Throwing shoes to any body is a crime under Indian Penal Code

Contributed by Deepak Miglani

Scribe lobs shoe at Chidambaram
http://timesofindia.indiatimes.com/articleshow/4369381.cms
Retired school principal hurls shoe at Navin Jindal
http://www.expressindia.com/latest-news/Another-shoe-hurled-Navin-Jindal-ducks-this-one/445474/

If a man throws a shoe, or on any other way to insult with the intention of using criminal force and in such case , if he is found guilty, he was sentenced to a maximum two years imprisonment.
In such matter, case may be registered under IPC Section -355 (intended to insult anyone's use of criminal force). But in such cases victim has to complain to the police. Since this case is a non- cognizable Offence , so according to the provisions of Crpc. Police can not arrest the accused directly by registering the F.I.R. In non-cognizable offence police can not arrest a person without warrant.
In such type of cases, F.I.R. can be registered on the direction of Magistrate due to complaint and then accused can be arrested. Such type of cases come under the category of bailable offence. So accused get the bail easily. If any body convicted under Section-355 of I.P.C, the he/she can be punished with imprisonment of either description for a term which may extend to two year, or with fine, or with both.
(Section 355 IPC- Assault or criminal force with intent to dishonour person, otherwise than on grave provocation
Whoever assaults or uses criminal force to any person, intending thereby to dishonour that person, otherwise than on grave and sudden provocation given by that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.)

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Admissibility of electronic records in evidence

Any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned below are satisfied in relation to the information and computer in question. This information shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein or which direct evidence would be admissible.
The conditions referred to in above paragraph in respect of a computer output shall be the following, namely:-

(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the materiel part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,-
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,
and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purpose of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

For this purposes -
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
Explanation.- For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.]-Section 65 B Indian Evidence Act 1872

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Torture in custody:Don’t turn innocent suspects into hardcore criminals

by R.D. Sharma

IN a recent landmark judgment, the Supreme Court expressed its serious concern over the increasing number of custodial deaths and called upon the law enforcing agency to take remedial measures.
A Bench sconsisting of Justice Arijit Pasayat and Justice A.K. Ganguly observed, “Torture in custody flouts the basic rights of the citizens recognised by the Indian Constitution and is an affront to human dignity. Police excesses and the maltreatment of detainees/ undertrial prisoners or suspects tarnish the image of any civilised nation and encourage the men in ‘khaki’ to consider themselves to be above the law and sometimes even to become law unto themselves”.
Quite close on the heals of it, another apex court Bench directed all the state governments to file their status reports detailing the exact number of such incidents and steps taken to check them at their end.
The use of brutal force and third-degree methods on suspects and undertrials remains one of the major and at times sole weapons of the Indian police. Reports of states/Union Territories reveal that the enforcers of the law are among the major perpetrators of crime against humanity. Extreme torture or assault in custody often results in grievous injuries including death. Police lock-ups and prison cells in the country are only mirrors reflecting a deeper malaise and telling a story that to be imprisoned in India can by itself amount to a death sentence.
The number of custodial deaths is steadily increasing despite the National Human Rights Commission’s watchful role and repeated strictures from the judiciary against police brutality and repression. Worse, several such deaths are not factually reported and are brazenly dismissed as suicides or encounter killings.
The police is notorious in its use of the third degree — a short-cut to investigation. Unable to cope with rising crime and hierarchical pressures from above, the police resort to it to produce quick results. Those subjected to such torture often breakdown and confess to crimes they may have never committed. Not hardcore criminals but first-time offenders and petty criminals from the poor and vulnerable sections of society are the easiest victims — be they children, women or members of marginalised communities.
It is scandalous that there is no proper mechanism in place to check such brutality. Though India has signed the Convention Against Torture, it has refused to ratify it on the plea that there are enough laws and safeguards against police torture!
The Supreme Court had made several suggestions to check police atrocities which include additional powers to the NHRC and the CBI so that they can take stern and immediate action on public complaints against the police. Yet, nothing has changed. The reasons are not far to seek why the menace still persists.
Our jail manuals are outdated. Policemen are not trained in the methods of modern scientific investigation aimed at checking the use of force. Rules and laws are flouted with impunity in the belief that the men in uniform are accountable to none. There is no forum where the detainee can seek redress. Since there are no witnesses to contradict the police version in the event of a custodial death, the accused often goes scot-free. Rare indeed is the case in which the guilty is brought to book.
In March last year, the Delhi High Court observed that courts must not overlook the fact that custodial death is the worst crime in a civilised society. It called for an amendment in the Evidence Act so that the policemen guilty of custodial torture do not escape for lack of evidence.
The National Police Commission (NPC) long ago recommended surprise visits by senior officers to police stations to deter the use of excessive force in lockups. The Law Commission too recommended that custodial deaths should be deemed as murder unless proved otherwise, placing the onus of disproving it on the police. The Jiwan Commission, which had investigated cases of torture in Punjab some years ago, suggested payment of compensation to victims and its recovery from the guilty cops and jail personnel.
Custodial crimes infringe upon human rights and the confessions so extracted often fail to stand the legal scrutiny. Violence at the hands of the police is counter-productive. It can turn innocent suspects into hardcore criminals. The grouse they have against a particular policeman motivates them to rebel against the country.
The government may boast it has the Press and the judiciary as safeguards against human rights violation. But the lack of media scrutiny in remote areas, coupled with the failure to hand down exemplary punishment to the perpetrators of violence, has not made any difference to the steadily growing menace of custodial violence.
Disciplinary action is seldom taken against the guilty cops. The inquiry proceedings are often shelved. Transfers and suspensions are just routine measures to buy time. Cases are swept under the carpet before long as public memory is short and media outcry short-lived. Such cases must be investigated expeditiously by an independent agency — perhaps the NHRC’s investigative wing — rather than the police who tend to go soft on crime committed by colleagues.
After all, a policeman is a custodian of law and an offence on his part, as observed by the NPC, is inexcusable due to the power of suppression and repression he wields. In a civilised police set-up, people don’t get killed in fake encounters or lock-ups. Nor do enforcers of the law use third-degree methods to make the undertrials confess. A professional police force presupposes better methods to collect information. If the investigation is efficient and foolproof, there will be more convictions and fewer acquittals.
Training and recruitment are the other important areas that need to be addressed promptly. The training programme should be reoriented to bring about a change in the police attitude and mindset in regard to investigations. They must recognise and respect human rights and adopt scientific investigation methods. Arguably, a dramatic improvement in the working conditions of the police could lessen brutality.
Simultaneously, the recommendations on police reforms made by the NPC and the Soli J. Sorabjee Committee must urgently be implemented to impart greater accountability and transparency in the functioning of the force. There is a strong case for insulating the police from executive control and political influence. It should operate under an independent commission on the pattern that exists in Britain, with little or no scope for pulls and pressure from above.

The writer is Senior Advocate and Consultant, Delhi High Court

Source:- The Tribune 5 April 2009
http://www.tribuneindia.com/2009/20090405/edit.htm#3

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Legal aid and speedy justice: A step forward

by Justice Pritam Pal

THE Supreme Court has reminded us several times through landmark judgements that speedy trail and free legal aid to the needy are fundamental rights of an accused who cannot be subject to hardship by delay in proceedings. Most liberal democracies consider it necessary to provide legal aid to those unable to afford legal representation. Failure to do so would deprive them of access to the court system.
This would also violate the principles of equality before the law and due process under the rule of law. The concept, however, finds its traces in Rig Veda and the social system of ancient India having operated along the principles of “Dharma”.
The Legal Service Authorities Act, 1987, is aimed at ensuring equal opportunities for procuring justice irrespective of the weak or economic conditions and social deprivation of the litigants. The committee for implementing legal aid schemes is actively working to catalyse the efforts of the state schemes or statues, and to bring about the desirable uniformity in their programmes and provisions.
Legal aid implies giving free legal services to those who cannot engage a lawyer in any court, tribunal or authority. It is the state’s duty to ensure that the legal system promotes justice on the basis of equal opportunity for all its citizens. It must, therefore, arrange to provide free legal paid to those who cannot access justice due to economic and other disabilities.
Article 39A of the Constitution states that if the accused does not have sufficient means to engage a lawyer, the court must provide one for the defense of the accused at the state’s expense. Section 304 of the Criminal Procedure Code casts the constitutional duty to provide legal aid arises from the time the accused is produced before the magistrate for the first time and continues whenever he is produced for remand.
In Suk Das vs Union Terrotory of Arunachal Pradesh (1986) 2 SCC 401, the Supreme Court held that the police must inform the nearest Legal Aid Committee about a person’s arrest. The magistrates and sessions judges must inform every accused who appears before them and who is not represented by a lawyer on account of his poverty that he is entitled to free legal services at the state’s cost. Failure to provide legal aid to an indigent accused, unless it was refused, would vitiate the trial. It might even result in setting aside a conviction and sentence.
The trial should not be delayed so much as to cause grievance to the victim and add to his agony. The right to speedy trial has been implicitly read in Article 21. The Supreme Court in Hussainara Khatoon’s case held that any accused who has been denied this right, the state is under a constitutional mandate to take all necessary measures for securing this right to the accused.
Thus, the letter of law recognises the right of an accused to speedy trial, but the problem is how to make it a reality. The test of a good law is that it must be able to achieve its goals, that is, the dispensation of justice to the individual and society.
The apex court has decried administrative and judicial indolence in several of its decisions. Justice V.R. Krishna Iyer once remarked in a judgement: “Our justice system, even in grave cases, suffers from a low motion syndrome which is lethal to “fair trial” whatever the ultimate decision. Speedy justice is a component of social justice since the community, as a whole, is concerned in the criminal being condignly and finally punished within a reasonable time and the innocent being absolved from the inordinate ordeal of criminal proceedings”.
The Supreme Court ruled that to put a man in prison and forget his personhood thereafter, to deprive a man of his personal liberty for an arbitrary period without monitoring by law, to keep a man in continued custody unmindful of just, fair and reasonable procedure would shake in the rule of law and is totally against the mandates of Part III of the Constitution. The trial should be disposed of expeditiously for which the government has taken adequate steps.
Lok Adalats are result of one such initiative. Its objective, as enunciated in the statute, is to promote “a compromise or settlement between the parties” and deliver justice with “utmost expedition” treading on the path of legal principles and the principles of justice, equality and fair play.
These are judicial bodies set up for the purpose of facilitating peaceful resolution of disputes between the litigating parties. They have the powers of an ordinary civil court, like summoning, examining evidence etc. Its orders are like those by the court, but the parties cannot appeal against them.
Lok Adalats can resolve all matters except criminal cases that are non-compoundable. Either one or both parties to litigation can make an application to the court for transferring the case to a Lok Adalat. Where no compromise or settlement is made, the case is transferred to the court which deals with the litigation from the stage the Lok Adalat had reached.
The Legal Services Authorities Act makes an effort for a countrywide legal aid movement. It broadens the ambit and umbrella of legal aid and seeks to encourage community participation in the legal aid services. This establishment is a signal to a bright future and a giant step forward in the march towards the rule of law.

The writer is Judge, Punjab and Haryana High Court, Chandigarh

Source:- The Tribune 5 April 2009
http://www.tribuneindia.com/2009/20090405/edit.htm#2

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State has to protect its police

The Andhra HC ruling has grave implications for national security, says C.B.S. Venkataramana
THE Supreme Court has rightly stayed the Andhra Pradesh High Court ruling, declaring that cases of murder under Section 302 of the Indian Penal Code should be filed against the police in cases where individuals are killed in firing either in law and order situations or extremist operations.
Indeed, the High Court order has grave implications for the maintenance of public security in the country. If it is enforced, policemen bearing arms — from those escorting VVIPs to those on patrol duty — will be reluctant to open fire. Otherwise, they will face charges of murder and possible life imprisonment for discharging their duty.
It is the state’s responsibility to protect the citizens. Police is the state’s coercive and enforcing arm. If individual police officers have to stand trial and defend themselves for their actions done as a part of their lawful duties, what is the protection and immunity that the society and state offer to them for having acted on their behalf in good faith? Who will come forward in future to act on behalf of the state in the fight against armed extremists, terrorists and anti-social elements and put themselves in risk for life imprisonment?
In the criminal justice system, the entire burden of investigation and proof generally rests with the prosecution and the state. The police will have to prevent, detect, and investigate crimes and maintain public order. If the High Court ruling is implemented, the policeman would probably take the path of least resistance and simply duck the responsibility for such functions by filing innocuous reports.
With over 110 districts in the country being under severe extremist threat and terrorist strikes in some state capitals, an overwhelming negative motivation will permeate the police officers in working in these areas of policing, if the state and society are unwilling to protect and indemnify their actions done in discharge of their official duties.
Peculiar problems will crop up. When police officers involved in deaths due to ‘encounter’ shoot-outs or crowd-control firings are prosecuted for murder, as in other cases, the state has to take up the prosecution. However, if the police have acted on duty as part of their responsibilities on behalf of the state, they would also have to be defended by the state. Or, would they be left to their own?
Moreover, if death in police firing is treated as prima facie murder and case initiated against the policeman involved, why should not the policemen also be charged for assault, etc. for injuries sustained by individuals in police action in crowd control operations? Secondly, there would be no merit in any policeman carrying firearms since a firearm’s purpose is to ‘shoot to kill’, if need be. By logical conclusion, it is pointless to provide armed escort to VVIPs.
The police might even become averse to carrying firearms as being avoidably risky. Shy of using weapons, police will cease to be the state’s coercive and enforcing arm. If the state itself is not to disintegrate, such functions would then have to be necessarily entrusted to some other force, say the army. The whole question of trusting such a force with use of firearms and causing death if need be would again rise and go through the same full circle.
When the trial court magistrate determines that the police shall stand trial for murder for deaths, the investigation has to be entrusted to other officers in the same police department, whose impartiality would naturally be suspect. Would a separate police force be then raised under the courts’ or some other authority’s control to investigate offences determined to have been committed by the police personnel prima facie?
Another implication of the High Court ruling relates to the degree of trust and distrust that ought to be placed by society in the police force vis-à-vis other wings of the state. Considered together with an earlier Supreme Court order that no member of the judiciary, judge or magistrate, shall be arrested by the police for any offence whatsoever without the permission of the higher courts, the law of the land as laid by these two judgments is that, on one hand, absolute trust shall be placed by society in the judiciary, and judges not arrested or cases filed for any offence small or big, even murder committed by them in their private capacity, without prior permission from the higher judiciary.
On the other, while police shall be trusted with the use of weapons that are used to kill, the police force itself shall be completely distrusted, and it be left to the judgment and discretion of a trial court magistrate whether the policeman’s version of facts and events should be believed or not.
A better alternative to this total distrust of the police force could be to compulsorily arrange for a judicial magistrate and a press television crew team to accompany every posse of armed police force proceeding on mob control functions or extremist and terrorist control patrolling tasks. Only then would the judicial magistrate or judge be able to take the sum total of circumstances of the incident, together with the extreme agitation and terror of the moment and the scent of fear of life and death that the police personnel face, in determining whether or not the action taken by them, leading to causing of a death, did actually occur in bona fide discharge of their lawful functions.
No individual or judge, sitting in the cool confines of his office or court, doing a legalistically clinical post mortem of events basing merely on reported descriptions of the event, do any justice in deciding whether the acts that were done by the police personnel under tension, facing the risk of death, were justified or otherwise. It has to be inferred, albeit sadly, that the High Court order shows an impractical and armchair approach to the matter.
A further alternative could be that instead of a case of murder being automatically initiated in the appropriate trial court in every case of death in police firing (death in police lock-up being excluded), a permanent statutory commission could be constituted for each state to scrutinise and review all such cases. The commission could have a reputed retired member of the higher judiciary as chairperson, reputed retired administrators and police officers with experience of working in districts with extremist/terrorist violence, and one or two reputed dispassionate members of the civil society as members.
The commission could scrutinise and review every case of death in police firing and give their finding to the government whether a prima facie case of abuse of powers is involved, and such finding could be binding on the government. This commission could be given statutory status through appropriate provisions to the Criminal Procedure Code.
Also, where criminal cases of murder are initiated against police officers in instances of death in police firing, the onus of proof of self-defence might be shifted from the individual police officer to the prosecution to prove that the said acts were not done in self-defence. For, it would be grossly unfair and impractical to put a police officer in the same situation as that of a private individual, who, if had killed another in self-defence, has to prove the same, the prima facie assumption being that that act was not in self-defence.
The issue in question is whether the state has the right and duty to protect itself and its very existence; and if so, what means are just in that process. A demoralised and psychologically disengaged police force can be the weakest link of the chain, however strong it may be, in its ability and resolve to defend the state.

The writer, a senior IAS officer, is Joint Director-General, Ministry of Shipping, Government of India, Mumbai

Source:- The Tribune 5 April 2009 http://www.tribuneindia.com/2009/20090405/edit.htm#1

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‘No tinkering with chargesheet’ –Supreme Court of India

This significant ruling from the Supreme Court is sure to nip the growing tendency among ruling political parties to change the course of a investigation by forcing the police to abuse the law permitting further probe and filing of additional chargesheet.

The apex court’s ‘do not tinker with the course of investigation’ message came loud and clear in its judgment delivered on Thursday by a Bench comprising Justices S B Sinha and P Sathasivam. It ruled that the police could not effect radical changes in the crux of a chargesheet by filing an additional chargesheet after conducting further probe.

This means, if the police have made a person accused in the first chargesheet, it cannot, while submitting an additional chargesheet, give a clean chit to him. Under Section 173 of the Criminal Procedure Code, police had the power to carry out further probe into a case even after filing a chargesheet and on discovery of further evidence could file an additional chargesheet, said the Bench stating the law.

“Further investigation is permissible, however, reinvestigation is prohibited. The law does not mandate taking of prior permission from the magistrate for further investigation. Carrying out a further investigation even after filing of the chargesheet is statutory right of the police,” it said.

However, police could undertake reinvestigation only with the prior permission of the concerned magistrate, said Justice Sathasivam, writing the judgment for the Bench.

Explaining the meaning of Section 173(8) of CrPC, he said: “Further investigation is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether.”

On completion of the “further” probe, the investigating agency had to forward to the magistrate a “further” report and not a fresh report regarding “further” evidence obtained during such investigation, the Bench said.
Source:- The Times of India 4 April 2009 P. 13 Delhi
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