#IPC Archives - Page 7 of 8

9 Jul

Law and Custodial Death.

Articles # Illegal detention, #CrPc, #Custodial deaths, #Harassment, #IPC, #Judicial Custody, #laws, #Police Custody, #rape, #The Constitution of India

The death of a person in custody violates the basic rights of the citizens recognized by the Constitution of India. Typically, it is difficult to secure evidence against the police responsible for adopting third-degree methods since they are in charge of the police station records. The guidelines given by the Supreme Court under various cases provide protection such as the right to be informed about the grounds of arrest, the right to bail, the right to appoint a person to be informed of the arrest and place of detention, etc. The Constitution of India also provides various rights to a person in custody.

Introduction:

Custodial death is one of the most heinous crimes in a civilized society regulated by the Rule of Law. Sometimes, custodial death happens due to not providing proper care at a proper time, due to complications of physical torture by police and some deaths remain suspicious. Custodial death in terms of Human Rights is a wretched offense. Custodial violence is the most prominent factor responsible for deaths in prisons and lock-ups. The incident of custodial death in the world’s greatest democracy has risen. Our Constitution has set out fundamental rights to guarantee certain basic rights and liberties to the citizens. The toll of deaths in police custody is on the rise in the past decade. Many deaths have happened while in custody but no attention has been paid so far. The National Human Rights Commission has proposed that in custodial death cases the police officer in charge must be held liable and not the state. In India, police lock-ups are managed by the police, and such incidents are possible only by their actions. Thus, custodial death is an important issue for a country like India.

Custodial Death

The death of a person while in the custody of the police or judiciary will amount to Custodial Death. Custodial Death can happen due to Negligence by the concerned authorities in any form of torture or cruel, inhuman, or degrading treatment by the police officers whether it occurs due to investigation or interrogation, unlawful detention of a person more than a stipulated time, and so on. Prisoners are entitled to fundamental rights under the Indian Constitution while they are in custody. They are not deprived of basic human rights except those which are curbed by the court.

Custodial death generally refers to death either in police custody or judicial custody.

Police Custody: A police officer arrests the accused by following the receipt of information or compliant or report by police about crime and prevent him from committing further offenses and brings him to the police station is known as the police custody. In this, the accused is kept in the lock-up.

Judicial Custody: When an accused is kept in jail by the order of the concerned magistrate, then it is said to be under Judicial Custody. When an accused is presented before a magistrate, he can either be sent to jail or kept under police custody by the magistrate.

Offenses Committed by Police Misusing the Custody:

Police are misusing the Custody and causing torture to the victims in the custody. This generally means the action or practice of inflicting severe pain on someone as a punishment to force someone to make him give some information. Due to this, the victims get immense pain and suffering. It deprives victims of life’s enjoyment and also compels them to commit suicide.

Rape: Rape is one of the prevalent forms of custodial torture. The Mathura rape case where Mathura, a kidnapped minor was raped by three policemen in the lockup is an example of such custodial torture.

Harassment: In Nilabeti Behara v. the State of Orissa, the victim had died due to the harassment and beatings by the police. Such actions are prevalent among the police and it leads to many sufferings to the victims.

Illegal Detention: In Rudal Shah v. the State of Bihar, the accused was kept in jail for 14 years, after his acquittal by the Sessions Court. Such action leads to immense pain and suffering.

Statutory Provisions:

The Constitution of India, 1950

Article 21:

Article 21 provides the citizens of India with the right to life and personal liberty. In the Case of D.K. Basu v. State of West Bengal, The Hon’ble Supreme Court held that the rights guaranteed under Article 21 of the Constitution could not be denied to convicts, under-trials, and other prisoners in custody, except according to the procedure established by law. The Supreme Court in this case laid down certain guidelines to be followed by the Centre and State investigating and security agencies in all cases of arrest and detention. Hence, these guidelines are popularly known as “D.K. Basu guidelines” and are as follows;

The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear clear identification and name tags with their designation.
The police officer carrying out the arrest must make a memo of arrest at the time of the arrest.
A friend or relative or any other person known to the arrestee shall be informed about the arrest as early as possible.
If the next friend or relative of the arrestee lives outside the district or town, they must be informed through the ‘legal aid organization’ in the district and the police station of the area concerned telegraphically after the arrest within a period of 8 to 12 hours.
The arrested person must be instructed about the right to have informed someone about his arrest.
An entry should be made in the diary regarding the arrested person.
The arrestee should be examined at the time of the arrest.
The arrested person should be subjected to medical examination within 48 hours during his detention.
Copies of all documents including the memo of arrest should be sent to the concerned magistrate for his record.
The arrestee should be allowed to meet his lawyer during interrogation.
A police control room should be set up in all district and state headquarters and information about the arrestee has to be communicated within 12 hours of effecting the arrest to the police control room.

There are certain rights for prisoners conferred in Article 21. They are:

Right to bail.
Right to free legal aid.
Right against Solitary Confinement.
Right against Handcuffing.
Right against inhuman treatment.
Right against Illegal Detention.
Right to a speedy and fair trial.
Right to meet friends and consult a lawyer.

Article 20:

Article 20(1) provides that a person should be prosecuted as per those laws that were in force when he committed the offense.

Article 20(2) provides that a person shall not be prosecuted and punished for the same offense more than once.

Article 20(3) provides that a person accused of an offense shall not be compelled to be a witness against himself.

Article 22:

Article 22 guarantees protection against arrest and detention in certain cases and provides that no person who is arrested shall be detained in custody without being informed of the grounds of such arrest. They shall not be denied the right to consult and defend themselves by a legal practitioner of his choice.Article 22(2) directs that the person arrested and detained in custody shall be produced before the nearest Magistrate within 24 hours of such arrest, excluding the journey time necessary from the place of arrest to the Court of Magistrate.

The Code of Criminal Procedure, 1973

Section 49 provides that the police are not permitted to use more restraint than is necessary to prevent the escape of the person.
Section 50 lays down that every police officer arresting any person without a warrant to communicate to him the full particulars of the offense for which he is arrested and the grounds of such arrest. Further, the police officer is required to inform the person arrested that he is entitled to be released on bail and he may arrange for sureties in the event of his arrest for a non-bailable offense.
Section 176 requires the Magistrate to hold an inquiry into the cause of death whenever a person dies in custody of the police.
There are some provisions like Section 53, 54, 57, and 167 which are aimed at providing procedural safeguards to a person arrested by the police.

The Indian Penal Code, 1860 (IPC)

A police officer murdering an accused in custody shall be punished for the offense of murder under Section 302.
A police officer can be punished for custodial death under ‘culpable homicide not amounting to murder’ (Section 304). The provisions of ‘causing death by negligence’ under Section 304 can also be attracted if the case falls within its ambit.
Once the victim has committed suicide and if it is proved that the police officer has abetted the commission of such suicide, then the police officer will be held liable for punishment under section 306.

Punishment for custodial violence

If a police officer voluntarily causes hurt or grievous hurt to extort confession, then such police officer shall be punished under section 330 of IPC for voluntarily causing hurt or under Section 331 of IPC for voluntarily causing grievous hurt.
A police officer can also be punished for wrongful confinement under Section 342 of IPC.

Compensation to the victim

The court has the power to award monetary compensation in appropriate cases where there has been a violation of the constitutional rights of the citizens. Thus, the court can award compensation to the victims of state violence or the family members of the deceased victim. The Supreme Court directed the Delhi Administration to pay Rs 75,000 as exemplary compensation to the mother of a 9 years old child who died due to beating by the police officer. In Case of Saheli Vs Commissioner of Police.

Conclusion:

Today, custodial deaths are prevalent in India. It is one of the worst crimes in our society. Prisoner while in the custody of police is entitled to all rights under Article 21 of the Indian Constitution. Every month a new case is being reported in India. Since the police play a vital role in safeguarding our life, liberty, and freedom, they must act properly. The law cannot deny basic rights like the right to life, liberty, and dignity to someone who is in the police custody and they must be protected.

References:

https://www.educentric.in/blogdetails.html?id=327&blog=case%20summary%20dk%20basu%20v.%20state%20of%20west%20%20bengal

https://lexforti.com/legal-news/custodial-death-in-india/#_ftn33

https://www.latestlaws.com/articles/rights-of-prisoners-against-custodial-torture-in-india-by-shivam-jasra/#_ftn9

https://www.thehindu.com/news/national/five-custodial-deaths-in-india-daily-says-report/article31928611.ece

https://ncrb.gov.in/hi/crime-in-india-table-addtional-table-and-chapter-contents?page=18

https://thewire.in/rights/custodial-deaths-in-india-are-a-cold-blooded-play-of-power-and-class

https://www.drishtiias.com/daily-updates/daily-news-analysis/custodial-1#:~:text=Custodial%20death%20is%20a%20death,or%20abuse%20by%20the%20authorities.

https://legalserviceindia.com/legal/article-9887-custodial-deaths-in-india.html

https://www.lawctopus.com/academike/custodial-deaths-india/

“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.”

ARTICLE WRITTEN BY: JANGAM SHASHIDHAR.

8 Jul

A dispute that is mainly civil in nature cannot attract the provisions of the Indian Penal Code, 1876: Gujarat High Court quashes an FIR registered against the applicants

Prime Legal

Blog #civilcase, #Gujarathighcourt, #IPC

Govindbhai Arjanbhai Divani … vs State Of Gujarat

12 June, 2023

Bench: Sandeep N. Bhatt

R/CRIMINAL MISC.APPLICATION NO. 7868 of 2021

Facts

By way of present application, the applicants seeked quashment of the impugned FIR being for the offences punishable under Sections 323, 324, 504, of the Indian Penal Code. Section 323 deals with punishment for voluntarily causing hurt. Section 324 deals with voluntarily causing hurt using dangerous weapons. Section 504 deals with intentional insult with intent to provoke breach of the peace. Section 506(2) deals with punishment for criminal intimidation

The brief facts of the case were that the complainant had approached the accused No.1 – applicant No.1 at his office for the outstanding amount for the labour work done by him before about ten years. The complainant went to the office of the accused and demanded such amount. Thereafter, a scuffle happened and the complainant suffered an injury during such incident and thus an FIR came to be registered.

The Learned Additional Public Prosecutor strongly opposed the application. He submitted that there was recovery and discovery regarding weapons – stick / knife used in the offence. He also submitted that the medical certificate shows that the complainant received injuries.

Judgement

The Court, after going through the facts and circumstances held that there was no need for independent eye witness to the incident. The whole dispute between the parties appeared to be civil and discipline. Nowehere once did it appear that either of them would strike on the other. Hence, the Court held that the FIR had been registered falsely and thus quashed it.

Written by- Aadit Shah

Click to view Judgement

6 Jul

Minor discrepancies do not constitute a violation of section 307, according to the Haryana High Court

Prime Legal

blog #haryanahighcourt, #IPC

TITLE: Arjun and Others v State of Haryana & Chaman v State of Haryana

Decided On-: June 7, 2023

CRA-S-1134-SB-2008 (O&M) and CRR-2263-2008 (O&M)

CORAM: Hon’ble Justice Mr. N.S Shekhawat

INTRODUCTION – In the current situation, justice is delayed, which causes a rift between families and loved ones. The accused’s sentence is determined by the magnitude of the crime.

FACTS OF THE CASE

According to the prosecution’s version of events, the complainant Chaman’s statement was the foundation for the FIR that was filed in this particular case. She was wed to Mohan S/o Nandu, an Alwar, Rajasthan, resident. She travelled to her parents’ village of Bikaner in the Haryana district of Rewari on October 23, 2006, for Bhaiya Dooj. Due to the accused Munshi Ram providing milk to the complainant’s family, her parents owed him some money. She was travelling to the village of Lisana on October 26, 2006, with her injured mother Rajwati in order to harvest the rice crop. However, as they were passing through the accused Munshi Ram’s “Nohra” (courtyard), Munshi Ram spotted them and began verbally abusing her mother. Rajwati, her mother, asked him to refrain from mistreating them because they planned to settle the entire debt within a day or so. However, Munshi Ram, Ganga Ram, Sanjay, and their father Arjun Singh—all of whom were charged—came out of the Nohra (courtyard) bearing lathis, and Munshi Ram struck her mother Rajwati in the nose with one of the weapons. Sanjay and Ganga Ram each delivered a lathi blow to her mother’s head, and Ganga Ram also struck her mother in the forehead. After that, Arjun struck her mother’s abdomen with a lathi blow. Munshi Ram, the accused, struck her with a lathi on the right side of her forehead when she attempted to save her mother, and Ganga Ram struck her with a lathi on the back of her. head. The complainant and her mother called for help, and when her brother Dharmender and Mahesh heard them, they came to the scene and freed the women from the attackers’ grasp.

Then, the appellants/accused returned to their Nohra (courtyard) and threatened to murder them when they had the opportunity to do so.

COURT ANALYSIS AND DECISION

The prosecution cross-examined ten witnesses to help make its case. The following injuries were discovered during the prosecution’s questioning of PW-Dr. J.K. Saini, who medico-legally examined Smt. Rajwati on October 26, 2006, with a history of physical assault by Arjun, Munshi, Ganga Ram, Sanjay, and Kashmina in the village of Bikaner. All the witnesses of the prosecution were in support of the petitioners Enclosing their evidence, the appellants told this hon’ble court an additional tale. Following their modest submissions, the court reached a decision, having a comprehensive understanding of the incident.The learned trial court correctly noted good reasons for concluding that the circumstances of the current case did not warrant application of Section 307 of the IPC.

In addition, PW-2 Rajwati’s death was not intentionally caused, and the findings made by the learned trial court do not call for any further investigation. Chaman v. State of Haryana, CRR No. 2263 of 2003, is consequently dismissed because of the court’s interference.

Reliance can be placed on the judgments of the Hon’ble Supreme. The appellants’ substantive sentence is reduced to the time already served by taking into account the totality of the circumstances.

Written by- Steffi Desousa

Click here to view judgement

3 Jul

Delhi High court granted bail to an accused under the offence of Kidnapping, as per their authority under section 439 of CrPC.

Prime Legal

Blog #bailapplication, #Bailisthenorm, #crime, #CrPc, #delhihighcourt, #highcourtdelhi, #IPC, #Jurisdiction, #kidnapping, #wrongfulretraint, Prime Legal

Title: Shah Alam vs State Govt. of NCT Delhi

Reserved: 01.06.2023

Pronounced: 07.06.2023

BAIL APPLN. 1033/2023

CORAM: HON’BLE MR. JUSTICE VIKAS MAHAJAN

Introduction

Delhi High court granted bail to an applicant under section 439 of CrPC seeking regular bail in FIR No.394/2020 under Sections 364A/365/342/323/506/102B/34 IPC.

Facts of the case

The mother of the victim on 03.09.2020 made a complaint to the police at 10:02 p.m. that the victim, her daughter, aged about 24 years went to HDFC Bank, Sector-02, Noida, U.P at about 01:30 p.m. with her ATM, passbook and cheque book and she has not returned home and despite searching for her, the victim could not be found. She suspected that some unknown person has kidnapped her daughter by luring her. On the basis of the said complaint, FIR was registered under Section 365 IPC.

The father of the victim also produced few video recordings as well as Whatsapp messages regarding the demand for ransom. On the basis of the statement of the father, Sections 364A/506/342/323/120B/34 IPC were also added in the case.

Search was made for the victim with the help of location and CDR of victim’s mobile number and the victim was recovered on 04.09.2020 from the custody of accused persons namely, Simpal Srivastav and her boyfriend Shah Alam (petitioner herein) from Village Chhalera, Sector-44, Noida (U.P). The said accused persons were arrested on 04.09.2020.

During investigation statement under Section 164 CrPC of the victim was recorded wherein she alleged that she was kidnapped by both the accused persons for ransom and she was also beaten by them. Her mobile phone was also taken by the accused person from which the calls were made and Whatsapp messages were sent demanding ransom. She was also threatened by the accused person and was wrongly confined.

Analysis of the court and decision

The Delhi High Court held that it is Suffice it to state that only the Magistrate’s powers, while handling petitions for the grant of bail, are governed by the punishment specified for the offence for which the bail is requested. An offence under section 364A IPC is punished with death or life in prison. Generally speaking, the Magistrate lacks the authority to issue bail unless the case is covered by the provisos attached to section 437 of the Code if the punishment specified is the life sentence or death penalty and the offence is only triable by the Court of Session (Prahlad Singh Bhati v. State (NCT of Delhi)) There are no such restrictions limiting the High Court’s or the Court of Session’s authority while using the Section 439 CrPC’s authority.

It could also be appropriate to cite the Hon’ble Supreme Court’s ruling in Sanjay Chandra v. CBI, (2012) 1 SCC 40, which outlined the specific conditions under which a person facing trial’s freedom could be restricted as –

“The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, “necessity” is the operative test. In India, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson.”

Thus, without getting into the specifics of the case at this time, the court believes that, in light of the explanation above, the petitioner has established a case for the granting of bail. As a result, the petition is granted, and upon presenting a personal bond in the amount of Rs. 20,000/- and one surety bond in the same amount, the petitioner is permitted to bail, subject to the satisfaction of the learned Trial Court, CMM, or Duty Magistrate.

Written By – Shreyanshu Gupta

Click to review the judgement

20 Jun

The Delhi High Court declines the bail request of an educator alleged of raping the student he was teaching.

Prime Legal

Blog #delhihighcourt, #IPC, #rape, #section375

Case Title: Babu Lal Bhawariya v. State of NCT Delhi

Date of decision: 19th June 2023

CORAM: HON’BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI

+ BAIL APPLN. 3093/2022 and CRL.M.A. No. 3550/2023

Introduction

The High Court of Delhi has denied bail to an instructor suspected of continually assaulting a minor learner and attempting to make a viral video of the incident. The defendant has been charged under section 376 of the Indian Penal Code and section 6 of the legislation known as the Protection of Children from Sexual Offences Act of 2012.

“The court is unable to disregard the evidence showing that the petitioner and prosecutrix had contact as a teacher and student,” Justice Anup Jairam Bhambhani stated in the order. The court stated that there appears to be significant forensic evidence against the petitioner, such as the forensic report stating that the petitioner’s DNA matches the DNA discovered on certain exhibits pertaining to the prosecutrix that were collected during the investigation.

Facts of the Case

“Taking into account that the meeting between the complainant and the prosecutrix was only meant to have been between an instructor and a student, it is unclear why the DNA matches,” the court said.

According to the prosecution, on April 20, 2021, the accused teacher requested the prosecutrix to come to see him at the Rithala Metro Station under the pretence of providing her with exam notes. Upon meeting the prosecutor, he allegedly told her he needed to give her additional documents that were at his residence.

It is alleged that at his residence, the teacher offered the prosecutor water and refreshments, after which she collapsed and he engaged in sexual contact against her against her will. When the prosecutor regained consciousness, she allegedly presented her with an objectionable video recording of the incident and threatened to make the video viral if she told anyone about it. According to the prosecution, while threatening to make the objectionable video go viral, the teacher engaged in sexual activity with the prosecutor approximately four times at his residence and seven times in hotels.

According to the prosecutrix’s Class-II School Leaving Certificate and Class-X Mark Sheet, which were lodged alongside the chargesheet, the prosecutrix was “minor” at the time of the commission of some of the alleged sexual assaults. It was asserted that the prosecutrix reached the age of majority in January 2022, and that the petitioner continued to engage in sexual acts with her afterward. After the alleged last incident in June 2022, a complaint was submitted with the police and a FIR was registered.

Courts analysis and Decision

The court stated that the prosecutor’s statement recorded pursuant to section 164 of the Criminal Procedure Code supports the prosecution’s case, and the court has no reason to disbelieve the statement. Justice Bhambhani added, “It is also part of the record, but has not yet been proven by evidence, that the petitioner paid for the hotel room and checked into the hotel with the prosecutrix using a false ID.

“In light of the facts of the case, particularly the petitioner’s relative social standing vis-à-vis the prosecutor and the societal milieu, this court cannot be certain that the petitioner would not influence witnesses, flee justice, or otherwise attempt to prejudice the trial of the case if he is released on bail,” the court stated.

Judgment- click here to review the judgment

Written by- Anushka Satwani

1 … 5 6 7 8