NO DEEMED CONFIRMATION IN THE SERVICES IN ABSENCE OF SPECIFIC RULES

Unless and until there are specific provision in the respective rules  there will not be any deemed confirmation in the services  after probation period is over. An employee is confirmed in the services only after receiving the confirmation order. ( D D  Memorial Secondary school vs  J A J Vasu Sena , Supreme Court on 21-8-19 )

Power of Magistrate to order the accused to give voice sample

 The Honourable Supreme  Court in case of Ritesh Sinha vs State of U.P. Criminal Appeal No..2003/ 2012 decided on 02/08/19 held that  “until explicit provisions are engrafted in the Code of Criminal Procedure by Parliament, a Judicial Magistrate must be conceded the power to order a person to give a sample of his voice for the purpose of investigation of a crime. Such power has to be conferred on a Magistrate by a process of judicial interpretation and in exercise of jurisdiction vested in this Court under Article 142 of the Constitution of India” S.C. while upholding the constitution bench decision in case  of Kathi Kalu Aughar held that ordering the accused to give his voice sample is not voilative of article 20(3) of the Indian Constitution. Now the legal position is settled that till the law is made by the parliament Judicial Magistrate has power to order accused to give his voice sample.

procedure of filling Anticipatory Bail Application in U.P.

Recently the U P Government has revived the provision for anticipatory bail in the  State . The Allahabad High Court has issued notice containing the procedure for filling anticipatory bail application.

NOTICE

Learned Counsels are requested to refer the Code of Criminal Procedure (Uttar Pradesh Amendment) Act 2018 (UP Act 04/2019) UP Government Notification no. 1058(2)/LXIX-V-1-19-1(KA)-20-2018 dated 06-06-2019 for grant of Anticipatory Bail under section 438 of Cr.P.C. to person apprehending arrest. In the above matter, I have been directed to notify following direction of the Hon'ble Court for :

(1) The application must bear Court fee of Rs.5/- as prescribed for application.

(2) The application must be supported by an affidavit of the person apprehending arrest.

(3) The Second paragraph of the affidavit filed in support of the application must contain the reason to believe that deponent apprehending arrest on accusation of a non bailable offence with particulars i.e. Case Crime Number, Police Station, and Section(s) under which arrest is apprehended, if the same is known to the deponent.

(4) The third paragraph of the affidavit filed in support of the application must contain that apprehended accusation does not fall under the offences provided under sub section (6) of the section 438 CrPC.

(5) The fourth paragraph of the affidavit filed in support of the application must contain that the deponent has not filed any previous application under section 438 CrPC before this Hon'ble Court either at Allahabad or Lucknow or before any other High Court in India, pertaining to the same subject matter.

(6) The fifth paragraph of the affidavit filed in support of the application must contain information as to whether any application under section 438 CrPC has been moved before the Court of Sessions having Jurisdiction and the status/result of that application and must be substantiated with relevant documents.

Sd/- O.S.D. (J) (Criminal)

01.07.2019

Registration of FIR under section 482 Cr.P.C. on the orders of High Court.

The Madras High Court  in case of Sugesan Transport Pvt Limited vs  Assistant Commissioner of Police, Crl O.P. 19197/2016 dated 27/9/2016 have issued following guidelines to be observed by the Magistrate and Police in case of disposing or dealing with the applications filed under section 156(3) Cr.P.C.

i A petition under Section 482, Cr.P.C. for a direction to register an FIR on the complaint of the petitioner circumventing the time table prescribed by the Supreme Court in Lalita Kumari-IV and V is not maintainable.

ii This Court directs all the Station House Officers in the State of Tamil Nadu and Union Territory of Puducherry to receive any complaint relating to the commission of cognizable offence by a common man and if the Station House Officer wants to conduct a preliminary enquiry, he shall immediately issue a CSR receipt (in case of Tamil Nadu) or issue a separate receipt (in case of Union Territory of Puducherry) to the complainant and after making the necessary entries in the Station General Diary, as directed by the Supreme Court in Lalita Kumari-IV and V, conduct preliminary enquiry.

In Lalita Kumari-IV, the Supreme Court has directed that after conducting preliminary enquiry, if the police come to the conclusion that no FIR need be registered, a duty is cast upon the police to furnish a copy of the closure report to the complainant. After getting the closure report, it is open to the complainant to file a petition under Section 156(3) Cr.P.C. or private complaint under Section 190 read with Section 200 Cr.P.C. disclosing the facts and persuading the Magistrate to take cognizance of the offence. Such a petition/private complaint should disclose the closure report of the police. After taking cognizance of the offence, the Magistrate can also order police investigation under Section 202, Cr.P.C. to a limited extent. The closure report cannot be subject to judicial review under Section 482, Cr.P.C.

iii If the Station House Officer refuses to receive the complaint, the complainant shall send the complaint together with a covering letter to the Superintendent of Police/Deputy Commissioner of Police by Registered Post with Acknowledgment Due under Section 154(3), Cr.P.C.

iv If there is inaction on the part of the Station House Officer and the Superintendent of Police, the complainant is at liberty to move the jurisdictional Magistrate under Section 156(3) Cr.P.C.

v The complaint shall be given to the Magistrate either in Tamil or in English in the form of a representation in first person addressed directly to the Magistrate. vi The complaint shall be accompanied by an affidavit as mandated by the Supreme Court in Priyanka Srivastava Case.

vii On receipt of the complaint, the Magistrate shall pass orders thereon within 15 days, either issuing directions or dismissing the petition.

viii If the Magistrate decides to order police investigation, he should pass a judicial order to that effect in the record sheet.

ix A copy of the order, together with original complaint and copy of the affidavit, shall be forwarded by the Magistrate to the jurisdictional police officer for investigation.

x If the police officer does not register FIR within a period of one week from the date of receipt of the Magistrate's order, the Magistrate shall initiate prosecution against him under Section 21 read with Section 44 of the District Police Act before the Chief Metropolitan Magistrate or the Chief Judicial Magistrate, as the case may be.

xi If no FIR is registered by the police within one week from the date of receipt of a copy of the order of the Magistrate under Section 156(3), Cr.P.C., the complainant can approach this Court under Section 482, Cr.P.C.

xii If the police fail to complete the preliminary enquiry within six weeks as mandated by the Supreme Court in Lalita Kumari-V, the complainant can approach this Court under Article 144 read with Section 482, Cr.P.C.

xiii The aforesaid petition under Article 144 read with Section 482, Cr.P.C. must be accompanied by an affidavit sworn to by the complainant with satisfactory materials to show that the police have not completed the preliminary enquiry within six weeks, as mandated by the Supreme Court in Lalita Kumari-V. In such a petition, this Court will not read the complaint, but, issue directions to the police to register an FIR on the complaint for the very failure of the police to follow the mandates of Lalita Kumari-IV and V. The Registry of this Court shall not number the petition filed under Section 482, Cr.P.C. seeking a direction to register an FIR unless it is accompanied by an affidavit containing the above details.

xiv In suitable cases, this Court shall also direct disciplinary action to be taken against the police officer for the violation of the mandates of Lalita Kumari - IV and V.

xv If the police officer fails to register the FIR pursuant to the directions of this Court, he will be liable for contempt of Court, besides facing disciplinary action.

xvi The aggrieved party can also approach the local Legal Services Authority and the Authority shall take immediate steps to ensure that an FIR is registered or CSR receipt issued to the complainant.

xvii Every police station shall have a board giving the name and telephone number of the local Legal Services Authority

Detenues who have completed more than three years in Assam Detention Centers should Be released: Supreme Court

Bench of Chief Justice Rajan Gogoi and Justice Sanjiv Khanna was hearing the matter of foreigners kept in detention centers in Assam in the case of Supreme Court Legal Services Committee v. Union of India & Anr.. Court laid down the following conditions for the release of detenues who have completed more than three years of detention:

Execution of a bond with two sureties of Rs 1,00,000 (Rupees one lakh only) each of Indian citizens;

Specification of a verifiable address of stay after release;

Biometric of his/her iris (if possible) and all ten fingerprints and photos shall be captured and stored in a secured database before release from the detention centres.

He or she shall report once every week to the Police Station specified by the Foreigners Tribunal;

He or she shall notify any change of his or her address to the specified Police Station on the same day, and ·

A quarterly report to be submitted by the Superintendent of Police (Border) to the Foreigners Tribunal regarding appearance of such released declared foreigner to concerned Police Station and in case of violation of condition, the DFN will be apprehended and produced before Foreigners Tribunal.

Court has further asked the State of Assam to place on record a detailed scheme, in consultation with the Gauhati High Court (on the administrative side), with regard to the constitution of Foreigners Tribunals including appointment of Members, staff etc.

It has also asked for record of such details as soon as possible while giving the State liberty to make a mention of the matter before the Vacation Bench. Matter is to be listed in the month of July unless mentioned otherwise by the counsel for the State.

Whether statement recorded under section 161 Cr.P.C. can be treated as dying declaration?

The Supreme court observed that statement recorded by the I.O. can be treated as dying declaration under the provisions of section 32(1) of the Evidence Act and is not hit by section 162 Cr.P.C.

( Pradeep Bisoi @ Ranjit Bisoi vs State of Odisha, Crl Appeal  1192/2018 decided on 10-10-2018)

Power of Court to monitor investigation

The magistrate on the application given by informant or suomoto pass an order for monitoring of  investigation being conducted by the police officer. Such a power is vested in the Magistrate by section 156(3) of the Cr.P.C. where a Magistrate can pass order for registering  FIR and conducting the investigation.

In case of Sakiri Vasu vs State of U.P. and others 2008(2) SCC 409, Supreme Court observed that “ the magistrate has very wide powers under section 156(3) to direct registration of FIR and to ensure a proper investigation and for this purpose he can monitor the investigation to see that investigation is done properly though he himself cannot investigate.

Whether monitoring of investigation by the court will amount to interfering in the investigation?

In case of Union of India  Vs Prakash Hinduja and anothers 2003 (6) SCC 195 , Supreme Court held that Magistrate has no power to interfere in the investigation conducted by the police. But in case of Sakir Vasu Supra the Supreme Court held that ratio of this decision would only apply when  proper investigation is being done by the police and if magistrate is satisfied that investigation is not being done properly he can certainly direct the Officer-in-Charge of Police Station to conduct the investigation properly and can further monitor the same.