Archive
Child Access & Custody Guidelines- Approved by Bombay High Court, Courtesy “Child Rights Foundation”
Child Access & Custody Guidelines- Approved by Bombay High Court
:
N.J. Jamadar,
Registrar (Inspection-II),
High Court (A.S.),
Bombay.
To :
Shri Jatin Katira,
Child Rights Foundation,
B-3-13-04, Sector 3,
Vashi, Navi Mumbai-400 703.
Subject : Child Access & Custody
Sir,
With reference to aforementioned subject, I am directed to inform
you that the Hon’ble Guardian Judges of the Family Courts in the State of
Maharashtra, have been pleased to direct the circulation of the Guidelines
amongst the Family Court Judges and the Marriage Counsellors in the
Family Courts across the State of Maharashtra.
I convey my gratitude for your kind gesture in preparing a detail
guidelines which may prove beneficial to the Judges of the Family Courts as
well as the Marriage Counsellors in determining Child access and custody
matters.
With regards,
Yours faithfully,
Registrar (Inspection – II)
CrPC amendment: AP HC: Courtesy Rajesh
498A Uttar Pradesh(UP) circular
Karnataka DGP Circular – 498A arrest guidelines
Karnataka DGP Circular – 498A arrest guidelines
English Translation:
No: 10/ /2010 Director general and Inspector General of Police
Station, Nrupatunga road, Bangalore
Date: 01-10-2010
Sub: Under 498, 498a I.P.C and Dowry prohibition act, the Procedure to arrest the Accused.
Based on the study of complaints of 498, 498a IPC and Dowry prohibition act, some of the cases registered against the husband and his near and dear innocent relatives found making false allegation. It is common that in these kinds of complaints the petitioner happens to involve the accused relatives. And after investigation it is seen that the in this type of complaints the accused remains/found as innocent. The Police officers make mistake without making the decision whether they have to arrest accused or not after collecting the correct witness and proof of evidence.
According to Orders of Honorable Supreme court of India in Jogindar Kumar vs Uttar Pradesh state direction. Police officers have got power to arrest as per C.R.P.C 41. BUT before arresting they have to do the investigation and collect the enough witness and proof of evidence. Then they have the confirm whether he/she (accused) can be arrested. Then the accused is arrested. Otherwise Arresting the accused based on the complaint of anybody or because of the names are there in FIR is not correct.
Taking the consideration as per above guideline of Honorable Supreme court of India, It is necessary to take Action to Protect the Human rights of any innocent human being.
Because of this before arresting any person (Female, Male and Children’s) under these acts, the investigation report should be reviewed by the corresponding superintendent of police/Deputy commissioner of police and upon getting the permission only the accused should be arrested. In this regard the corrsponding police officers should submit the collected evidence to corresponding superintendent of police/Deputy commissioner of police for review. The higher offices after analyzing the merits and each of the accused, they have to take decision to whether to arrest or not. It is proper to arrest once after getting the permission.
In all there kinds of complaints or Acts .The procedure should be followed or noticed by all higher officials.
Director general and inspecter general of police
To,
1) To all police offices (Names)
2.) To all police officers K.G.F and Railways.(Names)
Copy
To all jurisidiction Police officers
Andhra Pradesh 498A IPC related circulars
AP DGP SP Circulars.pdf ——————->AP DGP SP Circulars
AP-CID.pdf———————————–>AP-CID
AP-Home Dept.pdf—————————>AP-Home Dept
NFHS obtains 498A IPC investigation procedure from Andhra Pradesh Police
498A IPC misuse circular from DGP Rajhasthan on the lines of MHA Advisary
Arrest guidelines by Supreme Court of India in JOGINDER KUMAR VS STATE OF U.P.
THE SUPREME COURT OF INDIA
JOGINDER KUMAR
Vs.
STATE OF U.P.
DATE OF JUDGMENT: 25/04/1994
BENCH:
VENKATACHALLIAH, M.N.(CJ)
MOHAN, S. (J)
ANAND, A.S. (J)
CITATION:
1994 AIR 1349 1994 SCC (4) 260
JT 1994 (3) 423 1994 SCALE (2) 662
JUDGMENT:
ORDER
1. This is a petition under Article 32 of the Constitution of India. The petitioner is a young man of 28 years of age who has completed his LL.B. and has enrolled himself as an advocate. The Senior Superintendent of Police, Ghaziabad, Respondent 4 called the petitioner in his office for making enquiries in some case. The petitioner on 7-1-1994 at about 10 o’clock appeared personally along with his brothers Shri Mangeram Choudhary, Nahar Singh Yadav, Harinder Singh Tewatia, Amar Singh and others before Respondent 4. Respondent 4 kept the petitioner in his custody. When the brother of the petitioner made enquiries about the petitioner, lie was told that the petitioner will be set free in the evening after making some enquiries in connection with a case.
2. On 7-1-1994 at about 12.55 p.m., the brother of the petitioner being apprehensive of the intentions of Respondent 4, sent a telegram to the Chief Minister of U.P. apprehending his brother’s implication in some criminal case and also further apprehending the petitioner being shot dead in fake encounter.
3. In spite of the frequent enquiries, the whereabouts of the petitioner could not be located. On the evening of 7-1-1994, it came to be known that petitioner is detained in illegal custody of 5th respondent, SHO, P.S. Mussoorie.
4. On 8-1-1994, it was informed that the 5th respondent was keeping the petitioner in detention to make further enquiries in some case. So far the petitioner has not been produced before the Magistrate concerned. Instead the 5th respondent directed the relatives of the petitioner to approach the 4th respondent SSP, Ghaziabad, for release of the petitioner.
5. On 9-1-1994, in the evening when the brother of petitioner along with relatives went to P.S. Mussoorie to enquire about the well being of his brother, it was found that the petitioner had been taken to some undisclosed destination. Under these circumstances, the present petition has been preferred for the release of Joginder Kumar, the petitioner herein.
6. This Court on 11-1-1994 ordered notice to State of U.P. as well as SSP, Ghaziabad.
7. The said Senior Superintendent of Police along with petitioner appeared before this Court on 14-1-1994. According to him, the petitioner has been released. To question as to why the petitioner was detained for a period of five days, he would submit that the petitioner was not in detention at all. His help was taken for detecting some cases relating to abduction and the petitioner was helpful in cooperating with the police. Therefore, there is no question of detaining him. Though, as on today the relief in habeas corpus petition cannot be granted yet this Court cannot put an end to the writ petition on this score. Where was the need to detain the petitioner for five days; if really the petitioner was not in detention, why was not this Court informed are some questions which remain unanswered. If really, there was a detention for five days, for what reason was he detained? These matters require to be enquired into. Therefore, we direct the learned District Judge, Ghaziabad to make a detailed enquiry and submit his report within four weeks from the date of receipt of this order.
8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?
9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violator or the law abider; of meeting the challenge which Mr Justice Cardozo so forthrightly met when he wrestled with a similar task of balancing individual rights against society’s rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered.
In People v. Defore Justice Cardozo observed:
“The question is whether protection for the individual would not be gained at a disproportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Aclams case (People v. Adams) strikes a balance between opposing interests. We must hold it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass.”
10. To the same effect is the statement by Judge Learned Hand, in Fried Re3:
“The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten. Perfection is impossible; like other human institutions criminal proceedings must be a compromise.”
The quality of a nation’s civilisation can be largely measured by the methods it uses in the enforcement of criminal law.
11. This Court in Nandini Satpathy v. P.L. Dani4 (AIR at p.1032) quoting Lewis Mayers stated: (SCC p. 433, para 15)
“The paradox has been put sharply by Lewis Mayers:
‘To strike the balance between the needs of law enforcement on the one hand and the protection of the citizen from oppression and injustice at the hands of the law-enforcement machinery on the other is a perennial problem of statecraft. The pendulum over the years has swung to the right.’ “
Again (in AIR para 2 1, at p. 1033) it was observed: (SCC p. 436, para 23)
“We have earlier spoken of the conflicting claims requiring reconciliation. Speaking pragmatically, there exists a rivalry between societal interest in effecting crime detection and constitutional rights which accused individuals possess. Emphasis may shift, depending on circumstances, in balancing these interests as has been happening in America. Since Miranda there has been retreat from stress on protection of the accused and gravitation towards society’s interest in convicting law-breakers. Currently, the trend in the American jurisdiction according to legal journals, is that ‘respect for (constitutional) principles is eroded when they leap their proper bounds to interfere with the legitimate interests of society in enforcement of its laws…’. (Couch v. United State). Our constitutional perspective has, therefore, to be relative and cannot afford to be absolutist, especially when torture technology, crime escalation and other social variables affect the application of principles in producing humane justice.”
12. The National Police Commission in its Third Report referring to the quality of arrests by the police in India mentioned power of arrest as one of the chief sources of corruption in the police. The report suggested that, by and large, nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2% of the expenditure of the jails. The said Commission in its Third Report at p. 31 observed thus:
“It is obvious that a major portion of the arrests were connected with very minor prosecutions and cannot, therefore, be regarded as quite necessary from the point of view of crime prevention. Continued detention in jail of the persons so arrested has also meant avoidable expenditure on their maintenance. In the above period it was estimated that 43.2 per cent of the expenditure in the connected jails was over such prisoners only who in the ultimate analysis need not have been arrested at all.”
As on today, arrest with or without warrant depending upon the circumstances of a particular case is governed by the Code of Criminal Procedure.
13. Whenever a public servant is arrested that matter should be intimated to the superior officers, if possible, before the arrest and in any case, immediately after the arrest. In cases of members of Armed Forces, Army, Navy or Air Force, intimation should be sent to the Officer commanding the unit to which the member belongs. It should be done immediately after the arrest is effected.
14. Under Rule 229 of the Procedure and Conduct of Business in Lok Sabha, when a member is arrested on a criminal charge or is detained under an executive order of the Magistrate, the executive authority must inform without delay such fact to the Speaker. As soon as any arrest, detention, conviction or release is effected intimation should invariably be sent to the Government concerned concurrently with the intimation sent to the Speaker/Chairman of the Legislative Assembly/Council/Lok Sabha/Rajya Sabha. This should be sent through telegrams and also by post and the intimation should not be on the ground of holiday.
15. With regard to the apprehension of juvenile offenders Section 58 of the Code of Criminal Procedure lays down as under:
“Officers in charge of police stations shall report to the District Magistrate, or, if he so directs, to the Sub-Divisional Magistrate, the cases of all persons arrested without warrant, within the limits of their respective stations, whether such persons have been admitted to bail or otherwise.”
16. Section 19(a) of the Children Act makes the following provision:
“The parent or guardian of the child, if he can be found, of such arrest and direct him to be present at the Children’s Court before which the child will appear;”
17. In England, the police powers of arrest, detention and interrogation have been streamlined by the Police and Criminal Evidence Act,’ 1984 based on the report of Sir Cyril Philips Committee (Report of a Royal Commission on Criminal Procedure, Command-papers 8092 1981 1).
18. It is worth quoting the following passage from Police Powers and Accountability by John L. Lambert, p. 93:
“More recently, the Royal Commission on Criminal Procedure recognized that ‘there is a critically important relationship between the police and the public in the detection and investigation of crime’ and suggested that public confidence in police powers required that these conform to three principal standards: fairness, openness and workability.” (emphasis supplied)
19. The Royal Commission suggested restrictions on the power of arrest on the basis of the “necessity of (sic) principle”. The two main objectives of this principle are that police can exercise powers only in those cases in which it was genuinely necessary to enable them to execute their duty to prevent the commission of offences, to investigate crime. The Royal Commission was of the view that such restrictions would diminish the use of arrest and produce more uniform use of powers. The Royal Commission Report on Criminal Procedure Sir Cyril Philips at p. 45 said:
“… we recommend that detention upon arrest for an offence should continue only on one or more of the following criteria:
(a) the person’s unwillingness to identify himself so that a summons may be served upon him;
(b) the need to prevent the continuation or repetition of that offence;
(c) the need to protect the arrested person himself or other persons or property;
(d) the need to secure or preserve evidence of or relating to that offence or to obtain such evidence from the suspect by questioning him; and
(e) the likelihood of the person failing to appear at court to answer any charge made against him.”
The Royal Commission in the above said report at p. 46 also suggested:
“To help to reduce the use of arrest we would also propose the introduction here of a scheme that is used in Ontario enabling a police officer to issue what is called an appearance notice. That procedure can be used to obtain attendance at the police station without resorting to arrest provided a power to arrest exists, for example to be fingerprinted or to participate in an identification parade. It could also be extended to attendance for interview at a time convenient both to the suspect and to the police officer investigating the case……
20. In India, Third Report of the National Police Commission at p. 32 also suggested:
“An arrest during the investigation of a cognizable case may be considered justified in one or other of the following circumstances:
(i) The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror stricken victims.
(ii) The accused is likely to abscond and evade the processes of law.
(iii) The accused is given to violent behavior and is likely to commit further offences unless his movements are brought under restraint.
(iv) The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again.
It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines……”
The above guidelines are merely the incidents of personal liberty guaranteed under the Constitution of India.
No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do.
21. Then, there is the right to have someone informed. That right of the arrested person, upon request, to have someone informed and to consult privately with a lawyer was recognized by Section 56(1) of the Police and Criminal Evidence Act, 1984 in England (Civil Actions Against the Police Richard Clayton and Hugh Tomlinson; p. 313). That section provides:
“Where a person has been arrested and is being held in custody in a police station or other premises, he shall be entitled, if he so requests, to have one friend or relative or other person who is known to him or who is likely to take an interest in his welfare told, as soon as is practicable except to the extent that delay is permitted by this section, that he has been arrested and is being detained there.”
These rights are inherent in Articles 21 and 22(1) of the Constitution and require to be recognized and scrupulously protected. For effective enforcement of these fundamental rights, we issue the following requirements:
1. An arrested person being held in custody is entitled, if he so requests to have one friend, relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where he is being detained.
2. The police officer shall inform the arrested person when he is brought to the police station of this right.
3. An entry shall be required to be made in the diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly.
It shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with.
22. The above requirements shall be followed in all cases of arrest till legal provisions are made in this behalf. These requirements shall be in addition to the rights of the arrested persons found in the various police manuals.
23. These requirements are not exhaustive. The Directors General of Police of all the States in India shall issue necessary instructions requiring due observance of these requirements. In addition, departmental instruction shall also be issued that a police officer making an arrest should also record in the case diary, the reasons for making the arrest.
Hyderabad Police Commissioner – No arrest, without DCP permission
Delhi Police Commissioner – Circular Regarding Dowry Cases
http://ipc498a.files.wordpress.com/2008/06/mh-498a-circular.pdf
07/07 23/03/2007 DCP/HQ Police Head Quarters C&T BR/PHQ
CIRCULAR No. 7/2007
The Hon’ble High Court of Delhi while dealing with Criminal Misc. Nos. 7108 and 7262 of 2006 under Section 482 CrP.C., has laid down guidelines to be followed for investigation and trial of cases under section 498/A IPC, dowry, cases etc. The main -guidelines to be followed are as follows :-
1. Where allegations, are made that dowry has been given as a consideration for marriage, the list in terms of Rule 2 of the Dowry Prohibition (Maintenance of lists of Presents to the Bride and Bridegroom) Rules, 1985 must be insisted upon by the Investigating Officer.
2. Where there is expenditure of a huge amount of money without disclosing the source of income, police should insist upon compliance of Rule 2 of Dowry Prohibition (Maintenance of lists of Presents to the Bride and Bridegroom) Rules, 1985 (photocopy enclosed) and should not entertain any complaint if the rules have not been complied with.
3. In case a grown up and well educated women gets married to a person despite a demand for dowry, she and her family members also become accomplices under section 3 of the Dowry Prohitiion Act, 1961. Appropriate action should be taken against them.
4. If the compliant is against every member of the family of husband, the allegations cannot be taken at their face value and need to be scrutinized carefully.
All the investigating Officers and supervising officers must ensure strict compliance of the above mentioned instructions.
-Sd-
[ H.M.MEENA] DCPIHDQRS.
For Commissioner of Police:
Delhi.
No 20298/C&T(AC-II)/PHQ., dated 23/3/07
Copy. forwarded to the :-
1. – All Special Commissioners of Police, Delhi.
2. All Joint Commissioners of Police, Delhi.
3. All Additional Commissioners of Police, Delhi.
4. SO to Commissioner of Police, Delhi.
5. All Districts Units DCsP including P/PTC & FRRO, Delhi.
6. LA, So to CP/Delhi, All Insprs./PHQ, HAR/PHQ etc.
Delhi Police Commissioner Standing ORDER – Standing Order – GUIDELINES FOR ARREST
http://ipc498a.files.wordpress.com/2008/06/ys-dadwal-498a-standing-order-330_2007.pdf
| Standing Order
No.
|
Issue Date | Issued By | Issuing Unit | Issuing Branch |
| 330/2007 | 08/11/2007 | Commissioner of Police | Police Head Quarters | C&T (Ac-5) |
| Subject :GUIDELINES FOR ARREST | ||||
| Contents | ||||
| Standing Order No 330/2007 | ||||
Subject : GUIDELINES FOR ARREST
Contents
Standing Order No 330/2007
GUIDELINES FOR ARREST
The Hon’ble Supreme Court of India in the matter of Joginder Kumar Vs. State of UP
(Crl.WP No 9 of 1994) made the following observation :-
1. No arrest can be made because it is lawful for the Police Officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The Police Officer must be able to justify the arrest a part from his power to do so.
2. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person …….no arrest should be made with out a reasonable satisfaction reached after some investigation as to the genuineness and bonafides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest.
3. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the Officer effecting the arrest that such arrest is necessary and justified.
The following requirements also prescribed in the judgment:-
1. An arrest person being held in custody is entitled , if he so requests to have one friend relative or other person who is knowing to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where is being detained.
2. The police Officer shall inform the arrested person when he is brought to the police station of this right.
3. An entry shall be required to be made in the Diary as to who was informed of the arrest. These protections from power must be held to flow from Article 21 and 22 (1) and enforced strictly.
The Hon’ble Supreme Court of India in the case of D.K. Basu Vs. State of West Bengal issued the following requirement to be followed in all cases of arrest or detention.
1. The police personal carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designation of the arrestee must be recorded in a register and the case diary.
2. The police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.
3. A person who has been arrested or detained and is being held in custody in a police
station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being detained at the particular place unless the arresting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
4. The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside of District or town through the legal Aid Organization in the District and the police station of the area concerned telephonically with in a period of 8to12 hours after the arrest.
5. The person arrested must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
6. An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
7. The arrestee should where he so requests be also examined at the time of his arrest and major and minor injuries, if any present on his /her body must be recorded at the time. The Inspection Memo must be signed both by the arrestee and police officer affecting the arrest and its copy provided to the arrestee.
8. The arrestee should be subjected to medical examination by a trained doctor after every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by director, health Services should prepare such a panel for all Tehsils and Districts as well.
9. Copies of all the documents including the memo of arrest, referred to above should be sent to the Illaqa Magistrate for his record.
10. The arrestee may be permitted to meet his lawyer during interrogation though not through out the interrogation.
11. A Police control room should be provided at all district and state headquarters where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, with in 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.
The Supreme Court of India also directed that failure to comply with the said requirement shall apart from rendering the concerned official, liable for departmental action; also render him liable to be punished for contempt of Court and the proceedings for contempt of Court may be instituted in any High Court of the country, having territorial jurisdiction over the matter. These instructions are to be notified at every police station at a conspicuous place.
The Delhi High Court in Crl. M (M) 3875/2003 in ‘Court On its Own Motion Vs CBI’ made the following observations /directions regarding arrests under section 498A/406 IPC. The Court observed that Sections 498A/406 IPC which “are much abused provisions and exploited by the police and the victims to the level of absurdity………..every relative of the husband, close or distant old or minor is arrested by the police …………….unless the allegations are very serious nature and highest magnitude arrest should always be avoided”.
In a recent judgment in criminal appeal Nos 696/2004,748/2004,787/2004 and 749/2004 pronounced on 1/11/2007, the Delhi High Court observed that “………..In all these cases in the name of investigation , except recording statement of complainant and her few relatives nothing is done by police. The police does not verify any circumstantial evidence nor collect any other evidence about the claims made by the complainant’s family claiming spending of huge amounts is collected by the police. This all is resulting into gross misuse of the provision of law……………”.
Arrest of accused should be an exception and not a rule /routine from the allegations set out on FIR and other subsequent allegation or material collected during investigation ,
if necessary , only the prime /main accused whose primary role on commission of the offence has been established , should be arested , and that too after the prior written approval of the DCP.
In a nutsheel , the IOs/SHOs shall mandatorily comply the above directions in dealing with cases u/s 498A/406 IPC.
The earlier Standing Order issued vide No. 72967-730/C&T (AC-5)/PHQ dated 8/11/2007 is hereby withdrawn.
(Yudhbir Singh Dadwal)
Commissioner of Police,
Delhi
No.80033-132/C&T (Ac-5)/PHQ Dated New Delhi, the 21/12/2007
Copy to:-
1. All Spl CPs Delhi.
2. All Joint CPs Delhi
3. All Addl. CPs Delhi
4. All District/ Units including Princiopal /PTS and FRRO, Delhi
5. SO to CP Delhi
6. LA to CP, Delhi
7. All ACPs PHQ.
8. HAR/PHQwith 10 spare copies.
9. I/C Central Library/PHQ.
THE HON’BLE MR. JUSTICE R.REGUPATHI order and DGP-TN compliance report
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.08.2008
CORAM
THE HON’BLE MR. JUSTICE R.REGUPATHI
M.P. No.1 of 2008
in
Crl.O.P. No.10896 of 2008
ORDER
Pursuant to the direction of this Court dated 07.07.2008 to file compliance report, the Director General of Police in consultation with the Government, has issued the following Circular Memorandum:-
” Circular Memorandum
Sub- Filing of cases registered under Dowry Death / Suicide in All
Women P.S. – Instructions issued.
*****
The Honorable High Court has issued the following observation in M.P. No.1/2008 in Criminal Original Petition No.10896/2008 filed by Tr.Romaiah.
i) Except in cases of Dowry Death/suicide and offences of serious nature, the Station House Officers of the All Women Police Stations are to register F.I.R. only on approval of the Dowry Prohibition Officer concerned.
ii) Social workers/mediators with experience may be nominated and housed in the same premises of All Women Police Stations along with Dowry Prohibition Officers.
iii) Arrest in matrimonial disputes, in particular arrest of aged, infirm, sick persons and minors, shall not be made by the Station House Officers of the All Women Police Stations.
iv) If arrest is necessary during investigation, sanction must be obtained from the Superintendent of Police concerned by forwarding the reasons recorded in writing.
v) Arrest can be made after filing of the final report before the Magistrate concerned if there is non-cooperation and abscondance of accused persons, and after receipt of appropriate order (Non-Bailable Warrant).
vi) Charge sheet must be filed within a period of 30 days from the date of registration of the F.I.R. and in case of failure, extension of time shall be sought for from the jurisdiction Magistrate indicating the reasons for the failure.
vii) No weapon including Lathis/physical force be used while handling cases at the All Women Police Stations.
viii) Complainants/victims should be provided with adequate security/accommodation at Government Home and interest of the children must be taken care of.
ix) Sridana properties/movables and immovable to be restored at the earliest to the victims/complainants and legal aid may be arranged for them through Legal Services Authority for immediate redressal of their grievances.
2) The Commissioners of Police in cities and Superintendents of Police in Districts are requested to strictly follow the above instructions without any deviations.
3) Receipt of the same should be acknowledged.
Sd/- (29.07.2008)
For Director General of Police.”
2. In respect of suggestion Nos.8 and 11 made by this Court; in the letter, dated 01.08.2008, of the Director General of Police, it has been stated as follows:-
” 2) With regard to the suggestion No.8, i.e., “A different Uniform other than the regular one may be recommended for these police officers” – the matter requires deliberations at length with Senior Police Officers in the State. All the Senior Officers have been addressed to send their view on the subject. After obtaining their views the matter will be discussed at State Headquarters and a report in this regard will be sent.
3) With regard to suggestion No.11 – Director General of Police, Training has been addressed to initiate action to conduct Education programme for Police Officers on the objects of the legislation, judicial pronouncements and development of law. Further progress report will be sent. “
3. Learned Government Advocate (Crl. Side) submits that, by virtue of the above Circular Memorandum, all the Commissioners of Police and the Superintendents of Police in the State have been instructed to scrupulously follow the suggestions, enumerated in the form of instructions, and therefore, in effect, the order of this Court has been complied with.
4. The complaisant reaction to the suggestions made by this Court and issuance of the aforesaid Circular Memorandum with suitable instructions by the Director General of Police deserves deep appreciation of this Court. It must also be pointed out that though several such suggestions and instructions were earlier made/issued in that perspective by the Honourable Supreme Court as well as this Court, there was no expected progress or outcome since, in course of time, the system started trailing with the same deviation and anomalies to reform/correct which the instructions were issued. At least now, this Court is anxious to see that the directives are strictly followed perpetually with letter and spirit by the Investigating Officers of the Department in particular the officers posted at the All Women Police Stations.
5. Before parting, having regard to the directions issued to the Police Department, this Court deems it necessary to outline certain aspects with regard to the role of the Judicial Magistrates and their effective functioning in deriving a positive outcome.
As could be seen, though suitable directions have been given to the police, in particular to the Station House Officers, still there may be scope for misuse of power. The directions/instructions are only illustrative and not exhaustive. When the investigating officers seek for remand of the accused, the Magistrates must examine the necessity for the same and only where there are valid grounds for believing that the accusation or information is well-founded and it appears that the investigation cannot be completed within a period of 24 hours, remand may be ordered. Violation of human rights and infringement of personal liberties must be viewed seriously. Except in cases of grave nature viz., dowry death, murder, suicide, hurt, etc., in other matters like matrimonial disputes between spouses where it may not take much time for the police officer to interrogate/investigate, remand should not be ordered mechanically, for, remand of an accused by a Magistrate is not automatic one on the mere request of the investigating officer and sufficient grounds must exist for the Magistrate to exercise the power of remand. To put it clear, a requisition of remand by the police must accompany the Case Diary, whereupon, the Magistrate must satisfy himself as to the adequacy and genuineness of the grounds necessitating judicial custody and while passing orders for remand or extension of remand, he must be alert to see that the liberty of the citizen is not violated by the police due to arbitrary exercise of power. Though a detailed speaking order is not required for remand, application of judicial mind is absolutely necessary.
Of course, it is provided in the Code that remand should not exceed 15 days at a time, but, it does not mean that in all cases, remand for 15 days should be ordered invariably. At the time of production of the accused before the Magistrates, they should examine the necessity and even at the time of initial remand, if it appears that remand is not necessary, bail application can be entertained provided the accused is prepared to furnish necessary surety or security as may be directed by the court. Likewise, in cases where remand is required to be ordered, the period must be circumscribed depending upon the nature of the case, the materials produced by the prosecution and the actual requirement. Though the law is manifestly clear, plain and patent, in many cases, it is witnessed that, on the mere request of the investigating officers, remand is ordered mechanically without application of mind and such illegal practice must be avoided.
It must also be borne in mind that the object behind the enactment of Section 498-A IPC and the Dowry Prohibition Act is to check and curb the menace of dowry and at the same time, to save the matrimonial homes from destruction. Our experience shows that, apart from the husband, all family members are implicated and dragged to the police stations. Though arrest of those persons is not at all necessary, in a number of cases, such harassment is made simply to satisfy the ego and anger of the complainant. By suitably dealing with such matters, the injury to innocents could be avoided to a considerable extent by the Magistrates, but, if the Magistrates themselves accede to the bare requests of the police without examining the actual state of affairs, it would create negative effects thereby, the very purpose of the legislation would be defeated and the doors of conciliation would be closed forever. The husband and his family members may have difference of opinion in the dispute, for which, arrest and judicial remand are not the answers. The ultimate object of every legal system is to punish the guilty and protect the innocents.
It is only before the jurisdiction Magistrate concerned, on conclusion of the investigation, final report is filed, whereupon, trial of the case is taken up and, in matters relating to serious offences, committal proceedings are initiated. It is the learned Magistrates who are empowered to order maintenance under Section 125 Cr.P.C. and award compensation in appropriate cases. Pending investigation, for grant of instant relief viz., to award interim maintenance, interim compensation, entrust custody of minor, forward the victims to Govt. Homes, issue search warrant, order bailable or non-bailable warrant, restore sridana properties, send the injured to the Hospital, provide security, etc., to the complainant/wife/victim, the learned Magistrates can be approached and at such point of time, the Magistrates must see to it that orders are passed without any delay. The preliminary job of an Investigating Officer including that of the Officers posted at the All Women Police Stations is only to collect the materials in respect of the dispute they are investigating and place the same before the court/Magistrate. For adjudicating any issue, the dispute must be forwarded only to the learned Magistrate or the Family court. In this type of fragile matters, in the name of ‘petition enquiry’ or investigation after registration of F.I.R., the police should not be allowed to conduct lengthy panchayats in police stations. If the dispute could not be resolved within a period of one week, a conclusion must be reached one way or the other and the matter must be forwarded to the learned Magistrate concerned.
Therefore, while considering such cases, the learned Magistrates are directed to apply their judicial mind having regard to the propounded principles and procedure and the various aspects pointed out in the course of this order and also to monitor scrupulous adherence to the instructions referred to above by the police officers concerned.
6. With the above observations and direction, the petition is closed.
7. Registry is directed to immediately circulate copy of this order as well as the earlier order dated 07.07.2008 to the Director General of Police, Tamil Nadu, and all the Judicial Magistrates for compliance.
Maharashtra Government Circular Regarding 498A IPC
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