D.K. Basu Vs State of West Bengal on 18 Dec 1996

Posted on April 26, 2022 by ShadesOfKnife

A division bench of Apex Court laid down certain guidelines to be followed in cases of arrest and detention till legal provisions are made in that behalf as preventive measures. The said guidelines read as follows:-

(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a
relative of the arrestee.
(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well.
(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
(11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.

Citations : [1997 ACR SC 21 277], [1997 AIR SC 610], [1997 ALD CRI 1 248], [1998 BLJR 1 161], [1997 CRILJ 743], [1996 CRIMES SC 4 233], [1997 GLR 2 1631], [1997 JT SC 1 1], [1997 RCR CRIMINAL 1 372], [1997 RLW SC 1 94], [1996 SCALE 9 298], [1997 SCC 1 416], [1996 SUPP SCR 10 284], [1997 SCC CRI 92], [1996 SUPPSCR 10 284]

Other Sources :

https://indiankanoon.org/doc/501198/

https://www.casemine.com/judgement/in/5609ace1e4b014971140fee9#

Dr. Rini Johar and Anr Vs State of MP and Ors on 03 Jun 2016

Posted on April 26, 2022 by ShadesOfKnife

A division bench of Supreme Court granted compensation to victims of police harassment, while quashing the criminal proceedings.

From Para 27,

27. In the case at hand, there has been violation of Article 21 and the petitioners were compelled to face humiliation. They have been treated with an attitude of insensibility. Not only there are violation of guidelines issued in the case of D.K. Basu (supra), there are also flagrant violation of mandate of law enshrined under Section 41 and Section 41-A of CrPC. The investigating officers in no circumstances can flout the law with brazen proclivity. In such a situation, the public law remedy which has been postulated in Nilawati Behra (supra), Sube Singh v. State of Haryana9, Hardeep Singh v. State of M.P.10, comes into play. The constitutional courts taking note of suffering and humiliation are entitled to grant compensation. That has been regarded as a redeeming feature. In the case at hand, taking into consideration the totality of facts and circumstances, we think it appropriate to grant a sum of Rs.5,00,000/- (rupees five lakhs only) towards compensation to each of the petitioners to be paid by the State of M.P. within three months hence. It will be open to the State to proceed against the erring officials, if so advised.

Dr. Rini Johar and Anr Vs State of MP and Ors on 03 Jun 2016

Citations : [2016 AIOL 3407], [2016 SCC ONLINE SC 594], [2016 SCC 11 703], [2017 SCC CRI 1 364], [2016 AIR SC 2679], [2016 AIC 163 98], [2016 CRI LJ 3156], [2016 GUJ LH 2 607], [2016 KLJ 3 613], [2016 KLT 3 502]

Other Sources :

https://indiankanoon.org/doc/103942103/

https://www.casemine.com/judgement/in/5790b545e561097e45a4e6b3

Geo Varghese Vs State of Rajasthan and Anr on 05 Oct 2021

Posted on April 25, 2022 by ShadesOfKnife

A division bench of Apex Court held that, there is no mens rea, on part of Appellant-accused, to abet the suicide of the Class 9 student, therefore necessary ingredient for attracting 306 IPC.

From Para 35,

39. Insofar as, the suicide note is concerned, despite our minute examination of the same, all we can say is that suicide note is rhetoric document, penned down by an immature mind. A reading of the same also suggests the hypersensitive temperament of the deceased which led him to take such an extraordinary step, as the alleged reprimand by the accused, who was his teacher, otherwise would not ordinarily induce a similarly circumstanced student to commit suicide.
40. In the absence of any material on record even, prima-facie, in the FIR or statement of the complainant, pointing out any such circumstances showing any such act or intention that he intended to bring about the suicide of his student, it would be absurd to even think that the appellant had any intention to place the deceased in such circumstances that there was no option available to him except to commit suicide.
41. In the absence of any specific allegation and material of definite nature, not imaginary or inferential one, it would be travesty of justice, to ask the
appellant-accused to face the trial. A criminal trial is not exactly a pleasant experience and the appellant who is a teacher would certainly suffer great prejudice, if he has to face prosecution on absurd allegations of irrelevant nature.
42. Bearing in mind the factual aspects of the case delineated herein above and the legal principles enunciated by a series of pronouncements of this Court discussed herein above, we are of the view that High Court was not justified in dismissing the application under section 482 CrPC for quashing the First Information Report in exercise of its inherent jurisdiction.
43. We are conscious of the pain and suffering of the complainant who is the mother of the deceased boy. It is also very unfortunate that a young life has been lost in this manner, but our sympathies and the pain and suffering of the complainant, cannot translate into a legal remedy, much less a criminal prosecution.

Geo Varghese Vs State of Rajasthan and Anr on 05 Oct 2021

Citations :

Other Sources :

Bar Council of Kerala Vs Raju Y and Anr on 04 Jan 2019

Posted on April 24, 2022 by ShadesOfKnife

Supreme Court refused (dismissed summarily) to consider the SLPs filed by Bar Council of Kerala against the decision of the division bench of Kerala High Court upon a writ appeal from here (including one filed against T.Koshy, Diary No. 43042/2018), which held that Bar Council (of any State or India) do not have power to prescribe any fee for the enrolment, either in the form of enrolment fee or special fee. .

2019-01-04 Bar Council Of Kerala Vs Raju Y and Anr on 04 Jan 2019

Citations:

Other Sources :

Index of Bar Council Antics here.

Bar Council of Kerala Vs T.Koshy on 12 Apr 2018

Posted on April 24, 2022 by ShadesOfKnife

A division bench of Kerala High Court (Order written by Chief Justice!) upon a writ appeal from here) held that Bar Council (of any State or India) do not have power to prescribe any fee for the enrolment, either in the form of enrolment fee or special fee. This was eventually taken to Supreme Court where the Bar Council failed to convince the Apex Court here.

From Para 7,

7.Thus the surviving question is whether the fixation of special fee is encompassed by the conditions which the Bar Council is entitled to prescribe in the rules made by it in view of section 24(1)(e) and section 28(2)(d). As we have already seen and as found by the learned single Judge, in section 24(1)(f), the Legislature itself has prescribed the enrolment fee payable by a candidate applying for enrolment with a Bar Council of a State. Once the legislature has prescribed enrolment fee, another fee, be it called a special fee or anything else, can legitimately be prescribed by a State Bar Council or any other authority only if there is an express legislative sanction therefor. In so far as section 24(1)(e) is concerned, all that it empowers the State Bar Council is to specify in the rules made by it under Chapter III of the Act the other conditions that a candidate should fulfill for enrolment. That rule making power also finds reflection in section 28(2)(d) which provides for the power of the Bar Council to make rules prescribing the conditions subject to which a person could be admitted as an advocate on its rolls. These provisions, in our view, only deal with the eligibility conditions and those conditions do not empower the Bar Council to prescribe any fee for the enrolment, either in the form of enrolment fee or special fee. Therefore, the prescription of special fee as done by the Bar Council of Kerala is totally ultra vires its powers as conferred under the Advocates Act, 1961.

2018-04-12 The Bar Council of Kerala Vs T.Koshy on 12 Apr 2018

Citations :

Other Sources :

https://www.casemine.com/judgement/in/5b59b5e74a93261b1dbe8e49

Index of Bar Council Antics here.

Bar Council of Kerala Vs T.Koshy on 30 Nov 2016

Posted on April 24, 2022 by ShadesOfKnife

A wonderful judgment from a single judge bench of Kerala High Court held as follows:

2016-11-30 The Bar Council of Kerala Vs T.Koshy on 30 Nov 2016

Citations :

Other Sources :

This decision was upheld by a division bench of Kerala High Court here and Supreme Court refused to consider the SPLs filed by Bar Council of Kerala here.

Vipin Rajput Vs State of MP on 13 Apr 2022

Posted on April 23, 2022 by ShadesOfKnife

High Court of MP said that, the Advocates would be answerable for the consequences suffered by the clients if the non-appearance was solely on the ground of a strike call..

From Para 6,

6. From the impugned order, it is clear that on 28.12.2021 Ranjana Chauhan (PW-18) had appeared and her examination-in-chief was recorded and in spite of various judgments passed by the Supreme Court as well as High Court, by which strike by the lawyers has been declared to be illegal, the lawyers were abstaining from work. Thereafter, at the request of the applicant, cross-examination of Ranjana Chauhan (PW-18) was deferred for the next date and on the next date, i.e., 29.12.2021 counsel for the applicant did not cross-examine her. The case was then adjourned to 11.01.2022 and on the said date also, counsel for the applicant did not cross-examine Ranjana Chauhan (PW-18). Thus, it is clear that not only, the lawyers were abstaining from work contrary to the judgment passed by the Supreme Court in the case of Ex-Capt. Harish Uppal Vs. Union of India and another reported in (2003) 2 SCC 45, but the counsel for the applicant was out and out to harass the prosecution witness Ranjana Chauhan (PW-18) as he did not cross-examine her in spite of an opportunity given by the Trial Court on 29.12.2021 and 11.01.2022.

From Para 10,

10. Thus, it is clear that the Advocates would be answerable for the consequences suffered by the clients if the non-appearance was solely on the ground of a strike call. On 28.12.2021 the prosecution witness was not cross-examined because the lawyers were abstaining from work. The Bar cannot justify its strike merely by saying that they are not on strike, but they are abstaining from work. Strike and abstaining from work is one and the same thing. In spite of the fact that the lawyers were on illegal strike by calling it as abstaining from work, the Trial Court fixed the case for the next date, i.e., 29.12.2021 for cross-examination of prosecution witness Ranjana Chauhan (PW-18). However, in spite of that, the counsel for the applicant did not cross-examine her. Thereafter, the case was again fixed for 11.01.2022 and on the said date also, counsel for the applicant did not cross-examine her.

From Para 11 and 12,

11. It is submitted by the counsel for the applicant that since the trial involves serious disputed questions of facts and law, therefore, counsel for the applicant was required to make preparation for cross-examining the prosecution witness and, therefore, he could not cross-examine her on 11.01.2022 and further it was already 5:15 PM.
12. The submission made by the counsel for the applicant is not acceptable. The Trial is pending since 08.02.2017, i.e., the date on which the charges were framed. Even after a long five years of pendency of trial, if the counsel for the applicant has not prepared the case, then only he is to be blamed.
13. So far as the contention of the counsel for the applicant that since it was already 5:15 PM, therefore, he did not cross-examine her is concerned, it is clear from the order sheet of the Trial Court that the witness had appeared at 3:00 PM but pass over was sought by the counsel for the applicant. If the Court had accommodated the counsel by passing over the matter, then the counsel cannot make a complaint that since working hours were over, therefore, he had a right to refuse to cross-examine the witness.

From Para 14,

14. Under these circumstances, this Court is unable to accept the contention of the counsel for the applicant that the counsel is ready to pay the compensation as well as expenses to the witness out of his own pocket. If the applicant has engaged a lawyer who is not serious towards his profession, then the applicant has a remedy to approach the Bar Council and if the counsel for the applicant was working as per the instructions of the applicant, then the applicant cannot run away from his liability of not cross-examining the prosecution witness Ranjana Chauhan on 28.12.2021, 29.12.2021 and 11.01.2022.

From Para 16,

16. However, liberty is granted to the applicant that in case, if his counsel had acted contrary to his instructions and did not cross-examine the witness in spite of his clear instructions, then he shall have a remedy of filing a civil suit for claiming compensation. He shall also have a remedy to approach the Bar Council against his local counsel for abstaining from work in spite of the law laid down by the Supreme Court in the case of Ex-Capt. Harish Uppal (supra).

Vipin Rajput Vs State of MP on 13 Apr 2022

Citations :

Other Sources :

IPC 309 – Attempt to commit suicide

Posted on April 23, 2022 by ShadesOfKnife

Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year or with fine, or with both.

Red Lynx Confederation Vs Union of India on 11 Sep 2020

Posted on April 23, 2022 by ShadesOfKnife

A Full Bench of Apex Court held as follows:

Issue notice to the learned Attorney General for India, calling upon the Union of India to justify the validity of section 115 of the Mental Healthcare Act, 2017 which virtually negates section 309 IPC.

Red Lynx Confederation Vs Union of India on 11 Sep 2020

Citations :

Other Sources :

https://indiankanoon.org/doc/6356231/

Kamatchi Vs Lakshmi Narayanan on 13 Apr 2022

Posted on April 14, 2022 by ShadesOfKnife

A Full Bench of Apex Court (Justice Ravindra Bhat’s name is missing in the judgment PDF), while overruling the decision in Dr.P.Pathmanathan case here, held that, limitation under section 468 CrPC does not apply to DV cases filed under Section 12 of the Act. They are not defined as crimes under the Act.

From Paras 20 and 21,

20. It is thus clear that the High Court wrongly equated filing of an application under Section 12 of the Act to lodging of a complaint or initiation of prosecution. In our considered view, the High Court was in error in observing that the application under Section 12 of the Act ought to have been filed within a period of one year of the alleged acts of domestic violence.
21. It is, however, true that as noted by the Protection Officer in his Domestic Inspection Report dated 2.08.2018, there appears to be a period of almost 10 years after 16.09.2008, when nothing was alleged by the appellant against the husband. But that is a matter which will certainly be considered by the Magistrate after response is received from the husband and the rival contentions are considered. That is an exercise which has to be undertaken by the Magistrate after considering all the factual aspects presented before him, including whether the allegations constitute a continuing wrong.
22. Lastly, we deal with the submission based on the decision in Adalat Prasad. The ratio in that case applies when a Magistrate takes cognizance of an offence and issues process, in which event instead of going back to the Magistrate, the remedy lies in filing petition under Section 482 of the Code. The scope of notice under Section 12 of the Act is to call for a response from the respondent in terms of the Statute so that after considering rival submissions, appropriate order can be issued. Thus, the matter stands on a different footing and the dictum in Adalat Prasad would not get attracted at a stage when a notice is issued under Section 12 of the Act.

Kamatchi Vs Lakshmi Narayanan on 13 Apr 2022

Citations :

Other Sources :

https://indiankanoon.org/doc/147915185/

https://www.lawyersclubindia.com/judiciary/court-entitled-to-take-cognizance-where-the-complaint-was-filed-within-the-limitation-period-sc-in-kamatchi-vs-lakshmi-narayanan-5857.asp

https://www.livelaw.in/top-stories/limitation-period-us-468-crpc-not-applicable-application-us-12-domestic-violence-supreme-court-kamatchi-vs-lakshmi-narayanan-2022-livelaw-sc-370-196595

https://www.barandbench.com/news/application-under-section-12-of-domestic-violence-act-need-not-be-filed-within-1-year-of-alleged-act-of-domestic-violence-supreme-court

Earlier decision of Madras High Court here.

Index of DV cases here.

Shades of Knife

True Colors of a Vile Wife

Author: ShadesOfKnife

D.K. Basu Vs State of West Bengal on 18 Dec 1996

Dr. Rini Johar and Anr Vs State of MP and Ors on 03 Jun 2016

Geo Varghese Vs State of Rajasthan and Anr on 05 Oct 2021

Bar Council of Kerala Vs Raju Y and Anr on 04 Jan 2019

Bar Council of Kerala Vs T.Koshy on 12 Apr 2018

Bar Council of Kerala Vs T.Koshy on 30 Nov 2016

Vipin Rajput Vs State of MP on 13 Apr 2022

IPC 309 – Attempt to commit suicide

Red Lynx Confederation Vs Union of India on 11 Sep 2020

Kamatchi Vs Lakshmi Narayanan on 13 Apr 2022