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Complaint Seeking An Action Under Sub-Section (3) Of Section 156 Of Cr.P.C., The Learned Magistrate Cannot Act Mechanically: High Court of Bombay

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Title : Satish Panchariya v The State of Maharashtra

Citation : WP-1009-2012

Decided On: 4th November, 2023.

Coram: Justice A. S. Gadkari And Justice Shyam C. Chandak.

Introduction:

The Petitioners have invoked jurisdiction of the Court under Article 226 of Constitution of India read with Section 482 of the Criminal Procedure Code [for short “Cr.P.C.”] for quashing of M.E.C.R. No. 2 of 2012, registered with Malad Police Station, Mumbai, in furtherance of Order dated 9th January, 2012 passed by the learned Additional Chief Metropolitan Magistrate, 24th Court, Borivali, Mumbai in C.C. No.04/SW/2012.

Facts:

The learned Magistrate by its impugned Order dated 9th January, 2012, while directing the Police to conduct investigation under Section 156(3) of Cr.P.C., has himself admitted that without applying judicious mind to the case, he has passed the said Order by relying on the decision of the Hon’ble Supreme Court in the case of Shrinivas Gundluri and Ors v/s. SEPCO Electric Power Constructions Corporation & Ors. It is the settled position of law and as has been enunciated by this Court in the case of Sayed Anwar Ahmed & Anr. vs. The State of Maharashtra & Anr., reported in 2017 SCC OnLine Bom 3972, while dealing with the complaint seeking an action under Sub-Section (3) of Section 156 of Cr.P.C., the learned Magistrate cannot act mechanically. He is required to apply his mind to the contents of the complaint and the documents produced along with the complaint. That, an Order passed on the said complaint must record reasons in brief which should indicate application of mind by the Magistrate. However, it is not necessary to record detailed reasons.

There is another facet to the present Petition. In the complaint the Respondent Nos. 3 and 4 have represented themselves to be the authorized representatives of the Respondent No.2, Company for filing the said complaint and persuading the learned Magistrate in passing the impugned Order dated 9th January, 2012. The Authorised Representative/Director of Respondent No.2, Company, namely Retired Wing Commander Ajai Sharma has filed an Affidavit on behalf of Respondent No.2 dated 3rd April, 2012, duly affirmed before the Assistant Registrar of this Court.

he Respondent No.2 has not filed any complaint against any person and has also not authorised any person to file any complaint. That, the complaint bearing C.C. No. 04/SW/2012 filed before the learned Additional Chief Metropolitan Magistrate, 24th Court, Borivali, Mumbai, is without the knowledge of the Company and the Board of Respondent No.2 never passed any resolution to file any complaint or authorized Respondent No.3 to file any such complaint. That, the said complaint is filed without any authorization and without knowledge, consent or assent of the Board of Directors.

Court’s Analysis and Judgement:

The court held that a priori that, it is apparent that the Respondent Nos.3 and 4, has filed the said complaint without having any lawful authority. It is clearly a sheer sheer abuse of process of law adopted by Respondent Nos. 3 and 4 in the name of Respondent No.2 and as continuation of the said proceedings, would cause undue harassment and agony to the Petitioners for no illegal act committed by them.

The Court also did  not appreciate the mode and manner in which the impugned Order dated 9th January, 2012 is mechanically passed by the learned Magistrate, which is in utter disregard to the settled principles of law. Hence the order dated 9th January 2012 is quashed and set aside by the Court.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written By : Sanjana Ravichandran

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Legal Conundrum: POCSO Act vs. SC/ST Act – The Bombay High Court’s Perspective

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Case Title – Dinanath Manik Katkar v. State of Maharashtra and Anr.

Anticipatory Bail Application No. 2589 of 2023

CORAM: N. J. JAMADAR, J.

Decided on: 13th September 2023

Introduction

In a recent landmark judgment, the Bombay High Court weighed the conflicting provisions of the Protection of Children from Sexual Offences (POCSO) Act and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, sending ripples through the legal community. The court’s decision hinges on the critical issue of anticipatory bail when allegations under the POCSO Act are not prima facie established against the accused. In this blog, we delve into the background, the court’s decision, and the implications of this ruling.

Facts of the case

The petitioner sought pre-arrest bail in a criminal case under multiple IPC sections, the POCSO Act of 2012, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act) of 1989, and the Atrocities Act. The atrocities based on caste, sexual harassment, and violence were among the charges. The trial judge rejected the accused’s request for anticipatory bail. He therefore went to the high court. Instead of filing an appeal under Section 14A of the Atrocities Act, he requested anticipatory bail under Section 438 of the CrPC.

The Legal Conundrum

The crux of the matter lies in the conflict between these two statutes when an individual accused of a sexual offense against a child seeks anticipatory bail. The question at hand is whether the provisions of anticipatory bail in the POCSO Act should prevail over the SC/ST Act when allegations under the POCSO Act are not prima facie established.

In its recent judgment, the Bombay High Court has held that the provisions of anticipatory bail in the POCSO Act would not prevail over the provisions of appeal in the SC and ST (Prevention of Atrocities) Act if the allegations under the POCSO Act are not prima facie made out against the accused.

The court reasoned that the SC/ST Act, being a special legislation, must be given precedence in cases involving individuals from these marginalized communities. It cited the principle of harmonious construction of statutes and the need to protect the rights and interests of SC/ST communities as the basis for its decision.

Implications of the Judgment

The judgment underscores the importance of safeguarding the rights of individuals from SC/ST communities. It ensures that the special provisions of the SC/ST Act are not diluted when cases involve multiple statutes. This ruling sets a legal precedent that may influence similar cases in other jurisdictions. Courts in India may consider this decision when dealing with conflicts between different statutes. The judgment highlights the significance of interpreting laws in a manner that upholds the principles and objectives of each statute, especially when they seem to overlap. The Bombay High Court’s decision provides clarity on the legal procedures to be followed when allegations under the POCSO Act are not immediately substantiated, especially when an accused seeks anticipatory bail.

The Atrocities Act’s Section 14A supersedes the Criminal Procedure Code by stating that any judgement, sentence, or order, as well as the granting or refusing of bail by a Special Court, may be appealed to the High Court. An accused person under the Atrocities Act is prohibited from filing an anticipatory bail application under section 438 of the CrPC, according to section 18 of the Act. In the event of any conflict, the POCSO Act’s non-obstante clause, included in Section 42A, will take precedence over all other laws.

The court stated that when two statutes contain non-obstante clauses, the later enactment is deemed to prevail since it is inferred that the legislature was aware of the earlier statute and decided to give the later statute superseding force. The court made it clear that in order for this concept to be applicable, the offences that are punishable by the later law (in this example, the POCSO Act) must be prima facie proven. Some claims involved crimes covered by the Atrocities Act, like insulting a Scheduled Caste member’s modesty and caste-based abuse. Additionally, it was claimed that the defendant purposefully videotaped girls dancing in a procession. The court concluded that this did not constitute a prima facie case under the POCSO Act.

In order to avoid violating Section 438 of the CrPC, the court instructed the petitioner to submit an appeal as provided for in Section 14A of the Atrocities Act.

The applicant was granted permission by the court to turn the anticipatory bail application into an Atrocities Act appeal. The court allowed the applicant the freedom to bring up the issue before the relevant bench and ordered the necessary changes to be made as soon as possible.

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Written by- Shivanshi Singh, NMIMS Law School Mumbai

 

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Understanding the First Information Report-(FIR)

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INTRODUCTION

The First Information Report, commonly referred to as FIR, which is a crucial legal document to initiate a criminal proceedings. It serves as the primary information to the law enforcement agencies to record the information about the alleged criminal activity. This article aims to clear the understanding of FIR, exploring its significance, procedure of filing FIR and role of FIR in the criminal justice system.

 

What is an FIR?

An FIR is written document which records the information about the cognizable offences like robbery, murder, theft, etc.

Procedure of filing an FIR.

In India the FIR is governed by the Code Of Criminal Procedure, 1973. Section 154. of the Cr.P.C. deals with the Information in cognizable cases. According to the section, informer will go to the officer in charge of Police Station and will give him the information about the cognizable offence. The information may be oral or in writing. If the information given to the officer is oral then Officer in Charge will write it down after that he will read out the whole complaint to the informer and will take the sign of the informer on the FIR which Officer has written down. One copy of FIR must be given to the informer free of cost and Officer has to maintain the FIR in his diary for the record as the State Government may prescribe in this behalf.

Provided that if the information is given by the women against whom an offence under section 326A, section 326B, section 354, section 354A, section 354B, section 354C, section 354c, section 354D , section 376, section 376A, section 376AB,  section 376B, section 376C, section 376D, section 376DA, section 376DB, section 376E, or section 509 of the Indian Penal Code (45 of 1860) alleged to have been committed or attempted , then such information shall be recorded by women police officer.

In the event that the person against whom an offence under section 354, section 354A, section 354B, section 354C, section 354D, section 354, section 376, section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB, section 376E or section 509 of Indian Penal Code ( 45 of 1860),  is alleged to have been committed or attempted , is temporarily or permanently mentally or physically disabled then in such cases the such information shall be recorded at the residence of such person who seeking to report such offences or at the choice of place of such person in the presence an interpreter or a special educator as the case may be

Section 155. of the Code of Criminal Procedure, 1973 deals with FIR in non- cognizable offences, in non –cognizable offences the informer or the complainant will go to the officer in charge of the police station and will give him the information about the alleged offence in written form or orally and will write it down and seek the permission of Magistrate to investigate the matter, without the order of Magistrate there is no power to investigate in the matter.

If the information has given to the officer in charge of the police station contain the information of cognizable and non-cognizable offences then the information will be dealt as cognizable offence.

Step to be taken if the police do not register FIR

According to the sub section 3 of section 154 of The Code of Criminal Procedure, 1973. If any person aggrieved by refusal on the part of an officer in charge of a police station to record the FIR as referred in sub section 1 of the code, may send the substance of such information , in writing and by post to the Superintendent of Police concerned, who if satisfied that the information discloses the commission of cognizable offence , shall either investigate the case himself or direct an investigation made by any police officer subordinate to him.

Cases

In Lalita Kumari v. State of U.P. , (2013)

The court orders that officer in charge of police station is bound to register an FIR, and within 24 hours of time span officer has to update the copy of FIR on online portal of the State where FIR can be shown.

“  PRIME LEGAL is a full- service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best consumer lawyer, best civil lawyer.”

Written by:- Aamir Hussain

References:

The Code of Criminal Procedure, 1973 (2 OF 1974), UNIVERSAL’S BARE ACT.

The Code of Criminal Procedure , 1973 (2 of  1974), RATANLAL & DHIRAJLAL.

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BHARATIYA NAGARIK SURAKSHA SANHITA BILL, 2023: An Overview

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ABSTRACT

This research paper critically examines the significance, motivations, and implications of the Bharatiya Nagarik Suraksha Sanhita Bill of 2023, which aims to replace the outdated Criminal Procedure Code of 1898 with comprehensive changes across its 533 sections, including amendments to 160 sections, introduction of 9 new sections, and repeal of 9 sections. The bill’s introduction aligns with India’s transition from 75 to 100 years of independence, resonating with the Prime Minister’s call to eliminate remnants of subjugation and infuse an authentic Indian essence into the criminal justice system. The paper analyzes proposed amendments like technological integration, communication tools, protective measures, and handcuff regulations, as well as provisions related to mercy petitions, non-arrest sampling, police detention, and trials in absentia. While acknowledging the bill’s commendable efforts to modernize the system and expedite legal proceedings, the paper also highlights potential drawbacks, including evidence misuse, privacy concerns, and challenges in implementation. It concludes by stressing the need for a balanced approach that upholds individual rights while enhancing justice delivery through holistic legal reforms.

INTRODUCTION

In a significant move aimed at modernizing and strengthening India’s legal infrastructure, Mr. Amit Shah, the Minister of Home Affairs and Minister of Cooperation, took an exceptional stride by presenting three revolutionary bills in the Lok Sabha on August 11, 2023. These legislative proposals comprise the Bhartiya Nyaya Sanhita Bill 2023, the Bharatiya Nagarik Suraksha Sanhita Bill 2023, and the Bharatiya Sakshya Bill 2023, demonstrating the resolute dedication of the government to reforming the criminal justice system. By emphasizing the replacement of outdated laws inherited from the colonial era—the Indian Penal Code of 1860, the Criminal Procedure Code of 1898, and the Indian Evidence Act of 1872—these bills indicate a profound shift towards a legal framework that is fair, impartial, and centered around the well-being of citizens.

The Bharatiya Nagarik Suraksha Sanhita Bill of 2023, intended as a substitute for the Criminal Procedure Code of 1898, initiates comprehensive modifications within its 533 segments. It is noteworthy that the bill makes revisions to 160 sections, introduces 9 novel sections, and abolishes 9 sections.

The unveiling of these legislations occurs amidst a period characterized by swift technological progress, shifts in societal dynamics, and evolving international norms. The current regulations, established during the British colonial period, have frequently faced censure for their antiquated nature and lack of relevance to modern requirements. The fresh bills mirror the administration’s desire to harmonize the legal framework with the demands of the 21st century, highlighting legal architectures that prioritize citizens, encompass gender neutrality, embrace digital modernization, and emphasize justice as opposed to mere punitive measures.

ANALYSIS

 

WHAT PROMPTED THE INTRODUCTION OF THE BHARATIYA NAGARIK SURAKSHA SANHITA BILL?

The Azadi ka Amrit Mahotsav will conclude on August 15, 2023, marking the transition from 75 to 100 years of India’s independence, commencing on August 16. During his speech on August 15, 2022, from the Red Fort, the Prime Minister of India outlined the Panch Pran, or five vows, before the nation. Among these, one pledge is to eliminate all remnants of subjugation.

Spanning from 1860 to 2023, India’s legal framework for the criminal justice system persisted based on statutes enacted by the British Parliament. In light of this historical context, three bills have been introduced, aligning with the fulfillment of one of the five vows – infusing a distinct Indian essence to catalyze substantial transformation within the country’s criminal justice system.

SEVERAL KEY ALTERATIONS SUGGESTED IN THE PROPOSED AMENDMENTS TO THE CRPC INCLUDE:

  • Enhanced Technological Integration: The proposed amendments emphasize an increased utilization of technology in legal proceedings. This includes conducting trials, appeal procedures, and recording depositions, including those of public officials and law enforcement personnel, through electronic means. Accused individuals’ statements can also be documented via video conferencing. Electronic formats may be employed for summonses, warrants, documents, police reports, and statements of evidence.
  • Incorporation of Communication Tools: The bill introduces the concept of electronic communication, encompassing “communication devices.” As per court or police directives, individuals may be required to present any digital evidence-containing document or device for investigative purposes.
  • Handcuff Use Regulation: In cases involving repeat offenders who have escaped custody or committed serious crimes like organized criminal activities, terrorism, or offenses against the state, police officers may be authorized to employ handcuffs during arrests.
  • Specific Protective Measures: A prominent safeguard against arrests, currently outlined in Section 41A of the CrPC, will be renumbered as Section 35 and revised. An additional clause mandates that individuals cannot be arrested without prior permission from an officer ranked no lower than Deputy Superintendent of Police (DSP) if the offense carries a punishment of less than 3 years or if the individual is over 60 years old.
  • Mercy Petitions Framework: The bill establishes procedures concerning the timeframes for submitting mercy petitions in cases involving death sentences. Following notification from prison authorities about the disposal of a death row convict’s petition, the convict, their legal heir, or relative can submit a mercy petition to the Governor within 30 days. If denied, the person can appeal to the President within 60 days. No legal recourse against the President’s decision is permissible.
  • Prosecution Sanction: The government must decide on granting or denying sanction to prosecute a public servant within 120 days of receiving a request. Failure to do so will result in automatic sanction being assumed. Sanction is not mandated in cases involving offenses such as sexual crimes or trafficking.
  • Procession-Related Regulations: While the provisions empowering district magistrates under Section 144 of the CrPC remain unchanged, the power to prohibit carrying arms during processions, mass drills, or training sessions is omitted from Section 144A.
  • Non-Arrest Sampling: The proposed amendments permit magistrates to order individuals to provide samples of their signature, handwriting, voice, or finger impressions for investigative purposes without necessitating their arrest.
  • Police Detention Provisions: Provisions are outlined to empower the police to detain or remove individuals who resist, refuse, or ignore lawful directives during preventive actions.
  • In Absentia Trials: The framework for trials in absentia is outlined, particularly in stringent anti-terrorism legislation like the Unlawful Activities (Prevention) Act (UAPA). In such cases, the burden of proof shifts to the accused, requiring them to prove their innocence rather than the state having the responsibility to prove guilt.

 

IMPORTANCE OF THE BHARATIYA NAGARIK SURAKSHA SANHITA BILL:

This legislation holds immense significance as it aims to consolidate and modify the legal provisions governing criminal procedures. It introduces explicit timelines for expeditious investigations, trials, and verdicts, ensuring a swift dispensation of justice.

The bill’s essence lies in its commitment to hastening the delivery of justice, a crucial aspect in today’s fast-paced world. It aligns seamlessly with the Digital India initiative of the government, embracing the use of technology to enhance legal processes. For instance, the bill grants admissibility to digital or electronic records as evidence, granting them the same legal weight and enforceability as traditional paper records.

A notable feature is its focus on citizen-centricity, exemplified by the provision for promptly supplying a First Information Report (FIR) to complainants. Furthermore, victims are kept informed about case progress through digital means.

The bill introduces the concept of a summary trial for minor offenses, enabling a swifter resolution in such cases. Additionally, the innovation of a ‘Zero FIR’ is significant. This provision empowers individuals to lodge an FIR at any police station, transcending jurisdictional limitations. Moreover, it mandates the transfer of this FIR to the appropriate police station within 15 days, ensuring efficient handling of cases regardless of the location of the crime.

 

DISADVANTAGES OF THE BHARATIYA NAGARIK SURAKSHA SANHITA BILL:

While the Bharatiya Nagarik Suraksha Sanhita Bill brings about notable reforms in the criminal justice system, it is crucial to critically examine its potential drawbacks and concerns. These disadvantages can raise questions about the effectiveness and impact of the proposed changes:

  • Potential for Misuse: The increased use of technology, while beneficial in many ways, can also open avenues for manipulation and misuse. The admissibility of digital evidence might inadvertently allow fabricated or tampered evidence to be presented, raising questions about the reliability and authenticity of such records.
  • Privacy Concerns: The greater emphasis on electronic communication and digital records could potentially infringe upon individuals’ privacy rights. The collection and storage of electronic evidence raise concerns about data security and the potential for unauthorized access or breaches.
  • Summary Trials and Fairness: While summary trials are meant to expedite proceedings, they might compromise the principles of a fair trial. The swift resolution of cases might not allow adequate time for gathering evidence, cross-examination, or presenting a comprehensive defense, potentially leading to unjust outcomes.
  • Zero FIR Implementation Challenges: The provision of filing a ‘Zero FIR’ at any police station, although seemingly progressive, might pose practical challenges in terms of coordination between different police stations and determining the appropriate jurisdiction for investigation. The transfer of cases within 15 days might not always be feasible, causing delays and confusion.
  • Lack of Judicial Oversight: The bill places considerable responsibility on law enforcement agencies to decide whether to arrest an individual or not. This might lead to situations where the threshold for arrests becomes arbitrary, potentially resulting in the violation of individual rights and liberties.
  • Absence of Comprehensive Torture Prevention: The bill falls short in addressing comprehensive measures to prevent torture and custodial violence, which are significant concerns. The focus on speedy justice should not come at the expense of safeguarding the rights and dignity of individuals in custody.

 

CONCLUSION

In conclusion, while the Bharatiya Nagarik Suraksha Sanhita Bill presents commendable efforts to modernize and streamline India’s criminal justice system, it is important to acknowledge the potential disadvantages that come with such extensive reforms. Striking a balance between expeditious justice delivery and safeguarding individual rights is a delicate task. As the legal community and society as a whole engage in discussions surrounding these proposed changes, it is imperative to carefully address these concerns and ensure that the spirit of justice prevails, upholding both the rule of law and the protection of citizens’ rights.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by- Mansi Malpani

 

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maintenance

The Karnataka High Court Ruled Section 125 Of The Crpc Does Not Necessitate A Wife To Demonstrate A ‘Valid Reason For Living Apart’ From Her Husband.

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Title: Smt. Renuka & Ors. v Sri Venkatesh

Case No: RPFC No. 100033/2020

Date of Order: 31-07-2023

CORAM : HON’BLE JUSTICE C M POONACHA

INTRODUCTION

The Dharwad Bench of the Karnataka High Court has ruled that establishing a valid reason for living apart is not necessary in maintenance cases under Section 125 of the Criminal Procedure Code, 1973 (Cr.P.C).

FACTS OF THE CASE

Smt. Renuka (“Petitioner/Wife”) and Sri Venkatesh (“Respondent/Husband”) are in a marital relationship. The Wife initiated legal proceedings under Section 125 of the Criminal Procedure Code (Cr.P.C.) to request financial support (maintenance) from her Husband. On November 14, 2018, the Trial Court rejected the petition, stating that the wife did not provide any evidence indicating her willingness to live with the Husband or proving that the Husband deliberately neglected her maintenance.

Subsequently, the Wife appealed this decision to the High Court.

According to Section 125 (Order for maintenance of wives, children, and parents), if an individual with sufficient financial means neglects or refuses to provide support, a first-class Magistrate, upon establishing this neglect or refusal, can order that person to pay a monthly allowance for the upkeep of their wife, child, father, or mother. The amount of the allowance is determined by the Magistrate and must be paid to the designated recipient as directed by the Magistrate.

COURT’S ANALYSIS

Referring to Section 125 of the Criminal Procedure Code (Cr.P.C.), the Court stated that a person can seek maintenance if they can show neglect or refusal to provide support. The Court emphasized that maintenance cases do not require proving a sufficient reason for living separately. The Court explained that Section 125 is designed for summary proceedings, focusing on demonstrating negligence or refusal to provide maintenance, without delving into reasons for living apart.

The Court acknowledged the unquestionable marital relationship between the Petitioner and Respondent. However, it held that the reasons for their separation cannot be addressed in maintenance proceedings and should not be decided upon.

The Court rejected the husband’s claim that he did not neglect his responsibility to provide for his wife and children, noting that this claim cannot stand since they are living separately, and the husband cannot insist that they live with him to receive maintenance.

Highlighting that Section 125 Cr.P.C. proceedings are of a summary nature and do not conclusively determine the parties’ rights and obligations, the Court overturned the Trial Court’s decision. The Family Court was directed to consider the parties’ claims on their merits and determine the appropriate amount of maintenance to be paid.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by- Shreya Sharma

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