Discussing the power of courts relating to the investigation the Supreme Court observed “the legal position is absolutely clear and also settled by judicial authorities that the Court would not interfere with the investigation or during the course of investigation which would mean from the time of the lodging of the First Information Report till the submission of the report by the officer in charge of police station in court under Section 173(2) Cr.P.C., this field being exclusively reserved for the investigating agency. ( Union of India vs P. P. Hinduja 2003(6) SCC 195)
Monday, January 14, 2019
Saturday, January 12, 2019
PRESERVATION AND EXAMINATION OF VISCERA IS MUST IN CASES OF SUSPECTED POISONING
It is often seen that there is a considerable delay in sending the viscera to the FSL and its examination by the FSL which causes delay in submitting the police report as well as trial of the cases in the court. The hon’ble Supreme Court in case of Joshinder Yadav vs State Of Bihar
Friday, December 14, 2018
EXECUTIVE MAGISTRATE HAS NO JURISDICTION TO ORDER REGISTRATION OF F.I.R.
Hon’ble Supreme Court while discussing the validity of FIR registered on the orders of Executive Magistrate observed “It is therefore apparent that in the scheme of the Code, an Executive Magistrate has no role to play in directing the police to register an F.I.R. on basis of a private complaint lodged before him. If a complaint is lodged before the Executive Magistrate regarding an issue over which he has administrative jurisdiction, and the Magistrate proceeds to hold an administrative inquiry, it may be possible for him to lodge an F.I.R. himself in the matter. In such a case, entirely different considerations would arise.
A reading of the F.I.R. reveals that the police has registered the F.I.R on directions of the Sub Divisional Magistrate which was clearly impermissible in the law. The Sub Divisional Magistrate does not exercise powers under Section 156(3) of the Code. The very institution of the F.I.R. in the manner done is contrary to the law and without jurisdiction. (Naman Singh @Naman Pratap Singh and another Vs. State of U.P., Crl App.No. 1620/2018 decided on 13-12-18)
Thursday, December 6, 2018
SUPREME COURT APPROVED WITNESS PROTECTION SCHEME 2018 & DIRECTED STATES TO IMPLEMENT IT
Supreme Court on 5/12/18 approved witness protection scheme 2018 any by declaring it law under article 141, 142 of the Constitution, directed the state to implement it. The scheme lays down a detailed procedure for getting the protection under the scheme. The scheme is approved in case of
Mahendra Chawala and ors vs Union of India, (WP) Crl.156/2016 decided on 5-12-18 .
WITNESS PROTECTION SCHEME 2018
1.
SHORT TITLE AND COMMENCEMENT:
(a)
The Scheme shall be called “Witness Protection Scheme, 2018”
(b)
It shall come into force from the date of Notification.
Part
I
2.
DEFINITIONS:
(a)
"Code" means the Code of Criminal Procedure, 1973 (2 of 1974);
(b)
“Concealment of Identity of Witness” means and includes any condition
prohibiting publication or revealing, in any manner, directly or indirectly, of
the name, address and other particulars which may lead to the identification of
the witness during investigation, trial and post-trial stage;
(c)
“Competent Authority” means a Standing Committee in each District chaired by
District and Sessions Judge with Head of the Police in the District as Member
and Head of the Prosecution in the District as its Member Secretary.
(d)
“Family Member” includes parents/guardian, spouse, live-in partner, siblings,
children, grandchildren of the witness;
(e)
"Form" means “Witness Protection Application Form” appended to this
Scheme;
(f)
“In Camera Proceedings” means proceedings wherein the Competent Authority/Court
allows only those persons who are necessary to be present while hearing and
deciding the witness protection application or deposing in the court;
(g)
“Live Link” means and include a live video link or other such arrangement
whereby a witness, while not being physically present in the courtroom for
deposing in the matter or interacting with the Competent Authority;
(h)
“Witness Protection Measures” means measures spelt out in Clause 7, Part-III,
Part-IV and Part V of the Scheme.
(i)
"Offence"
means those offences which are punishable with death or life imprisonment or an
imprisonment up to seven years and above and also offences punishable under
Section 354, 354A, 354B, 354C, 354D and 509 of IPC.
(j)
"Threat Analysis Report" means a detailed report prepared and
submitted by the Head of the Police in the District Investigating the case with
regard to the seriousness and credibility of the threat perception to the witness
or his family members. It shall contain specific details about the nature of
threats by the witness or his family to their life, reputation or property
apart from analyzing the extent, or persons making the threat, have the intent,
motive and resources to implement the threats.
It
shall also categorize the threat perception apart from suggesting the specific
witness protection measures which deserves to be taken in the matter;
(k)
“Witness” means any person, who posses information or document about any
offence;
(l)
“Witness Protection Application” means an application moved by the witness in
the prescribed form before a Competent Authority for seeking Witness Protection
Order. It can be moved by the witness, his family member, his duly engaged
counsel or IO/SHO/SDPO/Prison SP concerned and the same shall preferably be got
forwarded through the Prosecutor concerned;
(m)
“Witness Protection Fund” means the fund created for bearing the expenses
incurred during the implementation of Witness Protection Order passed by the
Competent Authority under this scheme;
(n)
“Witness Protection Order” means an order passed by the Competent Authority
detailing the witness protection measures to be taken
(o)
“Witness Protection Cell” means a dedicated Cell of State/UT Police or Central
Police Agencies assigned the duty to implement the witness protection order.
Part
II
3.
CATEGORIES OF WITNESS AS PER THREAT PERCEPTION:
Category
‘A’ : Where the threat extends to life of witness or his family members, during
investigation/trial or thereafter.
Category
‘B’ : Where the threat extends to safety, reputation or property of the witness
or his family members, during the investigation/trial or thereafter.
Category
‘C’ : Where the threat is moderate and extends to harassment or intimidation of
the witness or his family member's, reputation or property, during the investigation/trial
or thereafter.
4.
STATE WITNESS PROTECTION FUND:
(a)
There shall be a Fund, namely, the Witness Protection Fund from which the
expenses incurred during the implementation of Witness Protection Order passed
by the Competent Authority and other related expenditure, shall be met.
(b)
The Witness Protection Fund shall comprise the following:-
i.
Budgetary allocation made in the Annual Budget by the State Government;
ii.
Receipt of amount of costs imposed/ordered to be deposited by the
courts/tribunals in the Witness Protection Fund;
iii.
Donations/contributions from Charitable Institutions/ Organizations and
individuals permitted by Central/State Governments.
iv.
Funds contributed under Corporate Social Responsibility.
(c)
The said Fund shall be operated by the Department/Ministry of Home under
State/UT Government.
5.
FILING OF APPLICATION BEFORE COMPETENT
AUTHORITY:
The
application for seeking protection order under this scheme can be filed in the
prescribed form before the Competent Authority of the concerned District where
the offence is committed, through its Member Secretary along with supporting
documents, if any.
6.
PROCEDURE FOR PROCESSING THEAPPLICATION:
(a)
As and when an application is received by the Member Secretary of the Competent
Authority, in the prescribed form, it shall forthwith pass an order for calling
for the Threat Analysis Report from the ACP/DSP in charge of the concerned
Police Sub-Division.
(b)
Depending upon the urgency in the matter owing to imminent threat, the
Competent Authority can pass orders for interim protection of the witness or
his family members during the pendency of the application.
(c)
The Threat Analysis Report shall be prepared expeditiously while maintaining
full confidentiality and it shall reach the Competent Authority within five
working days of receipt of the order.
(d)
The Threat Analysis Report shall categorize the threat perception and also
include suggestive protection measures for providing adequate protection to the
witness or his family.
(e)
While processing the application for witness protection, the Competent
Authority shall also interact preferably in person and if not possible through
electronic means with the witness and/or his family members/employers or any other
person deemed fit so as to ascertain the witness
protection
needs of the witness.
(f)
All the hearings on Witness Protection Application shall be held in-camera by
the Competent Authority while maintaining full confidentiality.
(g)
An application shall be disposed of within five working days of receipt of
Threat Analysis Report from the Police authorities.
(h)
The Witness Protection Order passed by the Competent Authority shall be
implemented by the Witness
Protection
Cell of the State/UT or the Trial Court, as the case may be. Overall
responsibility of implementation of all witness protection orders passed by the
Competent Authority shall lie on the Head of the Police in the State/UT.
However
the Witness Protection Order passed by the Competent Authority for change of
identity and/or relocation shall be implemented by the Department of Home of
the concerned State/UT.
(i)
Upon passing of a Witness Protection Order, the Witness Protection Cell shall
file a monthly follow-up report before the Competent Authority.
(j)
In case, the Competent Authority finds that there is a need to revise the
Witness Protection Order or an application is moved in this regard, and upon
completion of trial, a fresh Threat Analysis Report shall be called from the
ACP/DSP in charge of the concerned Police Sub- Division.
7.
TYPES OF PROTECTION MEASURES:
The
witness protection measures ordered shall be proportionate to the threat and
shall be for a specific duration not exceeding three months at a time. They may
include:
(a)
Ensuring that witness and accused do not come face to face during investigation
or trial;
(b)
Monitoring of mail and telephone calls;
(c)
Arrangement with the telephone company to change the witness’s telephone number
or assign him or her an unlisted telephone number;
(d)
Installation of security devices in the witness’s home such as security doors,
CCTV, alarms, fencing etc;
(e)
Concealment of identity of the witness by referring to him/her with the changed
name or alphabet;
(f)
Emergency contact persons for the witness;
(g) Close protection, regular patrolling
around the witness’s house;
(h)
Temporary change of residence to a relative’s house or a nearby town;
(i)
Escort to and from the court and provision of Government vehicle or a State
funded conveyance for the date of hearing;
(j)
Holding of in-camera trials;
(k)
Allowing a support person to remain present during recording of statement and
deposition;
(l)
Usage of specially designed vulnerable witness court rooms which have special
arrangements like live video links, one way mirrors and screens apart from
separate passages for witnesses and accused, with option to modify the image of
face of the witness and to modify the audio feed of the witness’ voice, so that
he/she is not identifiable;
(m)
Ensuring expeditious recording of deposition during trial on day to day basis
without adjournments;
(n)
Awarding time to time periodical financial aids/grants to the witness from Witness
Protection Fund for the purpose of re-location, sustenance or starting a new vocation/profession,
if desired;
(o)
Any other form of protection measures considered necessary.
8.
MONITORING AND REVIEW:
Once
the protection order is passed, the Competent Authority would monitor its
implementation and can review the same in terms of follow-up reports received
in the matter. However, the Competent Authority shall review the Witness
Protection Order on a quarterly basis based on the monthly follow-up report
submitted by the Witness Protection Cell.
Part
III
9.
PROTECTION OF IDENTITY :-
During
the course of investigation or trial of any offence, an application for seeking
identity protection can be filed in the prescribed form before the Competent
Authority through its Member Secretary.
Upon
receipt of the application, the Member Secretary of the Competent Authority
shall call for the Threat Analysis Report. The Competent Authority shall
examine the witness or his family members or any other person it deem fit to
ascertain whether there is necessity to pass an identity protection order.
During
the course of hearing of the application, the identity of the witness shall not
be revealed to any other person, which is likely to lead to the witness
identification. The Competent Authority can thereafter, dispose of the application
as per material available on record.
Once,
an order for protection of identity of witness is passed by the Competent
Authority, it shall be the responsibility of Witness Protection Cell to ensure
that identity of such witness/his or her family members including
name/parentage/occupation/address/digital footprints are fully protected.
As
long as identity of any witness is protected under an order of the Competent
Authority, the Witness Protection Cell shall provide details of persons who can
be contacted by the witness in case of emergency.
Part
IV
10.
CHANGE OF IDENTITY:-
In
appropriate cases, where there is a request from the witness for change of
identity and based on the Threat Analysis Report, a decision can be taken for
conferring a new identity to the witness by the Competent Authority.
Conferring
new identities includes new name/profession/parentage and providing supporting documents
acceptable by the Government Agencies. The new identities should not deprive
the witness from existing educational/ professional/property rights.
Part
V
11.
RELOCATION OF WITNESS:
In
appropriate cases, where there is a request from the witness for relocation and
based on the Threat Analysis Report, a decision can be taken for relocation of
the witness by the Competent Authority. The Competent Authority may pass an
order for witness relocation to a safer place within the State/UT or territory of
the Indian Union keeping in view the safety, welfare and wellbeing of the
witness. The expenses shall be borne by the Witness Protection Fund.
Part
VI
12.
WITNESSES TO BE APPRISED OF THE SCHEME:
Every
state shall give wide publicity to this Scheme. The IO and the Court shall
inform witnesses about the existence of "Witness Protection Scheme"
and its salient features.
13.
CONFIDENTIALITY AND PRESERVATION OF RECORDS:
All
stakeholders including the Police, the Prosecution Department, Court Staff,
Lawyers from both sides shall maintain full confidentiality and shall ensure
that under no circumstance, any record, document or information in relation to
the proceedings under this scheme shall be shared with any person in any manner
except with the Trial Court/Appellate Court and that too, on a written order.
All
the records pertaining to proceedings under this scheme shall be preserved till
such time the related trial or appeal thereof is pending before a Court of Law.
After one year of disposal of the last Court proceedings, the hardcopy of the
records can be weeded out by the Competent Authority after preserving the
scanned soft copies of the same.
14.
RECOVERY OF EXPENSES:
In
case the witness has lodged a false complaint, the Home Department of the
concerned Government can initiate proceedings for recovery of the expenditure incurred
from the Witness Protection Fund.
15.
REVIEW:
In
case the witness or the police authorities are aggrieved by the decisions of
the Competent Authority, a review application may be filed within 15 days of
passing of the orders by the Competent Authority.
Witness
Protection Application
Under
Witness Protection Scheme, 2018
Before,
(To be filed in duplicate)
The
Competent Authority,
District................................................................
Application
for:
1.
Witness Protection
2.
Witness Identity Protection
3.
New Identity
4.
Witness Relocation
1.
Particulars of the Witness (Fill in
Capital):
1)
Name
2)
Age
3)
Gender (Male/Female/Other)
4)
Father's/Mother’s Name
5)
Residential Address
6)
Name and other details of family members of the witness who are receiving or
perceiving threats
7)
Contact details (Mobile/e-mail)
---------------------------
--------------------------- --------------------------- ---------------------------
2.
Particulars of Criminal matter:
1)
FIR No.
2)
Under Section
3)
Police Station --------------------------- ------------------------------------------------------
4)
District------------------------------------------------------------------------------------------
5)
D.D. No. (in case FIR not yet registered)--------------------------------------------------
6)
Cr.Case No. (in case of private complaint) ---------------------------
--------------------
3.
Particulars of the Accused (if available/known):
1)
Name
2)
Address
3)
Phone No.
4)
Email id
----------------------------------------------------------------------------------------
4.
Name & other particulars of the person giving/suspected of giving threats
---------------------------
--------------------------------------------------------------------------
---------------------------
--------------------------------------------------------------------------
5.
Nature of threat perception. Please give brief details of threat received in the
matter with specific date, place, mode and words used
---------------------------
-------------------------------------------------------------------------
6.
Type of witness protection measures prayed by/for the witness
---------------------------
------------------------------------------------------------------------
---------------------------
------------------------------------------------------------------------
7.
Details of Interim / urgent Witness Protection needs, if required
---------------------------
-----------------------------------------------------------------------
---------------------------
-----------------------------------------------------------------------
•
Applicant/witness can use extra sheets for giving additional information.
(Full
Name with signature)
Date:
..............................
Place:..............................
UNDERTAKING
1.
I undertake that I shall fully cooperate with the competent authority and the
Department of Home of the State and Witness Protection Cell.
2.
I certify that the information provided by me in this application is true and
correct to my best knowledge and belief.
3.
I understand that in case, information given by me in this application is found
to be false, competent authority under the scheme reserves the right to recover
the expenses incurred on me from out of the Witness Protection Fund.
(Full
Name with signature)
Date:
..............................
Place:..............................”
Tuesday, December 4, 2018
Registration of FIR under section 174 A of IPC?
The offence of section 174 A I.P.C. has been made cognizable which means police has power to arrest without warrant, investigation can be started without the orders of magistrate and yes, FIR can be registered. Bar of section 195(1) (a) of Cr.P.C. is not applicable in case of offence under section 174 -A I.P.C.
Monday, December 3, 2018
APPLICABILITY OF N. D. P.S .ACT AND DRUGS AND COSMETICS ACT
Where a large number of manufactured drug in bulk quantity is found without authorization containing narcotic and psychotropic substances, the operation of NDPS act is not barred. Person can be charged for violating section 8 of the NDPS Act punishable in section 21 or 22 of the Act as the case may be.
After discussing the various case laws the Supreme Court observed “ First, we note that Section
80 of the N.D.P.S Act, clearly lays down that application of the Drugs and Cosmetics Act is not barred, and provisions of N.D.P.S. Act can be applicable in addition to that of the provisions of the Drugs and Cosmetics Act. The statute further clarifies that the provisions of the N.D.P.S Act are not in derogation of the Drugs and Cosmetics Act, 1940.
The aforesaid decision further clarifies that, the N.D.P.S Act, should not be read in exclusion to Drugs and Cosmetics Act, 1940. Additionally, it is the prerogative of the State to prosecute
the offender in accordance with law. In the present case, since the action of the accused/Respondents amounted to a primafacie violation of Section 8 of the N.D.P.S Act, they were charged under Section 22 of the N.D.P.S Act. ( State of Punjab vs Rakesh Kumar, Crl Appeal 1512 OF 2018 decided on 03/12/18)
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