Archive for the ‘Criminal’ Category.

IS ANTICIPATORY BAIL AVAILABLE WHEN A COMPLAINT IS NOT REGISTERED?

Registration of an FIR is not mandatory for a person to approach the court of law for an order of anticipatory Bail. There are various citations of Supreme Court and High Courts in this regard.   Even in the absence of a pending criminal complaint against a person, if such person has an apprehension of arrest, he can approach the Sessions court or High court for an order of Anticipatory Bail. The apprehension of arrest may be elicited from the facts and circumstances of the matter, conduct of respondent police, the acts and communications of the potential complainant etc. On the whole, the applicant must convince the court, primarily that there is every likelihood for a criminal complaint to be lodged against him and the probability of respondent police arresting him based on the said complaint.

             An applicant cannot expect a blanket order from the court granting Anticipatory Bail. The applicant need to specify in his application the probable sections under which his opponent  may file a complaint against him,  which is even more difficult in comparison to a scenario where the complaint is already registered against him. This is because, if a complaint is already registered against the applicant, then the applicant as well as the court,  both are  convinced as to what are the sections which constitute the alleged offence. However in a case where the FIR is not yet registered, it is left to the mental exercise of both the applicant as well as the court to figure out the probable offence.
                                  
             The requirement of spelling out the exact provisions of the offence in an application for Anticipatory Bail may cause a technical difficulty for the applicant.  For instance if a court grants anticipatory bail to an applicant for an offence punishable under certain penal sections, his opponent can still trap him by lodging a complaint under some other sections. This dilutes the effect of the result got by the applicant. However the applicant is entitled to file for a fresh anticipatory bail and the obtainment of previous anticipatory bail will definitely be a plus factor while considering the second bail application.

             Similarly in matters where the FIR is not yet registered, courts have a tendency to grant anticipatory bail for limited periods like 45 days, 60 days etc. This again puts the applicant into some inconvenience, as his opponent may wait for the period to elapse for filing a complaint against him. In such a scenario the applicant can file one more application and obtain an anticipatory bail. The earlier anticipatory bail will definitely assist him in the obtainment of a new anticipatory bail. 

THE SCHEDULED CASTES AND SCHEDULED TRIBES (PREVENTION OF ATROCITIES) ACT 1989

The Central Government enacted this important piece of legislation with the objective to prevent the commission of offences of atrocities against members of Schedule Castes and Schedule Tribes and to provide for special courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for incidental matters.

The following are acts of atrocities, among others, against the SC/ ST members which are punishable under the act.

•Forcing a member of SC/ST to drink or eat any inedible or obnoxious substance.
•Dumping excreta, waste matter, carcasses or other obnoxious substance in the premises of an SC/ST member.
•Removing cloths, parading naked with painted face or body etc on a SC/ST person.
•Wrongfully occupying or cultivating any land belonging to SC/ST member.
•Wrongfully dispossessing a person of SC/ST from his land or premises.
•Compelling or enticing a member of SC/ST to do ‘begar’ or similar forms of forced or bonded labor.
•Forcing a member of SC/ST not to vote or to vote to a particular candidate.
•Instituting malicious, false, vexatious suit, criminal or other legal proceedings against a member of SC/ST.
•Giving false or frivolous information to a public servant resulting in injury or annoyance to a SC/ST person.
•Insulting or intimidating with intent to humiliate a SC/ST person in any place within public view.
•Assaulting or using force on any woman belonging to SC/ST with intent to outrage her modesty.
•Denying a member of SC/ST any customary right of passage to a place of public resort, which other members of the public have a right of use.

Whoever commits the above atrocities is liable to be punished with imprisonment for a term which shall not be less than 6 months but which may extend to 5 years and with fine.

If a public servant willfully neglects his duties required to be performed under this act, he shall be punishable with imprisonment for a term which shall not be less than 6 months, but which may extend to one year. Further the act provides for enhanced punishment for subsequent conviction. The court can even forfeit to the government, the property of an accused person which has been used in the commission of the offence proved. During the trial of the offence, the court has the power to attach the properties of the accused and later after the conclusion of the trial forfeit the same to the government.

The special courts under the act can even order the removal of a person, who is likely to commit an offence against the SC/ST people, from any scheduled area or a tribal area. If the person ordered fails to removes himself from the area, the special court can cause him to be arrested and removed in police custody from such area.

The provisions of anticipatory bail are not applicable for offences under this act.

LATEST SUPREME COURT GUIDELINES ON RAGGING

Following the death of 19-year-old medical student Aman Kachroo at Dr. Rajendra Prasad Medical College in Himachal Pradesh, a Supreme Court Bench comprising of Justice Arijit Pasayat and Justice A.K. Ganguly has recently issued strict guidelines to prevent the menace of ragging in colleges and educational institutions. The Supreme Court was also hearing another case in Bapatla Agriculture Engineering College in Andhra Pradesh where a 20-year-old girl, attempted suicide due to ragging. The apex court had earlier appointed a committee headed by former CBI director R K Raghvan to look into the mater. Most of the recommendations of the said committee find a place in the guidelines. The salient features of the guidelines include:
a. The head of the educational institution and the jurisdictional police chief will be held responsible, if any ragging case is reported in their area.
b. A national level committee will be formed to suggest remedial measures in the school curriculum.
c. Immediate suspension of the senior students indulged in ragging.
d. Departmental action against all heads of institutions where ragging takes place.
e. High level security in all hostel premises and a strict vigil to be maintained.
f. Freshers to be divided into small groups and will be affiliated to individual teachers.
g. All colleges should hire psychiatrists to sensitize senior students, freshers and staff against ragging.
h. Panels must be set up to check the increasing incidents of ragging and rampant alcoholism in universities and colleges.
i. Students who indulge in ragging under the influence of alcohol must be sent to de-addiction centers.
j. Each state should have an anti-ragging committee, and anyone indulging in ragging must be given psychological treatment.

The apex court has also directed all state governments to give an undertaking about the steps taken by them to eradicate ragging.

Stages in Cheque Bounce Case

A Cheque bounce case normally takes an average of one year to complete the proceedings before trial court. The following are the important stages in a cheque bounce case.
1) Filing of complaint: The complaint need to be filed before the jurisdictional magistrate within 30 days from the accrual of the cause of action. The complainant need to be present before the magistrate at the time of filing. The original documents need to be shown to the magistrate. If prima-facie a case is made out, the magistrate will post the matter for sworn statement.
2) Sworn Statement: At this stage, the complainant needs to enter the witness box and give further details regarding the case. If the magistrate is satisfied that there is some substance in the case of the complainant, then he will issue a summons to the accused.
3) Appearance of Accused: On receipt of summons, the accused need to appear in the court. If he does not appear in the court, the court will issue an arrest warrant against him. After appearance, the accused is supposed to take a bail from the court with or without sureties. If the accused is unable to furnish a surety then he can deposit a cash security, instead of surety. This cash security is refundable to the accused after the conclusion of the case.
4) Recording of Plea: In the next stage, the court will ask the accused as to whether he has committed the offence or not. If the accused admits the guilt, the court will immediately give him punishment. If he pleads innocence, the court will post the matter for evidence.
5) Evidence: The Complainant has to furnish his evidence, normally by way of affidavit; this is known as examination-in-chief. He needs to produce all documents in support of his case like bounced cheque, dishonor memo, copy of notice etc. Later complainant will be cross examined by the accused. If there are other witnesses in support of the complainant, then their evidence also has to be recorded.
6) Statement of the Accused: After the Complainant side evidence is over, the court will put some questions to the accused regarding his guilt. An accused needs to give his version to the same.
7) Defence Evidence: After the Accused statement the court will give an opportunity to the accused to leave his evidence. The accused can also produce documents in support of his case, as well as witnesses in his support. Accused and his witnesses will be cross examined by the complainant. After this, the case is posted for arguments.
8) Arguments: Both the Complainant and the accused will submit their arguments before the court. They can also furnish judgments of high courts and Supreme Court in support of their case. Normally a written argument containing a gist of the oral argument is also furnished to the court.
9) Judgement: After the arguments, case is posted for judgement. If the court finds that the accused has committed offence, he will be punished with fine or imprisonment. If he is innocent, the court will acquit him. If accused is convicted, then he needs to suspend his sentence, for a period of 30 days with in which time, he can file an appeal before the sessions court.

Right of private defense

Chapter IV of the Indian Penal Code, 1860 contains some interesting rights available to a citizen, from sections 96 to 106 under the caption, “Right of Private Defense”. This is an exceptional area where the law permits the victims to react, when they themselves or their fellow beings are subjected to an offence. In fact nothing is an offence under the eyes of law, which is done in the exercise of private defense.

Every person has a right, subject to few restrictions enumerated in section 99 IPC, to defend his own body and of any other person, against any offence affecting human body or to defend his or another person’s property where such property is subjected to offences of theft, robbery, mischief etc. The right of private defense of the body extends even to causing harm or death of the assailant, if the offence one faces, is that which causes a reasonable apprehension of death, rape, unnatural lust and kidnapping. In the cases of other lesser serious offences, the victim can cause reasonable harm to the assailant during the exercise of the right of private defense.

There are, however, few restrictions to the exercise of this valuable right. This right cannot be exercised against a public servant acting in good faith, under the color of his office, which does not cause a reasonable apprehension of death or grievous hurt, thought his act may not be strictly justifiable under law. Similarly, if there is sufficient time for the victim, to have recourse to the protection of authorities, then this right cannot be exercised. Also a person cannot inflict more harm on the assailant than that is necessary for the purpose of defense.

It is interesting to note that this right is available not only to victims of offence, but it also permits others to interfere if another person or property is subjected to an offence.

Offence of cheque bouncing

Section 138 of the Negotiable Instruments Act 1881, was introduced in the year 1989 which made the dishonor of cheques, for various reasons, enumerated therein, a punishable offence. The present punishment is imprisonment for a term, which may extend to two years or with fine, which may extend to twice the amount of cheque, or with both.

A cheque needs to be presented within 6 months of the date of drawing, to the bank. After the cheque gets dishonored, the payee has to make a demand by giving a notice in writing to the drawer of the cheque, within 30 days of the receipt of information from the bank regarding the dishonor of the cheque. The payee need to wait for another 15 days after the said notice is served on the drawer to see whether the drawer is making the payment of the cheque amount. If, within 15 days, the drawer does not make the payment, the payee can file a complaint before the jurisdictional magistrate, within 30 days. It is interesting to note that such a complaint cannot be filed before the police authorities.

There are special courts in Bangalore to try cheque-bouncing cases. In addition to the criminal prosecution, a person can approach the civil court for the recovery of the money under the same cheque. Hence a person has double remedy under the law. In a prosecution for an offence of cheque dishonor, the defenses available to an accused are very limited. Most of the recent decisions of various High Courts and the Supreme Court are in favour of conviction in matters of Cheque bouncing.

What is anticipatory bail?

The Code of Criminal procedure 1973 provides the valuable right of Anticipatory Bail to a person who apprehends arrest in a non-bailable offence. This power to enlarge a person on anticipatory bail is vested only in High Court and Court of Sessions. After a person is enlarged on anticipatory bail in connection with an offence, if an officer in charge of police station arrests him, then he shall be immediately released on bail and shall not be subjected to unnecessary restraints.

The Court granting anticipatory bail may impose few conditions like to be present for interrogation before the investigation officer, not to induce or threat witnesses, not to leave the country without the permission of the court etc. The pendency of investigation is not a ground to refuse anticipatory bail. Even after the summons is issued to an accused person from the court, he can be enlarged on anticipatory bail, if the court thinks fit. The anticipatory bail granted will continue till the conclusion of trial or its cancellation.

It is not compulsory that the FIR should be registered against a person or that his name shall be there in the FIR to be eligible for applying for anticipatory bail. What is required is that there should be a reasonable apprehension of arrest by the person applying. It can be filed at a place where the accused apprehends arrest.

What amounts to contempt of courts?

Contempt of Court may be Civil Contempt or Criminal Contempt. Civil Contempt means willful disobedience to any judgment, decree, direction etc., or a willful breach of an undertaking given to a court. Criminal Contempt means the publication of any matter or doing of any act which scandalizes or lowers the authority of any court; or which prejudices or interferes with the due course of any judicial proceeding; or interferes or obstructs the administration of justice. The Contempt of Courts Act 1971 defines and limits the powers of courts in punishing contempt of courts and regulates the procedure involved therein.

However a fair and accurate report of judicial proceedings does not amount to contempt. Similarly fair criticism of judicial acts and fair comment on the merits of any case, which has been heard and finally decided, also does not amount to contempt.

High Court is the competent court to punish contempt of courts subordinate to it and also of itself. A contempt of court may be punished with simple imprisonment for a term, which may extend to six months or with fine, which may extend to two thousand rupees or with both. The limitation period for institution of any proceedings of contempt is one year from the date on which the contempt is alleged to have been committed.

Prohibition of dowry

The Dowry prohibition Act, 1961 prohibits the giving or taking of dowry. Dowry means any property or valuable security given by one party to a marriage to the other party to the marriage, at or before or any time after the marriage, in connection with the marriage of the said parties.

If any person gives or takes dowry, he shall be punishable with imprisonment for a term which shall not be less than five years, and with fine which shall not be less than fifteen thousand rupees. If any person demands any dowry from the parents or relatives of a bride or bridegroom, he shall be punishable with imprisonment for a term which shall not be less than 6 months, but which may extend to two years and with fine which may extend to ten thousand rupees. However, presents which are given at the time of marriage to a bride or bridegroom, without any demand, in that behalf does not constitute dowry. But such presents are to be entered in a list as prescribed under the Dowry Prohibition Rules.

If any person, through any advertisement, offers any share in his property or any money or a share in his business as consideration for the marriage of his son or daughter or if any person prints or publishes any such advertisement, he shall be punishable with imprisonment for a term which shall not be less than 6 months, but which may extend to 5 years, or with fine which may extend to fifteen thousand rupees.

Power of arrest

A Police officer has the power to arrest any person without a warrant,  (a) who has been concerned in a cognizable offence or against whom a reasonable complaint has been made (b) who has in his possession any, implement of house breaking, without lawful excuse,(c) who is a proclaimed offender (d) in whose possession stolen property is found (e) who obstructs a police officer in the execution of his duty, or who has escaped or attempts to escape from lawful custody and (f) who is a deserter from the armed forces of the Union.

When any person commits a non-cognizable offence in the presence of a police officer and refuses to gives his name and residence or gives a false name or residence, then he may be arrested by such officer in order to ascertain his name or residence.

A private person may arrest or cause to be arrested any person who in his presence commits a non bailable and cognizable offence, or any proclaimed offender, and without unnecessary delay, shall make over or cause to be made over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station.

If a person forcibly resists the endeavor to arrest him, or attempts to evade the arrest, the police officer may use all means necessary to effect the arrest. However the police officer shall not cause of the death of a person, while trying to arrest, who is not accused of an offence punishable with death or with imprisonment for life.