Arrest how made and rights of arrested person

What is ‘arrest’?

The term ‘arrest’ is not defined either in the Procedural Acts or in the various Substantive Acts, though Section 46, Cr.P.C., lays down the mode of arrest to be effected.

The word ‘arrest’ is derived from the French ‘Arreter’ meaning ‘to stop or stay’ and signifies a restraint of the person.

Stroud's Judicial Dictionary, 4^th Edition, volume 1, at page 184, defines the word as follows:  ‘arrest’, is when one is taken and restrained from his liberty.

Black’s Law Dictionary gives the following definition- ‘arrest’: to deprive a person of his liberty by legal authority. Taking, under real or assumed authority, custody of another for the purpose of holding or detaining him to answer a criminal charge or civil demand.

According to the text book ‘The Criminal Prosecution in England’ by Patrick Devlin- The police have no power to detain any one unless they charge him with a specified crime and arrest him accordingly. Arrest and imprisonment are in law the same thing. Any form of physical restraint is an arrest and imprisonment is only a continuing arrest. If an arrest is unjustified, it is wrongful in law and is known as false imprisonment.

Winn, L.J., in R vs. Palfrey; R vs. Sadler (1970) 2 All ER 12, when delivering the judgment of Court of which Lord Parker, C.J., was a member, said, in explaining the term ‘arrest’ : ‘It is not a question whether or not certain conditions precedent have been satisfied. The question is merely whether or not he is a person who is under arrest; whether he is under arrest or not depends on whether he is free to go as he pleases, or has been told that he is in a state of custody’.

Mode of Arrest

The modality of arrest as contemplated under Section 46 of CrPC is that while making an arrest a police officer or other person making the same

(1) should actually touch the body of the person to be arrested or
(2) should actually confine the body of the person to be arrested.

These kinds of modality of arrest are not necessary in case the person intended to be arrested submits, either by words or by action, to the authority of the arrester.    

The arrest should not only be legal and justified but it should be effected strictly according to the procedure established by law. Article 21 of the Indian Constitution provides- No person shall be deprived of his life or personal liberty except according to procedure established by law. The procedure contemplated by this Article must be ‘right, just and fair’ and not arbitrary, fanciful or oppressive.

The Criminal Procedure Code contains various provisions by and under which various authorities and private persons are empowered to arrest. An analysis of the provisions under the Code shows that a person may be arrested by 

(1) A police officer without a warrant under Sections 41(1) and 151; under a warrant under Sections 72 and 74; under the written order of an officer in charge of a police station under Sections 55 and 157; under the orders of Magistrate under Section 44 and in non-cognizable offence under Section 42;

(2) A superior police officer under Section 36; 

(3) An officer in charge of a police station under Sections 41(2) and 157; 

(4) A Magistrate under Section 44; 

(5) A military officer under Sections 130 and 131; and 

(6) A private person without warrant under Section 43; under a warrant under Sections 72 and 73; under the orders of the police officer under Section 37; and under the orders of a Magistrate under Sections 37 and 44.

Rights of Arrested person

Under the Cr.P.C., the police has been given various powers for facilitating the making of arrest, but these powers are subject to certain restraints. The imposition of the restraints can be considered, to an extent, as the recognition of the rights of the arrested person. The various rights of the arrested person are as follows:

(1) Right to know the grounds of arrest 

According to Section 50(1) Cr.P.C., every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. 

Section 50(2) of Cr.P.C. provides that in case of bailable offences, the arrested person shall be informed by the police officer, that he is entitled to be released on bail. This is also a constitutional right guaranteed under Article 22(1) of the Indian constitution- No person who is arrested shall be detained in custody without being informed as soon as may be, of the grounds for such arrest. 

It may be noted that if the arrest is made by a Magistrate without a warrant under Section 44, the case is covered neither by any of the Sections 50, 55 and 75 nor by any other provisions in the code requiring the Magistrate to communicate the grounds of arrest to the arrestee. However, in practice, the Magistrate would still be bond to state the grounds under Article 22(1) of the Constitution.

(2) Right to be taken before a magistrate without delay. 

The person making the arrest must bring the arrested person before a judicial officer without necessary delay. It is also provided that the arrested person should not be confined in any place other than a police station before he is taken to the Magistrate (Section 56 Cr.P.C.). 

(3) Right of not being detained for more than 24 hours without judicial scrutiny. 

An arrested person has the right to be brought before a Magistrate within a period of not more than 24 hours of arrest (Section 57 Cr.P.C.; Article 22(2) of the Constitution).

(4) Right to consult a legal practitioner/Legal Aid. 

The Constitution as well as the Code of Criminal Procedure recognizes the right of every arrested person to consult a legal practitioner of his choice (Article 22(1) of the Constitution; Section 303 of the Cr.P.C.).

(5) Right to be examined by a Medical Practitioner. Section 54, Cr.P.C., gives the accused the right to have him medically examined to enable him to defend and protect himself.

The Apex Court in D.K. Basu vs. State of West Bengal AIR 1997 SC 610 laid down certain basic requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as a measure to prevent custodial violence. These requirements are in addition to the constitutional and statutory safeguards and do not detract from various other directions given by the courts from time to time in connection with the safeguarding of the rights and dignity of arrestee. Some of the directions are as follows : 

(1) the police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. 

(2) The police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be 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. 

(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation center 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.

  

Disclaimer- All the contents are for general use and information. Consult your lawyer before acting.

Review : Section 114, Order 47 CPC

What is Review?

Review literally and even judicially means re-examination or re-consideration of its own decision by the very same court. Basic philosophy inherent in it is the universal acceptance of human fallibility. An application for review may be necessitated by way of invoking the doctrine ‘actus curiae neminem gravabit’ which means an act of the court shall prejudice no man. The other maxim is, ‘lex non cogit ad impossibillia’ which means the law does not compel a man to do that what he cannot possibly perform.

Section 114 of the Code of Civil Procedure (in short CPC) provides for a substantive power of review by a civil court and consequently by the appellate courts. Section 114 of the code although does not prescribe any limitation on the power of the court but such limitations have been provided for in Order 47, Rule 1 of the CPC.

The grounds on which review can be sought are enumerated in Order 47, Rule 1 CPC, which reads as under:

Application for review of judgment 

(1)   Any person considering himself aggrieved

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, 

(b) by a decree or order from which no appeal is allowed, or 

(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the court which passed the decree or made the order.

So the circumstances when review lies are

(a) cases in which appeal lies but not preferred, 

(b) cases in which no appeal lies, 

(c) decisions on reference from Court of Small Causes; and

the grounds are

(i) discovery of new and important matter or evidence, or 

(ii) mistake or error apparent on the face of the record, or 

(iii) any other sufficient reason.

Scope of an application for review is much more restricted than that of an appeal.  The Supreme Court in Lily Thomas vs. Union of India, AIR 2000 SC 1650 held that the power of review can only be exercised for correction of a mistake and not to substitute a view and that the power of review could only be exercised within the limits of the statute dealing with the exercise of such power. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained.

For review an application has to be made by the aggrieved party. Where an appeal has been preferred a review application does not lie. But an appeal may be filed after an application for review. In such event the hearing of the appeal will have to be stayed. If the review succeeds the appeal becomes infructuous.

After the amendment in Section 141 of the Code of Civil Procedure and insertion of Explanation to that Section it is clear that the provisions of Order 47 of the code do not apply to writ petitions filed in a High Court under Article 226 of the Constitution.  However, there are definitive limits to the exercise of the power of review by the High Courts.

The legal propositions set out by the Apex Court in Gujarat University vs. Sonal P. Shah, AIR 1982 Guj 58, are as follows:-

(1) The provisions of the Civil Procedure Code in Order 47 are not applicable to the High Court’s power of review in proceedings under Article 226 of the Constitution,

(2) The said powers are to be exercised by the High Court only to prevent miscarriage of justice or to correct grave and palpable errors. (The epithet ‘palpable’ means that which can be felt by a simple touch of the order and not which could be dugout after a long drawn out process of argumentation and ratiocination).

 (3) The inherent powers, though ex facie plenary, are not to be treated as unlimited or unabridged, but they are to be invoked on the grounds analogous to the grounds mentioned in Order 47, Rule 1; namely:

(i) discovery of new evidence, 

(ii) existence of some mistake/error, 

(iii) analogous ground.

These are the very three grounds referred to in Order 47, Rule 1 CPC and by declaration of law at the hands of the Supreme Court in the above case they are the hedges or limitations of the High Court’s power.

Review by the Supreme Court:

The provisions of Order 47 apply to orders passed under the Code of Civil Procedure. Article 137 of the Constitution confers power on the Supreme Court to review its judgments subject to the provisions of any law made by Parliament or the Rules made under clause (c) of Article 145. The power of the Supreme Court, therefore, cannot be curtailed by the Code of Civil Procedure.

Disclaimer: All the contents are for general use and information. Consult your lawyer before acting.

Section 154 CrPC : The First Information Report

What is the First Information Report (in short FIR) and what are the options with you when a police officer-in-charge of the police station or any other police officer, acting under the directions of the officer-in-charge of police station refuses to register FIR?

 Let us first understand what is the First Information Report?

 An information given under sub-section (1) of section 154 CrPC is commonly known as first information report though this term is not used in the Criminal Procedure Code (in short CrPC). It is the earliest and the first information of a cognizable offence recorded by an officer-in-charge of a police station. It sets the criminal law in motion and marks the commencement of the investigation which ends up with the formation of opinion under section 169 or 170 CrPC, as the case may be, and forwarding of a police report under section 173 CrPC. It is quite possible and it happens not infrequently that more information than one are given to a police officer-in-charge of a police station in respect of the same incident involving one or more than one cognizable offences. In such a case he need not enter every one of them in the station house diary and this is implied in section 154 CrPC. Apart from a vague information by a phone call, the information first entered in the station house diary, kept for this purpose, by a police officer-in-charge of a police station is the first information report- FIR postulated by section 154 CrPC. All other information made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the first information report and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under section 162 CrPC. No such information/statement can properly be treated as an FIR and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of CrPC.

 Take a case where an FIR mentions cognizable offence under section 307 or 326 IPC and the investigating agency learn during the investigation or receive fresh information that the victim died, no fresh FIR under section 302 IPC need be registered which will be irregular; in such a case alteration of the provision of law in the first FIR is the proper course to adopt.

 Let us consider a different situation in which H having killed W, his wife, informs the police that she is killed by an unknown person or knowing that W is killed by his mother or sister, H owns up the responsibility and during investigation the truth is detected, it does not require filing of fresh FIR against H – the real offender who can be arraigned in the report under section 173(2) or 173(8) of CrPC, as the case may be.

 Purpose and Object.

 The purpose of registration of FIR is manifold that is to say
 (1) to reduce the substance of information disclosing commission of a cognizable offence, if given orally, into writing.
 (2) If given in writing to have it signed by the complainant.
 (3) To maintain record of receipt of information as regards commission of cognizable offences.
 (4) To initiate investigation on receipt of information as regards commission of cognizable offence.
 (5) To inform Magistrate forthwith of the factum of the information received.

 The principal object of the FIR from the point of view of the informant is to set the criminal law in motion and from the point of view of the investigating authorities is to obtain information about the alleged criminal activity so as to be able to take suitable steps to trace and bring to book the guilty. 

Evidentiary value of FIR.

 FIR is not a piece of substantive evidence. It can be used only for limited purposes, like corroborating under section 157 of the Evidence Act or contradicting (cross-examination under section 145 of Evidence Act) the maker thereof, or to show that the implication of the accused was not an after-thought. It can also be used under section 8 and section 11 of the Evidence Act. Obviously, the FIR cannot be used for the purposes of corroborating or contradicting or discrediting any witness other than the one lodging the FIR. It cannot be used for corroborating the statement of a third party. If the FIR is of a confessional nature it cannot be proved against the accused-informant, because according to section 25 of the Evidence Act, no confession made to a police officer can be proved as against a person accused of any offence. But it might become relevant under section 8 of the Evidence Act.

What you will do when police officer refuse to register FIR? 

The police cannot refuse to register the case on the ground that it is either not reliable or credible (Smt. Gurmito vs. State of Punjab And Ors 1996 CriLJ 1254 P&H). Further, refusal to record FIR on the ground that the place of crime does not fall within the territorial jurisdiction of the police station, amount to dereliction of duty. Information about cognizable offence would have to be recorded and forwarded to the police station having jurisdiction (State of Andhra Pradesh vs. Punati Ramulu And Others, AIR 1993 SC 2644).

When a police officer-in-charge of a police station or any other police officer, acting under the directions of the officer-in-charge of police station refuses to register information, any person aggrieved by such refusal may send in writing and by post, the substance of such information disclosing a cognizable offence, to the Superintendent of Police under section 154(3) or to the Magistrate concerned under section 156(3) of the CrPC. It is the duty of the officer-in-charge of the police station to register an FIR when investigation under section 156(3) of CrPC is directed by the Magistrate, even when the Magistrate explicitly does not say so (Mohd. Yoysuf vs. Afaq Jahan, (2006), SCC 627).

Latest Case Law

Whether a police officer is bound to register a First Information Report (FIR) upon receiving any information relating to commission of a cognizable offence under Section 154 of the Code of Criminal Procedure, 1973 or the police officer has the power to conduct a 'preliminary inquiry' in order to test the veracity of such information before registering the same?

The Supreme Court of India, in Lalita Kumari vs. Govt. of UP on 12 November, 2013 held that 'the police must compulsorily register the FIR on receiving a complaint if the information discloses a cognizable offence, and no preliminary inquiry is permissible in such a situation'.

If the information does not disclose a cognizable offence but indicates the necessity for an inquiry 'a preliminary inquiry may be conducted only to ascertain whether a cognizable offence is disclosed or not'. In cases where preliminary inquiry ends in closing the complaint a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/family disputes;
(b) Commercial Offences;
(c) Medical negligence cases;
(d) Corruption Cases;
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry. A preliminary inquiry should be made time bound, and in any case it should not exceed seven days.

 Punishment for giving false information. 

 Punishment for giving false information to the police is dealt with by sections 182, 203 & 211 of IPC. Even if such information is not reduced to writing under Section 154(1) of CrPC, the person giving the false information may nevertheless be punished for preferring a false charge under section 211 of IPC. A police officer refusing to enter in the diary a report made to him about the commission of an offence, and instead making an entry totally different from the information given, would be guilty under Sections 166A and 177 of IPC.

Some Useful Email ID for Online Complaint

Did you know, in Dhanbad  you can make/lodge your complaint/FIR online through Email ID of respective police stations which are as follows:-

1. Baghmara PS Dhanbad........................................................dnbps-baghmara@jhpolice.gov.in

2. Baliapur PS Dhanbad...........................................................dnbps-baliapur@jhpolice.gov.in

3. Barora PS Dhanbad.............................................................dnbps-barora@jhpolice.gov.in

4. Bank More PS Dhanbad......................................................dnbps-bankmore@jhpolice.gov.in

5. Barwadda PS Dhanbad........................................................dnbps-barwadda@jhpolice.gov.in

6. Chirkunda PS Dhanbad........................................................dnbps-chirkunda@jhpolice.gov.in

7. Dhanbad PS Dhanbad..........................................................dnbps-dhanbad@jhpolice.gov.in

8. Dhansar PS Dhanbad...........................................................dnbps-dhansar@jhpolice.gov.in

9. Govindpur PS Dhanbad........................................................dnbps-govindpur@jhpolice.gov.in

10. Hariharpur PS Dhanbad.....................................................dnbps-hariharpur@jhpolice.gov.in

11. Jharia PS Dhanbad.............................................................dnbps-jharia@jhpolice.gov.in

12. Jogta PS Dhanbad.............................................................dnbps-jogta@jhpolice.gov.in

13. Jorapokhar PS Dhanbad....................................................dnbps-jorapokhar@jhpolice.gov.in

14. Loyabad PS Dhanbad........................................................dnbps-loyabad@jhpolice.gov.in

15. Katras PS Dhanbad...........................................................dnbps-katras@jhpolice.gov.in

16. Kenduadih PS Dhanbad.....................................................dnbps-kenduadih@jhpolice.gov.in

17. Mahuda PS Dhanbad.........................................................dnbps-mahuda@jhpolice.gov.in

18. Maduban PS Dhanbad.......................................................dnbps-madhuban@jhpolice.gov.in

19. Nirsa PS Dhanbad.............................................................dnbps-nirsa@jhpolice.gov.in

20. Saraidhela PS Dhanbad.....................................................dnbps-saraidhela@jhpolice.gov.in

21. Putki PS Dhanbad.............................................................dnbps-putki@jhpolice.gov.in

22. Sudamdih PS Dhanbad......................................................dnbps-sudamdih@jhpolice.gov.in

23. Tetulmari PS Dhanbad.......................................................dnbps-tetulmari@jhpolice.gov.in

24. Sindri PS Dhanbad............................................................dnbps-sindri@jhpolice.gov.in

25. Patherdih PS Dhanbad......................................................dnbpd-patherdih@jhpolice.gov.in

26. Topchanchi PS Dhanbad...................................................dnbps-topchanchi@jhpolice.gov.in

27. Tundi PS Dhanbad............................................................dnbps-tundi@jhpolice.gov.in

28. Tisra PS Dhanbad.............................................................dnbps-tisra@jhpolice.gov.in

29. Rajganj PS Dhanbad.........................................................dnbps-rajganj@jhpolice.gov.in

AND

Email ID of SP Dhanbad is.......................................................sp-dhanbad@jhpolice.gov.in

Further, in Bihar/Jharkhand during travelling through train i.e. in running train you can make/lodge your complaint with respect to any crime/misbehaving online to sp-rlypat-bih@nic.in ( Railway Minister twitter handle is https://twitter.com/sureshpprabhu )by mentioning your train number, coach number, birth number along with your address and mobile number. Prompt action is to be taken by the Railway.

You may also use security helpline number issued by Railway Board which is 1800111322 or lodge your FIR on telephone number 1512.

Quiz Corner

(i) First Information Report

(a) relates to cognizable or non-cognizable offence

(b) is given to a magistrate or police officer

(c) relates prima facie to a cognizable offence

(d) may be given to the District Magistrate. 

(ii) Under Section 154(3) of crpc, if the officer-in-charge of a police station refuses to record the first information, the aggrieved person may send, in writing and by post, the substance of such information to the

(a) District Magistrate

(b) Judicial Magistrate

(c) Superintendent of Police

(d) any one of the above.

(iii) FIR is not a substantive evidence, it can be used during trail

(a) to corroborate the informant

(b) to contradict the informant

(c) both (a) & (b)

(d) neither (a) nor (b).

(iv) When information is given to an officer-in-charge of a police station of the commission, within the limits of such station, of a non-cognizable offence, he shall

(a) reduce it into writing and read it over to the informant

(b) enter the substance of the information in a book kept by such officer and shall take signature of informant

(c) proceed to the place of incident

(d) none of the above.

Disclaimer:All the contents are for general use and information. Consult your lawyer before acting.

Mutation or Dakhil-Kharij

In Jharkhand there are more than 210 Anchal or Block Offices where CO (circle officer) will sit and he may be authorized to sanction mutations in respect of holdings within his jurisdiction. The Land Reforms Deputy Collectors i.e. L.R.D.C. will have powers to hear mutation appeals from the orders of a Circle Officer. The L.R.D.C. will also have powers to file certificate cases. The A.C. (Additional Collector) have supervision power over the D.C.L.R. and C.O. 

Land reforms, land tenure, land records, consolidation of holding related matters are the subject of Department of Land Reforms. Recovery of claims in respect of arrears of Land Revenue is also the subject matter of the department of Revenue and Land Reforms.

Mutation (in Hindi Dakhil-Kharij) is the recording of a transfer of title of a property from one person to another in the revenue records. Registration is one part and mutation is second. After registry, mutation is needed. Mutation is a Must. It is because of mutation that your name (as the owner of house) comes in Nagar Nigam Records. Compensation is given to farmers based on the mutation records and not on the registry records. If person ‘A’ has registry in his name of a piece of land AND for the same land mutation is in the name of person ‘B’, then Government will give compensation to person ‘B’ and not ‘A’.

For mutation, approach Anchal/Block Office of the area where the land is situated with mutation charges and application on a plain paper, along with Non-judicial Stamp of maximum of Rs. 5/- containing the following information (i) the name of the village in which the right has been acquired; (ii) the description of the right acquired; (iii) the name, parentage, caste and residence of the person from whom the right has been acquired; (iv) the manner in which the right has been acquired; (v) the name, parentage, caste and residence of the person who has acquired the right; and (vi) the date on which the right was acquired. Copy of document on the basis of which the mutation is sought e.g. Sale Deed, Will etc.

On your application, Circle Officer has to act within a month that is either he accept your application or reject it on some technical ground but when he reject your mutation application on technical ground, he shall communicate the reason thereof.

     
 Disclaimer: All the contents are for general use and information.  Consult your lawyer before acting.

Police Investigation and Charge Sheet

What is Charge sheet? 

When the investigation is complete, the police officer is required to submit a report under Section 173 of the Code of Criminal Procedure (in short Cr PC) to the Magistrate stating the name of the parties, the nature of information, etc. This report is known as the ‘charge-sheet’ or ‘challan’ if a prima facie case is made out against the accused or ‘Final Report’ if no such case is made out. Charge-sheet forms the basis of the case in the Court.

Under Section 173 (2) (i), as soon as the investigation is completed, the officer-in-charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the prescribed form stating:

(a) the name of the parties, 

(b) the nature of the information, 

(c) the names of the persons who appear to be acquainted with the circumstances of the case, 

(d) whether any offence appears to have been committed and if so, by whom, 

(e) whether the accused has been arrested, 

(f) whether he has been released on his bond and if so, whether with or without sureties, 

(g) whether he has been forwarded in custody under Section 170, Cr PC.
(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under Sections 376, 376A, 376B, 376C or 376D of the Indian Penal Code.

Section 173 (2) (ii) provides that the officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.

According to Section 2(h) of Cr PC, 'investigation' includes all the proceedings under the Code for the collection of evidence conducted by the police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf. 

     

The Supreme Court in H.N.Rishbud vs. State AIR 1955 SC 196, has viewed the investigation of an offence as generally consisting of- 

(i) proceeding on the spot; 

(ii) ascertainment of the facts and circumstances of the case; 

(iii) discovery and arrest of the suspected offender; 

(iv) collection of evidence relating to the commission of the offence which may consist of – 

(a) the examination of various persons (including the accused) and the reduction of their statements into writing, 

(b) the search of places or seizure of things considered necessary for the investigation or to be produced at the trail; and

(v) formation of the opinion as to whether on the materials collected there is a case to place the accused before a Magistrate for trail, and if so, taking the necessary steps for the same by the filing of a 'charge sheet’ under Section 173 Cr PC.

After the completion of the investigation, it is for the investigating police officer to form an opinion as to whether or not there is a case to place the accused before the Magistrate for trail. He would then follow the procedure laid down in Section 169 or 170 Cr PC and submit a report under Section 173 of Cr PC. The Magistrate receiving the report has no power to direct the police to submit a particular kind of report; if he considers the conclusions reached by the police officer as incorrect, he may direct the police officer to make further investigation under Section 156 of Cr PC.

The police report under Section 173, Cr PC will contain the facts and the conclusions drawn by the police there from. The Magistrate is expected to apply his judicial mind to the report and he is not bound by the conclusions drawn by the police. He may differ with the police report, be it a ‘charge-sheet’ (or ‘final report’). He may decide to issue process even if the police recommend that there is no sufficient ground for proceeding further (H.S. Bains vs. State 1981 SCR (1) 935).

In Kaptan Singh & others vs. State of M.P. (1997) 4 SC 211, the Apex Court observed : it is trite that result of investigation can never be legal evidence. Police report submitted under Section 173 Cr PC is the outcome of an investigation. The result of investigation under Chapter xii of the Criminal Procedure Code is a conclusion that an investigating officer draws on the basis of materials collected during investigating and such conclusion can only form the basis of a competent court to take cognizance thereupon under Section 190(1)(b) Cr PC and to proceed with the case for trail, where the materials collected during investigation are to be translated in to legal evidence. The trail conclusion solely on the evidence adduced during the trail; and it cannot rely on the investigation or the result thereof.  

Power of police to conduct further investigation, even after laying final report, is recognized under Section 173(8) of Cr PC (Sri BSSVVV Maharaj vs. State of UP 1999 CrLJ 3661 SC).

When a power under sub section (8) of Section 173 of Cr PC is exercised, the Court ordinarily should not interfere with the statutory powers of the investigating agency. The Court cannot issue directions to investigate the case from a particular angle or by a particular agency (Popular Muthiah vs. State 2006 (7) SCC 296).

But in State of Punjab vs. CBI and others (2011) 11 SCR 281, where the state local police was unable to carry out investigation due to involvement of state political leaders and senior police officers, the Supreme Court observed that in a case where charge sheet has been filed, Section 173(8) of Cr PC cannot limit or affect the inherent powers of the High Court to pass an order under Section 482 of Cr PC for fresh investigation or re-investigation if the High Court is satisfied that such fresh investigation or re-investigation is necessary to secure the ends of justice.

Disclaimer: All the contents are for general use and information. Consult your lawyer before acting. 

Gang Rape, Punishment & Rules of Evidence in the Context of The Criminal Law (Amendment) Act, 2013

When a woman is raped by one or more of a group of persons, acting in furtherance of their common intention, each of such person is deemed to have committed gang rape (Section 376 D, IPC).

Punishment for rape: Section 376 of Indian Penal Code (in short IPC) talks about the punishment for rape. The minimum punishment for rape is rigorous imprisonment of either description for a term which shall not be less than 7 years, but which may extend to imprisonment for life, and shall also be liable to fine(Section 376 (1), IPC) and that for custodial rape, rape on a pregnant woman, rape on a woman under 16 years of age is rigorous imprisonment for a term which shall not be less than 10 years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine(Section 376(2), IPC ).

Further Section 376A, IPC says that whoever, commits an offence punishable under sub-section (1) or sub-section (2) of Section 376 and in the course of such commission inflicts an injury which causes the death of the woman or causes the woman to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than 20 years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, or with death.

Punishment for gang rape under Section 376D, IPC is rigorous imprisonment for a term which shall not be less than 20 years, but which may extend to life which shall mean imprisonment for the remainder of that person's natural life, and with fine provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim. Provided further that any fine imposed under this Section shall be paid to the victim.

Punishment for repeat offenders is given under Section 376E, IPC which reads as whoever has been previously convicted of an offence punishable under Section 376 or Section 376A or Section 376D and is subsequently convicted of an offence punishable under any of the said Sections shall be punished with imprisonment for life which shall mean imprisonment for the remainder of that person's natural life, or with death.    

Rules of evidence:- Under the Indian Evidence Act,1872, ‘Evidence’ means and include all statements which the Court permit or requires to be made before it by witnesses, in relation to the matters of fact under inquiry. Under Section 59, all facts, except the contents of documents, may be proved by oral evidence. Section 134 says- no particular number of witnesses shall in any case be required for the proof of any fact. Section 118 then tells us who may give oral evidence. According to that Section all persons are competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Even in case of an accomplice Section 133 provides that he shall be competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. However illustration (b) to Section 114, which lays down a rule of practice, says that the Court ‘may’ presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. Thus under Section 133, which lays down a rule of law, an accomplice is a competent witness and a conviction based solely on his uncorroborated evidence is not illegal although in view of Section 114, illustration (b), Courts do not as a matter of practice do so and look for corroboration in material particulars. This is the conjoint effect of Section 133 and 114, illustration (b).

A woman who has been raped is not an accomplice and therefore she cannot be put on par with an accomplice. Thus, for a conviction for rape, corroboration of the testimony of the raped woman is not necessary. In Bharwada Bhogibhai Hirjibhai vs. State of Gujarat, 1983 Cr LJ 1096, the Gujarat High Court observed- corroboration is not the sine qua non for a conviction in a rape case.  As a rule of prudence, the Court normally looks for some corroboration of her testimony so as to satisfy its conscience that she is telling the truth and that the person accused of rape has not been falsely implicated. 

Ordinarily the evidence of a prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence; unless there are special circumstances which call for greater caution, in which case it would be safe to act on her testimony if there is independent evidence lending assurance to her accusation. 

The circumstances in which the corroboration of the testimony of the victim of a rape would be necessary have been explained in State of Maharashtra vs. Chandraprakash Kewal Chand Jain AIR 1990 SC 658. The Supreme Court observed: to insist on corroboration except in rarest of rare cases is to equate a woman who is a victim of lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated.

In State of Punjab vs. Gurmit Singh and others, 1996 Cr LJ 1728, the Apex Court observed: the testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Court should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases, amounts to adding insult to injury. Why should the evidence of a girl or a woman, who complains of rape or sexual molestation, is viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge leveled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration, notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape.

The importance of medical evidence has been explained by the Supreme Court in Prithi Chand vs. State of H.P, AIR 1989 SC 702. If the evidence of victim does not suffer any basic infirmity, and, the probability-factor does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected, to be forthcoming. Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is likelihood of her having leveled such an accusation on account of the instinct of self-preservation or when the probability-factor is found to be out of tune. 

Disclaimer: All the contents are for general use and information. Consult your lawyer before acting.

Identification of person arrested : Section 54-A Cr PC

Section 54-A of the Code of Criminal Procedure, 1973 empowers the Court to direct specifically the holding of the identification of the arrested person at the request of the prosecution.

Section 54-A of the Code of Criminal Procedure ( in short Cr PC ) reads as follows: 

Where a person is arrested on a charge of committing an offence and his identification by any other person or persons is considered necessary for the purpose of investigation of such offence, the Court, having jurisdiction, may on the request of the officer in charge of a police station, direct the person so arrested to subject himself to identification by any person or persons in such manner as the Court may deem fit.

Further, Section 53-A of the Code of  Criminal Procedure talks about examination of person accused of rape by medical practitioner which reads as follows:

(1) When a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place where the offence has been committed by any other registered medical practitioner, acting at the request of a police officer not below the rank of a sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose.

(2) The registered medical medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely:-
(i)  the name and address of the accused and of the person by whom he was brought,
(ii)  the age of the accused,
(iii)  marks of injury, if any, on the person of the accused,
(iv)  the description of material taken from the person of the accused for DNA profiling, and
(v) other material particulars in reasonable detail.

(3) The report shall state precisely the reasons for each conclusion arrived at.

(4) The exact time of commencement and completion of the examination shall also be noted in the report.

(5) The registered medical practitioner shall, without delay, forward the report of the investigating officer, who shall forward it to the Magistrate referred to in Section 173 as part of the documents referred to in clause (a) of sub-section (5) of that section.

Explanation of the term 'examination' and 'registered medical practitioner' as it appeared in the Section 53 of the Code of Criminal Procedure are as follows: 

(a) 'examination' shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case.

(b) 'registered medical practitioner' means a medical practitioner who possess any medical qualification as defined in clause (h) of Section 2 of the Indian Medical Council Act, 1956 and whose name has been entered in a Medical Register.

Relevancy of 'identification' is given under Section 9 of the Indian Evidence Act, 1872.

The object of conducting a 'test identification parade' is two fold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence.

Test identification parade must be held at earliest possible opportunity with necessary safeguards and precaution. At the parade people with similar height and features should be mixed up with the accused in proportion of not less than 1 to 9. Magistrate should also take care that there is no occasion for any police officer to be present at the parade to prompt the witness.

The identification parades belong to the stage of investigation and are essentially governed by the Section 162 of the Code of Criminal Procedure. Where an accused himself refuses to participate in a test identification parade, in such case, it is not open to him to contend that the statement of the eye-witnesses made for the first time in Court, wherein they specifically point towards him as a person who had taken part in the commission of crime should not be relied upon ( Munna vs. State AIR 2003 SC 3805 ).

Disclaimer: All the contents are for general use and information. Consult your lawyer before acting