POLICE POWER OF FURTHER INVESTIGATION UNDER SECTION 173(8) CR.P.C , WHETHER CAN BE EXERCISED AT THE STAGE OF TRIAL, EVEN IF THE TRIAL IS IN ITS LAST STAGE THAT IS EXAMINATION UNDER SECTION 313 CR.P.C.

While dealing with the above issue the Hon'ble Supreme Court in case of Amruthbhai Shambhubhai Patel vs Sumanbhai Kantibhai Patel & Ors , Criminal Appeal No. 1171/2016 decided on Feb 02, 2017, held that power of police to further investigate can be exercised even if the trial is in its last stage. Permission of the  court is not required to conduct the further investigation of the case under section 173(8) Cr.P.C.  However a formal information is required to be given to the court.

OPTIONS AVAILABLE TO INVESTIGATING OFFICER WHEN REMAND APPLICATION IS REJECTED BY THE COURT.

If the remand application  is rejected by the court following are the options available to the Investigating officer;-

He may file a revision petition  in Session Court or High Court or

May file another remand application on fresh grounds in the court of Magistrate.

Provided all the options must be exercised within first period of 15 days.

If revision is filed in first 15 days and decision of court comes after expiry of the 15 days, the accused cannot be taken on police remand .

In order  to avoid  the above situation  the Gujarat High Court in case of KANTIBHAI DEVSIBHAI PATEL Versus STATE OF GUJARAT, SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 1853 of 2015 decided on 22 June, 2015  passed following directions to be followed in cases if  order of magistrate granting or refusing the remand application is challenge in the high court. 

(1) If the Investigating Officer files any application for remand at the time when the accused is produced before the Court, then the Court shall hear and decide such application on the very same day;

(2) In the event, if the remand application is rejected, then the State shall ensure to see, if they intend to challenge such order of the Magistrate before the revisional court, that the revision application is preferably filed on the very next day, and if such application is filed by the State, then the revisional court shall hear and dispose of the same at the earliest keeping in mind the statutory time period of fifteen days, during which, the accused can be taken into police custody.

(3) In the event, if the remand application is allowed and the accused prays for stay of the operation of such order, then the Magistrate shall see to it that the right of the prosecution to pray for such remand within first fifteen days of detention is not defeated or frustrated. The Court should be circumspect and very slow in staying the operation of the order of remand on mere asking by the accused.I

STATEMENT RECORDED UNDER SECTION 161 Cr.P.C CAN BE TREATED AS DYING DECLARATION EVEN IF THE DEATH IS AFTER THREE MONTHS OF RECORDING THE STATEMENT UNDER SECTION 161 Cr.P.C.

The Hon'ble Supreme Court while deliberating on the said issue  in Criminal appeal no.1192 of 2018 (arising out of slp (crl.) No. 6225 of 2017) Pradeep bisoi @ Ranjit bisoi  Vs  State of Odisha  held decided on 10/10/2018 held the statement under section 161 Cr.P.C admissible  as Dying Declaration and observed “exception to what has been laid down in sub-section (1). The statement recorded by police under Section 161, falling within the provisions of clause (1) of Section 32 of Indian Evidence Act, thus, is clearly relevant and admissible.

FAILURE TO DETERMINE THE BLOOD GROUP FOUND AT THE SCENE OF CRIME OR ON WEAPON SOLELY CANNOT BE A GROUND FOR ACQUITTAL OF ACCUSED.

Deliberating on this issue  in CRIMINAL APPEAL NO. 2324 OF 2014 Prabhu Dayal  Vs   State of Rajasthan,  decided on 4-7-18, Hon’ble Supreme Court  observed that -

“The reports of the Forensic Science Laboratory as well as those of the Ballistic Experts have been perused by us. The Forensic Science Laboratory report discloses that the samples collected from the scene of the offence had bloodstains of human origin. However, since the bloodstains were disintegrated by the time the bloodstains were examined by the Forensic Science Laboratory, the blood group could not be determined. For the same, the accused cannot be unpunished, more particularly when the bloodstains were found of human origin.

In State of Rajasthan v. Teja Ram, (1999) 3 SCC 507, thisCourt concluded that even when the origin of the blood cannot be determined, it does not necessarily prove fatal to the case of the prosecution. In that case, the murder weapons had been recovered with blood on them, and the origin of the blood on one of the weapons could not be determined. Therein, the Court held as follows:

Failure of the serologist to detect the origin of the blood due to disintegration of the serum in the meanwhile does not mean that the blood stuck on the axe would not have been human blood at all.

Sometimes it happens, either because the stain is too insufficient or due to haematological changes and plasmatic coagulation that a serologist might fail to detect the origin of the blood. Will it then mean that the blood would be of some other origin? Such guesswork that blood on the other axe would have been animal blood is unrealistic and far-fetched in the broad spectrum of this case. The effort of the criminal court should not be to prowl for imaginative doubts. Unless the doubt is of a reasonable dimension which a judicially conscientious mind entertains with some objectivity, no benefit can be claimed by the accused.

POLICE TO ENSURE THE STRICT COMPLIANCE OF SUPREME COURT ORDER ON USE OF FIRE CRACKERS ON DIWALI, GURUPARB, NEW YEAR, CHRISTMAS AND OTHER OCCASIONS . SOME OF THE DIRECTIONS TO APPLY PAN INDIA………….

In  WRIT PETITION (CIVIL) NO. 728 OF 2015 ARJUN GOPAL AND OTHERS  Vs. UNION OF INDIA AND OTHERS ..... decided on 23/10/18 Hon,ble Supreme Court has issued following  direction regarding use of firecrackers .

(i) The crackers with reduced emission (improved crackers) and green crackers, as mentioned in Suggestion Nos. II and III above only would be permitted to be manufactured and sold.

 (ii) As a consequence, production and sale of crackers other than those mentioned in Suggestion Nos. II and III is hereby banned. As in Writ Petition (Civil) No. 728 of 2015 & Ors.

(iii) The manufacture, sale and use of joined firecrackers (series crackers or laris) is hereby banned as the same causes huge air, noise and solid waste problems.

(iv) The sale shall only be through licensed traders and it shall be ensured that these licensed traders are selling those firecrackers which are permitted by this order.

(v) No e-commerce websites, including Flipkart, Amazon etc., shall accept any online orders and effect online sales. Any such e-commerce companies found selling crackers online will be hauled up for contempt of court and the Court may also pass, in that eventuality, orders of monetary penalties as well.

(vi) Barium salts in the fireworks is also hereby banned

(vii) PESO is directed to review the clinical composition of fireworks, particularly reducing Aluminum content, and shall submit its report in respect thereof within a period of two weeks from today. For undertaking this exercise, PESO would also associate FRDC.

(viii) Even those crackers which have already been produced and they do not fulfill the conditions mentioned in Suggestion Nos. II and III above will not be allowed to be sold in Delhi and NCR.

(ix) PESO will ensure fireworks with permitted chemicals only to be  purchased/possessed/sold/used during Diwali and all other religious festivals, of any religion whatsoever, and other occasions like marriages, etc. It shall test and check for the presence of banned chemicals like Lithium/Arsenic/ Antimony/Lead/Mercury.

(x) PESO will ensure suspension of the licenses of manufacturers of such fireworks items and appropriate disposal of such stock.

(xi) PESO will ensure that only those crackers whose decibel (sound) level are within the limits are allowed in the market and will ensure to take action by suspending the licenses of the manufacturers on such violations and disposal of

(xii) Direction Nos. 4 to 9 and 11 contained in the order dated September 12, 2017 shall continue to operate and are reiterated again.

(xiii) Extensive public awareness campaigns shall be taken up by the Central Government/State Governments/Schools/ Colleges informing the public about the harmful effects of firecrackers.

(xiv) On Diwali days or on any other festivals like Gurpurab etc., when such fireworks generally take place, it would strictly be from 8:00 p.m. till 10:00 p.m. only. On Christmas even and New Year eve, when such fireworks start around midnight, i.e. 12:00 a.m., it would be from 11:55 p.m. till 12:30 a.m. only.

(xv) The Union of India, Government of NCT of Delhi and the State Governments of the NCR would permit community firecracking only (for Diwali and other festivals etc. as mentioned above), wherever it can be done.

For this purpose, particular area/fields would be pre-identified and pre designated by the concerned authorities. This exercise shall be completed within a period of one week from today so that the public at large is informed about the designated places one week before Diwali.

The areas designated now for the purpose of Diwali shall be valid for community firecracking on other occasions/festivals as well, as mentioned above. Even for marriages and other occasions, sale of improved crackers and green crackers is only permitted.

Insofar as other States are concerned, an endeavour shall be made by them also to explore the feasibility of community firecracking. However, it is made clear that Direction No. (xiv) pertaining to the duration within which fireworks can take place on all such occasions would be applicable throughout India.  Similarly, Direction No.  (xiii) for extensive public awareness campaigns is also a pan India direction

(xvi) All the official respondents, and particularly the Police, shall ensure that fireworks take place only during the designated time and at designated places, as mentioned above. They shall also ensure that there is no sale of banned firecrackers. In case any violation is found, the Station House Officer (SHO) of the concerned Police Station of the area shall be held personally liable for such violation and this would amount to committing contempt of the Court, for which such SHO(s) would be proceeded against.

 (xvii) CPCB and respective State Pollution Control Boards/ Pollution Control Committees (SPCBs/PCCs) of the States and Union Territories shall carry out short-term monitoring in their cities for 14 days (commencing from 7 days prior to Diwali and ending 7 days after Diwali) for the parameters namely, Aluminum, Barium, Iron apart from the regulatory parameters against the short-term Ambient Air Quality Criteria Values (AAQCVs) proposed by CPCB with regard to bursting of firecrackers. This will help in generation of data on pollution caused by the bursting of firecrackers and would be helpful for regulation and control quantity of Aluminum, Barium and Iron used in the manufacture of firecrackers.

ACQUITTAL DUE TO HOSTILE PROSECUTRIX DOESN’T MAKE APPLICANT’S CHARACTER UNFIT FOR PURPOSE OF EMPLOYMENT

IN CASE WHERE THE APPLICANT WAS SELECTED AS JUDICIAL OFFICER AND IN HIS CHARACTER VERIFICATION REPORT DISCLOSED HIS ACQUITTAL IN A CRIMINAL CASE WAS DENIED APPOINTMENT ON THE BASIS OF POLICE VERIFICATION REPORT THAT THE ACQUITTAL IS BECAUSE THE PROSECUTRIX TURNED HOSTILE, THE HON’BLE SUPREME COURT OBSERVED:-

 It is an undisputed fact that one Shri Sudhir Gulabrao Barde, who had been acquitted on 24.11.2009 in Case No.3022 of 2007 under Sections 294, 504, 34, IPC, has been appointed. We are not convinced, that in the facts and circumstances of the present case, the appellant could be discriminated and denied appointment arbitrarily when both the appointments were in judicial service, by the same selection procedure, of persons who faced criminal prosecutions and were acquitted. The distinction sought to be drawn by the respondents, that the former was not involved in a case of moral turpitude does not leave us convinced. In Joginder Singh (supra), it was observed as follows:

Further, apart from a small dent in the name of this criminal case in which he has been honourably acquitted, there is no other material on record to indicate that the antecedents or the conduct of the Appellant was not up to the mark to appoint him to the post...."

 In the present proceedings, on 23.03.2018, this Court had called for a confidential report of the character verification as also the antecedents of the appellant as on this date. The report received reveals that except for the criminal case under reference in which he has been acquitted, the appellant has a clean record and there is no adverse material against him to deny him the fruits of his academic labour in a competitive selection for the post of a judicial officer. In our opinion, no reasonable person on the basis of the materials placed before us can come to the conclusion that the antecedents and character of the appellant are such that he is unfit to be appointed as a judicial officer.

An alleged single misadventure or misdemeanour of the present nature, if it can be considered to be so, cannot be sufficient to deny appointment to the appellant when he has on all other aspects and parameters been found to be fit for appointment. The Law is well settled in this regard in Avtar Singh vs. Union of India and others, (2016) 8 7 SCC 471. If empanelment creates no right to appointment, equally there can be no arbitrary denial of appointment after empanelment.

In the entirety of the facts and circumstances of the case, we are of the considered opinion that the consideration of the candidature of the appellant and its rejection are afflicted by a myopic vision, blurred by the spectacle of what has been described as moral turpitude, reflecting inadequate appreciation and application of facts also, as justice may demand.

 We, therefore, consider the present a fit case to set aside the order dated 04.06.2010 and the impugned order dismissing the writ petition, and direct the respondents to reconsider the candidature of the appellant. Let such fresh consideration be done and an appropriate decision be taken in light of the present discussion, preferably within a maximum period of eight weeks from the date of receipt and production of the copy of the present order. In order to avoid any future litigation on seniority or otherwise, we make it clear that in the event of appointment, the appellant shall not be entitled to any other reliefs. (Mohammed Imran v. State of Maharashtra,2018 SCC OnLine SC 1943, decided on 12-10-2018)

TO CURB THE MENACE OF HORROR KILLING A THREE JUDGES BENCH OF HON’BLE SUPREME COURT IN CASE OF SHAKTI VAHINI VS UNION OF INDIA WRIT PETITION (CIVIL) NO. 231 OF 2010 DECIDED ON March 27, 2018 HAS ISSUED FOLLOWING DIRECTION TO BE IMPLEMENTED BY THE STATES .......

 I. Preventive Steps:-

(a) The State Governments should forthwith identify Districts, Sub-Divisions and/or Villages where instances of honour killing or assembly of Khap Panchayats have been reported in the recent past, e.g., in the last five years.

(b) The Secretary, Home Department of the concerned States shall issue directives/advisories to the Superintendent of Police of the concerned Districts for ensuring that the Officer In charge of the Police Stations of the identified areas are extra cautious if any instance of inter-caste or inter- religious marriage within their jurisdiction comes to their notice.

(c) If information about any proposed gathering of a Khap Panchayat comes to the knowledge of any police officer or any officer of the District Administration, he shall forthwith inform his immediate superior officer and also simultaneously intimate the jurisdictional Deputy Superintendent of Police and Superintendent of Police.

(d) On receiving such information, the Deputy Superintendent of Police (or such senior police officer as identified by the State Governments with respect to the  area/district) shall immediately interact with the members of the Khap Panchayat and impress upon them that convening of such meeting/gathering is not permissible in law and to eschew from going ahead with such a meeting.

Additionally, he should issue appropriate directions to the Officer In charge of the jurisdictional Police Station to be vigilant and, if necessary, to deploy adequate police force for prevention of assembly of the proposed gathering.

(e) Despite taking such measures, if the meeting is conducted, the Deputy Superintendent of Police shall personally remain present during the meeting and impress upon the assembly that no decision can be taken to cause any harm to the couple or the family members of the couple, failing which each one participating in the meeting besides the organisers would be personally liable for criminal prosecution. He shall also ensure that video recording of the discussion and participation of the members of the assembly is done on the basis of which the law enforcing machinery can resort to suitable action.

(f) If the Deputy Superintendent of Police, after interaction with the members of the Khap Panchayat, has reason to believe that the gathering cannot be prevented and/or is likely to cause harm to the couple or members of their family, he shall forthwith submit a proposal to the District Magistrate/Sub-Divisional Magistrate of the District/ Competent Authority of the concerned area for issuing orders to take preventive steps under the Cr.P.C., including by invoking prohibitory orders under Section 144 Cr.P.C. and also by causing arrest of the participants in the assembly under Section 151 Cr.P.C.

(g) The Home Department of the Government of India must take initiative and work in coordination with the State Governments for sensitising the law enforcement agencies and by involving all the stake holders to identify the measures for prevention of such violence and to implement the constitutional goal of social justice and the rule of law.

(h) There should be an institutional machinery with the necessary coordination of all the stakeholders. The different State Governments and the Centre ought to work on sensitization of the law enforcement agencies to mandate social initiatives and awareness to curb such violence.

II. Remedial Measures:-

(a) Despite the preventive measures taken by the State Police, if it comes to the notice of the local police that the Khap Panchayat has taken place and it has passed any diktat to take action against a couple/family of an inter-caste or inter-religious marriage (or any other marriage which does not meet their acceptance), the jurisdictional police official shall cause to immediately lodge an F.I.R. under the appropriate provisions of the Indian Penal Code including Sections 141, 143, 503 read with 506 of IPC.

(b) Upon registration of F.I.R., intimation shall be simultaneously given to the Superintendent of Police/ Deputy Superintendent of Police who, in turn, shall ensure that effective investigation of the crime is done and taken to its logical end with promptitude.

(c) Additionally, immediate steps should be taken to provide security to the couple/family and, if necessary, to remove them to a safe house within the same district or elsewhere keeping in mind their safety and threat perception. The State Government may consider of establishing a safe house at each District Headquarter for that purpose. Such safe houses can cater to accommodate

(i) young bachelor-bachelorette couples whose relationship is being opposed by their families /local community/Khaps and

(ii) young married couples (of an inter-caste or inter-religious or any other marriage being opposed by their families/local community/Khaps). Such safe houses may be placed under the supervision of the jurisdictional District Magistrate and Superintendent of Police.

(d) The District Magistrate/Superintendent of Police must deal with the complaint regarding threat administered to such couple/family with utmost sensitivity. It should be first ascertained whether the bachelor-bachelorette are capable adults.

Thereafter, if necessary, they may be provided logistical support for solemnising their marriage and/or for being duly registered under police protection, if they so desire. After the marriage, if the couple so desire, they can be provided accommodation on payment of nominal charges in the safe house initially for a period of one month to be extended on monthly basis but not exceeding one year in aggregate, depending on their threat assessment on case to case basis.

(e) The initial inquiry regarding the complaint received from the couple (bachelor-bachelorette or a young married couple) or upon receiving information from an independent source that the relationship/marriage of such couple is opposed by their family members/local community/Khaps shall be entrusted by the District Magistrate/Superintendent of Police to an officer of the rank of Additional Superintendent of Police. He shall conduct a preliminary inquiry and ascertain the authenticity, nature and gravity of threat perception. On being satisfied as to the authenticity of such threats, he shall immediately submit a report to the Superintendent of Police in not later than one week.

(f) The District Superintendent of Police, upon receipt of such report, shall direct the Deputy Superintendent of Police in charge of the concerned sub-division to cause to register an F.I.R. against the persons threatening the couple(s) and, if necessary, invoke Section 151 of Cr.P.C. Additionally, the Deputy Superintendent of Police shall personally supervise the progress of investigation and ensure that the same is completed and taken to its logical end with promptitude. In the course of investigation, the concerned persons shall be booked without any exception including the members who have participated in the assembly. If the involvement of the members of Khap Panchayat comes to the fore, they shall also be charged for the offence of conspiracy or abetment, as the case may be.

III. Punitive Measures:-

(a) Any failure by either the police or district officer/officials to comply with the aforesaid directions shall be considered as an act of deliberate negligence and/or

misconduct for which departmental action must be taken under the service rules. The departmental action shall be initiated and taken to its logical end, preferably not exceeding six months, by the authority of the first instance.

(b) In terms of the ruling of this Court in Arumugam Servai (supra), the States are directed to take disciplinary action against the concerned officials if it is found that

(i) such official(s) did not prevent the incident, despite having prior knowledge of it, or

(ii) where the incident had already occurred, such official(s) did not promptly apprehend and institute criminal proceedings against the culprits.

(c) The State Governments shall create Special Cells in every District comprising of the Superintendent of Police, the District Social Welfare Officer and District Welfare Officer to receive petitions/complaints of harassment of and threat to couples of inter-caste marriage.

(d) These Special Cells shall create a 24 hour helpline to receive and register such complaints and to provide necessary assistance/advice and protection to the couple.

(e) The criminal cases pertaining to honour killing or violence to the couple(s) shall be tried before the designated Court/Fast Track Court earmarked for that purpose.

The trial must proceed on day to day basis to be concluded preferably within six months from the date of taking cognizance of the offence.

 We may hasten to add that this direction shall apply even to pending cases. The concerned District Judge shall assign those cases, as far as possible, to one jurisdictional court so as to ensure expeditious disposal thereof.

 The measures we have directed to be taken have to be carried out within six weeks hence by the respondent- States. Reports of compliance be filed within the said period before the Registry of this Court.