The 498A Survival Kit

Published July 1, 2007 498a judgments 70 Comments

We shall do our part to build a world of peace where the weak are safe and the strong are just.                    –John F Kennedy

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INDIAN PENAL CODE (IPC), SECTION 498A

Introduced in the Penal Code by Criminal Law

(Second Amendment) Act of 1983 (Act No. 46 of 1983)

498A. HUSBAND OR RELATIVE OF HUSBAND OF A WOMAN SUBJECTING HER TO CRUELTY: Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Section 498A of the Indian Penal Code, is a criminal offense. It is a cognizable, non-bailable, and non-compoundable offense.

The lines above lay down the law known as Section 498A Of the Indian Penal Code, or IPC 498A or just 498A. This law was formulated in the ’80s to protect young women from being subjected to harassment or torture by their in-laws  and/or husbands – for the sake of extorting wealth from the families of these women. It has morphed into a country-wide, multi-million dollar extortion racket, benefiting lawyers, policemen, corrupt elements of the lower judiciary, feminazis and their NGOs, and the political establishment.  For estranged wives  and their families, 498A is the perfect tool to extort fat settlements or settle scores with their hubbies and in-laws.

For the  corrupt Indian police force, 498A is a huge source of revenue. Allegations under this law are never investigated. Once a complaint is registered, the police, mostly on Fridays or a day before a holiday, walk into the homes of the accused and arrest everyone named in the complaint. The arrested are then taken to the police station  and threatened with “consequences” or sometimes subjected to custodial violence. In this manner, large sums of money are extorted under the guise of a “settlement”. If a “settlement” cannot be reached, these families can look forward to a stint  in  jail, followed by years spent in running around courts, trying to prove their innocence. Getting bail, to get out of jail, is another ordeal.  Corrupt magistrates often deny bail to “soften” up the tougher ones. People have killed themselves, unable to bear the harassment.

In this manner, uniformed criminals and dirty magistrates have illegally jailed over 1,30,000 women under 498A since 2004, per statistics compiled by the NCRB. This number includes my innocent mom and sister, who were held for 11 days, in an ultimately unsuccessful attempt to extort a $100,000 from me. Everyone, including the magistrate, was bribed to the gills by my politically connected ex-father in law. In those 11 days, I understood the definition of hell.

The Indian criminal justice system is so corrupt that the US State Dept has issued a warning about  it at its India travel site. Additionally, the State Dept, in its annual report on trafficking in persons, stated that “complicity in trafficking by many Indian law enforcement officials and overburdened courts impede effective prosecutions”. This should give you, the reader, a good idea about the state of the Indian criminal justice system.

What happens to the accuser/abuser of this law?.

She gets away with a chunk of cash  and/or the satisfaction of putting her ex-hubby and in-laws through an ordeal lasting years.  Even if the accused are cleared of all charges, the courts are reluctant to punish these women for abusing the law. Around 60,000 498A cases are filed each year, each estimated to take over 4-7 years to be  resolved. Sometimes an out of court settlement is reached — meaning the accused give-in — unable to bear the long drawn ordeal of fighting a criminal case in an Indian court.

The legal fraternity profits from the bail applications and the fees from long drawn cases.

Real victims do exist, but they will never be able to get justice as the courts are clogged with frivolous cases.

Finally, this extortion racket ties in with vote bank politics. The Indian electorate has been divided into  segments, chiefly along the lines of caste, religion, economic status, language and every possible fault line imaginable. These segments have come to be known as vote banks, from which political parties draw their strength. Due to the size of the  numbers involved, tiny fractions of votes from these vote banks can make a difference in closely contested Indian elections. Since the horizontal carving up of the electorate is now complete, the political establishment has now settled upon a vertical segment – women.  No political party has the nerve to call for an amendment to this law as they risk  angering this segment and being branded as “anti-women”. Hence the opposition to the amendment of this pernicious law by the political establishment.

I presented this overview to highlight the perfidy of the Indian establishment which has fostered this profitable extortion racket under the guise of “protecting women”.

This blog is a component in the fight against corruption in India. It is about raising awareness of the right to due process. It has nothing to do with women’s rights and everything to do with ending the rampant violation of fundamental (civil) rights.

The courage of my mother and sister ended the police harassment and enabled me to become a citizen of another great country. I’m moving on to live my life as a proud citizen of my new country, my “Karma Bhoomi”, my home. What I have done here is my “Thank You” for all that was given to me by the soil I was born on. The information posted here is to enable those of you entangled in this mess to  stand and fight, and hopefully, end this Indian extortion racket some day.

Good luck !

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My goal is to enable you to have the knowledge and the information to defend yourselves and your families against the brutal attempt at extortion you will be subjected to. The key to winning a 498A case is to eliminate the harassment and intimidation that the Indian police can subject you to. In order to do this, please start by downloading the documents below. All the documents are in pdf format. You will need adobe acrobat reader v5 or greater to read the documents.

Expect to spend days understanding this information. I know that it is a lot, but it will pay off:

  1. The 498A Survival Guide -  This e-book will guide you to defend yourselves against the excesses of the Indian police and will provide a complete picture of what you have gotten yourselves into. (Updated Apr/2008)

  2. Joginder Kumar Vs State Of UP – 1994 – Keep a copy of this seminal Supreme Court judgment which resulted from a writ of Habeas Corpus. It defines the powers of the police to arrest. You will be surprised to know how limited the powers of the police to arrest are. If you are unable to get anticipatory bail, this judgment may very well protect you from an illegal arrest by the police. The recent CrPC amendment to Section 41, IPC, is nothing more than the codification of this judgment.

  3. Understand The Right To Due Process: “Due Process” is the principle that the government must respect all of the legal rights that are owed to a citizen in accordance with the law. Due process holds the government subservient to the law of the land.  The term government means any branch of the government, such as the executive (police),  the judicial (judges and magistrates), and the legislative (MLAs and MPs) branches.  Due process protects a citizen from the brutal power any branch of the state can exercise — illegally.

  4. Srinivasulu Vs State Of AP-2007:  The Supreme Court of India has stated that: “Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman is required to be established in order to bring home the application of Section 498A IPC”. After the FIR is filed, read the FIR and question the cops on the basis for the applicability of 498A to your case, as set forth in this judgment. Most FIRs are a concoction of lies with no coherence or reason in them. Use this judgment to your advantage.

  5. SC Explains Anticipatory Bail – 2009 – This judgment explains the rules governing the granting of anticipatory bail. Everything you need to know is present in this judgment.

  6. The Final Report Of Film Actor Prashanth’s 498A Case (pdf is at the end of the post) – This article is the Final Report of film actor Prashanth. Read it to understand what a final report is.

  7. Justice Regupathy: Mechanical Judicial Remand Is ILLEGAL

  8. Justice Kailash Gambhir (Delhi HC) Guidelines On Prosecution Of 498A Cases

  9. Delhi Police Circular Forbidding Arrests In 498A Cases Without DCP’s Permission

  10. Hyderabad Police Circular Forbidding Arrests in 498A Cases Without DCP’s Permission

  11. Judgments of Justice Dhingra: Justice Shiv Narain Dhingra of the Delhi High Court has empowered victims of 498A cases with his judgments. Read these  to inform and motivate  yourselves to fight this racket.

  12. SC Explains Conditions For The Quash Of An FIR – 2009

  13. 498A Counter Cases To Fight Back With – Compiled By Rudy

  14. The Important Sections Of The Dowry Prohibition Act

498A Survival Guide In Regional Languages :

The Indian police force plays a huge role in this extortion racket. Read the judgments and articles about the Indian police to inform, educate and empower yourselves.

For immediate help and advice, contact:

The Supreme Court of India is the ultimate arbiter of the law on account of the The Doctrine Of Binding Precedent. Article 142 of the Constitution declares that any order of the Supreme Court is enforceable throughout the territory of India and article 144 mandates that all civil (police) and judicial authorities shall act in aid of the Supreme Court.

Repository Of Information:

OR

OR

Compendium Of Judgments:

For Non Resident Indians (NRIs):

Documents on the Indian Police:

CBI Manuals:The CBI is the premier investigative agency of our country and I have a lot of respect for the capabilities of these guys. I just wish they would be a little more diligent before filing red corner notices against NRIs accused in dowry cases. In a sense they are insulting their own intelligence.
These manuals are a great source for detailing the process of investigation of cognizable offenses and also the laws of arrest. These are in the public domain (Internet) and I stumbled across them by accident; a gift from the gods. I believe that these manuals can serve as a good reference to file RTIs against corrupt police officers. Read these documents and you will get a clear idea of what the police are actually supposed to do upon the registration of cognizable offenses.

RTI is a powerful tool to combat the abuse of 498A. The police are required to answer within 48Hrs when an RTI is filed about a person who is arrested. Read about the basics of filing an RTI here:

Misc documents/links/News:

Archive:

Finally, regardless of what the 498A wives do to you, if you are innocent, you will prevail.

Read the disclaimer on the lower right hand side of the page.

Please forward this link to 2 people. This is to raise awareness about this pernicious law.

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Due Process And The Bill Of Rights In The Indian Context

Published November 27, 2009 Habeas Corpus , Human Rights , Hyderabad Police , Indian Law 3 Comments

I renounced my Indian citizenship after I became the proud citizen of a country that attempts to guarantee and protect the rights of its citizens in accordance with its Constitution. I said “attempts ” — its criminal justice system is not perfect, but it is arguably  amongst the best on this planet.

In my quest to serve my country and my new home, I read its short and eventful history, its Constitution,  and the amendments made to its Constitution.  As a result, I learned about two words — “Due Process“.

“Due Process” is the principle that the government must respect all of the legal rights that are owed to a citizen in accordance with the law. Due process holds the government subservient to the law of the land.  The term government means any branch of the government, such as the executive (police),  the judicial (judges and magistrates), and the legislative (MLAs and MPs) branches.  Due process protects a citizen from the brutal power any branch of the state can exercise — illegally. 

In the United States, the phrase, “due process of law“, has been construed to forbid the violation of the rights granted by the Bill of Rights.

So what are the Bill Of Rights?

The Bill of Rights is the name by which the first ten amendments to the United States Constitution are collectively known. The founding fathers such as Washington, Jefferson, etc,  just like Indian freedom fighters such as Gandhi, Nehru, etc, experienced the heavy hand of tyranny, usually arrest without cause, that resulted from the unrestrained use of power by a monarch — the state — and the lack of protections to the rights of citizens. As a result, after the US Constitution was ratified, meaning, after it was accepted as the law of the land, ten amendments were made to it that guaranteed individual protections  — The Bill Of Rights.

In the context of conferring protections on individuals from the excesses of the state, the following amendments to the US Constitution are of immense importance:

  • 5th Amendment:  no person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.
  • 6th Amendment: the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed.

The Indian Constitution confers on Indian citizens, the following FUNDAMENTAL RIGHTS, equivalent to the 5th and 6th amendments:

  1. No citizen can be denied his life and liberty except by law –  Article 21 and enforced through the writ of Habeas Corpus.
  2. No citizen  accused of any offense shall be compelled to be a witness against himself — A fundamental Right and Supreme Court judgment given below.
  3. The right to a speedy trial — see the Supreme Court judgment below.
  4. The right to be tried in the place of proper jurisdiction — explained through a Supreme court judgment.

The Fundamental Rights listed above collectively constitute  the Right To Due Process In India.

In essence the right to “Due Process” in India is enforced by means of the following Supreme Court judgments:

  1. The Right Against Arbitrary Arrest — Joginder Kumar Vs State Of UP – 1994:  This judgment resulted from a writ  of Habeas Corpus and it enforces the right against arbitrary arrest. It says: “No arrest can be made because it is lawful for the police officer to do so.  The existence of the power to arrest is one thing.  The justification for the exercise of it is quite another.  The police officer must be able to justify the arrest apart from his power to do so.  Arrest and detention in police lock-up of a person cause incalculable harm to the reputation and self–esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own  interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter.”
  2. The Right To A Speedy Trial — Hussainara Khatoon & Ors.Vs.State Of Bihar, 1979:  The accused in these cases might have been on bail – but the injustice of pendency of trial for long periods is the uncertainty and the concomitant anxiety suffered by the under-trial. The under-trial is inhibited in making future plans for his life or executing present ones due to the uncertainty which pendency of trial brings. His confidence starts to erode and at the end of the trial, even if he is honorably acquitted, the scars of the long trial remain. He feels condemned despite the acquittal.
  3. The Right To A Place Of Proper Jurisdiction — Y.Ajith Abraham Vs. Inspector of Police, Chennai, 2004: “Sections 177 to 186 deal with venue and place of trial. Section 177 reiterates the well-established common law rule referred to in Halsbury’s Laws of England (Vol. IX para 83) that the proper and ordinary venue for the trial of a crime is the area of jurisdiction in which, on the evidence, the facts occur and which alleged to constitute the crime. There are several exceptions to this general rule and some of them are, so far as the present case is concerned, indicated in Section 178 of the Code which read as follows:
    Section 178 PLACE OF INQUIRY OR TRIAL

    1. When it is uncertain in which of several local areas an offence was committed, or
    2. where an offence is committed partly in one local area and partly in another, or
    3. where an offence is continuing one, and continues to be committed in more local areas than one, or
    4. where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas.”
  4. The Right Against Self-Incrimination — Article 20 of the Indian Constitution and Nandini Satpathy Vs P.L Dani, 1978: The Supreme Court issued the following directives in this judgments:
    1. An accused person cannot be coerced or influenced into giving a statement pointing to her/his guilt.
    2. The accused person must be informed of her/his right to remain silent and also of the right against self incrimination.
    3. The person being interrogated has the right to have a lawyer by her/his side if she/he so wishes.
    4. An accused person must be informed of the right to consult a lawyer at the time of questioning, irrespective of the fact whether s/he is under arrest or in detention.
    5. Women should not be summoned to the police station for questioning in breach of Section 160 (1) CrPC. Children below 15 and women should not be summoned to the police station or to any other place by an investigating officer. They should only be questioned at their place of residence. An essential element of a fair trial is that the accused cannot be forced to give evidence against her/himself. Forcing suspects to sign statements admitting their guilt violates the constitutional guarantee against self-incrimination and breaches provisions of the Code of Criminal Procedure, 1973 [CrPC]. It is also inadmissible as evidence in a court of law. In addition, causing hurt to get a confession is punishable by imprisonment up to seven years.

It is essential for Indian citizens to understand that the Indian Constitution, derived from the US Constitution and its Bill Of Rights, confers the same Constitutional protections that citizens of the US enjoy.

This post is an attempt on my part to educate and empower Indian citizens to assert their right to Due Process  — this attempt resulting from the desire to share the knowledge I gained while on a quest to serve my country.

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SC: Magistrate Is Not A Silent Spectator

Published September 26, 2009 454903 2 Comments

“28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to   examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.”

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A Pledge For The Indian Judiciary

Published September 2, 2009 Delhi High Court , Justice Ravinder Bhatt 1 Comment

I came across this quote in the judgment issued by Justice Ravinder Bhatt, of the Delhi HC. This is part of his landmark judgment that placed the Indian judiciary under the purview of the RTI Act.

Justice Bhatt quotes from a book of  Dr. Barrack, “The Judge in a Democracy”, which summarizes the values every judge must live by.

In these days and times, when the cancer of corruption is spreading to consume the Indian judiciary, I believe that this must be made the pledge — the standard — that Indian judges must be held to.

This is what Justice Bhatt quotes:

“As a judge, I do not have a political platform. I am not a political person. Right and left, religious and secular, rich and poor, man and woman, disabled and nondisabled, all are equal in my eyes. All are human beings, created in the image of the Creator. I will protect the human dignity of each. I do not aspire to power. I do not seek to rule. I am aware of the chains that bind me as a judge and as the president of the Supreme Court. I have repeatedly emphasized the rule of law and not of the judge. I am aware of the importance of the other branches of government – legislative and executive – which give expression to democracy. Between those two branches are connecting bridges and checks and balances.
I view my office as a mission. Judging is not a job. It is a way of life. Whenever I enter the courtroom, I do so with the deep sense that, as I sit at trial, I stand on trial.””

And in the event that they fall short of anything less than this standard, let’s put them on trial.

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IN THE SUPREME COURT OF INDIA

Writ Petition (Civil) No. 218 of 2003

Decided On: 09.05.2003

Appellants: Indira Jaising
Vs.
Respondent: Registrar General, Supreme Court of India and Anr.

JUDGMENT

Rajendra Babu, J.

1. A Senior Advocate practising in this Court has filed this petition purporting to be one under Article 32 of the Constitution of India in public interest primarily for the publication of the inquiry report made by a Committee consisting of two Chief Justices and a Judge of different High Courts in respect of certain allegations of alleged involvement of sitting Judges of the High Court of Karnataka in certain incidents and also for a direction to any professional and independent investigating agency having expertise to conduct a thorough investigation into the said incident and to submit a report on the same to this Court.

2. In the Chief Justices’ Conference held in December 1999, 16 clauses formed part of the Code of Conduct in addition to the declaration of assets by the Judges and In-House procedure was suggested in the event of any complaint against any Judge. However, sanction for these guidelines in absent. In our constitutional scheme it is not possible to vest the Chief Justice of India with any control over the puisne Judges with regard to conduct either personal or judicial. In case of breach of any rule of the Code of Conduct, the Chief Justice can choose not to post cases before a particular Judge against whom there are acceptable alegations. It is possible to criticise that decision on the ground that no enquiry was held and the Judge concerned had no opportunity to offer his explanation particularly when the Chief Justice is not vested with any power to decide about the conduct of a Judge. There is no adequate method or machinery to enforce the Code of Conduct. Article 124 provides for appointment of Judges of this Court and also their removal. Similarly, Article 217 dea

Delhi HC: Indian Judiciary Is Subject To RTI Act

Published September 2, 2009 Delhi High Court Leave a Comment

Here is the judgment by the Delhi High Court.

With this judgment, the corruption within the judiciary can be exposed.

Here are the magic words:

“In view of the findings recorded above, the first petitioner CPIO shall release the information sought by the respondent applicant,- about the declaration of assets, (and not the contents of the declarations, as that was not sought for) made by judges of the Supreme Court, within four weeks.”

Here is the judgment:  

Delhi HC: Indian Judiciary Is Subject To RTI Act

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Gazette of Act 5 of 2009

Published August 30, 2009 Code Of Criminal Procedure 1 Comment

Here is the pdf of the fully scanned document:

The Gazette of India (pdf)

The Gazette of India_Page_01_Image_0001

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Thinking Of Getting Married? Advice From Divorcee Anne Heche

Published August 28, 2009 498A torture Leave a Comment

She is soooo right about the benefits of a perpetual engagement !!

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Interpol’s Most Wanted – NRI Grooms Not Wanted

Published August 25, 2009 Hyderabad Police , IGP S Umapathy , Indian Police , Interpol , S Umapathi IPS , S Umapathy AP CID , S Umapathy IPS 2 Comments

This post is  about contrasting the dangerous fugitives wanted by Interpol with the bogus ones (non resident Indian, NRI, grooms) designated as such by the Indian police.  As expected, NRI victims of the 498A extortion racket are not on the Red Corner Notice (RCN) list of the most dangerous fugitives wanted by Interpol.

You can see the list of Interpol’s most wanted here:

http://www.interpol.int/Public/NoticesUN/Search/Recent.asp

To all of you NRIs threatened with RCN notices and extraditions, don’t worry about it. It is not going to happen.

This is how it worked.  If an NRI had marital issues, his Indian bride would run back to India and file a 498A case against him. If he failed to pay the demanded amount, the bride, in collusion with the police would try to bring him back to India — to have him arrested on arrival. If all attempts to entice him to India failed, the police issued an RCN against him.  Before long, Interpol was receiving numerous RCNs from India; mostly for 498A cases. “Pussy Politics” Umapathi used to boast about the effectiveness of this tactic in coercing NRIs to settle their 498A cases.

Interpol stopped issuing  RCNs in 498A cases — effectively ending a tool of extortion used by the corrupt AP Police. They realized that they were being used in this extortion racket.

Here is a picture of this myopic IPS officer, hobnobbing with the likes of Indira Jaising. Our man had been out playing pussy politics instead of working to end the trafficking of vulnerable Indian women.

IGP-Umapathy

To put things in perspective, lumping NRIs (mostly techies), battling 498A charges in India, with the likes of Dawood Ibrahim and Osama Bin Laden, is ridiculous. This is a very poor reflection on the integrity and intelligence (or lack of) of officers of the Indian police force, such as “Pussy Politics” Umapathi.

SIF volunteers designated him a pinhead for these actions. You can read about that below:

Umapathi-Pinhead

“Pussy Politics” Umapathi is supposed to have lobbied hard to re-instate RCNs against NRI grooms — to no avail.  I’m sure it hurt to see the end of such a profitable revenue stream.

You can read about that here:

While on the topic of pussy politics, let this be a warning to all you officers of the Indian police force indulging in the same — you are being watched.

Interpol’s decision to eliminate 498A RCNs is a result of persistent efforts by US based NRIs caught up in this racket.  You can read about the elimination of one such RCN against an NRI  here:

A 498A Fighter Gets Interpol To Cancel His RCN

Thank you Interpol for waking up to this extortion racket !!!

Given below is the Interpol most wanted list. As you can see, NRI grooms aren’t amongst them !

Interpol-Most-Wanted____________________________________

India Today’s Coverage Of The SIFF Shimla Meet -2009

Published August 22, 2009 498A News 6 Comments

India Today covered the SIFF National meet in Simla. You can download the pdf here:

IT-SIFF-Coverage (pdf)

Here are the pictures of the SIF activists:

http://www.flickr.com/photos/41332575@N02/

Here is snapshot of the stats printed by India Today

India-Today-SIF-Stats

Here is the coverage of the SIFF Shimla meet:

National Meet - India Today 1

National Meet - India Today 2

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Techie Commits Suicide In Bangalore Jail Due To 498A

Published August 14, 2009 498A News Leave a Comment
Tags:

Click Here For The 498A Survival Kit

It is with sadness that I am posting this.

A techie committed suicide in Bangalore, apparently due to the harassment meted out to him. The 498A was allegedly filed after the divorce took place six months ago.  As usual an idiotic magistrate approved his arrest.

Following the posting of this news at Supari.org, a person named Nandini, purportedly the ex-wife, made a comment on the Supari article. If this Nandini was his ex-wife, here is my question — how did she get to Supari.org, a little known site, so fast and with such a perfect  sob story?

More questions. If Nandini was being subjected to cruelty by her now deceased husband, why did she have a baby with him in the first place. I didn’t have a kid with my ex-wife as I realized the evil she represented, and I didn’t want to gift my child with a mother like her. I think the same principle applies here in Nandini’s case — if her allegations about her husband are true.

Why didn’t she seek help and counseling? Maybe, just maybe, the guy  may have needed professional help. And what did he get? — a 498A six months after a divorce !

Hmm… !, Nandini is quite a grieving little ex-wife, isn’t she?

For the moment, I’m sticking this post to the front page.

Here is Nandini’s comment from Supari.org followed by the coverage in the times of India.

Nanidini-Comments

Coverage from TOI:

Techie______________________________________________

SC: Mil Kicking The DiL Is Not Cruelty

Published August 6, 2009 498a judgments , BHASKAR LAL SHARMA Vs MONICA 3 Comments

The papers have been abuzz with the news of this judgment. What the Supreme Court did was further narrow down the definition of cruelty that 498A can be applied towards.

A bench of Justices S B Sinha and Cyriac Joseph said:

Allegations that appellant No. 2 (mother-in-law) kicked the respondent with her leg and told her that her mother to be a liar may make out some other offence but not the one punishable under Section 498A (cruelty). Similarly, her allegations that the mother-in-law poisoned the ears of her son against the respondent; she gave two used lady suits of her daughter to the complainant and has been given perpetual sermons to the complainant could not be said to be offences punishable under Section 498A. Even threatening that her son may be divorced for the second time could not bring out the offence under Section 498A of the Indian Penal Code.

The hon’ble judges also don’t have any nice things to say about Monika. In a restrained manner, they say:

We have, however, made note of the litigations filed between the parties in great detail. These litigations, if a holistic view is taken, depict a sad state of affairs, namely, that the respondent, on the one hand, intends to take all coercive measures to secure the presence of her husband and the appellants in India in various cases filed by her and, on the other hand, she had repeatedly been making attempts of conciliation.

Nice work Monika. You are very famous now and will live in the blogosphere in infamy!!

The likes of Monika have enabled uniformed criminals to jail over 1,30,000 women since 2004. You can read about these stats here:

NCRB: Over 1,30,000 Women Arrested Under 498A Since 2004

Here is the judgment: Bhaskar Lal Sharma Vs Monika-2009

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We have, however, made note of the litigations filed between the
parties in great detail. These litigations, if a holistic view is taken, depict a
sad state of affairs, namely, that the respondent, on the one hand, intends to
take all coercive measures to secure the presence of her husband and the
appellants in India in various cases filed by her and, on the other hand, she
had repeatedly been making attempts of conciliation.

SC Explains Anticipatory Bail – 2009

Published July 26, 2009 Anticipatory Bail , Savitri devi , savitri agarwal 4 Comments

This judgment is a must read for anyone fearing an arrest in India for any reason. Most of the times, the Indian lawyers don’t know jack about what an anticipatory bail is. One such luminary is a lawyer from the state of Andhra Pradesh, a professed 498A fighter, who famously remarked that a 498a case is an automatic arrest warrant !!

Jackass !!

In 498A cases, the moment you get an anticipatory bail, the police are eliminated as  a factor and you’ve pretty much won the most difficult part of this fight.

Here is one important point to be kept in mind with regard to anticipatory bail:

The filing of First Information Report (FIR) is not a condition precedent to the exercise of power under Section 438. The imminence of a likely arrest   founded on a reasonable belief can be shown to exist even if an FIR is not yet filed.

Here is the coverage from The Hindu

The Supreme Court of India explains the meaning of Anticipatory Bail and lays the conditions for granting it. Here are the 9 guidelines as laid down by a constitution bench, which the  Courts are required to keep in mind while dealing with an application  for grant of anticipatory bail:

i)    Though the power conferred under Section 438 of  the Code can be described as of an extraordinary  character, but this does not justify the conclusion that the power must be exercised in exceptional  cases only because it is of an extraordinary  character. Nonetheless, the discretion under the  Section has to be exercised with due care and circumspection depending on circumstances  justifying its exercise.

ii)   Before power under sub-section (1) of Section 438  of the Code is exercised, the Court must be        satisfied that the applicant invoking the provision  has reason to believe that he is likely to be arrested  for a non-bailable offence and that belief must be  founded on reasonable grounds. Mere “fear” is not  belief, for which reason, it is not enough for the  applicant to show that he has some sort of vague  apprehension that some one is going to make an  accusation against him, in pursuance of which he  may be arrested. The grounds on which the belief of  the applicant is based that he may be arrested for a  non-bailable offence, must be capable of being  examined by the Court objectively. Specific events  and facts must be disclosed by the applicant in  order to enable the Court to judge of the reasonableness of his belief, the existence of which  is the sine qua non of the exercise of power  conferred by the Section.

iii)  The observations made in Balchand Jain’s case  (supra), regarding the nature of the power conferred  by Section 438 and regarding the question whether the conditions mentioned in Section 437 should be  read into Section 438 cannot be treated as conclusive on the point. There is no warrant for  reading into Section 438, the conditions subject to  which bail can be granted under Section 437(1) of  the Code and therefore, anticipatory bail cannot be  refused in respect of offences like criminal breach of  trust for the mere reason that the punishment provided for is imprisonment for life. Circumstances  may broadly justify the grant of bail in such cases  too, though of course, the Court is free to refuse anticipatory bail in any case if there is material  before it justifying such refusal.

iv)   No blanket order of bail should be passed and the  Court which grants anticipatory bail must take care  to specify the offence or the offences in respect of  which alone the order will be effective. While  granting relief under Section 438(1) of the Code,  appropriate conditions can be imposed under        Section 438(2) so as to ensure an uninterrupted  investigation. One such condition can even be that  in the event of the police making out a case of a likely discovery under Section 27 of the Evidence  Act, the person released on bail shall be liable to be  taken in police custody for facilitating the recovery.  Otherwise, such an order can become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed.

v)    The filing of First Information Report (FIR) is not a condition precedent to the exercise of power under Section 438. The imminence of a likely arrest  founded on a reasonable belief can be shown to exist even if an FIR is not yet filed.

vi)   An anticipatory bail can be granted even after an FIR is filed so long as the applicant has not been arrested.

vii)  The provisions of Section 438 cannot be invoked after the arrest of the accused. After arrest, the accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested.

viii) An interim bail order can be passed under Section 438 of the Code without notice to the Public Prosecutor but notice should be issued to the Public Prosecutor or to the Government advocate forthwith and the question of bail should be re-examined in the light of respective contentions of the parties.  The ad-interim order too must conform to the requirements of the Section and suitable conditions    should be imposed on the applicant even at that stage.

ix)   Though it is not necessary that the operation of an order passed under Section 438(1) of the Code be limited in point of time but the Court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of FIR in respect of the matter covered by the order. The applicant may, in such cases, be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonable short period after the filing of the FIR.

Here is the judgment:

SAVITRI AGARWAL Vs STATE OF MAHARASHTRA – 2009

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Indian Laws – Criminal Law And Procedure

Published July 17, 2009 CrPC Leave a Comment

I pulled this from:  http://www.indianchild.com/indian_laws.htm

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Under the constitution, criminal jurisdiction belongs concurrently to the central government and the states. The prevailing law on crime prevention and punishment is embodied in two principal statutes: the Indian Penal Code and the Code of Criminal Procedure of 1973. These laws take precedence over any state legislation, and the states cannot alter or amend them. Separate legislation enacted by both the states and the central government also has established criminal liability for acts such as smuggling, illegal use of arms and ammunition, and corruption. All legislation, however, remains subordinate to the constitution.

The Indian Penal Code came into force in 1862; as amended, it continued in force in 1993. Based on British criminal law, the code defines basic crimes and punishments, applies to resident foreigners and citizens alike, and recognizes offenses committed abroad by Indian nationals.

The penal code classifies crimes under various categories: crimes against the state, the armed forces, public order, the human body, and property; and crimes relating to elections, religion, marriage, and health, safety, decency, and morals. Crimes are cognizable or noncognizable, comparable to the distinction between felonies and misdemeanors in legal use in the United States. Six categories of punishment include fines, forfeiture of property, simple imprisonment, rigorous imprisonment with hard labor, life imprisonment, and death. An individual can be imprisoned for failure to pay fines, and up to three months’ solitary confinement can occur during rare rigorous imprisonment sentences. Commutation is possible for death and life sentences. Executions are by hanging and are rare–there were only three in 1993 and two in 1994–and are usually reserved for crimes such as political assassination and multiple murders.

Indian Courts of law try cases under procedures that resemble the Anglo-American pattern. The machinery for prevention and punishment through the criminal court system rests on the Code of Criminal Procedure of 1973, which came into force on April 1, 1974, replacing a code dating from 1898. The code includes provisions to expedite the judicial process, increase efficiency, prevent abuses, and provide legal relief to the poor. The basic framework of the criminal justice system, however, was left unchanged.

Constitutional guarantees protect the accused, as do various provisions embodied in the 1973 code. Treatment of those arrested under special security legislation can depart from these norms, however. In addition, for all practical purposes, the implementation of these norms varies widely based on the class and social background of the accused. In most cases, police officers have to secure a warrant from a magistrate before instituting searches and seizing evidence. Individuals taken into custody have to be advised of the charges brought against them, have the right to seek counsel, and have to appear before a magistrate within twenty-four hours of arrest. The magistrate has the option to release the accused on bail. During trial a defendant is protected against self-incrimination, and only confessions given before a magistrate are legally valid. Criminal cases usually take place in open trial, although in limited circumstances closed trials occur. Procedures exist for appeal to higher courts.

India has an integrated and relatively independent court system. At the apex is the Supreme Court, which has original, appellate, and advisory jurisdiction. Below it are eighteen high courts that preside over the states and union territories. The high courts have supervisory authority over all subordinate courts within their jurisdictions. In general, these include several district courts headed by district magistrates, who in turn have several subordinate magistrates under their supervision. The Code of Criminal Procedure established three sets of magistrates for the subordinate criminal courts. The first consists of executive magistrates, whose duties include issuing warrants, advising the police, and determining proper procedures to deal with public violence. The second consists of judicial magistrates, who are essentially trial judges. Petty criminal cases are sometimes settled in panchayat courts.

The Penal System in Indian Law

The constitution assigns the custody and correction of criminals to the states and territories. Day-to-day administration of prisoners rests on principles incorporated in the Prisons Act of 1894, the Prisoners Act of 1900, and the Transfer of Prisoners Act of 1950. An inspector general of prisons administers prison affairs in each state and territory.

By the prevailing standards of society, prison conditions are often adequate. Some prison administrators concede that the prevailing conditions of poverty in Indian society contribute to recidivism because a prison sentence guarantees minimal levels of food, clothing, and shelter. Despite this overall view, India’s prisons are seriously overcrowded, prisoners are given better or worse treatment according to the nature of their crime and class status, sanitary conditions are poor, and punishments for misbehavior while incarcerated have been known to be particularly onerous.

Prison conditions vary from state to state. The more prosperous states have better facilities and attempt rehabilitation programs; the poorer ones can afford only the most bare and primitive accommodations. Women prisoners are mostly incarcerated in segregated areas of men’s prisons. Conditions for holding prisoners also vary according to classification.

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Results Of RTI With Regard To SH Bill

Published July 16, 2009 Sexual Harassment 4 Comments

Here are two pdfs that RTI activists were able to extract from the mandarins of the WCD.

They show the concerted attempts being made to eliminate the checks to prevent abuse.

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CrPC Section 4, 188 And Extradition From The CBI’s Site

Published July 14, 2009 454903 1 Comment

The CBI, describes action to be taken under section 188 as:

In case the fugitive criminal is an Indian national, action can also be taken under Section 188 Cr.P.C., 1973 as if the offence has been committed at any place in India at which he may be found. The trial of such a fugitive criminal can only take place with the previous sanction of the Central Government.

They omitted the part about the inquiry of the offence which is contained in the CrPC as described below:

188.Offence committed outside India.- When an offence is committed outside India -

(a) by a citizen of India, whether on the high seas or elsewhere; or

(b) by a person, not being such citizen, on any ship or aircraft registered in India,

he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found:

Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government.

Please understand Section 4 of the CrPC as well:

Section 4 of the Indian Penal Code reads as under:-

4. Extension of Code to extra-territorial offences.-

The provisions of this Code apply also to any offence committed by

(1) any citizen of India in any place without and beyond India;

(2) any person on any ship or aircraft registered in India wherever it may be.

Explanation.In this section the word offence includes every act committed outside India which, if committed in India, would be punishable under this Code.

Illustration: A, who is a citizen of India, commits a murder in Uganda. He can be tried and convicted of murder in any place in India in which he may he found.

The CBI explains extradition at its website. Here is the link:

http://cbi.nic.in/interpol/extradition.php#mea

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Section 4 of the Indian Penal Code reads as under:-
“4. Extension of Code to extra-territorial offences.-
The provisions of this Code apply also to any offence
committed by–
(1) any citizen of India in any place without and beyond
India;
(2) any person on any ship or aircraft registered in India
wherever it may be.
Explanation.–In this section the word “offence” includes
every act committed outside India which, if committed in
India, would be punishable under this Code.
Illustration
A, who is a citizen of India, commits a murder in
Uganda. He can be tried and convicted of murder in any
place in India in which he may he found.”

SC Explains Criminal Conspiracy – Section 120-A, IPC

Published July 14, 2009 498A Jurisdiction , 498a judgments 1 Comment

I am getting ready to start my fight against my ex-wife. Section 120-A, IPC is one of the many cases she will face.

Section 120-A of the I.P.C. defines ‘conspiracy’ to mean that when two or more persons agree to do, or cause to be done an illegal act, or an act which is not illegal by illegal means, such an agreement is designated as “criminal conspiracy.

No agreement except an agreement to commit an offence shall amount to a criminal conspiracy, unless some act besides the agreement is done by one or more parties to such agreement in furtherance thereof.

Section 120-B of the I.P.C. prescribes punishment for criminal conspiracy. It is not necessary that each conspirator must know all the details of the scheme nor be a participant at every stage. It is necessary that they should agree for design or object of the conspiracy. Conspiracy is conceived as having three elements:

(1)   agreement

(2)   between two or more persons by whom the agreement is effected; and

(3)   a criminal object, which may be either the ultimate aim of the agreement, or may constitute the means, or one of the means by which that aim is to be accomplished.

It is immaterial whether this is found in the ultimate objects. The common law definition of ‘criminal conspiracy’ was stated first by Lord Denman in Jones’ case (1832 B & AD 345) that an indictment for conspiracy must “charge a conspiracy to do an unlawful act by unlawful means” and was elaborated by Willies, J. on behalf of the Judges while referring the question to the House of Lords in Mulcahy v. Reg (1868) L.R. 3 H.L. 306 and the House of Lords in unanimous decision reiterated in Quinn v. Leathem 1901 AC 495 at 528 as under:

“A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable of for a criminal object or for the use of criminal means. (emphasis supplied)”

The rest of this case can be read from here:

http://judis.nic.in/supremecourt/qrydis … name=31538

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SC: 498A Case Quashed Under Non-Applicability Of Section 188

Published July 14, 2009 498a judgments Leave a Comment

Foreign Citizen Husband and his Foreign Citizen Kin Can’t Be Booked In India For Harassment Abroad, Says Apex Court
Dhananjay Mahapatra | TNN

New Delhi: This judgment from the Supreme Court is a warning of sorts for those hankering after NRI grooms. Check whether he is still an NRI or has taken citizenship of a foreign country before giving your daughter in marriage to him.   If your daughter’s husband and mother-in-law are of Indian origin but have taken up citizenship of another country, then there is nothing you can do to proceed against them under Indian law, even if they have tortured your daughter at their home abroad and thrown her out.
The son of Fatima Bibi Ahmed Patel, a citizen of Mauritius, had married an Indian girl in April 2002. The couple was staying in Kuwait, from where the Indian girl came back home and lodged a complaint before Navasari magistrate in Gujarat alleging physical and mental torture by her husband. She also alleged that her husband used to consult his mother, Fatima, who used to instigate him. The chief judicial magistrate took cognisance of the offences and issued summons to Fatima on May 30, 2005. Her plea that she was a citizen of Mauritius and hence could not be proceded under Indian law was rejected by the trial court as well as the Gujarat HC.
Allowing her appeal against the trial court’s decision to proceed against her, an SC bench comprising Justices S B Sinha and L S Panta said that as Fatima was a citizen of Mauritius, though she had been visiting India freuently, she could not be proceeded against under Indian law. “If she is not a citizen of India, the order taking cognisance must be held to be illegal,” the bench said. “In view of the fact that the offence is said to have been committed in Kuwait, the provisions of IPC or CrPC cannot be said to have any application,” it added.
The proceedings were initiated illegally and without jurisdiction, the apex court said quashing the proceedings against Fatima.  “The proceedings were initiated illegally and without jurisdiction”Says Supreme corut.  In view of the fact that the offence is said to have been committed outside India, the provisions of IPC or CrPC cannot have any application.

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http://judis.nic.in/supremecourt/qrydis … name=31538

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2008
(Arising out of SLP (Crl.) No.6004 of 2006)

Fatma Bibi Ahmed Patel … Appellant
Versus
State of Gujarat & Anr. …
Respondents

JUDGMENT
S.B. Sinha, J.

1. Leave granted.

2. Interpretation of Section 4 of the Indian Penal Code and Section 188
of the Code of Criminal Procedure fall for our consideration in this appeal
which arises out of a judgment and order dated 12.04.2006 passed by the
High Court of Gujarat at Ahmedabad in Criminal Revision Application No.
358 of 2005 dismissing the Criminal Revision filed by the appellant herein.

3. Son of the appellant Hanif Ahmed Patel was married to the
complainant – respondent on 22.4.2002. Appellant indisputably is a citizen
of Mauritius. Her son and daughter-in-law at all material times were
residing at Kuwait.
A Complaint Petition, however, was filed before the Chief Judicial
Magistrate, Navsari by the said respondent alleging physical and mental
torture by her husband (the first accused). Allegations primarily against the
appellant therein were that the first accused used to consult her and she used
to instigate him.
As the couple was residing at Kuwait, indisputably the entire cause of
action arose at Kuwait. The learned Chief Judicial Magistrate, Navsari,
however, took cognizance of the aforesaid offences and directed issuance of
summons to the appellant by an order dated 30.5.2003.
An application was filed by her stating that the complaint petition
filed without obtaining the requisite sanction under Section 188 of the Code
of Criminal Procedure was bad in law. The same was dismissed.
A joint application with her son was thereafter filed by the appellant
for quashing of the entire complaint petition which was withdrawn.
Appellant, however, filed a fresh application on or about 6.12.2004
raising a contention that as she is a citizen of Mauritius and as the entire
cause of action took place at Kuwait, the order taking cognizance is bad in
law. Whereas the learned trial judge rejected the said plea, the Revisional
Court on a revision application filed by the appellant thereagainst, allowed
the same.
Respondent No. 2 moved the High Court of Gujarat aggrieved
thereby which by reason of the impugned order has been allowed.

4. Mr. Sudarshan Rajan, learned counsel appearing on behalf of the
appellant, submitted that having regard to the provisions contained in
Section 4 of the Indian Penal Code and Section 188 of the Code of Criminal
Procedure, the order taking cognizance as against the appellant was bad in
law. Reliance in this behalf has been placed on Central Bank of India Ltd.
vs. Ram Narain[AIR 1955 SC 36].

5. Mr. Pawan Kumar Bahl, learned counsel appearing on behalf of the
respondent, on the other hand, urged that having regard to the fact that the
appellant having filed an application for quashing earlier on the ground of
non-compliance of the provisions of Section 188 of the Code of Criminal
Procedure as also having filed a quashing application which stood
withdrawn, the said application was not maintainable.
Offences said to have been committed by the appellant in the
complaint petition were under Sections 498A and 506(2) of the Indian Penal
Code. Provisions of the Indian Penal Code and the Code of Criminal
Procedure would, therefore, indisputably apply.
Section 4 of the Indian Penal Code reads as under:-
“4. Extension of Code to extra-territorial offences.-
The provisions of this Code apply also to any offence
committed by–
(1) any citizen of India in any place without and beyond
India;
(2) any person on any ship or aircraft registered in India
wherever it may be.
Explanation.–In this section the word “offence” includes
every act committed outside India which, if committed in
India, would be punishable under this Code.
Illustration
A, who is a citizen of India, commits a murder in
Uganda. He can be tried and convicted of murder in any
place in India in which he may he found.”

Section 188 of the Code of Criminal Procedure reads as under:
“Section 188 – Offence committed outside India.
-When an offence is committed outside India–
(a) by a citizen of India, whether on the high seas or
elsewhere; or
(b) by a person, not being such citizen, on any ship or
aircraft registered in India,
he may be dealt with in respect of such offence as if it had
been committed at any place within India at which he may
be found:
Provided that, notwithstanding anything in any of the
preceding sections of this Chapter, no such offence shall
be inquired into or tried in India except with the previous
sanction of the Central Government.”

In our constitutional scheme, all laws made by Parliament primarily
are applicable only within the country. Ordinarily, therefore, all persons
who commit a crime in India can be tried in any place where the offence is
committed. Section 41 of the Indian Penal Code, however, extends the
scope of applicability of the territorial jurisdiction of the court of India to
try a case, the cause of action of which took place outside the geographical
limits. Parliament indisputably may enact a legislation having extra
territorial application but the same must be applied subject to fulfillment of
the requirements contained therein.
There are materials before us to show that the appellant is a citizen of
Mauritius. She has been visiting India on Visas issued by India. She, thus,
indisputably is not a citizen of India. She might have been staying in India
with her relatives as has been contended by the complainant, but it has not
been denied and disputed that she is not a citizen of India. If she is not a
citizen of India having regard to the provisions contained in Section 4 of the
Indian Penal Code and Section 188 of the Code of Criminal Procedure, the
order taking cognizance must be held to be illegal.
In terms of Section 4 of the Indian Penal Code, the Indian courts will
have jurisdiction to try an accused only if the accused is a citizen of India
even if the offence was committed outside India or by any person on any
ship or aircraft registered in India wherever it may be. Neither of the
aforementioned contingencies is attracted in the instant case. Section 188 of
the Code of Criminal Procedure also deals with offences committed outside
India. Clause (a) brings within its sweep a citizen of India, whether on the
high seas or elsewhere, or by a person, although not citizen of India when
the offence is committed on any ship or aircraft registered in India.
In view of the fact that the offence is said to have been committed in
Kuwait, the provisions of the Indian Penal Code or the Code of Criminal
Procedure cannot be said to have any application.
This aspect of the matter has been considered by this Court in
Central Bank of India Ltd. vs. Ram Narain [supra], wherein it was clearly
held:
“The learned Attorney-General contended that Ram
Narain was at the time when sanction for his prosecution
was given by the East Punjabn Government, a citizen of
India residing in Hodel and that being so, he could be
tried in India being a citizen of India at that moment, and
having committed offences outside India, and that the
provisions of Section 4 I.P.C. and Section 188, Cr. P.C.
were fully attracted to the case.
In our opinion, this contention is not well founded. The
language of the sections plainly means that if at the time
of the commission of the offence, the person committing
it is a citizen of India, then even if the offence is
committed outside India he is subject to the jurisdiction
of the courts in India. The rule enunciated in the
sections is based on the principle that qua citizens the
jurisdiction of courts is not lost by reason of the venue of
the offence. If, however, at the time of the commission
of the offence the accused person is not a citizen of
India, then the provisions of these sections have no
application whatsoever.
A foreigner was not liable to be dealt with in British
India for an offence committed and completed outside
British India under the provisions of the sections as they
stood before the adaptations made in them after the
partition of India. Illustration (a) to Section 4, I.P.C.
delimits the scope of the section. It indicates the extent
and the ambit of this section. It runs as follows:
“(a) A, a coolie, who is a Native Indian
subject commits a murder in Uganda. He can
be tried and convicted of murder in any place
in British India in which he may be found.”
In the illustration, if (A) was not a Native Indian subject
at the time of the commission of the murder the
provisions of Section 4, I.P.C. could not apply to his
case. The circumstance that after the commission of the
offence a person becomes domiciled in another country,
or acquires citizenship of that State, cannot confer
jurisdiction on the courts of that territory retrospectively
for trying offences committed and completed at a time
when that person was neither the national of that country
nor was he domiciled there.”
Strong reliance has been placed by the learned counsel appearing on
behalf of the respondents on Ajay Agarwal vs. Union of India [AIR 1993
SC 1637]. The question which arose for consideration therein was that as to
whether a sanction of Central Government for prosecution in terms of
Section 188 of the Code of Criminal Procedure was necessary. The said
question was answered in the negative stating:

“8. The question is whether prior sanction of the Central
Govt. is necessary for the offence of conspiracy under
proviso to Section 188 of the Code to take cognizance of
an offence punishable under Section 120-B etc. I.P.C. or
to proceed with trial In Chapter VA, conspiracy was
brought on statute by the Amendment Act, 1913 (8 of
1913). Section 120-A of the I.P.C. defines ‘conspiracy’ to
mean that when two or more persons agree to do, or
cause to be done an illegal act, or an act which is not
illegal by illegal means, such an agreement is designated
as “criminal conspiracy. No agreement except an
agreement to commit an offence shall amount to a
criminal conspiracy, unless some act besides the
agreement is done by one or more parties to such
agreement in furtherance thereof. Section 120-B of the
I.P.C. prescribes punishment for criminal conspiracy. It
is not necessary that each conspirator must know all the
details of the scheme nor be a participant at every stage.
It is necessary that they should agree for design or object
of the conspiracy. Conspiracy is conceived as having
three elements: (1) agreement (2) between two or more
persons by whom the agreement is effected; and (3) a
criminal object, which may be either the ultimate aim of
the agreement, or may constitute the means, or one of the
means by which that aim is to be accomplished. It is
immaterial whether this is found in the ultimate objects.
The common law definition of ‘criminal conspiracy’ was
stated first by Lord Denman in Jones’ case (1832 B &
AD 345) that an indictment for conspiracy must “charge
a conspiracy to do an unlawful act by unlawful means”
and was elaborated by Willies, J. on behalf of the Judges
while referring the question to the House of Lords in
Mulcahy v. Reg (1868) L.R. 3 H.L. 306 and the House of
Lords in unanimous decision reiterated in Quinn v.
Leathem 1901 AC 495 at 528 as under:
“A conspiracy consists not merely in the
intention of two or more, but in the agreement
of two or more to do an unlawful act, or to do a
lawful act by unlawful means. So long as such
a design rests in intention only it is not
indictable. When two agree to carry it into
effect, the very plot is an act in itself, and the
act of each of the parties, promise against
promise, actus contra actum, capable of being
enforced, if lawful, punishable of for a criminal
object or for the use of criminal means.
(emphasis supplied)”

The court therein was concerned with a charge of conspiracy. It was
in the aforementioned context opined that no sanction would be required.
R. M. Sahai, J. in his concurring judgment stated:
“Language of the section is plain and simple. It operates
where an offence is committed by a citizen of India
outside the country. Requirements are, therefore, one -
commission of an offence; second – by an Indian citizen;
and third – that it should have been committed outside
the country. Out of the three there is no dispute that the
appellant is an Indian citizen. But so far the other two are
that the conspiracy to forge and cheat the bank was
hatched by the appellant and others in India. Whether it
was so or not, cannot be gone into at this stage.”
The learned counsel submitted that as in the earlier application, the
appellant merely complained of the absence of any sanction, this application
should not be entertained. We do not agree. Principles analogous to res
judicata have no application with regard to criminal cases. An accused has
a fundamental right in terms of Article 21 of the Constitution of India to be
proceeded against only in accordance with law. The law which would apply
in India subject of course to the provisions of Section 4 of the Indian Penal
Code and Section 188 of the Code of Criminal Procedure is that the offence
must be committed within the territory of India. If admittedly, the offence
has not been committed within the territorial limits of India, the provisions
of the Indian Penal Code as also the Code of Criminal Procedure would not
apply. If the provisions of said Acts have no application as against the
appellant, the order taking cognizance must be held to be wholly illegal and
without jurisdiction. The jurisdictional issue has been raised by the
appellant herein. Only because on a mistaken legal advise, another
application was filed, which was dismissed, the same by itself, in our
opinion, will not come in the way of the appellant to file an appropriate
application before the High Court particularly when by reason thereof her
fundamental right has been infringed.
This Court, in a matter like the present one where the jurisdictional
issue goes to the root of the matter, would not allow injustice to be done to a
party. The entire proceedings having been initiated illegally and without
jurisdiction, all actions taken by the court were without jurisdiction, and
thus are nullities. In such a case even the principle of res judicata
(wherever applicable) would not apply.
In Chief Justice Of Andhra Pradesh And Others v. L. V. A. Dixitulu
And Others [AIR 1979 SC 193 at 198], this Court held:
“If the argument holds good, it will make the decision of
the Tribunal as having been given by an authority
suffering from inherent lack of jurisdiction. Such a
decision cannot be sustained merely by the doctrine of
res judicata or estoppel as urged in this case.”
[See also Union of India v. Pramod Gupta (D) by LRs and Ors.,
(2005) 12 SCC 1]

Where a jurisdictional issue is raised, save and except for certain
categories of the cases, the same may be permitted to be raised at any stage
of the proceedings.
6. For the reasons aforementioned, the impugned judgment cannot be
sustained. It is set aside accordingly. The appeal is allowed with costs.
Counsel’s fee assessed at Rs.25,000/- (Rupees twenty five thousand only).

……………………………….J.
[S.B. Sinha]

……………………………….J.
[Lokeshwar Singh Panta]
New Delhi;
May 13, 2008

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SC: Court Has Inherent Power To Grant Interim Bail

Published July 13, 2009 Bail Leave a Comment

I will have the judgment up as soon as I find it.  In the meantime, here is the excerpt from the Hindu:

“Quoting an earlier judgment, the Bench said: “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 application. Of course, it is the discretion of the court concerned to grant interim bail or not, but the power is certainly there.”

In the instant case, Sukhwant Singh and others challenged the order of a single judge of the Punjab and Haryana High Court dismissing their application for anticipatory bail.

The Bench said: “We are not inclined to interfere with the impugned order. If the petitioners surrender before the court concerned and make a prayer for interim bail, pending disposal of the bail application, the same shall be considered and decided the same day.”

Here is the link to the article from The Hindu

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SC: No 498A Convictions In Case Of Delay

Published July 12, 2009 498a judgments Leave a Comment

The Indian Supreme Court has ruled a husband or a relative cannot be convicted of harassing a woman if the complaint is made a considerable amount of time after the alleged act.  A bench of Justices Mukundakam Sharma and B S Chauhan passed the ruling while setting aside the conviction and three-year sentence imposed on Manju Ram Kalita, a resident of Assam fs Kamrup district. The SC while quashing the charge against Kalita under Section 498 (harassment of wife by husband or relatives), however, upheld his conviction for bigamy (IPC 494). The bench noted that in the present case, the complaint was lodged three years after the alleged harassment and hence cannot be sustained.

The SC also stated that :

“10. It is settled legal proposition that if the courts below have recorded the finding of fact, the question of re-appreciation of evidence by the third court does not arise unless it is found to be totally perverse. The higher court does not sit as a regular court of appeal. It’s function is to ensure that law is being properly administered. Such a court cannot embark upon fruitless task of determining the issues by re-appreciating the evidence. This Court would not ordinarily interfere with the concurrent findings on pure questions of fact and review the evidence again unless there are exceptional circumstances justifying the departure from the normal practice. The position may undoubtedly be different if the inference is one  of law from the facts admitted and proved or where the finding of fact is materially  affected by violation of any rule of law or procedure”

Here is the judgment:  MANJU RAM KALITA – Vs- Assam – 2009

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Jurisdiction Of The Criminal Courts In Inquiries And Trials

Published July 12, 2009 498A Jurisdiction Leave a Comment

This is Chapter 13 of the CrPC and deals with jurisdiction of crimes. Here is the text of Chapter 13.

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177.Ordinary place of inquiry and trial.- Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.

178.Place of inquiry or trial.- (a) When it is uncertain in which of several local areas an offence was committed, or

(b) where an offence is committed partly in one local area and partly in another, or

(c) where an offence is a continuing one, and continues to be committed in more local areas than one, or

(d) where it consists of several acts done in different local areas.

it may be inquired into or tried by a Court having jurisdiction over any of such local areas.

179.Offence triable where act is done or consequence ensues.- When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued.

180.Place of trial where act is an offence by reason of relation to other offence.- When an act is an offence by reason of its relation to any other act which is also an offence or which would be an offence if the doer were capable of committing an offence, the first-mentioned offence may be inquired into or tried by a Court within whose local jurisdiction either act was done.

181.Place of trial in case of certain offences.- (1) Any offence of being a thug, or murder committed by a thug , of dacoity, of dacoity with murder, of belonging to a gang of dacoits, or of escaping from custody, may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the accused person is found.

(2) Any offence of kidnapping or abduction of a person may be inquired into or tried by a Court within whose local jurisdiction the person was kidnapped or abducted or was conveyed or concealed or detained.

(3) Any offence of theft, extortion or robbery may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the stolen property which is the subject of the offence was possessed by any person committing it or by any person who received or retained such property knowing or having reason to believe it to be stolen property.

(4) Any offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property which is the subject of the offence was received or retained, or was required to be returned or accounted for, by the accused person.

(5) Any offence which includes the possession of stolen property may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the stolen property was possessed by any person who received or retained it knowing or having reason to believe it to be stolen property.

182.Offences committed by letters, etc.- (1) Any offence which includes cheating may, if the deception is practiced by means of letters or telecommunication messages, be inquired into or tried by any Court within whose local jurisdiction such letters or messages were sent or were received; and any offence of cheating and dishonestly inducing delivery of property may be inquired into or tried by a Court within whose local jurisdiction the property was delivered by the person deceived or was received by the accused person.

(2) Any offence punishable under section 494 or section 495 of the Indian Penal Code(45 of 1860) may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the offender last resided with his or her spouse by the first marriage.

183.Offence committed on journey or voyage.- When an offence is committed whilst the person by or against whom, or the thing in respect of which, the offence is committed is in the course of performing a journey or voyage, the offence may be inquired into or tried by a Court through or into whose local jurisdiction that person or thing passed in the course of that journey or voyage.

184.Place of trial for offences triable together.- Where-

(a) the offences committed by any person are such that he may be charged with, and tried at one trial for, each such offence by virtue of the provisions of section 219, section 220 or section 221, or

(b) the offence or offences committed by several persons are such that they may be charged with and tried together by virtue of the provisions of section 223, the offences may be inquired into or tried by any Court competent to inquire into or try and of the offences.

185.Power to order cases to be tried in different sessions divisions.- Notwithstanding anything contained in the preceding provisions of this Chapter, the State Government may direct that any cases or class of cases committed for trial in any district may be tried in any sessions division:

Provided that such direction is not repugnant to any direction previously issued by the High Court or the Supreme Court under the Constitution, or under this Code or any other law for the time being in force.

186.High Court to decide, in case of doubt, district where inquiry or trial shall take place.- Where two or more Courts have taken cognizance of the same offence and a question arises as to which of them ought to inquire into or try that offence, the question shall be decided -

(a) if the Courts are subordinate to the same High Court, by that High Court;

(b) if the Courts are not subordinate to the same High Court, by the High Court within the local limits of whose appellate criminal jurisdiction the proceedings were first commenced,and thereupon all other proceedings in respect of that offence shall be discontinued.

187.Power to issue summons or warrant for offence committed beyond local jurisdiction.- (1) When a Magistrate of the first class sees reason to believe that any person within his local jurisdiction has committed outside such jurisdiction (whether within or outside India) an offence which cannot, under the provisions of sections 177 to 185 (both inclusive), or any other law for the time being in force, be inquired into or tried within such jurisdiction but is under some law for the time being in force triable in India, such Magistrate may inquire into the offence as if it had been committed within such local jurisdiction and compel such person in the manner hereinbefore provided to appear before him, and send such person to the Magistrate having jurisdiction to inquire into or try such offence, or, if such offence is not punishable with death or imprisonment for life and such person is ready and willing to give bail to the satisfaction of the Magistrate acting under this section, take a bond with or without sureties for his appearance before the Magistrate having such jurisdiction.

(2) When there are more Magistrates than one having such jurisdiction and the Magistrate acting under this section cannot satisfy himself as to the Magistrate to or before whom such person should be sent or bound to appear, the case shall be reported for the orders of the High Court.

188.Offence committed outside India.- When an offence is committed outside India -

(a) by a citizen of India, whether on the high seas or elsewhere; or

(b) by a person, not being such citizen, on any ship or aircraft registered in India,

he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found:

Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government.

189.Receipt of evidence relating to offences committed outside India.- When any offence alleged to have been committed in a territory outside India is being inquired into or tried under the provisions of section 188, the Central Government may, if it thinks fit, direct that copies of depositions made or exhibits produced before a Judicial officer in or for that territory or before a diplomatic or consular representative of India in or for that territory shall be received as evidence by the Court holding such inquiry or trial in any case in which such Court might issue a commission for taking evidence as to the matters to which such depositions or exhibits relate.

Here are some judgments of justice Dhingra which clarify issues of jurisdiction:

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Sequence Of Events In A 498A FIR

Published July 9, 2009 498A Flow Or Sequence , 498a Faq 36 Comments

The credit goes to Mr Gupta for compiling this valuable info.  As and when I have the time, I will incorporate this into The 498A Survival Kit.

Here are the steps:

This is ‘Police Warrant’ case i.e. instituted on police complaint (complaint given by ‘Informant’ i.e. wife in this case)

1] F.I.R.

2] Police Investigation (if at all takes place) & arrest without any necessity of warrant. In some States, D.C.P.’s permission is required for arrest.

3] Bail. Police asks for ‘Police Custody’ (called ‘PC’) for interrogation and recovery of articles (S.406 IPC). Accused submits custodial interrogation is not necessary etc. Then magistrate pass order for ‘Judicial Custody’ (called ‘JC’). Then accused apply for ‘bail’, say from ‘police prosecutor’ (called ‘pp’) and Investigation Officer (called I/O) is asked by court who always strongly objects religiously and then on argument from accused counsel it is granted (or not granted, then go to session to High Court to Supreme Court, at some place it is given). Important fact is that ‘bail’ is always granted from ‘JC’ AND NOT FROM ‘PC’. The process in legal fraternity is called breaking ‘PC’ to ‘JC’.

4] Then no need to attend court. On filing charge sheet, police sends summons or make telephone call to attend court to receive charge sheet, till such time – no need to attend court. However a tab shall always be maintained on chargesheet as many times police/court dont send information to accused at the time of filing chargesheet, but it does not harm accused except that precious time is killed.

5] At the time of receiving chargesheet which is given free of cost to ‘each’ accused by ‘pp’ in court, sometime court asks accused whether they are guilty, normally accused say – not guilty. Check the charge sheet – it is also called ‘Final Report’ – there should be a table showing list of witnesses and documents – many times it is not given, tell court for any discrepancy in it.

6] Then dates, accused must attend them or take exemption u/s205 of Cr.P.C. (permanent till trial starts).

7] Firstly, charges are framed u/s240 Cr.P.C. (if discharge application not made u/s239 Cr.P.C.) when accused can oppose.

8] Then First witness – wife – PW1 – PP asks question to her based on her complaint to take FIR on court record. Then accused’s counsel cross examine her.

9] Then her father (Pw-2), Mother (PW-3), Sister (PW-4) etc. whomsoever I/O has taken as witnesses and taken statements (which are given with chargesheet to accused).

10] Then I/O’s examination-in-chief by PP and cross by accused’s advocate (counsel).

11] With this, prosecution evidence closed. If accused has any witness, they can be called as defence witnesses (normally not called as they may by mistake say something against accused in cross examination). First accused’s advocate will take examination-in-chief and then PP will take cross-examine (prosecutin and defence role changes).

12] Accused are examined by magistrate u/s313 Cr.P.C.

13] Then PP gives argument, then accused’s advocate gives argument.

14] Enjoy – Now order – Acquittal/Sentencing.

15] Detailed written order is given after few days.

To get from point 1 to point 15, will take years. On the flip side, 498A conviction rates are very low, something like 2%. And then there is always the option to file appeals to the HC, SC and god  if a conviction occurs.

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Some Interesting Stats On Arrests Of Women

In 1930, the British govt arrested 17,000 women for their involvement in the Dandi Yatra (Salt March). During 1937 to 1947 (10 Years), they arrested 5,000 women involved in the freedom struggle. From 2004 to 2006, the govt of India arrested 90,000 women of all ages under 498A. On the average, 27,000 women per year are being arrested under this flawed law. These are stats from the NCRB.

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Disclaimer:

The family of the writer was tortured by the Indian Police in an attempt to extort a huge amount of money by holding them hostage. They were held in custody for over a week. The police, in cahoots with the magistrate and the PP, could do this due to the ridiculous allegations made by his embittered ex-wife. She filed the 498A years after the last time he and his family had last seen her. This blog was started to combat the abuses perpetrated in the name of laws meant to protect women, such as S.498A of IPC. It is the corrupt officers of the Indian police force who are the main beneficiaries of this extortion racket. In a sense, this blog is a component in the larger battle against corruption in India. This is about raising the awareness of Indian citizens about their rights so that the police can be shown their place and the law can take the course it is supposed to take. The content of this blog is not legal advice, nor is the intent to slander or defame anyone or any institution, but constitute a set of opinions and observations, based on what has been read or heard in the media or on the Internet and other sources of information. What ever action or umbrage you may take or not take, is your choice and at your risk. The writer disclaims all liabilities, legal or otherwise, that may arise for any reason whatsoever.

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