There are three stages in the case at criminal trail level:
At the time of 161 Cr. P. C. when police take the statement of the child. Though there is no evidentiary value of this statement in the court, police has to produce the child in front of Metropolitan Magistrate.
164 Cr. P. C. statement in front of Magistrate- where the statement has to be recorded in front of Metropolitan Magistrate.
Then there is a stage of cross-examination at Session-Court level. Now depending upon the case and after filing charge sheet (some cases it is 60 days or 90 days) the child, as a witness has to be called again in the Court of Session. Calling the child in the session-court might take some time, i.e. more than sixty or ninety days.
So during this period lot of things can happen.
The loophole is also in between the time period of taking 164 Cr. P. C. statement and cross-examination of the child. Can we minimise it. I think Delhi High court has given judgement on this. I do not have it right now, the moment I will get I will share with the group. In case, if any body has in the group, please share.
The next is role of Child Welfare Committee:
They would have asked other CWC if, the children are from other district or state, to monitor the child by the welfare officer and submit periodic report.
They would have asked NGO from that district or state to monitor the child and submit periodic report.
In absence of all, they would have asked the juvenile police officer of the district from where the child belongs, to monitor the child in the child friendly manner and submit periodic report till the time of cross-examination.
Special Juvenile Police Unit could have taken all the papers in their hands and follow the case.
Prepared by Vipin Bhatt
Monday, February 22, 2010
Lawyer in the Child Welfare Committee
If there is a girl (minor) rescued from a red light area. Police take the custody of the child and produce the child front of the CWC. This child should be treated as child in need of care and protection rather than juvenile in conflict with law. (Definition of child in need of care and protection)
And just in case, if police instead of taking the child (rescued) into custody as a juvenile in conflict with law rather then as a child in need of care and protection what would be the implications.
The child will go to the JJB, the parents might come or some pimp would become distance relative and seek for the custody, they would hire a good lawyer (as lots of money is involved in this trade) and could argue that the child was roaming on the street and wrongly picked by the police and where bail as a matter of right can file an application for the bail and custody of the child. In case, if JJB refuses to give the custody of the child to the parents can easily go the session court and get the bail and take the custody of the child.
Now, think about the situation where the same the child was taken into custody by the police and produced before the CWC. Here, the child has not been apprehended but taken into custody by the police for her rehabilitation, care and protection, the power has been given to the CWC to take the decision. So in this case, it is the duty of the CWC to conduct the Home study report or ask welfare officer to prepare Social Investigation report of the child. CWC can ask CWC from the other state to conduct the home study or to prepare the SIR of the child. Based on the report, if CWC finds that the parents are UNFIT and can decline the custody to the parents. Here the child was not apprehended so there is no matter of bail. Here the rehabilitation of the child is important so there is no need of criminal trial. Mental health aspect of the child is also a concern. So the CWC can also take into consideration by calling some professional counsellor to do so. If the family is not satisfied by the order can go the session court, and I am sure if represented well in the court we can make the judge understand that what are the important aspect of the case and why custody of the child should not be given to the family.
The services of lawyer can be used by the CWC when there is a case of criminal matter and case going in the trial court. So there is a need of child friendly lawyer who can actually help the child in taking 164 Cr. P. C. statement of the child or who can represent the child at the stage of cross-examination. A lawyer can also place or put across the view of CWC in the higher courts. Can help in filing the complaints on the behalf of the CWC under relevant sections of the law for the child.
Putting the lawyer’s representation in the CWC only jeopardises the whole situation by making CWC as a criminal court. We all want the system to be more child-friendly and not court like environment. And I think this principle applies in all the cases of children.
And just in case, if police instead of taking the child (rescued) into custody as a juvenile in conflict with law rather then as a child in need of care and protection what would be the implications.
The child will go to the JJB, the parents might come or some pimp would become distance relative and seek for the custody, they would hire a good lawyer (as lots of money is involved in this trade) and could argue that the child was roaming on the street and wrongly picked by the police and where bail as a matter of right can file an application for the bail and custody of the child. In case, if JJB refuses to give the custody of the child to the parents can easily go the session court and get the bail and take the custody of the child.
Now, think about the situation where the same the child was taken into custody by the police and produced before the CWC. Here, the child has not been apprehended but taken into custody by the police for her rehabilitation, care and protection, the power has been given to the CWC to take the decision. So in this case, it is the duty of the CWC to conduct the Home study report or ask welfare officer to prepare Social Investigation report of the child. CWC can ask CWC from the other state to conduct the home study or to prepare the SIR of the child. Based on the report, if CWC finds that the parents are UNFIT and can decline the custody to the parents. Here the child was not apprehended so there is no matter of bail. Here the rehabilitation of the child is important so there is no need of criminal trial. Mental health aspect of the child is also a concern. So the CWC can also take into consideration by calling some professional counsellor to do so. If the family is not satisfied by the order can go the session court, and I am sure if represented well in the court we can make the judge understand that what are the important aspect of the case and why custody of the child should not be given to the family.
The services of lawyer can be used by the CWC when there is a case of criminal matter and case going in the trial court. So there is a need of child friendly lawyer who can actually help the child in taking 164 Cr. P. C. statement of the child or who can represent the child at the stage of cross-examination. A lawyer can also place or put across the view of CWC in the higher courts. Can help in filing the complaints on the behalf of the CWC under relevant sections of the law for the child.
Putting the lawyer’s representation in the CWC only jeopardises the whole situation by making CWC as a criminal court. We all want the system to be more child-friendly and not court like environment. And I think this principle applies in all the cases of children.
Prepared by Vipin Bhatt
Friday, February 19, 2010
Battle is On....
The BATTLE continues …
This was not a just another case for us, in which we tried to restore justice to the girl child of eight years who was sexually abused by the man. The plight of the girl started in year 2007 when an adult male who was her neighbour raped her at night when she was sleeping alone in her cottage. Father, a daily wage earner used to work in the factory and mother went to her hometown in Bihar to meet her relatives. The girl was in the custody of the relatives.
The matter came in the knowledge of Child Welfare Committee, Nirmal Chayya Complex. Dr, Bharti Sharma, then Chairperson, Child Welfare Committee called HAQ: Centre for Child Rights to assist the poor family in the court. We decided to work on this case at the priority basis and also thought to ensure to conduct the trial in the child friendly manner. But our journey took the different route and we start getting difficulties (read challenges) from the beginning. After incident the child was in the hospital for twenty-two days. According to one of the eyewitness, when she took the child in her arms, after the incident her sari turned red with the blood.
After the recovery from the hospital another battle of getting justice started for the child. The law of the country need everything including the statement of the child and as early as possible. So she has to depose in front of the metropolitan magistrate (popularly called as 164 Cr. P. C. statement) that the accused has committed an offence. But we had no idea that there are going to be lots of speed breakers in the path. The first one came at the very initial level. Fortunately or unfortunately the magistrate was a female officer. We had an impression that she will handle the case sensitively and judicially. But our dream falls flat when she starts giving dates. She had different reason to do that, once she shared that I have to go for Test Identification Parade or I have some work or at one time she dismissed the application in default. After waiting for eight dates for eight days we realised that she is not at all serious in taking the statement of the child. In the meantime, small girl also start getting irritated and angry. She starts saying that I will not come and depose in front of her. We somehow managed to convince her about the importance of date.
The father of the girl was very nice man and taking care of the child. The mother of the child was little weird or emotional. The trauma was big and she was angry at the system. She starts showing her anger to the child. She starts saying that she is not interested in keeping the girl and if we can keep the child in some children’s home. We totally rejected her idea. We make her understand all the consequences with it. But when she again raised this issue with us, we sternly warned her not to talk like this again. The most ironical part was, as the mother was telling this to us she was also pushing away her daughter but the child was again and again clinging to her.
Another breaker was waitng for us. The magistrate was not in the mood to record her statement. She ordered to send the child at NARI NIKETAN (let me tell you it is for home for women and not for children… nari ka niketan) fortunately; before MM passed the order the girl had left to home. Well, as the MM starts giving dates and seems not interested in traumatising child we decided to move to the High Court of Delhi. We sent an email to high-powered high committee on juvenile justice to look into this matter. The high court committee forwarded the mail to the judge who was handling criminal matter in the court. He asked to the state counsel to ensure the recording of the statement today itself. The order of the copy should be given to magistrate and she should record the statement of the child and MM should explain in the court that why she has not taken the statement of the child on that day only. After this the whole system shakes-up. The Station House Officer with the Inspector investigation came to the court and was looking worried as if order has passed against them.
Well, in the end the statement was recorded and later on high court gave very good guidelines how to deal the cases of child sexual abuse by the different agencies like police, session judge and doctors including metropolitan magistrate.
Then another stage of the case came popularly called as cross-examination of the child and other witnesses in the case. We tried to help the child and the family in recording of their statements and cross-examination.
It is sometime very difficult to understand that why they take so many statements, first at the police station level when an investigation officer takes the statement sometime s/he asked very pointedly about each and every aspect. Then Metropolitan Magistrate who has to record the statement as a part of recording under 164 Cr. P. C. After filing of charge sheet i.e. approximately ninety days then, the Session Judge in the name of examination-in-chief. Then defence counsel about the incident as a part of the cross-examination. And in between that if any NGOs worker comes then there is another repeating of statement. Don’t we ask the child do remember the trauma if she wants justice and runs revision classes.
The examination in chief and cross-examination of the case is always a very important stage in the criminal case and we tried to make it as friendly as possible for the child. There should not be direct questioning, there should be always a very procedure of asking the question, the whole atmosphere should be child friendly, and there should be in-camera trial. We tried to ensure that and always ensured that the child or her family should get any kind of trauma in this process. Seconds turned into minute and minutes into hour, hours into day and days into month and months into years and after approximately three years the judgment came. Ten Years of Imprisonment with fine. Means the accused has to be there in the jail for another SEVEN YEARS (he had already spent three years in jail).
As we feel that justice is restored but the parents of the child are still unsatisfied and they were expecting life imprisonment for the accused. We do not know whether getting justice is the matter of satisfaction of the victim’s family even after getting the punishment for ten years. As we have to get the order of the copy and have to assess for appeal further.
But we know, as there are lots of other cases of small girls victimised and sexually abused who are still looking for ‘justice’ and for us the battle continues......
This was not a just another case for us, in which we tried to restore justice to the girl child of eight years who was sexually abused by the man. The plight of the girl started in year 2007 when an adult male who was her neighbour raped her at night when she was sleeping alone in her cottage. Father, a daily wage earner used to work in the factory and mother went to her hometown in Bihar to meet her relatives. The girl was in the custody of the relatives.
The matter came in the knowledge of Child Welfare Committee, Nirmal Chayya Complex. Dr, Bharti Sharma, then Chairperson, Child Welfare Committee called HAQ: Centre for Child Rights to assist the poor family in the court. We decided to work on this case at the priority basis and also thought to ensure to conduct the trial in the child friendly manner. But our journey took the different route and we start getting difficulties (read challenges) from the beginning. After incident the child was in the hospital for twenty-two days. According to one of the eyewitness, when she took the child in her arms, after the incident her sari turned red with the blood.
After the recovery from the hospital another battle of getting justice started for the child. The law of the country need everything including the statement of the child and as early as possible. So she has to depose in front of the metropolitan magistrate (popularly called as 164 Cr. P. C. statement) that the accused has committed an offence. But we had no idea that there are going to be lots of speed breakers in the path. The first one came at the very initial level. Fortunately or unfortunately the magistrate was a female officer. We had an impression that she will handle the case sensitively and judicially. But our dream falls flat when she starts giving dates. She had different reason to do that, once she shared that I have to go for Test Identification Parade or I have some work or at one time she dismissed the application in default. After waiting for eight dates for eight days we realised that she is not at all serious in taking the statement of the child. In the meantime, small girl also start getting irritated and angry. She starts saying that I will not come and depose in front of her. We somehow managed to convince her about the importance of date.
The father of the girl was very nice man and taking care of the child. The mother of the child was little weird or emotional. The trauma was big and she was angry at the system. She starts showing her anger to the child. She starts saying that she is not interested in keeping the girl and if we can keep the child in some children’s home. We totally rejected her idea. We make her understand all the consequences with it. But when she again raised this issue with us, we sternly warned her not to talk like this again. The most ironical part was, as the mother was telling this to us she was also pushing away her daughter but the child was again and again clinging to her.
Another breaker was waitng for us. The magistrate was not in the mood to record her statement. She ordered to send the child at NARI NIKETAN (let me tell you it is for home for women and not for children… nari ka niketan) fortunately; before MM passed the order the girl had left to home. Well, as the MM starts giving dates and seems not interested in traumatising child we decided to move to the High Court of Delhi. We sent an email to high-powered high committee on juvenile justice to look into this matter. The high court committee forwarded the mail to the judge who was handling criminal matter in the court. He asked to the state counsel to ensure the recording of the statement today itself. The order of the copy should be given to magistrate and she should record the statement of the child and MM should explain in the court that why she has not taken the statement of the child on that day only. After this the whole system shakes-up. The Station House Officer with the Inspector investigation came to the court and was looking worried as if order has passed against them.
Well, in the end the statement was recorded and later on high court gave very good guidelines how to deal the cases of child sexual abuse by the different agencies like police, session judge and doctors including metropolitan magistrate.
Then another stage of the case came popularly called as cross-examination of the child and other witnesses in the case. We tried to help the child and the family in recording of their statements and cross-examination.
It is sometime very difficult to understand that why they take so many statements, first at the police station level when an investigation officer takes the statement sometime s/he asked very pointedly about each and every aspect. Then Metropolitan Magistrate who has to record the statement as a part of recording under 164 Cr. P. C. After filing of charge sheet i.e. approximately ninety days then, the Session Judge in the name of examination-in-chief. Then defence counsel about the incident as a part of the cross-examination. And in between that if any NGOs worker comes then there is another repeating of statement. Don’t we ask the child do remember the trauma if she wants justice and runs revision classes.
The examination in chief and cross-examination of the case is always a very important stage in the criminal case and we tried to make it as friendly as possible for the child. There should not be direct questioning, there should be always a very procedure of asking the question, the whole atmosphere should be child friendly, and there should be in-camera trial. We tried to ensure that and always ensured that the child or her family should get any kind of trauma in this process. Seconds turned into minute and minutes into hour, hours into day and days into month and months into years and after approximately three years the judgment came. Ten Years of Imprisonment with fine. Means the accused has to be there in the jail for another SEVEN YEARS (he had already spent three years in jail).
As we feel that justice is restored but the parents of the child are still unsatisfied and they were expecting life imprisonment for the accused. We do not know whether getting justice is the matter of satisfaction of the victim’s family even after getting the punishment for ten years. As we have to get the order of the copy and have to assess for appeal further.
But we know, as there are lots of other cases of small girls victimised and sexually abused who are still looking for ‘justice’ and for us the battle continues......
Vipin Bhatt
HAQ: Centre for Child Rights
Thursday, February 18, 2010
child labour and revelant sections
CHILD LABOUR (PROHIBITION AND REGULATION) ACT, 1986
(ii) "child' means a person who has not completed his fourteenth year of age;
Penalties.
Section 14. (1) Whoever employs any child or permits any child to work in contravention of the provisions of section 3 shall be punishable with imprisonment for a term which shall not be less than three months but which may extend to one year or with fine which shall not be less than ten thousand rupees but which may extend to twenty thousand rupees or with both.
(2) Whoever, having been convicted of an offence under section 3, commits a like offence afterwards, he shall be punishable with imprisonment for a term which shall not he less than six months but which may extend to two years. (3) Whoever-
(a) fails to give notice as required by section 9; or
(b) fails to maintain a register as required by section 11 or makes any false entry in any such register, or
(c) fails to display a notice containing an abstract of section 3 and this section as required by section 12; or
(d) fails to comply with or contravenes any other provisions of-1his Act or the rules made thereunder,
shall be punishable with simple imprisonment which may extend to one month or with fine which may extend to ten thousand rupees or with both.
Labour Department of the state is the nodal department for securing compliance with the provision of this Act
Section-17 The appropriate Government may appoint Inspectors for the purposes of securing compliance with the provisions of this Act 5nd any Inspector so appointed shall be deemed to be a public servant within the meaning of the Indian Penal Code (45 of 1860).
THE BONDED LABOUR SYSTEM (ABOLITION) ACT, 1976 (g) "bonded labour system" means the system of forced, or partly forced, labour under which a debtor enters, or has, or is presumed to have, entered, into an agreement with the creditor to the effect that,-- (i) in consideration of an advance obtained by him or by any of his lineal ascendants or descendants (whether or not such advance is evidenced by any document) and in consideration of the interest, if any, on such advance, or (ii) in pursuance of any customary or social obligation, or (iii) in pursuance of an obligation devolving on him by succession, or (iv) for any economic consideration received by him or by any of his lineal ascendants or descendants, or
Section- 10. AUTHORITIES WHO MAY BE SPECIFIED FOR IMPLEMENTING THE PROVISIONS OF THIS ACT. - The State Government may confer such powers and impose such duties on a District Magistrate as may be necessary to ensure that the provisions of this Act are properly carried out and the District Magistrate may specify the officer, subordinate to him, who shall exercise all or any of the powers, and perform all or any of the duties, so conferred or imposed and the local limits within which such powers or duties shall be carried out by the officer so specified.
IMPORTANT
People’s Union for Democratic Rights V Union of India 1982 3 SCC 235
the Supreme Court also held that ‘where a person provides labour or service to another for remuneration which is less than the minimum wage, the labour or service provided by him clearly falls within the scope and ambit of forced labour’.
Section- 16.
PUNISHMENT FOR ENFORCEMENT OF BONDED LABOUR. - Whoever, after the commencement of this Act, compels any person to render any bonded labour shall be punishable with imprisonment for a term which may extend to three years and also with fine which may extend to two thousand rupees
Section- 22
COGNIZANCE OF OFFENCES. - Every offence under this Act shall be cognizable and boilable.
Indian Penal Code
Section 370. Buying or disposing of any person as slave
Whoever imports, export, removes, buys, sells or disposes of any person as a slave, or accepts, receives or detains against his will any person as slave, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.
Non-cognizable and bailable. Trial by Magistrate of first class
Section 371. Habitual dealing in slave
Whoever habitually imports, exports, removes, buys, sells, traffics or deals, shall be punished with imprisonment for life or with imprisonment of either description for a term not exceeding the years, and shall also be liable to fine.
cognizable and non-bailable trial by Court of session
Section 374. Unlawful compulsory labour
Whoever unlawfully compels any person to labour against the will of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with both.
Cognizable & bailable and trial by Any magistrate
THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2000
"juvenile" or "child" means a person who has not completed eighteenth year of age;
Section 26. Exploitation of juvenile or child employee.- Whoever ostensibly procures a juvenile or the child for the purpose of any hazardous employment keeps him in bondage and withholds his earnings or uses such earning for his own purposes shall be punishable with imprisonment for a term which may extend to three years and shall be liable to fine.
Section 27. Special offences.- The offences punishable under sections 23, 24, 25 and 26 shall be cognizable.
Code of Criminal Procedure 1973 , THE FIRST SCHEDULE
II-CLASSIFICATION OF OFFENCES AGAINST - OTHER LAWS
If punishable with death, imprisonment for life, or imprisonment for mote than 7 years. Cognizable. Non-Cognizable. Court of Session
If punishable with imprisonment for 3 years, and upwards but not more than 7 years. Cognizable. Non-Cognizable Magistrate of the first class.
If punishable with imprisonment for less than 3 years or with fine only.
Non-Cognizable
Bailable
Any Magistrate.
Prepared by: Vipin Bhatt
(ii) "child' means a person who has not completed his fourteenth year of age;
Penalties.
Section 14. (1) Whoever employs any child or permits any child to work in contravention of the provisions of section 3 shall be punishable with imprisonment for a term which shall not be less than three months but which may extend to one year or with fine which shall not be less than ten thousand rupees but which may extend to twenty thousand rupees or with both.
(2) Whoever, having been convicted of an offence under section 3, commits a like offence afterwards, he shall be punishable with imprisonment for a term which shall not he less than six months but which may extend to two years. (3) Whoever-
(a) fails to give notice as required by section 9; or
(b) fails to maintain a register as required by section 11 or makes any false entry in any such register, or
(c) fails to display a notice containing an abstract of section 3 and this section as required by section 12; or
(d) fails to comply with or contravenes any other provisions of-1his Act or the rules made thereunder,
shall be punishable with simple imprisonment which may extend to one month or with fine which may extend to ten thousand rupees or with both.
Labour Department of the state is the nodal department for securing compliance with the provision of this Act
Section-17 The appropriate Government may appoint Inspectors for the purposes of securing compliance with the provisions of this Act 5nd any Inspector so appointed shall be deemed to be a public servant within the meaning of the Indian Penal Code (45 of 1860).
THE BONDED LABOUR SYSTEM (ABOLITION) ACT, 1976 (g) "bonded labour system" means the system of forced, or partly forced, labour under which a debtor enters, or has, or is presumed to have, entered, into an agreement with the creditor to the effect that,-- (i) in consideration of an advance obtained by him or by any of his lineal ascendants or descendants (whether or not such advance is evidenced by any document) and in consideration of the interest, if any, on such advance, or (ii) in pursuance of any customary or social obligation, or (iii) in pursuance of an obligation devolving on him by succession, or (iv) for any economic consideration received by him or by any of his lineal ascendants or descendants, or
Section- 10. AUTHORITIES WHO MAY BE SPECIFIED FOR IMPLEMENTING THE PROVISIONS OF THIS ACT. - The State Government may confer such powers and impose such duties on a District Magistrate as may be necessary to ensure that the provisions of this Act are properly carried out and the District Magistrate may specify the officer, subordinate to him, who shall exercise all or any of the powers, and perform all or any of the duties, so conferred or imposed and the local limits within which such powers or duties shall be carried out by the officer so specified.
IMPORTANT
People’s Union for Democratic Rights V Union of India 1982 3 SCC 235
the Supreme Court also held that ‘where a person provides labour or service to another for remuneration which is less than the minimum wage, the labour or service provided by him clearly falls within the scope and ambit of forced labour’.
Section- 16.
PUNISHMENT FOR ENFORCEMENT OF BONDED LABOUR. - Whoever, after the commencement of this Act, compels any person to render any bonded labour shall be punishable with imprisonment for a term which may extend to three years and also with fine which may extend to two thousand rupees
Section- 22
COGNIZANCE OF OFFENCES. - Every offence under this Act shall be cognizable and boilable.
Indian Penal Code
Section 370. Buying or disposing of any person as slave
Whoever imports, export, removes, buys, sells or disposes of any person as a slave, or accepts, receives or detains against his will any person as slave, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.
Non-cognizable and bailable. Trial by Magistrate of first class
Section 371. Habitual dealing in slave
Whoever habitually imports, exports, removes, buys, sells, traffics or deals, shall be punished with imprisonment for life or with imprisonment of either description for a term not exceeding the years, and shall also be liable to fine.
cognizable and non-bailable trial by Court of session
Section 374. Unlawful compulsory labour
Whoever unlawfully compels any person to labour against the will of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with both.
Cognizable & bailable and trial by Any magistrate
THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2000
"juvenile" or "child" means a person who has not completed eighteenth year of age;
Section 26. Exploitation of juvenile or child employee.- Whoever ostensibly procures a juvenile or the child for the purpose of any hazardous employment keeps him in bondage and withholds his earnings or uses such earning for his own purposes shall be punishable with imprisonment for a term which may extend to three years and shall be liable to fine.
Section 27. Special offences.- The offences punishable under sections 23, 24, 25 and 26 shall be cognizable.
Code of Criminal Procedure 1973 , THE FIRST SCHEDULE
II-CLASSIFICATION OF OFFENCES AGAINST - OTHER LAWS
If punishable with death, imprisonment for life, or imprisonment for mote than 7 years. Cognizable. Non-Cognizable. Court of Session
If punishable with imprisonment for 3 years, and upwards but not more than 7 years. Cognizable. Non-Cognizable Magistrate of the first class.
If punishable with imprisonment for less than 3 years or with fine only.
Non-Cognizable
Bailable
Any Magistrate.
Prepared by: Vipin Bhatt
Tuesday, February 9, 2010
Importance of Section 160 of Cr. P. C.
Section 160. Police Officer’s power to require attendance of witnesses.
(1) Any police officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who from, the information given or otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required:Provided that no male person under the age of fifteen years or woman shall be required to attend at any place other than the place in which such male person or woman resides.
IN THE SUPREME COURT OF INDIA
Appellants: Nandini Satpathy Vs. Respondent: P.L. Dani and Anr. AIR1978SC1025
The very act of directing a woman to come to the police station in violation of S. 160 (1) may make for tension and negate voluntariness.
IN THE HIGH COURT OF CALCUTTA
Decided On: 30.03.1973 Appellants: Rukmani Debi Kashuka Vs. Respondent: Jadu Nath Misra and Ors.
That apart some meaning has to be given to the limitation imposed by Section 160 when it says that the power under this provision can be exercised only in respect of persons being within the limits of the jurisdiction of the Investigating Officer or any adjoining station. Certainly this provision furnishes no authority for an Investigating Officer of Orissa to send a requisition to a person at Calcutta more so when the proviso to this section further enjoins that no woman shall be required to attend any place other than the place where she resides. Infringement of these statutory limitations in my opinion, does not only render the requisition illegal but with-out jurisdiction too.
1995CriLJ2754 IN THE HIGH COURT OF MADRAS
Appellants: A. Nallasivan Vs. Respondent: State of Tamil Nadu and others
Taking into account the above said proviso to S. 160 of the Criminal P.C. the abovesaid detention of 90 women and 28 children at the Forest Ranger's Office, Harur on 20-6-1992, appears to be illegal, offending their fundamental rights.
Prepared by Vipin Bhatt
HAQ: Centre for Child Rights
(1) Any police officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who from, the information given or otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required:Provided that no male person under the age of fifteen years or woman shall be required to attend at any place other than the place in which such male person or woman resides.
IN THE SUPREME COURT OF INDIA
Appellants: Nandini Satpathy Vs. Respondent: P.L. Dani and Anr. AIR1978SC1025
The very act of directing a woman to come to the police station in violation of S. 160 (1) may make for tension and negate voluntariness.
IN THE HIGH COURT OF CALCUTTA
Decided On: 30.03.1973 Appellants: Rukmani Debi Kashuka Vs. Respondent: Jadu Nath Misra and Ors.
That apart some meaning has to be given to the limitation imposed by Section 160 when it says that the power under this provision can be exercised only in respect of persons being within the limits of the jurisdiction of the Investigating Officer or any adjoining station. Certainly this provision furnishes no authority for an Investigating Officer of Orissa to send a requisition to a person at Calcutta more so when the proviso to this section further enjoins that no woman shall be required to attend any place other than the place where she resides. Infringement of these statutory limitations in my opinion, does not only render the requisition illegal but with-out jurisdiction too.
1995CriLJ2754 IN THE HIGH COURT OF MADRAS
Appellants: A. Nallasivan Vs. Respondent: State of Tamil Nadu and others
Taking into account the above said proviso to S. 160 of the Criminal P.C. the abovesaid detention of 90 women and 28 children at the Forest Ranger's Office, Harur on 20-6-1992, appears to be illegal, offending their fundamental rights.
Prepared by Vipin Bhatt
HAQ: Centre for Child Rights
Thursday, February 4, 2010
FILING OF CHARGE SHEET IN THE COURT and THE CODE OF CRIMINAL PROCEDURE, 1973
Filing of charge sheet or final report or challan:-
A.
60 days from date of arrest in the cases of punishment is less than 10 years
B.
90 days from date of arrest in the cases of punishment is more than 10 years
C.
Where the accused was arrested and released on bail mostly police officer rarely take interest and took long time in filing charge sheet
D.
Where the person is absconding the police should conduct the proceeding under section 82 and section 83 Cr. P. C. and as per order given by the court declared the person “proclaimed offender” and filed the charge sheet at the earliest.
Various sections in the Code of Criminal Procedure
Section 82. Proclamation for person absconding.
Section 83. Attachment of property of person absconding.
Section 167. Procedure when investigation cannot be completed in twenty-four hours.
(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom all accused person is forwarded under this section may, whether he has or not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that-
1[(a) The Magistrate may authorize the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding-
(i) Ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) Sixty days, where the investigation relates to any other offence,
And, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be to released under the provisions of Chapter XXXIII for the purposes of that Chapter;]
(b) No Magistrate shall authorize detention in any custody under this section unless the accused is produced before him;
(c) No Magistrate of the second class, not specially empowered in this behalf by the high Court, shall authorize detention in the custody of the police.
2[Explanation I. For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in Custody so long as he does not furnish bail.]
3[Explanation II].If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorizing detention.
2[(2A) Notwithstanding, anything contained in sub-section (1) or sub-section (2), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub-inspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, lot reasons to be recorded in writing, authoress the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and on the expiry of the period of detention so authorized, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and, where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub-section, shall be taken into account in computing the period specified in paragraph (a) of the proviso to sub-section (2):
Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together was a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge of the police station or the police officer making the investigation, as the case may be.
(3) A Magistrate authorizing under this section detention in the custody of the police shall record his reasons for so doing.
(4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate.
(5) If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary.
(6) Where any order stopping further investigation into an offence has been made under sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under sub-section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify.
Prepared by: Vipin Bhatt
HAQ: Centre for Child Rights
A.
60 days from date of arrest in the cases of punishment is less than 10 years
B.
90 days from date of arrest in the cases of punishment is more than 10 years
C.
Where the accused was arrested and released on bail mostly police officer rarely take interest and took long time in filing charge sheet
D.
Where the person is absconding the police should conduct the proceeding under section 82 and section 83 Cr. P. C. and as per order given by the court declared the person “proclaimed offender” and filed the charge sheet at the earliest.
Various sections in the Code of Criminal Procedure
Section 82. Proclamation for person absconding.
Section 83. Attachment of property of person absconding.
Section 167. Procedure when investigation cannot be completed in twenty-four hours.
(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom all accused person is forwarded under this section may, whether he has or not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that-
1[(a) The Magistrate may authorize the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding-
(i) Ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) Sixty days, where the investigation relates to any other offence,
And, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be to released under the provisions of Chapter XXXIII for the purposes of that Chapter;]
(b) No Magistrate shall authorize detention in any custody under this section unless the accused is produced before him;
(c) No Magistrate of the second class, not specially empowered in this behalf by the high Court, shall authorize detention in the custody of the police.
2[Explanation I. For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in Custody so long as he does not furnish bail.]
3[Explanation II].If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorizing detention.
2[(2A) Notwithstanding, anything contained in sub-section (1) or sub-section (2), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub-inspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, lot reasons to be recorded in writing, authoress the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and on the expiry of the period of detention so authorized, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and, where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub-section, shall be taken into account in computing the period specified in paragraph (a) of the proviso to sub-section (2):
Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together was a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge of the police station or the police officer making the investigation, as the case may be.
(3) A Magistrate authorizing under this section detention in the custody of the police shall record his reasons for so doing.
(4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate.
(5) If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary.
(6) Where any order stopping further investigation into an offence has been made under sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under sub-section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify.
Prepared by: Vipin Bhatt
HAQ: Centre for Child Rights
Tuesday, February 2, 2010
Rock4Life Concert held at Shillong, Meghalaya
“Everywhere I go, I see very much the same thing. I see the same compassion for people who live half a world away. I see the same concern about events beyond these borders and increasingly, I see the same conviction that we can and we must join together to stop the scourge of AIDS and poverty.”
… Bono (lead singer of U2)
Urban folk songwriter and singer Susmit Bose, HAQ, UNDP, UNAIDS and NACO joined hands to bring together the music of 8 leading rock bands of North East India, in the form of CD, in order to advocate and spread awareness on HIV/AIDS. The songs laid special emphasis on sensitizing the general public, especially young people, about the facts relating to and the myths and stigma associated with HIV/AIDS.
The CD was released on World AIDS Day i.e. December 1, last year in Shillong. A specially designed concert - Rock4Life - was held in Shillong for the launch of the CD and for purposes of direct interaction with the youth. The bands included were Soulmate (Meghalaya), Digital Suicide (Assam), Scavenger Project (Mizoram), Recycle (Manipur), Alive (Sikkim), Native Rising (Nagaland), Horjwlai (Tripura), and Alien Gods (Arunachal Pradesh).
The initiative, designed for advocacy through the arts, was based on the belief that addressing the youth directly through a medium they best understand, identify and relate is the most effective strategy to win over young peoples’ hearts and eventually spread awareness on a particular issue. The concept worked; the event was hugely successful and participation of youth was immense. As one participant remarks in his blog ‘The bands were rocking and the crowds were rolling ...’
p/s :- Check out some of the the ROCK4LIFE pictures on HAQ facebook page.
The initiative, designed for advocacy through the arts, was based on the belief that addressing the youth directly through a medium they best understand, identify and relate is the most effective strategy to win over young peoples’ hearts and eventually spread awareness on a particular issue. The concept worked; the event was hugely successful and participation of youth was immense. As one participant remarks in his blog ‘The bands were rocking and the crowds were rolling ...’
p/s :- Check out some of the the ROCK4LIFE pictures on HAQ facebook page.
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