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About the Competition:

Lexpeeps.in in organized the 1st National PIL Drafting Competition. The competition was open only for law students and legal professionals. This was an online competition.

Mode of Competition:

Online

The topic of PIL: Submit the PIL draft on “Internet shutdown in India”

Results of the Competition and the PIL Drafts

1st Position: TC-13, Urmika Pandey, Lucknow University Download

2nd Position: TC-25, UdaiYashvir Singh- NLU Delhi; Sakshi Komal Dubey, Vivekananda Institute of Professional Studies Download

3rd Position: TC-10, Neelam, Army Institute of Law Download

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This case brief is written by Sanskriti Goel, a 1st-year law student from Chanderprabhu Jain College of Higher Studies and School of law, GGSIPU.

EQUIVALENT CITATIONS

AIR 1984 Mad 32

DECIDED ON

13 August, 1937

BENCH

Varadachariar, J.

RELEVANT ACT/ SECTION

The Indian Contract Act, 1872 – Section 149

BRIEF FACTS

A lady employed a goldsmith for the purpose of melting old jewels and making new ones. Every evening, she used to receive the half-made jewelry from the goldsmith and put them in a locked box.
She used to left the locked box in the goldsmith’s room and keep the key of the locked box herself.
One night, the jewels were stolen.
The lady sued the goldsmith holding him liable as bailee.

LEGAL ISSUE

Was there any delivery as per Section 149 in order to constitute bailment?

RATIO OF THE CASE

Mere leaving of a locked box in another person’s room, when the key of the box is not handed over to him does not amount to delivery within the meaning of section 149.
Without legal possession, there cannot be any bailment.

DECISION OF THE MADRAS HIGH COURT

It was held that “Any bailment that could be gathered from the facts must be taken to have come to an end as soon as the plaintiff was put in the possession of the melted gold. Delivery is necessary to constitute bailment. The mere leaving of the box in the defendant’s house, when the plaintiff herself took away the key, cannot certainly amount to delivery within the meaning of the provision in section 149.”
Therefore, the goldsmith was not held liable as any bailment, in this case, came to an end when the lady received jewellery from the goldsmith every evening. Leaving the locked box in the premises of the defendant was not enough to constitute delivery under section 149, especially since the lady kept the keys with herself.
Without legal possession, there cannot be any bailment and there was no duty of the goldsmith to take care of the jewels.

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This article is written by APURVA, a student of Fairfield Institute of Management and Technology, GGSIPU.

Writ Petition

(CRL) NO. 592 OF 1987

Decided On

18/12/1996

Bench

Kuldip Singh, A.S. Anand

Provisions Discussed

Section 41, 46, 49, 50, 53, 54, 56, 57, 167, 174and 176 of Criminal Procedure Code, 1973.
Article 20(3), 21, 22, 226, and 32 of the Constitution of India.
Section 147, 149, 201, 218, 220, 302, 304, 330, 331, 34 and 342 of Indian Penal Code (IPC), 1860.

Facts

D.K. Basu was an Executive Chairman of Legal Aid Services of West Bengal which is a non-political organization.
On 26 August 1986, he issued a letter to the Supreme Court of India seeking attention towards certain news published in the Telegraph Newspaper about deaths in police custody and custody.
The petitioner requested the letter to be treated as a Writ Petition within the “Public Interest Litigation”.
It was treated as per the request and the Defendants were notified considering the importance of the issues raised in the letter.
When the writ petition was being considered, in the meantime, Mr. Ashok Kumar Johri issued another letter to the Chief Justice of the Supreme Court to bring attention to the death of a Mahesh Bihari from Pilkhana, Aligarh in police custody.
That letter was treated as a Request for Writing and was included along with D. K. Basu’s Request for Writing.
On 14 August 1987, the Court addressed the Order issuing notices to all state governments. A notice was also issued to the Law Commission requesting appropriate suggestions within a period of two months.
In response to the notification, several states submitted affidavits, including West Bengal, Orissa, Assam, Himachal Pradesh, Haryana, Tamil Nadu, Meghalaya, Maharashtra, and Manipur.
In addition, Dr. A. M. Singhvi, the Principal Counsel was appointed as an Adviser to assist the Court.
All of the attorneys who appeared provided useful assistance to the Court.

Issues

The issues of Custodial Torture in a graph towards growth.
The Policemen’s arbitrariness in arresting a person.
Is there any need to specify some guidelines to make an arrest?

Contentions of the Petitioner

The petitioner argued that physical and psychological agony suffered by a person within the boundaries of a police station or confinement should not take place. The scope of trauma experienced by them is beyond the scope of the law.

Furthermore, the petitioner put forward an argument that there is a need for a civilized nation and that some important steps must be taken in order to eradicate the mentioned issue.

Contentions of the Respondent

Dr A. M. Singhvi and the Counsel representing different states presented the case stating that “everything was fine” within their respective States. They presented their respective beliefs and provided useful assistance to the Court to examine various facets of the problem assuring the suggestions for the formulation of guidelines by the court to reduce violence in custody, if not completely prevented.

In order to defend this important fall of the administrative wing, the State of West Bengal tried to convey that there were no deaths in the confinements and even if there were any, then an investigation would be carried out.

Ratio Decidendi

When a right is guaranteed by the State, it is against the State that the remedy must be sought if the constitutional obligation imposed has not been fulfilled.
Article 21 guarantees the right to life and personal liberty and has been held to include the right to live with human dignity. Thus, the right against torture and assault is guaranteed by the State or its functionaries.
Protection against arrest and detention is guaranteed by Article 22, i.e., an individual arrested shall not be detained in custody without being informed about the grounds of arrest and that particular individual who is arrested shall not be denied consulting a legal practitioner of their choice to defend him.
Article 20(3) provides that a person accused of an offense shall not be compelled to be a witness against himself or herself.

Obiter Dicta

The Court had an opinion on custodial violence that including torture and death in lockups strike at the rule of law. Custodial violence will be considered to be one of the worst crimes in a civilized society governed by the rule of law.
The Court observed that despite the constitutional and statutory provisions aimed at safeguarding the personal liberty and life of a citizen, the growing incidence of torture and deaths in police custody has been a disturbing factor.
The case of Neelabati Bahera v. State of Orissa (1993) was taken as reference in which the Supreme Court had held that “prisoners and detainees are not deprived of their Fundamental Rights under Article 21 and only the restriction permitted by law could be imposed on the enjoyment of the Fundamental Rights of prisoners and detained”.

Guidelines Issued

The Court issued a list of 11 guidelines in addition to the Constitutional and Statutory Safeguards to be followed in all cases of arrest and detention. The guidelines are as follows: –

Police personnel who make the arrest and handle the interrogation of the arrested person must wear precise, visible, and clear identifications and identification labels with their designations. Details of all personnel handling the interrogations of the arrested person must be recorded in a register.

That the police officer making the arrest of the detainee will prepare a memorandum of arrest at the time of the arrest and said memo will be witnessed by at least one witness who may be a member of the family of the arrested person or a respectable person from the locality from where the arrest is made. It must also be signed by the detainee and must contain the time and date of the arrest.
A person who has been arrested or detained and is detained at a police station or interrogation center or other confinement shall have the right to have a friend or relative or other person known to him or who has an interest in his well-being will be informed, as soon as possible, that you have been arrested and are being detained in a particular place unless the witness crediting the arrest memorandum is himself a friend or relative of the arrested.
Police must notify a detainee’s time, place of detention, and place of custody where the detainee’s next friend or relative lives outside the district or city through the District’s Legal Aid Organization and station. Police of the affected area telegraphically within the period of 8 to 12 hours after the arrest.
The person arrested must be made aware of his right to have someone informed of his arrest or detention as soon he is put under arrest or is detained.
An entry must be made in the Case 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 official in whose custody the arrestee is.
Upon request, the Arrestee must also be examined at the time of his arrest, and major and minor injuries, if present on his body, must be recorded at that time. The “Inspection Memo” must be signed by both the detainee and the arresting police officer, and a copy must be provided to the detainee.
The detainee must undergo a medical examination by a trained physician every 48 hours while in custody by a physician on the panel of approved physicians appointed by the Director of Health Services of the State or Union Territory concerned.
Copies of all documents, including the arrest memo, must be sent to the Magistrate for registration.
The Arrestee may be allowed to meet with his attorney during the interrogation, although not throughout the interrogation.
A Police Control Room must be provided at all central district and state offices, where the arresting officer must communicate information about the arrest and the place of custody of the arrested, within 12 hours after the arrest and in the Police Control Room Board, must be displayed on a visible notice board.

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I am Saba Banu, a 3rd-year law student from Pendekanti Law College, Hyderabad. In this article, we will try to discuss the essence of motive, preparation in criminal cases.

INTRODUCTION

Under Criminal law, the main propaganda for committing a crime would be the intention. Motive is not a basis for criminal liability. Criminal law takes under consideration only a man’s intention and not his motive. A good motive will not render lawful what is in fact a crime. A motive is that which makes a man do any particular act. It is an encouragement to do an act. Motive is the ground for action. Motive is relevant in criminal cases, absence of motive doesn’t change much of the consequences of the criminal act. Preparation is an unorganized act. It means an act of making arrangements for committing a crime. The preparation itself does not amount to crime unless and until any big act is going to be committed. This article talks about the significance of motive, preparation, previous or subsequent conduct in criminal cases. Whenever, the offender before the commission of crime has a motive in his mind, following that preparation. The conduct of the offender is the same as that of circumstantial evidence. Section 8 of the Evidence Act, emphasizes the importance of motive, preparation, and previous and subsequent conduct which the court has to take into consideration before the conviction of an offender.

Importance of Motive

Section 8 in-depth explains about motive, preparation. Whenever any act is done, it is done with the motive. Every act has a motive behind it, and it will be very difficult to find out the motive behind the act, and without motive, it would be difficult to find out the act. It is the motive for which the act is being committed. It is difficult to find out and many courts have solved the cases based on motive and correlating it to the facts and circumstances of the case. The key role is that motive is the desire to commit a crime in a manner he/she wants to do it. Motive is the key in determining the outcome of criminal cases. In criminal cases, it is very important to consider the facts depending upon the motive. Motive acquires great impact when there is no direct evidence, and comes into play solely when the circumstantial evidence is in existence. In other words, we can say that motive is the emotion that induces a man to do something and such inducement need not be any grave injury proportionally. A thing to be noted here is that motive is different from intention, intention refers to immediate consequences.

Importance of Preparation

For a crime to be committed preparation is the initial step and it includes all the necessary means which are required to the commission of an offence. The preparation itself doesn’t amount to offence unless and until it is executed. In certain cases, the preparation itself can be punishable. Section 122 of IPC punishes for collecting arms, with the intention to wage a war against the Government. Similarly, section 399 of IPC, punishes a person for preparation to commit dacoity. The preparation itself is not punishable, unless and until the offender takes a step forward to commit or attempt against the commission of a crime.

Conduct

While observing the facts and circumstances of the case, it is the decision of the court to observe and draw a conclusion on both previous and subsequent conduct of the accused regarding innocence. By the clear and depth observation court draws its own logical inference by taking both the conducts into the picture carefully. Hence, the role of conduct can never be underestimated by the court in deciding the conviction or acquittal of the accused. It is important because the previous conduct throws an impact on the innocence or guilt of the accused, whereas in subsequent conduct it depends upon determining the innocence and guilt. So it is the ultimate duty of the court to observe both i.e. previous and subsequent conduct of the accused for drawing conclusions.

Can a Criminal Act be Presumed without Motive

Now the question is, can a criminal act be presumed without motive, the answer to this question is that a criminal act can be presumed even if the motive is not proved, if any other circumstances of the crime are proved. Therefore, the mere essence of motive is not mandatory to prove the criminal act. In landmark case Natha Singh v Emperor, the motive for commission of the crime of Kamali Singh by accused was deceased and knew earlier that the accused murdered Bhan Singh, the deceased was extorting money from Natha Singh and blackmailing by disclosing it to police. By observing the facts, we can clearly say that the previous murder by Natha Singh proved the motive of the offence, the Supreme Court held it categorically. Therefore, when there is clear proof of guilt, proof of motive hardly matters in that case.

Whose Conduct is taken into Consideration

In Sardul Singh v State of Bombay, it was held that it must be borne in the mind itself the conduct of the party alone and it is only admissible. The conduct of a person who is not a party to the suit is not admissible. The accused can be held admissible other than that, every person is held inadmissible. Hence, parties to the case are only held admissible.

CONCLUSION

The measure of motive, preparation, previous conduct and subsequent conduct plays an important role in committing a crime and they are explained adequately. With the effect of Section 8 of the Indian Evidence Act, the courts should take account of all of the elaborated terms. As the role of motive is not that essential, but it is not negligible and courts should take account and evaluate based on the facts and circumstances of the case before concluding. One or the other plays a key role in the commission of the crime, it is not possible that all the three are absent at a time, it plays an important role in the commission of a crime. It all depends upon the facts and circumstances of the case. But in certain cases, where the guilt is proved but the motive is not proved, still, the person will be accused and the person may be convicted. When a case is based on circumstantial evidence, then it is said that the evidence is not clear. It is thus necessary to ensure that each of these parts has been separately dealt upon and efforts have been made to establish their interrelation along with their significance as being relevant under the Act.

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This Case Brief is written by K. Lasya Charitha pursuing BA LLB in Damodaram Sanjivayya National Law University, Visakhapatnam.

Case Number

Civil Appeal No. 2330 of 2000

Equivalent Citation

AIR 2002 SC 2728, 2002 (82) ECC 683, JT 2002( 5) SC 253

Bench

Hon’ble Former Chief Justice of India B.N. Kirpal, Hon’ble Justice Y.K. Sabharwal and Hon’ble Justice K.G. Balakrishnan, JJ.

Decided on

22^nd July 2002.

Relevant Act/ Section

Monopolies and Restrictive Trade Practices Act, 1969- Sections 1(2), 2(e), 2(o), 2(u), 12, 14. 33, 35, 37

Customs Tariffs Act, 1975- Section 9

Brief Facts and Procedural History

On 10/09/1998, the defendant filed a lawsuit with the Monopolies and Restrictive Trade Practices Commission under Section 33 (1) (j), (ja) and Section 36A and Section 2 (o) of the Monopolies and Restrictive Trade Practices Act (MRTP) and sued three Indonesian companies that claimed that they produced float glass and sold it at predatory prices in India, reintroducing restrictive and unfair business practices. The Appellant, which is the Indian Exporter of float glass from Indonesia, contradicted that the accused was a cartel of an Indian float glass manufacturer, who actually exported from India at a price lower than the production cost in India. The MRTP Commission approved the application and prevented Indonesian companies from exporting float glass products to India at predatory prices. Therefore, the aggrieved appellant filed an appeal with the Supreme Court of India.

Issues before the Court

Whether the MRTP Act has extra-territorial operations?
Whether the principle of “effects doctrine” has its application in India?
Whether the Anti-Dumping provision ousts the jurisdiction of the MRTP commission?
Whether an agreement to import from Indonesia to India at a predatory price need to be registered under Section 33 (1) (j) of the Act?

Ratio of the Case

With regards to the first issue, sections 1(2), 2(e), and section 14 together make it clear that the Act has no extraterritorial operation. In addition, Explanation I to Section 35 confirms this principle. With regards to the second issue, if any restrictive trade practice as a consequence of outside agreement is carried out in India then the Commission shall have jurisdiction under section 37(1) of the Act if it concludes that the same is prejudicial to the public interest. Even if the transaction takes place outside of India, if the consequences of the transaction lead to restrictive trade practices in Indian, the “effects doctrine” will allow the MRTP Commission with jurisdiction to approve the appropriate order. With regards to the third issue, the jurisdiction of the MRTP commission is not ousted by the Anti-Dumping provisions in the Customs Act. The two acts deal with totally different fields and have different purposes. Regarding the fourth question, judging from the facts of this case, there is no fact of predatory pricing. In this case at hand, Indian monopolies’ undertakings seem to have faced competition. The reduction in the prices of Indian importers is to benefit the Indian buyers. Therefore, importing materials at lower prices than prevailing in India cannot be considered harmful and being prejudicial to the public interest.

Decision of the Court

Thus, in this case, the Honourable Supreme Court of India allowed the appeal by setting aside the order i.e., restrained the Indonesian companies from exporting to India is given by the MRTP Commission that the MRTP has no extraterritorial jurisdiction and that the jurisdiction of MRTP commission is not ousted by the Anti-Dumping provisions in the Customs Act and both are for different purposes and also that reduction of the price is beneficial and public interest.

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This article is written by Shrey Hasija, a 1st-year law student at Vivekananda Institute of Professional Studies, GGSIPU. This article is an overview of fundamental rights available to prisoners, and how the judiciary regulates them.

INTRODUCTION

“Every Saint Has A Past; Every Sinner Has A Future” – Oscar Wilde

Not so long time ago, the attitude towards prisons, prisoners, and punishment was brutal and harsh. Recognition of human beings in convicted felons is an idea that is still not implemented yet. The Prisons Act of 1894 and Prisons Statics in India reveals how basic human rights such as sanitization, clean food, and medical treatment is not just lesser-discussed issue in the society but it also has been ignored by government and prisons of India. It is a matter of shame that a country like India which has the 2nd largest population in the world does not have codified law on the rights of prisoners and also does not have comprehensive legislation to deal with their conduct while in jail. However, the judiciary of our country has given due recognition to the convicts and held their fundamental rights from time to time. In absence of legislation, the judiciary is the only one that has been able to uphold the rights of prisoners by giving various judgments in favor of prisoners and treating them as human beings.

Right of Prisoners

As said earlier, the conviction of a human does not make him non-human. He remains a human right who should have basic human rights available to every man walking on this god’s green earth. However, he should not be treated as a free man and provided with absolute rights and luxuries. His freedom should be subject to limitations and reasonable restrictions.

The Supreme court of India has been deliberating with state and central government for a very long time to improve the deteriorating condition of the

Indian prisons and affecting the mental and physical health of prisoners due to the lack of infrastructure there is overcrowding of prisons. It is very important to invoke the rights and constitutional safeguard of prisoners. If the fundamental rights are not propagated and implemented well in every corner of the state that is only a betrayal of the faith of humans in the justice delivery system.

Role of judiciary in protecting the rights of the prisoners

Right to Privacy

The concept of the right to privacy has evolved for many years. Recently its scope has been widened to the best possible way. A difference between mental and physical privacy is also drawn.

In the case Rahmath Nisha v. Additional director General of prisoner and others, the accused was given 10 days leave to visit his wife. By the time he reached home, his wife was taken to hospital in ICU due to extreme illness. However, the police personnel does not allow him to visit his wife in hospital citing that the permission is only granted to visit home only. Madras high court stated that prisoner should be allowed to visit his wife at the hospital and also the meeting between them should not be monitored because when a prisoner will be united with his wife, he might like to hold her hands or find physical expression and it is the human tendency to do so.

Right to legal aid

The concept of legal aid is the remedy to protect human rights during trial or conviction for any case. In the case M.H. Wadanrso Hoskot v. the State of Maharashtra, the court stated that the right to legal aid is one of the components of fair procedure i.e. supreme court reading Articles 21 and 39-A, read with Article 142 and section 304 of Cr.pc together acknowledged that the government has obligation to provide legal services to the accused one.

Right to Speedy trial

Article 21 of our constitution provides the right to a speedy trial as a fundamental right to the prisoner. This article guarantees a fair and reasonable trial. The fact that the provision of a speedy trial is a socio-legal right to protect the accused, makes it essential for the accused person. Also, the right to a speedy trial is contained under Section 309 of the Code of Criminal Procedure. If this provision of Crpc is followed and implanted in the true spirit, all grievances of the prisoners could be resolved and it is also relevant to mention that if there is a delay in justice it directly leads to denial of justice which is also said to be “justice delayed is justice denied”.

Right to Reasonable wage in prison

Remuneration is an amount that is paid to someone for the work he has done. Remuneration must not be less than the set minimum wages. There is no difference between the one who is serving punishment behind the walls and the one who is a law-abiding citizen of the country. For example, in the case of Mahammad Gisuddin v. the State of A.P, The court has stated that the account should be credited with a reasonable rate of payment/ it should not be lower than the minimum salary.

Conclusion

Prisoners when convicted do not cease the right to be a human being. Our supreme court and many other courts of India have reiterated this position in several cases so that the prisoners did not become a victim themselves. It has been observed that the prisoner who has been depressed of liberty against his or his will infringes the human right that is given to him by the constitution of India. Being a prisoner that does not mean they are not eligible for fundamental right. Even he is confined in prison, he can enjoy all basic rights. It is clear from all the examples above that our judiciary is very keen to protect the human right of the people. However, the police and prison authorities should be trained and accommodated so that they take their right seriously.

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This article is written by Mudit Jain, currently pursuing B.B.A.LL.B.(H) from the Indore Institute of Law.

INTRDOCUTION

A Public Prosecutor is seen as the state’s agent in the criminal justice system, representing the interests of ordinary citizens. The prosecution of the accused is the state’s responsibility, not the offended party’s. They are appointed in nearly every country. Section 24 of the Cr.P.C. defines the Public Prosecutor. They serve as the foundational basis of the Rule of Law i.e. alteram partem.

Duties of a Public Prosecutor under the Criminal Justice System in India

The duty of a Public Prosecutor is divided into two parts first in investigating process and secondly during trials.

In Investigating Process-

They are responsible to make an appearance in Court and obtain an arrest warrant.
They do have to collect those arrest warrants for searching specified premises.
They have to obtain police custody remand for interrogation (including custodial interrogation) of the accused.
They have to initiate a proceeding for the declaration of the non-traceable offender as the proclaimed offender.
They have to record the evidence of the accused in the police report regarding the advisability of the prosecutions.

During Trials-

To perform the activity of sentencing- When the accused is found guilty, the defence counsel and the Public Prosecutor dispute the severity of the penalty. At this point, the Public Prosecutor may argue for an appropriate sentence based on the facts, circumstances of the case, and seriousness of the offence. It aids the judge in making an informed judgement.

Speedy Trial – The right to a timely trial is a basic right enshrined in Article 21 of the Indian Constitution, which declares, “Right to Life and Personal Liberty.” The prosecution must summon all witnesses whose testimony is required to resolve the case. To cross-examine the witness and ensure that no testimony goes unquestioned. To create all essential documentation.

Other Important Duties-

The Public Prosecutor may not exacerbate the circumstances of the case or refuse to interview a witness whose testimony might undermine the case. The primary goal must be to uncover the truth.
He should not stand up for the accused. It is unethical in the administration of justice or the legal profession.
He represents the government, not the police. He is a State Officer appointed by the State Government. He is not a member of any investigation agency, but rather an independent authority. He is entrusted with statutory responsibilities.
The Superintendent of Police or the District Magistrate cannot order the Public Prosecutor to drop the case.
If a defence counsel raises an unsuccessful issue, the Public Prosecutor should bring it to the attention of the court.
At last, the most important they have to ensure that justice is done.

Provision of Public Prosecutor Under Cr. P.C-

Hierarchy of Public Prosecutor according to Section 24:

The Public Prosecutor appointed by Central Government.

The Public Prosecutor appointed by State Government.

Additional Public Prosecutor appointed by State Government.

Special Public Prosecutor appointed by Central Government.

Special Public Prosecutor appointed by State Government.

Section 24 of Cr.P.C talks about the appointment of Public Prosecutors in the District Court and High Court by the state government and central government respectively.

Sub-section 3 tells that the Public Prosecutor needs to be appointed for each district and may also appoint an Additional Public Prosecutor.

Sub-section 4 tells that the District Magistrate in consultation with the Session judge needs to prepare a panel of names that is considered as fit for such an appointment.

Sub-section 5 tells that the person can’t be appointed as a Public Prosecutor or Additional Public Prosecutor by the State Government in a district unless his names are on the panel prepared under subsection 4.

Sub-section 6 explains that in a case where a state has a local cadre of prosecuting officers, but there is no suitable person in such cadre for an appointment the appointment must be made from the panel prepared under subsection 4.

Sub-section 7 states that a person can be appointed as Public Prosecutor only after he has been practised as an advocate for a minimum period of 7 years.

Section 25 of Cr.P.C states that the Assistant Public Prosecutors is appointed in the district to conduct prosecution in Magistrate Court. The court may appoint one or more Assistant Public Prosecutors for conducting a case. If there is no Assistant Public Prosecutors then District Magistrate may appoint any other person to act as the Assistant Public Prosecutors.

Section 321 permits the Public Prosecutor or Assistant Public Prosecutor to withdraw from the case or prosecution with the permission of the court at any time before the judgement is pronounced. The power of the prosecutor is derived from the statute itself and they must act in the interest of the administration of justice.

Important Case laws

In the case of Tikam Singh vs. State & Ors.

The office of the Public Prosecutor is not in question, yet there is a public component to it. He serves as a state representative, not as a complaint. The role of the Public Prosecutor differs from that of private counsel.

In the case of Sandeep Kumar Bafna vs State of Maharashtra & Anr,

The court stated that “a Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or other irrespective of the facts of the case. The attitude of the Public Prosecutor must be fair towards the investigating agencies and as well as towards the accused.”

In the case of Kunja Subidhi and Anr vs Emperor,

The Public Prosecutor’s responsibility is to present to the court all relevant evidence, whether in favour or against the accused and to leave the decision to the court.

In the case of Radheyshyam vs State of M.P & Ors,

The court stated that a special Public Prosecutor can be appointed when the administration of justice is required. They cannot appoint only on the request of the complainant. His remuneration is paid by the state because if it will be paid by the private party, then his ability or capacity to perform his role as a Public Prosecutor will be endangered. The government cannot appoint Special Public Prosecutor on such terms, directing him to receive his remuneration from any private individual.

In the case of Thakur Ram vs State of Bihar,

The reason behind the establishment of the office of Public Prosecutor is that no private person can use the legal apparatus to wreak private vengeance on anyone.

Present Scenario of Public Prosecutors in India

In India, there is no consistency in the framework of public prosecution. In a few states, no distinction is made between the investigative agency and the prosecution. Because the police control the prosecutions, this impacts the Public Prosecutor’s impartiality. The border is entirely breached when the prosecution is led by a senior police official. Although the Law Commission in the year 1958 suggested the establishment of the Directorate of prosecution with its own cadre, such a recommendation was not accepted in Cr.P.C. Some states have the Directorate of Prosecution while others do not.

Suggestions

There could be many ways to improve the situation of public prosecutors in India, such as establishing a National Institute to provide proper training to candidates, lowering the age limit, and making it mandatory for each state to establish its own Directorate of Prosecutions even we should encourage more lawyers to become Public Prosecutor.

Conclusion

A Public Prosecutor is a court officer who assists in the administration of justice. The main duty of the Public Prosecutor is to assist the court in determining the facts of the case. The Public Prosecutor must be objective, fair, and truthful. He must follow the judge’s instructions. He should not believe in the conviction of the accused by any means. Any public prosecution must be guided by the principles of equity, fairness, and moral conscience.

References-

https://www.latestlaws.com/articles/role-of-public-prosecutor-in-magisterial-courts-by-rakesh-kumar-singh/
https://shodhganga.inflibnet.ac.in/bitstream/10603/144597/8/chapter%20iv.pdf
http://docs.manupatra.in/newsline/articles/Upload/116BE5E2-14EF-4753-BD49-3E308403D5E7.pdf
https://indiankanoon.org/search/?formInput=role%20of%20public%20prosecutor
http://www.supremecourtcases.com/index2.php?option=com_content&itemid=135&do_pdf=1&id=8398

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This article is written by Kalyani Gupta, a Master’s in Law student from Amity University, Noida. This commentary discusses in brief about the case Yashwant and Others v. State of Maharashtra

Citation

(2018) 4MLJ (Crl)10(SC)

Equivalent Citation

Appeal (Crl.), 385-386 of 2008

Petitioner

Yashwant and Others

Respondent

State of Maharashtra

Date of Judgment

Sep 04, 2018

Bench

Justice NV Ramana and Justice Mohan M Shantanagoudar

INTRODUCTION

Though the conviction of some of the police officers involved in a custodial agony which led to the demise of a man was sustained, the Supreme Court underlined on the necessity to progress and identify the idea of democratic monitoring where crime control is not the solitary end, but the means to attain this order is also equally vital.

FACTS OF THE CASE

At the beginning it is crucial to note that the police force must develop and acknowledge the concept of “democratic policing”, in which crime control is not the only result, but the means to accomplish this order is also important. Moreover, the turn of actions, in this case, obliges us to restate herein that “Be you ever so high, the law is always above you”. In the trial case, Police Inspector Mr. Narule was on duty, when one chief constable employed at the concerned Police Station, came to Mr. Narule along with three individuals namely “Ganeshprasad, Arunkumar and Kashiram”. They notified Police Inspector Mr. Narule that they were currently staying at India Sun Hotel and were robbed approximately eight days ago. It may be appropriate that they told Police Inspector Mr. Narule that they had not lodged any grievance regarding the incident. On that night, the suspects’ patrolling group who went to the house of H.C.P Telgudiya at Police Lines, Ajni involved:

Police Inspector
Assistant Police Inspector
Sub-Inspector
Police constables

In the meantime, H.C.P Telgudiya found out that a ‘Christian male’ was accountable for the robbery. Although it was verified that there was no such Christian person, he is believed to have discovered that one person lives in the vicinity, who was a well-known accused from an earlier robbery case. H.C.P. Telgudiya got the police force to his housing quarters.

Further around 1:00 AM in the night, the police arrived at his house. He was then taken under supervision and his housing quarters were examined. It is suspected that during this procedure, some of the policemen were believed to have been assaulted by his wife Zarina. Then, the police tangled Joinus to an electrical pole in the street and were thrashed by the police people with sticks. Soon After Joinus and his family members were escorted to different places including “Rani Kothi, Hill Top restaurant” where he was beaten up erratically. At around 3.55 AM he was taken back to the police station, where he was locked up with other cellmates. On the very next day, Jonius was discovered dead. In the morning on 24.06.1993 at 7:30 AM, then police constables who were on duty found Joinus to be immobile and on inspection he was discovered to be not alive. The Trial Court condemned all of these police officers and punished them to 3 years sentence. The High Court upheld verdict under Section 330 IPC.

ISSUE RAISED

The issue which were raised up was whether the case amounted to murder to entice Section 302 of IPC?

JUDGMENT

It is a question of track record that both the courts have taken a parallel point of view that the crime described did not amount to “culpable homicide” as the reason of death was suffocation and there was not anything on record to demonstrate that the wounds were the source of the death. It is well established that to be called a murder, it needs to be a culpable homicide, “all murders are culpable homicides, but the vice-versa may not be true in all cases”. Hence, we need to determine whether a case of culpable homicide is rendered out here in the first place or not. Examining the testimony on record, the court held that the informal connection amongst the wounds caused to the deceased by the blundering officers and the demise is not related.

It would be relevant to say here that the first alleged police officer had died and the actions alongside him had subsided. The other accused police officers argued that they were simply implementing the orders of the first suspect. In this regard, the Bench said: It is not only that the suspects who must verify that they have obeyed the order of their superior officer, instead they ought to also provide evidence to the Court that the above-mentioned appellants bonafidely supposed that the orders delivered by suspect were lawful. Perceiving that this disagreement is taken only before the Supreme Court, the Bench said that it was not their case from the start that the accused-appellants were not informed of facts and conditions, instead all of them began an inquiry party with complete understanding and involvement. On the review of the record, we may take note of this that the argument is only undertaken before this court, to seek out a re-trial and such an effort cannot be brought into matter herein.

It cannot be dropped on us that the Bench of Supreme Court plainly and persuasively discerns from the facts depicted it is obvious that the police knew the identity of the deceased was distinct from the individual, they chose to examine initially. The way the deceased and his family members were occupied into custody imitates pure act of disorder and does not become the conduct of the Police.

The Supreme Court in this landmark and commendable decision has very justifiably enhanced the sentence for policemen from just 3 years to 7 years. Seven years is the maximum period of sentence that can be imposed under Section 330 of IPC under which the cops were charged. They deserved no mercy as they were directly accountable for the unfortunate death of Joinus who was beaten ruthlessly.

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This case brief is written by Sanskriti Goel, a 1st-year law student from Chanderprabhu Jain College of Higher Studies and School of law, GGSIPU.

CASE NUMBER

Civil Appeal No. 2151 of 1968

EQUIVALENT CITATIONS

AIR 1973 SC 569, (1972) 2 SCC 200, 1973 1 SCR 139

DECIDED ON

12^th April 1972

BENCH

Hon’ble Judges S.M. Sikri, C.J., A.N. Ray, and M. Hameedullah Beg

RELEVANT ACT/ SECTION

Transfer of Property Act, 1882 – Section 52
Land Improvement Loans Act, 1883 – Section 7(1)(a) and Section 7(1)(c).

BRIEF FACTS AND PROCEDURAL HISTORY

Plaintiff, as well as the defendant, were all related to each other as family. Plaintiff/Respondent (Ayyaswami), filed for partition in June 1958 impleading defendant/appellant (Jayaram) and Munniswami as co-defendants. Jayaram was the son-in-law of Munniswami.
While this partition suit was still going on, Jayaram purchased some land from Munniswami under a sale deed and some other land at a public auction to enable Munniswami to pay off his debts.
Ayyaswami brought a suit against the defendant challenging the validity of the sale of joint property stating that it was struck by the doctrine of lis pendens in Section 52 of Transfer of Property Act, 1882 (hereinafter ‘TPA’).
The High Court termed the sale of July 1958 as a ‘voluntary alienation’ and held that exemption from the scope of lis pendens cannot be extended to voluntary sales in any case. The High Court observed that: “The obligations incurred before the sale of July 1958, by reason of the decrees in the mortgage suits, were not on this view, liabilities which could be equated with either transfer prior to the institution of the partition suit or with sales in execution of mortgage decrees which are involuntary.

LEGAL ISSUES

Can the doctrine of lis pendens be applied to the sale in question?
Are public auctions exceptions to Section 52, TPA?

RATIO OF THE CASE

‘Lis Pendens’ means a pending suit, and the doctrine of lis pendens has been defined as the jurisdiction, power, over control which are court acquires over property involved in a suit pending the continents of the action and until final judgment therein.
Justice Beg observed that Section 52 applies not merely to actual transfers or rights which are the subject matter of litigation but to other dealings with it by any party to the suit or proceeding, so as to affect the right of any other party thereto.
Hence, where it is not a party to the litigation but an outside agency, which proceeds against the subject matter of the litigation without anything done by the litigating party, the resulting transaction will not be hit by Section 52.

DECISION OF THE HON’BLE SUPREME COURT OF INDIA

The appeal was dismissed on the grounds of the doctrine of lis pendens. The whole purpose of the doctrine is to stop parties to the pending litigation or any other person, to acquire any rights in respect of the immovable property subject to such litigation.

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This article is written by APURVA, a student of Fairfield Institute of Management and Technology, GGSIPU.

Criminal Appeal No.

919 of 1999

Decided On

16 November 2004

BENCH

ARIJIT PASAYAT, AND C.K. THAKKER

FACTS IN A NUTSHELL

The Complainant, Chandrakalabai, the widow of Bharat Kharat was a resident of Village Dharkanha.
At the time of the incident, she was residing with her husband Bharat Mukinda Kharat (hereinafter referred to as the `deceased’) and two sons in the house situated in the village Dharkanha.
It is the case of the prosecution that Shivcharan (PW6), son of the Complainant Chandrakala (PW2) as well as Taqnaji, son of Shakuntaiabai, the keep of deceased Bharat and Shakuntalabai were residing in the said house. On the day of the incident, Shakuntalabai was not present as she had gone to Pusad.
At that time, work of uprooting the groundnut crop was in progress in the field of deceased Bharat and several persons from village Londhari were working in his field.
There was a pit dug in front of the house of Bharat for the construction of one room.
On 7th June 1998, at about 1.00 p.m., deceased Bharat and one Tulshiram Vadar had gone to Pusad and returned home at about 7.00 p.m. After that, deceased Bharat was taking a meal in his house and Tulshiram went to sleep in front of the house.
After some time, at about 8.00 p.m. accused Namdev Tarpe came to the house of the complainant and told Bharat that persons from village Yehala were coming to beat him and he should run away from the spot, or release the dogs.
When Bharat came out of the house, five to six persons encircled Bharat in the courtyard of his house and started beating him. They were armed with axes, sticks, crowbars and beat Bharat with the said weapons.
When Bharat was being assaulted, he shouted for help loudly saying “Chandrakala, I am dying”. The complainant, Chandrakala went to Tulshiram and awakened him.
Tulshiram tried to rescue Bharat from the clutches of the accused, but the accused did not allow him to help the deceased.
The complainant thereafter went towards the persons of village Londhari and stayed there along with her sons. The assailants also came there and threatened them not to disclose the incident and asked them to leave.
The persons from village Londhari thereafter left the place.
The accused persons also left the place. The complainant along with her sons went near her husband deceased Bharat and noticed injuries on his person, who had already succumbed to those injuries on the spot.
The complainant asked her son Shivcharan (PW-6) the names of the assailants. Shivcharan told her that the assailants were from village Yehala and gave their names as “Namdeo Tarpe, Shamrao Behade, Subhash Behade, Santosh Behade, Saheb Rao and one unknown person to whom he knew by face.
The complainant along with her sons thereafter went to the house of Police Patil of village Dharkanha and narrated the incident.
The complainant stayed there for the night and on the next day, she went to Police Station, Pusad (Rural), and lodged a report.
In the report, she mentioned the names of five accused persons and one unknown person. She also stated in the report that accused persons assaulted her husband because one year before the incident, there were murders of one Atmaram and Laxman of village Yehala and in the said crime, her husband deceased Bharat was arrested and, therefore, the assailants for taking revenge of the said murders, and had assaulted Bharat in the incident in question.
Based on the report lodged by the complainant investigation was undertaken. After completion of the investigation charge sheet was filed and as the accused persons i.e., seven in number in two Criminal Appeals before High Court pleaded innocence, the trial was held.
It is to be noted that A-1 was absconding and therefore separate charge sheet was filed against him.
The trial Court placed reliance on the evidence of Chandrakala (PW-2) and Shivcharan (PW-6) and found the accused persons guilty.
In appeal, the primary stand of the accused persons was that PWs 2and 6 being related to the deceased their evidence should not be acted upon particularly when Tulshiram and the younger son of the deceased were not examined.
Additionally, it was submitted that in the Test Identification Parade (in short the `TI Parade’) held on 3.8.1998 only two accused persons Sudam and Mangal were identified.
Further, the evidence of Shivcharan (PW-6) only relates to accused Sham Rao and, therefore, Section 149 has no application. It was also submitted that PW-2 cannot be believed as she did not know the names of the accused persons and the names were told to her by PW-6. The trial court did not analyze their evidence and held that merely because 2 and 6 were the wife and son of the deceased that did not render their evidence suspect.
Additionally, the TI parade was held only in respect of two accused-appellants Sudam and Mangal, and not in respect of other accused persons as they were allegedly known to the prosecution witnesses. Stand of State was that as others were known, there was no need for TI Parade.
The fact situation clearly shows that Section 149 IPC has application.

JUDGEMENT

If you once forfeit the confidence of our fellow citizens, you can never regain their respect and esteem. It is true that you can fool all the people some of the time, and some of the people all the time, but you cannot fool all the people all the time, said Abraham Lincoln. This Court in Raghubir Singh vs. State of Haryana (AIR 1980 SC 1087) and Shakila Abdul Gafar Khan (Smt.) vs. Vasant Raghunath Dhoble and another (2003) 7 SCC 749, took note of these immortal observations while deprecating custodial torture by the police.
Custodial violence, torture, and abuse of police power are not peculiar to this country, but it is widespread. It has been the concern of the international community because the problem is universal, and the challenge is almost global. The Universal Declaration of Human Rights in 1948 which marked the emergence of a worldwide trend of protection and guarantee of certain basic human rights stipulates in Article 5 that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. Despite this pious declaration, the crime continues unabated, though every civilized nation shows its concern and makes efforts for its eradication.
If it is assuming alarming proportions, nowadays, all around it is merely on account of the devilish devices adopted by those at the helm of affairs who proclaim from rooftops to be the defenders of democracy and protectors of people’s rights and yet do not hesitate to condescend behind the screen to let loose their men in uniform to settle personal scores, feigning ignorance of what happens and pretending to be peace-loving puritans and saviours of citizens’ rights

THE COURT CONCLUDED

It has been laid down by the Court, in Parkash Chand Sogani v. The State of Rajasthan (supra) (AIR Cri LJ), that the absence of test identification in all cases is not fatal and if the accused person is well-known by sight, it would be waste of time to put him up for identification. Of course, if the prosecution fails to hold an identification on the plea that the witnesses already knew the accused well and it transpires in the course of the trial that the witnesses did not know the accused previously, the prosecution will run the risk of losing its case.

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