Delhi ASJ Pratibha Rani Holds Cops in Contempt For 498A Arrests

Excerpt from the order:

“13. Reverting to the facts of the present case, I am of the considered view that the directions given above by Hon’ble High Court of Delhi have been violated by the respondents. The Sanctioning Authority is trying to justify its action. This shows that it has scant regard for process of law and decision of Hon’ble High Court. I find it a fit case for informing Commissioner of Police as to how his subordinates are working. I hope that the Commissioner of Police would personally look into the matter and take strong action against defiant officers under intimation to undersigned.”

Here is the copy of the order:   Delhi ASJ Pratibha Rani Holds Cops in Contempt

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Chennai HC Justice Regupathy’s Orders On 498A Arrests

Here is the gist of this order.

====================

IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.08.2008
CORAM
THE HON’BLE MR. JUSTICE R.REGUPATHI
M.P. No.1 of 2008
in
Crl.O.P. No.10896 of 2008

ORDER
Pursuant to the direction of this Court dated 07.07.2008 to file compliance report, the Director General of Police in consultation with the Government, has issued the following Circular Memorandum:-
” Circular Memorandum Sub- Filing of cases registered under Dowry Death / Suicide in All Women P.S. – Instructions
issued.
*****
The Honorable High Court has issued the following observation in M.P. No.1/2008 in Criminal Original Petition No.10896/2008 filed by Tr.Romaiah.
i) Except in cases of Dowry Death/suicide and offences of serious nature, the Station House Officers of the All Women Police Stations are to register F.I.R. only on approval of the Dowry Prohibition Officer concerned.
ii) Social workers/mediators with experience may be nominated and housed in the same premises of All Women Police Stations along with Dowry Prohibition Officers.
iii) Arrest in matrimonial disputes, in particular arrest of aged, infirm, sick persons and minors, shall not be made by the Station House Officers of the All Women Police Stations.
iv) If arrest is necessary during investigation, sanction must be obtained from the Superintendent of Police concerned by forwarding the reasons recorded in writing.
v) Arrest can be made after filing of the final report before the Magistrate concerned if there is non-cooperation and abscondance of accused persons, and after receipt of appropriate order (Non-Bailable Warrant).
vi) Charge sheet must be filed within a period of 30 days from the date of registration of the F.I.R. and in case of failure, extension of time shall be sought for from the jurisdiction Magistrate indicating the reasons for the failure.
vii) No weapon including Lathis/physical force be used while handling cases at the All Women Police Stations.
viii) Complainants/victims should be provided with adequate security/accommodation at Government Home and interest of the children must be taken care of.
ix) Sridana properties/movables and immovable to be restored at the earliest to the victims/complainants and legal aid may be arranged for them through Legal Services Authority for immediate redressal of their grievances.
2) The Commissioners of Police in cities and Superintendents of Police in Districts are requested to strictly follow the above instructions without any deviations.
3) Receipt of the same should be acknowledged.
Sd/- (29.07.2008)
For Director General of Police.”

=======

Here is a copy of the order: Chennai HC Justice Regupathy’s Orders On 498A Arrests

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RTI Templates From MyNation

I start with a thanks to MyNation for this compilation of RTI formats.

Here is the list:

How to write Second Appeal under RTI?

By MyNation ⋅ March 30, 2010 ⋅ One comment

How to write First Appeal under RTI?
Second Appeal
Kindly follow these guidelines for filling Second Appeal at Central Information Commission.

Fill in the above appeal/complaint form, index and chronological order of progress. If you are filing appeal remove ‘complaint/complainant’ words. If complaint is being filed, cut words “second appeal/appellant”
Get [...]

How to write First Appeal under RTI ?

By MyNation ⋅ March 30, 2010 ⋅ Post a comment

How to write First Appeal under RTI?
First Appeal
Simple Guidelines to follow while filing 1st Appeal under Right to Information Act 2005.
1. First appeal has to be filed within 30 days from date of receipt of decision of CPIO by the applicant with First Appellate Authority (FAA).
2. If no reply is received [...]

3rd Party Passport Details are Allowed

By MyNation ⋅ February 23, 2010 ⋅ Post a comment

Central Information Commission
CIC/OK/A/2008/987/AD
Dated December 22, 2008
Name of the Appellant : Mr.Ansari Masud A.K
192-Kutbi Manzil, Flat No.10
CST Road, Kurla (W)
Mumbai 400 070
Name of Public Authority : The CPIO
Ministry of External Affairs
Regional Passport Office
Worli
Mumbai 400 025
Background
1. The RTI request was filed on 14.3.07. The Appellant requested for information about the passport and other enclosures of passport of [...]

RTI – Husband can get Wife PF details

By MyNation ⋅ January 25, 2010 ⋅ Post a comment

Central Information Commission
2nd Floor, August Kranti Bhawan,
Bhikaji Cama Place, New Delhi – 110 066
Decision No.1816/IC(A)/2008
F. No.CIC/MA/A/2007/00583
Dated, the 10th January, 2008
Name of the Appellant: Sh. Ashish Kumar Tiwari
Name of the Public Authority: Employees’ Provident Fund Organisation
Facts:
1. The appellant was heard on 9/1/2008.
2. The appellant has asked for the details of PF account in respect of his [...]

Complaint to IT office – Sample Format

By MyNation ⋅ December 14, 2009 ⋅ Post a comment

DGIT (Investigations)
Income Tax Department
Deptt of Revenue
3rd Floor, A Center
E-2, Jhandewalan Extn
New Delhi- 110055.

SUBJECT: - For investigation into source of income and tax liabilities of Mother-in-law                      , father in law                   ,  Wife              and      (Brother of father-in-law)

Honorable Sir / Madam,
I,          , R/o                 ,  wish to bring to your kind notice the following [...]

Police Case dairy through RTI

By MyNation ⋅ December 7, 2009 ⋅ Post a comment

Police Station House Diary / Police dairy OR case dairy can be retrieved through RTI ACT. Most of the time Police will deny but you have to draft RTI accordingly and cleverly.
Though Criminal Procedure Code, Section 172 reads as below:
172. Diary of proceeding in investigation.
(1) Every police officer making an investigation under this Chapter [...]

Public is entitled to have certified copy of FIR

By MyNation ⋅ November 25, 2009 ⋅ Post a comment

IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
W.P. No. 5474 (W) of 2007
Sardar Depinder Singh Bath & ors. – Petitioners
Versus
State of West Bengal & ors.
Respondents
Mr. Kishore Dutta
Ms. Sumita Shaw
for the petitioner
Mr. Joy Bhattacharya
for the State
Mr. Samiran Giri
for the respondent no.6
Before the Hon’ble Justice Dipankar Datta
Heard on : 22.2.2008
Judgment on :10.3.2008
It is [...]

3rd Party Information allowed under RTI

By MyNation ⋅ November 4, 2009 ⋅ Post a comment

Central Information Commission
Appeal No.CIC/WB/A/2008/01390-SM dated 23-04-2008
Right to Information Act-2005-Under Section (19)
Dated: 28 October 2009
Name of the Appellant
:Shri M.L.Jain
H – 102, Raj Nagar – II,
Palam Colony,
New Delhi – 110 045.
Name of the Public Authority
:CPIO, O/o the Deputy Commissioner of Police, South West District,
New Delhi.
The Appellant was present in person.
On behalf of the Respondent, the following were [...]

RTI format for Stridhan n DP3

By MyNation ⋅ October 7, 2009 ⋅ Post a comment

THE RIGHT TO INFORMATION ACT 2005

Date: date
To
The CPIO
O/o The Superintendent of Police XXXXXX
address
Subject:  Request for information required under RTI Act 2005

Ref: My complaint dated 4-Oct-2009 sent through speed post no. ABCDEF1234IN (copy enclosed) for registration of case against Mrs. xxxxxxxxx and accomplices under section 3 of dowry prohibition act, 1961.
Dear Sir,
With reference to my complaint (copy [...]

RTI rcoganised- Right to copies established

By MyNation ⋅ August 5, 2009 ⋅ One comment

IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE: 27.2.2008.
CORAM
THE HON’BLE MR.JUSTICE M.JEYAPAUL
Crl.O.P.No.18533 of 2007
J.M.Arumugham Petitioner
vs.
1. State rep by
The Deputy Superintendent of Police,
Vigilance and Anti-corruption Wing, Salem.
2. Mr.S.Arumugam
3. Mr.A.Rajendran
4. Ms.Santhi
5. Ms.Brinda
6. Ms.Nirmala
7. Ms.Ramanayaki
8. Ms.Leela Respondents
Criminal Original Petition filed under section 482 Cr.P.C. seeking to set aside the order dated [...]

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Article 36: The Vienna Convention on Consular Relations (VCCR)

The gist of this treaty is that:

Under Article 36 of the Vienna Convention on Consular Relations, 1963 (VCCR), local authorities must notify all detained foreigners “without delay” of their right to have their consulate informed of their detention. At the request of the national, the authorities must then notify the consulate without delay, facilitate unfettered consular communication and grant consular access to the detainee. Consuls are empowered to arrange for their nationals’ legal representation and to provide a wide range of humanitarian and other assistance, with the consent of the detainee. Local laws and regulations must give “full effect” to the rights enshrined in Article 36. The USA ratified the VCCR without reservations in 1969; so fundamental is the right to consular notification and access that the US Department of State considers it to be required under customary international law in all cases, even if the detainee’s home country has not signed the VCCR. As of 1 January 2000, at least 167 countries were parties to the VCCR.

More information can be had from here: http://www.internationaljusticeproject.org/nationalsInstruments.cfm

A copy of the treaty can be downloaded from the UN:  The Vienna Convention on Consular Relations

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Due Process And The Bill Of Rights In The Indian Context

I renounced my Indian citizenship and became the 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 abuse of power by any branch of the state.

You read about the Indian Suprene Court’s views on Due Process here:

Siddharam Satlingappa Mhetre – The SC on Due Process

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 of the US, just like Indian freedom fighters such as Gandhi, Nehru, and Sardar Patel, experienced an arrest without just cause. 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. These amendments became known as the 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.

Indian citizens have to understand that the Indian Constitution, derived from the US Constitution and its Bill Of Rights, confers the same essential rights as the US Constitution.

This post is an attempt on my part to encourage Indians to assert their right to Due Process.

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SC: Magistrate Is Not A Silent Spectator – 1997

“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.”

Here is the judgment:    Pepsi Foods vs Special Judicial Magistrate Nov 1997

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A Pledge For The Indian Judiciary

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

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

Here is the pdf of the fully scanned document:

The Gazette of India (pdf)

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Thinking Of Getting Married? Advice From Divorcee Anne Heche

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

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Interpol’s Most Wanted – NRI Grooms Not Wanted

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.

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:

“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 !

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

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

Here is the coverage of the SIFF Shimla meet:

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Techie Commits Suicide In Bangalore Jail Due To 498A

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.

Coverage from TOI:

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SC: Mil Kicking The DiL Is Not Cruelty

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

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

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

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.

• Sexual Hassement
• SH-Bill-Comments
• SH Bill 2nd Inspection Record File Notings

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

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

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

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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