Impleadment of Judge- Judge who passed an order in his judicial capacity cannot be made party in any proceedings filed against such order. HC-590-2014(3) ALT Part-11 01-06-2014(CLXXXIX)---------WP 6603 of 201 4 date 25-02-2014 A.PHC Varuana Investment Port Louis Ms/ Asian Infrastructure
IMPORTANT JUDGMENTS(WHERE PUBLIC INTEREST IS AT LARGE)AND CIRCULARS OF THE HON'BLE HIGH COURT WILL BE POSTED IN THIS BLOG FOR USE OF STAKE HOLDERS OF LEGAL FRATERNITY
Wednesday, 29 October 2014
Judge who passed an order in his judicial capacity cannot be made party in any proceedings filed against such order
Impleadment of Judge- Judge who passed an order in his judicial capacity cannot be made party in any proceedings filed against such order. HC-590-2014(3) ALT Part-11 01-06-2014(CLXXXIX)---------WP 6603 of 201 4 date 25-02-2014 A.PHC Varuana Investment Port Louis Ms/ Asian Infrastructure
The Principal Courts having power to make over cases filed before them to other courts for disposal shall group the identical cases and transfer them to a single court as far as possible to avoid conflicting judgments
Transfers of Cases- The Principal Courts having power to
make over cases filed before them to other courts for disposal shall group the
identical cases and transfer them to a single court as far as possible to avoid
conflicting judgments. 2014(5)ALT 559- MACMA 564 of 2009 date 09-06-2014, National insurance company
Yanam vs muthyala bhaskara suraknathamma
If a contract contains any stipulation for transfer of property in case of breach of such contract, which is in the nature of penalty, the contract cannot be enforced
Contract – If a contract contains
any stipulation for transfer of property in case of breach of such contract,
which is in the nature of penalty, the contract cannot be enforced 2014(5)ALT
608- CRP 1578 of 2009 and AS 2443 of 1999 date 27-12-2013 M. Ali baig Vs
Kottalla Sanjeeva Reddy (Case on - Loan repayment agreement- in case of failure
to get land registered on his name)
The property obtained by the coparcener on partition is ancestral joint family property in which sons born to him or adopted by him subsequently have rights of partition therein
Ancestral Property – The property
obtained by the coparcener on partition is ancestral joint family property in
which sons born to him or adopted by him subsequently have rights of partition
therein.2014(5)ALT 473- AS 999/1995 and Trl.A.S.88/2010 date 28-04-2014 –agina
chandra moulli vs agina varamma
Statutory bail application shall be decided on the same day when it is filed
Application for statutory bail has to be decided on same date it is filed – SC 3952-Cr.A.No. 786/2010 Date: 30-06-2014- Union of India through CBI Vs Nirala Yadava – 2014 Crl.L.J 3952
Saturday, 18 October 2014
Inrerim Bail, during pendency of bail petition- and Article by Additional Director, Tamilnadu, State Judicial Director
Bail Pending Petition for Bail
S. Mohamed Abdahir, M.Com., M.L.,
Additional Director,
Tamil Nadu State Judicial Academy
(1) Chapter 33, the Code of Criminal Procedure, 1973 (CrPC) deals with procedure
and powers of the court to grant bail. Sections 436 and 437 CrPC pertain to bail
in cases involving bailable and non-bailable offences. Section 170(1) CrPC
enables the station house officer / investigating officer to admit an accused
person, under arrest for committing a bailable offence, to bail, if he’s able to give
security for his appearance before the Magistrate. If the police produce him or he
appears before the Magistrate, he may seek bail as a matter of right u/s 436.
The Magistrate may release the accused with or without surety. In case the
accused fails to appear as per the terms of the bail bond, the Magistrate may
refuse him bail when he appears subsequently. Ref: Section 436(2). Thus
Section 436 CrPC is the Magistrate’s domain of bail power.
(2) Section 437 CrPC is about the Magistrate’s power to issue bail in cases of nonbailable
offence. Which power doesn’t extend to releasing the accused, if the
offence involved is punishable with death or imprisonment for life. However, the
Magistrate may free the accused on bail, even in such cases, provided, at any
stage of the investigation inquiry or trial, he feels no reasonable grounds exist to
believe that the person accused committed a non-bailable offence. Ref: Section
437(2). In the context, Prahalad /vs/ NCT, 2001 (Cri LJ) 1730 (SC) is relevant.
In para (11), pages (1733) & (1734) the Supreme Court declares the law:
“We would reiterate that in cases where the offence is
punishable with death or imprisonment for life which is triable
..1
exclusively by a court of Sessions, the Magistrate may, in his
wisdom, refrain to exercise the powers of granting the bail and
refer the accused to approach the higher courts unless he is
fully satisfied that there is no reasonable ground for
believing that the accused has been guilty of an offence
punishable with death or imprisonment for life”.
(Emphasis Supplied)
Thus, Section 437CrPC is also the sphere of magisterial powers to grant or
refuse bail.
(3) Section 438 CrPC relates to the High Court’s and the Sessions Court’s power to
grant anticipatory bail. That’s bail preceding to or in anticipation of arrest; and it
becomes effective from the moment of arrest. Pending the application for
anticipatory bail, the court may issue an interim order of bail as dealt with in
Section 438(1) substituted by Act 25/2005. Final orders shall be passed after
notice to the Public Prosecutor and the superintendent of police and on hearing
them. If the court rejects the accused’s plea for interim bail or his application for
anticipatory bail, the police are free to arrest him without warrant. In Siddharam
/vs/ State, (2011) 1 SCC 694, the Supreme Court has cleared the law as to
anticipatory bail of all confusion holding certain of its previous rulings, limiting the
period of such bail as well as forcing the accused to seek regular bail at the
expiry of the period, as per incurium.
(4) Section 439 CrPC is on the High Court’s and the Sessions Court’s power to
release the accused on bail in custody. Evident as it is that Sections 436, 437
and 439 are repository of powers of the court to release the accused in custody
on bail. That’s post-arrest. As seen above, the newly substituted Section 438
expressly provides for interim bail pending disposal of the plea for anticipatory
..2
bail. It’s a welcome provision as the accused faces the threat of arrest before his
application for the bail is decided. Also, it’s consistent with the concept of
fundamental right to life and liberty under Article 21 of the Constitution of India.
Interim bail may be granted when the court is satisfied that the object of the
accusation against accused is to injure his reputation and humiliate him. It’s an
effective check against unscrupulous exercise of the arrest power by the police.
(5) An important situation lies post-arrest. That’s the time gap between the police
taking the accused into custody, producing him before the Magistrate and the
Magistrate granting remand. May be for a simple non-bailable offence or for an
offence punishable with death or imprisonment for life. A specific example: the
police officer adds the charge of attempt to murder punishable u/s 307 IPC to a
simple case of voluntarily causing hurt u/s 323 or 324 IPC. In such a case, the
Magistrate may be reluctant to look into the records and apply Section 437(2) for
the reason the offence is triable exclusively by a Court of Session. Leaving alone
Section 307 IPC, if the police adds 506(2) IPC (Criminal intimidation), usually the
Magistrate remands the accused to custody, posting his application for bail for
consideration to a later date to hear the prosecution. In the situation, the
accused is forced to remain in detention/judicial custody. It’s a grey area in the
sense that generally courts keep off their hands when the investigation is at the
threshold. The object is to ensure independent / impartial process of
investigation. Taking advantage of this, the police whimsically add penal
provisions joining hands with vengeful complainants / private parties to humiliate
the accused by sending him to jail. Instances in this regard are quite common.
(6) No express provision for interim bail in Sections 437 or 439 CrPC. Of course
Section 437(2) hints at such a power, but not in explicit terms. Even to exercise
the power thereunder, the Magistrate may order notice to the prosecution in
..3
which case the accused under arrest can’t avoid detention in jail. Thus, the
interim bail regime becomes relevant even in post-arrest matters, leaving alone
the interim bail provision in Section 438 CrPC. Life bereft of liberty is without
honour and dignity. It losses all significance. And the life itself will not be worth
living. That’s the reason why liberty is held the very quintessence of a civilized
existence. Without the right to life with liberty, no other right can be enjoyed. Ref:
Siddaram’s case (Supra). In Sukhwant Singh /vs/ State, (2009) 7 SCC 559: 2009
(3) SCC (Cri) 487, the Supreme Court filled the gap in Sections 437 and 439
holding that in the power to grant bail is inherent the power to order interim bail,
Which means the court hearing a plea for regular bail has inherent power to order
interim bail, pending final disposal of the bail application. For this, the Supreme
Court relied on one of its earlier rulings. That’s Lal Kamlendra /vs/ State, (2009)
4 SCC 437 : (2009) 2 SCC (Cri) 330.
(7) Here’s a quote from Para (2) and (3) of Sukwant’s case referred to just above.
“….following the decision of this Court in Kamlendra Pratap
Singh /vs/ State of U.P.1 we reiterate that a court hearing a
regular bail application has got inherent power to grant interim
bail pending final disposal of the bail application. In our opinion,
this is the proper view in view of Article 21 of the Constitution of
India which protects the life and liberty of every person……. ..
When a person applies for regular bail then the court
concerned ordinarily lists that application after a few days
so that it can look into the case diary which has to be obtained
(1) (2009) 4 SCC 437 : (2009) 2 SCC (Cri) 330
..4
from the police authorities and in the meantime the applicant
has to go to jail. Even if the applicant is released on bail
thereafter, his reputation may be tarnished irreparably in
society. The reputation of a person is his valuable asset, and is
a facet of his right under Article 21 of the Constitution vide
Deepak Bajaj /vs/ State of Maharashtra.2 Hence, we are of the
opinion that in the power to grant bail there is inherent power in
the court concerned to grant interim bail to a person pending
final disposal of the bail application.”
(8) Section 167 CrPC mandates the investigating officer to transmit the accused
under arrest to the nearest Judicial Magistrate, if two conditions are
satisfied. One, he can’t complete the investigation within 24 hours. Two,
“there are grounds for believing that the accusation or information is wellfounded”.
With the accused, he has to submit a copy of the entries in his
diary to the Magistrate. Needless to pinpoint that before issuing an order
of remand to custody, the Magistrate is not to be swayed by the penal
provisions under which the investigating officer booked the accused. The
Magistrate must look into the records and satisfy himself, primafacie, with
the nature of the accusation. The Magistrate is repository of the rights of
the citizens. The vital power to remand an accused citizen to custody is
entrusted to him, not even to a judge of the Supreme Court or High
Court. If the power is exercised disregarding the mandate of law, the
right to life and liberty will be in danger of extinction. And in the process,
the Magistrate who’s the protector of the rights of the citizens will become
the predator of the rights.
(2) (2008) 16 SCC 14 : JT (2008) 11 SC 609
..5
(9) Overall, wherever it’s expedient, the Magistrate/court shouldn’t hesitate to
exercise the power to issue interim bail. Such exercise of the power will
effectively deter abuse of the process of criminal law for objects extraneous to
its cause.
******
..6
S. Mohamed Abdahir, M.Com., M.L.,
Additional Director,
Tamil Nadu State Judicial Academy
(1) Chapter 33, the Code of Criminal Procedure, 1973 (CrPC) deals with procedure
and powers of the court to grant bail. Sections 436 and 437 CrPC pertain to bail
in cases involving bailable and non-bailable offences. Section 170(1) CrPC
enables the station house officer / investigating officer to admit an accused
person, under arrest for committing a bailable offence, to bail, if he’s able to give
security for his appearance before the Magistrate. If the police produce him or he
appears before the Magistrate, he may seek bail as a matter of right u/s 436.
The Magistrate may release the accused with or without surety. In case the
accused fails to appear as per the terms of the bail bond, the Magistrate may
refuse him bail when he appears subsequently. Ref: Section 436(2). Thus
Section 436 CrPC is the Magistrate’s domain of bail power.
(2) Section 437 CrPC is about the Magistrate’s power to issue bail in cases of nonbailable
offence. Which power doesn’t extend to releasing the accused, if the
offence involved is punishable with death or imprisonment for life. However, the
Magistrate may free the accused on bail, even in such cases, provided, at any
stage of the investigation inquiry or trial, he feels no reasonable grounds exist to
believe that the person accused committed a non-bailable offence. Ref: Section
437(2). In the context, Prahalad /vs/ NCT, 2001 (Cri LJ) 1730 (SC) is relevant.
In para (11), pages (1733) & (1734) the Supreme Court declares the law:
“We would reiterate that in cases where the offence is
punishable with death or imprisonment for life which is triable
..1
exclusively by a court of Sessions, the Magistrate may, in his
wisdom, refrain to exercise the powers of granting the bail and
refer the accused to approach the higher courts unless he is
fully satisfied that there is no reasonable ground for
believing that the accused has been guilty of an offence
punishable with death or imprisonment for life”.
(Emphasis Supplied)
Thus, Section 437CrPC is also the sphere of magisterial powers to grant or
refuse bail.
(3) Section 438 CrPC relates to the High Court’s and the Sessions Court’s power to
grant anticipatory bail. That’s bail preceding to or in anticipation of arrest; and it
becomes effective from the moment of arrest. Pending the application for
anticipatory bail, the court may issue an interim order of bail as dealt with in
Section 438(1) substituted by Act 25/2005. Final orders shall be passed after
notice to the Public Prosecutor and the superintendent of police and on hearing
them. If the court rejects the accused’s plea for interim bail or his application for
anticipatory bail, the police are free to arrest him without warrant. In Siddharam
/vs/ State, (2011) 1 SCC 694, the Supreme Court has cleared the law as to
anticipatory bail of all confusion holding certain of its previous rulings, limiting the
period of such bail as well as forcing the accused to seek regular bail at the
expiry of the period, as per incurium.
(4) Section 439 CrPC is on the High Court’s and the Sessions Court’s power to
release the accused on bail in custody. Evident as it is that Sections 436, 437
and 439 are repository of powers of the court to release the accused in custody
on bail. That’s post-arrest. As seen above, the newly substituted Section 438
expressly provides for interim bail pending disposal of the plea for anticipatory
..2
bail. It’s a welcome provision as the accused faces the threat of arrest before his
application for the bail is decided. Also, it’s consistent with the concept of
fundamental right to life and liberty under Article 21 of the Constitution of India.
Interim bail may be granted when the court is satisfied that the object of the
accusation against accused is to injure his reputation and humiliate him. It’s an
effective check against unscrupulous exercise of the arrest power by the police.
(5) An important situation lies post-arrest. That’s the time gap between the police
taking the accused into custody, producing him before the Magistrate and the
Magistrate granting remand. May be for a simple non-bailable offence or for an
offence punishable with death or imprisonment for life. A specific example: the
police officer adds the charge of attempt to murder punishable u/s 307 IPC to a
simple case of voluntarily causing hurt u/s 323 or 324 IPC. In such a case, the
Magistrate may be reluctant to look into the records and apply Section 437(2) for
the reason the offence is triable exclusively by a Court of Session. Leaving alone
Section 307 IPC, if the police adds 506(2) IPC (Criminal intimidation), usually the
Magistrate remands the accused to custody, posting his application for bail for
consideration to a later date to hear the prosecution. In the situation, the
accused is forced to remain in detention/judicial custody. It’s a grey area in the
sense that generally courts keep off their hands when the investigation is at the
threshold. The object is to ensure independent / impartial process of
investigation. Taking advantage of this, the police whimsically add penal
provisions joining hands with vengeful complainants / private parties to humiliate
the accused by sending him to jail. Instances in this regard are quite common.
(6) No express provision for interim bail in Sections 437 or 439 CrPC. Of course
Section 437(2) hints at such a power, but not in explicit terms. Even to exercise
the power thereunder, the Magistrate may order notice to the prosecution in
..3
which case the accused under arrest can’t avoid detention in jail. Thus, the
interim bail regime becomes relevant even in post-arrest matters, leaving alone
the interim bail provision in Section 438 CrPC. Life bereft of liberty is without
honour and dignity. It losses all significance. And the life itself will not be worth
living. That’s the reason why liberty is held the very quintessence of a civilized
existence. Without the right to life with liberty, no other right can be enjoyed. Ref:
Siddaram’s case (Supra). In Sukhwant Singh /vs/ State, (2009) 7 SCC 559: 2009
(3) SCC (Cri) 487, the Supreme Court filled the gap in Sections 437 and 439
holding that in the power to grant bail is inherent the power to order interim bail,
Which means the court hearing a plea for regular bail has inherent power to order
interim bail, pending final disposal of the bail application. For this, the Supreme
Court relied on one of its earlier rulings. That’s Lal Kamlendra /vs/ State, (2009)
4 SCC 437 : (2009) 2 SCC (Cri) 330.
(7) Here’s a quote from Para (2) and (3) of Sukwant’s case referred to just above.
“….following the decision of this Court in Kamlendra Pratap
Singh /vs/ State of U.P.1 we reiterate that a court hearing a
regular bail application has got inherent power to grant interim
bail pending final disposal of the bail application. In our opinion,
this is the proper view in view of Article 21 of the Constitution of
India which protects the life and liberty of every person……. ..
When a person applies for regular bail then the court
concerned ordinarily lists that application after a few days
so that it can look into the case diary which has to be obtained
(1) (2009) 4 SCC 437 : (2009) 2 SCC (Cri) 330
..4
from the police authorities and in the meantime the applicant
has to go to jail. Even if the applicant is released on bail
thereafter, his reputation may be tarnished irreparably in
society. The reputation of a person is his valuable asset, and is
a facet of his right under Article 21 of the Constitution vide
Deepak Bajaj /vs/ State of Maharashtra.2 Hence, we are of the
opinion that in the power to grant bail there is inherent power in
the court concerned to grant interim bail to a person pending
final disposal of the bail application.”
(8) Section 167 CrPC mandates the investigating officer to transmit the accused
under arrest to the nearest Judicial Magistrate, if two conditions are
satisfied. One, he can’t complete the investigation within 24 hours. Two,
“there are grounds for believing that the accusation or information is wellfounded”.
With the accused, he has to submit a copy of the entries in his
diary to the Magistrate. Needless to pinpoint that before issuing an order
of remand to custody, the Magistrate is not to be swayed by the penal
provisions under which the investigating officer booked the accused. The
Magistrate must look into the records and satisfy himself, primafacie, with
the nature of the accusation. The Magistrate is repository of the rights of
the citizens. The vital power to remand an accused citizen to custody is
entrusted to him, not even to a judge of the Supreme Court or High
Court. If the power is exercised disregarding the mandate of law, the
right to life and liberty will be in danger of extinction. And in the process,
the Magistrate who’s the protector of the rights of the citizens will become
the predator of the rights.
(2) (2008) 16 SCC 14 : JT (2008) 11 SC 609
..5
(9) Overall, wherever it’s expedient, the Magistrate/court shouldn’t hesitate to
exercise the power to issue interim bail. Such exercise of the power will
effectively deter abuse of the process of criminal law for objects extraneous to
its cause.
******
..6
Apex Court's recommendations- Remedial measures to tackle with the problem of ragging in educational institutions.
The Supreme Court
of India Order May 2007
(based on Raghavan Committee Recommendations)
(based on Raghavan Committee Recommendations)
[Reproduced
verbatim from the Supreme Court of
India website]
ITEM NO.33
COURT NO.4
SECTION XIA
COURT NO.4
SECTION XIA
SUPREME COURT
OF INDIA
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Civil) No(s).24295/2004
(From the judgement and order dated 24/06/2004 in WP No. 30845/2003 of the HIGH COURT OF KERALA AT ERNAKULAM)
UNIVERSITY OF KERALA Petitioner(s)
VERSUS
COUNCIL,PRINCIPALS,COLLEGES,KERALA & ORS Respondent(s)
(With appln(s) for intervention and modification and directions and impleadment as party respondent and with prayer for interim relief and office report)
WITH SLP(C) NO. 14356 of 2005 (With appln.(s) for exemption from filing O.T. and c/delay in filing counter affidavit and office report)
W.P.(CRL.) NO. 173 of 2006 (With appln.(s) for directions and exemption from filing O.T. and urging addl. ground and with office report)
SLP(C) NO. 24296-24299 of 2004 (With prayer for interim relief and office report)
Date: 16/05/2007
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Civil) No(s).24295/2004
(From the judgement and order dated 24/06/2004 in WP No. 30845/2003 of the HIGH COURT OF KERALA AT ERNAKULAM)
UNIVERSITY OF KERALA Petitioner(s)
VERSUS
COUNCIL,PRINCIPALS,COLLEGES,KERALA & ORS Respondent(s)
(With appln(s) for intervention and modification and directions and impleadment as party respondent and with prayer for interim relief and office report)
WITH SLP(C) NO. 14356 of 2005 (With appln.(s) for exemption from filing O.T. and c/delay in filing counter affidavit and office report)
W.P.(CRL.) NO. 173 of 2006 (With appln.(s) for directions and exemption from filing O.T. and urging addl. ground and with office report)
SLP(C) NO. 24296-24299 of 2004 (With prayer for interim relief and office report)
Date: 16/05/2007
These Petitions
were called on for hearing today.
CORAM : HON'BLE Dr. JUSTICE ARIJIT PASAYAT
HON'BLE MR. JUSTICE S.H. KAPADIA
UPON hearing counsel the Court made the following
ORDER
We have perused the Report of the Committee
constituted pursuant to this Court's order to suggest remedial measures to
tackle with the problem of ragging in educational institutions.
An elaborate report has been submitted by the
Committee headed by Dr.R.K. Raghavan. According to the Committee, the following
factors need to be focused to tackle with the problem:
1.
Primary responsibility for curbing ragging rests with
academic institutions themselves.
2.
Ragging adversely impacts the standards of higher
education.
3.
Incentives should be available to institutions for
curbing the menace and there should be disincentives for failure to do so.
4.
Enrolment in academic pursuits or a campus life
should not immunize any adult citizen from penal provisions of the laws of the
land.
5.
Ragging needs to be perceived as failure to inculcate
human values from the schooling stage.
6.
Behavioural patterns among students, particularly
potential 'raggers', need to be identified.
7.
Measures against ragging must deter its
recurrence.
8.
Concerted action is required at the level of the
school, higher educational institution, district administration, university,
State and Central Governments to make any curb effective.
9.
Media and the Civil Society should be involved in
this exercise.
The Committee has made several recommendations. For
the present, we feel that the following recommendations should be implemented
without any further lapse of time.
1.
The punishment to be meted out has to be exemplary and
justifiably harsh to act as a deterrent against recurrence of such
incidents.
2.
Every single incident of ragging where the victim or
his parent/guardian or the Head of institution is not satisfied with the
institutional arrangement for action, a First Information Report must be filed
without exception by the institutional authorities with the local police
authorities. Any failure on the part of the institutional authority or
negligence or deliberate delay in lodging the FIR with the local police shall
be construed to be an act of culpable negligence on the part of the
institutional authority. If any victim or his parent/guardian of ragging
intends to file FIR directly with the police, that will not absolve the
institutional authority from the requirement of filing the FIR.
3.
Courts should make an effort to ensure that cases
involving ragging are taken up on a priority basis to send the correct
message that ragging is not only to be discourages but also to be dealt with
sternness.
4.
In addition, we direct that the possibility of introducing
in the educational curriculum a subject relating to ragging shall be
explored by the National Council of Educational Research and Training (NCERT)
and the respective State Council of Educational Research and Training (SCERT).
This aspect can be included in the teaching of the subjects "Human
Rights".
5.
In the prospectus to be issued for admission by
educational institutions, it shall be clearly stipulated that in case the
applicant for admission is found to have indulged in ragging in the past or if
it is noticed later that he has indulged in ragging, admission may be refused
or he shall be expelled from the educational institution.
6.
The Central Government and the State Governments
shall launch a programme giving wide publicity to the menace of ragging and the
consequences which follow in case any student is detected to have been involved
in ragging.
7.
It shall be the collective responsibility of the
authorities and functionaries of the concerned institution and their role
shall also be open to scrutiny for the purpose of finding out whether they have
taken effective steps for preventing ragging and in case of their failure,
action can be taken; for example, denial of any grant-in-aid or assistance from
the State Governments.
8.
Anti-ragging committees and squads shall be
forthwith formed by the institutions and it shall be the job of the
committee or the squad, as the case may be, to see that the Committee's
recommendations, more particularly those noted above, are observed without
exception and if it is noticed that there is any deviation, the same shall be
forthwith brought to the notice of this Court.
9.
The Committee constituted pursuant to the order of this
Court shall continue to monitor the functioning of the anti-ragging committees
and the squads to be formed. They shall also monitor the implementation of the
recommendations to which reference has been made above.
Post these matters in September, 2007 for further directions on the
recommendations received from the Committee. I.A.No.5/2007 in S.L.P.(C) No.24295/2004:
Issue notice.
Response, if any, by the University shall be filed within four weeks.
Rejoinder, if any, within four weeks thereafter. Mr. Gopal Subramaniam, learned amicus curiae shall also indicate his views.
Writ Petition (Crl.) No.173/2006: List this petition separately in September, 2007.
(N. Annapurna) (Madhu Saxena)
Court Master Court Master
Friday, 17 October 2014
Bail by Magistrates in Sessions Cases- Interpretation of Section 437 Cr.P.C- Apex Court's Judgment .
CASE NO.:
Appeal (crl.) 324 of 2001
PETITIONER:
PRAHLAD SINGH BHATI
Vs.
RESPONDENT:
N.C.T., DELHI & ANR.
DATE OF JUDGMENT: 23/03/2001
BENCH:
K.T. Thomas & R.P. Sethi.
JUDGMENT:
SETHI,J.
Leave granted.
L...I...T.......T.......T.......T.......T.......T.......T..J
Respondent NO.2, who is alleged to have murdered his
wife and against whom FIR No.566/92 was registered in the
Police Station Lajpat Nagar under Section 302 of the Indian
Penal Code, was released on bail by the Metropolitan
Magistrate, New Delhi on 22nd August, 2000. The revision
filed against the aforesaid order has been dismissed by a
learned Single Judge of the High Court by passing a
telegraphic order to the effect "having considered the case
before me I am of the opinion no ground has been made for
cancellation of bail". Not satisfied with the order of the
Magistrate and that of the High Court, the father of the
deceased has approached this Court in this appeal by special
leave.
The deceased and the respondent No.2 were married on
24.11.1984. She is alleged to have been subjected to
ill-treatment on account of demand for dowry. Huge amounts
are stated to have been paid by the appellant to the accused
on various occasions. On 18.3.1999 the respondent No.2 is
alleged to have brought the deceased to her parental house
on Scooter No.DL 9SC-0680 where he poured kerosene oil and
burnt her alive in the presence of her parents. As no case
was registered against the accused, the appellant approached
higher authorities including the Prime Minister of India,
Home Minister of India and Commissioner of Police, Delhi,
with the result that Deputy Commissioner of Police (South
District) directed the registration of case under Sections
306 and 498A IPC. After registration of the case on
3.6.1999, the investigating officer recorded the statements
of witnesses under Section 161 of the Code of Criminal
Procedure. The accused-respondent moved an application for
grant of anticipatory bail in terms of Section 438 of the
Code of Criminal Procedure (hereinafter referred to as "the
Code"). As the bail application was not seriously opposed
by the Investigating Agency, the Additional Sessions Judge,
New Delhi granted interim bail on 16.6.1999. Applications
for cancellation of the anticipatory bail were dismissed.
However, while dismissing such an application on 13.9.1999,
the Additional Sessions Judge observed that if on facts a
case under Section 302 is made out against the accused, the
State shall be at liberty to arrest him. On 1.7.2000 a
charge- sheet was filed against the accused under Sections
302, 406 and 498A IPC by the investigating agency and he was
directed to appear before the Metropolitan Magistrate, New
Delhi on 8.8.2000. As he did not appear on that date in
that court, non bailable warrants were issued against him
for 22nd August, 2000. In the meanwhile the respondent
filed a criminal miscellaneous application under Section 482
of the Code in the High Court without impleading the
appellant as a party. The High Court kept the order of the
Magistrate dated 8.8.2000 in abeyance till 22nd August,
2000. In his petition filed in the High Court, the accused
suppressed the fact that a charge-sheet under Section 302
has been filed against him. Notice to the appellant was
issued on 17th August, 2000 but in the meantime the
respondent moved an application under Section 438 of the
Code for anticipatory bail before the Additional Sessions
Judge, Delhi for which no order was passed and direction was
issued to the accused to first appear before the Magistrate
on 22nd August, 2000 and pray for bail in accordance with
law. When he appeared before the Magistrate, he was
admitted on bail even in a case under Section 302 IPC. The
revision petition filed in the High Court was dismissed in
the manner as noticed hereinbefore.
From the facts, as narrated in the appeal, it appears
that even for an offence punishable under Section 302 IPC,
the respondent-accused was never arrested and he manipulated
the prevention of his arrest firstly by obtaining an order
in terms of Section 438 of the Code and subsequently a
regular bail under Section 437 of the Code from a
Magistrate.
Chapter XXXIII relates to the provisions as to bails and
bonds. Section 436 provides that when any person accused of
a bailable offence is arrested or detained without warrant
by an officer incharge of the police station, or appears or
is brought before a court and is prepared at any time while
in the custody of such officer or at any stage of the
proceedings before such court to give bail, such person
shall be released on bail. Under Section 437 of the Code
when a person accused of, or suspected of, the commission of
any non-bailable offence is arrested or detained without
warrant by an officer in charge of a police station or
appears or is brought before a court, he may be released on
bail by a court other than the High Court and Sessions
subject to the conditions that he does not reasonably appear
to have been guilty of an offence punishable with death or
imprisonment for life. The condition of not releasing the
person on bail charged with an offence punishable with death
or imprisonment for life shall not be applicable if such
person is under the age of 16 years or is a woman or is sick
or infirm, subject to such conditions as may be imposed. It
does not, however, mean that persons specified in the first
proviso to sub-section (1) of Section 437 should necessarily
be released on bail. The proviso is an enabling provision
which confers jurisdiction upon a court, other than the High
Court and the court of Sessions, to release a person on bail
despite the fact that there appears reasonable ground for
believing that such person has been guilty of an offence
punishable with death or imprisonment for life. There is no
gainsaying that the discretion conferred by the Code has to
be exercised judicially. Section 438 of the Code empowers
the High Court and the Court of Sessions to grant
anticipatory bail to a person who apprehends his arrest,
subject to the conditions specified under sub-section (2)
thereof.
Even though there is no legal bar for a Magistrate to
consider an application for grant of bail to a person who is
arrested for an offence exclusively triable by a court of
Sessions yet it would be proper and appropriate that in such
a case the Magistrate directs the accused person to approach
the Court of Sessions for the purposes of getting the relief
of bail. Even in a case where any Magistrate opts to make
an adventure of exercising the powers under Section 437 of
the Code in respect of a person who is, suspected of the
commission of such an offence, arrested and detained in that
connection, such Magistrate has to specifically negtivate
the existence of reasonable ground for believing that such
accused is guilty of an offence punishable with the sentence
of death or imprisonment for life. In a case, where the
Magistrate has no occasion and in fact does not find, that
there were no reasonable grounds to believe that the accused
had not committed the offence punishable with death or
imprisonment for life, he shall be deemed to be having no
jurisdiction to enlarge the accused on bail.
Powers of the Magistrate, while dealing with the
applications for grant of bail, are regulated by the
punishment prescribed for the offence in which the bail is
sought. Generally speaking if punishment prescribed is for
imprisonment for life and death penalty and the offence is
exclusively triable by the Court of Sessions, Magistrate has
no jurisdiction to grant bail unless the matter is covered
by the provisos attached to Section 437 of the Code. The
limitations circumscribing the jurisdiction of the
Magistrate are evident and apparent. Assumption of
jurisdiction to entertain the application is distinguishable
from the exercise of the jurisdiction.
The jurisdiction to grant bail has to be exercised on
the basis of well settled principles having regard to the
circumstances of each case and not in an arbitrary manner.
While granting the bail, the court has to keep in mind the
nature of accusations, the nature of evidence in support
thereof, the severity of the punishment which conviction
will entail, the character, behaviour, means and standing of
the accused, circumstances which are peculiar to the
accused, reasonable possibility of securing the presence of
the accused at the trial, reasonable apprehension of the
witnesses being tampered with, the larger interests of the
public or State and similar other considerations. It has
also to be kept in mind that for the purposes of granting
the bail the Legislature has used the words "reasonable
grounds for believing" instead of "the evidence" which means
the court dealing with the grant of bail can only satisfy it
as to whether there is a genuine case against the accused
and that the prosecution will be able to produce prima facie
evidence in support of the charge. It is not excepted , at
this stage, to have the evidence establishing the guilt of
the accused beyond reasonable doubt.
In the instant case while exercising the jurisdiction,
apparently under Section 437 of the Code, the Metropolitan
Magistrate appears to have completely ignored the basic
principles governing the grant of bail. The Magistrate
referred to certain facts and the provisions of law which
were not, in any way, relevant for the purposes of deciding
the application for bail in a case where accused was charged
with an offence punishable with death or imprisonment for
life. The mere initial grant of anticipatory bail for
lesser offence, did not entitle the respondent to insist for
regular bail even if he was subsequently found to be
involved in the case of murder. Neither Section 437(5) nor
Section 439(1) of the Code was attracted. There was no
question of cancellation of bail earlier granted to the
accused for an offence punishable under Sections 498A, 306
and 406 IPC. The Magistrate committed a irregularity by
holding that "I do not agree with the submission made by the
Ld.Prosecutor in as much as if we go by his submissions then
the accused would be liable for arrest every time the charge
is altered or enhanced at any stage, which is certainly not
the spirit of law". With the change of the nature of the
offence, the accused becomes disentitled to the liberty
granted to him in relation to a minor offence, if the
offence is altered for an aggravated crime. Instead of
referring to the grounds which entitled the respondent-
accused the grant of bail, the Magistrate adopted a wrong
approach to confer him the benefit of liberty on allegedly
finding that no grounds were made out for cancellation of
bail.
Despite the involvement of important questions of law,
the High Court failed in its obligation to adjudicate the
pleas of law raised before it and dismissed the petition of
the appellant by a one sentence order. The orders of the
Magistrate as also of the High Court being contrary to law
are liable to be set aside.
While allowing this appeal and setting aside the orders
impugned we permit the respondent-accused to apply for
regular bail in the trial court. If any such application is
filed, the same shall be disposed of on its merits keeping
in view the position of law and the observations made
hereinabove. We would reiterate that in cases where the
offence is punishable with death or imprisonment for life
which is triable exclusively by a court of Sessions, the
Magistrate may, in his wisdom, refrain to exercise the
powers of granting the bail and refer the accused to
approach the higher courts unless he is fully satisfied that
there is no reasonable ground for believing that the accused
has been guilty of an offence punishable with death or
imprisonment for life.
Appeal (crl.) 324 of 2001
PETITIONER:
PRAHLAD SINGH BHATI
Vs.
RESPONDENT:
N.C.T., DELHI & ANR.
DATE OF JUDGMENT: 23/03/2001
BENCH:
K.T. Thomas & R.P. Sethi.
JUDGMENT:
SETHI,J.
Leave granted.
L...I...T.......T.......T.......T.......T.......T.......T..J
Respondent NO.2, who is alleged to have murdered his
wife and against whom FIR No.566/92 was registered in the
Police Station Lajpat Nagar under Section 302 of the Indian
Penal Code, was released on bail by the Metropolitan
Magistrate, New Delhi on 22nd August, 2000. The revision
filed against the aforesaid order has been dismissed by a
learned Single Judge of the High Court by passing a
telegraphic order to the effect "having considered the case
before me I am of the opinion no ground has been made for
cancellation of bail". Not satisfied with the order of the
Magistrate and that of the High Court, the father of the
deceased has approached this Court in this appeal by special
leave.
The deceased and the respondent No.2 were married on
24.11.1984. She is alleged to have been subjected to
ill-treatment on account of demand for dowry. Huge amounts
are stated to have been paid by the appellant to the accused
on various occasions. On 18.3.1999 the respondent No.2 is
alleged to have brought the deceased to her parental house
on Scooter No.DL 9SC-0680 where he poured kerosene oil and
burnt her alive in the presence of her parents. As no case
was registered against the accused, the appellant approached
higher authorities including the Prime Minister of India,
Home Minister of India and Commissioner of Police, Delhi,
with the result that Deputy Commissioner of Police (South
District) directed the registration of case under Sections
306 and 498A IPC. After registration of the case on
3.6.1999, the investigating officer recorded the statements
of witnesses under Section 161 of the Code of Criminal
Procedure. The accused-respondent moved an application for
grant of anticipatory bail in terms of Section 438 of the
Code of Criminal Procedure (hereinafter referred to as "the
Code"). As the bail application was not seriously opposed
by the Investigating Agency, the Additional Sessions Judge,
New Delhi granted interim bail on 16.6.1999. Applications
for cancellation of the anticipatory bail were dismissed.
However, while dismissing such an application on 13.9.1999,
the Additional Sessions Judge observed that if on facts a
case under Section 302 is made out against the accused, the
State shall be at liberty to arrest him. On 1.7.2000 a
charge- sheet was filed against the accused under Sections
302, 406 and 498A IPC by the investigating agency and he was
directed to appear before the Metropolitan Magistrate, New
Delhi on 8.8.2000. As he did not appear on that date in
that court, non bailable warrants were issued against him
for 22nd August, 2000. In the meanwhile the respondent
filed a criminal miscellaneous application under Section 482
of the Code in the High Court without impleading the
appellant as a party. The High Court kept the order of the
Magistrate dated 8.8.2000 in abeyance till 22nd August,
2000. In his petition filed in the High Court, the accused
suppressed the fact that a charge-sheet under Section 302
has been filed against him. Notice to the appellant was
issued on 17th August, 2000 but in the meantime the
respondent moved an application under Section 438 of the
Code for anticipatory bail before the Additional Sessions
Judge, Delhi for which no order was passed and direction was
issued to the accused to first appear before the Magistrate
on 22nd August, 2000 and pray for bail in accordance with
law. When he appeared before the Magistrate, he was
admitted on bail even in a case under Section 302 IPC. The
revision petition filed in the High Court was dismissed in
the manner as noticed hereinbefore.
From the facts, as narrated in the appeal, it appears
that even for an offence punishable under Section 302 IPC,
the respondent-accused was never arrested and he manipulated
the prevention of his arrest firstly by obtaining an order
in terms of Section 438 of the Code and subsequently a
regular bail under Section 437 of the Code from a
Magistrate.
Chapter XXXIII relates to the provisions as to bails and
bonds. Section 436 provides that when any person accused of
a bailable offence is arrested or detained without warrant
by an officer incharge of the police station, or appears or
is brought before a court and is prepared at any time while
in the custody of such officer or at any stage of the
proceedings before such court to give bail, such person
shall be released on bail. Under Section 437 of the Code
when a person accused of, or suspected of, the commission of
any non-bailable offence is arrested or detained without
warrant by an officer in charge of a police station or
appears or is brought before a court, he may be released on
bail by a court other than the High Court and Sessions
subject to the conditions that he does not reasonably appear
to have been guilty of an offence punishable with death or
imprisonment for life. The condition of not releasing the
person on bail charged with an offence punishable with death
or imprisonment for life shall not be applicable if such
person is under the age of 16 years or is a woman or is sick
or infirm, subject to such conditions as may be imposed. It
does not, however, mean that persons specified in the first
proviso to sub-section (1) of Section 437 should necessarily
be released on bail. The proviso is an enabling provision
which confers jurisdiction upon a court, other than the High
Court and the court of Sessions, to release a person on bail
despite the fact that there appears reasonable ground for
believing that such person has been guilty of an offence
punishable with death or imprisonment for life. There is no
gainsaying that the discretion conferred by the Code has to
be exercised judicially. Section 438 of the Code empowers
the High Court and the Court of Sessions to grant
anticipatory bail to a person who apprehends his arrest,
subject to the conditions specified under sub-section (2)
thereof.
Even though there is no legal bar for a Magistrate to
consider an application for grant of bail to a person who is
arrested for an offence exclusively triable by a court of
Sessions yet it would be proper and appropriate that in such
a case the Magistrate directs the accused person to approach
the Court of Sessions for the purposes of getting the relief
of bail. Even in a case where any Magistrate opts to make
an adventure of exercising the powers under Section 437 of
the Code in respect of a person who is, suspected of the
commission of such an offence, arrested and detained in that
connection, such Magistrate has to specifically negtivate
the existence of reasonable ground for believing that such
accused is guilty of an offence punishable with the sentence
of death or imprisonment for life. In a case, where the
Magistrate has no occasion and in fact does not find, that
there were no reasonable grounds to believe that the accused
had not committed the offence punishable with death or
imprisonment for life, he shall be deemed to be having no
jurisdiction to enlarge the accused on bail.
Powers of the Magistrate, while dealing with the
applications for grant of bail, are regulated by the
punishment prescribed for the offence in which the bail is
sought. Generally speaking if punishment prescribed is for
imprisonment for life and death penalty and the offence is
exclusively triable by the Court of Sessions, Magistrate has
no jurisdiction to grant bail unless the matter is covered
by the provisos attached to Section 437 of the Code. The
limitations circumscribing the jurisdiction of the
Magistrate are evident and apparent. Assumption of
jurisdiction to entertain the application is distinguishable
from the exercise of the jurisdiction.
The jurisdiction to grant bail has to be exercised on
the basis of well settled principles having regard to the
circumstances of each case and not in an arbitrary manner.
While granting the bail, the court has to keep in mind the
nature of accusations, the nature of evidence in support
thereof, the severity of the punishment which conviction
will entail, the character, behaviour, means and standing of
the accused, circumstances which are peculiar to the
accused, reasonable possibility of securing the presence of
the accused at the trial, reasonable apprehension of the
witnesses being tampered with, the larger interests of the
public or State and similar other considerations. It has
also to be kept in mind that for the purposes of granting
the bail the Legislature has used the words "reasonable
grounds for believing" instead of "the evidence" which means
the court dealing with the grant of bail can only satisfy it
as to whether there is a genuine case against the accused
and that the prosecution will be able to produce prima facie
evidence in support of the charge. It is not excepted , at
this stage, to have the evidence establishing the guilt of
the accused beyond reasonable doubt.
In the instant case while exercising the jurisdiction,
apparently under Section 437 of the Code, the Metropolitan
Magistrate appears to have completely ignored the basic
principles governing the grant of bail. The Magistrate
referred to certain facts and the provisions of law which
were not, in any way, relevant for the purposes of deciding
the application for bail in a case where accused was charged
with an offence punishable with death or imprisonment for
life. The mere initial grant of anticipatory bail for
lesser offence, did not entitle the respondent to insist for
regular bail even if he was subsequently found to be
involved in the case of murder. Neither Section 437(5) nor
Section 439(1) of the Code was attracted. There was no
question of cancellation of bail earlier granted to the
accused for an offence punishable under Sections 498A, 306
and 406 IPC. The Magistrate committed a irregularity by
holding that "I do not agree with the submission made by the
Ld.Prosecutor in as much as if we go by his submissions then
the accused would be liable for arrest every time the charge
is altered or enhanced at any stage, which is certainly not
the spirit of law". With the change of the nature of the
offence, the accused becomes disentitled to the liberty
granted to him in relation to a minor offence, if the
offence is altered for an aggravated crime. Instead of
referring to the grounds which entitled the respondent-
accused the grant of bail, the Magistrate adopted a wrong
approach to confer him the benefit of liberty on allegedly
finding that no grounds were made out for cancellation of
bail.
Despite the involvement of important questions of law,
the High Court failed in its obligation to adjudicate the
pleas of law raised before it and dismissed the petition of
the appellant by a one sentence order. The orders of the
Magistrate as also of the High Court being contrary to law
are liable to be set aside.
While allowing this appeal and setting aside the orders
impugned we permit the respondent-accused to apply for
regular bail in the trial court. If any such application is
filed, the same shall be disposed of on its merits keeping
in view the position of law and the observations made
hereinabove. We would reiterate that in cases where the
offence is punishable with death or imprisonment for life
which is triable exclusively by a court of Sessions, the
Magistrate may, in his wisdom, refrain to exercise the
powers of granting the bail and refer the accused to
approach the higher courts unless he is fully satisfied that
there is no reasonable ground for believing that the accused
has been guilty of an offence punishable with death or
imprisonment for life.
Wednesday, 15 October 2014
Measures for Prevention of fatal accidents of small children due to their falling into abandoned bore wells and tube wells
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO.36 OF 2009
In Re:
Measures for Prevention of fatal accidents of small children
due to their falling into abandoned bore wells and tube wells
Union of India and Ors. ...Respondent(s)
O R D E R
With this Court issuing requisite guidelines vide
order dated 11th February, 2010, subject to slight
modification, nothing survives in the present writ petition.
That modification is as follows:
(i) The owner of the land/premises, before
taking any steps for constructing bore well/
tube well must inform in writing at least 15
days in advance to the concerned authorities in
the area, i.e., District Collector/ District
Magistrate/Sarpanch of the Gram Panchayat/any
other Statutory Authority/concerned officers of
the Department of Ground Water/Public Health/
Municipal Corporation, as the case may be,
about the construction of bore well/tube well.
(ii) Registration of all the drilling
agencies, namely, Government/Semi
Government/Private etc. should be mandatory
with the district administration/Statutory
Authority wherever applicable.
....2/-
- 2 -
(iii) Erection of signboard at the time of
construction near the well with the following
details :-
(a) Complete address of the drilling agency
at the time of construction/rehabilitation of
well.
(b) Complete address of the user
agency/owner of the well.
(iv) Erection of barbed wire fencing or any
other suitable barrier around the well during
construction.
(v) Construction of cement/concrete
platform measuring 0.50x0.50x0.60 meter (0.30
meter above ground level and 0.30 meter below
ground level) around the well casing.
(vi) Capping of well assembly by welding
steel plate or by providing a strong cap to be
fixed to the casing pipe with bolts & nuts.
(vii) In case of pump repair, the tube well
should not be left uncovered.
(viii) Filling of mud pits and channels after
completion of works.
(ix) Filling up abandoned borewells by
clay/sand/boulders/pebbles/drill cuttings etc.
from bottom to ground level.
....3/-
- 3 -
(x) On completion of the drilling operations at
a particular location, the ground conditions
are to be restored as before the start of
drilling.
(xi) District Collector should be empowered
to verify that the above guidelines are being
followed and proper monitoring check about the
status of boreholes/tubewells are being taken
care through the concerned State/Central
Government agencies.
(xii) District/Block/Village wise status of
bore wells/tubewells drilled viz. No. of wells
in use, No. of abandoned bore wells/tube wells
found open,No. of abandoned borewells/tubewells
properly filled up to ground level and balance
number of abandoned borewells/tubewells to be
filled up to ground level is to be maintained
at District Level.
In rural areas, the monitoring of the above is
to be done through Village Sarpanch and the
Executive from the Agriculture Department.
In case of urban areas, the monitoring of the
above is to be done through Junior Engineer and
the Executive from the concerned Department of
Ground Water/Public Health/Municipal
Corporation etc.
(xiii) If a borewell/tubewell is 'Abandoned'
at any stage, a certificate from the concerned
department of Ground Water/Public
health/Municipal Corporation/Private contractor
etc. must be obtained by the aforesaid agencies
....4/-
- 4 -
that the 'Abandoned' borewell/tubewell is
properly filled upto the ground level. Random
inspection of the abandoned wells is also to be
done by the Executive of the concerned
agency/department. Information on all such
data on the above are to be maintained in the
District Collector/Block Development Office of
the State.
We are informed that the last paragraph of the
earlier order dated 11th February, 2010, concerning publicity
has been duly complied with.
Subject to the above, the writ petition is disposed
of.
....................CJI.
[S.H. KAPADIA]
......................J.
[K.S. RADHAKRISHNAN]
......................J.
[SWATANTER KUMAR]
New Delhi,
August 06, 2010.
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO.36 OF 2009
In Re:
Measures for Prevention of fatal accidents of small children
due to their falling into abandoned bore wells and tube wells
Union of India and Ors. ...Respondent(s)
O R D E R
With this Court issuing requisite guidelines vide
order dated 11th February, 2010, subject to slight
modification, nothing survives in the present writ petition.
That modification is as follows:
(i) The owner of the land/premises, before
taking any steps for constructing bore well/
tube well must inform in writing at least 15
days in advance to the concerned authorities in
the area, i.e., District Collector/ District
Magistrate/Sarpanch of the Gram Panchayat/any
other Statutory Authority/concerned officers of
the Department of Ground Water/Public Health/
Municipal Corporation, as the case may be,
about the construction of bore well/tube well.
(ii) Registration of all the drilling
agencies, namely, Government/Semi
Government/Private etc. should be mandatory
with the district administration/Statutory
Authority wherever applicable.
....2/-
- 2 -
(iii) Erection of signboard at the time of
construction near the well with the following
details :-
(a) Complete address of the drilling agency
at the time of construction/rehabilitation of
well.
(b) Complete address of the user
agency/owner of the well.
(iv) Erection of barbed wire fencing or any
other suitable barrier around the well during
construction.
(v) Construction of cement/concrete
platform measuring 0.50x0.50x0.60 meter (0.30
meter above ground level and 0.30 meter below
ground level) around the well casing.
(vi) Capping of well assembly by welding
steel plate or by providing a strong cap to be
fixed to the casing pipe with bolts & nuts.
(vii) In case of pump repair, the tube well
should not be left uncovered.
(viii) Filling of mud pits and channels after
completion of works.
(ix) Filling up abandoned borewells by
clay/sand/boulders/pebbles/drill cuttings etc.
from bottom to ground level.
....3/-
- 3 -
(x) On completion of the drilling operations at
a particular location, the ground conditions
are to be restored as before the start of
drilling.
(xi) District Collector should be empowered
to verify that the above guidelines are being
followed and proper monitoring check about the
status of boreholes/tubewells are being taken
care through the concerned State/Central
Government agencies.
(xii) District/Block/Village wise status of
bore wells/tubewells drilled viz. No. of wells
in use, No. of abandoned bore wells/tube wells
found open,No. of abandoned borewells/tubewells
properly filled up to ground level and balance
number of abandoned borewells/tubewells to be
filled up to ground level is to be maintained
at District Level.
In rural areas, the monitoring of the above is
to be done through Village Sarpanch and the
Executive from the Agriculture Department.
In case of urban areas, the monitoring of the
above is to be done through Junior Engineer and
the Executive from the concerned Department of
Ground Water/Public Health/Municipal
Corporation etc.
(xiii) If a borewell/tubewell is 'Abandoned'
at any stage, a certificate from the concerned
department of Ground Water/Public
health/Municipal Corporation/Private contractor
etc. must be obtained by the aforesaid agencies
....4/-
- 4 -
that the 'Abandoned' borewell/tubewell is
properly filled upto the ground level. Random
inspection of the abandoned wells is also to be
done by the Executive of the concerned
agency/department. Information on all such
data on the above are to be maintained in the
District Collector/Block Development Office of
the State.
We are informed that the last paragraph of the
earlier order dated 11th February, 2010, concerning publicity
has been duly complied with.
Subject to the above, the writ petition is disposed
of.
....................CJI.
[S.H. KAPADIA]
......................J.
[K.S. RADHAKRISHNAN]
......................J.
[SWATANTER KUMAR]
New Delhi,
August 06, 2010.
Sunday, 12 October 2014
POWER OF ADJUDICATION OF CIVIL/PROPERTY DISPUTES IS CONFERRED ONLY ON THE JUDICIARY AND NOT ON POLICE OFFICERS
THE HONBLE SRI JUSTICE RAMESH RANGANATHAN
WRIT PETITION NO.34137 of 2013
24-04-2014
G.B.C.Raj Gopal.Petitioner
The Government of A.P. rep., by the Principal Secretary, Home Department,
Secretariat Buildings, Secretariat, Hyderabad, A.P. and six others..Respondents
Counsel for the petitioner: Mr. Mohd. Shafiuddin
Counsel for respondents: Government Pleader for Home;
Sri M. Karunasagar;
Sri R. Raghunandan, Senior Counsel for P. Shreyas Reddy;
Sri D. Srinivas.
<GIST:
>HEAD NOTE:
?Citations:
1) (2014) 2 SCC 1
2) 1992 Supp (1) SCC 335
3) (2013) Cri.L.J. 776 (SC)
4) AIR 1964 SC 221
5) AIR 1955 SC 196
6) AIR 1959 SC 707
7) 1982 Cri.L.J 1557 (Kerala HC FB)
8) 1976 Cri.L.J 1825 (All HC-Lucknow Bench)
9) (2010) 7 SCC 667
10) (1994) 4 SCC 260
11) 2002(2) AnW.R. 582 = 2002(2) ALD (Crl). 706 (A.P).
12) AIR 1997 SC 610
13) (2005) 3 SCC 647
14) Judgment in W.P.No.523 of 2014 dated 21.01.2014
15) 2004(4) ALT 175
16) Judgment in W.P. No.13391 of 2006 dated 14.07.2006
THE HONBLE SRI JUSTICE RAMESH RANGANATHAN
WRIT PETITION No.34137 OF 2013
(The Deputy Commissioner of Police, West Zone, Hyderabad is the 3rd
respondent, and the Inspector of Police, Sanjeeva Reddy Nagar P.S. is the 4th respondent}
Important paras of the judgment
18. The question which necessitates examination is whether the petitioner could have been, orally
and forcibly, summoned to his office by the 3rd respondent even before registration of the complaint
under Section 154 CrPC. The first information report is either given in writing or is reduced to
writing. The Code contemplates two kinds of FIRs: the duly signed FIR under Section 154(1) is by
the informant to the officer concerned at the police station. The second kind of FIR is one which is
registered by the police officer himself on the basis of information received, or other than by way of
an informant [Section 157(1)]. This information must also be duly recorded, and a copy should be
sent to the Magistrate forthwith. (Lalita Kumari1). The sine qua non for recording an FIR is that
there must be an information, and that information must disclose a cognizable offence. If
information disclosing a cognizable offence, satisfying the requirements of Section 154(1) Cr.P.C, is
laid before him, the police officer has no option but to enter the substance thereof in the prescribed
form i.e., to register a case on the basis of such information. (State of Haryana v. Bhajan Lal ). In
G.B.C.Raj Gopal vs The Government Of A.P. Rep., By The ... on 24 April, 2014
Indian Kanoon - http://indiankanoon.org/doc/15684794/ 9
registering an FIR the consent, or otherwise, of the complainant is irrelevant. For cognizable
offences a duty is cast upon the police to register an FIR, and conduct investigation. The legislative
intent of Section 154(1) CrPC is to ensure that the information, relating to the commission of a
cognizable offence, is promptly registered and investigated in accordance with law. (Lalita Kumari1).
The context in which the word shall appears in Section 154(1) CrPC, the object for which it has been
used and the consequences that will follow from the infringement of the direction to register FIRs,
show that the word shall, used in Section 154(1), is mandatory in character. Section 154(1) of the
Code places an unequivocal duty upon the police officer, in charge of a police station, to register an
FIR on receipt of information that a cognizable offence has been committed, and does not confer
any discretion on him to embark upon a preliminary inquiry prior to the registration of the FIR.
(Lalita Kumari1; Anju Chaudhary v. State of Uttar Pradesh ; State of Uttar Pradesh v. Bhagwant
Kishore Joshi ).
19. The requirement of Section 154 Cr.P.C is only that the report must disclose the commission of a
cognizable offence, and that is sufficient to set the investigating machinery in motion. The intention
of the legislature, by the insertion of sub-section (3) of Section 154, is to ensure that no information
of the commission of a cognizable offence is ignored or is not acted upon. The obligation to register
an FIR has inherent advantages. (a) It is the first step to access to justice for a victim; (b) It upholds
the rule of law in as much as the ordinary person brings forth the commission of a cognizable crime
to the knowledge of the State; (c) It also facilitates swift investigation and sometimes even
prevention of the crime. In both cases, it only effectuates the regime of law; and (d) It leads to less
manipulation in criminal cases and lessens incidents of antedated FIR or deliberately delayed FIR.
The object sought to be achieved by registering the earliest information as an FIR is, inter alia, two
fold: one, that the criminal process is set into motion and is well documented from the very start;
and second, that the earliest information, received in relation to the commission of a cognizable
offence, is recorded so that there cannot be any embellishment, etc. later. The FIR is registered in a
book called the FIR book or the FIR register. A copy of each FIR is sent to the superior officers and
to the concerned Judicial Magistrate. The signature of the complainant is obtained in the FIR book
as and when a complaint is given at the police station. As each FIR has a unique annual number, it is
possible for supervisory police officers and the courts, wherever necessary, to exercise strict control
and keep track of registration of FIRs. The underpinnings of compulsory registration of the FIR is
not only to ensure transparency in the criminal justice-delivery system but also to ensure judicial
oversight. Section 157(1) deploys the word forthwith. Any information received under Section 154(1),
or otherwise, has to be promptly informed, in the form of a report, to the Magistrate. The
commission of a cognizable offence is not only brought to the knowledge of the investigating agency
but also to the subordinate judiciary. (Lalita Kumari1).
While the police
should not interfere into the disputes, which are purely of civil nature, they cannot shirk their
responsibility of protecting persons against injury or trespass particularly when the people
complained against are powerful or hired goondas. The following instructions are, therefore, issued
for the guidance of the police officers.
A. Orders of the civil court should be implemented and all assistance should be provided to the Civil
Court officials as mentioned in order
321. B. If any civil dispute is likely to give rise to an imminent breach of peace or disturbance of
public order, the police officer shall take recourse to Sections 144 to 148 Cr.P.C. as the case may be
(Chapter 38, Volume II).
C. As per Section 149 CrPC every Police Officer may interpose for the purpose of preventing and
shall, to the best of his ability, prevent the commission of any cognizable offence. In application of
this provision, police officers shall be guided by instructions given by superior officer of the rank of SP/DCP/CP/DGP
D. In dealing with these cases the SHO should make a contemporaneous record of every action that
he takes in the general diary and in the connected file. (emphasis supplied)
39. Sections 144 to 148 CrPC, as referred to in Part B of Standing Order 322-I, relate to the powers
of a Magistrate to issue orders in urgent cases of nuisance or apprehended danger (Section
144); powers of a District Magistrate to prohibit carrying arms in a procession or a mass drill or a
mass training with arms (Section 144-A); powers of an Executive Magistrate where disputes
concerning land or water is likely to cause breach of peace (Section
145); powers of a Magistrate to attach the subject of dispute and to appoint a receiver (Section 146);
powers of an Executive Magistrate in a dispute concerning right of use of land or water (Section
147); and the powers of a District Magistrate to conduct a local enquiry (Section 148).
41. Even in a civil dispute with an element of criminality, such as in the case of personal injury or
trespass, police officers are entitled only to take action against the criminal element of the civil
dispute, and not interfere with the civil dispute itself. For instance, if the personal injury in a civil
dispute attracts the ingredients of Section 354 IPC, and trespass in a civil dispute attracts the
provisions of Sections 447 and 448 IPC, then the information or the complaint received must be
registered under Section 154(1) Cr.P.C, as they are cognizable offences, and an investigation should
only be caused thereafter. Section 41(1)(a)&(b) CrPC enable a police officer to arrest, without an
order from a Magistrate and without warrant, any person who has either committed or is alleged or
is suspected to have committed a cognizable offence. This power is not to be exercised for the mere
asking. Section 41 Cr.P.C. requires a police officer, before arresting any person, to be satisfied that
such an arrest is necessary in terms of clauses (a) to (e) of Section 41(1)(b)(ii) Cr.P.C. It also requires
him to record, while making such arrest, his reasons therefor in writing. (Sambangi Dhanunjaya
Naidu. v. The State of A.P. rep. by its Principal Secretary, Home Department ). Even in civil disputes
with an element of criminality, while the police officer can exercise his powers under Section 41 and
41-A CrPC during the course of investigation, he cannot adjudicate or resolve property/civil
disputes. The power conferred, on respondents 3 and 4, was only to take action in respect of the
allegations of the 5th respondent of a threat to her life from her brother as stated in her complaint
dated 13.11.2013; or her being assaulted and intimidated by her brother and his brother-in-law as
stated in her complaint dated 27.11.2013; and not to forcibly resolve the property disputes between
the petitioner and the 5th respondent.
VI. POWER OF ADJUDICATION OF CIVIL/PROPERTY DISPUTES IS CONFERRED ONLY ON
THE JUDICIARY AND NOT ON POLICE OFFICERS:
50. Maintenance of peace and public order, prevention of crime and investigation of cognizable
offences are functions which Police Officers are, statutorily, obligated to discharge. While Section
154(1) Cr.P.C confers power, and casts a duty, on the police officer to register a cognizable offence,
Section 155 Cr. P.C. enables a police officer to make an entry in the appropriate register, regarding
information relating to a non-cognizable offence. He cannot investigate a non-cognizable offence
without the order of the Magistrate. As a necessary corollary, any attempt by a police officer to
investigate a complaint, which does not contain allegations of the commission of a cognizable
offence, without permission from the Magistrate would violate Section 155(2) Cr. P.C and is, ex
facie, illegal. There is no presumption in law that every rift in human relations would lead to a civil
dispute, and a civil dispute is likely to result in clashes resulting in offences against the human body.
A Police Officer would not be justified in saying that he/she is examining a complaint which, ex
facie, has the trappings of a civil dispute. (S. Masthan Saheb11). Even if a civil dispute has a criminal
element, which falls within the ambit of a cognizable offence, with the potential of a law and order
problem posing threat to the society at large, a Police Officer can take up investigation only after
registering the complaint under Section 154 Cr.P.C. (Lakshmi @ Lakshmamma v. Commissioner of
Police ).
51. The function of resolving civil disputes is entrusted to the judiciary. Police officers lack
jurisdiction to interfere in civil/property disputes between two citizens. Even in criminal case, their
role is limited to the registration of complaints and causing investigation. The power to adjudge
whether or not an accused is guilty of having committed a criminal offence, and to convict and
sentence him therefor, is vested exclusively in the judicial branch of the State. Judicial power cannot
be exercised by agencies outside the judicial orbit and, where there is no legislative foundation for
exercise of judicial power by a forum, it has no legal capacity to entertain requests for adjudication.
Judicial power is a facet of sovereign power and can be conferred only by a Statute or by a Statutory
instrument. It cannot be assumed suo motu. No authority may exercise adjudicatory powers absent
a conferment of such powers by Statutory instruments. The coercive power of the State may not be
employed to adjudicate disputes. (M/s. Janathaeem Industries Ltd., rep., by its Public Relations
Officer M.S. Ganesan, Vijayawada. v. The District Collector, Krishna district at Vijayawada ).
52. While the inordinate delay, in resolution of civil disputes before Civil Courts of competent
jurisdiction, is undoubtedly a cause of concern that does not justify Police Officers exercising
powers, conferred exclusively of the judicial branch of the State, to adjudicate civil disputes. While
the need to strengthen judicial institutions, and to reduce the inordinate delay in disposal of Civil
Suits, cannot be over-emphasised, the highhanded acts of police officers in seeking to resolve civil
disputes, that too in the precincts of a police station, must also be sternly dealt with. Just as Courts
would not undertake investigation of criminal offences, as these are matters in the exclusive realm
of the investigating agency, the powers conferred and the duties cast upon Police Officers, under the
Criminal Procedure Code, is only to register complaints regarding cognizable offences and
investigate thereinto; and not adjudicate even criminal cases, much less resort to settlement of civil
disputes.
53. Police officers should not usurp, or even seem to usurp, judicial functions of adjudication or to
summon and force persons to resolve their inter-se civil disputes in a particular manner under the
guise of family counselling. In the present case the 3rd respondent has, in effect, donned the robes
of a judge in adjudicating property disputes between the petitioner and the 5th respondent.
65. No person can be forcibly summoned to a police station except in accordance with law, including
the provisions of the CrPC. Exercise of power by police officers, and the mode and manner of its
exercise, is circumscribed by the provisions of the CrPC. Conferment of power is only to enable
police officers to effectively discharge their statutory/legal obligations. Exercise of power, otherwise
than in furtherance of a statutory/legal duty, is an abuse of power. In the present case, not only does
the 3rd respondent lack the power to summon the petitioner to the police station, even without
registering the complaint and without a written notice asking him to appear, he has also abused his
office in carrying on a counselling session within the premises of the office of the DCP, West Zone,
that too for resolution of a civil dispute regarding division of property between the petitioner and
the 5th respondent.66. The belated and half-hearted apology tendered by the 3rd respondent, with a rider that his apology was if he had transgressed his limits in the course of interacting with the petitioner or the
5th respondent, does not commend acceptance. It is not even the case of the 3rd respondent that the
petitioner had voluntarily, and on his own accord, come to the S.R.Nagar Police Station on
14.11.2013 or that he had on his volition and free will, and without being directed by the police
officers at S.R.Nagar P.S, come over to the office of the D.C.P., West Zone, to meet the 3rd
respondent on 14.11.2013. Neither has the 3rd respondent admitted that his action in telephonically
instructing the 4th respondent to direct the petitioner to come to S.R.Nagar Police Station, and to
produce him at the office of the DCP, West Zone for counselling on 14th November, 2013 and in
directing the petitioner to appear before him on 19th November, 2013 is illegal, nor has he assured
this Court that he would refrain from indulging in such acts in future. I see no reason, therefore, to
accept the apology of the 3rd respondent which is, evidently, made only to avoid being faulted by
this Court. The illegal and high-handed acts of the 3rd respondent, depriving the petitioner of his
fundamental right of personal liberty under Article 21 of the Constitution of India, cannot be
ignored. The competent authority shall forthwith initiate major penalty proceedings against the
respondent, conduct a departmental enquiry, and take disciplinary action in accordance with law.
The entire exercise, culminating in a final order being passed by the competent authority, shall be
completed within four months from the date of receipt of a copy of this order. This order shall not
preclude the petitioner from claiming damages, for the violation of his fundamental rights by the
3rd respondent, in duly instituted legal proceedings.
67. While the 4th respondent cannot absolve himself of all blame on the specious plea that he had
merely acted on the orders of the 3rd respondent, this Court must also bear in mind that the 4th
respondent has, in his counter-affidavit filed before this Court, narrated the sequence of the events
but for which the illegal and high-handed acts of the 3rd respondent may not have been established.
The 4th respondent must constantly remind himself that his foremost obligation is to uphold the
rule of law, notwithstanding the illegal orders of his superiors. It would suffice to warn the 4th
respondent to desist from indulging in such acts in future.
68. This Court has only examined the illegal and high-handed acts of the 3rd respondent in orally
summoning and counselling the petitioner at his office, to settle his property disputes with the 5th
respondent, without even registering the complaint of the 5th respondent under Section 154(1)
CrPC; and has not touched upon the property disputes between the petitioner and the fifth
respondent. It is made clear that, while investigation in Crime No.182 of 2013 may be conducted in
accordance with law and a final report submitted under Section 173 CrPC, the 3rd respondent shall
not be involved either directly or indirectly in investigation or be consulted in the preparation and
finalisation of the final report.
69. The Writ Petition is, accordingly, allowed with exemplary costs of Rs.10,000/- (Rupees Ten
Thousand only). The costs should, ordinarily, have been paid to the petitioner. However, as he is
employed in the U.S.A, and the genesis of this dispute is an internecine fight over vast extents of
property, it is but appropriate that the cost of Rs.10,000/- is paid by the 3rd respondent to the
Andhra Pradesh State Legal Services Authority, Hyderabad, within four weeks from the date of
receipt of a copy of this Order. The miscellaneous petitions, if any pending, are also disposed of.
_______________________________ (RAMESH RANGANATHAN, J) Date: .04.201
Code of Conduct of Police
Andhra High Court
S. Masthan Saheb And Anr. Etc. vs P.S.R. Anjaneyulu And Ors. Etc. on 1 July, 2002
Equivalent citations: 2002 (2) ALD Cri 706, 2003 CriLJ 248ORDER V.V.S. Rao, J
some paras of the Judgment
8. A short question that requires consideration is whether the police are entitled to "look into" any
complaint made by any citizen against a citizen or citizens in relation to a civil dispute on the
premise that there is likelihood of further clashes, which may result in law and other problem.
9. Chapter XI of Cr. P.C. contains provisions dealing with preventive action of the police. Section 149
lays down that every police officer may interpose for the purpose of preventing, and shall, prevent
the commission of any cognizable offence. Section 150 requires every police officer as in duty bound
to inform about any information regarding a design to commit cognizable offence to the officer to
whom he is subordinate and under Section 151, may even arrest, without orders from a Magistrate
and without warrant, a person so designing to commit a cognizable offence. Further, under
Sub-section (2), a person who is arrested in relation to a situation under Sub-section (1) of Section
151 shall not be detained exceeding 24 hours from the time of his arrest unless the detention of suc
person is required or authorised under any other provisions of this Code.
10. In this context, reference may also be made to the relevant provisions in Hyderabad City Police
Act, 1348 Fasli (for short "the Hyderabad Act"), Andhra Pradesh (Andhra Area) District Police Act,
1859 ("the Andhra Act" for brevity) and the Andhra Pradesh (Telangana Area) District Police Act,
1329 Fasli ("the Telangana Act").
11. All powers not inconsistent with the provisions of the Andhra Act, which up to the passing of the
said Act belonged by law to the existing police authorities shall be vested in the police authorities
under the Andhra Act. That is the purport of Section 6 of the said Act. Further Section 21 thereof
lays down the duties of police officers, which reads as under :
"21. Duties of Police Officers :-- Every Police Officer shall, for all purposes in this Act contained, be
considered to be always on duty and shall have the powers of a Police Officer in every part of the
General Police District. It shall be his duty to use his best endeavours and ability to prevent all
crimes, offences and public nuisances, to preserve the peace: to apprehend disorderly and
suspicious characters; to detect and bring offenders to justice, to collect and communicate
intelligence affecting the public peace; and promptly to obey and execute all orders and warrants
lawfully issued to him."
12. Similar provisions were made in the Telangana Act also by reason of Section 19 of the said Act.
But, Section 16 of the Telangana Act postulates that police officers enrolled under the Telangana Act
shall not have any other power except powers conferred by the Telangana Act or the Code of
Criminal Procedure, 1898.
13. Hyderabad City Police Act is a consolidating law relating to Hyderabad City made with an
objective of providing effective means for prevention and detection of crimes, maintenance of peace
and investigation into crimes. Section 29 enumerates the duties of police officers. Clause (b) of
Section 29 requires every police officer to obtain intelligence concerning the commission of
cognizable offences or design to commit such offences and bring such information to the notice of
superior officers and to take such action consistent with law and with orders of his superior. This
provision is in pari materia with Section 151, Cr. P.C. It is not necessary to refer to various other
duties under the Hyderabad Act. but it is suffice to notice that all the duties are meant to maintain
peace and public order and prevent commission of offences.
14. The various provisions to which a brief reference is made would show that the power of the
police to collect intelligence regarding any design to commit cognizable offences and prevent
commission of cognizable offences is considered to be the inherent power of the police organization.
Whether or not there is a special enactment, the police are expected to perform its functions;
namely, maintenance of peace and public order and prevention of cognizable offences. When all
these statutes dealing with police in Andhra Pradesh deal with duty of the police relating to
cognizable offences, a Police Officer would not be justified in saying that he/she is looking into a
complaint made by a person which has, ex facie, trappings of the civil dispute. Indeed, under
sub-section (1) of Section 154 of Cr. P.C., it shall be within the power and duty of the police officer toregister only a cognizable offence. Though under Section 155 of Cr. P.C. a police officer can make an
entry in the appropriate register about the information as to non-cognizable offence, such police
officer shall not investigate a non-cognizable offence without the order of the Magistrate. As a
necessary corollary, it must be concluded that any effort on the part of the police 'to look into' any
complaint by any person which does not contain allegations of commission of cognizable offences
would not only violate the various provisions of the Andhra Act, as in this case, but also would
violate Section 155(2) of the Cr. P.C. Any such action would be ex facie illegal, whatever be the ipse
dixit of the police. There is no presumption in law that every rift in human relations would lead to a
civil dispute and civil dispute would likely to result in clashes, resulting in offences against human
body. Any such effort on the part of the police to look into the complaints regarding civil disputes is
not even the part of the Code of Conduct of the Police, which was communicated by the Government
of India in 1987 which reads as under :
Code of Conduct for the Police in India
1. The Police must bear faithful allegiance to the Constitution of India and respect and uphold the
rights of the citizens as guaranteed by it.
2. The Police should not question the propriety or necessity of any law duly enacted. They should
enforce the law firmly and impartially, without fear or favour, malice or vindictiveness.
3. The Police should recognize and respect the limitations of their powers and functions. They
should not usurp or even seem to usurp the functions of the judiciary and sit in judgment on cases to
avenge individuals and punish the guilty
4. In securing the observance of law or in maintaining order, the Police should as far as practicable,
use the methods of persuasion, advice and warning. When the application of force becomes
inevitable, only the irreducible minimum of force required in the circumstances should be used.
5. The prime duty of the Police is to prevent crime and disorder and the Police must recognize that
the test of their efficiency is the absence of both and not the visible evidence of Police action in
dealing with them.
6. The Police must recognize that they are members of the public, with the only difference that in the
interest of the society and on its behalf they are employed to give full time attention to duties, which
are normally incumbent on every citizen to perform.
7. The Police should realize that the efficient performance of their duties will be dependent on the
extent of real co-operation that they receive from the public. This, in turn, will depend on their
ability to secure public approval of their conduct and actions and to earn and retain public respect
and confidence.
8. The Police should always keep the welfare of the people in mind and be sympathetic and
considerate towards them. They should always be ready to offer individual service and friendship
and render necessary assistance to all without regard to their wealth or social standing.
9. The Police should always place duty before self, should remain calm in the face of danger, scorn or
ridicule and should be ready to sacrifice their lives in protecting those of others.
10. The Police should always be courteous and well mannered; they should be dependable and
impartial; they should possess dignity and courage; and should cultivate character and the trust of
the people.
11. Integrity of the highest order is the fundamental basis of the prestige of the Police Recognizing
this, the Police must keep their private lives scrupulously clean, develop self-restraint and be
truthful and honest in thought and deed, in both personal and official life, so that the public may
regard them as exemplary citizen.
12. The Police should recognize that their full utility to the State is the best ensured only by
maintaining a high standard of discipline, faithful performance of duties in accordance with law and
implicit obedience to the lawful directions of commanding ranks and absolute loyalty to the force
and by keeping themselves in a state of constant training and preparedness
13. As members of a secular, democratic State, the Police should strive continually to rise above
personal prejudices and promote harmony and the spirit of common brotherhood amongst all the
people in India transcending religious, linguistic and regional or sectional diversities and to
renounce practices derogatory to the dignity of women and disadvantaged segments of the society."
15. The Superintendent of Police, in the counter-affidavit in W.P. No. 19056 of 2001, avers that as
and when persons approach the police seeking redressal, police are acting upon it so as to avoid
further clashes and to prevent law and order problem only, cannot be justified under any principle
of law. The statement of the Superintendent of Police that whenever people approach the police with
civil disputes, the people are being advised to approach the Civil Courts, is well within law and the
same is recorded. It is observed that the Superintendent of Police may communicate a copy of this
order to all the subordinate officials in his jurisdiction with a direction to keep in mind the
provisions of Section 155, Cr. P.C. as well as Section, 21 of the Andhra Area Police Act, 1859.
16. In coming to the allegations and counter allegations in this case, no reply affidavit is filed in any
of the writ petitions traversing the counter allegations. It is well settled that when affidavit
averments are not specifically denied, the law presumes that they have been admitted. (See C. S.
Rowji v. State of A. P., , Bharat Singh v. State of Haryana, and Naseem Bano v. State of U. P., .
Having regard to the pleadings, no finding can be recorded as the petition allegations are made on
oath and counter allegations are made equally on oath. If any of the petitioners are still aggrieved
against any alleged high-handedness of either Sub-Inspector of Police or Inspector of Police, it is
open to them to approach the Superintendent of Police by lodging a complaint. As and when such
complaint is made, the Superintendent of Police shall take necessary action after conducting enquiry
against the concerned Police Inspector/Sub-Inspector, against whom complaint is made
S. Masthan Saheb And Anr. Etc. vs P.S.R. Anjaneyulu And Ors. Etc. on 1 July, 2002
Equivalent citations: 2002 (2) ALD Cri 706, 2003 CriLJ 248ORDER V.V.S. Rao, J
some paras of the Judgment
8. A short question that requires consideration is whether the police are entitled to "look into" any
complaint made by any citizen against a citizen or citizens in relation to a civil dispute on the
premise that there is likelihood of further clashes, which may result in law and other problem.
9. Chapter XI of Cr. P.C. contains provisions dealing with preventive action of the police. Section 149
lays down that every police officer may interpose for the purpose of preventing, and shall, prevent
the commission of any cognizable offence. Section 150 requires every police officer as in duty bound
to inform about any information regarding a design to commit cognizable offence to the officer to
whom he is subordinate and under Section 151, may even arrest, without orders from a Magistrate
and without warrant, a person so designing to commit a cognizable offence. Further, under
Sub-section (2), a person who is arrested in relation to a situation under Sub-section (1) of Section
151 shall not be detained exceeding 24 hours from the time of his arrest unless the detention of suc
person is required or authorised under any other provisions of this Code.
10. In this context, reference may also be made to the relevant provisions in Hyderabad City Police
Act, 1348 Fasli (for short "the Hyderabad Act"), Andhra Pradesh (Andhra Area) District Police Act,
1859 ("the Andhra Act" for brevity) and the Andhra Pradesh (Telangana Area) District Police Act,
1329 Fasli ("the Telangana Act").
11. All powers not inconsistent with the provisions of the Andhra Act, which up to the passing of the
said Act belonged by law to the existing police authorities shall be vested in the police authorities
under the Andhra Act. That is the purport of Section 6 of the said Act. Further Section 21 thereof
lays down the duties of police officers, which reads as under :
"21. Duties of Police Officers :-- Every Police Officer shall, for all purposes in this Act contained, be
considered to be always on duty and shall have the powers of a Police Officer in every part of the
General Police District. It shall be his duty to use his best endeavours and ability to prevent all
crimes, offences and public nuisances, to preserve the peace: to apprehend disorderly and
suspicious characters; to detect and bring offenders to justice, to collect and communicate
intelligence affecting the public peace; and promptly to obey and execute all orders and warrants
lawfully issued to him."
12. Similar provisions were made in the Telangana Act also by reason of Section 19 of the said Act.
But, Section 16 of the Telangana Act postulates that police officers enrolled under the Telangana Act
shall not have any other power except powers conferred by the Telangana Act or the Code of
Criminal Procedure, 1898.
13. Hyderabad City Police Act is a consolidating law relating to Hyderabad City made with an
objective of providing effective means for prevention and detection of crimes, maintenance of peace
and investigation into crimes. Section 29 enumerates the duties of police officers. Clause (b) of
Section 29 requires every police officer to obtain intelligence concerning the commission of
cognizable offences or design to commit such offences and bring such information to the notice of
superior officers and to take such action consistent with law and with orders of his superior. This
provision is in pari materia with Section 151, Cr. P.C. It is not necessary to refer to various other
duties under the Hyderabad Act. but it is suffice to notice that all the duties are meant to maintain
peace and public order and prevent commission of offences.
14. The various provisions to which a brief reference is made would show that the power of the
police to collect intelligence regarding any design to commit cognizable offences and prevent
commission of cognizable offences is considered to be the inherent power of the police organization.
Whether or not there is a special enactment, the police are expected to perform its functions;
namely, maintenance of peace and public order and prevention of cognizable offences. When all
these statutes dealing with police in Andhra Pradesh deal with duty of the police relating to
cognizable offences, a Police Officer would not be justified in saying that he/she is looking into a
complaint made by a person which has, ex facie, trappings of the civil dispute. Indeed, under
sub-section (1) of Section 154 of Cr. P.C., it shall be within the power and duty of the police officer toregister only a cognizable offence. Though under Section 155 of Cr. P.C. a police officer can make an
entry in the appropriate register about the information as to non-cognizable offence, such police
officer shall not investigate a non-cognizable offence without the order of the Magistrate. As a
necessary corollary, it must be concluded that any effort on the part of the police 'to look into' any
complaint by any person which does not contain allegations of commission of cognizable offences
would not only violate the various provisions of the Andhra Act, as in this case, but also would
violate Section 155(2) of the Cr. P.C. Any such action would be ex facie illegal, whatever be the ipse
dixit of the police. There is no presumption in law that every rift in human relations would lead to a
civil dispute and civil dispute would likely to result in clashes, resulting in offences against human
body. Any such effort on the part of the police to look into the complaints regarding civil disputes is
not even the part of the Code of Conduct of the Police, which was communicated by the Government
of India in 1987 which reads as under :
Code of Conduct for the Police in India
1. The Police must bear faithful allegiance to the Constitution of India and respect and uphold the
rights of the citizens as guaranteed by it.
2. The Police should not question the propriety or necessity of any law duly enacted. They should
enforce the law firmly and impartially, without fear or favour, malice or vindictiveness.
3. The Police should recognize and respect the limitations of their powers and functions. They
should not usurp or even seem to usurp the functions of the judiciary and sit in judgment on cases to
avenge individuals and punish the guilty
4. In securing the observance of law or in maintaining order, the Police should as far as practicable,
use the methods of persuasion, advice and warning. When the application of force becomes
inevitable, only the irreducible minimum of force required in the circumstances should be used.
5. The prime duty of the Police is to prevent crime and disorder and the Police must recognize that
the test of their efficiency is the absence of both and not the visible evidence of Police action in
dealing with them.
6. The Police must recognize that they are members of the public, with the only difference that in the
interest of the society and on its behalf they are employed to give full time attention to duties, which
are normally incumbent on every citizen to perform.
7. The Police should realize that the efficient performance of their duties will be dependent on the
extent of real co-operation that they receive from the public. This, in turn, will depend on their
ability to secure public approval of their conduct and actions and to earn and retain public respect
and confidence.
8. The Police should always keep the welfare of the people in mind and be sympathetic and
considerate towards them. They should always be ready to offer individual service and friendship
and render necessary assistance to all without regard to their wealth or social standing.
9. The Police should always place duty before self, should remain calm in the face of danger, scorn or
ridicule and should be ready to sacrifice their lives in protecting those of others.
10. The Police should always be courteous and well mannered; they should be dependable and
impartial; they should possess dignity and courage; and should cultivate character and the trust of
the people.
11. Integrity of the highest order is the fundamental basis of the prestige of the Police Recognizing
this, the Police must keep their private lives scrupulously clean, develop self-restraint and be
truthful and honest in thought and deed, in both personal and official life, so that the public may
regard them as exemplary citizen.
12. The Police should recognize that their full utility to the State is the best ensured only by
maintaining a high standard of discipline, faithful performance of duties in accordance with law and
implicit obedience to the lawful directions of commanding ranks and absolute loyalty to the force
and by keeping themselves in a state of constant training and preparedness
13. As members of a secular, democratic State, the Police should strive continually to rise above
personal prejudices and promote harmony and the spirit of common brotherhood amongst all the
people in India transcending religious, linguistic and regional or sectional diversities and to
renounce practices derogatory to the dignity of women and disadvantaged segments of the society."
15. The Superintendent of Police, in the counter-affidavit in W.P. No. 19056 of 2001, avers that as
and when persons approach the police seeking redressal, police are acting upon it so as to avoid
further clashes and to prevent law and order problem only, cannot be justified under any principle
of law. The statement of the Superintendent of Police that whenever people approach the police with
civil disputes, the people are being advised to approach the Civil Courts, is well within law and the
same is recorded. It is observed that the Superintendent of Police may communicate a copy of this
order to all the subordinate officials in his jurisdiction with a direction to keep in mind the
provisions of Section 155, Cr. P.C. as well as Section, 21 of the Andhra Area Police Act, 1859.
16. In coming to the allegations and counter allegations in this case, no reply affidavit is filed in any
of the writ petitions traversing the counter allegations. It is well settled that when affidavit
averments are not specifically denied, the law presumes that they have been admitted. (See C. S.
Rowji v. State of A. P., , Bharat Singh v. State of Haryana, and Naseem Bano v. State of U. P., .
Having regard to the pleadings, no finding can be recorded as the petition allegations are made on
oath and counter allegations are made equally on oath. If any of the petitioners are still aggrieved
against any alleged high-handedness of either Sub-Inspector of Police or Inspector of Police, it is
open to them to approach the Superintendent of Police by lodging a complaint. As and when such
complaint is made, the Superintendent of Police shall take necessary action after conducting enquiry
against the concerned Police Inspector/Sub-Inspector, against whom complaint is made
Subscribe to:
Posts (Atom)
Unregistered document can be used for the collateral purpose to the limited extent of showing possession/nature/character of possession over the suit schedule property
HON'BLE JUSTICE LAXMI NARAYANA ALISHETTY C.RP.No.725 of 2023 Between: Asma Mahmood Quadri, W/o Syed Mehamood Quadri … Petitioner And...
-
Steps in Execution Written execution petition will be in the form signed and verified by the applicant or by some other person pro...
-
Telangana High Court Judgment No.1 Logeti Pedda Bhojanna vs Mahajah Ravinder, on 28 November, 2024 THE HON'BLE SMT JUSTICE K....
