image description

Interview with winner of 8th ULC-Ranka Moot Court Competition-2019

 

This is an interview of Abhishek Paliwal, Ajaiy Bhaskar(Mooters) and Anmol Sharma (Researcher), of Manipal University, Jaipur. They won the 8th ULC-Ranka State Moot Court Competition-2019 held at University Law College, Jaipur. The questions have been answered by Anmol Sharma on behalf of his team. Interview has been taken by Minakshi Yadav.

1. What do you think a team would need to nail the moot?  

Firstly, like every other moot , the team needs to be careful with every aspect of the fact and the law related with it. One must interlink both and come up with legitimate grounds to support the petition from either side. one has to read the problem multiple times, like nothing less than 20-25 times. 

Usually, a single word or a single phrase in the problem gave rise to an entire ground to support an argument. while pleading, confidence is the key factor. Judges will continuously attempt to blend you up and throw you off track, but you've got to come back to the mainstream after handling their questions, to which confidence becomes indispensible. 

2. It seems that the competition was fierce. How was your overall experience?

There were a total of 22 participating teams so competition was in fact furious. Qualifying for the quarter-finals was the hardest and trickiest bit , based on aggregate speaker scores and memorial marks. Subsequently in both Prelim rounds, we had to ensure that our pleadings were not just great but remarkable. Thereafter in the subsequent rounds, qualification was subject only to total Speaker scores, and we had to ensure that both our arguments as well as our way of presentation was better and more persuading than the other team.

3. Court etiquettes, the manner in which the judges and the issues are addressed and your pattern- all matters a lot. What in the speech of your team’s mooter you think was different to cling on the judge’s mind?

One might not always have the back of law to back an argument; then again certain questions are inquired by the judges out of the proposition, to reply which you've got to necessarily deal with the intricacies of the facts. Apart from our sound backing of law, I think it is the analogies drawn by us from the facts to form our contentions complete and persuading, that really clicked and gave us an extra edge over the others.

4.  Did you have some kind of strategists or mentor guiding your preparation in the moot or some guidance from seniors who had been to the moot before? 

All of us had not mooted  and we were  new to the circuit.  We were  assigned a mentor  like every other team, to aid us in the preparation of this moot.  Our mentor helped us in multiple ways, right from structuring our arguments to taking our pleadings. Apart from this, there were other seniors too who helped us to a great extent, starting from drafting to taking pleadings and even when it came to providing motivation. 

5. What was your team plan when it comes to preparing for the competition?

The initial thought was to sit down together and research on each of the issues thoroughly so that we’d be clear on all the considerable grounds included within the problem. We had also sub-divided issues among ourselves and worked out upon by the particular individual. Though in the beginning month of our preparation we couldn’t meticulously give time to sit down and work together, towards the final stage, we worked really hard, relinquishing on everything else starting from internal exams to normal course work. 80% of our work may be attributed to those last 3 weeks preceding memo submission. Once memo submission was done, we practiced pleadings each single day, leading right upto the verbal rounds. It was then  we encountered substantial flaws and corrected them.

6. A lot depends on the memorial when it comes to speaking. How well do you think this statement is justified in case your team’s perspective?

Our memorials were praised by numerous judges due to the articulate manner in which we had framed our arguments, additionally due to the formatting. If the memorial is well structured, it definitely gives you a fundamental flow in which you need to proceed while contending. However, to persuade the judge, one should structure arguments out of the memorials and explain every intricacy of it. The memorial is simply a outline of the arguments. Then again ideally, one ought to be so well versed with the flow that he or she need not even refer to the memorial. In such a case, the memorial does not serve much purpose except for referring to the authorities cited. It was the same with our team.

7. Some advice that you would give to the budding mooters?

Hard work is the key to success. Hard work means working sincerely and meticulously. It would mean if you're citing a judgment, taking the endeavors of reading at least the crux of the judgment, before relying upon it, and not just since it has been mentioned within the commentary. It is that willingness to go the extra mile that sets you apart from the others. Before you go forth to do a moot, you have to ask yourself what your desires are. If the answer is winning it, there ought to be no turning back from that point and you should do every single thing that is necessary to achieve the end. It is only when you want to win it as gravely as you want to breathe air.

 

image description

2019 GENERAL ELECTIONS IS ‘REALLY’ WHAT NATION WANTS!

Yes, the wait for change, improvement in policies and livelihood is over. The dates for 2019 General Election (the 17th Lok Sabha) are announced by the Election Commission. They are scheduled and will be held in seven phases from 11th April, 2019 to 19th May, 2019, with the first voting phase to be conducted on 11th April, 2019. The seven phases will cover a total of 543 constituencies. It has been stated that simultaneously elections will also be held to the assemblies of Arunachal Pradesh, Andhra Pradesh, Sikkim, and Odisha. The results of the 2019 general election will be announced on 23rd May, 2019.

The voter-verified paper audit trail (VVPAT) system which enables electronic voting machines to record each vote cast by generating the EVM slip, will be introduced in all 543 Lok sabha constituencies. A total of 17.4 lakh VVPAT units and 39.6 lakh EVMs will be used in as many as 10,35,918 polling stations during the elections. On 9 April 2019, Supreme Court of India gave the judgment, ordering the Election Commission of India to increase VVPAT slips vote count to five randomly selected EVMs per assembly constituency, which means Election Commission of India has to count VVPAT slips of 20,625 EVMs. Though the exercise of matching EVM results with paper trail machine slips was being held in various assembly elections, this is the first time it will be undertaken in Lok Sabha polls. According to the Election Commission of India, 900 million people were eligible to vote, with an increase of 84.3 million voters since the last general election in 2014, making this the largest-ever election in the world.

India is a sovereign, socialist, secular democratic republic and therefore Democracy is one of the inalienable basic features of the Constitution of India and forms part of its basic structure. The concept of democracy, as visualized by the Constitution, pre-supposes the representation of the people in Parliament and State Legislatures by the method of election.  For democracy to survive rule of law must prevail and it is necessary that the best available men should be chosen as people’s representatives for proper governance of the country.  And for the best available men to be chosen as people’s representatives, elections must be free and fair and conducted in an atmosphere where the electors are able to exercise their franchise according to their own free will.  

India has adopted the British Westminster system of parliamentary form of government.  We have an elected President, elected Vice-President, elected Parliament and elected State Legislature for every State.  Now, we also have elected municipalities, panchayats and other local bodies.  For ensuring free and fair elections to these offices and bodies, there are three pre-requisites: (1) an authority to conduct these elections, which should be insulated from political and executive interference, (2) set of laws which should govern the conduct of elections and in accordance whereof the authority charged with the responsibility of conducting these elections should hold them, and (3) a mechanism whereby all doubts and disputes arising in connection with these elections should be resolved. The Constitution of India has paid due attention to all these imperatives and duly provided for all the three matters. 

The various Acts and Rules relating to the Election Laws are as follows:-

Presidential and Vice-Presidential Elections Act 1952

This act was enacted by the Indian Parliament for the election to the offices of President and Vice-President of India.

Presidential and Vice-Presidential Elections Rules 1974

This is a supplementary set of rules to the Presidential and Vice-Presidential Elections Act 1952.

Representation of the People Act 1950

This Act governs the conduct of elections to State Legislatures and to Parliament. This act is concerned with the preparation of electoral rolls and their revisions.

The Registration of Electors Rules 1960

Under Section 28 of the Act, these rules were made by the Central Government along with the Election Commission, and supplements the provisions of this act with detailed rules. All rules relating to the preparation of electoral rolls, their periodic updating and revision fall under this provision. It provides for the registration of eligible electors and the issue of voter ID cards or electoral identity cards with the voter’s photograph. It also includes rules on the inclusion of eligible voters, the exclusion of ineligible voters and any corrections required. With these rules, the Election Commission is empowered to prepare the photo electoral rolls which will contain the name, photograph and other particulars of the electors.

Representation of the People Act 1951

This Act governs the actual conduct of elections to State Legislatures and to Parliament. According to this Act, all post election matters that comprise of doubts and disputes that arise out of the elections or are in connection with the elections, will be dealt with in accordance to the provisions of this Act. All disputes can be raised in the High Court of the respective State. These post election matters can be raised after the election is over and not during the process of it.

Conduct of Elections Rules 1961

These rules were framed under Section 169 of the Act by the Central Government along with the Election Commission. It deals with detailed rules for every stage of the conduct of elections. It encompassses the issue of the writ notification for conducting elections, filing of nominations, and the scrutiny of the nominations. It also deals with withdrawal of candidates. Taking the polls and counting votes are also governed by these rules. Finally, the constitution of the Houses based on the results are also categorised under these rules.

Election Symbols (Reservation and Allotment) Order 1968

This order governs matters of reservation of election symbols for political parties at National and State levels. Election symbols serve as public recognition of the party. It serves the purpose of allotment of symbols to the various candidates who wish to stand for elections. This order also helps in the resolution of disputes between splinter groups.

Model Code of Conduct

Under Article 324 of the Constitution of India, the Election Commission has the right to exercise its power in the enforcement of the Model Code of Conduct. This Code is a unique document which helps guide political candidates and parties. The Model Code of Conduct was created by the political parties to ensure fair elections for all parties involved. It governs matters related to conduct and the maintenance of a level playing field throughout the elections. It also provides for rules against the misuse of official machinery and power by the ruling party to ensure that they do not unfairly further the electoral prospects of their own candidates.

The Acts and Rules listed above empower the Election Commission to issue directives to deal with different aspects involved with the preparation of electoral rolls, its revision and the actual conduct of elections. All grievance related to the elections will have to be resolved under the Representation of the People Acts 1950 and 1951, and the Registration of Electors Rules 1960 and Conduct of Elections Rules 1961. These Acts and Rules form a complete set of rules and a code for all matters relating to the elections to the State Legislatures and Houses of Parliament.

 

 

More...

Malegaon Blast Victim's Father Files Application before Spl NIA Court requesting to restrict Pragya Thakur to contest election.
Nisar Ahmed Sayyed Bilal, a 59-year-old resident of Malegaon, Nashik has filed an intervention application before Special NIA Court seeking directions to restrain Pragya Singh Thakur from contesting elections. Thakur is one of the main accused in the Malegaon blast case of 2008. Pragya Thakur is set to contest the upcoming Lok Sabha elections from Bhopal on a BJP ticket. Pragya Thakur was arrested on 23rd October 2008 and is in custody since last more than 8 years. She is on an enlarged bail on the ground of illness. She in her bail application stated that she is suffering form breast cancer and is not even is state to walk without support.
Date - Fri, 19 Apr 2019 12:10 PM


Relief to journalist Poonam Agarwal, Bombay HC Quashes FIR Against her.
In a relief to journalist Poonam Agarwal, Associate Editor of "The Quint", the Bombay High Court quashed the FIR registered against her. She was accused of abetment of suicide of a jawan who was interviewed by her in a sting video. A sting operation was conducted by her with assistance of an ex-military man and Kargil War veteran Deepchand Singh. The sying operation was conducted to show that 'sahayak system' of engaging subordinate officers for menial work for seniors was being followed in army camps, despite its ban by Army as per Circular dated 19th January 2017. After the video went viral online, Lance Naik Roy Mathew, who was interviewed in the video, committed suicide by hanging on March 7, 2017. Following this, an FIR was registered for abetment of suicide against Poonam Agarwal and Deepchand for offences punishable under Sections 306,451, 500 read with 34 of the Indian Penal Code. Offences punishable under Sections 3 and 7 of the Official Secrets Act were also included in the FIR.
Date - Fri, 19 Apr 2019 12:10 PM


Murder Accused acquitted after 20 years, since he was juvenile at the time of incident
Supreme Court acquitted a murder accused after 20 years of commission of alleged murder on the crucial finding that the accused was a minor at the time of commission of the offence. In the case Ashok Kumar Mehra & Anr v. State of Punjab, the appellant along with his father was convicted for the offences under 302 r/w 34 of IPC and sentenced to undergo imprisonment for life by the High Court of Punjab and Haryana wherein the order of acquittal of the Sessions Judge was reversed by the High Court on an Appeal and Revision preferred by the State as well as the complainant. An appeal was filed against the conviction by the High Court, however the father of the appellant expired during the pendency of the appeal and hence his appeal stood abated. The division bench comprising of Justice Abhay Manohar Sapre and Justice Dinesh Maheshwari of the Supreme Court observed that since the appellant was below 18 years of age during the commission of the offence, he is entitled to the benefit of J.J Act, 2000 by virtue of conjoint reading of sections 2(k), 2(I) and 7A r/w section 20 of the Act as held in Raju v. The State of Harayana.
Date - Fri, 19 Apr 2019 12:10 PM


No Geographical barrier for trial in criminal case: SC
The Supreme Court Bench comprising of Justice A M Sapre and Dinesh Maheshwari directed a trial court in Rajasthan to take all necessary measures to ensure the examination of witness as the geographical distance should not come in the way of examining a witness in a criminal case in the case of a woman who died in mysterious circumstances in the African country. The court said that all steps to record the statement of a witness who resides in a foreign country and video-conferencing facilities must be used
Date - Fri, 19 Apr 2019 12:10 PM


Sec 79 of RERA does not apply to the authorities under Consumer Protection Act: NCDRC
The National Consumer Disputes Redressal Commission(NCDRC) has held that Real Estate (Regulation and Development) Act 2016(RERA) does not bar filing of a complaint under the Consumer Protection Act 1986 against a builder/developer. The commission held that "Section 79 of RERA only prohibits the jurisdiction of Civil Court from entertaining any suit or proceeding in respect of any matter which can be decided by the Authorities constituted under the RERA. As the Consumer Fora are not Civil Courts, the provisions of Section 79 which bar the jurisdiction of Civil Courts, will not be attracted. So far as to grant injunction is concerned, only that power has been taken away by Section 79. But, it does not, in any manner, effect the jurisdiction of the Consumer Fora in deciding the Complaints. Both, the Consumer Protection Act, 1986 and the Real Estate (Regulation and Development) Act, 2016 are supplemental to each other and there is no provision in the Consumer Protection Act which is inconsistent with the provisions of RERA".
Date - Fri, 19 Apr 2019 12:10 PM


Any person who himself is ineligible cannot appoint another Arbitrator: SC
The Supreme Court has held that the appointment of arbitrator by a person who himself is ineligible to be an arbitrator as per Section 12(5) of the Arbitration and Conciliation Act 1996 is void ab initio. The bench of Justices R F Nariman and Vineet Saran followed the 2017 decision in TRF Ltd. v Energy Engineering Projects Ltd, which had held that an ineligible person cannot appoint arbitrator. In the present case between Bharat Broadband Network Ltd(BBNL) and United Telecoms Ltd (UTL) a disputes arouse out of the agreement between parties had to be referred to arbitration by the Chairman and Managing Director of BBNL or to any person appointed by him. In relation to contractual disputes, UTL invoked the arbitration clause on January 3, 2017, and sought for appointment of arbitrator. The CMD of BBNL appointed one K H Khan as arbitrator. Citing above mentioned decision of SC, BBNL sought withdrawal of Khan from the proceedings. Khan rejected the request for withdrawal. This was challenged under Section 14 & 15 of the Act by BBNL before Delhi High Court. The High Court too rejected the challenge, holding that BBNL was estopped from questioning the mandate of the arbitrator appointed by it. Rejecting this, the Court said that the ineligibility of Khan came to light only after the SC rendered the TRF decision on July 3, 2017. The appointment was made before that, on January 1, 2017. "Whether such ineligible person could himself appoint another arbitrator was only made clear by this Court's judgment in TRF Ltd. (supra) on 03.07.2017, this Court holding that an appointment made by an ineligible person is itself void ab initio. Thus, it was only on 03.07.2017, that it became clear beyond doubt that the appointment of Shri Khan would be void ab initio.
Date - Fri, 19 Apr 2019 12:10 PM


A Full Time Salaried Employee Ceases To Practice as An Advocate: Allahabad HC
The division bench comprising of Justice Pankaj MIthal and Justice Saumitra Dayal Singh of Allahabad High Court in Shiv Kumar Pankha v. Honerable High Court of Judicature at Allahabad and another, (writ No. 25580 of 2018) observed that occasional appearance of Full Time Salaried employees in Courts/Tribunals on behalf of their employer cannot be taken to mean that they are continuing to be in practice as advocates. The two petitioners, who are candidates for the U.P. Higher Judicial Service Examination-2018 have filed this petition against the order dated 28.11.2018 rejecting their candidature and for seeking a direction to permit them to participate in the process of the said examination despite the fact that they are in full time employment as Law Officers with the State Bank of India (in short SBI) and Punjab National Bank (PNB) respectively.
Date - Fri, 19 Apr 2019 12:10 PM


Opportunity

image description

Rights of an Arrested Person

Cr P C gives powers to the police for arresting a person with such power Cr P.C also provides rights to an arrested person. The arrest should not only be legal and justified but it should be effected strictly according to procedure established by law.  Thus no person shall be deprived of his life and personal liberty except according to procedure established by law.  Rights of an arrested person are as follows –

1. Right to know the grounds of arrest – (Section 50(1)) – The foremost requirement of lawful arrest is notification of the reason of arrest with the charges against him. According to this provision, 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 any other grounds for such arrest.

Case law :- Udaybhan Shuki vs State of UP,   High Court held that right to be notified of grounds of arrest is a precious right of the arrested person. This allows arrested person to move to court timely for bail, opportunity to clarify any mistake, to begin to prepare his defence.

Re Madhu Limaye, Court held that detention becomes unlawful if the ground given were not proper and sufficient.

2. Right to be informed of the provision for bail – (Section 50(2)) – This section provides that where a police officer arrests any person other than a person accused of a non-bailable offence without warrant, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

3. Information of arrest to a person nominated by accused – (Section 50 A) This section  provides that once the arrested person is brought to the police station, the police officer must inform a relative or a friend, or any other person of the arrested person’s choice, about his arrest. He must also tell the place where the arrested person has been kept. Further he must note down the name and address of the person who was informed about the arrest.  It shall be the duty of the magistrate before whom such person is produced to verify that the provisions of this section were complied with

This section has been added by the decision of Supreme Court in Joginder Singh v. State of Punjab and DK Basu v. State of West Bengal.

 

4. Right to be produced before magistrate within 24 hours – (Section 57) – This section lays down 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, exceed twenty four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s court.

In the case of Khatri (II) v. State of Bihar, SC has strongly urged upon the State and its police to ensure that this constitutional and legal requirement of bringing an arrested person before a judicial magistrate within 24 hours should be met.  It is essential that the magistrates should try to enforce this requirement and when they find it disobeyed, they should come heavily upon the police.

5. Right to be examined by a medical practitioner (Section 54) – This section gives the accused a right to get himself examined by a registered medical practitioner. When a person who is arrested, whether on a charge or otherwise, alleges, at the time when he is produced before a Magistrate or at any time during, the period of his detention in custody that the examination of his body will afford evidence which will disprove the commission by him of any offence or which Magistrate shall, if requested by the arrested person so to do direct the examination of’ the body of such person by a registered medical practitioner unless the Magistrate considers that the request is made for the purpose of vexation or delay or for defeating the ends of Justice.

In case of Sheela Barse vs State of Maharashtra, SC held that even in cases were accused does not make any prayer it is duty of the magistrate to inform the arrested person about his right to get himself medically examined in case he has complaints of torture in police custody.

 

6. Right to consult Legal Practitioner – (Section 303)- It is mentioned that any person accused of offence before a Criminal Court or against whom proceedings are instituted under this Code, may have right to be defended by a pleader of his choice.

7. Right to free legal aid – (Section 304) – This section provides that where, in a trial before the Court of Session, the accused is not represented by a pleader, and where appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State.

image description

Cheating: Civil Liability Versus Criminal Liability

The crucial aspect to be noted in the law relating to cheating is the intention of the person accused of cheating. Most often, especially in-issues relating to commercial transactions, the disputes are difficult to separate in terms of their civil and criminal liabilities. As stated earlier, -the crucial difference between a criminal cause of action as against a purely civil transaction is the intention of the-person at the time when the cause of action arose or the alleged offence commenced. The important aspect is to examine whether at that stage, the accused deliberately or intentionally induced the other person to part with property or to do an act or desist from doing an act, or whether it was only subsequently that the dispute arose.

 

Nageshwar Prasad Sinha Vs. Narayan Singh AIR 1999 SC 1480 the respondent- complainant, Narayan Singh, an advocate, had entered into an agreement of sale of certain properties with the accused in Patna city. Part of the consideration had been paid as earnest money. Possession had also been delivered to the complainant as per the sale deed. However, the complainant had not made the full payment as agreed upon, resulting in delay in completing the legal formalities of the sale. The complainant had also filed a civil suit for specific performance against the accused. Thereafter, the complainant filed a criminal complaint alleging committing of offence under section 420 IPC.

 

The Supreme Court considered ill(g) to section 415. IPC and stated that the latter part of the illustration showed that:

At the time when the agreement for sale was executed, it could have in no event been termed dishonest so as to hold that the complainant was cheated of the earnest money, which they passed to the appellants as part consideration, when possession of the total land involved in the bargain was passed over to the complainant-respondent, and which remains in their possession. Now, it is left to imagine who would be interested in delaying the matter and completing the bargain when admittedly the complainant have not performed their part in making full payment.

 

Thus, the court held that the liability, if any, was only civil in nature and not criminal.

 

Breach of contract and cheating: The distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct, but for which the subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution under Sec. 420, I.P.C., unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed.

 

Cheating and extortion :The offence of cheating must, like that of extortion be committed by the wrongful obtaining of a consent. The difference is that the extortioner obtains the consent by intimidation and the cheat by deception.

Cheating, criminal breach of trust, and criminal misappropriation: Cheating differs from the last two offences in the fact that the cheat takes possession of property by deception. There is wrongful gain or loss in both cases and in both cases there is inducement to deliver property. In the case of cheating the dishonest intention starts with the very inception of the transaction. But in the case of criminal breach of trust, the person who comes into possession of movable property receives it legally but retains it. or converts it to his own use against the terms of the contract.

 

COMPARISON WITH ENGLISH LAW:

Dishonestly obtaining another’s property by deception with the intention of permanently depriving that person of his property is an offence under Sec. 15(1) of the Theft Act, 1968. This intent to deprive permanently is not an ingredient of the Indian Law. There is no deception unless a person is induced to believe as true what in fact is false. (An operative cause of obtaining the property). In this case certain person came to an elderly widow representing that they were tree surgeons and that they could provide her the “service for a certain money of felling her three deceased trees. She went to withdraw the money and also informed the police. They were arrested and held guilty of attempted deception.) Director of Public. Prosecution Vs. Ray, (1973) 3 AH ER. 131. Deception can also be in an implied form. The-most common example of which is a bouncing cheque. English Courts have held that when a man issues a cheque in favour of another he impliedly represents that he has an account at the bank, that the cheque would be honoured as he has requisite amount in the bank to his credit or he has an overdraft facility' or will immediately arrange it, so that the cheque does not bounce. If things turn out to be otherwise, the accused will have-cheated the other party by impliedly inducing him to accept a valueless cheque which he would not have accepted if he had been aware of the true state of facts is not free from difficulty on this score as decisions are conflicting and in some cases it has been held that if no express representation is made that he has the requisite amount in the bank or if no allegations are made in the complaint that bouncing of the cheque resulted in harm to the complainant in his body mind, reputation or property, the mere fact that the cheque was dishonoured would not make the accused liable for cheating. A contrary view appears to have been taken in Bholanath Arora case 1982 Cr LJ 1482 (Delhi) which is more in accordance with the views taken in the English decision than with the Indian cases cited above. It is felt that the view taken by the English courts on this point are more reasonable for even a fool would not accept a valueless cheque but for the implied representation that the cheque would be honored. It is hoped that law on this point would be brought a par with that of England if necessarily, by suitable legislation. (Necessary legislation was passed in 1988 by amending the Negotiable Instrument Act by providing that a dishonored cheque is a punishable crime.)

 

image description

Death and grievous injuries occurring in police encounters & guidelines of Supreme Court for effective and independent investigation

In the event of extra judicial killings and causing of grievous injuries in police encounters, the Hon'ble Supreme Court has issued following guidelines for effective and independent investigation of such incidents :

(1) Whenever the police is in receipt of any intelligence or tip-off regarding criminal movements or activities pertaining to the commission of grave criminal offence, it shall be reduced into writing in some from (preferably into case diary) or in some electronic form. Such recording need not reveal details of the suspect or the location to which the party headed. If such intelligence or tip-off is received by a higher authority, the same may be noted in some form without revealing details of the suspect or the location.

(2) If pursuant to the tip-off or receipt of any intelligence, as above, encounter takes place and firearm is used by the police party and as a result of that, death occurs, an FIR to that effect shall be registered and the same shall be forwarded to the court under Section 157 of the Code without any delay. While forwarding the report under Section 157 of the Code, the procedure prescribed under Section 158 of the Code shall be followed.

(3) An independent investigation into the incident/encounter shall be conducted by the CID or police team of another police station under the supervision of a senior officer (at least a level above the head of the police party engaged in the encounter). The team conducting inquiry/investigation shall, at a minimum, seek :

(a) To identify the victim; colour photographs of the victim should be taken;

(b) To recover and preserve evidentiary material, including blood-stained earth, hair, fibers and threads, etc., related to the death;

(c) To identify scene witnesses with complete names, addresses and telephone numbers and obtain their statements (including the statements of police personnel involved) concerning the death;

(d) To determine the cause, manner, location (including preparation of rough sketch of topography of the scene and, if possible, photo/video of the scene and any physical evidence) and time of death as well as any pattern or practice that may have brought about the death;

(e) It must be ensured that intact fingerprints of deceased are sent for chemical analysis. Any other fingerprints should be located, developed, lifted and sent for chemical analysis;

(f) Post-mortem must be conducted by two doctors in the District Hospital, one of them, as far as possible, should be In-charge/Head of the District Hospital. Post-mortem shall be videographed and preserved;

(g) Any evidence of weapons, such as guns, projectiles, bullets and cartridge cases, should be taken and preserved. Wherever applicable, tests for gunshot residue and trace metal detection should be performed.

(h) The cause of death should be found out, whether it was natural death, accidental death, suicide or homicide.

A Magisterial inquiry under Section 176 of the Code must invariably be held in all cases of death which occur in the course of police firing and a report thereof must be sent to Judicial Magistrate having jurisdiction under Section 190 of the Code. (5) The involvement of NHRC is not necessary unless there is serious doubt about independent and impartial investigation. However, the information of the incident without any delay must be sent to NHRC or the State Human Rights Commission, as the case may be. (6) The injured criminal/victim should be provided medical aid and his/her statement recorded by the Magistrate or Medical Officer with certificate of fitness. (7) It should be ensured that there is no delay in sending FIR, diary entries, panchnamas, sketch, etc., to the concerned court. (8) After full investigation into the incident, the report should be sent to the competent court under Section 173 of the Code. The trial, pursuant to the charge-sheet submitted by the Investigating Officer, must be concluded expeditiously. (9) In the event of death, the next of kin of the alleged criminal/victim must be informed at the earliest. (10) Six monthly statements of all cases where deaths have occurred in police firing must be sent to NHRC by DGPs. It must be ensured that the six monthly statements reach to NHRC by 15th day of January and July, respectively. The statement may be sent in the following format along with post-mortem, inquest and, wherever available, the inquiry reports : (i) Date and place of occurrence. (ii) Police Station, District. (iii) Circumstances leading to deaths. (a) Self-defence in encounter. (b) In the course of dispersal of unlawful assembly. (c) In the course of affecting arrest. (iv) Brief facts of the incident. (v) Criminal Case No. (vi) Investigating Agency. (vii) Finding of the Magisterial Inquiry/Inquiry by Senior Officers; (a) disclosing, in particular, names and designation of police officials, if found responsible for the death; and (b) whether use of force was justified and action taken was lawful. 13 (11) If on the conclusion of investigation the materials/evidence having come on record show that death had occurred by use of firearm amounting to offence under the IPC, disciplinary action against such officer must be promptly initiated and he be placed under suspension. (12) As regards compensation to be granted to the dependants of the victim who suffered death in a police encounter, the scheme provided under Section 357-A of the Code must be applied. (13) The police officer(s) concerned must surrender his/her weapons for forensic and ballistic analysis, including any other material, as required by the investigating team, subject to the rights under Article 20 of the Constitution. (14) An intimation about the incident must also be sent to the police officer's family and should the family need services of a lawyer/counseling, same must be offered. (15) No out-of-term promotion or instant gallantry rewards shall be bestowed on the concerned officers soon after the occurrence. It must be ensured at all costs that such rewards are given/recommended only when the gallantry of the concerned officers is established beyond doubt. (16) If the family of the victim finds that the above procedure has not been followed or there exists a pattern of abuse or lack of independent investigation or impartiality by any of the functionaries as above-mentioned, it may make a complaint to the Sessions Judge having territorial jurisdiction over the place of incident. Upon such complaint being made, the concerned Sessions Judge shall look into the merits of the complaint and address the grievances raised therein. The above guidelines will also be applicable to grievous injury cases in police encounter, as far as possible. Accordingly, we direct that the above requirements/norms must be strictly observed in all cases of death and grievous injury in police encounters by treating them as law declared under Article 141 of the Constitution of India. See : Peoples' Union for Civil Liberties Vs. State of Maharashtra, 2015 CrLJ 610 (SC)(paras 31, 32 & 33)

image description

Guidelines of the Supreme Court on arrest

In the famous cases of D.K. Basu Vs State of West Bengal, (1997) 1 SCC 416 and A.K. Jauhari Vs State of UP, (1997) 1 SCC 416, the Hon’ble Supreme Court has issued following guidelines for the arresting officers to be observed at the time of arrest of a person and treatment thereafter with him :

(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. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

(2) The police officers 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 8 respectable member of the locality from where the arrest is made. It shall 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 a particular place unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

(4) 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 and the police station of the area concerned telegraphically within a period of 8 to 10 hours after the arrest.

(5) The person arrested must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.

(6) 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.

(7) The arrestee should, where he so requires, 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 it’s copy provided to the arrestee.

(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director Health Services of the state or union territory concerned. Director, Health Services should prepare such a panel for all Tehsils and Districts as well.

(9) Copies of all the documents including the Memo Of Arrest referred to above should be sent to the Illaka Magistrate for his record.

(10) The arrestee may be permitted to meet his Lawyer during interrogation, though not throughout the interrogation.

(11) A police control room should be provided at all District and State Headquarters, where information regarding 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 the police control room it should be displayed on a conspicuous notice board.

video

Into Legal World celebrated its first anniversary on Sunday 24th March. Celebration took place in the new office, which is also inaugurated on Sunday. In the gracious presence of respected guests Prof. Rita Bahuguna Joshi (Chief Guest) (Cabinet Minister), Prof. Balraj Singh Chauhan(Vice Chancellor, NLU Jabalpur), Prof. Dr. Rakesh Kumar Singh(Dean & Head, University of Lucknow), Adv. S.P. Mishra ‘Senani’(Supreme Court), Senior Adv. S.K. Kalia(High Court Lucknow Bench), Adv. Suryamani Singh Raikwar(Senior Council Union of India), Mr. Devendra Shukla (Traffic Inspector- SWR) and Prof. Meera Singh Into Legal World launched its new wing as Into Legal World Institute.


OUR GALLERY