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.

Punishment for Rape – An offence under the Indian Penal Code

The term “rape” is defined under Section 375 of the Indian Penal Code. Under Indian law, only a man can be held liable for the offense of rape. A man is said to commit rape if he has sexual intercourse with a woman under any of the six following conditions –

• Against the will of the woman;
• Without the consent of the woman;
• With her consent, when her consent was obtained by putting her or any person in whom she is interested by fear or of death or hurt;
• With her consent, when the man is aware that he is not her husband and that her consent has been given because she believes that he is another man to whom she believes herself to be law­fully married;
• With her consent, when, at the time of giving such consent, due to unsoundness of mind or intoxication or the administration by him personally or through another of any stupe­fying or unwholesome substance, she is unable to understand the nature and consequences of the consent she gives;
• With or without her consent, when she is below sixteen years of age.

The explanation to the Section says that penetration is sufficient to constitute the offense of rape.

The exception to the Section says that Sexual intercourse by a man on his own wife, with the wife being not below fifteen years of age is not rape, within the meaning of the Section.

Punishment for Rape –

The minimum punishment for rape shall be imprisonment of either a description for a term which shall not be less than seven years but which may extend for the entire life or for a term which may extend to ten years and shall also be liable to fine, unless the woman raped in question, is the own wife of the man.

In case, the woman is the wife of the perpetrator, and she is under twelve years of age, in that case, he shall be punished with imprisonment of either description for a term which can extend to two years or with fine or both.

Rape of a woman who is under twelve years of age – [Section 376(2)(f)]

The punishment for this includes a term which shall not be less than ten years, which may extend for life, and the perpetrator shall also be liable to pay a fine.

Rape of a woman, knowing that she is pregnant – [Section 376(2)(e)]

The punishment for this includes a term which shall not be less than ten years but which may extend for life and the perpetrator shall also be liable to pay a fine.

Gang rape – [Section 376(2)(g)]

The definition of Gang rape is included in the Explanation under Section 376(2)(g). Gang rape means “Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this subsection.” 

It means that even if six people force a woman into having sexual intercourse with only one of them, yet the remaining five will also be considered to have committed rape under Section 376(2)(g).

Punishment for the rape of this nature includes imprisonment term which shall not be less than ten years but which may be for life and the perpetrator shall also be liable to pay a fine.

Custodial Rape – [Section 376(2)a,b,c and d]

This includes rape on a woman in their or their subordinate’s custody by –

• A police officer within the limits of the police station to which he is appointed, or in the premises of any station house whether or not situated in the police station to which he is appointed; or on a woman in his custody or in custody of a police officer in a subordinate position to him.
• A public servant
• Management or the staff of a jail, remand home, or some other place of custody or a women’s or children’s institution.
• Management or the staff of a hospital.

CONCLUSION

Rape is one of the most heinous offenses in India. It is an offense which has brought so much agitation from all corners of India and from almost segments of the society. However, the Indian Penal Code is a colonial law. It was drafted way back in the 1860s, and hence, most of it seems redundant in the world of feminist evolution. The catch about Section 375 is that only a man can commit rape, and only a woman can be the victim under the same. Hence, the offense of rape on a man by a man or a woman does come within the ambit of this section. Rape laws have also been made stringent by the Criminal Laws (Amendment) Ordinance, 2018, which provides for Death Penalty for the rape of women below twelve years of age. Plus, the minimum punishment for rape was increased from seven years to ten years and rape of girls below sixteen years is now punishable with imprisonment up to twenty years or life imprisonment

Seven Questions About Caught Drunken Driving? All You Should Answer Truthfully

Introduction

Alcoholic beverages have been increasingly used in the societies which are creating positive and negative; short-term long term, social, medical, and cultural impact. Like other western countries, the laws in India also make driving and drinking a punishable offense. The only exception can be having BAC (Blood Alcohol Content) within the permissible limit.

It is a well-known fact of the number of road accidents which occur everywhere due to reasons like drunkenness, driver’s fault, rash, and negligent driving, etc. In the case of The State of Tamil Nadu v K. Balu and Anr[1], the judgment highlighted the number of road accidents due to the influence of alcohol/drugs is 16, 298 for the year 2015, i.e., 3.3 percent of the total number of road accidents for the year.

Unquestionably, the statistics documented under the category of drunk driving is under-reported so as not to tamper the right of the victim to receive compensation. So, the figure recorded, and the figure on record has a significant difference.[2]

Read Also: Underage? Still Drinking Alcohol!

Permissible limit

It is pertinent to know what amounts to drunken driving and what is the permissible limit. The BAC permissible in India is 0.03%, i.e., 30 mg per 100 ml of blood. The BAC permissible varies from country to country. For example, in countries like Pakistan Alcohol is completely banned, China has BAC as 0.02%, and the UK and Canada have permissible BAS as 0.08%

In the case of Alister Anthony Pareira v State of Maharashtra[3], the accused was charged with causing the death of seven people and injuries to eight people who were asleep on the footpath of Carter Road, Bandra (West).  Upon Medical examination of the accused, the content of alcohol was 0.1125 w/v of Ethyl Alcohol. The High Court convicted the accused of Maharashtra, the basis of a conviction being his drunken state. But nobody cross-examined that drunken state which was stoutly argued upon on behalf of the accused at the stage of appeal. But the High Court ultimately dismissed the appeal because the BAC was higher than permissible, and no examination or cross-examination can render the fact void.

All the cases of Drunk Driving are registered under Driving under Influence (DUI) cases. On the eve of the new year 2019, Hyderabad itself registered as high as 2499 cases of DUI during checking on the occasion, and 873 cases were recorded by the Pune Police Stations, Mumbai 455 cases and Delhi 509 cases.[4]

How to identify intoxication

The case of Bachubhai Hassanalli Karyani v State of Maharashtra[5] is an important highlight because it places reliance on medical evidence and not on mere physical examination. The accused charged with rash and negligent driving under the state of alcohol. His state of alcohol contended only based on the opinion of the Doctor who conducted the examination. His breath was smelling of alcohol, gait unsteady incoherent speech, and dilated pupils. The accused was not subjected to the urine test. The blood samples were collected, but its report was never produced before the prosecution. The notion of accused being in a drunken state was denied by the court to meet the ends of justice. Thus the intoxication should be identified through breath analyzer, blood test, and urine test.

Is breath analyzer the only way to prove that a person is drunk?

As per Section 185 of the Motor Vehicle Act, 1988, which indicates a permissible limit BAC of 30 mg%, “in a test by a breath analyzer.” The wording of the section is clear the necessity of the test by breath analyzer. The police officer may also take the person to a nearby place to conduct breath and blood tests.

In the case of State Tr.P.S Lodhi Colony, New Delhi v Sanjeev Nanda[6], where the accused was held guilty under Section 85 of Indian penal Code and Section 185(1) of the M.V Act, 1988 to show intoxication. It was contended on behalf of the Accused that since breath analyzer test is the test statutorily recognized for drunken driving, which was not conducted for the Accused, no reliance can be placed on the state of intoxication of the accused.

Punishment and fine: Section 185 and 188 of the MV Act

If the BAC is 30 mg per 100 ml of Blood, then does not amount to any offense. If BAC is within 30mg-60mg per 100 ml of blood, it shall attract imprisonment up to 6 months or fine up to Rs. 2000 or both.

If BAC is ranging from 60mg-150mg per 100 ml of Blood, imprisonment for 1 year or fine of Rs. 4000 or both can be imposed. Repeating of offense within a period of three years will be punishable with imprisonment, which can extend up to 3 years and/or fine Rs. 8000.

If the BAC is above 150 mg per 100 ml of blood, then it attracts imprisonment of 2 years and/or fine of Rs. 5000. Repeating this offense will attract a penalty of Rs. 10000, cancellation of license and jail term.

Way Forward

The State and center have been working progressively towards reducing the number of causalities caused due to drunkenness. The polices implemented by the union government of ban of Alcohol within 500 meters of the National Highways, is a measure to curtail down the number of road accidents.

In action taken by Hyderabad in 2016, where it is required by the bar authorities to make sure a pool of cabs is available near the bar to take home drunken people. This action was initiated after Kolkata took stern action when a fatal accident of an actress was reported.[7]

As per the recommendation of the World Health organization, all member governments should reduce the per capita consumption, which can be done by reducing the availability of such alcoholic beverages. This action can be taken in lieu of Article 47 of the Constitution of India.[8]

Conclusion

A zero-tolerance policy must be devised and enforced for the proper clarification of the intent of the parliament. Identifying the places most vulnerable and setting up proper checkpoints have help to reduce the number of accidents, but the problem is yet to be solved from its very roots. The permissible limit remains 0.03% and should be abided by not to get caught by the police.

[1] Civil appeal Nos .12164-12166 of 2016

[2] R.N. Mathur v State (Finance Department)

[3] Criminal Appeal Nos. 1318-20 of 2007

[4] https://www.business-standard.com/article/current-affairs/drunk-driving-cases-huge-drop-on-new-year-s-eve-2000-booked-pan-india-119010300133_1.html

[5] Criminal Appeal No. 183 of 1970

[6] S.L.P. (Crl.) No.3292 of 2010

[7] https://www.thebetterindia.com/100812/india-drunk-driving-efforts-initiatives-world-lessons/

[8] https://www.alcoholwebindia.in/content/regulation-legislation

Ten Difficult Things About Voluntary Causing Hurt : Provision And Punishment

With all the progress we have made as a nation, there is also a big number of crimes happening around us in recent days. And women and children are becoming more part to such kind of crimes, and hence it is essential to be aware of the offenses or wrong which are known as voluntarily causing hurt to someone or anyone and the punishment prescribed for it in the  Indian Penal Code, 1860.

Section 323 of IPC

Section 323 is an essential part mentioned under the chapter 16th of the Indian Penal Code, 1860, titled “Offenses related to the Affecting Human Body.” Section 323 basically deals with the punishment clause for voluntary causing hurt. But before going further first, we need to understand the meaning of some technical terms, like “Hurt (defined under section 319)”, “Grievous Hurt (defined under section 320)”,  “Voluntary causing Hurt (defined under section 321)” and “Voluntary causing Grievous Hurt (which is defined under section 322)”. So basically the present article only has a relation with Section 323 read with section 321, which defines what actually “voluntary causing Hurt” mean. Though we have to discuss only the provision related to section 323, we also need to understand under this, that there is segregation of some technical terms which mentioned above and it is essential to discuss under this.

“Hurt (which is defined under section 319) ” meaning simply that any person who causes bodily pain, disease or infirmity to any other person and if the same does happen where knowledge plays an essential role is to be understood within the meaning of “Voluntary causing Hurt (under section 321)”

“Grievous Hurt (which is defined under section 320)” is to be understood as an extended form of Hurt. Under this, there are some different kind of hurt only, which is designated as “grievous” in nature. They are,

Emasculation,

Permanent privation of the sight of any of the Eye or Ear or Permanent disfigured the face or head,

Privation of any member or joint or permanent impairing of the powers of any joint,

Fracture or Dislocation of bone or tooth

or any other type of Hurt which may endanger life or which the sufferer causes severely bodily pain up to 20 days or more or may not be able to follow their ordinary pursuits.

So basically, there are eight important types of hurt which are grievous in nature and on another aspect where knowledge gets involves in any of the hurt which is grievous in nature may amount to be “voluntary causing Grievous Hurt (under section 322).

Read Also: Key differences between IPC and CrPC

Section 323 Of Indian Penal Code 

The definition of the provision “voluntary causing hurt” defined under section 321 and their punishment clause in section 323 of the penal code 1862.  Section 321 states that if a person with pure intention is causing Hurt to any other person. And there exists a piece of knowledge that their action may likely cause hurt to another is “Voluntary Causing Hurt.”

Section 323 defines the punishment for the wrong defines under section 321, states that whoever does the same shall be punished with the 1-year imprisonment or fine of 1000 rs.  or both. Also, if a person without any intention has a knowledge that particular action may likely to cause hurt or gives to another person a “voluntary causing hurt” on the grave and sudden provocation (defined under section 334), then, he or she shall be not prosecuted under section 323, there should be applied some facts for exemption under section 323, as follows:-

1. Firstly, there was no sudden or grave provocation exist,
2. Secondly, the offender had the intention of causing hurt;
3. Thirdly, the offender had clear knowledge that his conduct will cause hurt to the other people
4. Lastly, the offender caused any bodily hurt.

So if any of the facts may going to apply, the accused punishment shifted from section 323 to section 334, and under this, the accused shall be punished with the imprisonment for a maximum of 1 month or a fine which exceed up to 500 or with both.

The offense under section 323 of the Indian Penal Code, 1862 is Non- cognizable, Bailable and Triable by any Magistrate Also, Compounded by the person to whom the hurt is caused.

Voluntarily causing hurt by dangerous weapons

 Section 324 of the Indian Penal Code further clarifies the repercussions of “voluntarily causing hurt using any dangerous weapon or instruments” such as shooting, stabbing, or cutting or any other tool which is likely to cause death and the accused has the knowledge of the same, are much severe. Some examples- fire, heated substance, poison, an explosive substance, or any substance which might be dangerous to the human body in the form of consumption.

Punishment– up to 3 years or fine or Both

Voluntarily causing hurt to extort property or to do an illegal act forcefully 

Section 327 of the Indian Penal Code, deals with the offense of “voluntarily causing hurt with the motive or intention to extort the property from the sufferer or any other person” interested in the victim. This may also include constraining the sufferer or any other person interested in the victim to make them do act illegally directly has relation to the commission of the offense.  The said offense is categorized under the meaning of “grave” in nature.

Punishment: – up to 10 years only or with the fine.

Voluntarily causing hurt to deter public servant from their duty

Section 332 of the India Penal Code defines that Any person, who deliberately causes hurt to any public servant in discharge of his duty or causing hurt with the intention of deterring him from discharging his duty is not acceptable by law and amount to some punishment.

Punishment: – up to 3 years only or with the fine.

Voluntarily causing hurt in committing robbery

Robbery (defined under section 390 of the penal code) is considered as a serious crime, and that is why Section 394 of the Indian Penal Code deals with such kind of cases where the voluntary hurt was caused during the conduction (include attempt also) of the crime of robbery. The offender or any person (involvement is necessary, directly or indirectly) jointly responsible for such offense of robbery,

Punishment: – Lifetime Imprisonment or Rigorous Imprisonment up to 10 years, sometimes fine may be included along with the punishment.

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.