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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SC: Court Has Inherent Power To Grant Interim Bail

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

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

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:

• Delhi HC: Jurisdiction in 498A cases
• Justice Dhingra Settles Jurisdiction In NRI 498A Case- Jan 2008
• Justice Dhingra Denies A 498A FIR Quash Petition Citing Section 188

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Sequence Of Events In A 498A FIR

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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SC Explains Conditions For The Quash Of An FIR – 2009

This is a 498A case, Sundar BabuVs State Of Tamil Nadu (CRIMINAL APPEAL NO. 773 OF 2003) – 2009.

Here are the conditions under which an FIR can be quashed:

1  Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

2  Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Sec.156(1) of the Code except under an order of a Magistrate within the purview of Sec.155(2) of the Code.

3  Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

4  Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Sec. 155 (2) of the Code.

5  Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

6   Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

7  Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

Here is the judgment: SC-FIR-498A-Quash – 2009

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