tips

Updating Date Of Birth, Address Of Your Aadhaar Card?

2018-09-17T22:20:00.001-07:00

Updating date of birth on Aadhaar had been an easy process till now: Either send in a completed form to UIDAI’s office, or visit your local Aadhaar enrollment center.

But not anymore!

UIDAI has made some sweeping changes to the process of updating date of birth in an Aadhaar card, and if you want to make one such change, then find out the process right here!

UIDAI: Date Of Birth Change Will Be Tough

As per new rules introduced by UIDAI, for any change in date of birth, the card holder will have to visit the Regional Office, and then make the change.
The local Aadhaar enrollment center is now authorized to change date of birth only once.

Hence, a visit to regional office is now mandatory if your are changing date of birth more than once.

This has been done because UIDAI felt that the change in date of birth is an exception, and it should not happen more than once at all.

The new rule has been introduced as a new notification in the Aadhaar (Enrolment and Update) Regulations, 2016.

It reads: “Provided that the date of birth of resident can be updated only once. In case the date of birth is to be updated more than once, it can only be done through an exception handling process which may require the resident to visit the Regional Office (RO) of the UIDAI.”

The officials at the Regional Office will use ‘exception handling process’ to make the changes in the date of birth field.

New Procedure For Address Change, Aadhaar Updates

Besides this major change in the process of updating date of birth, UIDAI has also announced two new updates:

From now on, any change in the Aadhaar database won’t be entertained via post. Earlier, users could have filled in the update form, and sent that to the UIDAI via post for updating the records. From now, the updates can be made only via UIDAI portal or the nearest enrollment center.For updating address, UIDAI has now announced a pin-based verification process. Once the request to update new address has been sent in, UIDAI will send a pin to the new address, via post. Once the user gets that pin, he or she needs to enter the same in the UIDI portal to update the address. This new process will go live effective January 1st, 2019.

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Parenting tips ... Unicef

2018-06-12T03:19:00.001-07:00

Did you know that up to 75% of each meal goes to build your baby's brain? Or that over 80% of your baby’s brain is formed by the age of 3?*

With every hug and every kiss, with every nutritious meal and game you play, you’re helping to build your baby’s brain.

Here are some tips to help give your child the best start in life:

> Get baby tips: newborn

> Get baby tips: 1-6 months

> Get baby tips: 6-9 months

> Get baby tips: 9-12 months

> Get toddler tips: 1-2 years

> Get toddler tips: 2+ years

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Newborn baby tips

UNICEF/UN0159516/Chute

Did you know?

Within a few days, babies can start smiling when people smile at them.

Provide ways for your baby to see, hear, move freely and touch you.You should see your baby’s arms and legs move in disconnected ways. Slowly your baby will learn how to control her movements.Look into your baby’s eyes and smile in response to his smiles.You should see your baby react positively to your facial expressions, movements and gestures.Talk to your baby in soft tones and ‘baby talk’. Both the father, mother and other caregivers should communicate with the newborn. You will notice that she can hear and will soon start memorizing and copying your words.Gently change the sound of your voice. Make it slower/quicker, higher/lower, or quieter/louder. You should observe reactions from your baby’s face and body, and notice him interacting with you.Place your baby on her tummy and shake a rattle or bell in front of her. Slowly lift the rattle just a little and encourage her to lift her head and shoulders to watch it move. Doing so helps your baby follow the rattle with her eyes, and practice lifting her head and shoulders.Gently soothe, stroke and hold your child. You will see your baby comforted, happy to be held and cuddled.Do skin to skin contact. Feeling, hearing and smelling your presence should provide your baby with a sense of calm and security.

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1-6 month old baby tips

UNICEF/UN0201069/Krepkih

Did you know?

1-3 month old babies see things best when they are between 20-30 cm away. By 3 months, babies have a greater range of vision.

Provide ways for your child to see, hear, feel, move freely and touch you. Your baby will slowly establish trust with you.Slowly move colourful things for your child to see and reach for. A simple, homemade toy, like a rattle, can attract your baby’s interest by the sounds it makes.Smile and laugh with your child.You should soon see your baby smile in return.Talk to your child and copy her sounds or gestures. You should see her slowly focus on your face and try to imitate you in return.Help your child follow an object.When he sees it, move it slowly from side to side and up and down. You should see him try to follow the object with his eyes.Encourage your child to reach for a safe object. Try something like a plastic cup. You should see her try to grab or touch it.Cut out simple pictures of familiar things, people and animals. Try to get pictures showing lots of different colors, textures, scenes and faces. Talk about the pictures as your baby looks at them. You should observe how your baby listens to what you tell him and participates in his own way.Play a game with your baby. Place her on her stomach and slowly walk your fingers toward her. Then quickly and gently tickle her saying: “here come my fingers, here they come, closer and closer, they got you”. To change the game, make your fingers creep slowly or quickly, or wait different amounts of time before tickling her. You should see her show delight by laughing or squealing.

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6-9 month old baby tips

UNICEF/UNI116104/Pirozzi

Did you know?

At 6 months, your baby can eat anything except honey which should not be given until she is a year old.

When asking a question, give lots of time for the answer. Count to 10 in your head. If no answer comes, then answer the question yourself. Try an easier question the next time.Say your baby’s name as much as possible. She will look to see who is saying it and will try to reach out to the person.Never speak or sing too loudly, as this may scare babies.Smile as much as possible and provide your baby with comfort and trust.Give your child clean, safe and colourful things, such as a wooden spoon or plastic bowl, to reach for and touch, or bang and drop.Make simple picture books, puzzles, hand puppets and dolls to develop your baby's curiosity and help him learn new things. To make a simple puzzle, just glue a picture on a piece of cardboard or other material and cut out the sections.

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9-12 month old baby tips

UNICEF/UN0208077/Hearfield

Did you know?

To increase infants’ self-esteem and confidence, always take a positive approach to your child’s learning process. Try to say “yes”, “good”, “well done” more often, rather than “no”, “bad”, “not good”.

Play hide and seek with your infant and see if he can find the objects you hide. You can hide something under a cloth, and say: “Where did it go?”, “Can you find it?”. You should see an increase in your child’s curiosity and willingness to find out what happened to the object.Tell your infant the names of things and people. She should show interest and soon will try to make relationships between words and objects or people.Show your child how to say things with hands, like “bye bye”. Soon your child should try to imitate you and wave “bye-bye” on his own, making a relationship between a movement and a vocal expression.Point to the eyes, nose and mouth on a doll. After showing one part on the doll, touch the same part on yourself and on your baby. Take your baby’s hand and have him touch the eyes, nose and mouth on the doll, you and himself. Slowly, the baby will be able to memorize and identify these different words and relate them to his body parts.

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1-2 year old toddler tips

UNICEF/UN0151386/Voronin

Did you know?

Toddlers are especially happy when they see that they are making the adults around them happy as well.

Give your child things to put into containers and take out. She will try to take them out and put them back on her own, which is great for the development of eye-hand coordination skills.Give your toddler things to stack up. He should try to stack more things on his own and make them fall down, or will stack things up until they fall down.Ask your child simple questions and respond to your child’s attempts to talk. She should be willing to interact by responding and/or asking further questions.Try to talk about different realities with your infant, such as nature, pictures and things from the surrounding environment. You should see your toddler move around and be willing to explore the environment.Watch what your toddler does and name it: “You are filling the box.” He will be happy to show you what he learned and will gain self-esteem.Play with your toddler and offer help: “Let’s do it together. Here are more stones to put into your box.”These discoveries should make her happy and more confident.Use every opportunity to engage in a conversation, including when feeding or bathing, or when working near him. He should soon begin to understand what you are saying and be able to follow simple directions.Turn simple questions into games: “Where is your toe?” or “Where is the bird?”. You can look at pictures and talk about what you see. She should show more and more curiosity and willingness to communicate about what she sees and hears.

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2+ years old toddler tips

UNICEF/UN033166/LeMoyne

Did you know?

Children learn better when they are taught how to behave well instead of being scolded for behaving badly.

Ask simple questions and listen to the answers. Encourage your child to talk: “What is this?”, “Where is the window?”, “Which ball is bigger?”, “Would you like the red cup?”. You should see your child’s growing interest in interacting with you and responding to your questions.Read stories to your child and ask questions about what you see in the book. You should notice your child memorizes and tries to repeat what you read.Help your child learn to count by asking “how many” and counting things together. Your child will make mistakes at first, but learn from repeating things many times.Offer your child circles and other shapes cut from coloured paper to compare and sort. She should be happy to try sorting things and will learn how to match and make relationships between different objects, colours and shapes.

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* Sources: Steen, The Evolving Brain: The Known and The Unknown, 2007; Dekaban, Annals of Neurology, 1978.

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Makhan Chore Nand Kishore

2018-06-11T21:55:00.001-07:00

Action Time

2018-03-19T20:05:00.001-07:00

The Charge : Sections 211-224 and 464 of CrPC

2015-05-11T07:44:00.000-07:00

What is Charge?

Charge is a first notice to accused of his offence, it should convey to him in sufficient clearness and certainty what the prosecution intends to prove and which case the accused is to meet. The charge sheet corresponds to indictment under English Law.

Section 2(b) of the Code of Criminal Procedure (in short crpc) defines a charge as including any head of charge, when the charge contains more than one. However the Code of Criminal Procedure does not define what a charge is. In law a charge may be define as a precise formulation of a specific accusation made against a person of an offence alleged to have been committed by him.

Purpose and Object

The purpose of a charge is to tell the accused, as precisely and concisely as possible, about the matter with which he is charged and the object of a charge is to warn the accused of the case which he has to answer. The forms in which the charges may be framed are set forth in Second Schedule of the Code of Criminal Procedure.

The Legal Provisions

The provisions regarding charge are contained in Sections 211 to 224 and 464 of the crpc. Sections 211 to 214 of crpc deals with what a charge should contain. Section 211 of the crpc lays down that every charge shall contain the following particulars:-

(1) The offence with which the accused is charged.

(2) If the law which creats the offence gives it, any specific name, the offence may be described in the charge by that name.

(3) If the law which creats the offence does not give it any specific name, so much of the definition of the offence must be stated as to give the acused notice of the matter with which he is charged.

(4) The law and the section of the law against which the offence is said to have been committed shall be mentioned in the charge.

(5) The fact that charge is made is equivalent to statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case.

(6) The charge shall be written in the language of the court.

(7) If the accused having been previously convicted of any offence is liable, by reason of such previous conviction to enhanced punishment or to punishment of a different kind, for a subsequent offence and it is intended to prove such previous conviction for the purpose of affecting the punishment, which the court may think fit to award for the subsequent offence the fact, date and place of the previous conviction shall be stated in the charge; and if such statement has been omitted, the court may add it at any time before sentence is passed.

Section 212, crpc then provides that the charge must contain such particulars as to the time and place of the alleged offence, and the person, if any against whom, or the thing if any, in respect of which, the offence was committed as are reasonably sufficient to give to the accused notice of the matter with which he is charged.
According to Section 212(2), crpc when the charge is of criminal breach of trust or criminal misappropriation of money, it shall be sufficient to specify
(a) the gross sum in respect of which the offence is committed;
(b) the dates between which it is committed provided the time between the first and the last date shall not exceed one year.

Section 213, crpc lays down that if the nature of the case is such that the particulars mentioned in Sections 211 and 212 of crpc do not give to the accused sufficient notice of the matter with which he is charged, the charge must also mention such particulars of the manner in which the alleged offence was committed as would be sufficient for that purpose. e.g. A is accused of cheating B at a given time and place. The charge must set out the manner in which A cheated B.

Effect of a defective charge

The matter have been provided in Sections 215 and 464 of the Code of Criminal Procedure. The two sections read together lay down that whatever the irregularity in framing of a charge, it is not fatal unless there is prejudice caused to the accused. The mere omission to frame a charge or a mere defect in the charge is no ground for setting aside a conviction. Procedural laws are designed to subserve the ends of justice and not to frustrate them by mere technicalities. The object of the charge is to give an accused notice of the matter he is charged with. If the necessary information is conveyed to him and no prejudice is caused to him because of the charges, the accused cannot succeed by merely showing that the charges framed were defective. Nor could a conviction recorded on charges under wrong provisions be reversed if the accused was informed of the details of the offence committed and thus no prejudice was caused to him.

The court may alter or add to any charge at any time before the judgment is pronounced (sections 216 and 217, crpc). But if a person has been charged the court cannot drop it. He has either to be convicted or acquitted.

Disclaimer: All the contents are for general use and information. Consult your lawyer before acting upon these informations.

Dispute regarding possession of immovable property : Section 145, 146 crpc.

2015-01-09T09:32:00.000-08:00

Disputes over land and water, crops and other produce of land and rights of user in respect of immovable property often result in breach of the peace, violence and bloodshed. Sections 145 and 146 of the Code of Criminal Procedure (in short crpc) together constitute a scheme for the resolution of a situation where there is likelihood of a breach of the peace because of a dispute concerning any land or water or their boundaries.

Sub-section (1) of Section 145 of crpc reads as: - Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.

Further Sub-section (2) of Section 145, crpc says- For the purpose of this section, the expression “land or water” includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property.

In order to take preventive action under Section 145 two essential conditions must be satisfied,

(i) there must be dispute relating to land or other objects mentioned in Subsection (1); and

(ii) the dispute is likely to cause a breach of peace.

The Magistrate exercising jurisdiction under Section 145, crpc must be satisfied about these two conditions either from a police report or from any other information which would include an application by the dispossessed person.

On being satisfied about the existence of a dispute likely to cause a breach of peace, the Magistrate issues a preliminary order stating the grounds of his satisfaction and calling upon the parties to appear before him and submit their written statement.

On perusal of the written statements he would proceed to record evidence to decide which of the parties was in possession on the date of the preliminary order. If he decides that-

(i) one of the parties was in possession he declares possession of such party;

(ii) if on the other hand he is unable to decide who was in possession, or

(iii) if he is of opinion that none of the parties was in such possession, he may say so.

If he decides that one of the parties was in possession he declares the possession of such property. In the other two situations he attaches the property. Thus a proceeding began with a preliminary order followed up by an enquiry and end with the Magistrate deciding in one of three ways and making consequential orders.

The Magistrate may, however, stop the proceedings at any time if one or the other of the parties satisfies him that there has never been or that there is no longer any dispute likely to cause a breach of the peace. The Magistrate then cancels the preliminary order vide Section 145(5), crpc except in this event a proceeding initiated by a preliminary order under Section 145(1) must run its full course.

Whether a composite order of attachment of disputed property under Section 146, crpc can be passed by the Magistrate while passing the preliminary order under Section 145(1), crpc?

A Magistrate who wants to pass an order under Section 146(1), crpc has at first to pass an order under Section 145(1), crpc in order to assume jurisdiction to attach the property under Section 146(1), crpc. There is nothing in the said two sections or in the Code of Criminal Procedure to prevent a Magistrate to pass the said orders in the same strain and in the same sitting, the order under Section 146(1) just following the order under Section 145(1) of the code.

A Magistrate can pass a composite order of attachment on disputed property under Section 146(1) while passing the preliminary order under Section 145(1), crpc. But such an order is only valid in the following circumstances

(i) the order under Section 145(1) should be separately drawn than the order under Section 146(1), crpc,

(ii) that the order under Section 145(1) must precede order under Section 146(1) crpc,

(iii) it must be borne out from both the orders that they satisfy separately the existence of the conditions for drawing such orders under the two sections.

Did you know?

The proceeding under Section 107, crpc are for public peace and tranquility whereas those under Section 145, crpc relate to dispute regarding possession between parties concerning any land or water or boundaries thereof.

There is no bar to filing criminal proceedings under Section 145, crpc over the same disputed immovable property for which civil proceedings are pending. The jurisdiction of the Magistrate under Sections 145 and 146, crpc to maintain peace will prevails over the orders of the civil court except where

(i) the determination of rights by the civil court has become final, or

(ii) the civil court has appointed a receiver.

An order made under Section 145, crpc deals only with the factum of possession of the party as on a particular day. It confers no title to remain in possession of the disputed property. The order is subject to decision of the civil court. The unsuccessful party therefore must get relief only in the civil court. He may move the civil court with properly constituted suit. He may file a suit for declaration and prove a better right to possession. The civil court has jurisdiction to give a finding different from that which the Magistrate has reached.

Disclaimer - All the contents are for general use and information. Consult your lawyer before acting.

Proclamation and Attachment of Property of Person Absconding : Section 82 and 83 of CrPC

2014-12-08T08:45:00.001-08:00

Normally any accused person whose presence is required by Court is to be at first instance called upon by summons. Sub section (1) of Section 204 of the Code of Criminal Procedure (in short CrPC) reads as follows- If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be

(a) a summons case, he shall issue his summons for the attendance of the accused, or

(b) a warrant case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or ( if he has no jurisdiction himself) some other Magistrate having jurisdiction.

Further sub section (5) of Section 204 CrPC says- Nothing in this section shall be deemed to affect the provisions of section 87.

Section 87 of the Code of Criminal Procedure empowers a Court to issue warrant in lieu of, or in addition to, summons. It can be exercised in two cases

(a) where the Court believes that the person summoned, either before or after the issue of summons, has absconded or will disobey the summons, or

(b) where he has without reasonable cause failed to appear. The recording of reasons by the Court is a condition precedent to the exercise of the power.

The other processes to compel the appearance of persons before the criminal courts are

(i) Proclamation as absconder, where a warrant fails to take effect;

(ii) Attachment and sale of property, if the absconder is not forthcoming;

(iii) Taking of bond with or without sureties.

Proclamation for person absconding.-

Section 82, CrPC provides as to when and how proclamation can be issued for an absconding person. If any court had reason to believe that any person against whom a warrant had been issued by it, had absconded or was concealing himself so that such warrant could not be executed, such Court may publish a written proclamation requiring, him to appear at specified place and at specified time not less than thirty days from date of publishing such proclamation.

Sub section (2) of Section 82, CrPC says – the proclamation shall be published as follows

(i) (a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;

(b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;

(c) a copy thereof shall be affixed to some conspicuous part of the Court-house;

(ii) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides.

Every person who is not immediately available cannot be characterized as an absconder. The Court has to record its satisfaction that the accused has absconded or is concealing in order to avoid execution of the warrant. The provision of Section 82 requires that the Court must in the instance, issue a warrant and it must put down its reason for believing that the accused is absconding or concealing himself.

Attachment of property of person absconding -

The property of the person against whom a proclamation is issued under Section 82, CrPC can be attached in order to compel his appearance in court. This has been provided by Section 83.

According to Section 83, CrPC the Court issuing proclamation under section 82 may, for reasons to be recorded in writing, at any time after the issue of the proclamation, order the attachment of any property, movable or immovable, or both, belonging to the proclaimed person:

Provided that where at the time of the issue of the proclamation the Court is satisfied, by affidavit or otherwise, that the person in relation to whom the proclamation is to be issued,-

(a) is about to dispose of the whole or any part of his property, or

(b) is about to remove the whole or any part of his property from the local jurisdiction of the Court,

it may order the attachment simultaneously with the issue of the proclamation.

The object of Section 83 CrPC is to penalize a person who seeks to avoid his arrest under warrant and against whom a proclamation is issued under Section 82, for disobedience of the proclamation, he incurs liability to be punished under Section 174 and 174 A of the Indian Penal Code.

The procedure laid down under Section 83 CrPC has to be followed strictly. Jurisdiction to pass an attachment order cannot be assumed unless a proclamation under Section 82 has been issued. The normal rule is to wait until expiry of thirty days to enable the accused to appear in terms of the proclamation which is to be computed from the date of publication of proclamation and the provisions in this respect are mandatory.

Section 88, CrPC empowers the Court to take bond for appearance. When any person for whose appearance or arrest the officer presiding in any court is empowered to issue a summons or warrant, is present in such court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such court, or any other court to which the case may be transferred for trail.

Remedy available to an aggrieved person-

The following four remedies are available to an aggrieved person
(i) Remedy by way of a claim or objection under Section 84, CrPC
(ii) Remedy by way of civil suit to establish a claim (Section 84, CrPC)
(iii) An appeal under Section 86, CrPC
(iv) Under certain circumstance, a revision application under Section 397, CrPC.

Quiz Corner

(i) A proclamation requiring a person to appear must be published giving
(a) not less than 30 days time to the person concerned
(b) not less than 10 days time to the person concerned
(c) not less than 20 days time to the person concerned
(d) not less than 15 days time to the person concerned.

(ii) Attachment of the property of the person absconding
(a) can only be issued after publication of the proclamation under section 82 of crpc
(b) can be issued before publication of the proclamation under section 82 of crpc
(c) can be issued simultaneously with the issue of proclamation under section 82 of crpc
(d) all of the above.

(iii) If the person proclaimed appears within the period specified in the proclamation, the property attached
(a) shall not be released from attachment
(b) shall be released from attachment
(c) shall be forfeited
(d) both (a) & (c).

(iv) If the proclaimed person does not appear within the time specified in the proclamation, the property under attachment

(a) shall not be sold untill expiry of six months from the date of attachment

(b) shall not be sold untill any claim or objection under section 84 of crpc have been disposed of

(d) none of the above.

(v) Period of limitation for filing claims and objections to the attachment of any property attached under section 83 of crpc, by any person other than the proclaimed person, as provided under section 84 of crpc
(a) within three months of attachment
(b) within six months of attachment
(c) within one year of attachment
(d) within two months of attachment.

Disclaimer - All the content are for general use and information. Consult your lawyer before acting upon above information.

Release of Land From Acquisition : Section 48 of the Land Acquisition Act, 1894

2014-11-20T09:23:00.001-08:00

Section 48 of the Land Acquisition Act, 1894 empowers the Government to withdraw from the acquisition of the land provided possession has not been taken. The said power is given to the government by a statutory provision and is not restricted by any condition except that such power must be exercised before possession is taken. The statutory provision contained in Section 48 does not provide for any particular procedure for withdrawal from acquisition.

Section 48 in the Land Acquisition Act, 1894 reads as follows: - 48 Completion of acquisition not compulsory, but compensation to be awarded when not completed.

(1) Except in the case provided for in Section 36, the government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken.

(2) Whenever the government withdraws from any such acquisition, the collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land.

(3) The provision of Part iii of this Act shall apply, so far as may be, to the determination of the compensation payable under this Section.

Further Section 36 of the Land Acquisition Act reads as follows: - 36 Power to enter and take possession, and compensation on restoration.

(1) On payment of such compensation, or on executing such agreement, or on making a reference under Section 35, the Collector may enter upon and take possession of the land, and use, or permit the use thereof in accordance with the terms of the said notice.

(2) On the expiration of the term, the Collector shall make or tender to the persons interested compensation for the damage, if any, done to the land and not provided for by the agreement, and shall restore the land to the persons interested therein, provided that, if the land has become permanently unfit to be used for the purpose for which it was used immediately before the commencement of such term, and if the persons interested shall so require the appropriate government shall proceed under this Act to acquire the land as if it was needed permanently for a public purpose or for a company.

A plain reading of the Section 48 of the Land Acquisition Act, 1894 demonstrates that an absolute discretion is vested in the State Government in so far as, the release of land from acquisition is concerned. Moreover, the exercise of discretion vested in government is subject to the condition that the possession of the land in question has not been taken.

The normal mode of taking possession is drafting the Panchanama in the presence of Panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land.

Once the possession of land has been taken no application seeking release of land by the land owner is maintainable ( Swamy Devi Dayal Hospital vs. Union of India, AIR 2014 SC 284 ).

In Mahadeo vs. State of UP, (2013) 4 SCC 524 the Supreme Court held that- once land is acquired and mandatory requirements are complied with i.e. land has been acquired after following due process of law and of which possession has been taken, land vests in state free from all encumbrances, even if some unutilized land remains, it cannot be reconveyed or reassigned to erstwhile owner.

The brief fact of the case is that- the land was acquired for purpose of expansion of city and major portion of land was already utilized by Authority- merely because some land was left vacant at relevant time that does not give any right to Authority to send proposal to government for release of land in favour of land owners.

The impugned orders passed by High Court directing Authority to press resolution dated 17-09-1997 whereunder decision was taken to withdraw acquisition of land except land for which compensation was paid, unsustainable. Hence Mandamus issued to this effect by High Court is quashed by the Apex Court.

It is true that a landowner whose land has been acquired for public purpose by following the prescribed procedure cannot claim as a matter of right for release of his/her land from acquisition but where the State Government exercises its power under Section 48(1) of the Land Acquisition Act for withdrawal from acquisition in respect of a particular land, the landowners who are similarly situated have right of similar treatment by the State Government.

Disclaimer: - All the content is for general use and information. Consult your Lawyer before acting upon these information.

'Defamation' under Indian Penal Code

2014-06-06T09:24:00.003-07:00

‘Defamation’ may be a criminal or civil charge. It encompasses both written statements, known as libel, and spoken statements, called slander.

The criminal law on defamation has been codified under chapter 21 of the Indian Penal Code (in short IPC) and is containing in Sections 499 to 502 of the IPC.

Section 499 of the IPC defines ‘defamation’ whereas Section 500, IPC is the Penal Section for defamation which reads as ‘whoever defames another shall be punished with simple imprisonment for a term which may extend to two years or with fine or with both’. In order to justify a charge under Section 500 of IPC, it is required that the allegations satisfy requirement of Section 499, IPC as also the explanations appended thereto.

The offence of ‘defamation’ as defined by Section 499 of the Indian Penal Code reads as follows: - whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.

Essential Ingredients of ‘defamation’: -

There are three main ingredients of the offence of defamation

(i) making or publishing any imputation concerning any person;

(ii) such imputation must have been made by-

(a) words, either spoken or intended to be read; or

(b) signs; or

(iii) such imputation must be made with the intention of harming or with the knowledge or with reasons to believe that it will harm the reputation of that person.

It is clear that the means rea to cause harm is the most essential sine qua non for an offence under Section 499 of the Indian Penal Code. To constitute ‘defamation’ under Section 499 of the Code, there must be an imputation and such imputation must have been made with intention of having or knowing or having reason to believe that it will harm the reputation of the person about whom it is made. In essence, the offence of defamation is the harm caused to the reputation of a person. It would be sufficient to show that the accused intended or knew or had reason to believe that the imputation made by him would harm the reputation of the complainant, irrespective of whether the complainant actually suffered directly or indirectly from the imputation alleged.

In respect of the offence of defamation, Section 199 of the Code of Criminal Procedure mandates that the Magistrate can take Cognizance of the offence only upon receiving a complaint by a person who is aggrieved. Section 199 of the Cr PC laid down an exception to the general rule that a criminal complaint can be filed by anyone irrespective of whether he is an ‘aggrieved person’ or not.

If the facts which are the subject of a complaint fall within the limits of the definition in Section 499, IPC construed as the section ought to be, according to the plain meaning of the words therein used, and if they are not covered by any of the exceptions to be found in the Code, then they amount to defamation.

The burden lay upon the accused to show that the statement he had made fell within one or other of the exceptions to Section 499 of IPC, or that he was protected from prosecution by the proviso to Section 132 of the Indian Evidence Act.

Disclaimer: - All the content is for general use and information. Consult your lawyer before acting upon above information.

Dishonour of Cheques : Section 138 of the Negotiable Instrument Act, 1881

2014-05-24T08:04:00.003-07:00

What is Cheque?

As per Section 6 of the Negotiable Instrument Act, 1881, a ‘cheque’ is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand and it includes the electronic image of a truncated cheque and a cheque in the electronic form.

Definition of Drawer and Payee

As per Section 7 of the Negotiable Instrument Act, maker of a bill of exchange, a promissory note or cheque is called the ‘drawer’ and the person named in the instrument, to whom or to whose order the money is by the instrument directed to be paid, is called the ‘payee’.

Purpose and Object behind the incorporation of Section 138 of the Negotiable Instrument Act.

The offence under Section 138 of the Negotiable Instrument Act is a statutory offence. This Section excludes mens rea by creating strict liability. It does not say that there should be a direct nexus between the person who commits the act and the offence. The purpose behind the incorporation of Section 138 of the Negotiable Instrument Act is to lend credibility for cheque transactions. The object is to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instruments.

Section 138 of the Negotiable Instrument Act reads as follows: - where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both.

Provided that nothing contained in this section shall apply unless -

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice.

Explanation- ‘debt or other liability’ means a legally enforceable debt or other liability.

Ingredients of Section 138

(i) drawing of the cheque;
(ii) presentation of the cheque to the bank;
(iii) returning the cheque unpaid by the drawee bank;
(iv) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount; and
(v) failure of the drawer to make payment within 15 days of the receipt of the notice.

It is incumbent upon the complainant to establish a case under Section 138 of the Negotiable Instrument Act, that the cheque was dishonoured only for want of funds in the account and not for the other reason. If a cheque is returned on account of any structural defect, that is, any defect in its form, want of signature, date has not been properly written, figure of the amount has been over written or erasures in the drawer's name, etc., the same will not amount to an offence punishable under Section 138 of the Act.

But on November 27, 2012, in M/s Laxmi Dyechem vs. State of Gujarat & Ors, the Apex Court held that where the drawer of the cheque changed his signature with a fraudulent intention that such change in signature would result in dishonour of cheque, in such situation mismatch of signature of drawer on cheque with the specimen signatures would constitute dishonour within the meaning of Section 138 of the Act subject to the condition that the drawer fails to make payment within the stipulated time despite receiving statutory notice under Section 138 of the Act.

Liability of a Company under Section 138

Section 141 of the Negotiable Instrument Act lays down the liability of a company and its officers for an offence under Section 138 of the Act.

Section 141 of the Negotiable Instrument Act reads as follows: - (1) If the person committing an offence under Section 138 is a company, every person who, at the time the offence was committed, was incharge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of he offence and shall be liable to be proceeded against and punished accordingly.

The proviso of Section 141(1) lays down that no such person can be so held liable if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence.

The second proviso of Section 141(1) further lays down that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or the State Government, as the case may be, he shall not be held liable.

Sub-Section 2 of Section 141 of the Act provides that where any offence under the Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation- (a) ‘company’ means any body corporate and includes a firm or other association of individuals; and (b) ‘director’, in relation to a firm, means a partner in the firm.

Who can file complaint; how and when?

The complaint for offence under Section 138 read with Section 142 after the dishonouring of the cheque can be filed either by the payee or the holder thereof. Whether the person is holder thereof is a question of fact and has to be pleaded. The complaint can only be filed in writing by the payee or the holder thereof in due course.

The payee is free to present the cheque repeatedly within its validity period but once notice has been issued and payment not received within 15 days of the receipt of the notice, payee has to avail the very cause of action arising thereupon and file the complaint. Complaint has to be filed within one month from the day immediately following the day on which the period of 15 days from the date of receipt of the first notice by the drawer expires.

No form of notice is prescribed in clause (b) of the proviso to section 138, the requirement is that the notice shall be given in writing within 30 days of receipt of information from the bank regarding return of the cheque as unpaid and in the notice a demand for payment of the amount of the cheque has to be made. If no such demand is made, the notice would fall short of its legal requirement.

Further it is not the giving of the notice but its receipt by the drawer which culminates in the cause of action. It is no doubt true that the receipt of the notice has to be proved, but if the notice is refused by the addressee, it may be presumed to have been served. In a case where notice is not claimed even though sent by registered post, with the aid of Section 27 of the General Clauses Act, the drawer of the cheque may be called upon to rebut the presumption which arises in favour of service of notice.

Place where complaint is to be filed

For purposes of Section 178(d) of the Code of Criminal Procedure, where an offence consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas.

In Nishant Aggarwal vs. Kailash Kumar Sharma, (2013) 10 SCC 72, the Apex Court observed that if the five different acts namely (i) drawing of the cheque; (ii) presentation of the cheque to the bank; (iii) returning the cheque unpaid by the drawee bank; (iv) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount; and (v) failure of the drawer to make payment within 15 days of the receipt of the notice, which are the components of offence under Section 138 of the Negotiable Instrument Act were done in five different localities, any one of the Courts exercising jurisdiction in one of the five local areas can became the place of trail for the offence under Section 138 of the Act and the complainant would be at liberty to file a complaint at any of those places. In other words, the complainant can choose any one of those Courts having jurisdiction over any one of the local areas within the territorial limits of which any one of those five acts was done.

On 01-08-2014, the Apex Court in Dashrath Rupsingh Rathod vs. State of Maharashtra, (2014) 9 SCC 129 held that the territorial jurisdiction is restricted to Court within whose local jurisdiction offence was committed which is where cheque is dishonoured by bank on which it is drawn and complaint will be maintainable only at place where cheque stands dishonoured.

But after the Negotiable Instrument (Amendment) Ordinance, 2015 which was published in the Gazette of India on 15th June, 2015 the offence under Section 138 shall be inquired into and tried only by a court within whose local jurisdiction-

(a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or

(b) if the cheque is presented for payment by he payee or holder in due course otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated.

Explanation- For the purposes of clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account.

Offence of dishonour of cheque committed along with other offences in a single transaction- Territorial jurisdiction :-

The relief introduced by Section 138 of the NI Act is in addition to the contemplations in the IPC. It is still open to such a payee recipent of a dishonoured cheque to lodge a First Information Report with the police or file a complaint directly before the concerened Magistrate. All remedies under IPC and CrPC are available to such a payee if he chooses to pursue this course of action, rather than a complaint under Section 138 NI Act. He can also always file a civil suit for recovery wherever the cause of action arises in civil law.

Trail

All offences under the Negotiable Instrument Act are to be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate summarily and the provisions of Sections 262 to 265, both inclusive of the Code of Criminal Procedure shall apply to such trails. The trail Court has to look into the following main features, viz., the date of issuing of the cheque, the date of dishonouring of the cheque by the bank, the date of issuing notice, and the date of filing of the complaint in Court; if these facts are borne out from allegations in the complaint, the Court is entitled to take cognizance of the same.

High Court’s power under Section 482 of the Code of Criminal Procedure

The power of quashing criminal proceedings by the High Court should be exercised very stringently and with circumspection. In the cases where the petitioner is able to show to the Court that there was no existing debt or liability at the time of presentation of the cheque for encashment on the basis of the conduct of the complainant or admissions made by the complainant though that may be in other legal proceedings, then in such cases, the proceeding can be terminated and the accused should not be asked to face the trail till it is concluded.

Further, a complaint filed in a Court under the territorial jurisdiction of High Court of a State, cannot be quashed by the High Court of another State.

Disclaimer: Above content are for general use and information. Consult your Lawyer before acting upon these information.

Partnership under Indian Partnership Act, 1932

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A partnership arises from a contract. It is a form of business organization, where two or more persons join together for jointly carrying on some business.

Section 4 of the Indian Partnership Act, 1932 defines partnership as follows: - ‘partnership’ is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all.

Person who have entered into partnership with one another are called individually ‘partner’ and collectively ‘a firm’ and the name under which their business is carried on is called the ‘firm name’.

Essentials of Partnership

(i) there must be an agreement entered into by all the persons concerned;

(ii) the agreement must be to share the profits of a business; and

(iii) the business must be carried on by all or any of the persons concerned acting for all i.e. each partner carries on business for himself as principle and also as an agent for the other partners.

Who can be a partner in a firm?

In terms of Section 11 of the Indian Contract Act, only such persons as are competent to contract, are of sound mind, major and are not disqualified from contracting by any law in force would be entitled to become partner. This would mean that a lunatic, a minor, a firm or a trust who are not persons competent to contract in the eye of law as such would not be entitled to become partners.

The law however, recognizes partnership firm as a distinct personality only for the purpose of income tax by varieties of specific provision under the Income Tax Act. It is also a separate legal entity under Sales-tax law. Further the agreement by a minor is void but he is capable of accepting benefits. In consonance with this position of law, Section 30(1) of the Indian Partnership Act provides that a minor may not be a partner in a firm but with the consent of all the partners for the time being, he may be admitted to the benefits of partnership.

Since the partnership is ‘agreement’ there must be minimum two partners. The Partnership Act does not put any restrictions on maximum number of partners. However, Section 11 of Companies Act prohibits partnership consisting of more than ten members for banking business and twenty members in other businesses, unless it is registered as company under Companies Act, 1956. In the case of a private company the minimum number is two and the maximum is fifty whereas in the case of a public company the minimum number of members should be seven but there is no limit to the maximum number.

Registration of partnership firm.

The Indian Partnership Act does not make registration of a firm compulsory nor does it impose any penalty for non registration of a firm yet Section 69 of the Partnership Act cut short the capacity of unregistered firm and its partner to sue. This disability is too great compelling force to bring the firm to registration.

The application for registration has to be made in the prescribed form and the same has to be accompanied by the prescribed fee. The application must state the following: -

(i) the firm name;

(ii) the place or principal place of business of the firm;

(iii) the names of any other places where the firm carries on business;

(iv) the date when each partner joined the firm;

(v) the names in full and permanent addresses of the partners; and

(vi) the duration of the firm. However, if no period is fixed in the deed of partnership and no provision is made for its determination the partnership shall be deemed to be a partnership at will.

The statement shall be signed by all the partners, or by their agents specially authorized in this regard. Each person signing the statement shall also verify it in the manner prescribed by Section 58(2) of the Partnership Act.

A firm may be got registered at any time after the creation of partnership. It is not necessary that it should be registered at the time of its formation. Once the registration is made it would continue to be valid in the eyes of law until the same was cancelled. There is no need of fresh registration on the death of a partner or when there is otherwise any change in the constitution of the firm. In such cases, it is sufficient to notify the Registrar about the changes so that he could note the same in the relevant register (Girdharmal vs. Dev Rai, AIR 1963 SC 1587).

The Supreme Court in the judgment in Yasin Khan vs. Shreeram Finance Corporation, AIR 1989 SC 1769, considered a case where there was a change in the partners of the firm and since the corresponding change was not notified to the Registrar and therefore, on the date of suit, the current partners were not shown in the Register of Firms, the Apex Court held that the suit was not maintainable. The relevant test would be whether on the date of the suit, the firm was registered and the names of the partners were shown in the Register of Firms. But in Raptakos Brett & Co. Ltd vs. Ganesh Property, (1998) 7 SCC 184, the Supreme Court has observed that even if the suit is filed by an unregistered partnership firm against a third party and is treated to be incompetent as per Section 69 subsection (2) of the Indian Partnership Act, if pending the suit before a decree is obtained, the plaintiff puts its house in order and gets itself registered, the defect in the earlier filing which even though may result in treating the original suit as still born, would no longer survive if the suit is treated to be deemed to be instituted on the date on which registration is obtained. If such an approach is adopted, no real harm would be caused to either side.

When a suit has been dismissed on grounds of non-registration, a fresh suit after the registration of the firm is maintainable. The same is not barred as res-judicata as the dismissal of a suit because of non-registration is not a decision of the case on its merits (Malhotra & Co. vs. Ramesh Mistri, AIR 1971 P&H 212).

If a firm is unregistered, a suit by a partner for the rendition of accounts without a prayer for the dissolution of the firm is not maintainable. In Basantlal vs. Chiranjilal, AIR 1968 Pat 96, one partner of an unregistered firm sued the other partner after the dissolution for recovery of money in respect of accounts between them, it was held that such an action was maintainable after the dissolution of the firm.

In Ramesh Kumar Bhalotta vs. Lalit Kumar Bhalotta, AIR 2001 Pat 174, a partner of an unregistered firm filed a suit against the firm claiming declaration of share, proper administration of firm and rendition of the accounts of the firm. The suit was dismissed as barred under Section 69(1) of the Indian Partnership Act.

The same partner subsequently filed another suit praying for the dissolution of the firm, and the accounts of the dissolved firm. It was held that the subsequent suit was maintainable as it was permissible under Section 69(3)(a) and dismissal of the earlier suit was no bar to the present suit. Moreover, the suit was not barred under Order 2, Rule 2 of the CPC; as the cause of action under the two suits was different.

A suit by unregistered firm is not barred by Section 69(2) of the Partnership Act if a Statutory right is being enforced. In M/s Haldiram Bhujiawala vs. M/s Anand Kumar Deepak Kumar, AIR 2000 SC 1287, the Apex Court has observed that a suit for perpetual injunction to restrain the defendant from infringing plaintiff’s trade mark and passing defendant’s goods as those of the plaintiff, and a claim of damages in that regard, is not barred by Section 69(2) of the Act. Such right does not arise out of contract. In such a case there is enforcement of a statutory right arising under the Trade Mark Act.

If the action against a third party is not based on contract but on tort, fraud or any other wrongful act, the same is not hit by Section 69(2) of the Partnership Act and the action for the same is maintainable. Thus when the action relates to wrongful detention of property, the action being founded on tort rather than contract, the same is maintainable. Similarly, a suit for the recovery of the price of goods obtained by fraud is also maintainable as the action in such a case does not arise out of contract.

Disclaimer: - All the contents are for general use and information. Consult your Lawyer before acting upon these information.

Lease of Immovable Property Under Transfer of Property Act, 1882

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Lease can be of a movable or an immovable property. It is a contractual arrangement calling for the lessee (user) to pay the lessor (owner) for use of an asset.

Under the Transfer of Property Act, 1882 (in short T.P.Act) the subject of “Leases of Immovable Property” is dealt with in Chapter 5.

Section 105 of the Transfer of Property Act, 1882 defines a lease of immovable properties as transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.

Definition of lessor, lessee, premium and rent: - The transferor is called the lessor; the transferee is called the lessee; the price is called the premium; and the money, share, service or other thing to be so rendered is called the rent.

Essential elements of lease: -

(i) immovable property;

(ii) right to enjoy such immovable property;

(iii) the ascertainable duration of the lease;

(iv) the parties that is the transferor and the transferee who are competent to make contract;

(v) the consideration that is premium or rent.

The lease for more than one year cannot be created unless it is registered.

In Anthony vs. K.C.Ittoop & Sons and Others, (2001) 1. M.L.J, 12, the Supreme Court found that there are three interdictions to claim that an instrument can create a valid lease in law.

The first inhibition is that it should be in accordance with the provisions of Section 107 of the Transfer of Property Act. That Section reads as under- A lease of immovable property from year to year, or for any term exceeding one year or reserving a yearly rent, can be made only by a registered instrument.

The second inhibition, as pointed out by the Supreme Court, is Section 17(1)(d) of the Registration Act, which states that where a lease of immovable property from year to year or for any term exceeding one year or reserving an yearly rent, such document should be compulsorily registered.

The third inhibition, as noted by the Supreme Court, is Section 49 of the Registration Act relating to the consequence of non-compliance of Section 17. Section 49(c) contemplates that no document required by Section 17 or by any provision of the Transfer of Property Act to be registered shall be received as evidence of any transaction affecting such property of conferring such power, unless it has been registered.

Nevertheless, the Supreme Court, taking into consideration of the proviso to Section 49 of the Registration Act, found that an unregistered lease deed may be taken as evidence of any collateral transaction not required to be effected by registered instrument.

It is well settled proportion of law that in absence of a registered lease the tenancy at best can be regarded as from month to month. A covenant for renewal contained in a lease does not ipso facto extend the tenure of the lease. If to the renewed lease, the requirements of registration are compulsory, no valid lease would come into existence unless registration is made (Hindustan Petroleum Corporation Ltd. vs. Vummidi Kannan AIR 1992 Mad. 190).

The Delhi High Court in M/s MTZ Industries Ltd vs. Mr. K.C.Khosla, on 6.7.2010 observed that as appellant having become a tenant on a month to month basis after 1.7.1992, the only manner in which he could be evicted from the suit property was by serving upon him a valid legal notice under Section 106 of the Transfer of Property Act. The Court further observed that no particular form is necessary for a notice under Section 106 of the T.P.Act.

If under the document a party gets exclusive possession of the property, prima facie, he is considered to be a tenant; but circumstances may be established which negative the intention to create a lease. The Supreme Court in Associated Hotels of India Ltd vs. R.N.Kapoor, 1960 SCR (1) 368 has observed that- the real test is the intention of the parties- whether they intended to create a lease or license. If an interest in the property is created by the deed it is a lease but if the document only permits another person to make use of the property of which the legal possession continues with the owner, it is a license.

The Supreme Court of India in Pradeep Oil Corporation vs. Municipal Corporation of Delhi &… on 6 April, 2011 has observed that the appellant is in possession of the building in question since 1958. They have been permitted to raise huge constructions and the nature of construction is of wide range. An administration block along with tanks for storing petroleum had been constructed. A boundary wall around installations and administrative block had also been constructed. Admittedly, the grantee is in exclusive possession over the lands in question along with construction thereon without any let or hindrance from the Administration.

Further, the appellant had been continuously carrying on their business without any interference from any quarter whatsoever since 1962. As in the instant case, exclusive possession has been granted, there is a strong presumption in favor of tenancy. That being the case, it is for the appellant to show that despite the right to possess the demised premises exclusive, a right or interest in the property has not been created.

The Supreme Court also notice the undisputed fact that in the present case the parties have agreed that for the purpose of determination of the agreement three calendar months’ notice had to be given. Undoubtedly, such clause in the document in question has a significant role to play in the matter of construction of document. Clearly, if the parties to the agreement intended that by reason of such agreement merely a license would be created such a term could not have been inserted. It is well settled legal position that a license can be revoked at any time at the pleasure of the licensor.

The brief fact of the instant case is as follows: - The appellant had been granted under the Government Grant Act separate and distinct licenses by the President of India acting through Superintendent of Northern Railway, Delhi for the purpose of maintain depot for storage of petroleum products at a yearly license fee of Rs. 20,640/- and Rs. 31,000/- per annum respectively. Under the aforesaid grant, the appellant had been given the right to erect/construct ‘petroleum installation buildings’ consists of petroleum tanks, buildings and other conveniences for receiving and storing therein petroleum in bulk and consequently possession of land has been given.

Consequent to the said agreement the administration granted ‘exclusive possession’ of the said land to the appellant who entered the land for the purpose and the terms mentioned therein in the aforesaid agreement/grant. Consequently, the appellant submitted layout building plans for the construction of the Oil Depot and the standing committee of the Municipal Corporation of Delhi (in short MCD) approved the layout plan for the construction of 10 Oil Storage tanks of petroleum products. Subsequent to that the appellant raised various constructions comprising of an administration block etc. along with huge petroleum storage tanks for storing petroleum products. A boundary wall around the installations and the administrative block was also constructed.

The respondent MCD vide its order dated 17.08.1984 passed an assessment order with regard to the property tax qua the aforesaid property and confirmed the ratable value proposed by it.

The said assessment order was challenged by the appellant before the appellate Court/MCD Tribunal which vide its order dated 17.07.1985 set aside the assessment order passed by the respondent MCD and held that the appellant is only a licensee in the property and is not a tenant, therefore, no property tax can be levied on the appellate under Section 20(2) of the Delhi Municipal Corporation Act, 1957.

Aggrieved by the aforesaid order of the appellate Court, the respondent MCD filed a writ petition. However the said writ petition was dismissed by the Ld. Single Judge of the Delhi High Court on 5.08.1986-held that the grant in favor of the petitioner was a license and hence the petitioner is not liable for the payment of any property tax in respect of the land or the petroleum storage tanks.

Challenging the aforesaid order of Ld. Single Judge, an LPA was filed and subsequently the same was referred to a Full Bench of High Court.

The Full Bench of the High Court vide its impugned judgment and order dated 17.09.2002 held that the petroleum storage tanks are a building and the petitioner was a lessee and not a licensee in the property in question.

The Apex Court upheld the findings of the Full Bench of High Court and held that the documents in question constitutes lease in favor of the appellant-grantee; and accordingly liable to pay taxes.

Section 111 deals with the question of determination of a lease, and in various clauses (a) to (h) methods of determination of a lease of immovable property are provided. In the case of a landlord wishing to evict his tenant under the Rent Acts determination of the lease in accordance with the Transfer of Property Act is unnecessary (V.Dhanapal Chettiar vs. Yesodaiammal, AIR 1979 SC 1745).

Under the Rent Control Act, a tenant can be evicted only on specific grounds enumerated under the specific provisions of the Rent Control Act.

A tenant is not permitted to dispute the title of the landlord. Even if the landlord is himself a trespasser, he can maintain a suit for eviction as against his tenant (Vithalbhai Pvt Ltd vs. Union Bank of India, AIR 1992 Cal 283).

Disclaimer:- All the contents are for general use and information. Consult your Lawyer before acting upon these information.

Res Judicata : Section 11 of the Code of Civil Procedure

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Meaning

Res judicata is the Latin term for “a matter already judged”.

Origin

The Principle of res judicata is founded on the ancient Indian principle of prangnyaya (previous judgment). The principle is stated in “Brihaspati Samriti” as “if a person who has been defeated in a suit according to law files the plaint once again he must be told that he has been defeated already; this is called plea of prang-nyaya”.

Law

Under Code of Civil Procedure (in short CPC), Section 11 incorporates the principle of res judicata which reads as follows: “No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court”.

Conditions

To constitute a matter as res judicata under Section 11, CPC the following conditions must be satisfied-

(i) The matter must be directly and substantially in issue in the former suit and in the latter suit,

(ii) The prior suit should be between the same parties or persons claiming under them,

(iii) The parties should have litigated under the same title in the earlier suit,

(iv) The Court which determined the earlier suit must be competent to try the later suit (subject to Explanation 8 of Section 11 CPC),

(v) The question directly and substantially in issue in the subsequent suit should have been heard and finally decided in the earlier suit (Alka Gupta vs Narendra Kumar Gupta, AIR 2011 SC 9).

Illustrations

(i) A file a suit against B for declaration that he is entitled for certain lands as heirs of C. The suit is dismissed. In a subsequent suit he claims the same property on the ground of adverse possession. The rule of res judicata will not apply, because the issue in the two cases is different. The previous case involved the issue of succession whereas the latter case involved the issue relating to the adverse possession.

(ii) A sues B for possession of certain properties on the basis of a sale deed in his favour. B impugns the deed as fictitious. The plea is upheld and suit is dismissed. A subsequent suit for some other properties on the basis of the same sale deed is barred, as the issue about the fictitious nature of the sale deed was actually in issue in the former suit directly and substantially.

(iii) A files an eviction petition against B, the tenant, on the ground of misuse of the tenanted premises. During the eviction proceedings before the Rent Controller A and B enter into a compromise on the understanding that B shall not misuse the premises and A shall withdraw the suit, on the basis of which the Court granted a compromise decree. Subsequently A files another eviction petition against B on the ground of bona fide requirement. The rule of res judicata will not apply, as the issue is different in the two cases.

Writ petitions

Writ petition under Article 226 dismissed by High Court after hearing on merits, subsequent petition under Article 32 by the same parties and for same reliefs will be barred by principle of res judicata (Direct Recruitment Class II Engineering Officer Association & Others vs. State of Maharashtra, AIR 1990 SC 1607).

Did you know?

(i) The principle of res judicata is not made applicable to cases of habeas corpus petitions. Therefore, even after the dismissal of one petition of habeas corpus, a second petition is maintainable if fresh, new or additional grounds are available.

(ii) The general principles of res judicata apply to different stages of the same suit or proceeding.

(iii) If a petitioner withdraws the petition without the leave of the Court to institute a fresh petition on the same subject matter, the fresh petition is not maintainable.

(iv) An adjudication will operate as res judicata between co-defendants if there is a conflict of interest between them and it is necessary to resolve the same by a Court in order to give relief to the plaintiff and similarly an adjudication will operates as res judicata between co-plaintiff if there is a conflict of interest between plaintiffs and it is necessary to resolve the same by a Court in order to give relief to a defendant.

Case Laws

The Supreme Court in Ashok Leyland Ltd vs. State of Tamil Nadu, (2004) 3 SCC 1 has observed that the principle of res judicata is a procedural provision. A jurisdictional question if wrongly decided would not attract the principle of res judicata. When an order is passed without jurisdiction, the same becomes a nullity. When an order is a nullity, it cannot be supported by invoking the procedural principles like, estoppels, waiver or res judicata.

A rule of procedure cannot supersede the law of the land (Mathura Prasad vs. Dossibai, AIR 1971 SC 2355).

In M. Nagabhusana vs. State of Karnataka, AIR 2011 SC 1113, the Apex Court has observed that the doctrine of res judicata is not technical doctrine but a fundamental principle which sustains rule of law in ensuring finality in litigation. The principle of res judicata are of universal application as it is based on two age old principles, namely “interest reipublicae ut sit finis litium” which means that it is in the interest of the state that there should be an end to litigation and the other principle is “nemo debet lis vexari si constat curiae quod sit pro una et eadem causa” meaning thereby that no one ought to be vexed twice in a litigation if it appears to the Court that it is for one and the same cause.

In Prahlad Singh vs. Col. Sukhdev Singh, AIR 1987 SC 1145, the Supreme Court has held that interlocutory decisions given by a Court at earlier stage is binding on the subsequent stage of the suit.

Interlocutory judgments which have the force of a decree must be distinguished from other interlocutory judgments which are a step towards the decisions of the dispute between parties by way of a decree or a final order.

An interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken could be challenged in an appeal from the final decree or order.

Disclaimer: All the contents are for general use and information. Consult your Lawyer before acting.

Trail of Warrant Cases by Magistrate : Sections 238 to 250 CrPC

2014-02-16T04:08:00.000-08:00

What is trail?

Trail has not been defined in the Code of Criminal Procedure (in short CrPC). Framing of charge is the nascent stage of the trail. Virtually, trail begins from the stage of framing of charge.

If any crime takes place then its first stage would be investigation, in which a police officer either by himself or under order of a Magistrate investigates into a case, and he sends up the case to a Magistrate.

Then begins second stage, which is an inquiry into the case by Magistrate. If no prima facie case is made out, the Magistrate dismisses the complaint or discharges the accused. If he is of a contrary opinion, he frames a charge. At the initial stage of framing of a charge, the Court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trail, could prove him guilty. All that the Court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage. All proceedings before Magistrate, before framing the charge can be termed as inquiry.

Now the third and final stage is reached when the charge is framed and the trails begins, and it is the third stage i.e. trail where the Magistrate or Sessions Judge decides the accused either convict or acquit him. Trail includes all the steps, which a Criminal Court adopts subsequent to the framing of charge and until the pronouncement of judgment. If in a proceeding the Court has no power to convict or acquit, it is no trail.

For trail of warrant cases by Magistrate two procedures are prescribed: - one is adopted by Magistrate in cases instituted on police report (Sections 238 to 243 and 248, CrPC) and other is for cases instituted otherwise than on police report (Sections 244 to 250, CrPC).

The essential difference of procedure in the trail of warrant case on the basis of a police report and that instituted otherwise than on the police report, is particularly marked in Sections 238 and 239 CrPC on one side and Sections 244 and 245 CrPC, on the other.

Under Section 238 CrPC, when in a warrant case, instituted on a police report, the accused appear or is brought before the Magistrate, the Magistrate has to satisfy himself that he has been supplied the necessary documents like police report, FIR, statements recorded under sub-section (3) of Section 161 CrPC of all the witnesses proposed to be examined by the prosecution, as also the confessions and statements recorded under Section 164 CrPC and any other documents, which have been forwarded by the prosecuting agency to the Court. After that, comes the stage of discharge, for which it is provided in Section 239 CrPC that the Magistrate has to consider the police report and the documents sent with it under Section 173 CrPC and if necessary, has to examine the accused and has to hear the prosecution of the accused, and if on such examination and hearing, the Magistrate considers the charge to be groundless, he would discharge the accused and record his reason for so doing. The prosecution at that stage is not required to lead evidence. If, on examination of aforementioned documents, he comes to the prima facie conclusion that there is a ground for proceeding with the trail, he proceeds to frame the charge. For framing the charge, he does not have to pass a separate order. After framing a charge under Section 240 CrPC, the Magistrate has to proceed under Section 242 CrPC and under sub-section (3) of that Section the Magistrate is bound to proceed to take all such evidence as may be produced in support of the prosecution. This provision and the provisions in sub-section (1) and (2) of the Section 243, CrPC are mandatory. It is only after due compliance of the provisions in Sections 242 and 243 that an order of conviction or acquittal can be passed under Section 248, CrPC. Thus, in such trail prosecution has only one opportunity to lead evidence and that too comes only after the charge is framed.

However, in a warrant trail instituted otherwise than on a police report, when the accused appears or is brought before the Magistrate under Section 244(1) CrPC, the Magistrate has to hear the prosecution and take all such evidence, as may be produced in support of the prosecution. In this, the Magistrate may issue summons to the witnesses also under Section 244(2), CrPC on the application by prosecution. All these evidence is evidence before charge. It is after all this, evidence is taken, and then the Magistrate has to consider under Section 245(1) CrPC, whether any case against the accused is made out, which, if unrebutted, would warrant his conviction, and if the Magistrate comes to the conclusion that there is no such case made out against the accused, the Magistrate proceeds to discharge him. On the other hand, if he is satisfied about the prima facie case against the accused, the Magistrate would frame a charge under Section 246(1) CrPC. The complainant then gets the second opportunity to lead evidence in support of the charge unlike a warrant trail on police report, where there is only one opportunity. Thereafter, under Section 247 CrPC, the accused shall be called upon to enter upon his defence and to produce his evidence. In the warrant trail instituted otherwise than the police report, the complainant gets two opportunities to lead evidence, firstly, before the charge is framed and secondly, after the charge.

Case laws

In Harinarayan G. Bajaj vs. State of Maharashtra, (2010) 11 SCC 520, the Supreme Court held that the right of an accused to cross-examine witnesses produced by the prosecution before framing of a charge against him was a valuable right. It was only through cross-examination that the accused could show to the Court that there was no need for a trail against him and that the denial of the right of cross-examination under Section 244, CrPC would amount to denial of an opportunity to the accused to show to the Magistrate that the allegations made against him were groundless and that there was no reason for framing a charge against him.

In State of Kerala vs. Sebastain, 1983 Cr LJ 416, the Kerala High Court held that once the charge has been framed, the Magistrate is bound to proceed further with the trail and then he cannot discharge the accused. Framing of charge against the accused is an order affecting the interest of the accused and the Magistrate cannot review his own order. Subordinate Courts have no inherent powers and cannot reverse their own orders. After framing the charge the Magistrate cannot dismiss the complaint nor can discharge the accused.

In Sunil Mehta vs. State of Gujarat, (2013) 9 SCC 209, the issue before the Supreme Court was whether depositions of the complainant and his witnesses recorded under chapter 15 of the Code of Criminal Procedure before cognizance is taken by the Magistrate would constitute evidence for the Magistrate to frame charges against the accused under part B of chapter 19 of the said Code. The Supreme Court has observed – chapter 15 deals with the filing of complaints, examination of the complainant and the witnesses and taking of cognizance on the basis thereof with or without investigation and inquiry, whereas chapter 19 parts B deals with trail of warrant cases instituted otherwise than on a police report. There is nothing either in the provisions of Sections 244, 245 and 246 or any other provision of the Code to even remotely suggest that evidence which the Magistrate may have recorded at the stage of taking of cognizance and issuing of process against the accused under chapter 15 tantamount to evidence that can be used by the Magistrate for purposes of framing of charges against the accused persons under Section246 thereof without the same being produced under Section 244 of the Code. Under Section 244, CrPC the accused has a right to cross-examine the witnesses and in the matter of Section 319, CrPC when a new accused is summoned, he would have similar right to cross-examine the witness examined during the inquiry afresh. The power to frame charges in terms of Section 246 has to be exercised on the basis of the evidence recorded under Section 244, CrPC.

Disclaimer : All the contents are for general use and information. Consult your Lawyer before acting.

Complaint Case : Sections 200 to 204 of Cr PC

2014-02-01T07:39:00.003-08:00

What is criminal complaint?

Section 2 (d) of the Code of Criminal Procedure (in short Cr PC) defines the term ‘complaint’ as any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.

Explanation: - A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant.

Every day experience of the Courts shows that many complaints are ill founded, and it is necessary therefore that they should at the very start be carefully considered and those which are not on their face convincing should be subjected to further scrutiny so that only in substantial cases should the Court summon the accused person. An order summoning a person to appear in a court of law to answer a criminal charge entails serious consequences. Therefore, Sections 200 to 203, Cr PC have been enacted for weeding out false, frivolous and vexatious complaints aimed at harassing the accused person. However, these sections are exclusively applicable in cases where the cognizance is taken on a complaint under Section 190 (1)(a), Cr PC. Such special procedure is not needed in cases where cognizance has been taken on a police report under Section 190 (1) (b) of Cr PC.

On receipt of a complaint a Magistrate has several courses open to him. He may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present under Section 200, Cr PC. Thereafter if in his opinion there is no sufficient ground for proceeding he may dismiss the complaint under Section 203, Cr PC. If in his opinion there is sufficient ground for proceeding he may issue process under Section 204, Cr PC. However, if he thinks fit, he may postpone the issue of process and either inquire into the case himself or direct an investigation to be made by a police officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding(Section 202, Cr PC). He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding.

On the other hand, in the first instant, on receipt of a complaint, the Magistrate may, instead of taking cognizance of the offence, order an investigation under Section 156(3), Cr PC. The police will then investigate and submit a report under Section 173(1), Cr PC. On receiving the police report the Magistrate may take cognizance of the offence under Section 190 (1) (b) and straightaway issue process. This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not. The police report under Section 173 will contain the facts discovered or unearth by the police and the conclusion drawn by the police therefrom. The Magistrate is not bound by the conclusion drawn by the police and he may decide to issue process even if the police recommend that there is no sufficient ground for proceeding further. The Magistrate after receiving the police report, may, without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present under Section 200, Cr PC and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he has earlier ordered an investigation under Section 156(3), Cr PC and received a report under Section 173, Cr PC will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding under Sections 200, 203 and 204 of the Cr PC.

Thus, a Magistrate who on receipt of a complaint, orders an investigation under Section 156(3) and receives a police report under Section 173(1), may, thereafter, do one of three things:

(i) He may decide that there is no sufficient ground for proceeding further and drop action;

(ii) He may take cognizance of the offence under Section 190 (1) (b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report;

(iii) He may take cognizance of the offence under Section 190 (1) (a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. If he adopts the third alternative, he may hold or direct an inquiry under Section 202, Cr PC if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be.

Case Law

Francis Savio vs. Kerala 1998 Cr LJ 4735

In drafting a criminal complaint, there is no specific provision either in the Criminal Procedure Code or in the rules framed there under as to how a criminal complaint has to be drafted. What we should see in the criminal complaint is whether the entire substance of the complaint prima facie, makes out an offence said to have been committed, or whether there is a ground to presume on the entire reading of the substance of the complaint that the offence is likely to have been committed.

M/s. Nova Electricals, Jalgaon vs. State of Maharashtra and Anr. 2007 Cr LJ 535

The Bombay High Court has observed that the verification of the complainant as required under Section 200 of the Cr PC is not a mere formality and the Magistrate has to ascertain thereby whether the complaint is genuine or frivolous. It is further held that for omission by the Court to record verification, the complainant cannot be penalized for it and on that ground the complaint cannot be quashed. Omission by Court to record verification and/or examining the complainant on oath, at the most can be said to be an irregularity and the same can be cured subsequently.

Manharibhai Muljibhai Kakadia vs. Shaileshbhai Mohanbhai Pale (2012) 10 SCC 517

The Apex Court has observed: - where complaint has been dismissed by the Magistrate under Section 203 of the Cr PC, upon challenge to the legality of the said order being laid by the complainant in a revision petition before the High Court or the Session Judge, the person who are arraigned as accused in the complaint have a right to be heard in such revision petition. If the Revisional Court overturns the order of the Magistrate dismissing the complaint and the complaint is restored to the file of the Magistrate and it is sent back for fresh consideration, the person who are alleged in the complaint to have committed crime, have, however, no right to participate in the proceedings nor they are entitled to any hearing of any sort what so ever by the Magistrate until the consideration of the matter by the Magistrate for issuance of process.

Santokh Singh vs. Geetanjali Wollen Pvt. Ltd. 1993 Cr LJ 3744 (P&H)

An order of dismissal under Section 203 of Cr PC is no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances.

Mahesh Chand vs. Janardhan Reddy, AIR 2003 SC 702

The Supreme Court has observed that the second complaint on the same facts could be entertained only in exceptional circumstances, namely, where the previous order was passed on an incomplete record or on a misunderstanding of the nature of complaint or it was manifestly absurd, unjust or where new facts which could not, with reasonable diligence, have been brought on record in the previous proceedings, have been adduced.

Abdul Hamid Khan vs. State 1989 Cr LJ 468

The Gujarat High Court has held that merely because the Magistrate has not examined all the witnesses named in complaint as prosecution witness at the time of holding enquiry under Section 202 of Cr PC in a case exclusively triable by Session Court, the order of issuing process against accused cannot be said to be void or illegal.

If process is issued on a complaint under Section 204 of Cr PC even if wrongly and no offence is made out the Court which passed the order, cannot entertain any application for recalling its own order. Neither provisions of Section 203 nor 245(2) of Cr PC provides. Appropriate remedy would be revision or quashing under Section 482 Cr PC.

Whether the Special Judge/Magistrate is justified in referring a private complaint made under Section 200, Cr PC for investigation in exercise of powers conferred under Section 156(3) Cr PC without the production of a valid sanction order under Section 19 of the Prevention of Corruption Act, 1988.

The Supreme Court of India in Anil Kumar vs. M K Aiyappa on 1 Oct 2013 has observed that:- A Special Judge referring the case for investigation under Section 156(3) Cr PC is at pre-cognizance stage and if the law requires sanction, and the Court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab-initio.

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Criminal Revision : Sections 397 to 401 of Cr PC.

2013-12-27T09:12:00.004-08:00

In cases where no appeal has been provided by law or in cases where the remedy of appeal has for any reason failed to secure fair justice the criminal procedure code ( in short Cr PC ) provides for another kind of review procedure, viz. revision. Revision lies both in pending and decided cases and it can be filed before a High Court or a Court of Session. Very wide discretionary powers have been conferred on the Sessions Court and the High Court.

The object of the revision is to confer upon superior criminal courts a kind of paternal or supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions of apparent harshness of treatment which has resulted on the one hand in some injury to the due maintenance of law and order, or on the other hand in some undeserved hardship to individuals.

The purpose of revision is to enable the revision court to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of the inferior criminal court.

The revisional jurisdiction is derived from three sources :-

(1) Section 397 to 401 of the Cr PC;

(2) Article 227 of the Constitution of India;

(3) The power to issue the writ of certiorari.

Under Section 397(1) of the Cr PC, the High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, Sentence or order, recorded or passed, and as to the regularity of any Proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any Sentence order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

Under Section 398 Cr PC, the revision Court may make an order for further inquiry. Further inquiry entails supplemental inquiry upon fresh evidence. The power under Section 398, Cr PC is not co-extensive with Section 397, Cr PC but extends far wider as the record can ‘otherwise’ be examined by the revision Court without recourse to Section 397, Cr PC.

Section 399, Cr PC deals with Sessions Judge’s power of revision. Under sub section (1), the Sessions Judge, in the case of any proceeding the record of which has been called for by himself under Section 397(1), may exercise all or any of the powers which are exercisable by the High Court under Section 401(1) of the Code of Criminal Procedure.

Section 401(1) of the Cr PC reads as follows: - In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 392.

The Allahabad High Court in Om Pratap Singh vs. State 1995 Cr LJ 3887 has observed: - the revisional power of this Court under Sections 397 and 401, Cr PC is a kind of supervisory jurisdiction in order to prevent miscarriage of justice arising from the mis-conception of law or irregularity of procedure committed by the subordinate Courts. These two Sections do not confer unfettered jurisdiction on this Court for reappraisal of evidence. In fact, the revisional power of this Court is to see that justice is done in accordance with the recognized rules of criminal jurisprudence and the subordinate Courts do not exceed their jurisdiction or abuse their powers vested in them under the Code of Criminal Procedure.

High Court in a revision is empowered to interfere with an order of acquittal and direct fresh trail. While High Court sitting in appeal under Section 386 of the code, can convert finding of acquittal into one conviction, Section 401, subsection (3) debars conversion of acquittal into conviction. High Court, however, would not disturb a finding of fact unless it appears that trail court shut out any evidence, or overlooked any material evidence or admitted inadmissible evidence or where there has been manifest error on a point of fact.

Circumstances in which retrial may be ordered, without being exhaustive are

(i) where trail court has no jurisdiction to try a case;

(ii) where trail court has wrongly shut out evidence which prosecution sought to produce;

(iii) where material evidence has been overlooked;

(iv) where acquittal is based on a compounding of the offence which is invalid under law;

(v) where the appellate court has wrongly held evidence admitted by trail court as inadmissible.

In State of Maharashtra vs. Jagmohan Singh Kuldip Singh and Others, 2004 (7) SCC 659, the Supreme Court has held: - ‘in exercise of revisional power High Court cannot undertake in-depth and minute re-examination of entire evidence and upset concurrent findings of trail court and appellate court.'

Where accused was acquitted without considering material evidence with inconsistent and faulty reasoning and probative value of FIR was also ignored, High Court was justified in directing retrial (Ayodhya Dube vs. Ram Sumer Singh, AIR 1981 SC 1415).

Who can invoke the revisional jurisdiction?

Section 397(1) of the Cr PC does not say on whose motion Court may call for the records of the lower Court, but subsection (3) indicates that an aggrieved party may make an application. So far as High Court is concerned, Section 401(1) expressly authorizes the court to exercise power of revision suo motu apart from the application from a party. The complainant is entitled to move a revision even if state does not. When there was acquittal of the accused that was charged on a police report and the state did not file an appeal against it, the informant, since he had no right of appeal against the order, was held to be competent to apply for a revision.

The revisional jurisdiction when involved by a private complainant against an order of acquittal ought not to be exercised lightly and that it could be exercised only in exceptional case where the interest of public justice require interference for the correction of a manifest illegality or the prevention of a gross miscarriage of justice (Kaptan Singh vs. State of Madhya Pradesh (1997) 4 supreme 211).

However there are two limitations: -

(1) Section 399(3) of Cr PC provides that in a case where any application for revision is made by or on behalf of any person before the Sessions Judge, no further proceeding by way of revision at the instance of such person shall be entertained by the High Court.

Suppose a proceeding under Section 145 Cr PC between X and Y terminated before the magistrate in favor of X. The criminal revision of Y before the Sessions Judge was dismissed. A criminal revision before the High Court at the instance of Y shall not be entertained. In the same illustration if Y’s criminal revision before the Sessions Judge was allowed, a criminal revision to the High Court against the order of the Sessions Judge at the instance of X is maintainable.

(2) In a case where under the Code of Criminal Procedure an appeal lies but no appeal is brought, then according to Sub-section (4) of Section 401, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.

While Courts might have expressed different view on the scope of the bar under Sub-section (4) of Section 401, there can be no dispute that suo motu power of the court is not at all affected by the bar in sub-section (4) of Section 401.

Whether where a power is exercised under Section 397 of Cr PC, the High Court could exercise those very powers under Section 482, Cr PC.

Inherent power of the Court can be exercised when there is no remedy provided in the Code of Criminal Procedure for redressal of the grievance. It is true that Section 397(2) clearly bars the jurisdiction of the Court in respect of interlocutory orders passed in appeal, inquiry or other proceedings. The matter is however, no longer res integra as the entire controversy has been set at rest by a decision of the Apex Court in Madhu Limaye vs. State of Maharashtra (1978) 1 SCR, 749, where Apex Court pointed out that Section482 of the Cr PC had a different parameter and was a provision independent of Section 397(2).

In the case of Raj Kapoor vs. State (1980) 1 SCC 43, Justice Krishna Iyer, while distinguishing the power of the High Court under Section 397 vis-a-vis Section 482 of Cr PC observed that Section 397 or any of the provisions of Cr PC will not affect the amplitude of the inherent power preserved in Section 482.

The Apex Court in Mohit vs. State of UP (2013) 7 SCC, 789, observed that any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order. Orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trail cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court.

Disclaimer : All the contents are for general use and information. Consult your lawyer before acting.

Arrest how made and rights of arrested person

2013-11-22T10:27:00.000-08:00

What is ‘arrest’?

The term ‘arrest’ is not defined either in the Procedural Acts or in the various Substantive Acts, though Section 46, Cr.P.C., lays down the mode of arrest to be effected.

The word ‘arrest’ is derived from the French ‘Arreter’ meaning ‘to stop or stay’ and signifies a restraint of the person.

Stroud's Judicial Dictionary, 4^th Edition, volume 1, at page 184, defines the word as follows: ‘arrest’, is when one is taken and restrained from his liberty.

Black’s Law Dictionary gives the following definition- ‘arrest’: to deprive a person of his liberty by legal authority. Taking, under real or assumed authority, custody of another for the purpose of holding or detaining him to answer a criminal charge or civil demand.

According to the text book ‘The Criminal Prosecution in England’ by Patrick Devlin- The police have no power to detain any one unless they charge him with a specified crime and arrest him accordingly. Arrest and imprisonment are in law the same thing. Any form of physical restraint is an arrest and imprisonment is only a continuing arrest. If an arrest is unjustified, it is wrongful in law and is known as false imprisonment.

Winn, L.J., in R vs. Palfrey; R vs. Sadler (1970) 2 All ER 12, when delivering the judgment of Court of which Lord Parker, C.J., was a member, said, in explaining the term ‘arrest’ : ‘It is not a question whether or not certain conditions precedent have been satisfied. The question is merely whether or not he is a person who is under arrest; whether he is under arrest or not depends on whether he is free to go as he pleases, or has been told that he is in a state of custody’.

Mode of Arrest

The modality of arrest as contemplated under Section 46 of CrPC is that while making an arrest a police officer or other person making the same

(1) should actually touch the body of the person to be arrested or
(2) should actually confine the body of the person to be arrested.

These kinds of modality of arrest are not necessary in case the person intended to be arrested submits, either by words or by action, to the authority of the arrester.

The arrest should not only be legal and justified but it should be effected strictly according to the procedure established by law. Article 21 of the Indian Constitution provides- No person shall be deprived of his life or personal liberty except according to procedure established by law. The procedure contemplated by this Article must be ‘right, just and fair’ and not arbitrary, fanciful or oppressive.

The Criminal Procedure Code contains various provisions by and under which various authorities and private persons are empowered to arrest. An analysis of the provisions under the Code shows that a person may be arrested by

(1) A police officer without a warrant under Sections 41(1) and 151; under a warrant under Sections 72 and 74; under the written order of an officer in charge of a police station under Sections 55 and 157; under the orders of Magistrate under Section 44 and in non-cognizable offence under Section 42;

(2) A superior police officer under Section 36;

(3) An officer in charge of a police station under Sections 41(2) and 157;

(4) A Magistrate under Section 44;

(5) A military officer under Sections 130 and 131; and

(6) A private person without warrant under Section 43; under a warrant under Sections 72 and 73; under the orders of the police officer under Section 37; and under the orders of a Magistrate under Sections 37 and 44.

Rights of Arrested person

Under the Cr.P.C., the police has been given various powers for facilitating the making of arrest, but these powers are subject to certain restraints. The imposition of the restraints can be considered, to an extent, as the recognition of the rights of the arrested person. The various rights of the arrested person are as follows:

(1) Right to know the grounds of arrest

According to Section 50(1) Cr.P.C., every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.

Section 50(2) of Cr.P.C. provides that in case of bailable offences, the arrested person shall be informed by the police officer, that he is entitled to be released on bail. This is also a constitutional right guaranteed under Article 22(1) of the Indian constitution- No person who is arrested shall be detained in custody without being informed as soon as may be, of the grounds for such arrest.

It may be noted that if the arrest is made by a Magistrate without a warrant under Section 44, the case is covered neither by any of the Sections 50, 55 and 75 nor by any other provisions in the code requiring the Magistrate to communicate the grounds of arrest to the arrestee. However, in practice, the Magistrate would still be bond to state the grounds under Article 22(1) of the Constitution.

(2) Right to be taken before a magistrate without delay.

The person making the arrest must bring the arrested person before a judicial officer without necessary delay. It is also provided that the arrested person should not be confined in any place other than a police station before he is taken to the Magistrate (Section 56 Cr.P.C.).

(3) Right of not being detained for more than 24 hours without judicial scrutiny.

An arrested person has the right to be brought before a Magistrate within a period of not more than 24 hours of arrest (Section 57 Cr.P.C.; Article 22(2) of the Constitution).

(4) Right to consult a legal practitioner/Legal Aid.

The Constitution as well as the Code of Criminal Procedure recognizes the right of every arrested person to consult a legal practitioner of his choice (Article 22(1) of the Constitution; Section 303 of the Cr.P.C.).

(5) Right to be examined by a Medical Practitioner. Section 54, Cr.P.C., gives the accused the right to have him medically examined to enable him to defend and protect himself.

The Apex Court in D.K. Basu vs. State of West Bengal AIR 1997 SC 610 laid down certain basic requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as a measure to prevent custodial violence. These requirements are in addition to the constitutional and statutory safeguards and do not detract from various other directions given by the courts from time to time in connection with the safeguarding of the rights and dignity of arrestee. Some of the directions are as follows :

(1) the police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations.

(2) The police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.

(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation center or other lock-up shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

Disclaimer- All the contents are for general use and information. Consult your lawyer before acting.

Review : Section 114, Order 47 CPC

2013-10-08T11:52:00.002-07:00

What is Review?

Review literally and even judicially means re-examination or re-consideration of its own decision by the very same court. Basic philosophy inherent in it is the universal acceptance of human fallibility. An application for review may be necessitated by way of invoking the doctrine ‘actus curiae neminem gravabit’ which means an act of the court shall prejudice no man. The other maxim is, ‘lex non cogit ad impossibillia’ which means the law does not compel a man to do that what he cannot possibly perform.

Section 114 of the Code of Civil Procedure (in short CPC) provides for a substantive power of review by a civil court and consequently by the appellate courts. Section 114 of the code although does not prescribe any limitation on the power of the court but such limitations have been provided for in Order 47, Rule 1 of the CPC.

The grounds on which review can be sought are enumerated in Order 47, Rule 1 CPC, which reads as under:

Application for review of judgment

(1) Any person considering himself aggrieved

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the court which passed the decree or made the order.

So the circumstances when review lies are

(a) cases in which appeal lies but not preferred,

(b) cases in which no appeal lies,

the grounds are

(i) discovery of new and important matter or evidence, or

(ii) mistake or error apparent on the face of the record, or

(iii) any other sufficient reason.

Scope of an application for review is much more restricted than that of an appeal. The Supreme Court in Lily Thomas vs. Union of India, AIR 2000 SC 1650 held that the power of review can only be exercised for correction of a mistake and not to substitute a view and that the power of review could only be exercised within the limits of the statute dealing with the exercise of such power. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained.

For review an application has to be made by the aggrieved party. Where an appeal has been preferred a review application does not lie. But an appeal may be filed after an application for review. In such event the hearing of the appeal will have to be stayed. If the review succeeds the appeal becomes infructuous.

After the amendment in Section 141 of the Code of Civil Procedure and insertion of Explanation to that Section it is clear that the provisions of Order 47 of the code do not apply to writ petitions filed in a High Court under Article 226 of the Constitution. However, there are definitive limits to the exercise of the power of review by the High Courts.

The legal propositions set out by the Apex Court in Gujarat University vs. Sonal P. Shah, AIR 1982 Guj 58, are as follows:-

(1) The provisions of the Civil Procedure Code in Order 47 are not applicable to the High Court’s power of review in proceedings under Article 226 of the Constitution,

(2) The said powers are to be exercised by the High Court only to prevent miscarriage of justice or to correct grave and palpable errors. (The epithet ‘palpable’ means that which can be felt by a simple touch of the order and not which could be dugout after a long drawn out process of argumentation and ratiocination).

(3) The inherent powers, though ex facie plenary, are not to be treated as unlimited or unabridged, but they are to be invoked on the grounds analogous to the grounds mentioned in Order 47, Rule 1; namely:

(i) discovery of new evidence,

(ii) existence of some mistake/error,

(iii) analogous ground.

These are the very three grounds referred to in Order 47, Rule 1 CPC and by declaration of law at the hands of the Supreme Court in the above case they are the hedges or limitations of the High Court’s power.

Review by the Supreme Court:

The provisions of Order 47 apply to orders passed under the Code of Civil Procedure. Article 137 of the Constitution confers power on the Supreme Court to review its judgments subject to the provisions of any law made by Parliament or the Rules made under clause (c) of Article 145. The power of the Supreme Court, therefore, cannot be curtailed by the Code of Civil Procedure.

Disclaimer: All the contents are for general use and information. Consult your lawyer before acting.

Section 154 CrPC : The First Information Report

2013-07-15T11:38:00.001-07:00

What is the First Information Report (in short FIR) and what are the options with you when a police officer-in-charge of the police station or any other police officer, acting under the directions of the officer-in-charge of police station refuses to register FIR?

Let us first understand what is the First Information Report?

An information given under sub-section (1) of section 154 CrPC is commonly known as first information report though this term is not used in the Criminal Procedure Code (in short CrPC). It is the earliest and the first information of a cognizable offence recorded by an officer-in-charge of a police station. It sets the criminal law in motion and marks the commencement of the investigation which ends up with the formation of opinion under section 169 or 170 CrPC, as the case may be, and forwarding of a police report under section 173 CrPC. It is quite possible and it happens not infrequently that more information than one are given to a police officer-in-charge of a police station in respect of the same incident involving one or more than one cognizable offences. In such a case he need not enter every one of them in the station house diary and this is implied in section 154 CrPC. Apart from a vague information by a phone call, the information first entered in the station house diary, kept for this purpose, by a police officer-in-charge of a police station is the first information report- FIR postulated by section 154 CrPC. All other information made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the first information report and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under section 162 CrPC. No such information/statement can properly be treated as an FIR and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of CrPC.

Take a case where an FIR mentions cognizable offence under section 307 or 326 IPC and the investigating agency learn during the investigation or receive fresh information that the victim died, no fresh FIR under section 302 IPC need be registered which will be irregular; in such a case alteration of the provision of law in the first FIR is the proper course to adopt.

Let us consider a different situation in which H having killed W, his wife, informs the police that she is killed by an unknown person or knowing that W is killed by his mother or sister, H owns up the responsibility and during investigation the truth is detected, it does not require filing of fresh FIR against H – the real offender who can be arraigned in the report under section 173(2) or 173(8) of CrPC, as the case may be.

Purpose and Object.

The purpose of registration of FIR is manifold that is to say
(1) to reduce the substance of information disclosing commission of a cognizable offence, if given orally, into writing.
(2) If given in writing to have it signed by the complainant.
(3) To maintain record of receipt of information as regards commission of cognizable offences.
(4) To initiate investigation on receipt of information as regards commission of cognizable offence.
(5) To inform Magistrate forthwith of the factum of the information received.

The principal object of the FIR from the point of view of the informant is to set the criminal law in motion and from the point of view of the investigating authorities is to obtain information about the alleged criminal activity so as to be able to take suitable steps to trace and bring to book the guilty.

Evidentiary value of FIR.

FIR is not a piece of substantive evidence. It can be used only for limited purposes, like corroborating under section 157 of the Evidence Act or contradicting (cross-examination under section 145 of Evidence Act) the maker thereof, or to show that the implication of the accused was not an after-thought. It can also be used under section 8 and section 11 of the Evidence Act. Obviously, the FIR cannot be used for the purposes of corroborating or contradicting or discrediting any witness other than the one lodging the FIR. It cannot be used for corroborating the statement of a third party. If the FIR is of a confessional nature it cannot be proved against the accused-informant, because according to section 25 of the Evidence Act, no confession made to a police officer can be proved as against a person accused of any offence. But it might become relevant under section 8 of the Evidence Act.

What you will do when police officer refuse to register FIR?

The police cannot refuse to register the case on the ground that it is either not reliable or credible (Smt. Gurmito vs. State of Punjab And Ors 1996 CriLJ 1254 P&H). Further, refusal to record FIR on the ground that the place of crime does not fall within the territorial jurisdiction of the police station, amount to dereliction of duty. Information about cognizable offence would have to be recorded and forwarded to the police station having jurisdiction (State of Andhra Pradesh vs. Punati Ramulu And Others, AIR 1993 SC 2644).

When a police officer-in-charge of a police station or any other police officer, acting under the directions of the officer-in-charge of police station refuses to register information, any person aggrieved by such refusal may send in writing and by post, the substance of such information disclosing a cognizable offence, to the Superintendent of Police under section 154(3) or to the Magistrate concerned under section 156(3) of the CrPC. It is the duty of the officer-in-charge of the police station to register an FIR when investigation under section 156(3) of CrPC is directed by the Magistrate, even when the Magistrate explicitly does not say so (Mohd. Yoysuf vs. Afaq Jahan, (2006), SCC 627).

Latest Case Law

Whether a police officer is bound to register a First Information Report (FIR) upon receiving any information relating to commission of a cognizable offence under Section 154 of the Code of Criminal Procedure, 1973 or the police officer has the power to conduct a 'preliminary inquiry' in order to test the veracity of such information before registering the same?

The Supreme Court of India, in Lalita Kumari vs. Govt. of UP on 12 November, 2013 held that 'the police must compulsorily register the FIR on receiving a complaint if the information discloses a cognizable offence, and no preliminary inquiry is permissible in such a situation'.

If the information does not disclose a cognizable offence but indicates the necessity for an inquiry 'a preliminary inquiry may be conducted only to ascertain whether a cognizable offence is disclosed or not'. In cases where preliminary inquiry ends in closing the complaint a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/family disputes;
(b) Commercial Offences;
(c) Medical negligence cases;
(d) Corruption Cases;
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry. A preliminary inquiry should be made time bound, and in any case it should not exceed seven days.

Punishment for giving false information.

Punishment for giving false information to the police is dealt with by sections 182, 203 & 211 of IPC. Even if such information is not reduced to writing under Section 154(1) of CrPC, the person giving the false information may nevertheless be punished for preferring a false charge under section 211 of IPC. A police officer refusing to enter in the diary a report made to him about the commission of an offence, and instead making an entry totally different from the information given, would be guilty under Sections 166A and 177 of IPC.

Some Useful Email ID for Online Complaint

Did you know, in Dhanbad you can make/lodge your complaint/FIR online through Email ID of respective police stations which are as follows:-

1. Baghmara PS Dhanbad........................................................dnbps-baghmara@jhpolice.gov.in

2. Baliapur PS Dhanbad...........................................................dnbps-baliapur@jhpolice.gov.in

3. Barora PS Dhanbad.............................................................dnbps-barora@jhpolice.gov.in

4. Bank More PS Dhanbad......................................................dnbps-bankmore@jhpolice.gov.in

5. Barwadda PS Dhanbad........................................................dnbps-barwadda@jhpolice.gov.in

6. Chirkunda PS Dhanbad........................................................dnbps-chirkunda@jhpolice.gov.in

7. Dhanbad PS Dhanbad..........................................................dnbps-dhanbad@jhpolice.gov.in

8. Dhansar PS Dhanbad...........................................................dnbps-dhansar@jhpolice.gov.in

9. Govindpur PS Dhanbad........................................................dnbps-govindpur@jhpolice.gov.in

10. Hariharpur PS Dhanbad.....................................................dnbps-hariharpur@jhpolice.gov.in

11. Jharia PS Dhanbad.............................................................dnbps-jharia@jhpolice.gov.in

12. Jogta PS Dhanbad.............................................................dnbps-jogta@jhpolice.gov.in

13. Jorapokhar PS Dhanbad....................................................dnbps-jorapokhar@jhpolice.gov.in

14. Loyabad PS Dhanbad........................................................dnbps-loyabad@jhpolice.gov.in

15. Katras PS Dhanbad...........................................................dnbps-katras@jhpolice.gov.in

16. Kenduadih PS Dhanbad.....................................................dnbps-kenduadih@jhpolice.gov.in

17. Mahuda PS Dhanbad.........................................................dnbps-mahuda@jhpolice.gov.in

18. Maduban PS Dhanbad.......................................................dnbps-madhuban@jhpolice.gov.in

19. Nirsa PS Dhanbad.............................................................dnbps-nirsa@jhpolice.gov.in

20. Saraidhela PS Dhanbad.....................................................dnbps-saraidhela@jhpolice.gov.in

21. Putki PS Dhanbad.............................................................dnbps-putki@jhpolice.gov.in

22. Sudamdih PS Dhanbad......................................................dnbps-sudamdih@jhpolice.gov.in

23. Tetulmari PS Dhanbad.......................................................dnbps-tetulmari@jhpolice.gov.in

24. Sindri PS Dhanbad............................................................dnbps-sindri@jhpolice.gov.in

25. Patherdih PS Dhanbad......................................................dnbpd-patherdih@jhpolice.gov.in

26. Topchanchi PS Dhanbad...................................................dnbps-topchanchi@jhpolice.gov.in

27. Tundi PS Dhanbad............................................................dnbps-tundi@jhpolice.gov.in

28. Tisra PS Dhanbad.............................................................dnbps-tisra@jhpolice.gov.in

29. Rajganj PS Dhanbad.........................................................dnbps-rajganj@jhpolice.gov.in

AND

Email ID of SP Dhanbad is.......................................................sp-dhanbad@jhpolice.gov.in

Further, in Bihar/Jharkhand during travelling through train i.e. in running train you can make/lodge your complaint with respect to any crime/misbehaving online to sp-rlypat-bih@nic.in ( Railway Minister twitter handle is https://twitter.com/sureshpprabhu )by mentioning your train number, coach number, birth number along with your address and mobile number. Prompt action is to be taken by the Railway.

You may also use security helpline number issued by Railway Board which is 1800111322 or lodge your FIR on telephone number 1512.

Quiz Corner

(i) First Information Report

(a) relates to cognizable or non-cognizable offence

(b) is given to a magistrate or police officer

(d) may be given to the District Magistrate.

(ii) Under Section 154(3) of crpc, if the officer-in-charge of a police station refuses to record the first information, the aggrieved person may send, in writing and by post, the substance of such information to the

(a) District Magistrate

(b) Judicial Magistrate

(d) any one of the above.

(iii) FIR is not a substantive evidence, it can be used during trail

(a) to corroborate the informant

(b) to contradict the informant

(d) neither (a) nor (b).

(iv) When information is given to an officer-in-charge of a police station of the commission, within the limits of such station, of a non-cognizable offence, he shall

(a) reduce it into writing and read it over to the informant

(b) enter the substance of the information in a book kept by such officer and shall take signature of informant

(d) none of the above.

Disclaimer:All the contents are for general use and information. Consult your lawyer before acting.

Mutation or Dakhil-Kharij

2013-02-01T19:41:00.000-08:00

In Jharkhand there are more than 210 Anchal or Block Offices where CO (circle officer) will sit and he may be authorized to sanction mutations in respect of holdings within his jurisdiction. The Land Reforms Deputy Collectors i.e. L.R.D.C. will have powers to hear mutation appeals from the orders of a Circle Officer. The L.R.D.C. will also have powers to file certificate cases. The A.C. (Additional Collector) have supervision power over the D.C.L.R. and C.O.

Land reforms, land tenure, land records, consolidation of holding related matters are the subject of Department of Land Reforms. Recovery of claims in respect of arrears of Land Revenue is also the subject matter of the department of Revenue and Land Reforms.

Mutation (in Hindi Dakhil-Kharij) is the recording of a transfer of title of a property from one person to another in the revenue records. Registration is one part and mutation is second. After registry, mutation is needed. Mutation is a Must. It is because of mutation that your name (as the owner of house) comes in Nagar Nigam Records. Compensation is given to farmers based on the mutation records and not on the registry records. If person ‘A’ has registry in his name of a piece of land AND for the same land mutation is in the name of person ‘B’, then Government will give compensation to person ‘B’ and not ‘A’.

For mutation, approach Anchal/Block Office of the area where the land is situated with mutation charges and application on a plain paper, along with Non-judicial Stamp of maximum of Rs. 5/- containing the following information (i) the name of the village in which the right has been acquired; (ii) the description of the right acquired; (iii) the name, parentage, caste and residence of the person from whom the right has been acquired; (iv) the manner in which the right has been acquired; (v) the name, parentage, caste and residence of the person who has acquired the right; and (vi) the date on which the right was acquired. Copy of document on the basis of which the mutation is sought e.g. Sale Deed, Will etc.

On your application, Circle Officer has to act within a month that is either he accept your application or reject it on some technical ground but when he reject your mutation application on technical ground, he shall communicate the reason thereof.

Disclaimer: All the contents are for general use and information. Consult your lawyer before acting.

Police Investigation and Charge Sheet

2013-01-02T12:20:00.002-08:00

What is Charge sheet?

When the investigation is complete, the police officer is required to submit a report under Section 173 of the Code of Criminal Procedure (in short Cr PC) to the Magistrate stating the name of the parties, the nature of information, etc. This report is known as the ‘charge-sheet’ or ‘challan’ if a prima facie case is made out against the accused or ‘Final Report’ if no such case is made out. Charge-sheet forms the basis of the case in the Court.

Under Section 173 (2) (i), as soon as the investigation is completed, the officer-in-charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the prescribed form stating:

(a) the name of the parties,

(b) the nature of the information,

(d) whether any offence appears to have been committed and if so, by whom,

(e) whether the accused has been arrested,

(f) whether he has been released on his bond and if so, whether with or without sureties,

(g) whether he has been forwarded in custody under Section 170, Cr PC.
(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under Sections 376, 376A, 376B, 376C or 376D of the Indian Penal Code.

Section 173 (2) (ii) provides that the officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.

According to Section 2(h) of Cr PC, 'investigation' includes all the proceedings under the Code for the collection of evidence conducted by the police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.

The Supreme Court in H.N.Rishbud vs. State AIR 1955 SC 196, has viewed the investigation of an offence as generally consisting of-

(i) proceeding on the spot;

(ii) ascertainment of the facts and circumstances of the case;

(iii) discovery and arrest of the suspected offender;

(iv) collection of evidence relating to the commission of the offence which may consist of –

(a) the examination of various persons (including the accused) and the reduction of their statements into writing,

(b) the search of places or seizure of things considered necessary for the investigation or to be produced at the trail; and

(v) formation of the opinion as to whether on the materials collected there is a case to place the accused before a Magistrate for trail, and if so, taking the necessary steps for the same by the filing of a 'charge sheet’ under Section 173 Cr PC.

After the completion of the investigation, it is for the investigating police officer to form an opinion as to whether or not there is a case to place the accused before the Magistrate for trail. He would then follow the procedure laid down in Section 169 or 170 Cr PC and submit a report under Section 173 of Cr PC. The Magistrate receiving the report has no power to direct the police to submit a particular kind of report; if he considers the conclusions reached by the police officer as incorrect, he may direct the police officer to make further investigation under Section 156 of Cr PC.

The police report under Section 173, Cr PC will contain the facts and the conclusions drawn by the police there from. The Magistrate is expected to apply his judicial mind to the report and he is not bound by the conclusions drawn by the police. He may differ with the police report, be it a ‘charge-sheet’ (or ‘final report’). He may decide to issue process even if the police recommend that there is no sufficient ground for proceeding further (H.S. Bains vs. State 1981 SCR (1) 935).

In Kaptan Singh & others vs. State of M.P. (1997) 4 SC 211, the Apex Court observed : it is trite that result of investigation can never be legal evidence. Police report submitted under Section 173 Cr PC is the outcome of an investigation. The result of investigation under Chapter xii of the Criminal Procedure Code is a conclusion that an investigating officer draws on the basis of materials collected during investigating and such conclusion can only form the basis of a competent court to take cognizance thereupon under Section 190(1)(b) Cr PC and to proceed with the case for trail, where the materials collected during investigation are to be translated in to legal evidence. The trail conclusion solely on the evidence adduced during the trail; and it cannot rely on the investigation or the result thereof.

Power of police to conduct further investigation, even after laying final report, is recognized under Section 173(8) of Cr PC (Sri BSSVVV Maharaj vs. State of UP 1999 CrLJ 3661 SC).

When a power under sub section (8) of Section 173 of Cr PC is exercised, the Court ordinarily should not interfere with the statutory powers of the investigating agency. The Court cannot issue directions to investigate the case from a particular angle or by a particular agency (Popular Muthiah vs. State 2006 (7) SCC 296).

But in State of Punjab vs. CBI and others (2011) 11 SCR 281, where the state local police was unable to carry out investigation due to involvement of state political leaders and senior police officers, the Supreme Court observed that in a case where charge sheet has been filed, Section 173(8) of Cr PC cannot limit or affect the inherent powers of the High Court to pass an order under Section 482 of Cr PC for fresh investigation or re-investigation if the High Court is satisfied that such fresh investigation or re-investigation is necessary to secure the ends of justice.

Disclaimer: All the contents are for general use and information. Consult your lawyer before acting.

Gang Rape, Punishment & Rules of Evidence in the Context of The Criminal Law (Amendment) Act, 2013

2012-12-26T09:39:00.002-08:00

When a woman is raped by one or more of a group of persons, acting in furtherance of their common intention, each of such person is deemed to have committed gang rape (Section 376 D, IPC).

Punishment for rape: Section 376 of Indian Penal Code (in short IPC) talks about the punishment for rape. The minimum punishment for rape is rigorous imprisonment of either description for a term which shall not be less than 7 years, but which may extend to imprisonment for life, and shall also be liable to fine(Section 376 (1), IPC) and that for custodial rape, rape on a pregnant woman, rape on a woman under 16 years of age is rigorous imprisonment for a term which shall not be less than 10 years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine(Section 376(2), IPC ).

Further Section 376A, IPC says that whoever, commits an offence punishable under sub-section (1) or sub-section (2) of Section 376 and in the course of such commission inflicts an injury which causes the death of the woman or causes the woman to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than 20 years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, or with death.

Punishment for gang rape under Section 376D, IPC is rigorous imprisonment for a term which shall not be less than 20 years, but which may extend to life which shall mean imprisonment for the remainder of that person's natural life, and with fine provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim. Provided further that any fine imposed under this Section shall be paid to the victim.

Punishment for repeat offenders is given under Section 376E, IPC which reads as whoever has been previously convicted of an offence punishable under Section 376 or Section 376A or Section 376D and is subsequently convicted of an offence punishable under any of the said Sections shall be punished with imprisonment for life which shall mean imprisonment for the remainder of that person's natural life, or with death.

Rules of evidence:- Under the Indian Evidence Act,1872, ‘Evidence’ means and include all statements which the Court permit or requires to be made before it by witnesses, in relation to the matters of fact under inquiry. Under Section 59, all facts, except the contents of documents, may be proved by oral evidence. Section 134 says- no particular number of witnesses shall in any case be required for the proof of any fact. Section 118 then tells us who may give oral evidence. According to that Section all persons are competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Even in case of an accomplice Section 133 provides that he shall be competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. However illustration (b) to Section 114, which lays down a rule of practice, says that the Court ‘may’ presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. Thus under Section 133, which lays down a rule of law, an accomplice is a competent witness and a conviction based solely on his uncorroborated evidence is not illegal although in view of Section 114, illustration (b), Courts do not as a matter of practice do so and look for corroboration in material particulars. This is the conjoint effect of Section 133 and 114, illustration (b).

A woman who has been raped is not an accomplice and therefore she cannot be put on par with an accomplice. Thus, for a conviction for rape, corroboration of the testimony of the raped woman is not necessary. In Bharwada Bhogibhai Hirjibhai vs. State of Gujarat, 1983 Cr LJ 1096, the Gujarat High Court observed- corroboration is not the sine qua non for a conviction in a rape case. As a rule of prudence, the Court normally looks for some corroboration of her testimony so as to satisfy its conscience that she is telling the truth and that the person accused of rape has not been falsely implicated.

Ordinarily the evidence of a prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence; unless there are special circumstances which call for greater caution, in which case it would be safe to act on her testimony if there is independent evidence lending assurance to her accusation.

The circumstances in which the corroboration of the testimony of the victim of a rape would be necessary have been explained in State of Maharashtra vs. Chandraprakash Kewal Chand Jain AIR 1990 SC 658. The Supreme Court observed: to insist on corroboration except in rarest of rare cases is to equate a woman who is a victim of lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated.

In State of Punjab vs. Gurmit Singh and others, 1996 Cr LJ 1728, the Apex Court observed: the testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Court should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases, amounts to adding insult to injury. Why should the evidence of a girl or a woman, who complains of rape or sexual molestation, is viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge leveled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration, notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape.

The importance of medical evidence has been explained by the Supreme Court in Prithi Chand vs. State of H.P, AIR 1989 SC 702. If the evidence of victim does not suffer any basic infirmity, and, the probability-factor does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected, to be forthcoming. Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is likelihood of her having leveled such an accusation on account of the instinct of self-preservation or when the probability-factor is found to be out of tune.

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