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Category: Bare Acts or State Amendments or Statutes or GOs or Notifications issued by Central or State Governments

Criminal prosecution of Public Servant (includes a Judge or Magistrate or a Police office)

Posted on August 24, 2020 by ShadesOfKnife

Read the 2013 Amendment made to General Penal and Procedural laws of India. All amendments made to CrPC are here.

In this amendment, apart from inserting new sections (around women-protection) into prevailing laws, the following helpful sections were brought in.

  • Judge or Magistrate or a public servant may be prosecuted as per procedure laid out u/s sec 197 CrPC
  • New Cognizable and Bailable offence u/s 166A was inserted into IPC which can be invoke against police if they violate laws.
  • Per the new Explanation given to sec 197(1) CrPC, no sanction is required to prosecute the police. Karnataka High Court clearly explains this here.

Explanation follows…


PART-A

Section 197 CrPC provides the procedure for, When any person who is or was a Judge or Magistrate or a public servant, (who is) not removable from his office save (meaning except) by or with the sanction (meaning permission) of the Government (meaning Central or State Governments) is accused of any offence alleged to have been committed by him, while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction.

So, this mandates that Government permission is must for a Court to take cognizance of such offence by such public servant. Important aspect to note is that, there is no restriction of registering an FIR, only Cognizance needs Government permission to proceed.


PART-B

Now, the same 2013 Amendment to Criminal laws of India also inserted a new section criminalizing three acts/omissions of public servants. It is as follows.

Whoever, being a public servant,—
(a) knowingly disobeys any direction of the law which prohibits him from requiring the attendance at any place of any person for the purpose of investigation into an offence or any other matter, or
(b) knowingly disobeys, to the prejudice of any person, any other direction of the law regulating the manner in which he shall conduct such investigation, or
(c) *****
shall be punished with rigorous imprisonment for a term which shall not be less than six months but which may extend to two years, and shall also be liable to fine.

 

The entire procedure of how to make arrest in a cognizable case by police is in CHAPTER V – ARREST OF PERSONS. The various sections under this chapter  are few other sections are as follows:

  • Sec 41 CrPC
  • Sec 41A CrPC
  • Sec 41B CrPC
  • Sec 41D CrPC
  • Sec 46 CrPC
  • Sec 160 CrPC

Let’s focus on clauses (a) and (b) alone. I have given meanings for the words used in these two clauses here.

Clause (a) talks about the police disobeys any direction of the law (they are flouting CrPC so let’s consider only judicial decisions) which prohibits him from requiring the attendance at any place of any person for the purpose of investigation into an offence or any other matter.

So, if a Police office disobeys any of these above CrPC provisions such as

  • a male police office arresting female accused,
  • a female arrested after sunset and before sunrise-meaning night time) or
  • no notice issued u/s 41A CrPC to the accused (even WhatsApp, email is also valid service of notice)
  • no notice or communication as mandated u/s 50 CrPC, not given to person being arrested
  • violates judgments which prohibit police in doing something in relation to forcing any person to attend before police for investigation, then such police office is liable for punishment under 166A IPC and a competent Court can take cognizance of his case, without permission from State Government.

Some Judgment (of any High Court or Supreme Court) which established a law/principle regd attendance of a person before police

 

Clause (b) knowingly disobeys, to the prejudice of any person, any other direction of the law regulating the manner in which he shall conduct such investigation means,

Some Judgments (of any High Court or Supreme Court) which established a law/principle regd investigation

  1. What is Investigation and what is not? [Rajesh Gutta Judgment]
  2. No automatic arrests in a any case which has a maximum imprisonment of 7 years (includes 498A IPC, Sec 3 of DP Act etc) [Arnesh Kumar judgment]

 

Until the 2013 Amendment to Criminal laws of India, the cases involving public servants were taken cognizance, only after/with Government permission.


PART-C

Now, the 2013 Amendment to Criminal laws of India inserted an Explanation under/after Section 197(1) and before 197(2) [this means that the explanation applies to sec 197(1) only]:

Explanation.—For the removal of doubts, it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D, section 370, section 375, section 376, section 376A, section 376AB, section 376C, section 376D, section 376DA, section 376DB or section 509 of the Indian Penal Code (45 of 1860).

Out of the many IPC offences listed in this explanation, Legislature, in it’s endless wisdom, also included Sec 166A also, so that means now, the cases involving public servants can be taken cognizance by Competent Court, without Government permission.

Conclusion

So, get FIRs registered (by making good use of Zero FIR, where appropriate) and prosecute the out-of-line public servant (includes a Judge or Magistrate or a Police office)

Check out the relevant case laws here.

Posted in Bare Acts or State Amendments or Statutes or GOs or Notifications issued by Central or State Governments | Tagged Criminal Law (Amendment) Act 2013 with O and R CrPC 197 - Prosecution of Judges and public servants IPC 166A - Public servant disobeying direction under law Work-In-Progress Article | Leave a comment

CrPC 231 – Evidence for prosecution

Posted on August 17, 2020 by ShadesOfKnife

(1) On the date so fixed, the Judge shall proceed to take all such evidence as may be produced in support of the prosecution.
(2) The Judge may, in his discretion, permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination.

Posted in Bare Acts or State Amendments or Statutes or GOs or Notifications issued by Central or State Governments | Tagged CrPC 231 - Evidence for prosecution | Leave a comment

The Hindu Adoptions and Maintenance Act, 1956

Posted on August 4, 2020 by ShadesOfKnife

Here is the Hindu Adoptions and Maintenance Act, 1956 updated up to 31 October 2019

Hindu Adoptions and MaintenanceAct, 1956 updated up to 31 October 2019

Here is the Guardians and Wards Act, 1890

Guardians and Wards Act, 1890

The index for all four (4) Hindu Personal Laws is here.

Posted in Bare Acts or State Amendments or Statutes or GOs or Notifications issued by Central or State Governments | Tagged Hindu Adoptions and Maintenance Act 1956 | Leave a comment

The Hindu Minority and Guardianship Act, 1956

Posted on August 4, 2020 by ShadesOfKnife

Here is the Hindu Minority and Guardianship Act, 1956 updated up to 31 October 2019

Hindu Minority and Guardianship Act, 1956 updated up to 31 October 2019

 

 


The index for all four (4) Hindu Personal Laws is here.

Posted in Bare Acts or State Amendments or Statutes or GOs or Notifications issued by Central or State Governments | Tagged The Hindu Minority and Guardianship Act | Leave a comment

The Hindu Succession Act, 1956

Posted on August 4, 2020 by ShadesOfKnife

Here is the Hindu Succession Act 1956 updated up to 2005 amendment

Hindu Succession Act, 1956 (includes 2005 Amendment)

 

 


The index for all four (4) Hindu Personal Laws is here.

Posted in Bare Acts or State Amendments or Statutes or GOs or Notifications issued by Central or State Governments | Tagged Hindu Succession Act | Leave a comment

Hindu Personal Code Laws

Posted on August 1, 2020 by ShadesOfKnife

Hindu Personal Laws are codified into the following four (4) laws.

  1. The Hindu Marriage Act, 1955
  2. The Hindu Succession Act, 1956
  3. The Hindu Minority and Guardianship Act, 1956
  4. The Hindu Adoptions and Maintenance Act, 1956
Posted in Bare Acts or State Amendments or Statutes or GOs or Notifications issued by Central or State Governments | Tagged Hindu Adoptions and Maintenance Act 1956 Hindu Marriage Act Hindu Minority and Guardianship Act Hindu Personal Code Laws Hindu Succession Act Summary Post | Leave a comment

CrPC 175 – Power to summon persons

Posted on July 17, 2020 by ShadesOfKnife

(1) A police officer proceeding under section 174 may, by order in writing, summon two or more persons as aforesaid for the purpose of the said investigation, and any other person who appears to be acquainted with the facts of the case and every person so summoned shall be bound to attend and to answer truly all questions other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.
(2) If the facts do not disclose a cognizable offence to which section 170 applies, such persons shall not be required by the police officer to attend a Magistrate’s Court.

Posted in Bare Acts or State Amendments or Statutes or GOs or Notifications issued by Central or State Governments | Tagged CrPC 175 - Power to Summon Persons | Leave a comment

CrPC 167 – Procedure when investigation cannot be completed in twenty-four hours

Posted on June 25, 2020 by ShadesOfKnife

(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that—
(a) the Magistrate may authorise the detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding—
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;
(b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.
Explanation I.—For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.
Explanation II.—If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be:
Provided further that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution.
(2A) Notwithstanding anything contained in sub-section (1) or sub-section (2), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub-inspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, for reasons to be recorded in writing, authorise the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and, on the expiry of the period of detention so authorised, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and, where no order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub-section, shall be taken into account in computing the period specified in paragraph (a) of the proviso to sub-section (2):
Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together with a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge of the police station or the police officer making the investigation, as the case may be.
(3) A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing.
(4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate.
(5) If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary.
(6) Where any order stopping further investigation into an offence has been made under sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or  otherwise, that further investigation into the offence ought to be made, vacate the order made under sub-section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify.


Index of all Bail matters is here.

Posted in Bare Acts or State Amendments or Statutes or GOs or Notifications issued by Central or State Governments | Tagged CrPC 167 - Procedure when investigation cannot be completed in twenty-four hours | Leave a comment

CrPC 91 – Summons to produce document or other thing

Posted on June 25, 2020 by ShadesOfKnife

(1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.
(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.
(3) Nothing in this section shall be deemed—
(a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers’ Books Evidence Act, 1891 (13 of 1891), or
(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority.

Posted in Bare Acts or State Amendments or Statutes or GOs or Notifications issued by Central or State Governments | Tagged CrPC 91 - Summons to produce document or other thing | Leave a comment

CrPC 207 – Supply to the accused of copy of police report and other documents

Posted on June 25, 2020 by ShadesOfKnife

In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:—
(i) the police report;
(ii) the first information report recorded under section 154;
(iii) the statements recorded under sub-section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under sub-section (6) of section 173;
(iv) the confessions and statements, if any, recorded under section 164;
(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of section 173:
Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused:
Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court.

Posted in Bare Acts or State Amendments or Statutes or GOs or Notifications issued by Central or State Governments | Tagged CrPC 207 - Supply to the accused of copy of police report and other documents | Leave a comment

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