider --
(a) That any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel, which is or may be lawfully
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used by the public: or(b) That the conduct of any trade or occupation or the keeping of any goods or merchandise; is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such, goods or merchandise should be removed or the keeping thereof regulated; or(c) That the construction of any building, or the disposal of any substance, as is likely to occasion conflagration or explosion, should be prevented or stopped; or(d) That any building tent or structure, or any tree is in such a condition that it is likely to fill and thereby cause injury to persons living or carrying on business in the neighborhood or passing by, and that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary: or(e) That any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public: or(f) That any dangerous animal should be destroyed, confined or otherwise disposed of,
Such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, talk well or excavation, or owning or possessing such animal or tree, within time to be fixed in the order-
(i) To remove such obstruction or nuisance; or(ii) To desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed; or(iii) To prevent or stop the construction of such building, or to alter the disposal of such substance;
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or(iv) To remove, repair or support such building, tent or structure, or to remove or support such trees; or(v) To fence such tank, well or excavation; or(vi) To destroy, confine or dispose of such dangerous animal in the manner provided in the said order; or, if he objects so to do, to appear before himself or some other Executive Magistrate Subordinate to him at a time and place to be fixed by the order, and show cause, in the manner hereinafter provided, why the order should not be made absolute.(2) No order duly made by a Magistrate under this section shall be called in question in any civil court. Explanation. A "public place" includes also property belonging to the state, camping grounds and grounds left unoccupied for sanitary or recreative purposes.
(Ordinarily Power of District Magistrate are vested in District Collector. In Metropolitan cities, Commissioner of Police exercises and discharge duties of District Magistrate.)
Indian Penal Code- Section 268. Public nuisance ( Definition of Offence of Public Nuisance) A person is guilty of a public nuisance who does not act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. A common nuisance is not excused on the ground that it causes some convenience or advantage.
Indian Penal Code- Section 269. Negligent act likely to spread infection of disease dangerous to life
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Indian Penal Code- Section 270. Malignant act likely to spread infection of disease dangerous to life
Indian Penal Code Section 283. Danger or obstruction in public way or line of navigation.
Indian Penal Code Section 290. Punishment for public nuisance in cases not otherwise provided for
Indian Penal Code Section 291. Continuance of nuisance after injunction to discontinue. Whoever repeats or continues a public nuisance, having been enjoined by any public servant who has lawful authority to issue such injunction not to repeat or continue such nuisance, shall be punished with simple imprisonment for a term which may extend to six months, or with fine, or with both.
Indian Penal Code- Section 431. Mischief by injury to public road, bridge, river or channel
Indian Penal Code- Section 432. Mischief by causing inundation or obstruction to public drainage attended with damage
Bombay Police Act, 1951, Applicable to whole of Maharashtra, Section 67. Police to regulate traffic, etc., in streets. It shall be the duty of a Police officer-
(a) to regulate and control the traffic in the streets, to prevent obstructions therein and to the best of his ability to prevent the infraction of any rule or
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order made under this Act or any other law in force for observance by the public in or near the streets;
(b) to keep order in the streets and at and within public bathing, washing and landing places, fairs, temples and all other places of public resort and in the neighbourhood of places of public worship during the time of public worship;
(c) to regulate resort to public bathing, washing and landing places, to prevent overcrowding thereat and in public ferry-boats and, to the best of his ability, to prevent the infraction of any rule or order lawfully made for observance by the public at any such place or on any such boat.
11) POLICE WILLFUL DISREGARD IN DISCHARGE OF HIS DUTIES CONSTITUTES CRIMINAL CONTEMPT OF THE COURT:
The process of administration of justice begins with the violation of a right of a person or the committing of an offence by a person, well before any FIR is filed OR case is registered in the court.
In the light of Contempt of Court Act- Section -2(c ), If Police refuses to register FIR or refuses to investigate the case or refuses to apprehend or arrest offenders or trying to protect the accused or the guilty in any way, than a Criminal contempt of Court u/s 2(c) (III) of the Contempt of Courts Act 1971 can be filed against them for causing obstruction in the administration of justice.
However, the element of police acting illegally deliberately and consciously without any justification is essential. "A refusal to see the obvious, a failure
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to investigate the doubtful if sufficiently gross, furnishes evidence acting deliberately and consciously.
The Contempt Petition is filed in the High Court and the best part is that proceedings have to begin immediately. However, before filing Criminal Contempt of Court Petition, Sanction from Advocate general must be obtained. If they do not give sanction or does not reply within a reasonable time of 30 days, than Contempt petition can be filed informing the Court about sanction not given or no reply received.
Not only the Police but whoever including political interferes in the process of investigation or interferes during the trial of offence in the Court can be charged with obstructing in the administration of justice and thus it constitutes an serious offence of Criminal Contempt of Court.
However, for offences which are enumerated in Indian Penal Code cannot become the subject matter of Criminal Contempt Of Court.
Other Offences:
Section 193 to 239 deals with giving false evidence before Judicial proceedings; fabricating evidence; perjury; false statements; harboring an offender; offering bribery and inducements. The offences are Non Cognizable and Bailable.
IPC Section 153. Wantonly giving provocation with intent to cause riot-if rioting be committed-if not committed.
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IPC Section 153A. Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.
IPC Section 166. Public servant disobeying law, with intent to cause injury to any person.
IPC Section 167. Public servant farming an incorrect document with intent to cause injury.
IPC Section 217. Public servant disobeying direction of law with intent to save person from punishment or property from forfeiture
IPC Section 403. Dishonest misappropriation of property: Whoever dishonestly misappropriates or converts to his own use any movable property, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
IPC Section 404. Dishonest misappropriation of property possessed by deceased person at the time of his death.
IPC Section 411. Dishonestly receiving stolen property: Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
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IPC Section 413. Habitually dealing in stolen property: Whoever habitually receives or deals in property which he knows or has reason to believe to be stolen property, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
IPC Section 420. Cheating and dishonestly inducing delivery of property: Whoever cheats and thereby dishonestly induces the person deceived any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. (Property includes all movable & immovable)
IPC Section 441. Criminal trespass :Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, Or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass".
IPC Section 463. Forgery.: [Whoever makes any false documents or electronic record part of a document or electronic record with, intent to cause damage or injury], to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into
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any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
IPC Section 503 to 510: Criminal intimidation, insult and Annoyance.
CrPC Section 197. Prosecution of Judges and public servants.
12) SOME LANDMARK HIGH COURT AND SUPREME COURT JUDGMENTS:
(1) “In BOMBAY(Criminal) 08/10/2008 (J-R) APPW/271/2007, a full bench judgment of the Bombay High Court had laid down that cops should register the FIR against the accused person within two days of being informed of commission of any cognizable offence.” The comprehensive judgment, among other things, says that, The law inescapably requires the police officer to register the information received by him in relation to commission of a cognizable offence. Under the scheme of the CrPC, no choice is vested in the police officer between recording or not recording the information received. Link to the judgment: http://bombayhighcourt.nic.in/ordqryfbench_action.php?auth=cGFnZW5vPTUmam9mbGFnPUo= This Judgment of Bombay High Court or Judgments of any High Court can be used in any Court in India.
(2) SC finds illegal detention worse than death: In an important ruling with wide ramifications for individual liberty, the Supreme Court has held that personal liberty is the most important fundamental right of a citizen and illegal detention causes incalculable harm and humiliation to a person. A
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bench comprising Justices Altamas Kabir and Markandey Katju while quashing the detention order passed by Mumbai Police against petitioner Deepak Bajaj under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 observed, „if a person against whom a preventive detention order has been passed can show to the Court that the said detention order is clearly illegal, why should he be compelled to go to jail?‟ The imperative necessity to protect those precious rights is a lesson taught by history and all human experience, the bench observed.„Our founding fathers have lived through bitter years of the freedom struggle and seen an alien government trample upon the human rights of our citizens. It is for this reason that they have introduced Article 21 in the Constitution and provided for the writs of habeas corpus etc,‟ they said.Justice Katju, in the 28-page judgement, quoted from the Bhagavad Gita to drive home his point that this dishonour of being sent to jail without any justification is worse than death for a self-respecting man.The apex court while making it clear that restrictions can be placed on these rights in the interest of public order, security of the state and the like, maintained that they are not to be lightly transgressed as individual liberty is an integral part of right to life. Source: UNI
(3) Sc Assails Unexplained Delay In Passing Detention Order: March 16, 2006: The Supreme Court has held that unexplained delay in passing the detention order by the authorities is not permissible in law.A bench comprising Mr Justice S.B. Sinha and Mr Justice P.K. Balasubramanyan vide their judgment dated March 10 this year laid down the law while setting aside the impugned detention order passed against an industrialist, Rajinder Arora, whose export house was raided by the Directorate of Revenue
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Intelligence (DRI) on May 26,2004 and detention order was passed on March 31,2005.The Supreme Court has observed, It is trite law that an order of detention is not a curative or reformative or punitive action, but a preventive action, avowed object of which being to prevent the anti-social and subversive elements from imperiling the welfare of the country or the security of the nation or from disturbing the public tranquility or from indulging in smuggling activities or from engaging in illicit traffic in narcotic drugs and psychotropic substances etc." While commenting on delay, the apex court ruled " that the delay caused in this case in issuing the order of detention has not been explained. In fact no reason in that behalf whatever has been assigned at all and for the reasons abovementioned the impugned order of detention can not be sustained which is set aside accordingly." (UNI)
(4) In Nawabkhan Abbaskhan V. St. of Gujrat , The Hon SC allows every person the discretion to make his own decision and disobey an order of the Govt. if in his opinion violates his fundamental rights or if he believes that such order is made for malafide intentions.
THe Hon. Court said , “the individual decision making by private person of public actions may be considered as a very radical approach .Grave cosequences involved in allowing discretion to disobey , someone may argue, but what is the remedy available to a person who has been subjected to an illegal order ?, Our legal system does not recognize the right to compensation for damage suffered by a person in obeying an illegal order . But if he is turn out to be wrong in his decision , of course he is answerable.”
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(5) In Writ Petition (CRL) no 68 of 2008 (Latika Kumar vs. Govt of UP & Others). On 14th July 2008 , Justice BN Agarwal and Justice GS Singhvi " directed, “We feel that it is high time to give directions to Governments of all the States and Union Territories besides their Director Generals of Police/Commissioners of Police as the case may be to the effect that if steps are not taken for registration of F.I.Rs immediately and copies thereof are not made over to the complainants, they may move the concerned Magistrates by filing complaint petitions to give direction to the police to register case immediately upon receipt/production of copy of the orders and make over copy of the F.I.Rs to the complainants, within twenty four hours of receipt/production of copy of such orders. It may further give direction to take immediate steps for apprehending the accused persons and recovery of kidnapped/abducted persons and properties which were subject matter of theft or dacoity. In case F.I.Rs are not registered within the aforementioned time, and/or aforementioned steps are not taken by the police, the concerned Magistrate would be justified in initiating contempt proceeding against such delinquent officers and punish them for violation of its orders if no sufficient cause is shown and awarding stringent punishment like sentence of imprisonment against them inasmuch as the Disciplinary Authority would be quite justified in initiating departmental proceeding and suspending them in contemplation of the same.”
Writ of Habeas Corpus: A Writ Petition can be filed in the High Court under Article 226 of Constitution of India, or in the Supreme Court under Article 32 of Constitution of India, to seek release of a person from unlawful detention, whether by Police or by any private person.
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13) ROLE OF HUMAN RIGHTS COMMISSIONS:
Human Rights Commission play a critical role as far as Police excesses on people are concerned. The basic objective of The Protection of Human Rights Act is to ensure Life and dignity of Life to every individual which is itself guaranteed to every individual by Article 21 of the Constitution of India. Every individual, whether he is Citizen of India or not can avail the benefit of the provisions of the Act. The Commissions are chaired by Retired Chief Justice Of India or the retired Chief Justice of the High Courts and other persons of special knowledge and of high integrity.
Any individual, who is unlawfully, so deprived of his life or liberty or dignity of life, may approach the National Human Rights Commission or the State Human Rights Commission, which are constituted under this Act.
Help of legal expert is not required at all and simple hand written application incorporating the facts and causes is suffice to redress the grievances.
Very few people are aware of their legal rights and very little about their enforcement in Human rights Commission(HRC). The Act also envisages that any individual on behalf of the victim may approach this Commission for the redressal of the grievances of immediate victim.
There is no fee to be paid.
The Commission has enormous powers to give relief to the victims including monetary compensation. The Commission, if necessary, may approach the High Court or Supreme Court on behalf of the victim to give him/her justice.
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Section 12 of the Act makes it obligatory on the Commission to take notice of every application so received. Human Rights Commission, in the light of section 12, has Special duty towards Undertrial prisoners.
It is a powerful weapon in the hands of citizen of India and of course this right is available to other persons who are resident of India but not a citizen of India.
National Human Rights Commission is situated at Faridkot House, Copernicus marg, New Delhi. The details of State Human Rights Commission can be obtained from National Human Rights Commission(NHRC) Website. Also, if details of State Human rights Commission are not available, than the complaint may be directed to NHRC and NHRC will transfer the Complaint to relevant State HRC if there exist any in the State. If not, than NHRC will itself proceed.
14) ROLE OF LEGAL SERVICES AUTHORITIES:
Now we come to another Statute and that is The legal services authorities comes into picture to provide free and competent legal services to the weaker section of the society, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
The National Legal services Authority at the National level, The State Legal services Authority in each State and The District Legal services Authority in each of the districts has been constituted under this Act; The State Govt.
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may constitute Taluka Legal services Authority in each of the Taluka of the district. The Supreme Court Legal services Committee and The High Court Legal services committee in each State have also been constituted.
The Authorities are chaired by Chief Justice of India, Chief Justice of the High Courts and other senior Advocates.
ENTITLEMENT TO LEGAL SERVICES. Criteria for giving legal services. -Every person who has to file or defend a case shall be entitled to legal services under this Act if that person, is-
(a) A member of a Scheduled Caste or Scheduled Tribe; (b) A victim of trafficking in human beings or beggar as referred to in Article 23 of the Constitution; (c) A women or a child; (d) A mentally ill or otherwise disabled person; (e) A person under circumstances of undeserved want such as being a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster; (f) An industrial workman; or
(g) In custody, including custody in a protective home within the meaning of clause (g) of section 2 of the Immoral Traffic (Prevention) Act, 1956 (104 of 1956), or in a juvenile home within the meaning of clause (j) of section 2 of the Juvenile Justice Act, 1986 (53 of 1986), or in a psychiatric hospital or psychiatric nursing home within the meaning of clause (g) of section 2 of the Mental Health Act, 1987 (14 of 1987); or [(h) in receipt of annual income less than rupees nine thousand or such other higher amount as may be prescribed by the State Government, if the case is before a court other than the Supreme Court, and less than rupees twelve thousand or such other higher amount as may be prescribed by the Central Government, if the case
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is before the Supreme Court.] (Rules have already been amended to enhance this income ceiling).
A Person who satisfies any of the criteria specified in section 12 shall be entitled to receive legal services provided that the concerned Authority is satisfied that such person has a prima facie case to prosecute or to defend.
An affidavit made by a person as to his income may be regarded as sufficient for making him eligible to the entitlement of legal services under this Act unless the concerned Authority has reason to disbelieve such affidavit.
Addresses of District Legal Services may be obtained from High Court Legal Services Authorities situated at High Court.
National Legal Services Authority [NALSA]
Member Secretary,12/11 Jamnagar House,Shahjahan Rd,New Delhi-110011. Phone- 011-23386176, 23382778; Fax- 011-23382121.
15) ACCIDENT VICTIMS AND ROLE OF GOOD SAMARITAN (CITIZEN):
The Supreme Court in Case No.: Appeal (civil) 919 of 2007, Date of Judgment: 23/02/2007 has ruled that all injured persons especially in the case of road traffic accidents, assaults, etc., when brought to a hospital / medical centre, have to be offered first aid, stabilized and shifted to a higher centre / government centre if required. It is only after this that the hospital can demand payment or complete police formalities. In case you are a bystander and wish to help someone in an accident, please go ahead and do
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so. Your responsibility ends as soon as you leave the person at the hospital. The Hospital bears the responsibility of informing the Police, giving first aid etc.