Archive for the '498a judgments' Category

Supreme Court of India: No Automatic Arrests in 498A Cases

All,

here is the judgment that made waves over the last few days. I’ll have more to say later, but for the moment, here is the judgment from the Supreme Court’s website:

Here are links to the judgement:

I hoped that Ranjana Kumari and the Indian commie dimwits will keep this peace, but I should have known better. They are back peddling their bullshit again, opposing this judgment. You can read about what they have to say here: http://www.independent.co.uk/news/world/asia/controversy-as-indias-highest-court-says-anti-dowry-laws-being-misused-by-disgruntled-wives-9582769.html

I will have a few things to say about the stand of these dimwits later.

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Supreme Court of India
Arnesh Kumar vs State Of Bihar & Anr on 2 July, 2014
Bench: Chandramauli Kr. Prasad, Pinaki Chandra Ghose

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1277 OF 2014

(@SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013)

ARNESH KUMAR ….. APPELLANT

VERSUS

STATE OF BIHAR & ANR. …. RESPONDENTS

J U D G M E N T

Chandramauli Kr. Prasad

The petitioner apprehends his arrest in a case under Section 498-A of the Indian Penal Code, 1860 (hereinafter called as IPC) and Section 4 of the Dowry Prohibition Act, 1961. The maximum sentence provided under Section 498-A IPC is imprisonment for a term which may extend to three years and fine whereas the maximum sentence provided under Section 4 of the Dowry Prohibition Act is two years and with fine.

Petitioner happens to be the husband of respondent no.2 Sweta Kiran. The marriage between them was solemnized on 1st July, 2007. His attempt to secure anticipatory bail has failed and hence he has knocked the door of this Court by way of this Special Leave Petition.

Leave granted.

In sum and substance, allegation levelled by the wife against the appellant is that demand of Rupees eight lacs, a maruti car, an air-conditioner, television set etc. was made by her mother-in-law and father-in-law and when this fact was brought to the appellant’s notice, he supported his mother and threatened to marry another woman. It has been alleged that she was driven out of the matrimonial home due to non- fulfilment of the demand of dowry.

Denying these allegations, the appellant preferred an application for anticipatory bail which was earlier rejected by the learned Sessions Judge and thereafter by the High Court.

There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested. “Crime in India 2012 Statistics. published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for offence under Section 498-A of the IPC, 9.4% more than the year 2011. Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share is 6% out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5% of total crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt. The rate of charge-sheeting in cases under Section 498A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal.

Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the police. There is a battle between the law makers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied in the Cr.PC. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive.

Law Commissions, Police Commissions and this Court in a large number of judgments emphasized the need to maintain a balance between individual liberty and societal order while exercising the power of arrest. Police officers make arrest as they believe that they possess the power to do so. As the arrest curtails freedom, brings humiliation and casts scars forever, we feel differently. We believe that no arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify the reasons thereof. 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 and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation. Despite this legal position, the Legislature did not find any improvement. Numbers of arrest have not decreased. Ultimately, the Parliament had to intervene and on the recommendation of the 177th Report of the Law Commission submitted in the year 2001, Section 41 of the Code of Criminal Procedure (for short ‘Cr.PC), in the present form came to be enacted. It is interesting to note that such a recommendation was made by the Law Commission in its 152nd and 154th Report submitted as back in the year 1994. The value of the proportionality permeates the amendment relating to arrest. As the offence with which we are concerned in the present appeal, provides for a maximum punishment of imprisonment which may extend to seven years and fine, Section 41(1)(b), Cr.PC which is relevant for the purpose reads as follows:

“41. When police may arrest without warrant.-(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person –

(a)x x x x x x

(b)against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely :-

(i) x x x x x

(ii) the police officer is satisfied that such arrest is necessary “

to prevent such person from committing any further offence; or

for proper investigation of the offence; or

to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or

to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or

as unless such person is arrested, his presence in the Court whenever required cannot be ensured,

and the police officer shall record while making such arrest, his reasons in writing:

Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.

X x x x x x

From a plain reading of the aforesaid provision, it is evident that a person accused of offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on its satisfaction that such person had committed the offence punishable as aforesaid. Police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the Court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts. Law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. Law further requires the police officers to record the reasons in writing for not making the arrest. In pith and core, the police office before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 of Cr.PC.

An accused arrested without warrant by the police has the constitutional right under Article 22(2) of the Constitution of India and Section 57, Cr.PC to be produced before the Magistrate without unnecessary delay and in no circumstances beyond 24 hours excluding the time necessary for the journey. During the course of investigation of a case, an accused can be kept in detention beyond a period of 24 hours only when it is authorised by the Magistrate in exercise of power under Section 167 Cr.PC. The power to authorise detention is a very solemn function. It affects the liberty and freedom of citizens and needs to be exercised with great care and caution. Our experience tells us that it is not exercised with the seriousness it deserves. In many of the cases, detention is authorised in a routine, casual and cavalier manner. Before a Magistrate authorises detention under Section 167, Cr.PC, he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested is satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty bound not to authorise his further detention and release the accused. In other words, when an accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is to be satisfied that condition precedent for arrest under Section 41 Cr.PC has been satisfied and it is only thereafter that he will authorise the detention of an accused. The Magistrate before authorising detention will record its own satisfaction, may be in brief but the said satisfaction must reflect from its order. It shall never be based upon the ipse dixit of the police officer, for example, in case the police officer considers the arrest necessary to prevent such person from committing any further offence or for proper investigation of the case or for preventing an accused from tampering with evidence or making inducement etc., the police officer shall furnish to the Magistrate the facts, the reasons and materials on the basis of which the police officer had reached its conclusion. Those shall be perused by the Magistrate while authorising the detention and only after recording its satisfaction in writing that the Magistrate will authorise the detention of the accused. In fine, when a suspect is arrested and produced before a Magistrate for authorising detention, the Magistrate has to address the question whether specific reasons have been recorded for arrest and if so, prima facie those reasons are relevant and secondly a reasonable conclusion could at all be reached by the police officer that one or the other conditions stated above are attracted. To this limited extent the Magistrate will make judicial scrutiny.

Another provision i.e. Section 41A Cr.PC aimed to avoid unnecessary arrest or threat of arrest looming large on accused requires to be vitalised. Section 41A as inserted by Section 6 of the Code of Criminal Procedure (Amendment) Act, 2008(Act 5 of 2009), which is relevant in the context reads as follows:

“41A. Notice of appearance before police officer.-(1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.

(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.

(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.

(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.

Aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1), Cr.PC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police office is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 Cr.PC has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid.

We are of the opinion that if the provisions of Section 41, Cr.PC which authorises the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce. We would like to emphasise that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 Cr.PC for effecting arrest be discouraged and discontinued.

Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following direction:

All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;

All police officers be provided with a check list containing specified sub- clauses under Section 41(1)(b)(ii);

The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;

Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;

Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.

Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.

We direct that a copy of this judgment be forwarded to the Chief Secretaries as also the Director Generals of Police of all the State Governments and the Union Territories and the Registrar General of all the High Courts for onward transmission and ensuring its compliance.

By order dated 31st of October, 2013, this Court had granted provisional bail to the appellant on certain conditions. We make this order absolute.

In the result, we allow this appeal, making our aforesaid order dated 31st October, 2013 absolute; with the directions aforesaid.

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(CHANDRAMAULI KR. PRASAD)

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(PINAKI CHANDRA GHOSE)

NEW DELHI,

July 2, 2014.

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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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 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

_____________________________________________________________________

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

______________________________________________

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

Rudy’s compilation for avenues of possible counter cases
32, 120B,
167 (investigation cannot be completed in 24 hours),
182 (offenses committed by letters),
191 (transfer on application of the accused),
197 (prosecution of judges and public servants),
199 (defamation) ,
200 (examination of complainant) ,
201 (Magistrate not competent), 204,
209 (triable exclusively by Court of Session), 211,
249 (absence of complainant) ,
250 (compensation for accusation), 306,
321 (withdrawl from prosecution) ,
323 (commit to Session Court), 355, 378, 379,
384 (summary dismissal of appeal),
392 (judge of Court of Appeal are equally divided),
406 (criminal breach of trust), 420,
467 (period of limitation), 471,
497 (adultery), 499,
500 (defamation) ,
504 (insult with intent to provoke a breach of peace),
506 (criminal intimidation) , RCR
Damage recovery case u/s 9 of CPC (law of torts):
If she breaks into your home, creates a scene, and goes to ” protection
officer ” and lies that you abused her “physically, emotionally or
economically” , file a damage recovery case u/s 9 of CPC against her. Legally,
you must issue notice on the same day or next day. The suit will continue for
long time. It has no risk.

What I had compiled sometime back, may some repetition wrt Rudy’s options. S.191 :Giving false evidence+ S.340(1) of CrPC for Perjury @ Family/Magistrate Court
matter
S.209 : Dishonest claim
S.211 : False charge of offence made with intent to injure
S.361 : For child – Kidnapping from lawful guardianship
S.378 :Theft
S.383 : Extortion
S.463 : Forgery
S.499: Defamation

Sections which u can check with ur advocate(I dont remember the IPC section offhand for these crimes) – Criminal Intimidation, Criminal breach of trust(non return of loans), Threatening, Abbetment of crime, these may be referring to a period before even your wife filed cases against you.

Some other sections of IPC helpful for husband side:
182 False information, with intent to cause public servant to use his lawful power to the injury of another person
191 Giving false evidence
192 Fabricating false evidence
195A Threatening any person to
give false evidence
196 Using evidence known to be false
197 Issuing or signing false certificate
198 Using as true a certificate known to be false
199 False statement made in declaration which is by law
receivable as evidence
200 Using as true such declaration knowing it to be false
201 Causing disappearance of evidence of offence, or
giving false information to screen offender
202 Intentional omission to give information of offence by person bound to inform
203 Giving false information respecting an offence commited
204 destruction of document to prevent its production as evidence
205 False personation for purpose of act or proceeding in suit or prosecution there are
more

___________________________________________


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Some Interesting Stats On Arrests Of Women

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

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Disclaimer:

The family of the writer was tortured by the Indian Police in an attempt to extort over a $100,000 by holding them in custody for over a week. The police, in cahoots with the magistrate and the PP, did this due to the ridiculous allegations made in a 498A case by his embittered ex-wife. She filed the case years after he and his family had last seen her. Thousands of 498A cases are filed each year in India by women seeking to wreak vengeance on their husbands and in-laws. Enormous sums are extorted from intimidated families implicated in these cases by corrupt Indian police officers and elements of the Indian judiciary. The author and his family haven't bribed any public official nor have they given in to the extortion. This blog aims to raise awareness of due process in India. The content of this blog constitutes, opinions, observations, and publicly available documents. The intent is not to slander or defame anyone or any institution and is the manifestation of the author's right to freedom of expression – with all the protections this right guarantees.

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