Archive for the 'Habeas Corpus' Category

Due Process And The Bill Of Rights In The Indian Context

While preparing to take the test for my US citizenship, I read  its Constitution and the amendments to its Constitution.  Among the many things I learned, there are two words of great relevance to arrests in 498A cases: Due Process.

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

Due process protects a citizen from the abuse of power by any branch of the state.

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

Siddharam Satlingappa Mhetre – The SC on Due Process

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

So what are the Bill Of Rights?

The Bill of Rights is the name by which the first ten amendments to the United States Constitution are collectively known. The founding fathers of the US, just like Indian freedom fighters such as Gandhi, Nehru, and Sardar Patel, experienced an arrest without just cause. As a result, after the US Constitution was ratified, meaning, after it was accepted as the law of the land, ten amendments were made to it that guaranteed individual protections. These amendments became known as the The Bill Of Rights.

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

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

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

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

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

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

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

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

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

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

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Justice JD Kapoor Clarifies Arrests/Bails/Chargesheets

This is 8 pages of valuable information. If you read this, this you will know more about arrests/bails and chargesheets than anyone else.

I here is the judgment: Court On Its Own Motion Vs CBI-2004: Justice JD Kapoor

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Joginder Kumar Vs State Of UP – 1994

For reasons unknown, I decided to revisit, possibly, the most important judgment ever delivered by an Indian court.

These words of  Justice MN VENKATACHALLIAH renewed my determination to fight.

No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do.

Here is this seminal judgment again, reformatted and presented anew:

Joginder Kumar Vs State Of UP – 1994

Original link to Judis: http://judis.nic.in/supremecourt/qrydisp.asp?tfnm=11479

Given below is the 3rd report of the National Police Commission that this judgment draws on:

Third Report Of The National Police Commission (From BPRD)

Also given below is a fragment of the First Police Commission:

First Report Of The National Police Commission (Fragment From BPRD)

Compliance orders:

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A Compilation Of Police Interrogation Tactics

I pulled this from various sites on the net. The most common tactics of interrogation, used by the Indian police, is to beat a confession out of a suspect or intimidate the suspect into signing a confession.

My family was subjected to the tactic of intimidation. Among the many indignities heaped upon them, they were made to watch a suspect subjected to third degree treatment in their presence.

Here is a list of the most common interrogation techniques:

  • Exaggerating the strength of their case: They tell you that they have recordings, fingerprints, documents, eyewitnesses, etc. All of this may true or all may be false but you simply don’t know because you are isolated. They try and get to you as soon as possible to play on your fears and work that confused state of mind to their advantage.
  • Good cop, bad cop: this is an age-old tactic. The police will work in teams of good cop and bad cop. The bad cop will shout at you and attempt to intimidate you, and may even rough you up. The good cop walks in and will apply the healing solution. He may even yell at the bad cop. Apart from exchanging pleasantries, speak to him about all other things at your own risk.
  • Comparison: They will convince you that they think you are the least to blame for what happened and that, therefore, you will not suffer as severe a sentence. It’s the other guys they are really after and if you cooperate, they will put a good word in for you.
  • Small talk/Chit chatting: What is critical to getting the ultimate admission is to get you talking in the first place – about anything – usually in a “friendly” manner. They will try and find something that you have in common and just have a regular conversation. Then, when you feel comfortable just talking, they will move into the area of the crime. It’s the old story about the frog – try and place him in the boiling pot and he will jump out immediately. But put him in a cold pot and then slowly turn up the heat, he will die before he knows what happened to him.
  • Separation: if the accused, like in most 498A cases, belong to a family, then the family members may be separated and each will be told that the other confessed. Watch out for this. This is the most pernicious tactic in my opinion.
  • Threats And Intimidation: This is the standard operating procedure. The police may threaten to book you under more charges. Wish them the best. These charges need to be proven in court and lies don’t stand up to impartial, intelligent scrutiny. There will threats of physical violence, direct or suggested. Just stand up to it.
  • Promises: They will cut a “deal” with you or “put a good word in” for you. Don’t be fooled. They have no power whatsoever to make deals – only prosecutors can do that and, even then, the judge is never bound by any bargain.
  • Furniture And Spatial Psychology: When in the interview room look out for use of furniture. The power of persuasion is greater when the interviewer removes the barrier of the desk that creates a division of “their” space and “your” space. It is common for the interviewers to touch the suspect in a gesture of support and friendship. If the interviewer is on the opposite side of the table, such a gesture is limited. You best defense is to SHOW NO EMOTION. The whole atmosphere inside a police station is geared towards creating an environment of stress so as to break down the suspects morale. It is easy to accept the hand of friendship in such a situation, DON’T break your silence. You, as the suspect, will have your back to the door. This is done to make you feel apprehensive each time someone comes into the room. In addition, the seat for the solicitor will be out of your eye line. The interviewer will often fall silent, putting pressure on you to fill in these “pregnant pauses” – maintain your silence.
  • Expressions Of Approval: Look out for expressions of approval, both verbal and non verbal. Verbal: “That’s good”, “Yes, go on” and “I like that approach”. Non verbal: smiling, nodding, looking at a fellow interviewer as if to say “She’s/he’s right you know.” These are all indications of the frame of mind of the interviewer. You may be offered compliments e.g. “You’re no fool”, etc. Non verbal compliments such as a little shake of the head as if to say that I admire you for saying that. The principle behind all this is to make the suspect feel good and to encourage further dialogue.

CHRI has brought out a flier about police interrogation —> CHRI Police Interrogation

Have your lawyer with you at all times and maintain your silence. The right against self incrimination is a fundamental right.

The police cannot torture you or extract a confession out of you either. This is illegal and if they do so, they are in contempt of the many judgments of the Supreme Court in this regard.

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Understanding Issues Of Jurisdiction In A 498A Case

Here is a pdf that explains the rules governing jurisdiction of cognizable offenses (498A cases).

Understanding Issues Of Jurisdiction In A 498A Case

Here are a couple of the judgments of Justice Dhingra where I pulled all this information from.

  1. Delhi HC: 498A Jurisdiction Explained
  2. Justice Dhingra Settles Jurisdiction In NRI 498A Case- Jan 2008

I couldn’t find the Satvinder Kaur Judgment, but here is another judgment on jurisdiction by the Supreme Court, the Ajith Abraham case (Chennai).

SC Judgment On Jurisdiction-Ajith Abraham (Chennai)

Finally, NRIs, you are governed by Section 188 of the IPC and to understand it, please read this judgment by Justice Dhingra:

  1. Justice Dhingra Denies A 498A FIR Quash Petition Citing Section 188
  2. Justice Dhingra Settles Jurisdiction In NRI 498A Case- Jan 2008

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Magna Carta, Habeas Corpus And Joginder Kumar Vs State Of UP

This symbolizes everything that’s wrong with the Indian criminal justice system.

The celebrated writ of habeas corpus has been described as `a great constitutional privilege of the citizen’ or `the first security of civil liberty’. The writ provides a prompt and effective remedy against illegal detention and its purpose is to safeguard the liberty of the citizen, which is a precious right not to be lightly transgressed by anyone. The imperative necessity to protect those precious rights is a lesson taught by all history and all human experience. Our founding fathers have lived through bitter years of the freedom struggle and seen an alien government trample upon the human rights of our citizens. It is for this reason that they introduced Article 21 in the Constitution and provided for the writs of habeas corpus, etc.

Habeas Corpus (Latin:”We command that you have the body”) is the name of a legal action, or writ, through which a person can seek relief from unlawful detention of themselves or another person. The writ of habeas corpus has been an important instrument for the safeguarding of individual freedom against arbitrary state action. In order to truly understand this judgment and the meaning of Habeas Corpus, we need a short lesson in history.

The Magna Carta was originally issued in 1215, and was written because of disagreements among Pope Innocent III, King John and the English barons about the rights of the King. Magna Carta required the king to renounce certain rights, respect certain legal procedures and accept that his will could be bound by the law. It explicitly protected certain rights of the king’s subjects, whether free or fettered – most notably the right of Habeas Corpus, meaning that they had rights against unlawful imprisonment. The link between the Magna Carta and this landmark judgment of the Supreme Court are the magic words: Habeas Corpus. Albert Venn Dicey wrote that the Habeas Corpus Acts “declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty”.

This is what former Chief Justice Of India, M.N. Venkatachalliah says (JOGINDER KUMAR Vs. STATE OF U.P.25/04/1994) in this landmark judgment that defined the powers of the police to arrest a person. This judgment is especially applicable in the case of a cognizable offense such as 498A:

“No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter.

There are significant other requirements that need to be fulfilled for an arrest. These are:

1. The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror stricken victims.

2. The accused is likely to abscond and evade the processes of law.

3. The accused is given to violent behavior and is likely to commit further offences unless his movements are brought under restraint.

4. The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again. It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines.

Justice JD Kapoor, in this judgment (Delhi High Court CRLMM 3875/2003 28.01.2004 Court on its own motion Versus Central Bureau of Investigation), says:

“For instance it is the experience of this court that in offences under Sections 498A/406 IPC which are much abused provisions and exploited by the police and the victims to the level of absurdity and are of such nature which can be investigated without arrest and do not fall under the aforesaid category viz. being of highest magnitude and prescribing severest punishment or minimum punishment, every relative of husband, close or distant, old or minor is arrested by the police. By arresting such relatives whose arrest may not be necessary for completing the investigation as it can be completed by recording the statement of victim, her parents and other witnesses, police assumes the role of breaker of homes and not the maker as once any relative of he husband is sent to jail, the marriage ends for all practical purposes and divorce and other miseries are bound to follow. Unless the allegations are of very serious nature and highest magnitude arrest should always be avoided.”

In yet another judgment dated 22.8.2004 (Criminal Misc.Writ Petition No.4861 of 2000, Ajeet Singh alias Muraha Vs. State of U.P. and others), Justice Markandeya Katju, while serving as a judge on the Allahahabad High Court, had the following to say:

“157. Procedure for investigation –

(1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officer not being below such rank as the State Government may, by general or special order, prescribe in this behalf to proceed, to the spot to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender.”

The above provision clearly shows that it is not necessary to arrest in every case wherever a FIR of cognizable offence has been registered. No doubt investigation has to be made in every case where a cognizable offence is disclosed but in our opinion investigation does not necessarily include arrest. Often the investigation can be done without arresting a person, and this legal position becomes clear from section 157(1) of the Cr.P.C. because that provision states that the Police Officer has to investigate the case, and, if necessary, to take measures for the arrest of the offender. The use of words ‘ if necessary’ clearly indicates that the Police Officer does not have to arrest in every case wherever FIR has been lodged and this position has been clarified in Joginder Kumar’s case (supra).

In our country unfortunately whenever an FIR of a cognizable offence is lodged the police immediately goes to arrest the accused. This practice in our opinion is illegal as it is against the decision of the Supreme Court in Joginder Kumar’s case, and it is also in violation of Article 21 of the Constitution as well as section 157 (1) Cr.P.C. No doubt section 157(1) Cr.P.C. gives a police officer discretion to arrest or not, but this discretion cannot be exercised arbitrarily and it must be exercised in accordance with the principles laid down in Joginder Kumar’s case (supra).”

Keeping the following judgments in mind, I am really interested in seeing how a grandma or a granddad, kids,  aging parents and young siblings can fall into any of the categories described by Justice M.N. Venkatachalliah. The police cannot arrest a citizen without an investigation and without justification. The police will say that 498A is a cognizable offence. By cognizable, it means they have to register an FIR and INVESTIGATE not effect an immediate arrest. Think about it. If a king has been stripped of his power to arrest without cause, way back in 1215, how can the police still claim to have that power, especially since Habeas Corpus is incorporated in The Constitution Of India under Article 32?

To summarize, the police have the discretionary power to arrest you, but they need to justify the arrest and the Supreme Court has established that some investigation must be done before an arrest is made and only if necessary.

Given below are the orders of the Delhi Commissioner of Police which complies with the order of the Supreme Court under this  judgment:

Delhi Police: No 498A Arrests Without DCP’s Permission

Here is the pdf of Joginder Kumar Vs State Of UP:

Joginder Kumar Vs State Of UP-Apr/25/1994

Here is the link to the judgment of the Allahabad HC, reiterating Joginder Kumar Vs State Of UP:

Allahabad HC On Joginder Kumar Vs State Of UP

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What Does An FIR Form Look Like?

I found this at the NCRB site. The forms are possibly translated into regional languages. This is a 21 page document, so be patient while it loads.

Here is the english version of an FIR from the NCRB site

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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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