APPLICABILITY OF SECTION 160 Cr.P.C TO THE ACCUSED

Section 160 of Cr.P.C. is the power of police to summon the witnesses. Often it is seen that section is also used to summon the accused person under the belief that it is applicable to accused also.

The controversy is set at rest by the Supreme Court in case of STATE REPRESENTED BY INSPECTOR OF POLICE AND OTHERS VS NMT JOY EMACULATE the Hon’ble Supreme Court observed “ in our opinion the High court has committed  serious error in giving such direction contrary to the statutory provisions of section 160 Cr.P.C which is applicable only to the witnesses, not to the accused”

“In fact, the learned Judge has erred in expanding the scope of Section 160 Cr.P.C. to the accused as well, which might lead to hardship to an investigating agency.”

(CRIMINAL APPEAL NO. 575-576 OF 2004 DATED 5/5/2004 SUPREME COURT)

THE ACCUSED CANNOT WAIVE HIS RIGHT OF BEING SEARCHED BY GAZETTED OFFICER OR MAGISTRATE UNDER SECTION 50 NDPS ACT

It appears that hon’ble Supreme Court has re-written the law on section 50 N D P S Act. Supreme Court in case of Arif khan vs State of Uttrakhand Criminal Appeal no. 273 of 2007 decided on April 17 2018 observed that accused cannot waive his right of section 50 N D PS  Act. 

The search by or in the presence of  gazetted officer or magistrate is must to comply with the provisions of  N D P S Act.

Earlier the police use to inform the accused that he has a right of being searched in the presence of gazette officer or magistrate  and then after use to search the accused when he declines to get searched in the presence of gazetted officer or magistrate.

Now as per the interpretation given by Supreme Court it is mandatory for the police to search the accused in presence of gazetted officer or magistrate or a member of the arresting party must be a gazetted officer to comply with the provisions of N D P S Act.

The above judgment is going to impact a large number of cases since in most of the cases the accused waives his right of being searched in the presence of gazetted officer or magistrate and permitting the police to take search.

A WOMAN’S BODY IS NOT A MAN’S PLAYTHING ...........................

The Hon’ble Supreme Court in case of State of U.P. vs Naushad  (2013) 16 SCC 651 while dealing with the factual matrix of the case where accused had physical sexual relations with the victim after obtaining the consent on false promise of marriage observed:-

“A WOMAN’S BODY IS NOT A MAN’S PLAYTHING AND HE CANNOT TAKE ADVANTAGE OF IT IN ORDER TO SATISFY HIS LUST AND DESIRES BY FOOLING A WOMAN INTO CONSENTING TO SEXUAL INTERCOURSE SIMPLY BECAUSE HE WANTS TO INDULGE IN IT. THE ACCUSED IN THIS CASE HAS COMMITTED THE VILE ACT OF RAPE AND DESERVES TO BE SUITABLY PUNISHED FOR IT.”

CONSTITUTIONAL VALIDITY OF SECTION 303 I.P.C.

Section 303 I P C provides the punishment for  the offence of “ murder by life convict” with mandatory death sentence . 

A constitutional bench of five judges of Supreme Court viz. Chandrachud, Y.V. (Cj), Fazalali, Syed Murtaza, Tulzapurkar, V.D., Reddy, O. Chinnappa (J), Varadarajan, A. (J) in case of Mithu vs State Of Punjab Etc. 1983 AIR 473 observed :-

 “it is impossible to uphold Sec. 303 as valid. Sec. 303 excludes judicial discretion. The scales of justice are removed from the hands of the Judge so soon as he pronounces the accused guilty of the offence. So final, so irrevocable and so irrestitutable is the sentence of death that no law which provides for it without involvement of the judicial mind can be said to be fair, just and reasonable. Such a law must necessarily be stigmatised as arbitrary and oppressive. Sec. 303 is such a law and it must go the way of all bad laws. I agree with my Lord Chief Justice that Sec. 303,Indian Penal Code must be struck down as unconstitutional."

So section 303 IPC remains in the statute book but not applicable, the cases of 303 I.P.C. will be covered in section 302 IPC.

PRELIMINARY INQUIRY WHETHER PERMISSIBLE BEFORE REGISTRATION OF FIR?

In case of Lalita Kumari Vs. Govt. of U.P. & Ors.[Writ Petition (Criminal) No. 68 of 2008 decided on 12-11-13 ] (2014) 1 SCC (Cri) 524 the Honourable Supreme Court cleared the confusion on the point  of Regsitration of FIR when an offence is reported  in the police station and issued following guidelines:-

i. Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

ii. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

iii. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. 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.

iv. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence

v. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

vi. 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.

vii. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.

viii. Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.

UPLOADING OF FIR ON WEBSITE AND COPY TO ACCUSED

IN  WRIT PETITION (CRL.) NO.68 OF 2016 YOUTH BAR ASSOCIATION OF INDIA VERSUS UNION OF INDIA AND OTHERS THE SUPREME COURT HAS ISSUED FOLLOWING DIRECTIONS:-

(1) An accused is entitled to get a copy of the First Information Report at an earlier stage than as prescribed under Section 207 of the Cr.P.C.

(2) An accused who has reasons to suspect that he has been roped in a criminal case and his name may be finding place in a First Information Report can submit an application through his representative/agent/parokar for grant of a certified copy before the concerned police officer or to the Superintendent of Police on payment of such fee which is payable for obtaining such a copy from the Court. On such application being made, the copy shall be supplied within twenty-four hours.

(3) Once the First Information Report is forwarded by the police station to the  concerned Magistrate or any Special Judge, on an application being filed for certified copy on behalf of the accused, the same shall be given by the Court concerned within two working days.

The aforesaid direction has nothing to do with the statutory mandate inhered under Section 207 of the Cr.P.C.

(4) The copies of the FIRs, unless the offence is sensitive in nature, like sexual offences, offences pertaining to insurgency, terrorism and of that category, offences under POCSO Act and such other offences, should be uploaded on the police website, and if there is no such website, on the official website of the State Government, within twenty-four hours of the registration of the First Information Report so that the accused or any person connected with the same can download the FIR and file appropriate application before the Court as per law for redressal of his grievances.

It may be clarified here that in case there is connectivity problems due to geographical location or there is some other unavoidable difficulty, the time can be extended up to forty-eight hours. The said 48 hours can be extended maximum up to 72 hours and it is only relatable to connectivity problems due to geographical location.

(5) The decision not to upload the copy of the FIR on the website shall not be taken by an officer below the rank of Deputy Superintendent of Police or any person holding equivalent post. In case, the States where District Magistrate has a role, he may also assume the said authority. A decision taken by the concerned police officer or the District Magistrate shall be duly communicated to the concerned jurisdictional Magistrate.

(6) The word 'sensitive' apart from the other aspects which may be thought of being sensitive by the competent authority as stated herein before would also include

concept of privacy regard being had to the nature of the FIR. The examples given with regard to the sensitive cases are absolutely illustrative and are not exhaustive.

(7) If an FIR is not uploaded, needless to say, it shall not enure per se a ground to obtain the benefit under Section 438 of the Cr.P.C.

(8) In case a copy of the FIR is not provided on the ground of sensitive nature of the case, a person grieved by the said action, after disclosing his identity, can submit a representation to the Superintendent of Police or any person holding the equivalent post in the State.

The Superintendent of Police shall constitute a committee of three officers which shall deal with the said grievance. As far as the Metropolitan cities are concerned, where Commissioner is there, if a representation is submitted to the Commissioner of Police who shall constitute a committee of three officers. The committee so constituted shall deal with the grievance within three days from the date of receipt of the representation and communicate it to the grieved person.

(9) The competent authority referred to herein above shall constitute the committee, as directed herein-above, within eight weeks from today.

(10) In cases wherein decisions have been taken not to give copies of the FIR regard being had to the sensitive nature of the case, it will be open to the accused/his authorized representative/parokar to file an application for grant of certified copy before the Court to which the FIR has been sent and the same shall be provided in quite

promptitude by the concerned Court not beyond three days of the submission of the application.

(11) The directions for uploading of FIR in the website of all the States shall be given effect from 15^th November, 2016.

(12) Let a copy of this order be sent to all the Home Secretaries and the Director Generals of Police of the States concerned.

COMPULSORY REGISTRATION OF F I R IN CASES OF MISSING CHILDREN

In a petition filed by Bachpan Bachao Andolan (BBA) Writ Petition(s)(Civil) No(s). 75/2012 , the Hon’ble Supreme Court of India passed a landmark judgment on the issue of missing children.  

The bench headed by Hon’ble Chief Justice of India Mr. Justice Altamas Kabir comprising of Hon'ble Mr. Justice Vikramajit Sen and Hon'ble Mr. Justice Sharad Arvind Bobde has taken the issue of missing children very seriously in the light of the facts presented before it by Bachpan Bachao Andolan.  

The Hon’ble Court took into cognizance that in 2011 alone 90,654 children went missing with 34,406 children still remaining untraced. However only 15,284 FIRs were registered and investigations were launched.

Guidelines of Supreme Court

1 Compulsory registration of cases by police of missing children with the assumption that they are victims of kidnapping & trafficking.

2 Compulsory registration of cases by police of all those children who are still untraced (in 2011 34,406 children are still untraced).

3 Police will prepare standard operating procedures in all the states to deal with the cases of missing children.

4 Appointment and training of Special Child Welfare officers in every police station to deal with the cases of missing children.

5 Police will maintain records of recovered children along with photographs and Ministry of Home Affairs to facilitate the maintenance of records of missing children.

ADVISORY OF GOVERNMENT OF INDIA TO STATES

No. 24013/62/2012 – SC/ST–W

Government of India

Ministry of Home Affairs

Centre State Division ******

 5th Floor, NDCC-II Building

Jai Singh road, New Delhi

Dated the 25th June, 2013

To The Additional Chief Secretary/ Principal Secretary (Home)

Sub : Advisory on Hon’ble Supreme Court’s direction to file FIR in case of Missing Children

Sir/Ma’am,

Hon’ble Supreme Court while hearing a Writ Petition (Civil) no. 75 of 2012, on 10.05.2013, Bachpan Bachao Andolan vs Union of India has directed the following :

 (i) In case of complaint with regard to any missing children; made in a police station, the same should be reduced into a First Information Report and appropriate steps should be taken to see that follow up investigation is taken up immediately thereafter.

(ii)In case of every missing child reported; there will be an initial presumption of either abduction or trafficking, unless, in the investigation, the same is proved otherwise.

(iii) Whenever any complaint is filed before the police authorities regarding a missing child, the same must be entertained under Section 154 Cr.P.C. However, even in respect of complaints made otherwise with regard to a child, which may come within the scope of Section 155 Cr.P.C., upon making an entry in the Book to be maintained for the purposes of Section 155 Cr.P.C., and after referring the information to the Magistrate concerned, continue with the inquiry into the complaint.

(iv) The Magistrate, upon receipt of the information recorded under Section 155 Cr.P.C., shall proceed, in the meantime, to take appropriate action under sub- section (2), especially, if the complaint relates to a child and, in particular, a girl child.

(v) Each police station should have, at least, one Police Officer, especially instructed and trained and designated as a Juvenile Welfare Officer in terms of Section 63 of the Juvenile Act. Special Juvenile Officer on duty in the police station should be present in shifts.

(vi) Para-legal volunteers, who have been recruited by the Legal Services Authorities, should be utilized, so that there is, at least, one paralegal volunteer, in shifts, in the police station to keep a watch over the manner in which the complaints regarding missing children and other offences against children are dealt with.

(vii) The State Legal Services Authorities should also work out a network of NGOs, whose services could also be availed of at all levels for the purpose of tracing and reintegrating missing children with their families which, in fact, should be the prime object, when a missing child is recovered.

(viii) Every found/recovered child must be immediately photographed by the police for purposes of advertisement and to make his relatives / guardians aware of the child having been recovered / found .

(ix) Photographs of the recovered child should be published on the website and through the newspapers and even on the T.V. so that the parents of the missing child could locate their missing child and recover him or her from the custody of the police.

(x) Standard Operating Procedure must be laid down to handle the cases of missing children and to invoke appropriate provisions of law where trafficking, child labour, abduction, exploitation and similar issues are disclosed during investigation or after the recovery of the child, when the information suggests the commission of such offences.

(xi) A protocol should be established by the local police with the High Courts and also with the State Legal Services Authorities for monitoring the case of a missing child.

(xii) Definition of Missing Children : Missing child has been defined as a person below eighteen years of age, whose whereabouts are not known to the parents, legal guardians and any other person who may be legally entrusted with the custody of the child, whatever may be the circumstances/causes of disappearance. The child will be considered missing and in need of care and protection within the meaning of the later part of the Juvenile Act, until located and/or his/her safety/well being is established.

(xiii) In case a missing child is not recovered within four months from the date of filing of the First Information Report, the matter may be forwarded to the Anti-Human Trafficking Unit in each State in order to enable the said Unit to take up more intensive investigation regarding the missing child.

(xiv) The Anti-Human Trafficking Unit shall file periodical status reports after every three months to keep the Legal Services Authorities updated.

(xv) In cases where First Information Reports have not been lodged at all and the child is still missing, an F.I.R. should be lodged within a month from the date of communication of this Order and further investigation may proceed on that basis.

(xvi) Once a child is recovered, the police authorities shall carry out further investigation to see whether there is an involvement of any trafficking in the procedure by which the child went missing and if, on investigation, such links are found, the police shall take appropriate action thereupon

(xvii) The State authorities shall arrange for adequate Shelter Homes to be provided for missing children, who are recovered and do not have any place to go to. Such Shelter Homes or After-care Homes will have to be set up by the State Government concerned and funds to run the same will also have to be provided by the State Government together with proper infrastructure. Such Homes should be put in place within three months, at the latest. Any private Home, being run for the purpose of sheltering children, shall not be entitled to receive a child, unless forwarded by the Child Welfare Committee and unless they comply with all the provisions of the Juvenile Justice Act, including registration.

It is requested that the above directions of the Hon’ble Supreme Court may be adhered to in letter and spirit and implementation at the ground level may closely the monitored to eradicate any loophole within the system.

Dr. (Smt) Praveen Kumari Singh

Director (SR)