The Supreme Court has decided to look into the issue of amendments in the rules governing the appointment of members to the Securities and Exchange Board of India.
A PIL challenging these appointment had recently been filed in the apex court. The court earlier had asked the petitioners to withdraw the petition and refile it without allegations against Union finance minister Pranab Mukherjee.
The PIL, filed by retired air marshal S. Krishnaswamy and others, also sought to annul the appointment of U.K. Sinha as SEBI chairman.
The amendment allowed Mukherjee toappoint two members “of his own choosing”.
The petitioners said this would compromise SEBI’s functioning as its top officials need to be experts with requisite qualifications, which were not prescribed by the amendment.
A bench headed by Chief Justice S H Kapadia posted it for further hearing after Senior Advocate Gopal Subramanium started his arguments in the case. The matter shall be heard on November 21st.
SEBI has been surrounded by controversy recently. Former SEBI board member K.M. Abraham wrote a letter to Prime Minister Manmohan Singh alleging irregularities.
Showing posts with label Sumit Nagpal. Show all posts
Showing posts with label Sumit Nagpal. Show all posts
Friday, 4 November 2011
Thursday, 3 November 2011
SC notice to all the states on criminal cases on MPs
#SupremeCourt issues notice to all the state on a petition filed by former Chief Election Commissioner J M Lyngdoh.
In his petition before the apex court, Lyngdoh prayed that cases againt the Parliamentarians should be fast tracked
Hearing the matter, a bench headed by Justice P Sathasivam observed that the information proviced in the petition is very disturbing that out of 543 MPs, 162 are facing criminal cases.
Notice has been issues and is returnable in 4 weeks.
In his petition before the apex court, Lyngdoh prayed that cases againt the Parliamentarians should be fast tracked
Hearing the matter, a bench headed by Justice P Sathasivam observed that the information proviced in the petition is very disturbing that out of 543 MPs, 162 are facing criminal cases.
Notice has been issues and is returnable in 4 weeks.
Law on bail and the 2G case
With the Delhi court rejecting the bail applications of accused in 2G scam, there is growing resentment in the judicial circles, on the way things are going on in 2G trial. But for a layman I am writing what is the law on bail and why everyone in the judicial circles is feeling agitated.
Law on bail
Before we get to know what is law on bail we must also know what are bailable offence and what are non bailable offences.
Bailable offence : A bailable offence is one in which an accused is entitled to bail as a matter of right. Generally offence which have a punishment of less than three years are said to be bailable offences.
Non-bailable offence
A non bailable offence is one in which a person can not ask for bail as a matter of right. In fact, in such cases, it is the discretion of the court whether to release an accused on bail or not. Generally offences in which the punishment is more than three years are termed as non bailable offences.
Why bail?
Indian law is based on the principle that a person is presumed innocent till he is proved guilty. This principle governs the entire legal system of the country with few exceptions. Our entire legal history tought us ''Bail and NOT Jail'' shall be governing principle when it come to adjudication of the criminal cases in the country.
Factors which are considered by the courts which granting or denying bail to an accused
Whether there is a likelihood that if the accused is released on bail, he will abuse the process of law?
This simply means the court would see that if a person is released on bail, is there a possibility that he may try to tamper with the evidence or try to influence the witnesses. And if there is a likely possibility that a person can do this, the accused may be denied bail. In such cases, the courts may also look into the economic status of the accused.
The court will also consider, if a person is released on bail, whether there is an apprehension that he might flee the country? Generally the court considers this factor while granting bail to NRIs, foreign national etc. And in such cases an accused might be denied bail.
Nature of the offence
While in bailable offences, a person can ask for a bail as a matter of right, in non bailable offences, generally the courts refuse bail in heinous offences, or offences in which which are generally punishable with death or life imprisonment. For example in cases of attacks the sovereignty of India, terror attacks, henious murders bail will not be granted to an accused.
Whether prosecution has any objection to the grant of bail to an accused?
If the prosecution in the case is satisfied that the investigation in the case is over and the evidence of the case is documentary which can not be tampered with the prosecution may not object to the grant of bail to an accused.
Past Record
If the accused is a first time offender, this is a factor which goes in favour of the accused, The idea is to give him a chance to stay away from the company of criminals which might influence his mind and he may also turn into a hardcore criminal in future.
Health of the accused
In many a cases, where health of an accused might be so bad that keeping him in jail might be detrimental to his life. In such cases, the courts generally seek opinion of the doctors and grant bail to an accused.
Concerns of lawyers
Coming back to the 2G scam, the lawyers are expressing their concerns on the way the established principles of law on bail are being flouted. Most of the accused are first time offenders with no criminal history. Lawyers also argue that when the investigating agency has no objection to their release on bail, under which law, the court is keeping the accused in custody. Lawyers are also concerned that because of the ongoing 2G case, in other matters too, the prosecution is taking benefit and citing the example of 2G case.
Conclusion
As a student of law and a legal correspondent, I have heard the arguments in many cases. And the present case raises questions in my mind too! Either we should change the jurisprudence or the Supreme Court must clear the air on this issue of bail so that we must know with which point of view are we supposed to look at law on bail.
Law on bail
Before we get to know what is law on bail we must also know what are bailable offence and what are non bailable offences.
Bailable offence : A bailable offence is one in which an accused is entitled to bail as a matter of right. Generally offence which have a punishment of less than three years are said to be bailable offences.
Non-bailable offence
A non bailable offence is one in which a person can not ask for bail as a matter of right. In fact, in such cases, it is the discretion of the court whether to release an accused on bail or not. Generally offences in which the punishment is more than three years are termed as non bailable offences.
Why bail?
Indian law is based on the principle that a person is presumed innocent till he is proved guilty. This principle governs the entire legal system of the country with few exceptions. Our entire legal history tought us ''Bail and NOT Jail'' shall be governing principle when it come to adjudication of the criminal cases in the country.
Factors which are considered by the courts which granting or denying bail to an accused
Whether there is a likelihood that if the accused is released on bail, he will abuse the process of law?
This simply means the court would see that if a person is released on bail, is there a possibility that he may try to tamper with the evidence or try to influence the witnesses. And if there is a likely possibility that a person can do this, the accused may be denied bail. In such cases, the courts may also look into the economic status of the accused.
The court will also consider, if a person is released on bail, whether there is an apprehension that he might flee the country? Generally the court considers this factor while granting bail to NRIs, foreign national etc. And in such cases an accused might be denied bail.
Nature of the offence
While in bailable offences, a person can ask for a bail as a matter of right, in non bailable offences, generally the courts refuse bail in heinous offences, or offences in which which are generally punishable with death or life imprisonment. For example in cases of attacks the sovereignty of India, terror attacks, henious murders bail will not be granted to an accused.
Whether prosecution has any objection to the grant of bail to an accused?
If the prosecution in the case is satisfied that the investigation in the case is over and the evidence of the case is documentary which can not be tampered with the prosecution may not object to the grant of bail to an accused.
Past Record
If the accused is a first time offender, this is a factor which goes in favour of the accused, The idea is to give him a chance to stay away from the company of criminals which might influence his mind and he may also turn into a hardcore criminal in future.
Health of the accused
In many a cases, where health of an accused might be so bad that keeping him in jail might be detrimental to his life. In such cases, the courts generally seek opinion of the doctors and grant bail to an accused.
Concerns of lawyers
Coming back to the 2G scam, the lawyers are expressing their concerns on the way the established principles of law on bail are being flouted. Most of the accused are first time offenders with no criminal history. Lawyers also argue that when the investigating agency has no objection to their release on bail, under which law, the court is keeping the accused in custody. Lawyers are also concerned that because of the ongoing 2G case, in other matters too, the prosecution is taking benefit and citing the example of 2G case.
Conclusion
As a student of law and a legal correspondent, I have heard the arguments in many cases. And the present case raises questions in my mind too! Either we should change the jurisprudence or the Supreme Court must clear the air on this issue of bail so that we must know with which point of view are we supposed to look at law on bail.
SC stays EC proceedings against Ashok Chavan
Supreme Court stays proceedings before Election Commission against former Chief Minister of Maharashtra, Ashok Chavan.
A bench headed by Justice Altamas Kabir also issued notices to BJP, Kirit Somaiya and Election commission on Chawhan's petition asking for a stay of proceedings going on before Election Commission of India.
A complaint before the Election Commission had accused Chavan of filing a false affidavit in the last elections where he undervalued his expenditure on advertisements in the media.
Apearing for Chavan in the apex court, Senior Advocate Gopal Subramaniun asked the court to stay the proceedings so that the matter could be decided by the Supreme Court.
Apearing for one of the parties, Senior Advocate Ranjit Kumar tried to convince the court not to stay the proceedings before the Election Commission. ''...The matter is listed for hearing before the Election Commission tomorrow...'' argued Kumar.
Not convinced by the Kumar's arguments the court stayed the proceedings before the Election Commission, the court listed the matter for hearing on December 2nd.
A bench headed by Justice Altamas Kabir also issued notices to BJP, Kirit Somaiya and Election commission on Chawhan's petition asking for a stay of proceedings going on before Election Commission of India.
A complaint before the Election Commission had accused Chavan of filing a false affidavit in the last elections where he undervalued his expenditure on advertisements in the media.
Apearing for Chavan in the apex court, Senior Advocate Gopal Subramaniun asked the court to stay the proceedings so that the matter could be decided by the Supreme Court.
Apearing for one of the parties, Senior Advocate Ranjit Kumar tried to convince the court not to stay the proceedings before the Election Commission. ''...The matter is listed for hearing before the Election Commission tomorrow...'' argued Kumar.
Not convinced by the Kumar's arguments the court stayed the proceedings before the Election Commission, the court listed the matter for hearing on December 2nd.
Monday, 31 October 2011
Arguments in SC on bail applications of corporates accused in 2G case
By Sumit Nagpal
Arguments in the Supreme Court continued before the bench of Justice G S Singhvi and Justice H L Dattu on the bail applications filed by five corporates Sanjay Chandra, Vinod Goenka, Hari Nair, Gautam Doshi, Surendra Pipara who all are accused in 2G scam.
Starting his arguments for Sanjay Chandra, noted lawyer Ram Jethmalani tore apart the judgment of the lower court and the High Court which denied bail to his client in this case. Jethmalani argued that the principles on which the magistrate grants the bail are different from that principles on which the High Courts and the Supreme Court grants bail. ''...The only test is to see if the accused is likely to abuse the process of law or not. The trial court denied bail to my client but no where has the trial court said that the accused tried to temper with the evidence. The trial court said that few of the witnesses are emplyees of my client. But the investigation is over now! How can he influence any witness now?...'' argued Jethmalani.
In an attempt to demolish the prosecution case, Jethmalani argued that a conspiracy can only be proved in two ways; one, with the help of the approver and two, with the help of circumstancial evidence. ''...But no facts of cheating have been put on paper. The chargesheet if totally silent on ingredients on cheating. Cheating could have been attributed to me if I has misrepresented some facts. Where are they? Whom did I cheat? And if there is no prima facie case against my client, the bail is a must for my client...'' said Jethmalani.
Jethmalani also stressed that if there is no apprehension of absconding or abuse of process of law then bail must be granted in such cases. ''...Its not that I entered into conspiracy with someone to cause loss to the government, I am a businessman and I am entitled to take benefit of government policy. Was I expected to go and tell the government what kind of fools are you? This policy will result in loss to the government. The loss means wrongful loss. Which is the law that I have broken?..''
Continuing from where Jethmalani left, Senior Advocate Mukul Rohtagi started his arguments for Vivek Goenka. Rohtagi accused CBI of desperately trying to frame in a harsher section 409 of IPC which attracts a sentence of life imprisonment. Rohtagi argued that when his client tried to get bail according to section 437 CrPC, the CBI moved an application to charge the accused with 409. (Note: 437 states that in offences which carry a punishment of less than 7 years, bail is a must.)
Rohtagi also attacked the lower court for not granting the bail to the accused despite CBI not opposing the bail applications of the accused. ''...What kind of a case is this? Is it the prosecution which arrests the people or is it the court which arrest the people. Now the order has been reserved? The chargesheet says, summon and try the accused. If the CBI doesnot arrest, under which jurisprudence have they been arrested...''
Starting his arguments for Hari Nair and Surender Pipara, Senior Advocate and the former attorney genetal Ashok Desai argued that it is the right of every citizen to get bail. Ours is a case based on documents which are in the custody of CBI, we can't tamper with the evidence.
''...We have been charged with cheating but the question is whom? Who have we cheated? My client Pipara's medical condition is bad. Please release him on bail...'' argued Desai.
Arguing for Gautam Doshi, former solicitor general Soli Sorabjee said, the judge denied bail to us saying that there is no guarantee that we shall not tamper with the evidence in future but by this argument, no one can be granted bail in any case.
The Counsel for CBI, Harin Raval however tried to counter the arguments of the defence by saying that it would be wrong to suggest that there is no evidence against the accused. Rather, the court has framed charges against all the accused and this clearly means that there is prima facie evidence against the accused.
At this point, Justice Singhvi asked the CBI if this is true that CBI did not oppose the bail plea of five of the accused in lower court? The court has asked Raval to respond on Tuesday at 3.50 pm.
Justice Dattu also asked the CBI that if they do not wish to oppose the bail applications of the accused then what happens to the economic fabric theory projected before the court.
The matter shall continue on Tuesday at 3.50 pm.
Arguments in the Supreme Court continued before the bench of Justice G S Singhvi and Justice H L Dattu on the bail applications filed by five corporates Sanjay Chandra, Vinod Goenka, Hari Nair, Gautam Doshi, Surendra Pipara who all are accused in 2G scam.
Starting his arguments for Sanjay Chandra, noted lawyer Ram Jethmalani tore apart the judgment of the lower court and the High Court which denied bail to his client in this case. Jethmalani argued that the principles on which the magistrate grants the bail are different from that principles on which the High Courts and the Supreme Court grants bail. ''...The only test is to see if the accused is likely to abuse the process of law or not. The trial court denied bail to my client but no where has the trial court said that the accused tried to temper with the evidence. The trial court said that few of the witnesses are emplyees of my client. But the investigation is over now! How can he influence any witness now?...'' argued Jethmalani.
In an attempt to demolish the prosecution case, Jethmalani argued that a conspiracy can only be proved in two ways; one, with the help of the approver and two, with the help of circumstancial evidence. ''...But no facts of cheating have been put on paper. The chargesheet if totally silent on ingredients on cheating. Cheating could have been attributed to me if I has misrepresented some facts. Where are they? Whom did I cheat? And if there is no prima facie case against my client, the bail is a must for my client...'' said Jethmalani.
Jethmalani also stressed that if there is no apprehension of absconding or abuse of process of law then bail must be granted in such cases. ''...Its not that I entered into conspiracy with someone to cause loss to the government, I am a businessman and I am entitled to take benefit of government policy. Was I expected to go and tell the government what kind of fools are you? This policy will result in loss to the government. The loss means wrongful loss. Which is the law that I have broken?..''
Continuing from where Jethmalani left, Senior Advocate Mukul Rohtagi started his arguments for Vivek Goenka. Rohtagi accused CBI of desperately trying to frame in a harsher section 409 of IPC which attracts a sentence of life imprisonment. Rohtagi argued that when his client tried to get bail according to section 437 CrPC, the CBI moved an application to charge the accused with 409. (Note: 437 states that in offences which carry a punishment of less than 7 years, bail is a must.)
Rohtagi also attacked the lower court for not granting the bail to the accused despite CBI not opposing the bail applications of the accused. ''...What kind of a case is this? Is it the prosecution which arrests the people or is it the court which arrest the people. Now the order has been reserved? The chargesheet says, summon and try the accused. If the CBI doesnot arrest, under which jurisprudence have they been arrested...''
Starting his arguments for Hari Nair and Surender Pipara, Senior Advocate and the former attorney genetal Ashok Desai argued that it is the right of every citizen to get bail. Ours is a case based on documents which are in the custody of CBI, we can't tamper with the evidence.
''...We have been charged with cheating but the question is whom? Who have we cheated? My client Pipara's medical condition is bad. Please release him on bail...'' argued Desai.
Arguing for Gautam Doshi, former solicitor general Soli Sorabjee said, the judge denied bail to us saying that there is no guarantee that we shall not tamper with the evidence in future but by this argument, no one can be granted bail in any case.
The Counsel for CBI, Harin Raval however tried to counter the arguments of the defence by saying that it would be wrong to suggest that there is no evidence against the accused. Rather, the court has framed charges against all the accused and this clearly means that there is prima facie evidence against the accused.
At this point, Justice Singhvi asked the CBI if this is true that CBI did not oppose the bail plea of five of the accused in lower court? The court has asked Raval to respond on Tuesday at 3.50 pm.
Justice Dattu also asked the CBI that if they do not wish to oppose the bail applications of the accused then what happens to the economic fabric theory projected before the court.
The matter shall continue on Tuesday at 3.50 pm.
SC notice on mysterious death of NC worker Yusuf Shah
By Sumit Nagpal
#SupremeCourt issues notice to Central Govt and J K Govt on a petition filed by Prof Bhim Singh asking for a CBI inquiry into the death of National Conference worker Yusuf Shah. Shah died in mysterious circumstances after he visited the house of present Chief Minister Omar Abdullah.
It is alleged that he was acting as a middleman for various politicians to get MLC seats in the state. He allegedly paid money to Abdullahs for getting a MLC seat to a local politician.
The court has asked for the responses in two weeks.
#SupremeCourt issues notice to Central Govt and J K Govt on a petition filed by Prof Bhim Singh asking for a CBI inquiry into the death of National Conference worker Yusuf Shah. Shah died in mysterious circumstances after he visited the house of present Chief Minister Omar Abdullah.
It is alleged that he was acting as a middleman for various politicians to get MLC seats in the state. He allegedly paid money to Abdullahs for getting a MLC seat to a local politician.
The court has asked for the responses in two weeks.
Tuesday, 25 October 2011
Let there be light! Let there be law! Happy Diwali
Wishing u all a very happy and prosperous Diwali.. May the festival of lights bring all of you happiness, health and wealth..
Light in life doesn't only mean electricity! It means light of awareness, light of achievement and light of actualisation. And Spread Law is committed to making people more aware of their rights and duties.
Come on, join hands together! Lets all of us become aware citizens and make India a better place to live!
Best Wishes,
Sumit Nagpal
Founder
Spread Law
Friday, 21 October 2011
Section 409 IPC
2G accused have been booked under section 409 IPC.. For all those who wanna know what is 409, here is the section text
Section 409. Criminal breach of trust bypublic servant, or by banker, merchant or agent
Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor,broker, attorney or agent, commits breach of trust in respect of that property, shall be punished with 1 [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years,and shall also be liable to fine.
CLASSIFICATION OF OFFENCE
Punishment—Imprisonment for life, orimprisonment for 10 years and fine—Cognizable—Non-bailable—Triable by Magistrate of the first class—Non-compoundable.
Section 409. Criminal breach of trust bypublic servant, or by banker, merchant or agent
Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor,broker, attorney or agent, commits breach of trust in respect of that property, shall be punished with 1 [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years,and shall also be liable to fine.
CLASSIFICATION OF OFFENCE
Punishment—Imprisonment for life, orimprisonment for 10 years and fine—Cognizable—Non-bailable—Triable by Magistrate of the first class—Non-compoundable.
Legal Point Diwali special
Have you ever thought what do you do if you are hurt by a firecracker of a neighbor? What is the remedy available under law if something in your balcony gets burnt by a group of negligent people who are shooting rockets near your house? What do you if you are troubled with noise pollution in your neighborhood as people are bursting crackers beyond the permissible limit?
All your answers in this week's Legal Point To see our show Legal Point online please tune to www.itvnewsindia.com/live-tv every Saturday @2.30 pm on India News Bihar nd @3.30pm on India News Haryana. Write to us at LegalPoint@Live.com ..Will take ur call in our show.. #LegalPoint
Team Legal Point takes a specific issue every week and we try to tell the law relating to it. In addition, we take live questions from callers as we have a lawyer sitting in the studio who tries to guide people online what are their rights and what they need to do in case they face any legal problem
And yes! We would love to know your opinion. Feel free to leave a comment on the comments section about what you feel about Spread Law and what additional information you would like to see on this blog.
All your answers in this week's Legal Point To see our show Legal Point online please tune to www.itvnewsindia.com/live-tv every Saturday @2.30 pm on India News Bihar nd @3.30pm on India News Haryana. Write to us at LegalPoint@Live.com ..Will take ur call in our show.. #LegalPoint
Team Legal Point takes a specific issue every week and we try to tell the law relating to it. In addition, we take live questions from callers as we have a lawyer sitting in the studio who tries to guide people online what are their rights and what they need to do in case they face any legal problem
And yes! We would love to know your opinion. Feel free to leave a comment on the comments section about what you feel about Spread Law and what additional information you would like to see on this blog.
Justice for Naina Singh
Dear friends following is the story which was telecast on India News. The story shows how the mother of Naina Singh is crying foul on the death of her daughter and the police refuses to file FIR
Thursday, 20 October 2011
Law on FIR in India
Facts you must know about FIR before you enter a police station.
By Sumit Nagpal
For a journo covering Judiciary, its a very very common thing that people approach you saying the police is not lodging their FIR. I have come across numerous cases, where people are ill treated by the police stations and FIRs are refused. And since last three days, there is a campaign on Twitter about the mysterious death of one Naina Singh of Ghaziabad. Her mother is crying foul over her death and the police is not ready to lodge FIR. This prompts me to write a blog on things you must know before entering a police station in such a case.
What is FIR?
FIR stands for first information report. It is a document providing the basic information that a cognizable offense has been committed. We must know that FIR is not a conclusive proof that a person has committed an offense. FIR is the starting point of the investigation in a particular offense.
What is the law on FIR?
FIR is governed by Section 154 of the Criminal Procedure Code.
According to Section 154, (1) Every information relating to the commission of a cognizable offense, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informants and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. (2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant. (3) Any person, aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offense, shall either investigate the case himself or direct an investigation to be made by any police officer Subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.
Is a police officer duty bound to lodge FIR in every case?
The police officer is duty bound to lodge FIR in every cognizable case. And if a police officer gets a complaint from an aggrieved person about the cognizable offense, he must lodge a FIR. And if a police officer refuses to do so, one must approach the SP of the concerned area that a police officer has refused to lodge FIR.
What does it mean if the police officer takes your complaint and gives you an acknowledgement? Does it mean FIR has been lodged?
No, it doesn't mean that the FIR has been lodged. It just means that the police officer has received a complaint and the police will see if a cognizable offense has been committed or not?
How will you get to know that your FIR has been lodged or not?
If a FIR has been lodged, the police officer concerned shall write in their prescribed performa in a form or in computer as the case may be. They will also write the relevant sections and the name of the accused persons if any of them are known to the complainant. The FIR shall also contain a reference number containing the year also.
Can your complaint be FIR?
Yes! Your complaint can also be FIR provided they have written down the contents of your complaint in their prescribed performa. Please remember that mere acknowledgment of receiving your complaint doesn't automatically converts it into FIR.
Is it your right to get a copy of FIR?
Yes! Its your right to get a copy of your FIR free of cost from the police
Should FIR be lodged ASAP? What will happen if there is a delay in filing FIR?
Yes, FIR must be lodged as soon as possible. If there is a delay in filing the FIR, it will help the accused because the accused shall get time to destroy the evidence, there shall be a problem in locating the witnesses and during the trial, the defense lawyer will make an allegation that FIR is an after thought.
Why they refuse to file FIR?
There are few reasons the police refuses to lodge FIR like the offense is not a cognizable offense. Sometimes they want to keep the crime graph low so if they don't lodge FIR, it will not show in the crime statistics in the area. Many a times, a party bribes police officers and that's why they refuse to lodge FIR. In most of mobile theft cases, it is a common practice that police does not register a FIR but registers a NCR so the graph of theft remains low.
What should you do if the police officer refuses to lodge a FIR?
If the police refuses to lodge FIR, don't think that this is the end of the road. The Criminal Procedure Code has a provision under section 156(3) where an aggrieved person may file a petition before the magistrate asking for a direction to the police to lodge a FIR.
(Note : This is part I of Law on FIR. In next blog I will tell you the difference between FIR, NCR and complaint. I will also write what is a cognizable offense and what is non cognizable one.)
By Sumit Nagpal
For a journo covering Judiciary, its a very very common thing that people approach you saying the police is not lodging their FIR. I have come across numerous cases, where people are ill treated by the police stations and FIRs are refused. And since last three days, there is a campaign on Twitter about the mysterious death of one Naina Singh of Ghaziabad. Her mother is crying foul over her death and the police is not ready to lodge FIR. This prompts me to write a blog on things you must know before entering a police station in such a case.
What is FIR?
FIR stands for first information report. It is a document providing the basic information that a cognizable offense has been committed. We must know that FIR is not a conclusive proof that a person has committed an offense. FIR is the starting point of the investigation in a particular offense.
What is the law on FIR?
FIR is governed by Section 154 of the Criminal Procedure Code.
According to Section 154, (1) Every information relating to the commission of a cognizable offense, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informants and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. (2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant. (3) Any person, aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offense, shall either investigate the case himself or direct an investigation to be made by any police officer Subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.
Is a police officer duty bound to lodge FIR in every case?
The police officer is duty bound to lodge FIR in every cognizable case. And if a police officer gets a complaint from an aggrieved person about the cognizable offense, he must lodge a FIR. And if a police officer refuses to do so, one must approach the SP of the concerned area that a police officer has refused to lodge FIR.
What does it mean if the police officer takes your complaint and gives you an acknowledgement? Does it mean FIR has been lodged?
No, it doesn't mean that the FIR has been lodged. It just means that the police officer has received a complaint and the police will see if a cognizable offense has been committed or not?
How will you get to know that your FIR has been lodged or not?
If a FIR has been lodged, the police officer concerned shall write in their prescribed performa in a form or in computer as the case may be. They will also write the relevant sections and the name of the accused persons if any of them are known to the complainant. The FIR shall also contain a reference number containing the year also.
Can your complaint be FIR?
Yes! Your complaint can also be FIR provided they have written down the contents of your complaint in their prescribed performa. Please remember that mere acknowledgment of receiving your complaint doesn't automatically converts it into FIR.
Is it your right to get a copy of FIR?
Yes! Its your right to get a copy of your FIR free of cost from the police
Should FIR be lodged ASAP? What will happen if there is a delay in filing FIR?
Yes, FIR must be lodged as soon as possible. If there is a delay in filing the FIR, it will help the accused because the accused shall get time to destroy the evidence, there shall be a problem in locating the witnesses and during the trial, the defense lawyer will make an allegation that FIR is an after thought.
Why they refuse to file FIR?
There are few reasons the police refuses to lodge FIR like the offense is not a cognizable offense. Sometimes they want to keep the crime graph low so if they don't lodge FIR, it will not show in the crime statistics in the area. Many a times, a party bribes police officers and that's why they refuse to lodge FIR. In most of mobile theft cases, it is a common practice that police does not register a FIR but registers a NCR so the graph of theft remains low.
What should you do if the police officer refuses to lodge a FIR?
If the police refuses to lodge FIR, don't think that this is the end of the road. The Criminal Procedure Code has a provision under section 156(3) where an aggrieved person may file a petition before the magistrate asking for a direction to the police to lodge a FIR.
(Note : This is part I of Law on FIR. In next blog I will tell you the difference between FIR, NCR and complaint. I will also write what is a cognizable offense and what is non cognizable one.)
Wednesday, 19 October 2011
Spread Law is now on facebook too!
I am happy to inform all my friends that we have a dedicated fan page for Spread Law.
The web address for the facebook page is www.facebook.com/SpreadLaw
All of you are requested to please like it and also ask your friends to like it too. Support from all of you means a lot to me.
Thanks,
Sumit Nagpal
The web address for the facebook page is www.facebook.com/SpreadLaw
All of you are requested to please like it and also ask your friends to like it too. Support from all of you means a lot to me.
Thanks,
Sumit Nagpal
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