Tag: #CRPC

Case Law Analysis: Gulam Abbas & Ors. v. State of UP & Ors

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Case Number

Civil Miscellaneous Petition No. 4939 of 1983, in Writ Petition No. 4676 of 1978

Equivalent Citations

1981 AIR 2198, 1982 SCR (1)1077, 1982 SCC (1) 71, 1981 SCALE (3) 1707

Bench

V.D. Tulzapurkar, D.A. Desai, A.P. Sen

Date of Judgment

3 November, 1981

Relevant Act/ Sections

The Wakf Act, 1995

Article 32 of the Constitution of India, 1949

Section 144 of the Code of Criminal Procedure, 1973

Section 5 of the Code of Criminal Procedure, 1973

Facts of the Case:

In Mohalla Doshipura of Varanasi City, there are two sects of Mohammedan-the Shias and the Sunnis. Both the sects revere the martyrdom of Hazrat Imam Hasan and Hazrat Imam Hussain, grand-sons of Prophet Mohammed, during the Moharram but in a different manner. The case of the petitioners and through them of the Shias of Mohalla Doshipura is that the members of their sect numbering about 4000 constitute a religious denomination having a common faith and they observe Moharram for two months and eight days in a year in memory of Hazrat Imam Hussain who along with his 72 followers attained martyrdom at Karbala in Iraq. The said religious belief is practiced by the men-folk and the women-folk of the Shia community by holding Majlises (religious discourses), Recitations, Nowhas, Marcia, doing Matam (wailing), and taking out processions with Tabut Tazia, Alama, Zuljinha, etc. For performing these religious rites, practices, and observances the Shia community has been customarily using from time immemorial the nine plots in Mohalla Doshipura and the structures on some of them. 

Tazia at Doshipura is a unique Tazia in the whole country, being made of fine wood carvings, about 15 ft. in height, having five floors, and decorated with gold and silver and would be of the value of not less than Rs. 3 lakhs. According to the petitioners, the entire period of Moharram is a period of mourning for the Shias whose staunch belief is that the whole purpose of their life is to carry out these religious practices and functions during the Moharram and that in case they do not perform all these rites, practices, observances and functions, including those relating to the Tazia, they will never be delivered and till these are performed the whole community will be in mourning and in none of their families any marriage or other happy function can take place. The aforesaid religious faith and the performance of the rites, practices, observances, and functions detailed above constitute their fundamental rights guaranteed to them under Arts. 25 and 26 of the Constitution and the members of the Shia community of Mohalla Doshipura have a customary right to perform these on the said nine plots and in or about the structures standing thereon from time immemorial.

From the year 1960 onwards the Sunnis, who were in majority and were able to muster the support of local politicians and the police, started creating trouble and interference by indulging in violence with a result that the Executive Authorities of Varanasi acting under sec. 144 Cr. P.C. but in abuse of the power thereunder started placing undue restrictions on the members of the Shia community in the performance of their religious functions and ceremonies. Thus, during the period 1960-66 the Executive power under sec. 144 Cr. P.C. came to be used each year to curtail the rights of the Shias to perform their religious practices and functions at the Baradari, other structures, and the appurtenant plots on the occasion of the Barawafat; sometimes restraints were also placed on the Sunnis. During the years 1967 to 1969 similar orders depriving the Shias of their legitimate rights on the occasion of Moharram, Chehulam, Pacha, and Barawafats under section 144 were issued by the district authorities. In subsequent years also similar orders were passed sometimes placing restrictions on one community and sometimes on the other, sometimes permitting certain observances on terms and conditions during the stated hours. More often than not under the pretext of imminent danger to peace and tranquillity both the communities were completely prohibited from carrying out their religious functions and ceremonies under such orders.

Procedural History

In the year 1973 on the occasion of Barawafat the City Magistrate, Varanasi by his order dated 12th April 1973 prohibited the Shias from performing Barawafat on the Baradari and its adjoining plots, and Sunnis were illegally permitted to observe Barawafat on Plot No. 602/1133 by reciting Qurankhani, Milad and Fathiha on 16th April 1963 from 9 A.M. to 12 Noon Gulam Abbas and other Shia Muslims filed a Writ Petition No. 2397 of 1973 in the Allahabad High Court for quashing the order of the City Magistrate and for prohibiting the City Magistrate and local authorities from passing or promulgating any order depriving the Shia of peaceful use and enjoyment of the Baradari and the adjoining plots appurtenant to it and also prohibiting them from permitting the Sunnis to make use of the Baradari and its adjoining plots. This Writ Petition and the connected criminal cases (being Criminal Revision and a Criminal Reference against similar earlier orders u./sec. 144 Cr.P.C.) were heard and disposed of by the High Court by a common judgment delivered on August 8, 1975. 

Notwithstanding the fact that the various impugned orders had exhausted themselves by efflux of time, the High Court felt that where a situation arose year after year making it necessary to take action u./sec. 144 Cr.P.C. it would be a proper exercise of its discretion to interfere with the impugned order if found to be illegal or improper, so that the Magistrate may not be encouraged to use his powers in the same manner again when the similar situation arose and that if a repetition of successive orders under sec. 144 resulted in a permanent interference with private legal rights it had to be deprecated and the High Court went on to give guide-lines to the Magistrates in the exercise of their discretionary power under sec. 144. 

On merits the High Court recorded its findings on the rights of the Shias in their favour in view of Civil Court’s decision in earlier litigation and quashed the City Magistrate’s order dated 12-4-1973 allowing the Sunnis and restraining the Shias from holding various religious functions on the occasion of Barawafat on the Baradari and the adjoining plots in question in Mohalla Doshipura and also passed appropriate orders in the connected criminal cases. 

Against this common judgment rendered by the High Court on August 8, 1975, Civil Appeal No. 941 of 1976 and Crl. As. Nos. 432 to 436 of 1976 were preferred by Mohammad Ibrahim, a Sunni Muslim, all of which were disposed of by this Court by a Common judgment dated 6-12-1976 and this Court held that the High Court should not have pronounced any view on the impugned orders under sec.144 when those orders had ceased to be operative and that the High Court should not have given findings on rights, title and property depending on disputed questions of facts in a writ petition the judgment and findings of the High Court were set aside and parties were relegated to have their rights agitated or settled in a civil suit. 

Feeling aggrieved by the said judgment, Gulam Abbas and others filed a Review Petition No. 36 of 1977 in Civil Appeal No.941 of 1976 which was dismissed by this Court on 16th December 1977.

Issues before the Court:

  1. Whether an Order made under Section 144 Criminal Procedure Code is judicial or quasi-judicial order or whether it is passed in exercise of executive power in performance of executive function amenable to writ jurisdiction under Article 32 of the Constitution
  2. Whether the petitioners could be said to have made out any ground for challenging the impugned order passed by the City Magistrate, Varanasi on 24th November 1979 prohibiting both Shia and Sunni communities from holding their Majlises and imposing other restrictions on the occasion of the celebration of Moharram festival at the Baradari in Mohalla Doshipura.
  3. Whether the exercise of the power under the said provision has invariably been perverse and in utter disregard of the lawful exercise of the petitioners’ legal rights to perform their religious ceremonies and functions on the plots and structures in question
  4. Whether the petitioners have succeeded in proving their subsisting entitlement to the customary rights claimed by them.

Ratio of the Case

  • The question of whether an order under Section144 Criminal Procedure Code is a judicial order or an order in exercise of the executive power in performance of an executive function will have to be decided in the instant case by reference to the new Criminal Procedure Code, 1973 and not by reference to the old Criminal Procedure Code, 1898.
  • The position under the 1898 Code, wherein separation between the judicial functions and executive or administrative functions of Magistrates did not obtain, was quite different and the power to act in urgent cases of nuisance and apprehended danger to public tranquillity under Section144 of the Code had been conferred on “District Magistrates, Chief Presidency Magistrates, Sub-Divisional Magistrates, or other Magistrates specially empowered by the State Government”
  • The position under the new Criminal Procedure Code 1973 is entirely different whereunder the scheme of separation of judicial functions from executive functions of the Magistrates, as recommended by the Law Commission has been implemented to a great extent.
  • If certain sections of the present Code are compared with the equivalent sections in the Old Code it will appear clear that a separation between judicial functions and executive or administrative functions has been achieved by assigning substantially the former to the Judicial Magistrates and the latter to the Executive Magistrates.
  • The order under sec. 144 Cr.P.C. 1973 is amenable to writ jurisdiction under Article 32, the same being in the exercise of executive power in the performance of the executive function.
  • The challenge to this order was incorporated in the writ petition by way of an amendment that had been allowed by the Court. 
  • Since however, that impugned order has by now exhausted itself by efflux of time it would not be proper for us to go into either the grounds of challenge urged by the petitioners or the materials justifying the same put forward by the respondents for determining its legality or validity.
  • Without setting out verbatim the provisions of sec. 144 of the 1973 Code, we might briefly indicate the nature of power thereunder and what it authorizes the executive magistracy to do, and in what circumstances.
  • In urgent cases of nuisance or apprehended danger, where immediate prevention or speedy remedy is desirable, a District Magistrate, a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf may, by a written order stating the material facts of the case, direct a particular individual, or persons residing in a particular place or area, or the public generally when frequenting or visiting a particular place or area, 
    • (i) to abstain from a certain act or 
    • (ii) to take certain order with respect to certain property in his possession or under his management, if he considers that such direction is likely to prevent or tends to prevent obstruction, annoyance or injury to any other person lawfully employed, or danger to human life, health or safety, or a disturbance of public tranquillity, or a riot or an affray.
  • As stated earlier sub-sec. (2) authorizes the issuance of such an order ex-parte in cases of emergency or in cases where circumstances do not admit of the serving in due time of a notice upon the person or persons against whom the order is directed but in such cases under sub-sec. (5) the executive magistrate, either on his own motion or on the application of the person aggrieved after giving him a hearing, may rescind or alter his original order. 
  • Under sub-section (4) no order under this section shall remain in force for more than two months from the making thereof unless under the proviso thereto the State Government by Notification directs that such order shall remain in force for a further period not exceeding six months.
  • The entire basis of action under Section 144 is provided by the urgency of the situation and the power thereunder is intended to be availed of for preventing disorders, obstructions, and annoyances with a view to secure the public weal by maintaining public peace and tranquillity.
  • Preservation of the public peace and tranquillity is the primary function of the Government and the aforesaid power is conferred on the executive magistracy enabling it to perform that function effectively during emergent situations and as such it may become necessary for the Executive Magistrate to over-ride temporarily private rights and in a given situation the power must extend to restraining individuals from doing acts perfectly lawful in themselves for, it is obvious that when there is a conflict between the public interest and private rights the former must prevail.
  • The Magistrate’s action should be directed against the wrong-doer rather than the wronged. 
  • Furthermore, it would not be a proper exercise of discretion on the part of the Executive Magistrate to interfere with the lawful exercise of the right by a party on the consideration that those who threaten to interfere constitute a large majority and it would be more convenient for the administration to impose restrictions which would affect only a minor section of the community rather than prevent a larger section more vociferous and militant.
  • They are basing their customary rights on two foundations, namely, decisions of competent Civil Courts adjudicating these rights in their favor and registration of Shia Wakfs concerning the plots and structures for the performance of these practices and functions under secs. 5 and 38 of the U.P. Muslim Wakfs Act, 1936
  • This is a clear case of an existing or established entitlement to the customary rights in favor of the Shias’ community to perform their religious ceremonies and functions over the plots and structures in question under the decree of competent Civil Court for the enforcement of which the instant Writ Petition has been filed.
  • It seems to us quite clear having regard to the six properties being specifically asked to be entered in the list of Shia Waqfs by Imam Ali Mahto in his application and the order made thereon, all the properties mentioned in the application must be regarded as having been entered in the list of Shia Waqfs by the Chief or Provincial Commissioner for Waqfs and the Notification under s. 5(1)
  • When these plots and structures, particularly these three plots were being registered as Shia Waqfs under the U.P. Muslim Waqfs Act 1936 by the Shia Board and Sanads of Certificates of Registration in respect thereof were being issued in December 1952, the two Sunni Lessees who are said to have obtained a Lease on 20.4.1952 did not raise any objection to such registration. The Shias customary rights acquired by prescription over these plots cannot thus be defeated by such derivative title.

Final Decision:

The Court held that the petitioners and through them the Shia community of Mohalla Doshipura, Varanasi has established their existing customary rights to perform their religious rites, practices, observances, ceremonies, and functions minus the recitation and utterance of Tabarra (detailed in the writ petition) over the Plots and structures in question and respondents 5 and 6 and the Sunni community of Mohalla Doshipura are permanently restrained by an injunction from interfering with the exercise of said rights in any manner by the petitioners or members of Shia community and respondents 1 to 4, particularly the executive magistracy of Varanasi is directed if action under section 144 Cr. P.C. is required to be taken, to issue their orders under the said provision having regard to the principles and the guidelines indicated on that behalf in this judgment. The writ petition is thus allowed but each party will bear its own costs.

This case law analysis is written by Prateek Chandgothia, a first-year BA LLB (Hons.) student at Rajiv Gandhi National University of Law, Punjab.

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All you need to know about Criminal Trial

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The present article is written by Muskan Harlalka, a 2nd-year law student from the School of Law, Mody University of Science and Technology, Lakshmangarh, Rajasthan.

Introduction

In common parlance, “trial” means the process by which a person is adjudicated as guilty or innocent. It starts with the framing of a charge and concludes with the acquittal or conviction. However, it is not defined in the Criminal Procedure Code (CrPC) of 1973. The trial in which the accusations imposed on a person accused of a crime are resolved is called a criminal trial.

In India, penal laws are mainly regulated by three acts – 

  1. Indian Penal Code, 1860
  2. Code of Criminal Procedure, 1973
  3. Indian Evidence Act, 1872

CrPC is a procedural law that describes the mechanism for conducting a criminal trial. It includes the method of collecting evidence, interrogation of accused, arrests, bail, witness examination, method of conviction, etc. IPC is the primary penal law in India and it applies to all offenses except the ones which are covered under any other law in India. The Indian Evidence Act governs the various aspects of evidence in a trial such as its evidentiary value, manner of production of evidence, etc. 

Phases OF Trial

According to CrPC, the mechanism of determining the criminal liability of an accused has three phases. The first phase is the pre-trial phase which includes reporting the offense to the police or filing a complaint before the Magistrate, investigation by the police, or cognizance and inquiry by the Magistrate.

The second is the trial phase. This is the most crucial phase as it consists of the trial of the accused before the court to determine whether he will be acquitted or convicted. 

The third and last phase is the post-trial phase which mainly includes appeal and review by either of the parties.

Types of Criminal Trials in the Indian Legal System

CrPC provides for different types of criminal trials depending upon the nature of criminal cases. The trial process for serious offenses is more detailed and complex, on the other hand, the process for less serious offenses is more straightforward. Depending upon the nature of the offense, the trial of an accused can be of four types:-

  1. The trial before a Sessions court (Sessions Trial)
  2. Trial of Warrant cases by Magistrates (Warrant Trial)
  3. Trial of Summons cases  by Magistrates (Summons Trial)
  4. Summary Trials

These types are discussed below:

  1. The trial before a Sessions court (Sessions Trial): Trials in Warrant cases are more detailed and serious in comparison to Summons cases. A warrant case can be tried either by the Magistrate’s court or the sessions’ court. If a Magistrate is of the view that a case should be tried by the sessions court then he sends it to the sessions court for trial. This process is “committing it to sessions court”. Trial of Warrant cases by a Sessions Court is covered under Sections 225-237 of CrPC.

The various steps in a criminal trial before a sessions court are:

  • According to Section 229 after the committing of the case to the sessions court, the court frames charges against the accused and if the accused pleads guilty for these charges, the court has the discretion to convict the accused at that point. 
  • But if the accused does not plead guilty, then the court advances with the trial and sets a date for the prosecution to present their evidence. 
  • If after examining the prosecution’s evidence and the accused, the Court is of the view that the accused has not committed any offense, the accused is acquitted. 
  • However, if the prosecution’s evidence justifies the framing of charges against the accused, he is then called upon to present his defense. 
  • The prosecution then summarizes his pleadings and the defense is given another chance to put forward evidence in support of his client (the accused).
  • In the end, after hearing both sides, the court passes a judgment of conviction or acquittal of the accused according to Section 235 of CrPC.
  1. Trial of Warrant cases by Magistrates (Warrant Trial): Trial of Warrant cases by Magistrates is covered under Sections 238-250 of CrPC. Offenses that are punishable with death, imprisonment of life, or imprisonment for a term of more than two years come under the trial of warrant cases by Magistrates. A trial in a warrant case may start either by the filing of an FIR or by the filing of a complaint before a Magistrate. 

Steps in trial of Warrant cases by Magistrate when the case is instituted on a police report:

  • In such cases when the accused appears before the Court, the Magistrate should ensure that copies of all necessary and relevant documents such as FIR, Police Report, etc. have been provided to the accused.
  • Section 239 of CrPC provides that if upon examining all relevant documents, the Magistrate is of the view that the charges against the accused are not valid, then he can discharge the accused and state his reasons for the same.
  • If the Magistrate finds that grounds for accusation are valid, then he can proceed and frame the charges as per Section 240 of CrPC.
  • If after framing the charges, the accused pleads guilty then the Magistrate has the discretion under Section 241 to convict him.
  • However, if the accused does not plead guilty then the Court calls for the prosecution’s evidence. After the prosecution’s evidence has been presented, the defense gets the chance to do the same and their evidence is also recorded under Section 243.
  •  After that, the trial ends and the Court gives its verdict.

Steps involved in trial of Warrant cases by Magistrate when the case is instituted otherwise than on a police report:

  • Here the first step is the recording of the prosecution’s evidence. If upon examining the prosecution’s evidence the Magistrate concludes that the accusations against the accused are not valid, then he can discharge the accused.
  • But if the Magistrate is convinced that there are valid grounds for the accusation then he proceeds with the framing of charges.
  • The accused is then informed about the charges and if he pleads guilty for them, then the Magistrate has the discretion to convict him.
  • However, if the accused does not plead guilty, then the prosecution’s witnesses are called for cross-examination by the accused if he wants to do so.
  • The Magistrate then records the evidence for the defence and considers evidence of both the parties.
  • Then the Magistrate acquits or convicts the accused as per the provisions given in Section 248 of CrPC.
  1. Trial of Summons cases by Magistrates (Summons Trial): Summons cases are related to offenses that are punishable with imprisonment for a term of fewer than two years. Trial for summons cases is covered under Sections 251-259 of CrPC.

The process of criminal trial in summons cases by a Magistrate is as described below:

  • Instead of framing formal charges against the accused, he is issued a notice stating the accusation against him.
  • According to Section 251 of the Code, when the accused appears before the court, the Magistrate informs him about the particulars of the charges against him and asks him if he pleads guilty for the same. If he pleads guilty, then the court has the discretion to convict him.
  • Section 253 of CrPC provides for the plea of guilty in the absence of the accused in cases related to petty offences. This enables a pleader authorised by the accused to plead guilty on his behalf when the offence is punishable with fine only. In such cases, the Magistrate has the discretion of convicting the accused.
  • In case the accused does not plead guilty after the particulars of the accusation are stated to him, then as per Section 254 of the Code, the Magistrate proceeds with the evidence presented by both the parties and accordingly decides whether the accused is innocent or guilty.
  1. Summary Trials: Sections 260-265 of CrPC deal with Summary Trials. According to Section 262, sentences for imprisonment for a term exceeding three months cannot be passed in Summary trials. The main objective of summary trials is the speedy disposal of cases. If the accused does not plead guilty, then according to Section 264, the Magistrate will have to record a substance of the evidence and a judgment stating reasons for the same.

Since summary cases deal with petty offenses, the trial procedure is very simple. If a fine of not more than two hundred rupees has been imposed, then no appeal can be filed. But an application can be made to the High Court for revision.

Conclusion

A study of CrPC and its provisions related to stages of criminal trial makes it clear that every feature which is necessary for conducting a fair trial has been included. However, the process is very complex and the tendency of the code to protect the rights of the accused hinders the process of justice for the victim. Moreover, there is a huge backlog of cases that are pending. Thus, having a law that covers everything does not ensure justice, its effective implementation does.

Bibliography

  1. Process of Trial of Criminal cases in India, Lexology, https://www.lexology.com/library/detail.aspx?g=7e8a100a-6593-414f-a2e3-b70fcd13b016.
  2. Sindhu A, What are the different kinds of trials in Criminal Procedure Code?, Law Times Journal (Mar. 15, 2020), https://lawtimesjournal.in/what-are-the-different-kinds–of-trials-in-criminal-procedure-code/. 
  3. Sugam Shine, Stages of Criminal Trial in India, Kith and Kin Attorneys, https://www.kithandkinattorneys.in/post/stages-of-criminal-trial-in-india.
  4. Types of Criminal Trials, Legal Formats India (Nov. 30, 2020), https://legalformatsindia.com/types-of-criminal-trials/.
  5. Vijay Pal Dalmia,  Process of Trial of Criminal Cases in India, Mondaq, https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.mondaq.com/pdf/clientts/318472.pdf&ved=2ahUKEwjAqo3il6TxAhVYWysKHcgTB8AQFjAJegQlKhAC&usg=AOvVaw1llshhaxc4coHC8NhlabKF.
  6. Vivek Narayan Sharma, Know your rights: Criminal trials in India (Part-1), Times of India (Dec. 22, 2018), https://timesofindia.indiatimes.com/blogs/lawtics/know-your-rights-criminal-trials-in-india-part-1/.  

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Mathura Court Drops Charges of Breach of Peace Against Journalist Siddique Kappan and 3 Others 

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As the police failed to complete an inquiry within 6monThs of the prescribed period against the journalist Siddique Kappan & 3 others, who were accused of breaching the peace after their arrest on Oct 5/20. The Mathura local court decided to stop the proceedings against them.

Kappan who is a Kerala-based Journalist was arrested with his associates when they were on the way to meet the family of a Dalit girl involved in Hathras case who was raped, murdered, and cremated by UP police in secrecy. They are also activists of the Popular Front of India (PFI), which is a Kerala-based Islamic organization, they were charged with threats to peace by UP police and further booked under sedition, violation of UAPA and IT Act. This year, in April, a charge sheet against 8 of them including Kappan was filed in a local court in Mathura, sub-division Magistrate.

Maant, Ram Datt on Tuesday discharged accused Atikurrahman, Aalam, Kappan, and Masood. They have been discharged from charges under Criminal Procedure Code (CrPc) Sections 151 (Arrest to prevent the commission of cognizable offences), 107 (Security for keeping the peace in other cases), and 116 (Inquiry as to the truth of information). They were in jail since October 7/20 under Sections 153A (promoting enmity between groups), 295A (outraging religious feelings), 124A (sedition), 120B (conspiracy) of IPC, 17/18 of UAPA (raising funds for the terrorist act), and under the IT Act.

Kappan’s family and the Kerala Union of Working Journalists (KUWJ) said that the accusations were false and frivolous. This year in April, the family moved to the Supreme Court pleading that he was being mistreated in a hospital in UP where he was admitted due to Covid-19.

-Report by Saksham Srivastava

The Hon’ble High Court of Allahabad Dismisses the Pre-Arrest Bail Application of Azam Khan

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-Report by Saksham Srivastava

The Hon’ble High Court of Judicature, Allahabad, on last Friday, dismissed the anticipatory bail application of Azam Khan, the prominent leader of the Samajwadi Party and the Member of Parliament from his party. His motion was dismissed in kin with the unlawful appointment of more than one thousand clerks, stenographers, and engineers in the Jal Nigam of Uttar Pradesh, as he was the prime accused behind this unlawful act during his term as a minister in the SP government’s rule in the state of Uttar Pradesh.

Petitioner’s Contention

The learned counsel of the applicant moved an application under section 438 of CrPC, i.e.- anticipatory bail, to avail some sort of relief from the Hon’ble High Court, on the account of being arrest arrested, and further taken into judicial custody in kin with the Case Crime No. 02 of 2018, charged under section 409, 420, 120-B, 201 and section 13 (1) (d) of the PC Act, Police Station SIT of Lucknow District. The learned counsel on behalf of the applicant also contended that mereloy6 serving the jail authorities with B-warrant and communicating the same to the accused, nowhere signifies that the applicant has been retained in custody and hence the bail application under section 438 of the CrPC is maintainable. The learned counsel even argued, that even if the issuance of B-warrant has been done and communicated to the accused, yet the accused is entitled to bail as the charge sheet concerning this case was filed after the prescribed period of Ninety Days, by the investigation team.

Respondent’s Contention

The learned counsel on behalf of the state, contended that the F.I.R. was filed on 25.04.2018 on the grounds of the inquiry set up by the Special Investigating Team U.P., Lucknow regarding the felonies of biased enrichment, the disappearance of documents and destroying them, so that it cannot be laid as a piece of evidence against the criminal conspiracy of conspiring 1300 people on the post of Assistant Engineer, Junior Engineer, Clerk, and Stenographer.

It was further perceptible that the present F.I.R. was lodged against the other four by the conducting Investigation Officer. While the applicant was taken into custody concerning another case with F.I.R. No. 980 of 2019, under sections 420, 467, 468, 471, 120-B I.P.C., P.S. Civil Lines, District Rampur, an F.I.R. No. 392 of 2019, under Sections 420, 467, 468, 471, 447, 201, 120-B I.P.C. and Section 3 of Prevention of Damage to Public Property Act, P.S. Azeem Nagar, District Rampur and put in District Jail, Sitapur. There is sheer evidence of a B-warrant issued by the court, which was received by the Jail Authorities and communicated the same to the applicant within a day. The facts and figured were laid down. Given all the facts and analysis, the applicant is considered to be in custody concerning the current F.I.R. No. 2 of 2018 and issued B-Warrant issued by the competent court under the provisions of Section 267(1) CrPC.

The Court’s Order

The division bench of Hon’ble High Court, headed by Justice Rajeev Singh, reject the motion of filing the anticipatory bail application of the accused, Azam Khan, and observed while doing, that the accused is already under detention and a B-warrant has been issued against him by the competent court under the section 267 (1) of the Criminal Procedure Code, 1973, and has also been duly communicated to him. The Court further highlighted the fact that an FIR had already been lodged against the accused on the grounds of preliminary investigation, carried forward by the SIT, Uttar Pradesh, Lucknow. The accused was held liable for the unlawful appointment of more than a thousand engineers, clerks, and stenographers giving them unjust enrichment, doing forgery, conspiracy, and destroying pieces of evidence for the same. The court also stated that “It is also evident that B-warrant was issued by the competent court on 18.11.2020 was received by the Jail Authorities of District Jail Sitapur who communicated the same to the applicant on 19.11.2020”. The division bench of the court also took into consideration, the case of Bobby (Paramveer) and Anr v. State of Uttar Pradesh, in which they highlighted the key feature that while the Criminal Court issues the B-warrant, it has to satisfy the fact that the issuance of the same is just and proper. The issuance of the same means that the accused is already under detention. Hence, the Hon’ble Court held that the application moved by the accused, Azam Khan under section 438 of the CrPC is not maintainable, yet the court opened a way for the accused to move under regular bail if he so desires.

Hon’ble Allahabad High Court Rejects the Bail Application of MLA Vijay Mishra

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Allahabad HC’s Justice Om Prakash VII on Friday rejected the bail application of Bhadohi MLA Vijay Mishra alias Vijay Kumar Mishra, accused of several cases under several sections of Indian Penal Code and IT Act of Gopiganj Police Station in Sant Ravidas Nagar (Bhadohi dist.)

On August 4, 2020, an FIR was lodged by informant Krishan Mohan Tiwari against Ramlali Mishra and Vishnu Mishra, mentioning that applicant is a relative of the informant. After winning the election of block pramukh, he became active in politics. And since 2001, the applicant is alleged to be residing in the informant’s house and is busy with politics and his business without the complete consent of the applicant. He was forcibly residing and threatening and torturing them as he is a relative and presently the elected member of the Legislative assembly from Gyanpur.

The informants’ contractual work was also overtaken by the applicant and started doing all the work along with depositing the money from transactions in the account of his firm and his wife and son. He took possession of all the documents by forcibly getting signed on the cheques and using net banking in the name of the informant. The informant was unaware of all these acts.

The family and informant were threatened with dire consequences as the applicant is a dreaded criminal and the informant was in no position to file a complaint due to threats. The applicant is not only vacating the forcibly occupied house but is also pressuring the informant to execute the will in the name of the applicant’s son. On refusal, threats were extended. Informants’ apprehensions we’re shown in FIR as the applicant is a muscleman. The informant may become landless if the applicant is successful in his acts. A prayer was made to take legal action for securing the life and property of the informant and his family members and was submitted to Chaturvedi, Senior advocate, appearing for the applicant, that no prima facie case is made out against the applicant. The applicant is a reputed person in the Society and was elected four times as MLA. He was also Block Pramukh and President of Zila Panchayat of District Sant Ravidas Nagar.

Referring to the contents of the FIR, it was further submitted that offence under section 449 IPC is not attracted in this matter. Informant himself has admitted in the FIR that the applicant was residing in the said house with the consent of the informant.

It was further argued that if such was the position, offence of criminal trespass cannot be constituted in this matter. Simply it was a dispute of partnership business which is pure of civil nature. Efficacious remedies will be available to the parties in civil suits/arbitration cases. An appeal against the order passed in the arbitration matter is also pending before the Court. Referring to the copy of the Will deed annexed with the application, it was further argued that there was no occasion to obtain a Will deed in favor of Vishnu Mishra, the son of the applicant. The said Will has not been executed. This fact also shows that offences leveled in the matter are not attracted against the applicant.

A Senior Counsel appearing for the applicant also referred to the statement of the witnesses recorded under sections 161 and 164 CrPC and further argued that the applicant is suffering from several diseases. He is in jail since August 14, 2020, and further argued that in all the previous criminal cases against the applicant, they are either withdrawn or the applicant is acquitted. The pending cases are not heinous and some may be due to political rivalry. Also, the disputed property belongs to the applicant exclusively and the said transactions made were done with the complainant’s consent. The applicant should not be kept behind the bars on the grounds of no of cases lodged against him. As a law-abiding person, he was granted bail in 2013 against a criminal trial going considering the entire criminal cases pending against the applicant up to the year 2013.

But as per Additional Advocate General appearing for State and counsel for the informant, the applicant is an influential person and no one dares to lodge an FIR against him and he’s a participant in several heinous cases. The counsel for the informant also argued that no one dares to provide evidence against the applicant hence he was acquitted. The no of cases was withdrawn due to pressure or influence by the govt. Also, the will feed was being executed in the name of Vishnu Mishra, the applicant’s son, only because of pressure created over the informant, but since he left the Registry office, the deed was not executed. Referring to the counter affidavit, it was further argued that a criminal case for the offence under section 376 IPC is also pending against the applicant. If the applicant is enlarged on bail, he will put pressure upon the witnesses. Thus, prayer was made for the rejection of bail.

Thus, having considered the submissions raised across the bar and going through the entire record, and also looking to the nature of allegations leveled against the applicant, the apprehension shown by the informant in the F.I.R. cannot be denied particularly because of criminal antecedents of the applicant.

The Court believes that prayer made for bail in the application is not liable to be allowed and is hereby rejected”, the Court ordered.

-Report by Saksham Srivastava

Compensation in Criminal Cases

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This article is written by Aanya Gupta, a 1st-year law student at Vivekananda Institute Professional Studies, GGSIPU, New Delhi. The article gives an overview of the compensations being provided in criminal cases.

Introduction

Crimes committed by individuals and companies are classified in various laws according to the nature of the crime. For example, the crime of infringement of private rights is governed by civil law, and the crime of endangering the country is governed by criminal law. When the appropriate court proves the crime, the victim or victim can obtain relief from the court through compensation, court orders, and actions, or the punishment of the offender. Generally speaking, if damage to private rights is caused by tort or any civil law, compensation and court order shall be given, and the offender shall be fined or not fined by the law and criminal law. However, there is no clear distinction as to why compensation should not be granted in criminal cases. With the introduction of new research such as “victimology”, it is important to analyze the importance of compensation in criminal law. The golden sentence in the preamble highlights “social justice”, but it hardly retains its meaning in the criminal case, because the law only provides for criminal clauses and does not pass a clause on victim compensation. However, it is hopeless that compensation for the victims is considered an “oasis in the desert.”

Ancient History of Victim Compensation

The history of ancient India proves the fact that victims of crime have sufficient compensation clauses to compensate for their injuries. Since ancient times, India has recognized compensation or compensation as a form of punishment. In ancient Hindu laws, compensation was considered a royal right during the Buddhist scripture period. MANU law requires the offender to pay compensation. This shows that compensation to victims has never been an unknown concept in the country’s judicial system.

Compensation to the Victim

The criminal Justice System now recognizes that the country’s legal system does not treat the issue of compensation to crime victims in a uniform manner, so it is advantageous to discuss the legal position of compensation to victims of crime. After independence, the trials of criminals are governed by the Criminal Procedure Codes of 1898 and 1973. Until 2008, article 545 of the Old Code and article 357 of the New Code had increasingly similar provisions on compensation for women. crime victims.

In Hari Singh v. Sukhbir Singh,  the supreme court said “It should be pointed out that the court’s power to award compensation is not subordinate to other judgments, but is attached to other judgments. This power of attorney aims to do something. To ensure that victims are not forgotten in the criminal justice system. This is a measure to respond appropriately to crimes and to reconcile victims and perpetrators. The legislator stipulated section 357(3) of the Criminal Procedure Code of 1973 Provisions were made to allow the court to award any amount of compensation to victims of crime. This is described in the landmark Hari Kisan case, where the Supreme Court awarded Rs 50,000 in damages as punishment. Not only that but lower courts are also required and recommended to “exercise the power to compensate crime victims free of charge so that victims do not have to rush to file a claim in civil court.”

Malimath Committee Report

To re-examine the criminal justice system in India in 2003, the Criminal Justice System Reform Committee was established under the auspices of Judge V. Malimath. The main assumption of the function of the criminal justice system is that protecting the life and property of all citizens from harm is the prerogative and dominant function of the state. The principle of compensating victims is seen as more symbolic relief than punishment for the offender or a substantial remedy provided by law for the victim. In 2008, the CRPC was significantly revised, focusing on the rights of victims in criminal trials, especially those related to sexual crimes. Although the amendments did not affect section 357, they did introduce section 357-A. Authorizes the court to instruct the state to pay compensation to the victim.

Section 357 and Section 357A of the Criminal Procedure Code

Former Compensation Clauses for the Victim Compensation Program. Previously, Article 357 of the Criminal Procedure Law provided for compensation for crime victims. The article was to order the convicted person to pay compensation to the crime victim, provided that the defendant’s sentencing court ordered so. However, in many cases, we have seen that the convicted were of poor origin, or were unwilling to pay compensation due to long-term imprisonment, and the victims seemed hopeless. seems to be to overcome this situation. In 2009, an amendment was passed to add a new section 357 A to the Criminal Procedure Code. According to Article 357A of the Criminal Procedure Law of this article, the state is also obliged to compensate victims of crimes other than the defendants specified in Article 357 of the Criminal Procedure.

Victim Compensation Scheme

  • The state governments shall coordinate with the central government to formulate A plan to provide compensation funds to victims or their families who have suffered loss or injury or need rehabilitation due to crimes.
  • Whenever the court makes a recommendation for compensation, the regional or state legal service agency will determine the award based on the above plan as appropriate the amount of compensation.
  • If after the first instance the court finds that the compensation awarded under section 357 is not sufficient for such rehabilitation.

Conclusion

We concluded that compensation is not only required but is a very important aspect of even criminal law and the courts should not use this sparingly but a little liberally. Of course, they should be careful of not awarding too high compensation and hence should be careful.

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