Understanding criminal Warrants, Summons and Proclamation.

Summons, Warrants and Proclamation are the measures by which court seeks to ensure appearance of parties/accused/witnesses before itself, ranging from commutative to compulsive.

A Summon is an order to appear before the court usually in criminal matters through a police officer.
If summons are not complied with or in extremely serious matters in the first instance only – court may issue a warrant.

A warrant is an order to a police officer usually – to procure a person before the Court. A warrant may be bailable or non bailable – in the former the police officer executing the warrant is empowered to take security for the person’s appearance before the court without taking him in custody, on the other hand – when a warrant is non bailable the police officer arrests the person and produces him before the court, the court then may remand him to custody or grant bail.

However if the person whose appearance is sought, absconds or avoids warrants proclamation can be done. Under proclamation a person is given the final chance to produce himself – this proclamation is pasted at a conspicuous place of his residence or last known address and at the court house (also in national newspapers) giving him 30 days or more to appear in the court as a final chance – if he fails to – he is declared a proclaimed offender – being declared a PO has grave ramifications – a person can be arrested sans warrant by any police officer in the country. His property can be attached and sold. Usually where there is chance of person leaving country – a lookout circular is also issued seeking to rule out chances of leaving the country.

Criminal Law for the Layman by Adv Bharat Chugh

Posted from WordPress for BlackBerry.

Posted from WordPress for BlackBerry.

FIR – First Information Report.

What is an FIR – short for First Information Report is the information first in point of time as to the commission of an offence. This sets the entire criminal law machinery into motion. If a complaint discloses commission of an cognizable offence (usually the more common and serious of offences eg : theft/murder/rape/cheating/498A etc) police is duty bound to record and register the same and investigate. Any one can be an informant and intimate the police as to the commission of an offence. Later the informant is expected at time of trial to come to court and depose. If the police refuses to register an FIR – one can move the concerned magistrate for directions to the police under section 156(3) of the CrPC.

* Criminal Law Primer by Adv. Bharat Chugh

The Juvenile Debate ! Do we need to lower the age of juvenility ? Legal Position of Juveniles in India !

What is the age of discretion for the purposes of fixing criminal liability ?

At what age is a person presumed to understand the moral quality or nature of his act and fathom it’s ramifications, for himself and others ?

Should we follow a case by case approach, examining a child’s mental growth or a standard age threshold like the present is working fine ? 

These questions have assumed great proportions in light of the recent turn of events, furthermore any decision would have great ramifications for a country with the most young people in the world !  Hence here is what I think of it sans the hyperbole, anger and rhetoric. 

In my view 18 is internationally recognized as age of immature discretion, and that’s the way it should be. Any standardized age would have a certain arbitrariness insofar as people on threshold for eg : 1 day up or down would be excluded and included. But that is a necessary evil. The Approach for examining mental maturity case by case is fraught with various problems, the first being our inability to dispassionately view things ! We are often moved by the gravity of the crime ! it’s intrinsic brutality and depravity and consider it to be a parameter of the understanding the capabilities of the perpetrator, which understanding is inherently flawed. Picture this  ! A 14 year old stealing bread or stabbing a person – these two acts do not reflect his understanding any differently. The gravity of offence is a bad indicator and a dangerous parameter on which to decide the fate of our children.

However premeditation and meticulous planning may be a factor that may indicate a person’s maturity of understanding, but examining it case to case would be a little problematic in our conditions and age of 18 is what we should stick to for the reasons of expediency, consistency – being a more humane approach. And the argument that people who are not juveniles are taking benefit ! I really don’t buy that – the courts are careful and competent enough and diligently take up enquiries and give benefit wherever is required !

So 18 it is ! Don’t forget any other view would be to expose our children to a world of crime ! yes that’s our prisons are – breeding centres of vices or criminality. OR we can treat them !  

We can’t lose sight of the fact that majority of these children come from conditions of extreme poverty, ridden with exploitation – economic, sexual, physical mental and what not !  We as a state, their immediate guardians do fail them when we fail to protect them from such exploitation. But we do cry for their blood when they seek to reverse the power equation by finding someone more vulnerable than them. We fail when a child works in a roadside bar, or in a dingy factory, doing things he should not be doing ! interacting with forces he should not at such age, Our society encourages profoundly sex, commodifies women and tells a child about sex in a way he should not know ! but when he succumbs (everyone does not have the same resistance or way of dealing with problems) we are the first to raise fingers.  Do take up ten cases and see the background of these kids ! The kind of lives they led before doing what they did ! A man is more oftenly a creature than a creator of his circumstances. Nobody is a born criminal – society makes one – circumstances make one ! 

And finally – punishment is never an end in itself – but a means to an end – the ultimate end being a society with lesser crime, better individuals the obliteration of the very need of punishment itself – Reclaiming people as better citizens ! And juveniles mind you have shown great potential for being brought into mainstream with levels of recidivism being very low.  Recidivism is much higher in regular prisons than juvenile observation homes !

Hence instead of getting into knee-jerk reactions to a very complex social problem, we should indulge in systematic discourse on the problems of criminal justice system, humanization of our prisons,  observation homes and finally on what our CHILDREN DESERVE. 

*The Author Bharat Chugh is an Advocate in the Supreme Court of India, and can be reached at bharat.law06@gmail.com 

Courts/Police cannot impound passports…Supreme Court holds

In a nutshell this judgment the Hon’ble Supreme Court holds that since impounding of passports are governed by a special legislation namely the passports act, normal crpc provisions concerning impounding shall not be attracted, the courts or the police can at best seize a passport, but for impounding (which is far more enduring and continous posssession) passport authority would have to be approached – and the authority can take a decision on whether it would be impounded or not, this decision since has a great bearing on a person’s right to life and personal liberty – is taken after giving him a hearing and chance to representation. 
This decision can be of far reaching consequences – because Courts have repeatedly and continue to, ask applicants to deposit their passports at the time of bail applications as condition for their grant. Hence the instant deposit works as a seizure any continued detention of passport, say exceeding 4 weeks, has to be bear the sanction of passport authority, failing which an application for release u/s 451 CrPC can be filed. 
Relevant Excerpts : “even the Court cannot impound a passport. Though, no doubt, Section 104 Cr.P.C. states that the Court may, if it thinks fit, impound any document or thing produced before it, in our opinion, this provision will only enable the Court to impound any document or thing other than a passport. This is because impounding a passport is provided for in Section 10(3) of the Passports Act. The Passports Act is a special law while the Cr.P.C. is a general law. It is well settled that the special law prevails over the general law vide G.P. Singh’s Principles of Statutory Interpretation (9th Edition pg. 133). This principle is expressed in the maxim Generalia specialibus non derogant. Hence, impounding of a passport cannot be done by the Court under Section 104 Cr.P.C. though it can impound any other document or thing.”
Supreme Court of India
Suresh Nanda vs C.B.I on 24 January, 2008
Bench: P Naolekar, M Katju

CASE NO.:

Appeal (crl.) 179 of 2008

PETITIONER:

SURESH NANDA

RESPONDENT:

C.B.I.

DATE OF JUDGMENT: 24/01/2008

BENCH:

P.P. NAOLEKAR & MARKANDEY KATJU

JUDGMENT:

JUDGMENT

O R D E R

[ ARISING OUT OF S.L.P.(CRL.) 3408 OF 2007 ]

1. Leave granted.

2. The appellant claims to be a non-resident Indian settled in United Kingdom for the last 23 years. The passport of the appellant as well as other documents were seized by the respondent from 4, Prithviraj Road, New Delhi in a search conducted on 10.10.2006 when the appellant was on a visit to India. The said search and seizure was pursuant to an F.I.R. dated 9.10.2006 registered on the basis of a sting operation carried out by a news portal in the year 2001. The passport seized during the search was retained by the C.B.I. officials. An application was moved by the appellant before the Special Judge, C.B.I., Patiala House Courts, New Delhi praying for release of his passport so that he can travel abroad to London and Dubai for a period of 15 days. The learned Special Judge, by order dated 15.1.2007, directed the release of the passport to the appellant by imposing upon him certain conditions. Aggrieved against the order passed by the learned Special Judge, C.B.I., the respondent preferred a Criminal Revision before the High Court. The High Court, by order dated 5.2.2007, reversed the order of the learned Special Judge and refused to release the passport to the appellant. Aggrieved against the order of the High Court, present appeal, by special leave, has been preferred by the appellant.

3. Learned senior counsel appearing for the appellant submitted that the power and jurisdiction to impound the passport of any individual has to be exercised under the Passports Act, 1967 (hereinafter referred to as The Act). He specifically referred to sub-section (3)(e) of Section 10 of the Act which reads as under: (3) The passport authority may impound or cause to be impounded or revoke a passport or travel document –

(e) if proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before a criminal court in India:

Reference was also made to Section 10A of the Act which has been introduced by Act 17/2002 w.e.f. 17.10.2001.

4. Learned senior counsel for the appellant also placed reliance on the decision of 5- Judge Bench of this Court in Satwant Singh Sawhney Vs. D. Ramarathnam, Asstt. Passport Officer (1967) 3 SCR 525 wherein in para 31, it was held as under:

31: For the reasons mentioned above, we would accept the view of Kerala, Bombay and Mysore High Courts in preference to that expressed by the Delhi High Court. It follows that under Article 21 of the Constitution no person can be deprived of his right to travel except according to procedure established by law. It is not disputed that no law was made by the State regulating or depriving persons of such a right.

5. A similar view is reiterated in the decision rendered by 7-Judge Bench of this Court in Maneka Gandhi Vs. Union of India and another (1978) 1 SCC 248 wherein at page 280, it was held as under:

….Now, it has been held by this Court in Satwant Singh’s case (supra) that ‘personal liberty’ within the meaning of Article 21 includes within its ambit the right to go abroad and consequently no person can be deprived of this right except according to procedure prescribed by law. Prior to the enactment of the Passports Act, 1967, there was no law regulating the right of a person to go abroad and that was the reason why the order of the Passport Officer refusing to issue passport to the petitioner in Satwant Singh’s case (supra) was struck down as invalid. It will be seen at once from the language of Article 21 that the protection it secures is a limited one. It safeguards the right to go abroad against executive interference which is not supported by law; and law here means ‘enacted law’ or ‘State law’ (Vide A.K. Gopalan’s case). Thus, no person can be deprived of his right to go abroad unless there is a law made by the State prescribing the procedure for so depriving him and the deprivation is effected strictly in accordance with such procedure…..

6. On the other hand, learned Additional Solicitor General appearing for the respondent submitted that the passport was seized and impounded by exercising the powers under Section 102 read with Sections 165 and 104 of Code of Criminal Procedure (hereinafter referred to as the Cr.P.C.). He further contended that the power to retain and impound the passport has been rightly exercised by the respondent as there is an order dated 3.11.2006 passed by the learned Special Judge for C.B.I. exercising the power under Section 104 of Cr.P.C.

7. Sub-section (3)(e) of Section 10 of the Act provides for impounding of a passport if proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before a criminal court in India. Thus, the Passport Authority has the power to impound the passport under the Act. Section 102 of Cr.P.C. gives powers to the police officer to seize any property which may be alleged or suspected to have been stolen or which may be found under circumstances which create suspicion of the commission of any offence. Sub-section (5) of Section 165 of Cr.P.C. provides that the copies of record made under sub-section (1) or sub-section (3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance to the offence whereas Section 104 of Cr.P.C. authorizes the court to impound any document or thing produced before it under the Code. Section 165 of Cr.P.C. does not speak about the passport which has been searched and seized as in the present case. It does not speak about the documents found in search, but copies of the records prepared under sub-section (1) and sub-section (3). Impound means to keep in custody of the law. There must be some distinct action which will show that documents or things have been impounded. According to the Oxford Dictionary impound means to take legal or formal possession. In the present case, the passport of the appellant is in possession of CBI right from the date it has been seized by the CBI. When we read Section 104 of Cr.P.C. and Section 10 of the Act together, under Cr.P.C., the Court is empowered to impound any document or thing produced before it whereas the Act speaks specifically of impounding of the passport.

8. Thus, the Act is a special Act relating to a matter of passport, whereas Section 104 of the Cr.P.C. authorizes the Court to impound document or thing produced before it. Where there is a special Act dealing with specific subject, resort should be had to that Act instead of general Act providing for the matter connected with the specific Act. As the Passports Act is a special act, the rule that general provision should yield to the specific provision is to be applied. See : Damji Valaji Shah & another Vs. L.I.C. of India & others [AIR 1966 SC 135]; Gobind Sugar Mills Ltd. Vs. State of Bihar & others [1999(7) SCC 76]; and Belsund Sugar Co. Ltd. Vs. State of Bihar and others [AIR 1999 SC 3125].

9. The Act being a specific Act whereas Section 104 of Cr.P.C. is a general provision for impounding any document or thing, it shall prevail over that Section in the Cr.P.C. as regards the passport. Thus, by necessary implication, the power of Court to impound any document or thing produced before it would exclude passport.

10. In the present case, no steps have been taken under Section 10 of the Act which provides for variation, impounding and revocation of the passports and travel documents. Section 10A of the Act which provides for an order to suspend with immediate effect any passport or travel document; such other appropriate order which may have the effect of rendering any passport or travel document invalid, for a period not exceeding four weeks, if the Central Government or any designated officer on its satisfaction holds that it is necessary in public interest to do without prejudice to the generality of the provisions contained in Section 10 by approaching the Central Government or any designated officer. Therefore, it appears that the passport of the appellant cannot be impounded except by the Passport Authority in accordance with law. The retention of the passport by the respondent (CBI) has not been done in conformity with the provisions of law as there is no order of the passport authorities under Section 10(3)(e) or by the Central Government or any designated officer under Section 10A of the Act to impound the passport by the respondent exercising the powers vested under the Act.

11. Learned Additional Solicitor General has submitted that the police has power to seize a passport in view of Section 102(1) of the Cr.P.C. which states: Power of police officer to seize certain property:(1) Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence.

In our opinion, while the police may have the power to seize a passport under Section 102(1) Cr.P.C, it does not have the power to impound the same. Impounding of a passport can only be done by the passport authority under Section 10(3) of the Passports Act, 1967.

12. It may be mentioned that there is a difference between seizing of a document and impounding a document. A seizure is made at a particular moment when a person or authority takes into his possession some property which was earlier not in his possession. Thus, seizure is done at a particular moment of time. However, if after seizing of a property or document the said property or document is retained for some period of time, then such retention amounts to impounding of the property/or document. In the Law Lexicon by P. Ramanatha Aiyar (2nd Edition), the word impound has been defined to mean to take possession of a document or thing for being held in custody in accordance with law. Thus, the word impounding really means retention of possession of a good or a document which has been seized.

13. Hence, while the police may have power to seize a passport under Section 102 Cr.P.C. if it is permissible within the authority given under Section 102 of Cr.P.C., it does not have power to retain or impound the same, because that can only be done by the passport authority under Section 10(3) of the Passports Act. Hence, if the police seizes a passport (which it has power to do under Section 102 Cr.P.C.), thereafter the police must send it along with a letter to the passport authority clearly stating that the seized passport deserves to be impounded for one of the reasons mentioned in Section 10(3) of the Act. It is thereafter the passport authority to decide whether to impound the passport or not. Since impounding of a passport has civil consequences, the passport authority must give an opportunity of hearing to the person concerned before impounding his passport. It is well settled that any order which has civil consequences must be passed after giving opportunity of hearing to a party vide State of Orissa Vs. Binapani Dei [Air 1967 SC 1269].

14. In the present case, neither the passport authority passed any order of impounding nor was any opportunity of hearing given to the appellant by the passport authority for impounding the document. It was only the CBI authority which has retained possession of the passport (which in substance amounts to impounding it) from October, 2006. In our opinion, this was clearly illegal. Under Section 10A of the Act retention by the Central Government can only be for four weeks. Thereafter it can only be retained by an order of the Passport authority under Section 10(3).

15. In our opinion, even the Court cannot impound a passport. Though, no doubt, Section 104 Cr.P.C. states that the Court may, if it thinks fit, impound any document or thing produced before it, in our opinion, this provision will only enable the Court to impound any document or thing other than a passport. This is because impounding a passport is provided for in Section 10(3) of the Passports Act. The Passports Act is a special law while the Cr.P.C. is a general law. It is well settled that the special law prevails over the general law vide G.P. Singh’s Principles of Statutory Interpretation (9th Edition pg. 133). This principle is expressed in the maxim Generalia specialibus non derogant. Hence, impounding of a passport cannot be done by the Court under Section 104 Cr.P.C. though it can impound any other document or thing.

16. For the aforesaid reasons, we set aside the impugned order of the High Court and direct the respondent to hand over the passport to the appellant within a week from today. However, it shall be open to the respondent to approach the Passport Authorities under Section 10 or the authorities under Section 10A of the Act for impounding the passport of the appellant in accordance with law.

17. We, however, make it clear that we are not expressing any opinion on the merits of the case and are not deciding whether the passport can be impounded as a condition for grant of bail.

18. The appeal stands disposed of accordingly.

 

**

 

*The Author is a Supreme Court advocate – and can be reached at bharat.law06@gmail.com

Supreme Court on issuance of non bailable warrants.

Since the execution of non bailable warrant directly involves curtailment of liberty of a person, warrant of arrest cannot be issued mechanically but only after recording satisfaction that in the facts and circumstances o the case it is warranted. The Courts have to be extra cautious and careful while directing issue of non bailable warrants else a wrongful detention would amount to denial of constitutional mandate envisaged in Article 21 of the Constitution of India. At the same time, there is no gainsaying that the welfare of an individual must yield to that of community. Therefore, in order to maintain the rule of law, and to keep the society in functional harmony, it is necessary to strike a balance between an individual’s rights, liberties and privileges on the one hand, and the State on the other.”

— Justice D.K.Jain in Raghuvansh Dewanchand Bhasin vs. State of Maharashtra (2012) 9 SCC 791

Supreme Court on Condonation of Delay on State’s application

“In cases involving the state and it’s agencies/instrumentalities, the court can take note of the fract that sufficient time is taken in the decision making process but no premimum can be given for total lethargy or utter negligence on the part of the officers of the state and/or it’s agencies/instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting a plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public Interest.”

…G S Singhvi J. in Maniben Devraj Shah v. Municipal Corpn. of Brihan Mumbai, (2012)

 

In a similar matter J. Sathasivam earlier in 2012 – held “In a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, a government department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern techonlogies being used and available. The law of limitation undoubtedly binds everybody including the government.

Post Master General v. Living Media Ltd. (2012) 3 SCC 563.

This judgments do well to take the trend exhibited in Mst. Katiji & G.Remgowda forward…..

 

Supreme Court on Corruption Subramanium Swamy vs Manmohan Singh

“Corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity which are the core values in our Preambular Vision. Therefore the duty of the court is that any anti-corruption law has to be interpreted worked out in such a fashion as to strengthen the fight against corruption. That is to say in a situation where two constructions are eminently reasonable, the court has to accept the one that seeks to eradicate corruption to the one which seeks to perpetuate it.” A.K.Ganguly J. in Subramanium Swamy v. Manmohan Singh, (2012) 3 SCC 65, para 68
In this decision the Hon’ble Court laid down a outer time limit of 3 months (1 month if AG is to be consulted) for grant of sanction in corruption cases. Apposite also is to remind the readers that in the past courts have uheld the direct cognizance of corruption matters by Sessions Courts to expediate matters, and also it has been held that there would not be any stays in corruption matters.

Daughter’s right in father’s property ? How to seek a partition

Since this is an area of profound concern these days, and I’ve been facing endless queries on this, here is a basic & overly simplistic layman’s view on the law as it was before 2005 and after it vis-a-vis daughter’s right in joint family/coparcenory/ancestral properties among Hindus in India.  

Concept of Joint Family in a nutshell

We all are aware of the concept of a Joint Family – wherein people related by blood/marriage descending from a common ancestor form a unit, live, work, worship together. This includes all sorts of people, sons/daughters (married, widowed or otherwise), mother, widows of sons etc. All these people have right to maintenance out of joint family properties and assets.

The Coparcenory

Within this group there is a narrower group called the coparcenory, with it’s constituents being referred to as the coparcenors have birth rights (ownership) in the joint family/ancestral properties, which they can get culled out anytime by a paritition, they have the right to sell/gift/will away their share of the property, they also have the power to assail any wrongful transfer of property made by Karta (Karta, for those who arrived late is the eldest lineal member of the family, entrusted with task of managing the property, Karta has the power to even alienate the whole of property in certain circumstantial compulsions).

BEFORE 2005

Now before 2005 only son, son’s son, son’s son’s son were coparcenors, with the daughters only having a right to reside in the property and get their marriage expenses defrayed out of the same. A son would acquire proportionate ownership in the property moment of it’s conception, but not the girls.

POST 2005

Post 2005 – now a daughter also would acquire ownership rights on the property from the time of her conception (provided ofcourse she is born alive). She has the same rights of partition and power to deal with the property as she pleases, this right extends to seeking a partition and sale of the family home as well. Hence there is a complete parity in terms of rights.  However it would be profitable to remind ourselves that these rights extend to only ancestral properties (or joint family properties – are properties which people inherit from their paternal ancestors/property through into common hotch potch/property acquired by joint family efforts/accretions etc) and not separate properties (which include property earned by gift/will/acquired through purchase from own funds/acquisitions from own skill etc.)

But there is a rider – The right to get your equivalent share of the property can be exercised only in cases where there has been no formal partition (partition either through court final decree or through a registered partition deed) before 20.12.2004. In case a partition has already been finalised before the said date, the right collapses.

HOW TO ASSERT YOUR RIGHT ? FILING A SUIT FOR PARTITION  

The Daughters (married, widowed or unmarried) now can approach the civil court for seeking a partition from their brothers/family/father etc. Their right is equal. Once acquired a lady is free to deal with the property the way she likes and it becomes her absolute property and her children have no right during her lifetime.

A Daughter can file a suit for partition, on which certain court fees is payable. This court fee depends on the value of her share in the property and has to be calculated as per court fee chart.

….Family Law Primer by Adv. Bharat Chugh