Mentoassociates.com – Legal Articles

With a section of the General Public not in a mood to stay indoors and support the governmental initiatives for controlling the deadly Corona virus, the various state and Central governments are resorting to penal provisions to book the offenders. Some of the commonly resorted penal provisions are discussed below:
EPIDEMIC DISEASES ACT, 1897 Section 3 – Penalty- Any person disobeying any regulation or order made under this Act shall be deemed to have committed an offence punishable under section 188 of the Indian Penal Code 1860.
INDIAN PENAL CODE, 1860 Section 143 IPC- Punishment for being a member of an unlawful assembly-Whoever is a member of an unlawful assembly, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.
INDIAN PENAL CODE, 1860 Section 147 IPC- Punishment for rioting- Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
INDIAN PENAL CODE, 1860 Section 149 – Every member of unlawful assembly is guilty of offence committed in prosecution of common object
INDIAN PENAL CODE, 1860 Section 188 – Disobedience to order duly promulgated by public servant- An offender shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
INDIAN PENAL CODE, 1860 Section 269 – Negligent act likely to spread infection of disease dangerous to life- Whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.
INDIAN PENAL CODE, 1860 Section 270 – Malignant act likely to spread infection of disease dangerous to life- Whoever malignantly does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
INDIAN PENAL CODE, 1860 Section 283 – Danger or obstruction in public way or line of navigation- Whoever, by doing any act, or by omitting to take order with any property in his possession or under his charge, causes danger, obstruction or injury to any person in any public way or public line of navigation, shall be punished with fine which may extend to two hundred rupees.

For most Indians, the term LOC would normally mean the Line of Control. However in Indian legal context LOC means Lookout Circular.

Meaning of LOC:
•It is a circular used by authorities to check whether a travelling person is wanted by the police. LOC is a coercive measure to make a person surrender to investigating agency or courts of law. It is generally issued against absconding criminals/ accused to stop them from entering or crossing borders or to track /detain the wanted person and hand them over to appropriate authority.

Types of LOC:
•Local LOC: It is limited to a particular town / city area. In this case, usually the LOC is issued to the local Airport, Sea port, Train or Bus stations.

•National LOC: Is a nationwide circular to all the Airports, Seaports, and border agencies across the border within a country.

•International LOC: International circular to different countries’ Airports, Seaports and across the international Border agencies. This has a limitation of bilateral understanding between the countries.

•Section 498A IPC and LOC: Usually issued by the Police against the accused NRI husband and his family members after the Police register an FIR. In some cases, the Court orders the same against the accused NRI’s, if the accused does not surrender to the court within the stipulated time interval given.

Authority to issue LOC:
•LOC can be issued only with the approval of an officer not below the rank of Deputy Secretary to the Government of India/ Joint Secretary in the State Government /Superintendent of Police concerned at the district level. It can also be issued by the court before which the criminal case lies.

Principles to issue LOC:
The basic guidelines regarding the issuance of LOC’s in relation to Indian citizens issued by the Ministry of Home Affairs are as follows:

•The request to issue/opening of LOC must be issued with the approval of an officer in authority. The authorities includes the Ministry of Home Affair, Ministry of External Affairs, the Customs and Income Tax Department, Directorate of Revenue intelligence, Central Bureau of Investigation, Court, Interpol, Regional passport Officers, Police authorities in various States, etc.

•Lookout circulars/notice for all immigration check posts against any Indian person can be issued only in the format prepared by the Home Ministry.

•The notice issuing agency must give full identification details of the accused person on an already prescribed format. LOC will not be issued for less than three identity parameters other than name of the accused.

Performa of LOC:
•The request for opening of LOC is required to be made to all immigration Check-posts in the country in the Official Format prescribed by the MHA.
•The details of the person looked out for in the circular includes: Name, address, Picture / photo or description of the person’s physical appearance, Passport number/details, other unique identification card number, alleged offence details / case involved in.
•In cases linked to, terrorist, anti national elements etc, LOC can be issued without complying with all rules, parameters or prescribed Performa.

Validity of LOC:
•LOC is valid for a period of one year. However, in case the originating agency wants to extend the validity beyond one year, it can ask for the extension before the expiry of the one-year period. If no request is made for the extension of the LOC within the stipulated period of one year, the Immigration Officer concerned is authorized to suspend the LOC.
•In the case of Court and Interpol, LOC does not expire within one year.

Consequences of LOC:
•Issuance of LOC can impact different persons differently. It curtails person’s ability to travel in and outside of country. The person has to face arrest or detention at the place where found.

Right to Information:
LOC is highly confidential document. Unless the case is high profile, whether the LOC is issued or not is not known to public at large.

Still one can try to get the information from the following sources:

•Police Station where the FIR is lodged
•District SP/DSP Office or similar rank officer in any investing agency.
•Immigration Authorities
•Foreigner Regional Registration Office (FRRO) in case of NRI.
•Trial Court records, if court have initiated the issuance of LOC.

Steps to be followed when LOC is issued:
•Have all the legal documents with you.
•Obtain Anticipatory bail in the case.
•Confirm whether the LOC is issued against you by the police / court and also the type of LOC.
•Show the certified copy of the Anticipatory bail to the authorities whilst entering the country. For e.g.: to immigration officers in the airport during the immigration check.
•Authorities should take a photocopy of the Anticipatory bail and hand back the original to you, so that you take your originals with you and proceed.
•Moreover, if the authorities try to detain you, get in touch with concerned Police (Sub Inspector / Deputy Superintendent Police/Investigating Officer) to inform the immigration authorities that you are already enlarged on Anticipatory bail and that they do not require your arrest. If they fail to do so, the victim can file a complaint against them next day detailing the violation of your rights and the contempt of the court order i.e. Anticipatory bail.
•Whilst regularizing the bail or whilst seeking the regular bail in the court, file a supplementary application seeking the LOC to be lifted.
•Failing to file supplementary application, one should look for the bail conditions to make sure there are no restrictions like not to leave the country without prior permission of the court. If there is such condition, please do get the permission from the court and keep the certified copy of the court’s order permitting your departure from the country to produce before the immigration officers in the airport or sea-port.
•One need to push the police to forward the court order to the concerned authorities (the concerned police station and in turn to the immigration authority at the port) to lift the LOC altogether as well as keeping the certified copy with yourself in hand. You need to request the copy of the confirmation for the same from the Police or ask for a letter confirming the same (this is in addition to the court order).

Cancellation or Lifting of LOC:
LOC can be withdrawn by the authority that issued and can also be rescinded by the trial court where case is pending or having jurisdiction over concerned police station on an application by the person concerned.
After getting LOC withdrawn by the authority or court, apply for multiple certified copies of the same. Provide one certified copy with covering letter to investigating officer; SP/DSP concerned and send a copy to the nodal officer at, ‘Deputy Director, Bureau of Immigration (Bol), East Block-VIII, R K Puram, New Delhi-110066.
If you have LOC removal court order, the immigration officer would contact the originator and only on confirmation the LOC will be cancelled or lifted.

Authored by:
Adv. Shirin Yusuf,
Associate,
MENTO ASSOCIATES.

JURISDICTION in a lay mans language means ‘The official power to make legal decisions and judgements’. However, in a deeper sense it means ‘The authority given to a court to try cases and rule on legal matters within a particular geographic area over certain types of legal cases’.

SECTION 498(A) OF THE INDIAN PENAL CODE:
Husband or relative of husband of a woman subjecting her to cruelty: Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

“Cruelty” means:
a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

Normally, every criminal offense is inquired into and tried by a court within whose local jurisdiction it is committed. However, as per section 179 of the Code of Criminal Procedure, 1973, an offense can also be tried by a court within whose jurisdiction the consequence of the offense ensues.

Taking the spirit of Section 179 of the Code of Criminal Procedure, 1973, in a landmark judgment in Rupali Devi V State of Uttar Pradesh and Others (AIR 2019 Supreme Court 1790), Supreme Court held that the ‘Complaint alleging cruelty can be filed in the courts where wife takes shelter after leaving or driven away from matrimonial home’
The Hon’ble Supreme Court was of the view that even if the acts of physical cruelty committed in the matrimonial house may have ceased and such acts may not occur at the parental home, there can be no doubt that the mental trauma and psychological distress caused by the acts of the husband including verbal exchanges that compelled the wife to leave the matrimonial home and take shelter with her parents would continue to persist at the parental home. Therefore, the mental cruelty borne out of physical cruelty or abusive and humiliating verbal exchanges would continue in the parental home even though there may not be any overt act of physical cruelty at such place.
It is further opined that, even the silence of the wife may have an underlying element of an emotional distress and mental agony. The wife’s sufferings at the parental home though may be directly attributable to commission of acts of cruelty by the husband at the matrimonial home would, undoubtedly, be the consequences of the acts committed at the matrimonial home. Such consequences, by itself, would amount to distinct offences committed at parental home where she has taken shelter. The adverse effects in the mental health in the parental home though on account of acts committed at the matrimonial home amount to commission of cruelty within the meaning of Section 498-A at the parental home.

The three-judge bench interpreted the legal provision during a reference made in 2012, to decide whether a woman forced to leave her matrimonial home on account of cruelty can initiate and access the legal process within the jurisdiction of the courts where she was forced to take shelter.

In reference, the court held that the case can be lodged by the wife at her parental home even when no overt act of cruelty or harassment is committed by the husband there. The offences of such kind are contemplated under Section 179 CrP.C.

CONCLUSION:
Therefore, the courts at where the wife takes shelter after leaving or driven away from matrimonial home on account of acts of cruelty committed by the husband or his relatives, would, dependent on factual situations, also have jurisdiction to entertain a complaint alleging commission of offences under Section 498-A of Indian Penal Code.

Authored by:
Adv MEGHA MOHAN
Associate
MENTO ASSOCIATES

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 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.

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.

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.

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.

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.

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.