WHETHER TWO FIR LEGALLY PERMISSIBLE.....???

Date:- 16.05.2016


WHETHER SECOND FIR IS LEGALLY PERMISSIBLE....?

TWO FIR:-

Sub Section (1) of Section 154 Cr. P.C. requires that every information relating to the commission of a cognizable offence, whether given orally or otherwise to the officer-in-charge of police station, has to be reduced to writing by him or under the direction of such officer and shall be signed by the person giving such information.

It reads as under :-

"154. Information in cognizable cases:-

(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in book to be kept by such officer in such form as the State Government may prescribe in this behalf."

On plain reading of subsection (1) of Section 154 Cr.P.C. it cannot be construed that there can be more than one FIR about an occurrence. The first information is that information which is given to the police first in point of time, on the basisi of which the investigation commences, However, it has to be examined on the merits of each case whether subsequently registered FIR is second FIR about the same incident or the offence is based on distinguished and different different facts and whether or not its scope of inquiry is entirely different.

What should be the contents of FIR

In T.T. Antony Vs. State of Kerala & Ors. [(2001) 6 SCC 181], the Supreme Court dealt with a case wherein respect of the same cognizable offence and same two FIRs had been lodged and the Court held that there can be no second FIR and no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or same occurrence giving rise to one or more cognizable offences.

The investigating agency has to proceed only on the information about the commission of cognizable offence which is first entered in the Police Station diary by the Officer In-charge under Section 154 of Cr.P.C. and all other subsequent information would be covered by Section 162 of Cr.P.C. for the reason that it is the duty of the investigating officer not merely to investigate the cognizable offence reported in the FIR but also other connected offences and the Investigating Officer has to file one or more reports under Section 173 of Cr. P.C.

Even after submission of the report under Section 173 (2) of Cr.P.C. if the Investing Officer comes across any further information pertaining to the same incident, he can make further investigation, but it is desirable that he must take the leave of the court and forward the further evidence, if any, with further report or reports under Section 173 (8) of Cr. P.C.

In case the officer receives more than one piece of information in respect of the same incident involving one or more than one cognizable offences such information cannot properly be treated as an FIR as it would, in effect, be a second FIR and the same is not in conformity with scheme of the Cr.P.C.  

Counter Claim:-

In Upkar Singh Vs. Ved Prakash & Ors. [(2004)13 SCC 292], the Supreme Court considered the judgment in T.T. Antony (supra) and explained that the judgment in the said case does not exclude the registration of a complaint in the nature of counter claim from the purview of the court.

What had been laid down by the Supreme Court in the aforesaid case is that any further complaint by the same complainant against the same accused, subsequent to the registration of a case, is prohibited under the Cr.P.C. because an investigation in this regard would have already started and further the complaint against the same accused will amount to an improvement on the facts mentioned in the original complaint, hence, will be prohibited under section 162 of Cr.P.C.

 However, this rule will not apply to a counter claim by the accused in the first complaint or on his behalf alleging a different version of the said incident. Thus, in case, there are rival versions in respect of the same episode, the investigating agency would take the same on different FIR and investigation can be carried under both of the them by the same investigating agency and thus, filing FIR pertaining to a counter claim in respect of the same incident having a different version of events, is permissible.

Maintainability of second FIR

The issue regarding maintainability of second FIR was considered by the Supreme Court as back as in 1979 in Ram Lal Narang Vs. Om Prakash Narang and Anr. [AIR 1979 SC 1791]. In that case the Supreme Court considered a situation wherein two FIRS had been lodged.

The first one formed part of subsequent larger conspiracy which came to the light on receipt of fresh information. Some of the conspirators were common in both the FIRs and the object of Conspiracy in both the cases was not the same.

The Supreme Court while considering the question as to whether investigation and further proceedings on the basis of both FIRs was permissible held that no straight jacket formula can be laid down in this regard. The only test whether two FIRs can be permitted to exist was whether the two conspiracies were identical or not.

After considering the facts of the said case, the Court came to the conclusion that both conspiracies were not identical. Therefore, lodging of two FIRs was held to be permissible.

In Rameshchnadra Nandlal Parikh Vs. State of Gujrat & Anr. [(2006) 1 SCC 732], the Supreme Court reconsidered its earlier judgments including that of T.T. Antony (supra) and held that in case the FIRs are not in respect of the same cognizable offence or the same occurrence giving rise to one or more cognizable offences nor are they alleged to
have been committed in the course of the same transaction or the same occurrence as the one alleged in the First FIR, there is no prohibition in accepting the second FIR.

In Nirmal Singh Kahlon Vs. State of Punjab & Ors. [(2009) 1 SCC 441], the Supreme Court considered a case where an FIR had already been lodged on 14.06.2002 in respect of the offences committed by individuals. Subsequently the matter was handed over to the Central Bureau of investigation (CBI), which during investigation collected huge amount of material and also recorded statements of large number of persons and the CBI came to the conclusion that a scam was involved in the selection process of Panchayat Secretaries.

The second FIR was lodged by the CBI. The Supreme Court after appreciating the evidence, came to the conclusion that matter investigated by the CBI dealt with a larger conspiracy. Therefore, this investigation has been on a much wider canvass and held that second FIR was permissible and required to be investigated.

In Babubhai Vs. State of Gujrat & Ors. {(2010) 12 SCC 254], the Supreme Court has approved the recording of more than one FIR in respect of same case committed on the ground that the police is required to register FIR on the basis of information provided and that "where the version in the second FIR is different and they are in respect of the two different incidents/crimes, the second FIR is permissible."

In Md. Sadrul Khan Vs. State of Bihar [Patna High Court, 21 Sep 2015] an accidental death was reported, there was no information regarding commission of murder. Since the dead body in question was found on the road by the Police Patrolling Party, it prima facie appeared to be a case of accidental death and hence an FIR against an unknown vehicle driver was registered under Sections 279 and 304-A IPC on the basis of statement of local Chaukidar.

However, on the next date when the dead body was identified by the father and other family members of the deceased, the father of the deceased lodged a definite information making specific allegation against four persons including the petitioner who are alleged to have conspired together in order to commit the murder of the deceased and after commission of murder they threw the dead body on the road in order to create an impression of accidental death.

The information given in the second FIR is not the same as given in the first FIR. The allegation made in the second FIR is different version of the said incident. In view of the ratio laid down by the Supreme Court in the judgments cited herein above, which have also taken into considertation the judgment in case of T.T. Antony (Supra), a second FIR pertaining to different version or rival version in respect of the same incident is permissible in law.

WHAT IS ZERO FIR AND WHY IT IS NEEDED

Date:- 02.05.2016



ZERO FIR: 

Zero FIR (Zero First Information Report) means that a FIR can be registered in any Police Station, on receipt of complaint, irrespective of its territorial jurisdiction  and the same can be transferred later to the appropriate Police Station After collection of evidences by Police.(Appropriate police station is one within  whose local jurisdiction the offence actually taken place)

For example an offence of Murder took place at some area which comes under the jurisdiction of Police Station  PUNE. The person who saw the dead body at BOMBAY approached the nearest Police Station at  BOMBAY  and informed the same. In such a situation police incharge of BOMBAY police Station cannot excuse themselves saying that the case does not fall within their jurisdiction and it falls within the jurrisdiction of PUNE Police Station. They should take immediate action (like collecting samples, getting information from eye witnesses, etc.). Later the case will be transferred to Police Station PUNE police Station.

ZERO FIR can be filed at any police station – even if you are far off from the place of incident and you may/ may not be sure of the correct jurisdiction? Place where the offence actually taken place? There are provisions to do so and the same can be transferred to the appropriate police station limits when these are available. Such an FIR is called the Zero FIR!

However, there are chances that the police station you visit may plead unawareness of such a concept. You should still report an FIR for the record the evidences need to be collected in very short span like blood samples, port mortem Report and statement of eye witnesses etc. are required to be collected immediately otherwise it may gets destroyed or tampered by Offenders.

Why Zero FIR needed?

Incidents like accident, murder and rape require immediate action from the concerned authorities and rush to take samples, getting information from eye witnesses and getting circumstantial details. A Zero FIR helps to take note of this initial action regardless of trying to figure out in  which limits or territorial jurrisdiction the crime / offence took place.
Case Laws:
--------------
• Satvinder Kaur vs Govt. of NCT of Delhi on 5/10/1999 (AIR 1999, 1031) 
• Ramesh Kumari vs Govt.

CONSENSUAL RELATIONSHIP ON PROMICE OF MARRIAGE CANNOT BE TERMED AS RAPE

DATE:- 22.04.2016

The Bombay High Court on Thursday, while granting Anticipatory bail to a man,observed that if a major and educated women gets into physical relationship with someone who understands its consequences, then it would not fall under the ambit of Rape. The Charges that accused facing was Sec. 376, 420, 323 and 506 of Indian Penal Code.  

Justice Mridula Bhatkar, observed this while hearing a pre-arrest bail application filed by Solapur resident Sumit Patil (25).  

Patil had filed the Anticipatory bail application through Advocate Priyal Sarda, saying that the relationship between the applicant and the complainant was consensual and a case of Rape is not made out on the other hand, Aniket Nikam on behalf of 24 year old complainant alleged before the court that she leaves in mumbai and the accused stays in solapur and the women got into relationship because he had promised her that he would marry her. He also said that she would not got in to relationship had he not made the false promise of marriage and hence the case of Rape is applicable.

The prosecution’s case is that the accused and the woman met in Solapur in March 2015 and fell in love. The accused promised to marrry her and allegedly forced her to get into a physical relationship and when she conceived, she was made to abort the child and after that the accused refused to marry her and hence she lodged an FIR against him.

The judge, however, clarified that in a similar matter she had taken a view that if an educated woman is mature enough to understand the consequences of having a physical relationship with her partner, then it would not qualify as rape.

The judge said that the victim should have said “No” when she was asked to get into a physical relationship. “I know our society has certain taboos. But if you consider western culture, this is consensual. This is not rape. When the woman is educated and mature she can say no. When you (girl) say yes, it becomes mutual,” observed by Justice Mridula Bhatkar.

The man was further ordered to post a surety of Rs 25,000 and ensure he does not in any way attempt to get in touch with the woman.

IMPORTANT LEGAL ADVICE REGARDING PERSONAL DOCUMENTS (KYC & OTHER)

DATE:- 11.04.2016

DEAR FRIENDS

Wanted to highlight one very important aspect. In ordinary course we keep issuing and submitting our KYC Documents ( Identity and residential proofs..such as PAN Card, Electricity bill etc.) to various people. For housing or Car or other loans, bank accounts, or even for buying new sim card we submit these documents. At almost all these places they ask for self certification on these documents. We immediately sign those documents and hand over the same to them. just imagine your self certified copies are freely available in the hands of such persons and those documents can be used by him for everything.Its really serious and its been seen that in most of the terrorist activities, KYC documents are sourced from the SIM card Sellers.

Hence, please inculcate a 'HABIT' of writing the date and purpose for which you are submitting the self certified KYC Documents so those documents cannot be reused for another purpose again.

Please share this as much as possible because it is very important to write the date and purpose, which we never do while submitting KYC documents.

Here after wards sign as

1....... Signature
2........Date
3........Purpose
4.........And not to be used for other purpose.



Regards,

Jeetendra Jagtap

DAUGHTERS RIGHT TO SHARE IN ANCESTRAL PROPERTY (HINDU SUCCESSION ACT 1956)

DATE:- 05.04.2016

DAUGHTERS RIGHT TO SHARE IN ANCESTRAL PROPERTY (HINDU SUCCESSION ACT 1956)

OLD HINDU LAW BEFORE HINDU SUCCESSION ACT

Daughters was not having right to seek share in the parents property prior to 1956. After 1956 to till 2005 amendment daughters were having right to residence in the ancestral house and also would succeed to the personal share of their father in the ancestral property. In the notional partition though father of daughters died used to be given a share in the ancestral property and his sons and in the share of the father the daughters were given share along with sons and mother.

Example:- If Hindu male had died leaving behind him three sons and two daughters and wife. Sons and father and mother were given a share allotting three sons 1/5th, father 1/5th and mother 1/5th share. In the fathers 1/5th share three sons and two daughters and mother will be allotted 1/30th Share. 

There are contradictory Judgments of different High Courts and supreme court but three judge bench judgment as held in Gurupadappa Khandappa Magdum case is holding the ground and it is not set aside till this day.

Law after the 2005 amendment to section 6 

The new section 6 of Hindu Succession Act 1956 Inserted in place of old section.

The new section declares that the daughters are coparceners by birth, they are placed on part by sons. They will be given equal shares along with the sons. It also states that the alienation made before the December 2004 are not affected and daughters will not get right in them. 

Partition has been defined as registered partition deed and decree means final decree in order to avoid any false partitions springing up. 

But the law is yet to develop and settle. There are judgments on the rights of the daughters but they are differing on the following points. 

1. Daughter born after 09-09-2005 on which date amendment act came into force are coparceners. 

2. Daughters born from 17 June 1956 on which date Hindu Succession Act came into force are coparceners basing on principle that in case of insertion the old section scored out by pen and ink and new inserted and its insertion takes back and referred as if existing since the date of original act which is 1956. But the word existing in the new section 6 on and from the date of commencement of 2005 act is leading to different interpretations.

3. Daughters either born before or after the 1956 act all are coparceners. This is based on the provisions in the amended section 6 and object of the act is already southern states Hindu Succession Act giving equal rights to daughters. Which means further strengthening means only unmarried daughters are given the coparcenary right in south indian states but the centre extended to all and to dating back to act the original act 1956.

4. Only daughters who are alive on 09-09-2005 on which date amendment act came into are entitled for benefit of new section 6 as coparceners. This view is based on the principle that on the date of death the old act was applicable and her rights are to be decided as on her date of death.

5. If father died before the 2005 act came into force i.e. 09-09-2005 then the daughters are not entitled to get the benefits of 2005 act and will not be a coparceners. This is based on the principle that once vested and cannot be divested. The rights of the male dying before the 2005 are crystalized and succession opened and vesting and divesting takes place as per the old act. 

6. If father died before 1956 act daughters are not entitled for the benefits of 2005 act and not get equal shares as sons. This is because there are number of rulings that the 1956 act is prospective and not retrospective and to the death before 1956 then old Hindu Law are applicable.

Important judgements after 2005 act.

GANDURI KOTESHWARAMMA VS. CHAKIRI YANADI  AIR(SC)-2012-0-169 wherein the suit for partition was filed and preliminary decree was passed before the 2005 amendment act. The daughters filed application after 2005 amendment to section 6 of Hindu succession act 1956 to allot them equal share along with sons. The trail court allowed it. The high court reversed but the supreme court held that the order of trail court is correct. The order of high court is against the S. Sireddy case and Phoolchand case. The amendments brought are to be considered by the courts as held in S.Saireddy case. So daughters born before 2005 act are given share in the coparcenary property. But it is not clear that whether they were born prior to the 1956 act or not.

Bombay high court full bench held

That the daughters by birth either born before or after 1956 are coparceners if they are alive on the date of 2005 act i.e.9-9-2005. The court also held that if the daughters had died before the 2005 act came into existence on 9-9-2005, new law is not applicable to them.

Karnataka high court two judgments of division bench held two different views. M PRITHVIRAJ VS. LEELAMMA N case the division bench held that the partition had opened in the year 1969 so the amended provisions of the 2005 act are not attracted. The latter judgement of N. Pushpalata held that, daughters born after 1956 are coparceners and irrespective of succession opened either before or after 2005 act the daughters are given equal share as per the inference drawn from the section to show that the parliament wanted to extend the facility to the daughters born before the amendment act 2005. Now matter is referred to full bench but the full bench has deferred to give judgement on reference since the N.Pushpalata case is pending before the apex court.

The law as on today is not settled. The Apex court will while dealing with the N.Pushpalata case will have to ponder over the points discussed in detail and the laws and interpretation and principles of interpretation of the statue on mischief theory and come to the just conclusion and view expressed by the full bench of the Bombay high court even oral partition will be dealt. Till then there is no end to the contrary views and discussions.

As per the IN Shamarao V. Parulekar v. District Magistrate, Thana, Bombay9, a Constitution Bench of the Supreme Court had laid down that an amendment Act must be read as if the words of amendment had been written into the Act (except where that would lead to an inconsistency) with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all. (See also Yadlapati Venkateswarlu v. State of Andhra Pradesh10, and State of Maharashtra v. Vithalrao Ganpatrao Warhade11). So once inserted the section 6 of the hindu succession act should be treated as existing from 1956 itself. If this is accepted then the daughters born after 1956 are coparceners.

New section 6 of Hindu succession act is as under.

(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,

(a) by birth become a coparcener in her own right in the same manner as the son;

(b) have the same rights in the coparcenary property as she would have had if she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener.

Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the dt. 20.12.2004.

(2) Any property to which a female Hindu becomes entitled by virtue of sub-sec. (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act, or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,

(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and

(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.

Explanation. For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no Court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:

Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect

(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or

(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.

Explanation. For the purposes of clause (a), the expression "son", "grandson" or "great-grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.

(5) Nothing contained in this section shall apply to a partition, which has been effected before the dt. 20.12.2004.

Explanation. For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.

Hindu Succession (Amendment) Act, 2005 makes the law applicable from 9-9-2015

But clause 1 of section 6 daughters by birth become a coparcener in her own right in the same manner as the son. Full bench of bombay high court view is by birth either born before or after the act. Where as N.Pushpalata case as held in the apex court judgements retrospective effect cannot be given prior to the act and it can be given only under the act from 1956.

But the section 6 of the general clauses act and its interpretation it is made out that wide powers are their to the legislation that the act can be made retrospective even prior to the act itself. So the words which are used in the section by birth must refer to their birth and not birth after the amendment act or 1956 act.

The words in the section (b) of section “ have the same rights in the coparcenary property as she would have had if she had been a son; for all purpose she is treated on par with son. So differentiation cannot be drawn on the basis of the gender discrimination is against the constitution provisions.

The words in section 6

Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the dt. 20.12.2004.

Alienations made prior to the amendment act are saved as the purchaser will not be aware of the future laws and if made applicable they will be deprived off their right in the purchased property and it will be without notice to them. The testamentary disposition must be referred to the interest of the Hindu male in the coparcenary and not referred to property reiceved by him on partition. His interest better understood as held in Gurupadappa khandappa case.

Caluse 3 of the new section is replica of the old section 6 itself as per the Gurupadappa khandappa case his interest means arrived at by notional partition between him and coparceners i.e. sons and now daughters. The calculation is necessary as there is one more female who is entitled to succeed under schedule I wife/widow.

From the above we can make out daughters are placed on par as son.

Expect there may be disagreements.               

   

AFFIDAVIT AND ITS DEFINATIONS

Date:- 29.03.2016

                                            AFFIDAVIT

In general Affidavit Means:- 

"A written statement confirmed by oath or affirmation, for use as evidence in court."

DEFINITION OF AFFIDAVITS:

The general clauses act,

The General Clauses Act defines ‘Affidavit’ as a document that include affirmation and declaration in the case of persons by law allowed to affirm or declare instead of swearing. It is a voluntary statement that includes a person’s declaration in writing that is signed by the deponent (person making the affidavit) and accompanied by an oath. In Latin, “Affidavit” means to “pledge ones faith.” It is necessary that the affidavit is witnessed and signed by a notary authority, along with the sign of the affiant. Affidavit is taken to be sort of a written court testimony.

 LAW GOVERNING AFFIDAVITS:

 Section 139, Order XIX of the Code of Civil Procedure and Order XI of the Supreme Court Rules are the laws that govern ‘Affidavits’ in India. The importance of affidavit has been upheld by the courts in many instances.

 "Matters to which affidavits shall be confined - (1) affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted; provided that the grounds thereof are stated."

 Under Rule 5 of Order XI of the Supreme Court Rules , it is stated that, "Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted, provided that the grounds thereof are stated."

In Padmabati Dasi v. Rasik Lal Dhar, Calcutta High Court, using Order XIX Rule 3 of the CPC said that every affidavit should clearly express how much is a statement of the affiant’s knowledge and how much is a statement of his belief, and the grounds of belief must be stated with sufficient particularity to enable the Court to judge whether it will be correct to rely on such belief.

In case of M/s Sukhwinder Pal Bipan Kumar and others v. State of Punjab and other it was held that under Order XIX, Rule 3 of the CPC it is  mandatory for the affiant to reveal the nature and source of his knowledge and information with sufficient particulars. It was held that, where allegations are not affirmed, such cannot be regarded as supported by an affidavit as required by law.

 MODE OF ATTESTATION OF AN AFFIDAVIT:

The Court, Magistrate, or other officer as aforesaid, before whom an affidavit is made, shall certify at the foot of the affidavit the fact of the making of such affidavit before him, and shall enter the date and subscribe his signature to such certificate, and shall, for the purpose of identification, mark, date, and initial every exhibit referred to in the affidavit. The name of the verifying authority must be signed in full, and care must be taken that his proper designation as a Civil Court or Magistrate is added.

 CONTENTS OF AN AFFIDAVIT:

 It is necessary that the affidavit containing any statement of facts be divided into paragraphs that are numbered. It is preferred that, each paragraph shall refer to a distinct portion of the subject.

 It is mandatory that, every person, making any affidavit, be described in such manner as will help to identify him clearly, by stating his full name, his father’s name, his profession or trade, and the place of his residence. It is also necessary that those statement that the affiant makes in the affidavit must be affirmed by the words ‘I affirm’.

When the affiant is not in knowledge of a fact himself but, he is informed about such fact by others, he must use the words ‘I am informed’, and, should add ‘and verily believe it to be true’. When the statement rests on facts disclosed in documents, or copies of documents procured from any Court of Justice or other source, the affiant shall mention the source from which they were procured, and state his information or belief as to the truth of the facts disclosed in such documents. A sample affidavit can be accessed here.

NECESSITY IF SCRUITINIZING AFFIDAVIT:

The Supreme Court in Amar Singh v. Union of India and Others has issued directions to the courts registry to carefully scrutinize all affidavits, petitions and applications and reject those which do not conform to the requirements of Order XIX of the Code of Civil Procedure and Order XI of the Supreme Court Rules. The Supreme Court has highlighted the importance of affidavits in this judgment and has discussed various judicial pronouncements on the aspect.

The court in the case of A. K. K. Nambiar v. Union of India and another, said that:

"The appellant filed an affidavit in support of the petition. Neither the petition nor the affidavit was verified. The affidavits which were filed in answer to the appellant's petition were also not verified. The reasons for verification of affidavits are to enable the Court to find out which facts can be said to be proved on the affidavit evidence of rival parties. Allegations may be true to knowledge or allegations may be true to information received from persons or allegations may be based on records. The importance of verification is to test the genuineness and authenticity of allegations and also to make the deponent responsible for allegations. In essence verification is required to enable the Court to find out as to whether it will be safe to act on such affidavit evidence. In the present case, the affidavits of all the parties suffer from the mischief of lack of proper verification with the result that the affidavits should not be admissible in evidence."

SIGNIFICANCE OF AFFIDAVIT IF REJECTED:

 Just because a Petition is dismissed does not necessarily mean that the Affidavit contained false evidence. Dismissal means that the petition is not maintainable for whatever reasons which may or may not include perjury. An affidavit (in any matter) submitted to a Court of law, simply means that the Deponent has made the statements contained in his Affidavit, on oath before a person competent to receive such oaths. The statements in the Affidavit would form the basis for the Deponent claiming whatever relief it is that he claims. The Deponent is obliged to state the truth in any Affidavit submitted to a competent authority, and he can be prosecuted for Perjury i.e. giving false evidence on oath, if it is shown that his Affidavit contained any falsehoods. A benchmark judgment of the Supreme Court in this context is:

'Re: Suo Moto proceedings against Mr. R. Karuppan, Advocate, in the year 2004. The Zahira Shaikh case is another example, however the reasoning given re: Evils of Perjury in the Karuppan case is more specific for citation purposes.

 Much earlier former SC Chief Justice Krishna Iyer had also directed that courts must be pro-active and take strict penal action in every case where litigants resort to perjury. The judgment is:- T. Arivandandam vs. T.V. Satyapal and Another, (1977) 4 SCC 467.

Most judges especially in lower courts are overburdened and would not be inclined to take suo moto notice of Perjury. It is therefore necessary for the aggrieved party to file an Application u/Sec.340 Cr.PC. within the main matter, praying for the Court to sanction and initiate action against the opponent for offences of Perjury (which comes under Chap. X of IPC). It will be necessary to show prima facie that the offence was committed with mens rea i.e. with malafide intent / with intent to gain by such malafides. If the Court is satisfied, it will issue a Show Cause notice to the accused Party, or in the case of higher courts, may direct the Registry to file the complaint of Perjury at the concerned court. However, even when this happens, conviction rates are usually low because the trial is statutorily conducted by the Public Prosecutor who is mostly incompetent and indifferent apart from having many other cases to prosecute. The aggrieved party, if he wants justice, should therefore file an Application u/S.302 Cr.PC. to be heard in this matter whenever it comes up at the magistrates court.

CAN WOMEN IS SAID TO COMMIT A RAPE ....????

DATE: 21.03.2016


CAN WOMEN IS SAID TO COMMIT A RAPE....????

The Answer of the question is YES.

A not only Man can commit a Rape but also Women can commit a Rape but can she will be punished for the offence of Rape....???

No. So, Here it comes the fact that i came across while reading... related to the equality... under Article 14 of the Constitution.

I came across this article herein are the facts of the Case:- 

A women is booked for 'raping' son's pal, wherein it is stated that she spiked the minor boy's drink and then raped him (oh! sorry rape is a wrong word here. She forced the minor boy to keep physical relationship, as definition of rape does not include forceful intercourse with male). She also made a video recording of the incident and used to threaten the minor with the video recording who was just 16 years of age. It is also stated that she also threatened the boy with filing of false rape complaint against him.

due to ordeal the boy lost interest in studies and was unable to mix up in the family. His health deteriorated his behavior changed. The news article states that the probe is currently on information of arrest of the accused women is mentioned.

A few questions that come in my mind are:-

1. The identity of the women is not disclosed by media ? If it were a man, his identity including photo would be all over the media.

2. Why there is no information of arrest of women till now ? If this was a man he would have been immediately arrested and people would have been on the streets. He could even have been lynched as happened in the recent past in other parts of India.

This brings us to two conclusions:-

1. We live in the society where male disposibility is the norm. No one is concerned about the ordeal faced by this minor boy in his formative years. The incident is not even termed as rape. It is classified as forced physical relationship thereby undermining it.

2. Why is the perpetrator, who is women in this case, treated with kid gloves and not being subjected to 'EQUAL' treatment. Does Equality only means getting more benefits..?

Let us analysed the Indian Law in this aspect. Forced Sexual intercourse with a minor comes under 2 statutes, 

Indian Penal Code (I.P.C.)

and 

Protection of Children s from Sexual Offences Act. (POCSO).

     

Section 375 of the Indian Penal Code which defined the Rape states:-

A man is said to commit "rape" if he:- 

• Penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

• Inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

• Manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any of body of such woman or makes her to do so with him or any other person; or

• Applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,

• Under the circumstances falling under any of the following seven descriptions: First.—Against her will.
 Secondly.—Without her consent.
 Thirdly.—With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
 Fourthly.—With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
 Fifthly.—With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome Substance, she is unable to understand the nature and consequences of that to which she gives consent.
 Sixthly.—With or without her consent, when she is under eighteen years of age.
 Seventhly.—When she is unable to communicate consent.

The starting of the definition is “A man is said to commit “rape” if he”, therefore only a man can commit a rape. A woman cannot commit such an act as per the IPC. Therefore the acts committed, such as above do not find a place here, hence the woman clearly cannot be tried for rape, which is precisely what she did. Therefore this brings us to a point of ‘Equality’; Article 14 of the Constitution states that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth”. Does the minor boy have the same level of protection? Is it equality? Is the law gender neutral? You decide!

Now let us analyse the provisions of POCSO. The statute defines 2 types of sexual assaults on minors: a) Penetrative Sexual Assault, and b) Non Penetrative Sexual Assault. Penetrative Sexual Assault is defined under section 3 of the Act:

 A person is said to commit “penetrative sexual assault” if— (a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or (b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or (c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or (d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person If we analyse the definition of penetrative sexual assault, it can “ONLY” be committed by a man, a woman cannot commit such an act (every sub-clause starts with a ‘He’). Therefore in this instant case where the minor boy was sexually assaulted by this woman, it is not defined under penetrative sexual assault. Why; again the definition is ‘NOT’ gender neutral and the minor is not ‘EQUALLY’ protected. Then, what crime is said to be committed by this woman? It is ‘non-penetrative sexual assault’. Yes that is correct it is a minor offense. Let us read the definition of sexual assault as per section 7: Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault. So in essence, such a gruesome act comes under the definition of non-penetrative sexual assault. Now what is the difference, would be the next question. The difference friends is the punishment. The punishment for penetrative sexual assault is minimum 7 years extendable to imprisonment for life (Section 4). And the punishment for non-penetrative sexual assault is minimum 3 years extendable to 5 years. So in simple terms we draft our laws in a gender biased manner so that criminal women are treated with kid gloves and let off without any repercussions. Further, crimes committed by them are not even defined as crimes (rape by women does not come under the IPC). No wonder serious crimes by women have increased exponentially. The 2000 American Association of University Women (AAUW) data indicate that 57.2 percent of all students report a male offender and 42.4 percent a female offender with the Cameron et al. study reporting nearly identical proportions as the 2000 AAUW data (57 percent male offenders vs. 43 percent female offenders).

If the incidences of female sexual abusers are as high as 63% then why are the rape laws not gender neutral ? Is 'EQUALITY' not a doctrine enshrined by our constitution..?

Let Us all Stand for a Cause.

Published in Others:-

EVIDENTIARY VALUE OF FIR

DATE:- 17.03.2016

EVIDENTIARY VALUE OF FIR (31st Update)

The police can make three different kinds of statements. The first kind of statement is one which can be recorded as an FIR, the second kind of statement is one which can be recorded by the police during the investigation, and third kind of statement is any kind of statement which would not fall under any of the two categories mentioned above. A substantive evidence is evidence of facts stated, however, these statements which are made to the police cannot be substantive evidence statements. The reason behind this is that it is not tested by cross examination, it is not given in oath and it is not provided during the trial.[1] If the human being making such a statement to the police officer comes to the court during trial and makes the statement corroboration may take place as per the evidence Act.[2]

The FIR has certain evidentiary value, and this value is perhaps much greater than the evidentiary value which would exist with any statement which is made to any police officer during any point of time of the investigation. FIR is definitely not substantive, but, it cannot be doubted that it is an important piece of evidence and is an essential tool to corroborate the informant under §157 of the Indian Evidence Act. Alternatively, it may also be used to contradict him under §145 of the same Act. This is however, only possible if the informant is the witness when the trial is taking place.[3] 

The Indian Evidence Act implies that when there is a need for corroboration of testimonies of the witness (any kind of witness) the section that gets activated is §157 which says that for there to be corroboration of any form the earlier statement must relate to the same fact or the same time, it must also be before an authority which has the legal competence to conduct investigation of the particular fact which is being discussed, and needs to be proven in the court.[4]  Another section which comes into play is §145 of the Indian Evidence Act which states that a witness can be cross examined w.r.t statements which have been made by the witness and he must have either written the statement himself or it must have been written down by somebody else. This is the case for contradiction of the witness and therefore writing is important in this case.[5] To prove that their case is credible and believable the prosecution must show that there was proper recording of the FIR. This can help to stop the court from drawing an inference which is adverse. The accused should try to cross examine the person who made the FIR (the informant) and show that it is not credible or believable and this is the job of a good defense lawyer. The FIR is a kind of evidence whose contradictory value is only for the person who has lodged the FIR (the informant) and it cannot be used to contradict the statement made by any other person, witness[6]. It necessarily has to be the person who is informing the police about the crime at the first instance.[7] The accused can utilize the FIR to make the person lodging the FIR look less credible and therefore make the value of the FIR as a piece of evidence goes down.[8]. However this is only applicable to the informant and not to any other person. Even if the informant is  contradicted and the FIR loses some credibility the other witness are enough for conviction of the accused, that is, the value of the FIR is not that substantial.[9] Sometimes the maker of the FIR is the accused himself. In this case, it cannot be used as any kind of evidence against him. It has been held by the Supreme Court of India that the FIR is not a substantive piece of evidence and the corroboration of the maker under Section 161 of the Indian Evidence Act or Contradiction under the same act is the only thing possible. The court went on to hold that if the maker is also the accused even this is not possible. The Supreme Court, on another occasion in the case of Ram Chander v. State of Haryana[10], has held that the contents of the FIR can only be used for contradiction and corroboration of the maker and not any other eye witness. In general, an FIR’s content is solely for the purpose of contradiction and corroborations. However, certain situations may arise when the contents of an FIR can be used for other purposes. For instance, when essential facts are omitted which end up affecting the probability of the case (relevant under §11 of IEA) in judging whether or not the prosecution case is true.[11] If certain information report has been suppressed then the prosecution must explain and be responsible for suppression of this kind. And if the court of law gets to know this then they can definitely be led to assume that there is certain prejudice to the accused and §114 plays out.[12] The question that is often asked is why the FIR can’t be used for contradiction or corroboration of the accused. This is because the accused can’t be up as a prosecution witness and it is very rare that he would want to be up as a defense witness. The second question that arises is if the FIR is of a confessional nature, then is cannot be proved against him because of §25 of the Indian Evidence Act. This section says that any kind of statement made to a police officer cannot be used against the accused person. However, there are certain situations in which the FIR made by the accused can become relevant. First, when the FIR lodged by him could be relevant under the 8th section of the IE Act as his conduct. Second, If the FIR is non confessional than it can be admissible as admission[13] Third, if there is discovery of fact, it can be used against him.[14] If the informant ends up dying then the FIR can definitely be used as substantive evidence. But, the condition is that it must in some way relate to the death of informant or somehow related to some form of evidence having a link to the death of the informant. This is derived from §32 of the Indian Evidence Act[15]  It was held in the case of Kapoor Singh v. Emperorthat the FIR which has been lodged by a deceased  person can be admissible as evidence if relating to circumstances surrounding his death. [16] The courts of this land have also said that an FIR can be a dying declaration if the informant dies of his injuries after lodging the same. [17] This is important to note because had he died of reasons other than the injuries (for example, a natural death) then it cannot be considered a dying declaration.[18] However, when the FIR clearly implicates the person who is the accused and contains the details of the incident this is not considered to be a dying declaration[19] It is also essential that there be certainty around the death of the individual and not just disappearance. An FIR by a deceased is not substantial and shouldn’t have any bearing on the case if the contents aren’t proved. It has to be corroborated and proved for there to be any value of the same in the case.[20] If the informant died during the trial, and the prosecution starts to treat the FIR as a dying declaration without ascertaining the questions as to his death, then is cannot be a dying declaration. This was iterated in Sukhar v. State of U.P.[21]

Following are some Cases:-

• In the case of Maniram v. State of MP.[22], the dying declaration was recorded but the doctor did not attest to the consciousness of the deceased. Since the thumb signature of the deceased was also not taken there was doubt on the credibility of this FIR.
•  K.N. Chandrasekharan Pillai, R.V. Kelkar’s Criminal Procedure,( 5th ed 2001),119

• Hasib v. State of Bihar, (1972) 4 SCC 773
• Nisar Ali v. State of U.P., 1957 CrLJ 550 SC
•  Damodar Prasad v. State of Maharashtra ,AIR 1972 SC 622
•  Shanker v. State of U.P., AIR 1975 SC 757]
• Dharma Rama Bhagare v. The State of Maharashtra, (1973) 1 SCC 537.
• In this case, the contents of the FIR were at variance with the testimony of other witnesses in Court. The submission of the appellant before the Supreme Court was that because of this the prosecution evidence must be considered unreliable and hence, cannot form a safe basis for holding the appellant guilty.

[1] (1981) 3 SCC 191.[2] Ram Kumar Pandey v/s State of M.P ,(1975)3SCC 815[3] (A.I.R. 1967 Cal. 478).[4] Nisar Ali v. State of U.P. 1957 550 SC[5] Agnou Naagesia v. State of Bihar,1966 CrLJ 100 SC][6] Damodar Prasad v. State of U.P,. AIR 1975 SC 757[7] Kapoor Singh v. Emperor ,(AIR 1930 Lahore 450)[8] Munna Raja v. State of M.P., (AIR 1976 SC 2199) [9] Umrao v. State of M.P., AIR 1961 MP 45[10] Pancham Yadawa v. State of U.P., 1994 CrLJ 848 (All)[11] E.J.Goud & others v. State of A.P., 2004 (2) ALD (CRL)241 (AP)[12] Sukhar v. State of U.P., (1999) 9 SCC 507[22] Maniram v. State of M.P., AIR 1994 SC 840