The Supreme Court Of India, Joginder
Kumar Vs State Of U.P., 1994
The National Police Commission in its Third Report referring
to the quality of arrests by the police in India Mentioned power of arrest as
one of the chief sources of corruption in the police. No arrest can be made
because it is lawful for the police officer to do so. The existence of the
power to arrest is one Thing. The justification for the exercise of it is quite
another. The police officer must be able to justify the arrest apart from his
power to do so. Arrest and detention in police lock-up of a person can cause
incalculable harm to the reputation and self-esteem of a person. No arrest can
be made in a routine manner on a mere allegation of commission of an offence
made against a person. It would be prudent for a police officer in the interest
of protection of the constitutional rights of a citizen and perhaps in his own
interest that no arrest should be made without a reasonable satisfaction
reached after some investigation as to the genuineness and bona fides of a
complaint and a reasonable belief both as to the person's complicity and even
so as to the need to effect arrest. Denying a person of his liberty is a serious
matter.
-The Supreme Court Of
India, Joginder Kumar Vs State Of U.P., 1994
The accused in these cases might have been on bail - but the
injustice of pendency of trial for long periods is the uncertainty and the
concomitant anxiety suffered by the under-trial. The under-trial is inhibited
in making future plans for his life or executing present ones due to the
uncertainty which pendency of trial brings. His confidence starts to erode and
at the end of the trial, even if he is honorably acquitted, the scars of the
long trial remain. He feels condemned despite the acquittal.
-The Supreme Court on
the Right to a Speedy Trial
Once a complaint is lodged under Sections 498A/406 IPC whether
there are vague, unspecific or exaggerates allegations or there is no evidence
of any physical or mental harm or injury inflicted upon woman that is likely to
cause grave injury or danger to life, limb or health, it comes as an easy tool
in the hands of Police and agencies like Crime Against Women Cell to hound them
with the threat of arrest making them run here and there and force them to hide
at their friends or relatives houses till they get anticipatory bail as the
offence has been made cognizable and non-bail able. Thousands of such
complaints and cases are pending and are being lodged day in and day out.
-Justice JD Kapoor, Delhi High Court
Torture is not merely physical, there may be mental torture
and psychological torture calculated to create fright and submission to the
demands or commands. When the threats proceed from a person in Authority and
that too by a police officer the mental torture caused by it is even more
grave.
-The Supreme Court of India, Arvinder
Singh Bagga v. State of U.P, 1994
Torture and police
brutality are endemic in India.
-Supreme Court Lawyer and Architect Of The Indian DV Act, India Jaising,
In A London Court, 1999
I object to this exploitation of the law. It is wrong to
misuse the law. The law is for those who need it.
-Union Minister for
WCD, Renuka Chaudhary, on the Arjun Singh 498A episode
The idea should be to see how the police system works, the
concerned official out there should not lodge an FIR and arrest the groom and
his side before investigating. These kinds of shortcuts are mainly tainting the
image of the prevailing law. The way uncles, aunts are also humiliated is not
fair, we agree that they should not be booked until a full-proof investigation
is carried out. Instead of amending the law we should try to improve our police
system and investigating procedure.
-Spokesperson of the
NCW, 14 /Jan /2007, TOI Article: “NRIs cry foul over IPC 498A, dowry law
“Copyright: ipc498A.wordpress.com 1/22 11/9/07
INTRODUCTION
People don’t know what Section 498A of the IPC is nor do
they know what to do when a 498A case is registered against them. I hope to
shed some light on what this law is really about, the effects it will have on
you and your family and how to survive this ordeal. This document is divided into three chapters.
The first chapter gives you an overview and attempts to educate you about your
rights and some applicable laws. The second chapter gives you an idea about
what you can expect to face once you get caught up in the Indian criminal
justice system. The third chapter details what you can do to fight this menace
and also gives you some general information.
This document is best read on a computer connected to the Internet due
to the numerous links to websites that are embedded in the document. However,
most of the content and supporting material is summarized here. There are two
classes of Indian citizens, the privileged and the ordinary. The privileged
will never get into a situation like this, as the laws don’t apply to
them. The Arjun Singh 498A case is a
prime example. Though an accused in a criminal
case, he is still a Union Minister whereas thousands of govt employees have
lost their jobs or find themselves under suspension due to an unsubstantiated
allegation.
This document is meant for the not so privileged, the
law-abiding citizens who have no idea about what it means to get entangled in a
criminal case on the basis of an allegation.
Man or woman, regardless of age or marital status, if you have an
estranged `Bahu’ (daughter in law) in your family, whether she is
living/lived/never lived with you; you can be jailed under Section 498A of the
IPC, based on her complaint in the police station. The objective of the ‘Bahu’
and her parents is to subject you and your family to an ordeal designed to
break your will and ensure that you give in to their demands. This law targets
families who belong to the middle and upper middle classes of society and NRIs,
as these segments of society are vulnerable to legalized extortion by corrupt
agencies of the government.
There is no way to avoid a 498A from being filed, unless you
are very well connected or somehow manage to make her realize that it is not in
her long term interest to do so.
However, you will win if you choose to fight. A typical case will go on
for 3 to 7 years. Be prepared to lose some of your most productive years
professionally. Be prepared to lose your hair. Be prepared to spend money and
lots of it. Be prepared to shed a lot of tears. Above all, be prepared to watch
your parents and siblings suffer, all on account of the abuse of this idiotic
law. To fight a 498A, you will need
patience, courage, knowledge about the laws, your fundamental rights,
information about how others have fought their cases, a clear idea about what
they want from you, and you need to develop the ability to think like a crook.
Things become easier of you are well connected/develop connections with the bureaucracy.
Patience and the ability to think clearly and unemotionally are the most
important qualities needed. If you are innocent, you will eventually prevail. I
assure you of this. If you apprehend being 498A’d, don’t just stand there like
a deer caught in the headlights. From the people you talk to and from the
online portals you visit, you will learn that this is a criminal law to combat
domestic violence and dowry harassment etc, etc, etc. I’ll ignore this and cut
to the chase. In its present form, 498a
is an extortion racket In legal terms, 498A is an offence, which is:
• Cognizable:
Offences are divided into cognizable and non-cognizable. By law, the police are
duty bound to register and investigate a cognizable offence. 498A is a
cognizable offence.
• Non-Bail able:
There are two kinds of offences, bail able and non-bail able. 498A is non bail
able. This means that the magistrate has the power to refuse bail and remand
you to judicial or police custody.
• Non-Compoundable: A
non-compoundable case, e.g. Rape, 498A etc, cannot be withdrawn by the petitioner.
The exception is in the state of Andhra Pradesh, where 498A was made
compoundable. In actual terms, 498A is an offence, which is:
• Cognizable: The
police will register a 498A case since it is required by law, but they don’t
investigate but go on to arrest people because of the money to be made in
bribes from both sides in a 498A case. Copyright: ipc498A.wordpress.com 2/22 11/9/07
• Non-Bail able:
Since bail is at the discretion of the magistrate, all sorts of games will be
played to have families locked up while negotiations go on to settle the case.
This may happen in cases where the magistrates are allegedly corrupt or, the
public prosecutor and the cops are in cahoots.
• Non-Compoundable:
Though 498A is non compoundable, the courts are allowing the withdrawal of the
case when the parties agree to reconcile or settle case. In real terms, if you
pay up, the case goes away. If you don’t you’ll get stuck with a criminal case
that will go on for years. The other
characteristics of this extortion racket are:
• It is a law that
fosters corruption and enables govt agencies like the police to violate
Fundamental Rights.
• It plays a role in
gender based vote bank politics.
• It denies justice
to the real victims of dowry harassment.
• It exposes innocent
families to the evils of the corrupt Indian criminal justice system.
• This is a law
poisoning the lower judiciary by exposing it to corruption.
• Above all, this is
a gamble bound to fail if the falsely accused choose to fight back.
The sooner you realize what this law is about, the faster
you will be able to take the first steps to fight this extortion racket. It will
take years, but you will prevail. Each case is unique. But they all have a
common thread running through them. I have outlined the high level scenario, as
every case is unique and has a story line of its’ own. I concede that my narrative is simplistic,
but the outlines apply in most cases. This is not legal advice but more of a
set of observations, opinions and suggestions. The intent is not slander or defames
any person or institution, but to raise awareness about this pernicious law so
that citizens can defend themselves. When taking action, please do so, after seeking
the advice of your lawyer.
I am assuming that you belong to the middle/upper middle
class, and there is marital discord. Your parents may have retired or are close
to retiring. You may or may not be part of an extended family living under the
same roof. Your spouse may have warned you that she will file a 498A against
you for some reason or the other. You or your parents may have assets in some
form or another such as cash, salary, property etc. The family of your spouse
may be politically connected. If you have kids, you will have to deal with the
additional agony of watching them being treated as pawns in this game.
I have settled on 498A Wives as the best way to refer to women
who abuse Section 498A of the IPC. Motives And Instigators: Let’s start with
the motives and instigators:
• Money: The greatest
of motivators. A 498A can lead to great terms for a fat cash settlement, or
help her dad or sibling in their ventures, etc, etc.
• Vengeance: Hell
hath no fury like a woman scorned. She will have her revenge and your family
will collectively bear the brunt of it. The 498A Wives have a soft corner for
your mother and your sister (s). Prepare your mom and sister(s) for special
treatment. They may very well see the inside of a prison.
• Guilt: She’s done
something wrong, may have committed adultery and got caught in the act. She
wants to cover it up with a dowry harassment case to garner sympathy and to
provide cover for her guilt. It also puts her in a good position to negotiate a
fat settlement and gain custody of kids, if kids are involved. 498A will be filed
when paternity is in question. Don’t count on DNA evidence, as the courts are
reluctant to allow it. Indian law is still ruled by the evidence act from
1872.
• She Is Just Not
Into You: I’m sorry to hurt your pride, but she just doesn’t like you and wants
to get out of the marriage. The 498A is a convenient tool to do so.
• She Is A Control
Freak: She wants to control you in every possible way. She may also want you to
not support your parents and siblings in any fashion regardless of your ability
to do so. She may want you to throw your parents out of your/their house. Her
goal is to gain control of all aspects of your life, including finances and to
break the bonds and responsibilities that tie you to your family. Her failure
to do so will result in a 498A. Copyright:
ipc498A.wordpress.com 3/22 11/9/07
• To Marry The
Boyfriend: This is a new trend whereby she will file a 498A just to force you
into settling the divorce with a chunk of cash and then go on to marry her
boyfriend. They will use your cash to set up their “Chota Sa Ghar”, or
their “Premiyon Ka Mahal” if the settlement is large enough. In most cases, the
members of her family are the instigators. If her mother was the instigator,
you’ve possibly married into a family where the mother is a dominatrix. The
woman you married thinks that you should be under her control, because her
mother wears the pants in her house. She will file the 498A in retaliation for
her failure to dominate you. If her father is the instigator, the motivation is
your money. This is a much easier case to handle. If the case backfires, he
will have a 498A-filing daughter on his hands and marrying her off the second
time round will be expensive. Potential matrimonial matches are always wary of
these filers of 498A cases. If this situation applies to your case, once you
withstand the initial onslaught and don’t give in to the threats and extortion,
they will approach you for a compromise.
498A is the perfect tool for extortion and/or to wreak vengeance on you
and your family. The main ingredients that go into making it an extortion
racket are:
• The involvement of
the corrupt, Indian police force in a domestic dispute.
• The involvement of
the overburdened and unregulated lower courts and the convoluted and lengthy
Indian justice delivery system.
• The non-enforcement
of penalties (Section 182) for filing frivolous cases or for perjury.
• Political/police
influence from the other side. If this is a factor in your case, I kid you not;
you are in for an ordeal that will require extra doses of fortitude, courage
and patience to overcome.
All these factors will be used to leverage money out of you
or subject you and your family to the kind of harassment that can only be
defined as torture. It is no wonder that
the Supreme Court (Sushil Kumar Sharma Vs. Union of India Writ petition(C)
no.141 of 2005) has condemned 498A as “Legal Terrorism”, though ruling 498A constitutional.
Preparations: A 498A case does not happen overnight, signs
begin to occur much before the FIR is filed. If you are being threatened with a
498A, here are a few things you can do:
• Begin to document
daily events as away to gather evidence, in the form of letters, photos, and
witnesses, to prepare for the defense.
• Contact senior police officers such as the SP/DIG/IG/DGP
and give them in writing that you fear that a 498A will be filed against you.
Make sure that you keep copies of the letters and also ensure that they have been
stamped. These contacts can save you from arbitrary arrest especially when you
show the letters written to senior officers to the officers in the police
station for they will realize that the matter will go to the higher ups.
• Apply for anticipatory bail. Get it for all members of
your family. Though it may cost you upfront, this cost is trifling when
compared to the amount you may need to spend in the event of an arrest.
• This is a criminal case; get a criminal lawyer with a good
reputation, not a divorce lawyer. Integrity of the lawyer is of paramount
importance. Some lawyers have been selling out their clients in 498A cases.
• Talk to people. Call SIF volunteers. Get on the Internet
and research.
• Have cash handy on you at all times. Rs 50,000.00 should
be a minimum.
• If you don’t get anticipatory bail, move fast and get 3
applications ready for regular bail, one for the lower court, district court
and the High Court of your state. This will be your plan B. Plan B needs to be
activated in the event of an arrest and bail being denied by the lower courts.
• It is very important that you talk to people who have been
through this so that you don’t repeat the mistakes made by others.
• Mental Preparation. You need to start treating your spouse
like a formidable adversary. Any weakness on your side in dealing with your
spouse with softness will cost you. Don’t feel responsible for her. This is a
necessary ingredient if you want to succeed in this fight. The moment she files
a 498A against you, the balance of power shifts decisively in her favor. She is
no longer a “weak” woman, an “Abala Nari”, but an avenging angel who Copyright:
ipc498A.wordpress.com 4/22 11/9/07 has various corrupt branches of the
government working on her side, all wanting to extort their pound of flesh from
you. Getting an anticipatory bail should
be a priority. This is your first and last line of defense if you want to avoid
being jailed. If you are out on AB, you’ve pretty much won the case as you’ve
avoided the terror that the other side would’ve unleashed on you, by using the
muscle of the Indian criminal justice system. You can fight a 498A effectively,
if you are informed about basic terms, your basic rights and what awaits you
once you get entangled in the case.
Some Basic Terms: These
are some of the terms you will hear all the time. You need to understand these
terms.
• FIR: is the First Information Report. It is the
information recorded by the police officer on duty, given either by the
aggrieved person or any other person about the commission of an alleged
cognizable offence. On the basis of the F.I.R. the police commence its
investigation. If the officer in charge refuses to record the information, the
information may be sent in writing and by post, to the Superintendent of Police
who, if satisfied that such information discloses the commission of a
cognizable offence, shall either investigate the case himself or direct an
investigation to be made by any police officer subordinate to him. The police are required to register every
cognizable offence, such as 498A, by law.
• Investigation: An
“investigation” means search for material and facts in order to find out
whether or not an offence has been committed. In criminal proceedings, once a
Police Officer receives information about the commission of a cognizable
offence, he is entitled to start investigation of the matter. Investigation
includes all the proceedings of collection of evidence conducted by a police
officer or by any person who is authorized by the Magistrate in his
behalf. The following information is
from the website of the AP CID.
• No male under the age of fifteen years or woman shall be
required to attend at any place other than where they reside.
• The police officer shall orally examine the person
supposed to be acquainted with the facts and circumstances of the case.
• A person is not bound to answer those questions, which
would have a tendency to expose him to a criminal charge or to a penalty or
forfeiture.
• No statement made by any person to a police officer in the
course of investigation in writing shall be signed by the person making
it.
• No police officer shall prevent any person from making in
the course of any investigation any statement, which he may be disposed to make
of his own freewill.
• Any police officer making an investigation may, by order
in writing ask any person being within the local limits of his own or adjoining
police station to come to the police station for questioning and it is the duty
of the person called to report on the specified time and place.
• Such person is bound to answer truly all questions
relating to the case put to him by the officer. No police officer or other person shall
offer or make any such inducement, threat or promise to the • person being questioned. sheet:
• Charge When a Police officer gives a Police report under
section 173 Cr.P.C. recommending prosecution, it is called a charge sheet.
After questioning the accused and hearing the arguments, the magistrate frames
charges on the accused for which he is tried.
Arrest:
• A person is considered to be under arrest if he or she is
confined or kept in a police station or his movements are restricted to within
the precincts of the police station. Anticipatory
Bail: Anticipatory bail is a direction by a court of law t
• o release a person on bail, issued even before the person
is arrested. Bail: Bail is money that is pu
• t up for the suspect to allow him or her to remain free
until the completion of the case. Bail basically creates a financial incentive
for a suspect to appear in court. Failure to do so results in the loss of your
bail money; you’ll also get a warrant for your arrest, and you can add bail
jumping to your criminal charge too. to understand the laws, judgment Read onts
and your rights that will help you in fighting this extortion racket. Copyright:
ipc498A.wordpress.co 5/22 11/9/07
CHAPTER I
The Police, the Laws and Your Rights:
Until your case ends up in the trial court, the police will
be your primary adversary. This is what the SSP of Haridwar, Abhinav Kumar IPS,
has to say about the Indian Police force (http://tinyurl.com/2zev8w): “Let me start with the police. They remain
primarily an instrument of asserting state authority against whosoever is
perceived by the Leviathan to be the most immediate threat. In return for
servility and acceptance of the beast’s priorities, they are permitted to prey
on the weakest and most helpless sections of society. A police station in India
is a sordid monument to the worst in human nature. The squalor, the pressures,
the often thankless nature of police work would all be bearable if one felt
that the police were genuinely enabled to enforce the law and protect the weak
and helpless.” He uses the term leviathan; I would have used the phrase,
“reigning political establishment”. I
hope you now understand the nature of the Indian police force. You will be able to deal with them if you
know your fundamental rights, the laws and judgments governing the Indian police
and are informed about the process of Indian criminal justice. Legal systems all over the world have been
based upon the common maxim of “ignorantia juris non excusat”, which means that
ignorance of the law is no excuse. The principle, had first originated in the
Code of Justinian the great centuries ago. By the time you are done reading
this section, you will know more about your rights and the limitations on the
powers of the police than the police themselves. When the police feign
ignorance of the laws, you should be telling the police, “ignorantia juris non
excusat”. The Supreme Court Of India is
the final arbiter over and interpreter, of all laws. The interpretation of laws
is done through judgments. Here are some Supreme Court judgments that detail
your Fundamental Rights and some other laws that will be useful in fighting
your 498A.
The Doctrine Of Binding Precedent: The Supreme Court of
India (UNION OF INDIA & ANR.Vs RAGHUBIR SINGH (DEAD) BY LRS.DATE OF
JUDGMENT 16/05/1989) says that Article 142 of the Constitution declares that
any order of the Supreme Court is enforceable throughout the territory of India
and article 144 mandates that all civil and judicial authorities shall act in
aid of the Supreme Court. Here is an
excerpt from this judgment: “The
doctrine of binding precedent has the merit promoting a certainty and
consistency in judicial decisions, and enables an organic development of the
law, besides providing assurance to the individual as to the consequence of transaction
forming part of his daily affairs. And, therefore, the need for a clear and
consistent enunciation of legal principle in the decisions of a Court.” This
implies that all judgments, except for those marked for exception, passed by
the Supreme Court, are considered to be the law of the land and all branches of
the government need to abide by them.
The Right to Due Process: The Constitution Of India has
given its citizens certain Fundamental Rights. A combination of these basic
rights constitutes the right to due process. Due process is the idea that laws
and legal proceedings must be fair and in accordance with the established
lawful procedure. The Constitution guarantees that no government agency can violate
these basic rights of a citizen. The
Supreme Court (E.g.: Citizen for Democracy through its, president Vs. State of
Assam & Others: 1996 Cr.L.J. 3247) has repeatedly warned that: “Any violation of any of the directions
issued by us by any rank of police in the country or member of the jail establishment
shall be summarily punishable under the Contempt of Courts Act apart from other
penal consequences under law (emphasis supplied)”. Some of these
constitutionally bestowed basic rights are:
• Article 14. Equality before law: The State shall not deny
to any person equality before the law or the equal protection of the law within
the territory of India. Copyright: ipc498A.wordpress.co 6/22 11/9/07
• Article 20. Protection in respect of
Offenses: convicted
of any offence except for violation of a law in force at the time off the
commission of the conviction for
1. No person shall be c the commission of the act charged as
an offence, not be subjected to a penalty greater than that which might have
been inflicted under the law in force at the time offence.
2. No person shall be prosecuted and punished for the same
offence more than once.
3. No person accused of any offence shall be compelled to be
a witness against himself.
• Article 21. Protection of life and personal liberty: No
person shall be deprived of his life or personal liberty except according to
procedure established by law.
• Article 22. Protection against arrest and detention in
certain cases: formed, as soon as may be defended
1. No person who is arrested shall be detained in custody
without being in be denied the right to consult, and to be, of the grounds for
such arrest nor shall he by, a legal practitioner of his choice.
2. Every person who is arrested and detained in custody
shall be produced before the nearest magistrate within a period of 24 hours of
such arrest excluding the time necessary for the journey from the place of
arrest to court of the magistrate and no such person shall be detained in custody
beyond the staid period without the authority of a magistrate.
• Article 32. Remedies for enforcement of rights conferred
by this Part:
1. The right to move the Supreme Court by appropriate
proceedings for the enforcement of the rights conferred by this part is
guaranteed.
2. The Supreme Court shall have power to issue directions or
orders or writs, including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, whichever may be appropriate, for the
enforcement of any of the rights conferred by this Part. e the right to life
and liberty consistently. Among all these rights, the police violet If your
fundamental rights are violated, you have the right to:
• Go straight to the High Court or even the Supreme Court of
India.
• The Right to approach the Supreme Court in case of a
violation is a fundamental right. This link (http://tinyurl.com/24gmex)
provides some details on how to approach the Supreme Court Legal t Legal
Services Committee provides free legal service, though conditions from unlawful
detention of any person including himself.
Objects whether free or fettered - most notably the right of Habeas
Corpus, strumpet for the safeguarding the freedom of an individual against arbi
on Ghaepeated inquiries over a period of 4 days not producing any custodial
murder, filed a writ of Habeas Corpus to the Supremhonor able cot satisfied
with a wishy-washy explanation to the question of why a person was detained for
5 days, the court swung into action and this landmark judgment is the
result. Services Committee. The Supreme
Courapply. The Magna Carta, Habeas Corpus And The Powers Of The Police To
Arrest A Citizen:
A classic example of Habeas Corpus is the Supreme Court
judgment Joginder Kumar Vs. State Of U.P. 25/04/1994. This landmark judgment of
the Supreme Court defined the powers of the police to arrest a citizen. In
order to truly understand this judgment and the meaning of Habeas Corpus, a
short history lesson is needed. Habeas
Corpus (Latin:”We command that you have the body”) is the name of a legal
action, or writ, through which a person can seek relief The Magna Carta was
originally issued in 1215 and was written because of disagreements among Pope
Innocent III, King John and the English barons, about the rights of the King.
Magna Carta required the king to renounce certain rights, respect certain legal
procedures and accept that his will could be bound by the law. It explicitly protected
certain rights of the king's smeaning that they had rights against unlawful
imprisonment. Since then, in every civilized nation, the writ of
Habeas Corpus has been an important in tarry govt action. 7/Jan/1994,
a 28 year old young man from UP, with an LLB degree, Joginder Kumar, was
detained by the ziabad police for a period of 5 days. Upon ranswers from the police, the frantic
relatives, fearing ce Court under article 32 of the Constitution. By the 5th
day, the SSP (4th respondent) appeared before the court and submitted that
Joginder Kumar was released. NoCopyright: ipc498A.wordpress.com 7/22 11/9/07
The former Chief
Justice Of India, M.N. Venkatachalliah, in this landmark judgment (JOGINDER
KUMAR Vs. STATE applies in the caOF U.P, 25/04/1994), defined the powers of the
police to arrest a person. This judgment especially se of a cognizable offence
such as 498A. He stated that:
“No arrest can be made because it is lawful for the police
officer to do so. The existence of the
power to arrest is one thingification for the exercise of it is quite
another. The police officer must be able
to justify the arrases incalculable
. The justt apart
from his power to do so. Arrest and
detention in police lock-up of a person cause harm tor on a mere the reputation
and self–esteem of a person. No arrest can be made in a routine mannealltioegan
of commission of an offence made against a person. It would be prudent for a
police officer in the interest perhaps in his own interest that no arrest of
protection of the constitutional rights of a citizen and shdbation as to the
genuineness and oule made without a reasonable satisfaction reached after some
investigbona fides of a complaint and a reasonable belief both as to the
person’s complicity and even so as to the need to effect arre There are signifie
fulfilled for an arrest. These are: st. Denying a person of his liberty is a
serious matter. cant other requirements that need to b
1. The case involves a grave offence like murder, dacoity,
robbery, rape etc., and it is necessary to arrest the accused and bring his
movements under restraint to infuse confidence among the terror stricken
victims.
2. The accused is likely to abscond and evade the processes
of law.
3. The accunless his movements are used is given to violent
behavior and is likely to commit further offences brought under restraint.
4. The accused is a habitual offender and unless kept in
custody he is likely to commit similar offences again. Ittmental instructions
that a police officer making an would be desirable to insist through depararrehst
s ould also record in the case diary the reasons for making the arrest, thereby
clarifying his conformIn yet another j0, Ajeet Singh alias , while serving as a
judge on the won has reason to offence upon a police report and shall proceed
in person, or shall depute one of his subordinate l order, prescribe ity to the
specified guidelines. udgment dated 22.8.2004 (Criminal Misc.Writ Petition
No.4861 of 200
Muraha Vs. State of U.P. and others), Supreme Court Justice
Markandeya Katju
Allahabad High Court, had the following to say: "157.
Procedure for investigation –
(1) If, from information received or otherwise, an officer
in charge of a police statisuspect the commission of an offence which he is
empowered under section 156 to investigate, he shall forthwith send a report of
the same to a Magistrate empowered to take cognizance of such officer not being
below such rank as the State Government may, by general or speciain this behalf
to proceed, to the spot to investigate the facts and circumstances of the case
and if necessary to take measures for the discovery and arrest of the
offender." The above provision
clearly shows that it is not necessary to arrest in every case wherever a FIR
of cognizable offence has been registered. No doubt investigation has to be
made in every case where a cognizable offence is disclosed but in our opinion
investigation does not necessarily include arrest. Often the investigation can
be done without arresting a person, and this legal position becomes clear from section
157(1) of the Cr.P.C. because that provision states that the Police Officer has
to investigate the case, and, if necessary, to take measures for the arrest of
the offender. The use of words ' if necessary' clearly indicates that the Police
Officer does not have to arrest in every case wherever FIR has been lodged and
this position has been clarified in Joginder Kumar's case (supra). In our country unfortunately whenever an FIR
of a cognizable offence is lodged the police immediately goes to arrest the
accused. This practice in our opinion is illegal as it is against the decision
of the Supreme Court in Joginder Kumar's case, and it is also in violation of
Article 21 of the Constitution as well as section 157 (1) Cr.P.C. No doubt
section 157(1) Cr.P.C. gives a police officer discretion to arrest or not, but
this discretion cannot be exercised arbitrarily and it must be exercised in
accordance with the principles laid down in Joginder Kumar's case (supra).” Copyright:
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The police will say that 498A is a cognizable offence. By
cognizable, it means they have to REGISTER an FIR and INVESTIGATE, not arrest
the accused immediately. Think about it.
If a king has been stripped of his power r criminal record, can fall into any
of the cadet Count There fauve been granted wide disc If they d
Mayeabeas Corpus, compensation for illegal date Read onr
safeguards the hon’ble courts of the country have set in place to protect you from
Procedu The Sup to arrest without cause 800 years ago, how can the police in a
democracy claim to have that power? Keeping these judgments in mind, I am
interested in seeing how a grandmother or a grandfather, young nieces and
nephews, married and unmarried sisters and parents, without a priogories
described by Justice M.N. Venkatachalliah. summarize, the police have
discretionary powers to arrest, but they need to justify the arrest and Supreme
rt and High Courts judgments have established that some investigation must be
done before an arrest is made even then, only if necessary. Late Justice AN
Mulla (A former Judge of the Allahabad HC and author of the Mulla Committee on
prison rm) said: “I say it with all
sense of responsibility that there is not a single lawless group in the whole
country whose record of crime is anywhere near the record of that organized
unit which is known as the Indian Police Force.” Keeping the words of Justice AN Mulla in
mind, and knowing that the police hretionary powers to arrest, be prepared for
an arrest by the police. o arrest you,
they need to respect your rights and treat you professionally and with
courtesy. Later on, youse k redress in the form of contempt of court, writ
mandamus, Hntion, etc. to understand
what othe the excesses of the police. res To Be Followed Upon The Arrest Of A
Person: reme Court (D.K. Basu Vs State of W.B: (1997) 1 SCC 426) directed all
state agencies to follow these res upon arresting a person. This judgprocedument is a landmark judgment
and is sometimes referred to as the Miranda Rights Of India. It defines the
rights of detainees and the procedures the police need to follow upon affecting
an arrest. This judgment came into being due to the custodial deaths happening
all over the country (http://tinyurl.com/2b8rvb). This judgment holds any
officer at any rank to be in contempt of court if these dire“It detentio
1. The accupoli
2. The ctions are disobeyed. Here are the directions from
the Supreme Court: is, therefore appropriate to issue the following
requirements to be followed in all cases of arrest or n till legal provisions
are made in that behalf as preventive measures: police personnel carrying out
the arrest and handling the interrogation of the arrestee should bear rate,
visible and clear identification and name tags with their designations. The particulars of all such ce personnel who
handle interrogation of the arrestee must be recorded in a register. t the
police officer carrying out the arrest of the arrestee shall prepare a memo of
arrest at the time of st and such memo shall be attested by at least one
witness, who may either barree a member of the family of the arrestee or a
respectable person of the locality from where the arrest is made it shall also
be countersigned by the arrestee and shall contain the time and date of arrest.
A person who has been arrested or detained and is being held
in custody in a police station or interrogation centre or other lock-up, shall
be entitled to have one friend or relative or other person known to him or
having interest in his welfare being informed, as soon as practicable, that he
has been arrested and is being detained at the particular place, unless the
attesting witness of the memo of arrest is himself such a friend or a relative
of the arrestee. The time, place of arrest and venue of custody of an arrestee
must be notified by the police where the next friend or relative of the
arrestee lives outside the district or town through the Legal Aid Organization in
the District and the police station of the area concerned telegraphically
within a period of 8 to 12 hours after the arrest. The person arrested must be made aware as
soon as he is out under arrest or is detained.
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5. An entry must be made in the diary at the place of
detention regarding the arrest of the person which shall also disclose the name
of the next friend of the person who has been informed of the arrest and the names
and particulars of the police officials in whose custody the arrestee is.
6. The arrestee should, where he so requests, to be also
examined at the time of his arrest and
major and minor injuries, if any present on his/her body, must be recorded at
that time. The “inspection Memo” must be
signed both by the arrestee and the police officer effecting the arrest and its
copy provided to the doctor on the panel
of approved doctors appointed by Director, Health Services and districts as
well. Arrestee may be permitted to meet his lawyer during interrogation, though
not throughout the d State head quarters, where information cuous notice
board. arrestee.
7. The arrestee should be subjected to medical examination
by a trained doctor every 48 hours during his detention in custody by aof the
State or Union Territory concerned.
Director, Health Services should prepare such a panel for all tehsils
8. Copies of all the documents including the memo of arrest,
referred to above should be sent to the Illaqa Magistrate for his record.
9. The ainterrogation.
10. A police control room should be provided at all district
anregarding the arrest and the place of custody of the arrestee shall be
communicated by the officer causing the arrest, within 12 hours of effecting
the arrest and at the police control room it should be displayed on a conspi Failure
to comply with the requirements herein above mentioned shall apart from
rendering the official concerned liable for departmental action, also render
him liable to be punished for contempt of court and the proceedings for
contempt of court may be instituted in any High Court of the country, having
territorial jurisdiction over the matter.”
The Right To Bail: In the context of 498A, I am quoting
Sushil Kumar Singh in providing an explanation of bail:
“Section 437 of the Code provides for release on bail in
cases of non-bail able offences (498A). In such cases, bail is not a matter of
right. Court has sufficient discretion to deny or to grant bail. First Schedule
to the Code provides the list of bail able and non-bail able offences.” Her
Proovides guidelines for releasing a pers“Perundt
judicially, with disclibeby lThe“FixandHere is Punjab can apply for AB even
after the FIR is filed, but not if the
“35e is an excerpt of a Supreme Court judgment (Krishna
Iyer, J. in Narasimhulu and Others v Public secutor, High Court of A.P., AIR
1978 SUPREME COURT 429.) That pron on bail: sonal liberty, deprived when bail
is refused, is too precious a value of our constitutional system recognized er
Article 21 that the crucial power to negate it is a great trust exercisable,
not casually bulively concern for the cost to the individual and the community.
To glamorize impressionistic orders as retionary may, on occasions, make a
litigative gamble decisive of a fundamental right. After all, personal rty of
an accused or convict is fundamental, suffering lawful eclipse only in terms of
‘procedure established aw’. The last four words of Article 21 are the life of
that human right." Supreme Court
also said that (Moti Ram and Others v State of M.P. (AIR 1978 SC 1594)): ing an
excessively high amount of bond, keeping in consideration the facts and
circumstances of the case economic condition of the accused, violates the
constitutional norms.” an explanation of Anticipatory bail given by the Supreme
Court (Gurbaksh Singh Sibbia v The State of AIR 1980 SUPREME COURT 1632). A
personperson has been arrested. Read the excerpts to get an understanding of
AB:
. Section 438 (1) of the Code lays down a condition, which
has to be satisfied before anticipatory bail can be granted. The applicant must
show that he has "reason to believe' that he may be arrested for a non-bail
able offered founded on reasonable grounds. nce. The use of the expression
"reason to believe" shows that the belief that the applicant may be
so sted must bCopyright: ipc498A.wordpress.com 10/22 11/9/07
Thirdly, the filing of a First Information Report is not a
condition precedent to the exercise of the power under S. 438. The imminence of
a likely arrest founded on a reasonable belief can be shown to exist even if an
FIR is not yet file. Fourthly, anticipatory bail can be granted even after in
FIR is filed, so long as the applicant has not been arrested. After arrest, the
accused must seek his remedy under S. 437 or Section 439 of the Code, if he
wants to be releil in respect of the offence or offences for which he is
arrested.”TheThe Sudefined exce Ma The Thi (Nair 1978 Sc 1025). The background
of this story is that Nandini Satpathy - former Chief Minister of Orissa -
against whom a case had been registered under the Prevention of Corruption on tshe
the ng, irrespective increvidseveased on ba
Definition Of An
Arrest: preme Court (Kultej Singh Vs. Circle Inspector of Police & others:
1992 Cr.L.J 1173 (Karnataka)) has an arrest as:
“From a reading of sub-section (1) of Section 46 of the
Cr.P.C. If a person is confined or kept
in the police station or his movements are restricted within the precincts of a
police station, it would undoubtedly be a case rrest. In the instant case,of athe FIR specifically
states that Hardeep Singh was kept in the police station from the morning of
27.09.1990. Section 57 of the Cr.P.C
provides that no police officer shall detain in custody a person arrested
without warrant for a longer period than under all the circumstances of the
case is reasonable and such period shall not in the absence of a special order
of a Magistrate under Section 167, ed twenty-four hours exclusive of the time
necessary for the journey from the place of arrest to the gistrate’s
court. Thus respondents 1 and 2 were
required to produce Hardeep Singh within 24 hrs from time he was kept in the
police sthe tation as Savanur.”
Right Against Self
Incrimination: s right is conferred by article 20 of The Constitution and this
right was upheld by the Supreme Court ndini Satpathy V P.L Dani A Act, was
asked to appear before the Deputy Superintendent of Police [Vigilance] for
questioning. The police wanted to interrogate her by giving her a string of
questions in writing. She refused to answer the questionnaire, he grounds that
it was a violation of her fundamental right against self-incrimination. The
police insisted that must answer their questions and booked her under Section
179 of the Indian Penal Code, 1860, which cribes punishment for refusing to
answer any question aspersed by a public servant authorized to ask that question. The issue before the Supreme Court was
whether Nandini Satpathy had a right to silence and whether people can refuse
to answer questions during investigation that would point towards their guilt.
The Supreme Court issued following directives in the resulting judgments:
1. An accused person cannot be coerced or influenced into
giving a statement pointing to her/his guilt.
2. The accused person must be informed of her/his right to
remain silent and also of the right against self incrimination.
3. The person being interrogated has the right to have a
lawyer by her/his side if she/he so wishes.
4. An accused person must be informed of the right to
consult a lawyer at the time of question of the fact whether s/he is under
arrest or in detention.
5. Women should not be summoned to the police station for
questioning in breach of Section 160 (1) CrPC. Children below 15 and women
should not be summoned to the police station or to any other place by an investigating
officer. They should only be questioned at their place of residence. An
essential element of a fair trial is that the accused cannot be forced to give
evidence against her/himself. Forcing suspects to sign statements admitting
their guilt violates the constitutional guarantee against self-imination and
breaches provisions of the Code of Criminal Procedure, 1973 [CrPC]. It is also
inadmissible as ence in a court of law. In addition, causing hurt to get a
confession is punishable by imprisonment up to n years. (I Pulled all this from
a document hosted here http://tinyurl.com/3y95my). Copyright: ipc498A.wordpress.com 11/22 11/9/07 The
The of the High Court of Bombay having exonerated the
Superintendent of Police and other has subjected the under trial prisoner to an
unwarranted humiliation and indignity which cannot ent that the police do not
have the right to subject any citizen to indignities or The
The isely what the demands of our legal order forbid. They s
than resorting to physical torture. If the custodians of law themselves e
questions. or in other penal laws. ‘Torture’ of a human
being by another
. The the shat sometimes you can almost touch it, but it is
also so intangible that there is no way to youhe human rights has been the
subject of so many co
, “Cdestroys, to a very large ined Nidhi and applied mula of
attempting to get Nidhi to implicate her husband in a case of abduction and
forcible a response to a writ of Habeas Corpus, the Supreme Court passed this
judgment, even after Nidhi as released and brought this sorry episode to a
logical conclusion.
Right To Be Treated
With Dignity By The police: Supreme Court (Ravikant Patil Vs. The State of
Maharashtra & Others: 1991:
“A Division Benchrespondents, held that respondent 4 Shri
Prakash Chavan, Inspector of Police, who is one of the appellants before us,be
done to any citizen of Indian and accordingly directed him to pay the
compensation and he was also censured as mentioned above”. It is implicit in
this judgmhumiliation such as unwarranted handcuffing, verbal or physical
abuse, or indulge in intimidation as life, liberty of a citizen quarantined
under article 2, includes life with dignity and liberty with dignity. Liberty must
mean freedom from humiliation and indignities at the lands of the authorities
to whom the custody of a person may pass temporarily or otherwise under the law
of the land. Police Cannot Torture You
Or Resort To 3rd Degree Methods: Supreme
Court (Bhagwan Singh vs State of Punjab: 1999 Cr.L.J. 2201( Bombay) has held
that: “It may be a legitimate right of
any Officer to interrogate or arrest any suspect on some credible material but such
an arrest must be in accordance with the law and the interrogation does not
mean inflicting injuries. It should be in its true sense purposeful, namely, to
make the investigation effective. Torturing a person and using third degree
methods are of medieval nature and they are barbaric and contrary to law. The
Police would be accomplishing behind their closed doors precmust adopt some
scientific method indulge in committing crimes then no member of the society is
safe and secure. If Police Officers who have to provide security and protection
to the citizens indulge in such methods they are creating a sense of insecurity
in the minds of the citizens. It is more heinous than a game-keeper becoming a
poacher.” The Definition Of Torture And Compensation For Illegal Detention: How
does the Supreme Court define torture? Is it limited to physical violence
only? What if a citizen was detained
illegally to extract a confession by torture? Is there no provision to
compensate the person for the illegal detention? The answers to these questions lie in several
judgments of the Supreme Court, a couple of which are sufficient to answer thresher
is a definition of torture by the Supreme Court (D.K. BASU,ASHOK K. JOHRI
Vs.STATE OF WEST BENGAL,STATE OF U.P: DATE:18/12/1996 BENCH: KULDIP SINGH, A.S.
ANAND):
“Torture” has not been defined in Constitution human being
is essentially an instrument to impose the will of the ‘strong’ over the ‘weak’
by sufferingword torture today has become synonymous with the darker side of
human civilization. Torture is a wound in oul so painful theal it. Torture is
anguish squeezing in your chest, cold as ice and heavy as a stone paralyzing as
sleep and dark as the abyss. Torture is despair and fear and rage and hate. It
is a desire to kill and destroy including rself.” Adriana P. Bartow “No
violation of any one of tConventions and Declarations as ‘torture’- all aiming
at total banning of it in all forms, but inspite of the mmitments made to
eliminate torture, the fact remains that torture is more widespread not that
ever beforeustodial torture” is a naked violation of human dignity and
degradation withextent, the individual personality.” In yet another judgment, the Supreme Court
(Arvinder Singh Bagga v. State of U.P, 1994) expanded the definition of torture
to include mental torture and also provided a provision for compensation in the
event of illegal detention and torture. This judgment takes on greater
relevance in light of the murder of Rizwanur Rehman as this case involved the
elopement of a young woman, Nidhi. The police detathe usual formarriage. In wCopyright:
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