Case BriefsHigh Courts

Telangana High Court: A Division Bench of Raghvendra Singh Chauhan, CJ and B. Vijaysen Reddy, J., while addressing the Public Interest Litigation filed on the basis of a news report observed in regard to “Judicial Commission” that,

“In absence of any concrete evidence and facts, appointing Judicial Commission would be a futile exercise”

The present Public interest Litigation was filed based on a news item published in “The Hindu” newspaper on 10-05-2020 entitled “Police, not Judges, award punishment”.

Baglekar Akash Kumar wrote a letter to the Chief Justice in view of the incident reported in the above-stated news item. In the said news item 5 accused persons were alleged to have committed the offence under Section 319 of Penal Code, 1860.

The said accused persons were allegedly made to move barricades under the scorching summer sun by the police.

The above-stated act amounts to the torture inflicted by the police and hence necessary action was sought by the petitioner against the police personnel.

Further, the petitioner’s counsel submitted that since the identity of the accused persons was changed by the reporter of “The Hindu”, it remains unknown. Hence, to enquire into the veracity of news, a Judicial Commission should be appointed.

Petitioner’s counsel also relied on a Supreme Court’s decision in Sheela barse v. State of Maharashtra, (1983) 2 SCC 96.

Decision

Since the reporter himself is not in a position to reveal the identity of the accused persons, it is very difficult to find out the actual identity of the alleged accused persons, who ere allegedly forced to move barricades in hot summer days.

To appoint Judicial Commission would be a futile exercise in absence of concrete evidence and facts

Court in regard to Judicial Commission stated that,

Judicial Commission cannot be asked to go on a wild goose chase. The appointment of the Judicial Commission is a serious step. It cannot be taken lightly.

In the present matter, all the witnesses have clearly stated that they had helped the police voluntarily which gives the Court no reason to disbelieve their statements.

In view of the above circumstances, the bench is not inclined to appoint a Judicial Commission to examine the alleged incident.

In view of the above writ petition was disposed of. [Baglekar Akash Kumar v. State of Telangana, WP (PIL) No. 97 of 2020, decided on 04-09-2020]

Case BriefsHigh Courts

Madhya Pradesh High Court: Rajeev Kumar Shrivastava, J., allowed the anticipatory bail application of the accused-applicant in connection with the FIR registered for offence punishable under Sections 420 and 34 of the Penal Code, 1860.

The applicant has an apprehension of his arrest resultant of the FIR bearing No. 131/2019 for the offence punishable under the aforementioned sections of the IPC, hence this application.

Counsel representing the applicant, Rajendra Singh Parmar has contended that the applicant has been falsely framed as he has not committed any offence. The applicant’s hard earned reputation would take a beating if he is arrested. The applicant has expressed his willingness to abide by any condition that may be imposed by the Court in the present matter. The counsel has relied on the case titled Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 while pleading for grant of bail to the applicant.

Counsel for the respondent, B.S. Gour vehemently objected to the application and prayed for its rejection.

After careful perusal of the facts, circumstances and arguments advanced, the Court found the above-stated case to be extremely relevant and relied on the same while delivering its Judgment. Relevant paragraphs from Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 have been reproduced below-

“7.1. From a plain reading of the provision under Section 41 CrPC, it is evident that a person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on his satisfaction that such person had committed the offence punishable as aforesaid. A police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts.

7.2. The law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. The law further requires the police officers to record the reasons in writing for not making the arrest.

7.3. In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. Before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 CrPC 9. Another provision i.e. Section 41-A CrPC aimed to avoid unnecessary arrest or threat of arrest looming large on the accused requires to be vitalised. This provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1) CrPC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police officer is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 CrPC has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid.”

In view of the above, the Court has allowed the present anticipatory bail application giving the following directions-

“(i) that, the police may resort to the extreme step of arrest only when the same is necessary and the applicant fails to cooperate in the investigation.

(ii) that, the applicant should first be summoned to cooperate in the investigation. If that applicant cooperates in the investigation then the occasion of his arrest should not arise.”

[Rajendra Singh Parmar v. State of Madhya Pradesh, 2020 SCC OnLine MP 1834, decided on 31-08-2020]

Hot Off The PressNews

The Press Council of India (PCI) has taken Suo Motu cognizance of the alleged attack by a mob on three journalists, including a female reporter from Caravan magazine who were reportedly beaten, and threatened in North East Delhi on 11.08.2020 while they were covering news.

A Report has been called for from the Chief Secretary, the Commissioner of Police and the Deputy Commissioner of Police, Delhi.


Press Council of India

[Press Release dt. 25-08-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

The National Human Rights Commission, India has taken suo motu cognizance of a media report that an Inspector of Govind Nagar police Station, Kanpur, Uttar Pradesh asked a 16 years old girl to dance in lieu of registering an FIR against the nephew of her landlord who has been molesting her. The girl with her family lives in a rented accommodation in Dabauli West area of Govind Nagar.

The Commission has issued a notice to the Director-General of Police, Uttar Pradesh calling for a detailed report within 6 weeks in the matter including action taken against the delinquent police officer and the status of the FIR registered on the complaint submitted by the victim’s family.

Reportedly, the girl’s family earns a livelihood by doing some Jagran parties, etc and they had tried to lodge a complaint against the nephew of their landlord accusing him of molesting the girl besides forcibly evacuating them from the rented portion of the house, a few days ago.

According to the media report, the Circle Officer of Govind Nagar, Kanpur has denied the allegations stating that there is no substance in the charges and prima facie, it appears that the girl has made the video viral in order to create pressure on the police. He has also stated that an investigation into the matter is underway.


National Human Rights Commission

[Press Release dt. 17-08-2020]

Case BriefsHigh Courts

Kerala High Court: T.V. Anilkumar, J. quashed the final police report against the petitioner which implicated him for offences under the Foreigners Act, 1946.

The petitioner, a British citizen with a British passport, landed in India at the International Airport, Thiruvananthapuram in February 2009.  The allegation against him was that contrary to the place of stay mentioned in the arrival card and handed over to the immigration authorities, he occupied a different hotel in Kollam and violated the relevant Rules and committed an offence punishable under Section 14 of the Foreigners Act, 1946.

The petitioner contended that even though he occupied a hotel different from what he had mentioned in the arrival card, he could not be imputed with any criminal liability inasmuch as he was holding a valid visa for the period in question.

The petitioner further contended that there were no allegations against him that he had committed any offences relating to national integrity or security affecting the country.

Rule 6 of the Registration of Foreigners Rules, 1992 which is very relevant in this context provides that a foreigner entering India shall submit a report to the Registration Officer specifying the details of stay which, however, is not necessary in respect of a person who is holding a valid visa for a period not more than 180 days and who does not remain in India beyond the said period.

The Court agreed with the contentions of the petitioner and reiterated that he was indeed a holder of a valid visa for his stay. Further, the mere change in hotels is in no way against the provisions of the Foreigners Act, 1946 or the Foreigners Rules, 1992.[Ahammed Muhammed Al Jalak v. State of Kerala, 2020 SCC OnLine Ker 3178, decided on 11-08-2020]

Case BriefsHigh Courts

Punjab and Haryana High Court: Rajiv Narain Raina, J., while addressing a major issue with regard to the usage of racial terms stated that,

use of racially coloured terms is an issue much deeper than it appears to be, it shows the stereotypical mindset of the Police authorities which fractures their ability to provide “equality before law and equal protection of law”.

Issue: Referring to an African National in the Government and other documents

Advocate General, Atul Nanda informed in the FIR format, the Punjab and Government has removed reference to “caste” in compliance of the earlier judgment rendered by this Court in CRA-D No. 610-DB of 2017 — Rakesh Kumar v. State of Haryana and CWP-PIL No.3189 of 2017 — H.C. Arora, Advocate v. State of Punjab.

In the recent order dated 12-06-2020, Advocate General drew Court’s attention on another major issue which was pointed in the Circular/Memorandum issued by the Director General of Police, Punjab, Chandigarh which was as follows:

“using appropriate terms of reference for addressing persons from various nationalities in all official documents”

While adjudicating on the regular bail application of, an accused in a criminal case of Jalandhar (Rural) Police district, Punjab and Haryana High Court has taken a very serious view of use of word ‘Nigro’ or ‘Negro’ in the official records of investigation.

Court issued directions to ensure that no such incident as above occurs again in future.

High Court welcomed the prompt steps taken by the Punjab Government in the proper direction to expunge pejorative racial words used against foreigners visiting India for work or pleasure from future police record, which reform initiative, when realized fully, will enhance the image of India and keep away situations like the one encountered in the present case and that such slurs are avoided and desisted from by the keepers of law; which was only one example amongst many humiliations and insults regularly faced on the street and in the market place by foreigners and Africans in particular.

When the new dispensation filters down to the mind of each constable on patrolling duty and to every police station, backed by State sanction in the Circular, it will greatly help in inculcating a sense of pious duty in the lower executive authorities and keep them in check by disciplinary action and at the same time foster a sense of security among foreigners travelling to and in India, which is now backed with the State assurance in the guidelines that they will not be discriminated against or insulted on the basis of skin colour.

The offensive term occurred in the challan papers.

Court re-emphasized that the derogatory term is not only unprintable but is unspeakable in the present time, in public or in private dealings between African/foreigner and the police personnel and equally in social circles in Courts territory as elsewhere.

Further the Court added that, it is counselling of the policemen on a regular basis though sensitization workshops, with a drop of liberal education added to the programme that might make that crucial difference in the desired approach in dealing with Africans in India without personal comments and insults.

The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 should parallel in principle and precept, extend in its chain of thought processes to all foreigners in India that they should be not called by any derogatory name while dealing with them.

Significant words relevant to the present context in the Act are: “intentionally insults or intimidates with intent to humiliate”.

Crime or suspicion of commission of crime is to be dealt with in accordance with law and there is nothing personal about it for any policeman, as the offence is against the State and the laws must be enforced in a reasonable manner and by the procedure established by law. [Amarjit Singh v. State of Punjab, 2020 SCC OnLine P&H 881 , decided on 01-07-2020]

Case BriefsHigh Courts

Punjab and Haryana High Court: Rajiv Narain Raina, J., while addressing a very serious observation in a matter with regard to “black people” being referred as “Negro”, stated that,

“Freedom does not lend its wings to our countrymen to fly anywhere they wish and in any manner they like and abuse foreigners on the street calling them ‘kalla’. To the contrary, freedom teaches love for human dignity and respect for fellowman.”

Bench while addressing a matter was appalled to note that to refer an African National in the challan papers presented under Section 173 CrPC the term “Nigro” was used.

Court on observing the above, stated that,

“…it is highly offensive word across the globe and no one has any business to use it, and much less the police.”

In view of the above, Court directed never to use the unprintable word in any police document including in challans or anywhere else on case papers including in investigation reports.

Bench also added that, police appears to have assumed that every black is a drug peddler and should be treated as such — this is terrible thinking.

Director General of Police, Punjab has also been requested to notify instructions after considering the above stated issue to the police force calling upon them never to use the offensive term ‘nigro’ or ‘negro’ while referring to “black” person in case papers.

The investigating officers and the police officials that record FIRs be immediately sensitized and warned on the issue by ensuring that no person should be looked down upon on the basis of the colour of his/her skin.

“…we should be reminded that India is rich in its traditions of ‘mehman nawazi’ and ‘atithi sanskar/satkar’ and prides itself on this.”

Court adding to its’ conclusion and analysis, stated that,

“We are, professedly, a tolerant sub-continent of “browns” in all its shades, but more often than not, display a perverted and primitive mind-set looking down on others without looking within ourselves.”

Strict action against the policemen who indulge in character assassination based on physical features, investigation of crime apart, investigation which should be non-aggressive in the search for truth and commission of cognizable offences.

The pernicious practice should be stopped forthwith and the police commanded on pain of disciplinary action never to address anyone by that description, forget about writing it down in official papers of permanent State record.

In the next date of hearing, Court should be informed of the action proposed in the above regard. [Amarjit Singh v. State of Punjab, 2020 SCC OnLine P&H 754 , decided on 12-06-2020]

Hot Off The PressNews

Editors Guild of India is concerned by growing tendency among police in various states to take cognisance of frivolous charges against journalists and convert them into an FIR

The Editors Guild of India is deeply concerned by the growing tendency among police in various states to take cognisance of frivolous charges against journalists and convert them into a First Information Report (FIR).

The latest instance is of the Delhi Police’s FIR against veteran journalist Vinod Dua, based on a complaint by Naveen Kumar, who has been identified as a spokesperson of the Bharatiya Janata Party. The accusations are a brazen attack on his right to free speech and fair comment. An FIR based on this is an instrument of harassment setting off a process that is itself a punishment.

The Guild unequivocally condemns this practice and urges the police to respect Constitutionally guaranteed freedoms rather than behave in a manner that raises questions on its independence.


Editors Guild of India

[Statement dt. 08-06-2020]

Case BriefsForeign Courts

Supreme Court of Canada: While deciding issues like application of entrapment framework to dial-a-dope investigations and whether, in the instant case, the police had reasonable suspicion that accused or phone numbers were engaged in drug trafficking at time police provided opportunity to commit offences, the 9 Judge Bench of Wagner C.J., and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ., with a ratio of 5:4, held that Police need ‘good reason’ to suspect that someone answering a phone is involved in drug dealing before asking them to sell drugs. The Court observed that the police should be able to show the Courts that they had a “reasonable suspicion” that a certain crime was happening. Needing reasonable suspicion makes sure that Courts can review police actions to check whether they are acting properly.

The issues revolved around 2 entrapment cases. In the involving Ahmad (hereinafter A), the police got a tip that someone named “Romeo” was selling drugs over the phone. The officer called “Romeo’s” phone number. He didn’t know if the tip was trustworthy. He had a short conversation with “Romeo,” who agreed to sell him the narcotics. The police set up a meeting on basis of this call with “Romeo” and when the he turned up, he was searched and then arrested. “Romeo” turned out to be A. In the second case involving Williams (W), a police officer got information from another officer that someone named “Jay” was selling drugs. The information also came from a tip. The officer didn’t know if the information was trustworthy or recent. Another officer called Jay’s number to buy cocaine. “Jay” agreed to meet and sold him the drugs. “Jay” turned out to be W. The police arranged another drug deal eleven days later and a month later, police arrested W. The question was that whether both the cases constitute entrapment or not.

As per the majority, comprising of Abella, Karakatsanis, Brown, Martin and Kasirer JJ., observed that a court must examine all of the circumstances, and not merely the language used during the call, in order to determine whether police had formed ‘reasonable suspicion’ by the time the opportunity was provided. It was further noted that police don’t have ‘reasonable suspicion’ if they just have a tip and don’t know if it is reliable. They can develop reasonable suspicion by investigating if a tip is reliable before calling. The Court observed that in both the cases the police didn’t have reasonable suspicion before calling the phone numbers. However A wasn’t entrapped because police developed a good reason to suspect he was selling drugs while talking to him on the phone. They did this before they asked to buy drugs from him. The police didn’t confirm the tip during the phone call in W’s case though; therefore W was entrapped because the police asked to buy drugs from him before they had a good reason to suspect he was selling drugs. Dissenting in part, Wagner C.J. and Moldaver, Côté and Rowe JJ., observed that the rules of entrapment display incoherence, thus the framework needs revision. Under the revised policy, the focus should be on the police acting pursuant to a bona fide inquiry where they meet three requirements- firstly their investigation must have been motivated by genuine law enforcement purposes; secondly, they must have had a factually-grounded basis for their investigation beyond a mere hunch; and thirdly, their investigation must have been directed at investigating a specific type of crime within a tightly circumscribed location. [ R v. Ahmad, 2020 SCC 11, decided on 29-05-2020]

Hot Off The PressNews

Union Minister of State for Home Affairs, Shri Nityanand Rai, in a written reply to a question regarding details on mob lynching cases, in Lok Sabha today, said that the National Crime Records Bureau (NCRB) does not maintain data with respect to mob lynching. However, the Ministry of Home Affairs (MHA) has issued advisories to States and UTs, from time to time, to maintain law and order and ensure that any person who takes the law into his/her own hand is punished promptly as per law.

The Minister informed that advisories dated 23.07.2018 and 25.09.2018 were issued to the State Governments/UT Administrations for taking measures to curb incidents of mob lynching in the country. In addition to this, the Government, through audio-visual media, has also generated public awareness to curb the menace of mob lynching. The Government has also sensitized the service providers to take steps to check the propagation of false news and rumours having the potential to incite mob violence and lynching.

Shri Rai stated that an advisory dated 04.07.2018 was issued to the States and UTs by MHA, to keep watch on circulation of fake news and rumours having the potential of inciting violence, take all required measures to counter them effectively and to deal firmly with persons taking law into their own hands. Further, the Ministry has also issued an advisory on 09.08.2016 to all States/UTs for taking prompt and strict action against miscreants who take law into their own hands in the name of protection of cow.

‘Police’ and ‘Public Order’ are State subjects under the Seventh Schedule to the Constitution of India and State Governments are responsible for prevention, detection, registration and investigation of crime and for prosecuting the criminals through their law enforcement agencies, Shri Rai added.


Ministry of Home Affairs

[Press Release dt. 19-11-2019]

[Source: PIB]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of D.N. Patel, CJ and C. Hari Shankar, J., clarified the earlier order dated 03-11-2019 passed in connection with the recent scuffle that took place at the Tis Hazari Courts Complex between Advocates and Police personals.

In its order dated 03-11-2019, the High Court had directed that no coercive action shall be taken against the Advocates involved in the incident. In the same order, the Court had made certain observations against the Delhi Police and named certain officers responsible for the unfortunate incident.

Two separate applications were filed: one by the Ministry of Home Affairs, Union of India and the other by the Delhi Police. The home ministry sought clarification of the earlier order, to the effect that there is no impediment in taking action against the erring Advocates. The Delhi Police, on the other hand, prayed for modification of the earlier order, to the effect that the observations made against the DelhiPolice be excluded so that they could not be read as conclusive findings against the police officers in question.

On such applications being filed, the High Court clarified its earlier order dated 3-11-2019, to the effect that the direction protecting Advocates against coercive action only relates to the FIRs, filed on 2-11-2019 pertaining to the scuffle that broke out at Tis Hazari Courts, and not against any incident that took place thereafter. Also, in regard to observations made against certain Police officers, the High Court clarified that such observations were only prima facie and tentative in nature; the facts are to be proved on the basis of evidence on record without being influenced by such observations.

Before parting with the order, the High Court noted a sense of anguish over the instant state of affairs. It observed:

“In our view, therefore, it would be advisable, in this case, that a joint meeting, of responsible representatives of the Advocates and the police establishment, be convened, who should make a sincere effort to meet and sort out their differences amicably, on the basis of discussion and deliberations, with the objective of dissolution of their differences, which, in our view, have essentially arisen owing to a communication gap, during the last few days. We are hopeful that, if a sincere attempt is made in this direction, peace and harmony will ultimately prevail.”

The applications were disposed of accordingly. [Tis Hazari Incident, In re (Court on its own Motion v. Union of India), 2019 SCC OnLine Del 10918, decided on 06-11-2019]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ranjan Gogoi, CJ and Deepak Gupta and Sanjiv Khanna, JJ has held that the power of a police officer under Section 102 of the Criminal Procedure Code, 1973 to seize any property, which may be found under circumstances that create suspicion of the commission of any offence, would not include the power to attach, seize and seal an immovable property. Khanna, J, writing the judgment for the bench, however, clarified,

“This, however, would not bar or prohibit the police officer from seizing documents/ papers of title relating to immovable property, as it is distinct and different from seizure of immovable property.”

The verdict came in a reference made by a Division Bench of Jagdish Singh Khehar and Arun Mishra, JJ vide order dated November 18, 2014, noticing that the issues that arise have far reaching and serious consequences.

Interpreting Section 102, the bench said that the language of Section 102 of the Code does not support the interpretation that the police officer has the power to dispossess a person in occupation and take possession of an immovable property in order to seize it. Section 102 is not, per se, an enabling provision by which the police officer acts to seize the property to do justice and to hand over the property to a person whom the police officer feels is the rightful and true owner.

It further explained that the expression ‘circumstances which create suspicion of the commission of any offence’ in Section 102 does not refer to a firm opinion or an adjudication/finding by a police officer to ascertain whether or not ‘any property’ is required to be seized. The word ‘suspicion’ is a weaker and a broader expression than ‘reasonable belief’ or ‘satisfaction’. The police officer is an investigator and not an adjudicator or a decision maker. This is the reason why the Ordinance was enacted to deal with attachment of money and immovable properties in cases of scheduled offences.

“In case and if we allow the police officer to ‘seize’ immovable property on a mere ‘suspicion of the commission of any offence’, it would mean and imply giving a drastic and extreme power to dispossess etc. to the police officer on a mere conjecture and surmise, that is, on suspicion, which has hitherto not been exercised.”

It was further held that the disputes relating to title, possession, etc., of immovable property are civil disputes which have to be decided and adjudicated in Civil Courts. The Court said,

“We must discourage and stall any attempt to convert civil disputes into criminal cases to put pressure on the other side.”

Gupta, J wrote a separate concurring verdict where he highlighted that the Code of Criminal Procedure itself the Legislature has in various provisions specifically used the words ‘movable’ and ‘immovable’ property as opposed to the words ‘any property’ under in Section 102, hence, the phrase ‘any property’ in Section 102 will only cover moveable property and not immovable property.

[Nevada Properties Pvt. Ltd. State of Maharashtra, 2019 SCC OnLine SC 1247, decided on 24.09.2019]

Case BriefsSupreme Court

Supreme Court: Clarifying the order dated 03.07.2018, the bench of CJ Ranjan Gogoi and L. Nageswara Rao and Sanjiv Khanna, JJ said that the recommendation for appointment to the post of Director General of Police by the Union Public Service Commission and preparation of panel should be purely on the basis of merit from officers who have a minimum residual tenure of six months i.e. officers who have at least six months of service prior to the retirement.

To do away with the practice of States appointing the Director General of Police on the last date of   the normal tenure of an incumbent so as to ensure that such incumbents get extended term of two years in view of the directions of this Court contained in Prakash Singh v. Union of India, (2006) 8 SCC 1, the 3-judge bench of former CJI Dipak Misra and AM Khanwilkar and Dr. DY Chandrachud, JJ. gave the following directions inter alia:

“(e) An endeavour has to be made by all concerned to see that the person who was selected and appointed as the Director General of Police continues despite his date of superannuation. However, the extended term beyond the date of superannuation should be a reasonable period. We say so as it has been brought to our notice that some of the States have adopted a practice to appoint the Director General of Police on the last date of retirement as a consequence of which the person continues for two years after his date of superannuation. Such a practice will not be in conformity with the spirit of the direction.

(f) Our direction No.(c) should be considered by the Union Public Service Commission to mean that the persons are to be empanelled, as far as practicable, from amongst the people within the zone of consideration who have got clear two years of service. Merit and seniority should be given due weightage.”

Alleging that the aforementioned directions have resulted into confusion, the petitioner argued that:

“the Union Public Service Commission while empanelling officers for consideration for appointment   to the post of Director General of Police is considering the minimum residual tenure required to be taken into account as two years. In the process, according to the applicant, many suitable and eligible officers are being left out.”

On this Court clarified that it had not contemplated recommendation for appointment of officers who are on the verge of retirement or appointment of officers who have a minimum residual tenure of two years. The emphasis was to select the best and to ensure a minimum tenure of two years’ service of such officer who is to be selected and appointed. It, hence, issued the direction that:

“In the above conspectus the object in issuing the directions in Prakash Singh (supra), in our considered view, can best be achieved if the residual tenure of an officer i.e. remaining period of service till normal retirement, is fixed on a reasonable basis, which, in our considered view, should be a period of six months.”

The Court, however, said that the above direction, naturally, will hold the field until the validity of the Police Acts in force which provides to the contrary are examined and dealt with by the Court in the pending writ petition.

[Prakash Singh v. Union of India, 2019 SCC OnLine SC 371, decided on 13.03.2019]

Case BriefsHigh Courts

Gujarat High Court: The Bench of Sonia Gokani, J. disposed of a petition with the direction to lodge the FIR if any cognizable offence is made out; and if not, reasons to be mentioned for not lodging an FIR to the complainant at the earliest but not later that one week.

The facts of the case are that the petitioner was aggrieved by non-registration of the FIR on the basis of the complaint given in writing by him. He contended that a cognizable offence was made out and still his FIR was not registered.

The Court while relying on the case of Lalita Kumari v. State of U.P., (2014) 2 SCC 1, held that registration of FIR is mandatory under Section 154 CrPC if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. For the purpose of knowing as to whether any cognizable offence was revealed, a preliminary inquiry should be conducted. Still, if it is not made out, reasons are to be mentioned for not lodging an FIR to the complainant at the earliest but not later that one week in a cognizable offence. [Haripriyaben Sanjaykumar Shah v. State of Gujarat, 2019 SCC OnLine Guj 239, Order dated 06-02-2019]

Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench comprising of K. Abraham Mathew, J. dismissed a petition on account of increasing attacks against the police.

There was a clash between workers of two political parties in the course of which the petitioners who were armed with deadly weapons formed themselves into an unlawful assembly and assaulted the police officers who were on duty at that time and thus were charged under Sections 143, 147, 148, 308, 324, 332 and 353 IPC.

The public prosecutor filed an application for permission to withdraw from the prosecution under Section 321 of CrPC in an attempt to maintain peace in the locality which was dismissed by the Sessions Judge. Aggrieved thereby, the instant petition was filed.

The Court here made it clear that the Section 321 CrPC nowhere grants any such right on the accused and questioned them as to how the withdrawal from the prosecution will aid in maintaining peace plus on the contrary withdrawal of such cases was against the public interest. The Court gave due regard to the fact that attack on police officers was on increase in the State and was of the view that allowing withdrawal of cases as sought for would certainly lower the morale of the police. Accordingly, the petition was dismissed.[Puthussery Preman v. State of Kerala, Crl.Rev.Pet.No. 1190 of 2018, order dated 02-11-2018]

Case BriefsHigh Courts

Hyderabad High Court: A Single Judge Bench comprising of Gudiseva Shyam Prasad, J. dismissed a writ petition at the admission stage on account of it being misconceived.

The petitioner filed a writ petition seeking the relief in the nature of writ of mandamus under Article 226 of the Constitution of India over the protection and preservation of his title and possession over the land which was being interfered with by the defendants.

The defendant pressed upon the fact that instead of resorting to the present writ petition along with seeking police protection, the petitioners should have approached the court by way of execution petition.

The Court agreed with the submission of the defendants that it was a civil matter and if the petitioner needed police aid he should have had sought for the orders for the same. The police cannot interfere in any civil dispute unless directed by any competent court to its effect.

Accordingly, with regard to the misconceived writ petition, the matter stood closed. [Tirumala Siva Prasad v. State of A.P.,2018 SCC OnLine Hyd 262, order dated 17-04-2018]

Case BriefsHigh Courts

Uttaranchal High Court: A Single Judge Bench comprising of V.K. Bisht, J. dismissed a writ petition that sought interference with the investigation in a criminal case.

The petitioners were accused of cow slaughtering. It was alleged that on receiving information about the slaughtering of cow, the patrolling team reached village Harjoli and found that the petitioners were indulged in the said activity. The petitioners managed to escape; however, equipments meant for slaughtering, weighing machine and cow beef (approx. 350 kg) was found from the spot. A criminal case was registered against the petitioners for offences punishable under Sections 3, 5, and 11 of Uttarakhand Protection of Cow Progeny Act, 2007. The petitioners filed the instant petition praying to quash the impugned FIR.

On consideration of the record, the High Court held that relief, as prayed for by the appellant, could not be granted. The Court relied on the Supreme Court decision in State of W.B. v. Swapna Kumar, (1982) 1 SCC 561, to hold that if the FIR discloses a prima facie commission of an offence, the Court will not normally interfere with the investigation, as doing so would be to trench upon the lawful power of the police to investigate into a congnizable offence. From, the perusal of the FIR, the High Court held that it discloses prima facie commission of offence. Therefore, the Court held that it was not a case where relief could have been provided to the petitioner. Accordingly, the petition was dismissed. [Kala v. State of Uttarakhand,2018 SCC OnLine Utt 547, dated 18-6-2018]

Case BriefsSupreme Court

Supreme Court: In the issue relating to filling up of 4010 vacancies in the State of Uttar Pradesh, consisting of 3698 vacancies for Sub-Inspectors and 312 vacancies for Platoon Commanders, the 3-judge bench of Madan B. Lokur, Kurian Joseph and Deepak Gupta, JJ directed that the vacancies should be filled up by the State of Uttar Pradesh expeditiously on merits, if not already filled up.

The State had submitted before the Court that due to orders passed from time to time by this Court, perhaps more than 4010 posts have been filled up. The Court, hence, directed that the persons occupying posts in excess of 4010 shall not be disturbed until further orders from this Court.

Regarding the question as to whether the persons who have been appointed in excess of 4010 Posts are to continue or their services may be dispensed with, the Court said that it will pass the appropriate orders only after hearing the parties.

The Court also took note of it’s order dated 14.09.2017 in which it was noted that all those persons who are before this Court on the ground that they were before the High Court on or before 31st December, 2016 either as petitioners or intervenors may submit their particulars to learned Additional Advocate General who will verify the particulars and submit a report before 31st October, 2017. The Court, hence, made clear that following the order passed on 14.09.2017, all applications for intervention/impleadment, etc. or fresh matters instituted after the cut-off date of 31st December, 2016 stand disposed of. [Alok Kumar Singh v. State of U.P.,  2018 SCC OnLine SC 309, order dated 22.03.2018]

Legislation UpdatesRules & Regulations

Under Rule 5 of the Noise Pollution (Regulation and Control) Rules, 2000 use of loudspeakers/public address system is restricted in the following manner:

A) They can only be used after obtaining permission from any authority or officer authorised by the Central Government, or as the case may be, the State Government in accordance with the laws in force and includes a District Magistrate, Police Commissioner, or any other officer, not below the rank of the Deputy Superintendent of Police, designated for the maintenance of the ambient air quality standards in respect of noise under any law for the time being in force.

B) The loudspeaker or a public address system shall not be used at night (between 10.00 p.m. to 6.00 a.m.) except in closed premises for communication within, e.g. auditoria, conference rooms, community halls and banquet halls.

C) The State Government may, subject to such terms and conditions as are necessary to reduce noise pollution, permit use of loudspeakers or public address systems during night hours (between 10.00 p.m. to 12.00 midnight) on or during any cultural or religious festive occasion of a limited duration not exceeding fifteen days in all during a calendar year.

Further the Supreme Court of India has passed the following directions in Noise Pollution (V), In re, (2005) 5 SCC 733 at page 782:

1. The noise level at the boundary of the public place, where loudspeaker or public address system or any other noise source is being used shall not exceed 10 dB(A) above the ambient noise standards for the area or 75 dB(A) whichever is lower.

2. No one shall beat a drum or tom-tom or blow a trumpet or beat or sound any instrument or use any sound amplifier at night (between 10.00 p.m. and 6 a.m.) except in public emergencies.

3. The peripheral noise level of privately-owned sound system shall not exceed by more than 5 dB(A) than the ambient air-quality standard specified for the area in which it is used, at the boundary of the private place.