by Shivendra Pratap Singh | Dec 4, 2024 | Criminal Matter
Can an arrested person seek anticipatory bail in another case when he is in judicial custody? My husband has been arrested in a forgery case while three more cases are registered against him. Police officers are trying to rearrest him when he gets bail from the court. My advocate suggested applying anticipatory bail in other cases to evade arrest.
Asked from: Uttar Pradesh
Your husband has a legitimate apprehension of arrest in the three criminal cases registered against him. Therefore, he is entitled to file an anticipatory bail application even while in judicial custody. The precondition for seeking anticipatory bail is a reasonable apprehension that he may be arrested on accusations of committing a non-bailable offense.
The legal maxim ubi jus ibi remedium—meaning "where there is a right, there is a remedy"—is a fundamental principle of jurisprudence. A Constitution Bench of the Supreme Court in Anita Kushwaha v. Pushap Sudan, (2016) 8 SCC 509, recognized this maxim in the context of access to justice.
When your husband is in judicial custody, he retains the right to access justice and seek remedies available under the law. The remedy of anticipatory bail (pre-arrest bail) is also available to a person already in custody in other non-bailable cases.
The arrest of an individual in one case does not bar them from applying for pre-arrest bail in a different case, as there is no such limitation in the language of Section 482 of the Bhartiya Nagarik Suraksha Sanhita (BNSS).
In Central Bureau of Investigation, Special Investigation Cell-I, New Delhi v. Anupam J. Kulkarni, (1992) 3 SCC 141 the Supreme Court has held that
Even if an accused is in judicial custody in connection with the investigation of an earlier case, the investigating agency can formally arrest him in connection with his involvement in a different case and associate him with the investigation of that other case.
Hence, there is a possibility that the investigating agency can arrest your husband in connection with three other cases. Hence, there is reasonable apprehension of arrest. Pre-condition of anticipatory bail is existing in your case, therefore, entitled to avail anticipatory bail.
You should proceed with filing an anticipatory bail application in the other cases to safeguard your husband's personal liberty. Section 482 of the BNSS does not impose any restriction on seeking anticipatory bail while in judicial custody. Hence, arrested person can seek anticipatory bail in another pending criminal case.
by Shivendra Pratap Singh | Nov 27, 2024 | Criminal Matter
The trial court has convicted the accused when accused was not identified by the eyewitness. In the trial eyewitness failed to identify the accused who had been alleged to be fired and looted five lakh rupees from the manager of the brick kiln. The story has been falsely made by the prosecution. When the investigating officer failed to catch the real offenders he falsely arrested two labourers from my brick field and made a false case against them. Money was not recovered from the accused.
They were compelled to make a confession. Both accused belong to Jharkhand and no one from their family to defend. Hence, I bore all legal expenses and defended them. Fortunately, in the trial the eyewitness did not identify the accused. Also there was no direct evidence, my advocate took a plea of alibi but court refused that place of occurrence is near to the place where accused were working. There are many flaws in the judgment. Please give any ruling of the high court or supreme court in support of the case because I am going to appeal against the order of the trial court.
Asked from: Uttar Pradesh
The major and material flaw in your case is that the eyewitnesses failed to identify the accused. Additionally, the proceeds of the crime were not recovered from the accused. It appears that the investigating officer arrested the accused shortly after the commission of the offense, likely based on information provided by eyewitnesses to the police.
In this scenario, the identity of the accused and the recovery of the proceeds are both material facts that need to be carefully considered by the trial court before delivering a judgment. Regarding the plea of alibi, it is based on the specific circumstances of the case and is inherently subjective.
It is an undisputed fact that the case relies heavily on the statements or evidence of the eyewitnesses. However, when the eyewitnesses fail to identify the accused in court, it undermines the very foundation of the case.
In Dharma v. State of Haryana, (2023) 10 SCC 229, the Supreme Court held that if an accused is not identified by eyewitnesses, they cannot be held guilty. In paragraph 11 the court expressed that:
Therefore, this is a case where the eyewitness has not identified both the accused in the court. In the circumstances, the appellants could not have been convicted in the absence of their identification by the eyewitness before the court.
You should promptly file an appeal under Section 415 of the Bhartiya Nagarik Suraksha Sanhita 2023. The appellate court is likely to set aside the conviction on the sole ground that the accused not identified by eyewitness. Their involvement in the commission of the offense remains doubtful, and they are entitled to the benefit of the doubt.
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by Shivendra Pratap Singh | Nov 15, 2024 | Criminal Matter
Indian criminal law provides several legal protections to an accused at the time of arrest to ensure their fundamental rights are safeguarded. These provisions are codified primarily under the Code of Criminal Procedure, 1973 (CrPC) and, more recently, the Bhartiya Nagrik Suraksha Sanhita, 2023 (BNSS). Here's an explanation:
Under the Code of Criminal Procedure, 1973 (CrPC):
- Right to be informed of the grounds of arrest (Section 50 CrPC): The arrested person must be informed of the reasons for their arrest and any charges against them.
- Right to bail (Section 50A CrPC): If the offense is bailable, the accused must be informed of their right to bail.
- Right to be presented before a magistrate (Section 56 and 57 CrPC): The accused must be presented before a magistrate within 24 hours of arrest. This prevents unlawful detention.
- Right to consult a lawyer (Article 22 of the Constitution and Section 41D CrPC): The accused is entitled to consult and be defended by a legal practitioner of their choice.
- Protection against arbitrary arrest (Section 41 and 41A CrPC): Police must have reasonable grounds for arrest and document them. In cases where arrest is not necessary, the police may issue a notice to appear instead of arresting the individual immediately.
- Medical examination (Section 54 CrPC): The arrested person has the right to a medical examination to document any injuries, ensuring protection against police brutality.
Provisions under the Bhartiya Nagrik Suraksha Sanhita, 2023 (BNSS):
The BNSS 2023 modernizes criminal laws and reinforces the protections already in place under the CrPC. Key provisions include:
- Notification of Rights: It mandates that an accused be informed of their rights in a clear and accessible manner.
- Video Recording: Arrests and the interrogation process must be recorded to ensure transparency and accountability.
- Strengthened Oversight Mechanisms: BNSS includes provisions to prevent misuse of power by law enforcement authorities through stricter oversight and penalties for violations.
- Special Protections for Vulnerable Groups: The BNSS expands safeguards for women, children, and individuals with disabilities during arrest and detention.
- Use of Technology: The law emphasizes the use of digital tools, such as e-filing of FIRs and electronic monitoring of detention, to reduce procedural delays and enhance accountability.
Constitutional Protections:
In addition to the above, the Indian Constitution provides critical safeguards under Article 21 (Right to Life and Personal Liberty) and Article 22 (Protection against Arbitrary Arrest and Detention), ensuring that the rights of the accused are not violated during the criminal justice process.
These provisions collectively aim to balance the need for effective law enforcement with the protection of individual rights, reflecting India's commitment to the rule of law and justice
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by Shivendra Pratap Singh | Oct 28, 2024 | Criminal Matter
My appointment is cancelled by the employer after police verification due to my involvement in a criminal case which ultimately resulted in my acquittal. I was falsely implicated in a criminal case by the dispute arising out of property matters. A false FIR was lodged against me and my family members for the offence of rape and extortion. In that criminal case I was acquitted by the court for lack of evidence. Actually I compromised the case with the complainant after I got selected in the education department. When I filled up the form mistakenly not disclosed about the pending criminal case. When the police verification was done by the local police a report was submitted that I was involved in a criminal case. Is there any possibility to challenge the decision of the appointing authority in the high court?
Asked from: Madhya Pradesh
Rape is a heinous offense closely linked to the moral depravity of the offender. You committed an error by concealing the fact of a pending criminal case and ongoing trial. If you had disclosed the correct information on your application form, there is a possibility you may not have been selected or appointed.
When an employer finds that an applicant has, at the outset, made a false statement, failed to disclose material information, or suppressed essential facts, they may determine that such an individual cannot be retained in service, as they may not be trustworthy in the future.
Your acquittal was achieved through a compromise. However, non-compoundable offences cannot be legally compromised; thus, the matter was settled by influencing the prosecutrix to become hostile. Under these circumstances, you cannot claim the FIR was false. There was prima facie evidence against you, which led to the framing of charges and facing a trial process.
It is a well-established legal principle that courts cannot compel an employer to appoint a candidate with a criminal history. In Avtar Singh v. Union of India, (2016) 8 SCC 471, the Supreme Court held that:
Even where a candidate truthfully discloses a concluded case, the employer retains the right to consider the candidate's antecedents and is not obligated to make an appointment.
The alleged offence was directly tied to morality and your moral character, and you suppressed this material fact from your employer when filing your application.
Merely being acquitted in a criminal case does not automatically qualify you as fit for appointment to a given position. The trial court granted you an acquittal based on the benefit of doubt.
Given these circumstances, the High Court is unlikely to direct the employer to consider your application for appointment in the education department, where the moral character of a teacher is expected to be of the highest standard. Your appointment is cancelled by the employer in violation of law.
by Shivendra Pratap Singh | Oct 3, 2024 | Criminal Matter
Whether transfer case to another investigating agency is possible. I have no faith in the investigating officer because he is trying to save the accused. Offence was committed by the husband but he is utilising his contacts in the police and administration for pressurising the investigating officer to do faulty investigation. In this circumstance I approached the police commissioner but he did not entertain my request. He clearly said that meet the investigating officer and cooperate in the investigation. I cannot interfere in the investigation process. Such callous behaviour of the police commissioner made me upset. Please suggest how to change this investigating officer for ensuring free and fair investigation.
Asked from: Uttar Pradesh
If you want to change the investigative agency, you must prove that the current investigating officer is conducting the investigation with malafide intentions and that the state police cannot conduct a free and fair investigation.
In the present scenario, the lower court, specifically the court of judicial magistrate, can provide an appropriate remedy. Under Section 175 of the Bhartiya Nagrik Suraksha Sanhita (BNSS) 2023, the magistrate has the authority to monitor the investigation and issue necessary directions to ensure a fair and impartial investigation.
However, the judicial magistrate does not have the power under the BNSS or the CrPC to change the investigating agency. In the case of Central Bureau of Investigation vs. State of Rajasthan and Another [2001 (3) SCC 333], the Supreme Court held that magisterial powers cannot be extended to changing the investigative agency or directing the officer in charge of a police station to conduct the investigation.
To seek further intervention, you can approach the High Court under Article 226 of the Constitution for directions to ensure a fair investigation. However, the Supreme Court in Divine Retreat Centre vs. State of Kerala and Others (2008) 3 SCC 542 clarified that the High Court cannot change the investigating officer mid-investigation or appoint one of its own choice.
The Court emphasised that neither the accused nor the complainant is entitled to choose their own investigative agency. Still, if the High Court finds that the investigation is being conducted with malafide intent, it can issue appropriate directions to rectify the situation.
If you believe that the investigating officer is trying to falsely implicate you, such claims must be supported by solid evidence. Courts generally do not interfere in ongoing investigations without sufficient proof, as affirmed by the Privy Council in Emperor vs. Khawaja Nazir Ahmad AIR 1945 PC 45, where it was held that the power of investigation lies exclusively with the police and should not be interfered with by the courts.
You still have the option to seek further investigation if the current one is found defective, as stated in Om Prakash Narang and Another vs. State AIR 1979 SC 1791. It is advisable to wait for the investigation to conclude, and if the police report is defective or not supported by legal evidence, you can then request further investigation instead of engaging in premature litigation to transfer case to another investigating agency.
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by Shivendra Pratap Singh | Aug 29, 2024 | Property Dispute
Question: Dear Sir, My neighbour uses my property for construction of his house. I recently built my house with a 3-foot gap on each side, as I utilized the full length of my plot. My neighbor, however, is constructing his house from end to end on his plot, which is 2000 sqft. This construction leaves my gap as the sole source of light and air for my property, and he has also installed windows that face my plot. My neighbor is now requesting access to my property to perform plastering work on his house. I would prefer not to have his workers enter my property for this purpose. Can I deny him access? It seems that the decision not to leave a gap on his plot is his own responsibility. Additionally, I would like to know if I can extend my construction to cover the entire length of my plot in the future, similar to his approach.
Asked from: Uttar Pradesh
Your neighbor does not have the right to access your property if they have not left a gap between the properties. In this case, you can prevent your neighbor from entering your property. To do so, you should file a civil suit seeking a perpetual injunction to legally prohibit them from accessing your property.
A perpetual injunction is a form of relief granted in civil cases where the court orders a party to stop a particular action or to refrain from doing something permanently. It is usually granted when the plaintiff has demonstrated that they have a strong legal right and that this right is being infringed upon by the defendant. It is governed by the Specific Relief Act, 1963.
According to this Act, a perpetual injunction can be issued under Sections 37 and 38. Section 37 deals with the types of injunctions, while Section 38 provides the conditions under which a perpetual injunction can be granted.
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by Shivendra Pratap Singh | Jul 6, 2024 | Property Dispute
Collector has issued notice and demanding fees for recovery citation. I borrowed money from XX and failed to repay within the prescribed time. That loan has been mutually settled by us. I paid the entire outstanding and the bank has issued no objection certificate. Now the collector is mounting pressure on me to pay thirteen lakh as fees for the recovery citation. No conversation with the collector and other officer bearer. Never went to the office and receive any document from the collector's office. I am afraid that the collector can attach my property. Please help.
Asked from: Uttar Pradesh
Based on the facts of your case, it appears that the loan account was closed following an amicable settlement between the borrower and the creditor. When the bank issued the recovery certificate, it might have requested the collector to recover the dues in the form of land revenue, which led to the issuance of the recovery citation by the collector.
Since the matter has been amicably settled, the loan account has been closed, and the bank has issued a no objection certificate, it seems that the collector has not taken any steps to recover the loan. Given that no action has been taken by the collector or his office, the demand for fees for the recovery citation is illegal.
In the case of Maharajwa and others vs. State of Uttar Pradesh (2013), the Allahabad High Court held that if the authority has not been able to recover the amount of arrears through the coercive process undertaken by them, there is no justification for releasing the cost of recovery from the defaulter.
In the petition, you should seek a direction from the court to stop the proceedings related to the recovery citation and to preclude the collector from demanding fees for the recovery citation. You should file a writ petition in the high court for the issuance of a mandamus on these grounds:
- Matter has been settled between the borrower (petitioner) and creditor
- That settlement was amicable and without interference of Collector
- Collector did nothing in order to recover the loan from the petitioner
- In absence of any step taken by Collector, demanding fees for recovery citation is illegal
The court shall issue the writ of mandamus, thereby commanding the collector to drop the proceedings and not to recover any amount from you.
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by Shivendra Pratap Singh | Jun 28, 2024 | Property Dispute
I want to know if I can take legal action against the tenant when the lease agreement is unregistered? I let-out a building to a company for a term of five years. Proper lease agreement was prepared but it was unregistered till date. In the meantime the tenant has vacated the premises without terminating the lease agreement. He also did not pay the rent for eleven months. I told him many times that pay the rent but he said that some superior officers are proposed to visit the premises and after some changed in the interior they shall extend the period of lease and also increase the rent.
It was my fault because I thought that rent will increase in coming months so do not compel him to pay the rent. I have the lease agreement which is duly signed by the concerned authority of the company. In this scenario can I take any legal action against the tenant. One expert says that lease agreement should have been registered and in absence of registration I can not take any legal action against him.
Asked from: Punjab
You can sue the tenant for recovery of rent due and for damages resulting from the loss of rent. The lease was granted for a period of five years. According to Section 107 of the Transfer of Property Act, if the tenure of a lease is more than one year, the lease agreement must be registered. Therefore, the registration of the lease agreement was mandatory, but you let out the premises without following the necessary procedure.
According to Section 17 of the Indian Registration Act, an unregistered document is not admissible as evidence. Hence, you cannot produce the lease deed as evidence to prove the obligations of the lessee. Therefore, on the basis of an unregistered lease agreement, you cannot compel the tenant or lessee to perform the promises made in the lease agreement. Specific performance means compelling the defaulting party to obey the terms of the agreement in its letter and spirit.
If the lease agreement had been duly registered, you could sue the lessee for the specific performance of the contract. On the basis of the unregistered deed, you still have the right to sue him for breach of contract.
The unregistered lease agreement proves that both parties entered into an agreement to perform certain acts. You can sue for the payment of due rent with interest and for the prospective loss of rent.
You should file a civil suit based on this agreement. The lessee has breached the agreement because he vacated the premises without terminating the agreement properly.
Also read: Police officer is illegally interfering in my property
by Shivendra Pratap Singh | Jun 8, 2024 | Criminal Matter
Can the court grant bail in grievous hurt when the victim died after FIR was lodged. There was a dispute between me and the victim about parking of vehicles. In the meantime the victim assaulted me with fists. In private defence I also attacked him with hands and fists. After the intervention of bystanders the dispute was resolved and I returned to my home. Later on I came to know that he (victim) has lodged a FIR against me under section 325, 504, 506 IPC. After seven days of the incident the victim dies due to internal injuries. Now the investigating officer added section 302 in the FIR. In this condition, can I get bail?
Asked from: Uttar Pradesh
You can get bail even after addition of section 302 IPC. The investigating officer has added Section 302 IPC (offence of murder) when the victim died. It was the responsibility of the investigating officer to add the relevant sections and carry on the investigation. There is nothing illegal about adding Section 302.
Regarding bail, the FIR was initially lodged for the offences of grievous hurt and criminal intimidation. The alleged fight started over a very petty issue. Neither side used any dangerous weapons. Furthermore, you had no criminal intention to cause the death of the victim.
The death was caused by internal injuries, which were neither intended nor known to you. You should obtain the post-mortem report to analyse the cause of death. If the death occurred due to septicemic shock or the aggravation of any disease, you can easily get bail.
The facts of your case suggest that the fight started without premeditation. You had no intention to cause death, and when you assaulted him with your hands and fists, there was no intention or knowledge that such a normal fight could cause death. The court often grants bail in cases of grievous hurt.
You cannot move for anticipatory bail under Section 438 CrPC because in Uttar Pradesh, anticipatory bail is not applicable in offences where the death sentence can be awarded. You have to surrender (judicial custody) before the court and file for regular bail under Section 437 CrPC.
The FIR was registered under Sections 325, 504, and 506 IPC. During the investigation, the charge of murder was added. Therefore, while bail may be granted by the court for grievous hurt, the victim died after the FIR was filed.
In the prevailing situation, it is not advisable to move to the district court for bail. You should approach the High Court under Article 226 of the Constitution of India to seek a stay of arrest during the investigation.
Your case is fit for protection against any kind of coercive action by the police. Since you are not yet arrested, you can approach the High Court. In the absence of criminal intention and knowledge to cause death, the court may extend protection against arrest until the submission of the police report.
Also read: Non-public servant can be persecuted under Prevention of Corruption Act
by Shivendra Pratap Singh | May 26, 2024 | Domestic Violence
Domestic incident report is still pending in my case from eight months. Magistrate called a domestic incident report from the protection officer when I filed a complaint under section 12 of the domestic violence act. More than twenty three dates have gone but the domestic incident report has not been filed by the protection officer. My advocate time and again requested the court to take action against the protection officer for not submitting that report. No action has been taken by the magistrate against the protection officer. In this situation I am facing many difficulties. My husband has filed a divorce case against me in the Mathura family court.
Asked from: Uttar Pradesh
The Magistrate has no power to take action against the protection officer if he is not filing a domestic incident report. Therefore, do not request the court to take action against the protection officer for causing a delay in filing the domestic incident report.
In this situation, you should file a miscellaneous application in the court, requesting cognizance of the offence and issuance of a notice to the respondent even in the absence of the domestic incident report.
When the complaint is directly filed by the aggrieved person, either by herself or through an advocate, it is not mandatory for the Magistrate to seek a domestic incident report (DIR) from the protection officer.
A domestic incident report is mandatory only when the protection officer or service provider files a complaint on behalf of the aggrieved person.
The provisions of the Domestic Violence Act 2005 do not require that only the aggrieved person can file a complaint. A protection officer, service provider, or any other person can file a complaint on behalf of the victim of domestic violence.
In Prabha Tyagi vs. Kamlesh Devi (2022), the Supreme Court held that the Magistrate can take cognizance of the offence and issue a notice to the respondent even in the absence of a domestic incident report.
You should file a miscellaneous application in the court, requesting cognizance of the offence and issuance of a notice to the accused in the absence of a DIR. The Magistrate cannot seek a DIR if the complaint is filed by the aggrieved person, either by herself or through an advocate.
Domestic incident report is pending for eight month is seriously affecting the progress of your case. You should try to expedite the proceedings and seek time bound disposal of your case. Therefore, you should approach the high court under Section 483 crpc (code of criminal procedure).
You can pray from the High Court for early disposal of miscellaneous application as well as the complaint. The High Court shall direct the Magistrate to expedite the proceedings and dispose of the case within a fixed time.
Also read: Bail can be granted if offence of murder added during investigation
