Powers of police under Code of Criminal Procedure

Powers of Police are very wide and are based on two main functions of Police. These functions are Maintaining of Law and Order and Investigation of illegal activities. The Police Act defines Police as an instrument for prevention and detection of Crime.[i] The Police define most of its powers from the Code of Criminal Procedure, 1973 and the Police Act, 1861. Following are some of the Powers of Police;

Powers of Police to Investigate

The Investigation of Police starts when;

• When someone lodges an FIR(First Information Report).[ii]
• When a Police officer suspects commission of a cognizable offense.[iii]
• Whenever a competent magistrate orders the Police.[iv]

The Police have the power to investigate Cognizable as well as Non-Cognizable offenses.[v] Police officers can investigate Cognizable offenses without the magistrate’s orders. If a Police officer suspects the commission of a cognizable offense, he has the power to investigate under s 157 without the filing of FIR.[vi] Police also have the power to require the presence of witnesses in order to pursue an investigation. Males under 15 years and over 60 years of age, females, or mentally/physically disabled persons shall not be required to attend as a witness except for their residences.[vii] Police can examine these witnesses as well.[viii] Police also has the power to conduct a medical examination of rape victims.[ix]

Powers of Police to Arrest

Police have the power to arrest the persons as well. The Police can make the arrests for both Cognizable as well as Non-cognizable offenses. For non-cognizable offenses, a Police officer has no authority to arrest a person without warrant. However, a Police officer can arrest a person without a warrant for Cognizable offenses.[x] In case of adequate grounds, the magistrate may extend the period of detention to 15 days. Also, the Police have the power to release the accused in case of lack of evidence.[xi]

Power of Preventive Arrest

The preventive arrest is the detaining of a person who is likely to commit an offense. It is a highly debated topic all over the world. In India, s 107 and s 151 of CrPC give the powers of Police for preventive detention mainly. In case an Executive Magistrate recieves information that a person is likely to commit a breach of peace, he may order him to show cause. The magistrate may also order him to execute a bond to keep peace in such period.[xii] It is the duty of the Police to prevent Cognizable offenses.[xiii] Also, the Police have the power to arrest a person without a warrant or an order from the magistrate in cases they have knowledge that such person is planning to commit a cognizable offense.[xiv]

Though, the Police can only make the arrest if it is the only way to prevent such offense. The idea behind these provisions is to avert the commission of an offense. The constitutional validity of these Sections has always been in controversy. Many persons have filed petitions questioning the validity of the provisions of the preventive arrest.[xv] In a case, certain landowners of MP were protesting after being affected by the Sardar Sarovar Project. Even though they posed no threat to commit cognizable offenses but were still beaten up and arrested. The Court held that this was in violation of Article 21 of the Constitution.[xvi] However, s 151 already mentions the grounds of the arrests. Also, preventive arrest laws are given legal recognition under the Constitution of India.[xvii] So, these provisions cannot be said to be in violation of Articles 21 and 22.[xviii]

Read Also: Everything You Need to Know About Criminal Law In India

Abuse of Powers of Police under Preventive Arrest

There have been many instances when these powers have been misused by the Police as well. This was because of the arbitrary and unjust use of these powers. In a case, the persons arrested under s 107 and 151 were not given a chance to be heard for 6 days. The case was tried without any scrutiny under issue. And, no order was issued under s 111 of the CrPC. The Karnataka HC held that this process was arbitrary and unjust as the Police didn’t follow proper procedure.[xix]

In the case of Ahmed Noormohmed Bhatti v State of Gujarat[xx], it was suggested that the guidelines given for the detainees must be followed in cases of Preventive arrests as well. The Court gave these guidelines in the case of D K Basu v State of West Bengal. The Court also held that a provision is not unreasonable or unconstitutional because of arbitrary exercise of it by the authorities. Proper scrutiny of each case is to be done to determine whether the arrest is unconstitutional or not.

Conclusion

Police is an important part of a healthy society. We always remember Police first when we are in trouble or under a threat. The powers of the Police are invested in them to have a smooth and healthy society. But, they ultimately have a duty to protects the rights and interests of the individuals. Due to this, they must use their powers with the utmost care and caution. The author notes that there are many instances where the Police have misused these provisions and there should be a proper check on these practices.

[i] The Police Act 1861, preamble.

[ii] Code of Criminal Procedure 1973, s 154.

[iii] ibid, s 157(1), 156(1).

[iv] Code of Criminal Procedure 1973, s 156(3).

[v] ibid, s 155, 156.

[vi] State of Maharashtra v Sarangdharsingh Shivdassingh Chavan (2011) 1 SCC 577.

[vii] Code of Criminal Procedure 1973, s 160.

[viii] ibid, s 161.

[ix] Code of Criminal Procedure 1973, s 164A.

[x] ibid, s 2(c), 2(l).

[xi] Code of Criminal Procedure 1973, s 169.

[xii] ibid, s 107.

[xiii] Code of Criminal Procedure 1973, s 149.

[xiv] ibid, s 151.

[xv] ‘Role of Police and its power to Investigate’ (Lawnn, 14 February 2017) <https://lawnn.com/role-police-power-investigate/> accessed 12 December 2018.

[xvi] Medha Patkar v State (2011) 8 SCC 55.

[xvii] Constitution of India 1950, a 22.

[xviii] Ahmed Noormohmed Bhatti v State of Gujarat (1999) SCC (Cri) 1014.

[xix] Sathi Sundaresh v The State PSI of Moodigere 2007 (4) CrLJ 649.

[xx] Supra Note xviii.

Section 304 a – Death by Negligence : Law and Legality

Indian Penal Code: Section 304A

India’s criminal system follows the Indian Penal Code in matters of dealing with crime. The framework of IPC governs crime with justice and punishment. Owing to the influence of English Law, the original Indian Penal Code had provisions for culpable homicide under Section 299. Section 299 deals with any act or bodily injury caused by any person with an intention of causing death. Section 304 of IPC deals with the provision of culpable homicide not amounting to murder. This section involves crimes perpetrated with the knowledge of causing death but without any intention of doing the same.

The original Penal Code did not have any provision for dealing with death caused by negligence.  In 1870,  Act 27 of the Indian Penal Code added Section 304 a and b as an amendment. The following article is going to discuss Section 304 (a) under IPC in detail.

Section 304(a) states as follows:

“Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or both.”

Any act under Section 304(a) is a bailable offence under the IPC. In such a case, the Court allows the defendant to make bail by paying a surety amount along with a bail bond at the police station. This offence is also compoundable which means that the plaintiff and the defendant can reach an agreement between themselves through their counsel and avoid trial. This often occurs in cases involving powerful Companies who would settle instead of going through a public trial.

Negligent Homicide: The Parameters of Law

The law sets parameters but also keeps spaces open for interpretation because each case has a different context.  Section 304(a) uses the words “rash or negligent act” as the deciding elements to charge any person under this section Therefore it is important to understand these terms and its various connotations.

Firstly, the Act being mentioned above should be causa causans,i.e, the primary cause of death and not merely causa sine qua non,i.e, an indirect act. Therefore, the relationship between the act and the death or injury resulted by it should be direct for the plaintiff to win the case.

Secondly,  there is a difference in the responsibility of the defendant vis-i vis the plaintiff between a negligent act and a rash act. A negligent act is a breach of duty that causes harm/damage to another person unintentionally. On the contrary, a rash act is the culmination of overhasty decisions and recklessness on the part of the defendant.

Thirdly,  a rash act is generally a criminal act. A negligent act could be civil or criminal depending on the gravity and the nature of the crime along with the degree of intention or lack thereof in a particular case.

Types of Negligence

There could be many ways of partaking in criminal negligence. There are two major criteria that come to the forefront while discussing Criminal Negligence:

Medical Negligence

Medical negligence is a breach of duty on the part of the defendant who has a legal as well as a moral duty to look after his/her patient. The act of “Negligence” is open to interpretation based on the actions of the defendant in each case. A medical practitioner is liable for negligence if he/she deviates from “the standard treatment” recommended for taking care of his/her patient causing death or injury of the patient. A medical practitioner can be a doctor as well as a nurse. Medical negligence cases can be civil as well if the hospital as a whole is held accountable for malpractice. For instance, using faulty equipment or expired medicines in the hospital.

Motor Vehicle Accidents

The incident of a motor vehicle crash leading to the death of people will not be enough to charge someone under Section 304(a) for negligent driving. The charge of criminally negligent driving requires the driver to be solely or entirely responsible for the accident because of their negligence or rashness. This, however, requires interpretation on part of the court; taking into account the level of rashness and deliberation in an action that led to an accident. The court has to take into account that if one decides to drive under influence, they are aware of the consequences of their decision. The court also has to take into account the degree of damage done by undertaking that reckless decision.

Corporate Negligence

In matters of corporate negligence, a Company is liable under Section 304(a) if it takes any action that injures their consumers, creates an unsafe environment for their employees or cheats their shareholders.  Some of the crimes that come under corporate negligence cases are:

• air and water pollution caused by industries;
• adulteration of food by food companies;
• involving themselves in different lobbies for their own profit by exchanging money with political parties;
• releasing confidential information without permission;
• recording personal conversations and breaching privacy;
• harming or cheating the shareholders’ out of their profit.

The burden of Proof and Defense against Section 304(a)

In claims of negligence, it is extremely important to prove that there was indeed a breach of duty. In many cases of medical negligence, the professional might make a decision based on the complicated nature of the case presented to him/her. The burden of proof lies with the doctor to prove that they behaved in a reasonable way only in the interest of the patient.

The other arguments on which the defendant relies are as follows:

• contributory negligence: proving there was negligence on the part of the plaintiff;
• inevitable accident: proving that the death or injury caused was inevitable depending on the circumstances of the action;
• dangerous recreational activity: proving that the plaintiff’s injury is a result of partaking in a dangerous recreational activity like drugs. In such a case, the defendant will not be liable for any damages.
• illegal activity– proving that both the plaintiff and the defendant were engaged in an illegal business when the plaintiff was injured. This renders the case void.

In civil negligence cases, the burden of proof lies with the plaintiff to prove that there was a breach of duty by the Company/Corporate. The breach of duty has to directly damage the plaintiff. In the case of powerful Companies, the plaintiffs should be ready to show concrete proof, including reliable testimonies and documents to reach a favourable verdict.

Section 304a IPC: Judgements

Some of the landmark judgements in cases related to Section 304(a) IPC:

 Jacob Mathew v State of Punjab [ANR 2005]

The plaintiffs, in this case, were the family of Jivan Lal who was admitted and died in CMC Hospital, Ludhiana. The two doctors who attended the deceased were Jacob Matthew and Allen Joseph. The doctors had to face the charge of criminal negligence. The plaintiffs claimed negligence on the doctor’s part while procuring oxygen cylinder for their father. The defence argued that the patient was at the last stage of cancer. He was not supposed to be admitted to any hospital in lieu of his degrading health.

The Supreme Court argued in favour of the doctors stating that the plaintiff must prove that the medical professionals acted “in disregard of the life and safety of the patient.” A medical professional cannot be held liable if they are following the accepted procedure of medical practice. They cannot be reprimanded for not using an alternative method that might or might not have brought the desired result. They can only be charged in either of the two conditions

• if they do not possess the skill to match their profession.
• if they did not show reasonable competence while discharging their duty; the standard set here would be of an ordinary competent person.

Somabhai Mangalbhai Dabhi vs State of Gujarat [1988]

The Session Judge convicted the accused of the death of a 10-year-old girl. He was charged under section 304 (a) of IPC for the negligent driving of a motor bus. The defence claimed that the girl entered the road out of nowhere. There was insufficient evidence of the girl coming out of nowhere and also the fact that the driver was driving on the wrong side. Therefore, the sessions court sentenced the accused with two years of Rigorous Imprisonment (RI) along with 500 rupees fine. The Supreme court did allow probation after regarding the context of the case.

Conclusion

The provision of Section 304(a) under the IPC is important to offer a measure of justice to the claimants. It might give them some closure or at the very least compensate them if there has been a breach of duty that led to irreversible damage or loss of life/property.

304A IPC BAILABLE304A IPC JUDGMENTS304A IPC PUNISHMENT

Impact Of Section 497 On Married Indian Couples

In 2017, a significant decision was passed by a three-judge Bench which struck down a colonial-era law that prescribed maximum imprisonment of five years to men for adultery. The instant Writ Petition was filed by one Mr. Joseph Shine under Article 32 of the Constitution of India. It challenged the validity of Section 497 IPC, read with Section 198(2) of the Criminal Procedure Code (CrPc). The Bench appreciated the submissions advanced by the learned counsel for the Petitioner and thereby felt the need to have a re-look at the constitutionality of the provision.

In this article, we will answer questions pertaining to the non-constitutionality of the provisions of Section 497 and its impact on married couples.

What is Section 497

According to section 497, “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offense of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such a case, the wife shall not be punishable as an abettor.”  Simply put, only a man can be a victim or accused/culprit under the existing reading of Section 497 of the IPC.

The provisions of the said section are very orthodox in nature and are based on societal presumptions. The constitutional rights of a woman, bestowed upon her by virtue of birth, are being gravely infringed upon. Ordinarily, the criminal law proceeds on gender neutrality but in this provision, the said concept is absent. On a perusal of the language of the said provision, the words “without the consent or connivance of that man” only reflects the perilous inequality and creates a dent on the individual independent identity of a woman.

Section 497 makes two classifications

The first classification is based on who has the right to prosecute. It is only the husband of the married woman who indulges in adultery, is considered to be an aggrieved person and is given the right to prosecute for the offense of adultery. Conversely, a married woman who is the wife of the adulterous man has no right to prosecute either her husband or his paramour.

The second classification is based on who can be prosecuted. It is only the adulterous man who can be
prosecuted for committing adultery and not the woman, even though the relationship is consensual; the adulterous woman is not considered to be an “abettor” to the offense.

The adultery law, therefore, has been criticized for treating women as property or chattel of their husbands. Consequently, the offense of adultery was treated as an injury to the husband, since it was considered to be a “theft‟ of his property, for which he could proceed to prosecute the offender.

Findings of the Apex Court

In light of the above arguments, it was observed that “The time when wives were invisible to the law and
lived in the shadows of their husbands, has long since gone by. Legislation that perpetuates such stereotypes in relationships, and institutionalizes discrimination is a clear violation of the fundamental rights guaranteed by Part III of the Constitution. There is, therefore, no justification for the continuance of Section 497 of the Indian Penal Code. framed in 1860, to remain on the statute book.”

Section 198(2) of the Cr.P.C. which contains the procedure for prosecution shall be unconstitutional only to the extent that it is applicable to the offense of Adultery under Section 497.

Adultery and Married couples

However, the issue remains as to whether “adultery‟ must be treated as a penal offense subject to criminal sanctions, or marital wrong which is a valid ground for divorce.

A criminal wrong is the one which is committed against the community at large i.e where the community is the victim of such a wrong. For instance, Murder is an offense committed not just against the family of the deceased but also against the society in general. On the contrary, a private wrong is the one which is committed against an individual. For example, a breach of contract.

Adultery may be an act committed to private by two consenting adults, it nevertheless is not a victim-less wrong. It negatively impacts the institution of marriage and family, the well being of the children and society in general, and therefore must be subject to penal consequences. Hence the State has a legitimate public interest in making it a criminal offense.

On contrary to this view, adultery is a marital wrong and therefore should only invite civil consequences. To criminalize a certain content is to declare that it is a public wrong which would justify public censure, and warrant the use of criminal sanction against such harm. However, a person should be able to make personal decisions in his/her life. such an act should be protected from public censure.

Adultery is undoubtedly a moral wrong committed against the spouse and the family. However, the fundamental right to live with dignity includes the right not to be subjected to public censure and punishment by the State except where absolutely necessary the State must consider whether the civil remedy will serve the purpose. Where a  civil remedy for a wrongful act is sufficient, it may not warrant criminal sanction by the State.

Conclusion

Before the enactment of the Marriage Laws, 1976, adultery was treated as the conduct of grave immorality and was not considered as a ground for divorce. Post the 1976 Amendment, the grounds for judicial separation and divorce are the same and it is a mark of great development in the Hindu Personal Laws.

While reading the judgment, Chief Justice Dipak Misra said, “Adultery cannot be a criminal offense, however, it can be a ground for civil issues like divorce.” It has been defined under Section 13(1) of the Hindu Marriage Act, 1955 and Section 22 of the Indian Divorce Act makes provisions for a decree of judicial separation on the grounds of adultery.

Read Also:   The New Rules For Divorce In India

To conclude, it can only be said that laws which may be relevant at a given period demand various changes with the passage of time. Education, development in civil-political rights and socio-economic conditions have drastically undergone a change. Therefore, the historical background in which Section 497 was framed, is no longer relevant in contemporary society.

Procedure after FIR is lodged and FIR cancellation procedure

Introduction

The first information report is a written report prepared by the police department of the respective police station where the crime  (Cognizable offense) has occurred. This is an essential practice which gives a kickstart to a criminal proceeding in a court. It is prevalent in countries like India, Bangladesh, Pakistan, etc. An FIR is generally logged by the victim of a cognizable offense. However, in the cases where the victim is deceased or is in such a condition as unable to lodge an FIR, someone on his behalf can also lodge an FIR either orally or in writing to the police. FIR is defined under Section 154 of Criminal Procedure Code, 1973.   As the name itself suggests, An Fir must contain all the information which the victim is possessing about the cognizable offense. Also, Fir must be read to the person giving information or lodging complaint to the police and must contain his signature. This prevents cases of fraud FIRs lodged by the police officials if the complainant is illiterate.

After lodging an FIR

Once the FIR is lodged, the police can start the investigation work. The investigation includes collecting evidence, questioning witnesses, inspecting the crime scene, forensic testing, recording statements of the witnesses. It is always said that, after experiencing a cognizable offense, the first thing a victim should do, is to lodge an FIR. The reason for the same is attributed to the fact that, if there will be a considerable amount of time duration between the commission of a crime and lodging an FIR, this will give an opportunity to the offender to manipulate the shreds of evidence, eye-witness or any such material which can turn the judgment of the bench. For example, in rape cases, certain medical tests are to be conducted within a span of 2 days. Otherwise, there will be no evidence left in the victim’s body.

Once the stage of investigation is completed, the police may form a Charge Sheet often called as Challan and record their findings in it. If it is deemed that there is enough proof in the charge sheet, the case reaches the court.

Also, if after the completion of the investigation, the police concludes that there is not enough evidence, so as to establish the crime, they may close the case. Reason for closing the case must be backed by a rational in the competent court of jurisdiction.

When authorities refuse to lodge an FIR

Remember, that no police station can deny for lodging an FIR and they have to do this free of cost.

1. You can contact Superintendent of Police or any other high officials and bring to their notice the complaint filed by you.
2. You can contact such high officials by sending the complaint to them in writing. If they are satisfied by your complaint, they may order for the investigation of the case of may investigate the case himself.
3. A private complaint can be lodged in the court of competent jurisdiction.
4. You approach the authorities such as the State Human Rights Commission or the National Human Rights Commission.

Filing a Criminal Complaint accompanied by Vakalatnama and Court Fees

This is a petition which is submitted by the complainant authorizing an advocate to plead the case. This contains written allegations of the complainant, the summary of the happening of offense and the complaint prays for the relief he seeks for the same.

Criminal Complaint must be accompanied by a Vakalatnama. It gives the advocate (Who will be representing you in the court) the authorization to fight for justice, appear on his behalf, and handle all the court procedure. The lawyer who has signed the Vakalatnama is bonded by all the duties of an advocate, such as Attorney-Client Privilege. All such terms and conditions are explicitly mentioned in Vakalatnama.

Plaints are also required to be accompanied by court fees to be paid to the court. The amount of court fees is governed by the rules an regulations embodied in the Court Fees Stamp Act. Court fees are usually a nominal percentage to the suit value, and it differs from case to case.

Cancellation of FIR

Once the Fir is registered, FIR cannot be canceled. Even when the complainants urge for the same. It can be disposed of only as per the manner prescribed under the Criminal Procedure Code.

FIR is disposed of in the following circumstances-

1. When the Offender cannot be traced even after making all possible efforts, and there are no changes for finding him in the future.
2. When the Complainant has registered a false complaint.
3. The accused person dies before filing the charge sheet against him in the court.
4. When the complaint withdraws the case or requests the court to refer the case to Lok Adalat/ National Lok Adalat. So that the case can have a lead towards settlement.

In addition to the aforementioned circumstances, the government has the power to withdraw prosecution of a criminal case against him in the court. This power is conferred under Section 321 of the Criminal Procedure Code.

Conclusion

All citizens should get to know about their rights to filing FIRs. At the same time, they must be aware of the steps that they can take if the police refuse to register their complaints. In some cases, it is best to file a complaint petition before the judicial magistrate instead of registering an FIR.