No blanket order on FIR under IPC sections 172-188: High Court

The Madras High Court has refused to pass a blanket order, directing the Tamil Nadu government and the police not to register a First Information Report (FIR) or a chargesheet for offences such as obstructing public servants from discharging their duties.

The first bench of Chief Justice Indira Banerjee and Justice Abdul Quddhose recently disposed of a PIL filed by a lawyer called Balaji, seeking a direction to the police not to register an FIR or a chargesheet under Indian penal code (IPC) sections 172 to 188.

In its order, the bench said it was of the view that such blanket orders could not be issued and “certainly not in a public interest litigation”.

Any individual, however, had the alternative of filing a criminal revision application for quashing the proceedings on the ground of breach of the mandatory provisions of law, it added.

IPC sections 172 to 188 deal with offences such as obstructing a public servant in discharging his public functions and disobedience to order duly promulgated by a public servant, among others.

The petitioner had also sought a direction to the police not to register an FIR on the contention that the offences under the sections were non-cognizable.

Referring to section 195(1) of the Code of Criminal Procedure (CrPC), the petitioner had contended that it restrained the court from taking cognizance of an offence punishable under sections 172 to 188 of the IPC, unless a complaint in writing was made to it by the public servant concerned.

In other words, the police could not lodge an FIR for such offences, the petitioner had contended.

The police could neither register a case against an offender for an offence punishable under sections 172 to 188 of the IPC nor submit a report under section 173, CrPC, he had added.

Alluding to various cases registered by the Tamil Nadu police under the aforesaid sections, the petitioner had said, “I recently learnt and understood that in Tamil Nadu, police register the FIR and file the final report/chargesheet for an offence under section 172 to 188, IPC.

“More particularly, section 188, IPC, when the law does not permit them.”

Stating that it led to loss of money, manpower and precious time of governments and trial courts, the petitioner had contended that the time had come to put an end to the unlawful proceedings and save public money and the courts’ time.

The bench observed that an appropriate training programme was to be initiated by the Tamil Nadu State Judicial Academy for magistrates in relation to the offences under sections 172 to 188, IPC.

“As far as the police are concerned, they are not even under the general superintendence of the high court. Their actions may be subjected to judicial scrutiny by the court in exercise of its power of judicial review,” it said.

Orders, as prayed for by the petitioner, therefore, could not be granted, the court said.

Gujarat High Court says SIT probe had shortfalls: Naroda Patiya riots

Coming down heavily on the Special Investigation Team (SIT) which probed the 2002 Naroda Patiya riot cases, the Gujarat High Court said there were several “shortfalls” in its probe.

A division bench of Justices Harsha Devani and A S Supehia also said the investigation carried out by the SIT, which was constituted on the directions of the Supreme Court in 2008, did not “inspire much confidence”.

The high court had yesterday acquitted former BJP minister Maya Kodnani, along with 17 others, and upheld the conviction of 13 people, including ex-Bajrang Dal leader Babu Bajrangi. It also convicted three others who were acquitted by the trial court.

“It is during the course of investigation by the SIT that the name of …Mayaben Kodnani was revealed. From the evidence of the witnesses who have named Mayaben Kodnani, it emerges that many of them have referred to her having come in a white Maruti car. However, no efforts have been made to ascertain as to whether the said accused owned any white Maruti car at the relevant time,” the court said.

“No investigation has been conducted to establish whether (Kodnani) used to travel in a white Maruti car, nor has any exercise been undertaken to establish that accused No.62 Kirpalsingh Chhabra was her P.A.”

“There are several other shortfalls in the investigation conducted by the SIT, reference to which has been made at the particular stage in the judgement,” it said.

The high court, while acquitting Kodnani, who was first made an accused by the SIT in 2008, said discarding investigations carried out by agencies before the SIT, or giving it less weightage, did not arise.

“Considering the overall evidence which has come on record as well as the investigation carried out by the SIT, which too, does not inspire much confidence …the court is of the view that the prior investigation …cannot be discarded and ignored while considering the credibility of a witness,” it said.

The order of the trial court had relied upon the SIT findings over findings of earlier agencies, which the high court said “has no legal basis.”

“It is settled legal position that it is the first version which comes on record which is most significant,” it said, while observing that the apex court ordered for an SIT to carry out “further investigation” and not “reinvestigation.”

The SIT had verified statements of several witnesses and also recorded statements of new witnesses as part of its investigation.

The high court also criticised the investigating officer of the SIT, saying that witnesses’ statements were recorded “in blatant breach” of the provisions of section 161 and 162 of the CrPC as he obtained signatures of the witnesses and police officers on their statements.

“One wonders whether the Investigating Officer (SIT) and such high ranking officers were not aware of these basic provisions of law,” it said.

While upholding the conviction of former Bajrang Dal leader Babu Bajrangi and two others — Prakash Rathod and Richard Chhara — who were also charged with criminal conspiracy, the court considered the oral evidence of journalist Ashish Khetan, who later joined politics.

Khetan had carried out a “sting operation” on the three convicts. The court said that “extra judicial confessions” made by Bajrangi and two others in the sting operation were established by Khetan’s oral statement.

“The documentary evidence, which is in the nature of electronic recording, would therefore be in the nature of corroborative evidence to support the testimony of the witness,” it said.

It also pulled up the special public prosecutor of the SIT for “not understanding that information/sting in the DVDs and CDs is in the nature of documentary evidence and has to be proved in accordance with section 65B of the Evidence Act.”

The court said this observing that the SPP tried to focus Khetan’s cross examination on aspects of “inducement, and the fact that the witness had carried out the sting under an assumed identity by using a fabricated identity card.

Delhi HC to examine plea challenging amended CrPC

Delhi HC to examine plea challenging amended CrPC
Delhi HC to examine plea challenging amended CrPC

Delhi High Court today agreed to examine the challenge to the amended provision in Code of Criminal Procedure (CrPC) by which no prior sanction is required to prosecute a public servant who is accused in cases of alleged offences against women.

A bench of Chief Justice G Rohini and Justice Jayant Nath issued notice to Ministry of Home Affairs (MHA) seeking its reply to averments made in the petition which sought striking down of the explanation of Section 197 (sanction to prosecute public servant) of CrPC as “ultra vires, invalid and illegal”.

“We will consider. We issue notice (to Centre),” the bench said and listed the matter for August 24.

Anil Sharma, station house officer (SHO) at Chandani Mahal here, moved the High Court challenging the explanation added to Section 197 of the CrPC, vide the criminal law amendment Act 2013, whereby it was added that in case a public servant is accused of any alleged offences against women, no sanction shall be required.

“The explanation is liable to be quashed since it defeats the purpose and object of Section 197 CrPC and is in complete violation and against the scheme an spirit of CrPC 1973 and the Constitution of India,” senior advocate Siddharth Luthra, appearing for the petitioner SHO said.

The plea filed through advocate Rajiv Mohan further stated that the explanation is “harsh and unfair” for the police officers who are discharging their duty.

It said that the amendment has no justification or basis and will deter the police from fairly and freely investigating the commission of cognisable offence.

It will also hinder their (polices’s) investigation including the power to search and arrest, the plea added.

“Such a widely termed explanation obliterates and dilutes the object and purpose of sanction as contemplated under the Code as the same has been provided to give protection to the honest and upright public servants and to protect them from malicious prosecution.

“In absence of any safeguards the explanation is open to gross misuse… Exposing the investigating agency and it’s officers to prosecute,” the police officer said in his plea.

It said that the amendment hinders the ability of the police to act in public interest and for the protection of individuals/victims rights under Article 21.

“As the explanation stands, it would allow criminals and wrong doers to make false allegations against police officers, who are duty bound to arrest and conduct searches in accordance with the provisions of CrPC but will be hindered to do so,” the petition added.

( Source – PTI )

Evidence showed Uber cab driver raped woman: police to court

Delhi Police on Friday asserted before a court here that scientific, medical and other evidence showed beyond doubt that it was the driver of US-based cab service provider, Uber, who had raped a 25-year-old woman executive and also tried to commit unnatural sex with her.”Scientific, medical and all other evidence showed that this (rape) was done only by this man (Yadav),” Special Public Prosecutor (SPP) Atul Srivastava argued before Additional Sessions Judge Kaveri Baweja who reserved for January 13 the order on framing of charges against accused Shiv Kumar Yadav in the case.

The SPP, who was arguing before a special fast track court exclusively set up to deal with cases of sexual offences against women, said even the forensic experts have confirmed that the woman was raped.

He also told the court Yadav, who is now lodged in jail under judicial custody, had tried for committing unnatural sex with the woman but under the 2013 amended provisions of the IPC, it would be covered under the offence of rape.

The prosecutor argued that 32-year-old Yadav had changed the route and taken away the woman to a lonely place where he raped her and he is liable to be charged for the offences of abduction and rape.

Srivastava said there were injuries on various body parts of the woman and DNA of the accused has also been found on the clothes and body of the victim and at this stage, even on suspicion, the court can frame charges against Yadav.

The counsel appearing for Yadav, however, claimed that as per the medical report of the victim no injury was found on her body and she was tutored before recording of her statement under section 164 of the Criminal Procedure Code (CrPC) before a magistrate.

Yadav, who was driving the cab, had allegedly raped the woman on the night of December 5, last year when the victim, who worked for a finance company in Gurgaon, was headed back to her home in Delhi’s Inderlok area.

The police had filed the charge sheet against Yadav on December 24, 19 days after the incident, for alleged offences punishable under sections 376(2)(m) (while committing rape causing grievous bodily harm or endangering life of a woman), 366 (kidnapping or abducting woman with an intent to compel her for marriage), 506 (criminal intimidation) and 323 (voluntarily causing hurt) under the IPC.

Gangrape case: Accused move HC against day trial

New Delhi: on Friday in the December 169 gang rape case two accused out of the four accused approached the Delhi High Court against the special court order dismissing their plea for trial to be held on alternate days instead of day-to-day basis.

On March 28, the special court had dismissed their plea saying “such pleas are made to delay the proceedings”.

“Even the prayer that the trial be conducted on alternate days or that the matter be adjourned every time for different dates to enable the counsel to seek instructions from his accused to cross-examine the witnesses, cannot be allowed, as per section 309 (power to postpone or adjourn proceedings) of CrPC,” the court also mentioned.

 Filing a petition through counsel M L Sharma, accused Mukesh and Akshya also sought quashing of FIR and subsequent proceedings on the ground that police had manipulated it as the original complaint was silent about the names of the accused persons.

“All evidence have been procured through torture to implicate the petitioners. They belong to poor family and have no means to fight…,” the plea said urging the court to quash the entire proceedings arising out of the FIR.

The accused also told that police failed to provide them the Hindi translated copy of the FIR and chargesheet.

“The accused are Hindi-speaking people and it is difficult for them to understand the facts as they don’t know English. Petitioner till date never knew what are the true facts as the entire documents are in English,” the petitioners’ counsel said.

Justice Mukta Gupta fixed April 8 for hearing the case.

Gangrape case: Accused plea against day-to-day trial dismissed

The plea of two accused of December 16 gang rape who are facing day to day trial, it be held on alternate days, was on Thursday rejected by a special court in New Delhi which also pulled up their lawyers saying such pleas are made to delay the proceedings.

The order came after accused Mukesh and Akshay Singh withdrew another plea that they be provided with the Hindi translation of statements of witnesses recorded so far by Additional Sessions Judge Yogesh Khanna in the case.

“Even the prayer that the trial be conducted on alternate days or that the matter be adjourned every time for different dates to enable the counsel to seek instructions from his accused to cross-examine the witnesses, cannot be allowed, as per section 309 (power to postpone or adjourn proceedings) of CrPC,” according to the court.

It, however, made it clear that neither the police nor the court intends to come in between the counsel and his clients.

“The court does not intend to come in between the counsel and his client to enable him to seek instructions, hence it would be appropriate if the accused are brought to the lock up at Saket at 11 AM everyday, so that the counsel, if they intend to have a legal meeting with them for seeking instructions, can do so….,” according to it.

During the proceedings, the judge got annoyed over the absence of M L Sharma, the counsel for Mukesh and Akshay.

“From last one week, he is not cross-examining the prosecution witnesses. If he does not want to proceed on his part, we will have to move forward. This is delaying tactics.

“Should I refer the matter to (DLSA) Delhi Legal Services Authority to provide counsel to the accused in the case,” the judge said during the hearing.

Special public prosecutor Dayan Krishnan also opposed Sharma’s absence in the court and said a last opportunity be given to him.

“If he (Sharma) does not come on time from Monday then the court must proceed in the case without him,”according to him.

The judge, who has so far recorded statements of 65 witnesses, said that earlier the trial was going on smoothly.

“This is something, which is very wrong. You (defence lawyers) explain to your colleagues that stalling the proceedings without any reason is very, very wrong,” the judge said.

Referring to the CrPC provision, the court, in its order, said that if a witness is present, but “a party or his pleader is not present or the party’s pleader though present in court, is not ready to examine or cross-examine the witness, the court may, if it thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination in chief or cross-examination of the witness, as the case may be.

“… Further, section 309 of CrPC does not say that the cases ought to be fixed on alternate days only to enable the counsel to have meetings with the accused.” The court said neither Sharma nor other defence lawyers of other co-accused were present.

“The telephonic conversations should stop. The counsel concerned or their juniors should be present personally and inform the court in advance,” the judge said.

Meanwhile, the prison authorities told the court that they would ensure that accused Vinay Sharma gets requisite facilities in jail to prepare for his tests for recruitment of group ‘C’ civilian lower divisional clerks in Air Force.

The accused, in his plea, had said that he be provided “proper tuitions and books” inside Tihar jail.

Initially five adult accused in the case were facing trial for allegedly gang-raping and assaulting a 23-year-old girl in a moving bus here on the night of December 16, 2012.

With the proceedings against the main accused Ram Singh having abated after his death on March 11, the remaining four adult accused Mukesh, Vinay, Akshay and Pawan Gupta are facing trial in the case for rape and murder of the girl.

The sixth accused in the case is a juvenile, who is facing proceedings before the Juvenile Justice Board.

The girl had died on December 29, 2012 in a Singapore hospital due to the grievous injuries she suffered when she was brutally assaulted by the six accused.

Italian marines case; New Delhi CMM to conduct proccedings

The Delhi High court recommend the name of Chief Metropolitan Magistrate of the Patiala House courts here in New Delhi for conducting the proceedings in the case of killing two Indian fishermen off Kerala coast in which two Italian marines are the accused

According to high court sources, the name of Amit Bansal, CMM of New Delhi district, has been forwarded to the Centre after the Union government had approached High Court to set up a special court to hear the case against Italian marines Massimiliano Lattore and Salvatore Girone.

The Supreme Court, on January 18, had directed the Centre to constitute a special court after which it had on March 23 asked the high court to set up a court. Italy is also pressing for quickly setting up the Special Court.

The two marines, who were allowed by the apex court on February 22 to go to Italy for four weeks to cast their vote in the general elections there, and had returned on March 22.

The Kerala police, on May 18 last year, had filed a charge sheet in a court at Kollam in Kerala against the two marines charging them for the offence of murder under IPC and also invoking the International Maritime Law.

After filing of the charge sheet, the marines had moved the superior courts, including the apex court, challenging the jurisdiction to try them in India alleging that the alleged offence had took place in “International waters”.

The Supreme Court, however, had dismissed their plea and had directed the Centre to set up a special court outside Kerala to hold the trial in the case.

According to the sources a official notification for setting up of the special court will follow and it will be issued by the Delhi Government.

As per the provisions of CrPC, a murder case is triable exclusively by a sessions court and a magistrate will have to commit the case to a sessions judge for trial after taking cognisance of the charge sheet.

On February 22, the apex court had questioned the government as to why it was “dragging its feet” on the issue of setting up a special court for trying the two marines.

It had also taken exception to the Centre not following the apex court’s January 18 direction to consult the Chief Justice of India for setting up a special court.

The two marines were on board an Italian vessel ‘Enrica Lexie’ when they allegedly shot dead two fishermen off the Kerala coast on February 15, last year.

Delhi gangrape: Court upholds ban on reporting by media

In Delhi a court upheld a magisterial court order for in camera proceedings in the case of December 16 gang rape of 23-year-old girl and restraining media from reporting it.

District and Sessions Judge R K Gauba said there was nothing “illegal” or “improper” in the January 7 order of the magistrate.

According to the judge, “The Metropolitan Magistrate was not only within her rights, rather duty-bound to apply the provisions of section 327 (2) (conducting in camera proceedings in cases of rape and related offences) of the CrPC to the proceedings of the case.”

He has also mentioned, “The fact that a large crowd had entered her court room leaving no space for even the undertrial prisoners to be brought in only added to the circumstances leading to passing of the order.”

On January 7, a magistrate had restrained the media from reporting and publishing the proceedings of the case in the court noting that the courtroom was jam-packed with members of the bar and general public who were unconnected with the case and not prepared to leave it due to which the accused could not be produced before her.

The sessions court said as per section 327(2) CrPC, it is mandatory for the presiding officer to hold the proceedings in camera in cases of rape and related offences.

Noting that the arguments of the petitioner advocates that the case is still at the stage of committal and not trial, the judge observed, “Eventually the trial court would also be required to regulate proceedings in terms of section 327 of the CrPC.”

During the arguments, Public Prosecutor Rajiv Mohan opposed the plea saying the relief sought in the petition is against the provisions of the CrPC and hence it is liable to be dismissed with cost.

The magistrate’s order was challenged by advocates D K Mishra and Poonam Kaushik, seeking setting aside of the decision for in camera hearing and had alleged that the court room was crowded because of the presence of large number of policemen.

In their application moved on behalf of “the concerned lawyers and the citizens of the country,” the advocates had said, “Passing the order, the metropolitan magistrate has cast a number of apprehensions and allegations on lawyers and mediapersons assembled there, being the representatives of nation who have been hurt. “The whole nation is interested in knowing the proceedings of the case. In camera trial cannot be done at the stage of pre-trial. It could have been done after case is committed to sessions court.”

The police had earlier filed an application for in camera proceedings in the case before the magistrate under section 327 (2) and (3) of the CrPC. Delhi police had also issued an advisory on January 5, saying the proceedings in the case cannot be reported as the court has already taken cognisance of the charge sheet. The magisterial court on January 5 had taken cognisance of the chargesheet against the five adult accused under sections 302 (murder), 307 (attempt to murder), 376 (2)(g) (gangrape), 377 (unnatural offences), 395 (dacoity), 396 (murder in dacoity), 201 (destruction of evidence), 394 (hurting in dacoity), 120-B (conspiracy), 34(common intention) and 412 (dishonestly receiving stolen property) of the IPC. The case of the sixth accused – a minor – is being heard by a Juvenile Justice Board.

The victim, a paramedical student, was brutally raped and assaulted in a moving bus here on the night of December 16 and died of her injuries on December 29 in multi-speciality Mount Elizabeth Hospital in Singapore.