Saturday, November 23, 2013
Beenu Rawat v.UOI-PIL–Human Rights Violations-Police Atrocities on AAP volunteers.
ORIGINAL CIVIL WRIT JURISDICTION
WRIT PETITION (CIVIL) NO.446 OF 2013
BEENU RAWAT & ORS ... PETITIONERS
UNION OF INDIA & ORS. ... RESPONDENTS
J U D G M E N T
SHIVA KIRTI SINGH,J.
The petitioners claim to be young volunteers of ‘Aam Aadmi Party’ (AAP) engaged in selfless work for the improvement of democratic institutions of this country and also fight for justice. They have approached this Court under Article 32 of the Constitution of India seeking the following reliefs:
(a) Issue a writ of mandamus or any other writ or direction to order an independent investigation by a Special Investigation Team into the abovementioned incident of police atrocities which took place on 19.06.2013 at Gokul Puri Police Station against the petitioners and if such allegations are found correct, pass further consequential and necessary directions, including initiation of criminal prosecution as well as disciplinary proceedings against the police officers of the Delhi Police found involved and also against those senior police officers at whose behest this vindictive act of atrocity was done;
(b) issue a writ of mandamus or any other writ or direction to award monetary compensation to the petitioners for their illegal arrest and torture by the Delhi Police which has resulted in gross violation of their fundamental rights to live with dignity as guaranteed under Article 21 of the Constitution of India;
(c) pass such other and further order/s as this Hon’ble Court may deem fit and proper on the facts and in the circumstances of the case.”
The incident of 19.06.2013 at Gokal Puri Police Station in Delhi which is mentioned in prayer no. (a) noted above, occurred in course of a protest by the volunteers of (AAP) at Gokal Puri Police Station since morning hours. The protestors wanted registration of an FIR in respect of an alleged occurrence of rape of a poor woman by two persons in Bhagirathi Vihar.
Allegedly the police was reluctant to register the FIR and hence a number of volunteers including the petitioners joined the protest.The FIR was ultimately registered around 2.30 p.m. and the protestors were informed of the same. A demand was made for a copy of the FIR. According to respondents the copy could not be given to others because of the nature of the alleged crime which requires that name of the victim be not disclosed. According to petitioners the copy of the FIR was not given even to victim’s husband. It is the case of the petitioners that when they were planning to wind up the protest, they were suddenly rounded up by a large number of policemen and mercilessly beaten by them. The manner of chase and beating by lathi gave an impression to the petitioners that the police action was not to disperse the petitioners but to teach them a lesson. As per allegations, the police also used abusive language and told the protestors that they will be taught a lesson so that they do not indulge in such kind of protests in future. Initially, police arrested seventeen volunteers but three of them were let off as they were minor girls. Subsequently, petitioner Nos. 2 and 10 were also taken into custody and allegedly beaten in police custody although they claimed that they had come to the police station later only to enquire about the incident. The nineteen petitioners claim to have sustained serious injuries on head, back, arm and legs. One of them (petitioner no.17) has sustained fracture in lower ulna but he managed to run away.
According to the case of the petitioners the police had indulged in unlawful use of force and inflicted injuries before arrest and also during custody, leading to injuries to the petitioners; the arrest was unlawful which is sought to be justified by fabricated evidence for rioting etc.; by breaking window glasses and tearing of some papers in the police station.
According to the petitioners a serious case was attempted to be made out through subsequent statement of one ASI of police, Ms. Sushila. There is no such incident mentioned in the FIR bearing no. 251/2013 dated 19.06.2013 registered at P.S. Gokul Puri and even before the learned Metropolitan Magistrate she had alleged that only her scarf (dupatta) was pulled by protestors. The petitioners have claimed that the Commissioner of police, Delhi, has made an incorrect statement that Delhi police has videos of protestors vandalizing the police station. To decide the case it is not necessary for this Court to delve deep into allegations made by the petitioners or those against them by the police which has lodged a criminal case of rioting etc. as noted above. This is because there is no prayer made in this writ petition seeking any kind of intervention in the investigation of police case registered against the petitioners. Even the first prayer made by the petitioners is to order Since a claim was made that unlawful acts of the protestors had been recorded through videography which was available with the respondents, learned Additional Solicitor General Sidharth Luthra made arrangements for
screening of the video tape for our perusal. The video footage shown to us revealed that none of the protestors were carrying any arms or even brickbats in course of the protest. The initial part of the incident discloses lack of any bitterness and almost a friendly atmosphere. Thereafter, when copy of the FIR was shown from a distance but not made available to any one, the slogans increased and the tone could be perceived by some persons as irritating. Barring some protestors rest were pushed out of the gate of police station without any resistance or any untoward incident. The crowd outside the gate apparently did not disperse. The last part of the video footage fleetingly shows use of lathis by the police men upon the protestors. Thereafter, the recording was stopped and appears to have been resumed after lapse of sometime to show some broken glass panes, brickbats in very limited number and some broken spectacles lying on the ground, a grim reminder of use of force.
Learned senior counsel for the petitioners Mr. Shanti Bhushan has relied upon some past incidents,specially one relating to unfortunate death of a police constable in the course of demonstration against the gang rape to a paramedical student “Damini” in December, 2012, followed by another unfortunate case of a five years’ old victim “Gudiya” which led to protest by members of AAP and in course of the same petitioner no.1 was slapped by an Assistant Commissioner of Police of Delhi force which led to suspension of the said ACP. He also referred to some allegations against the erstwhile Delhi Police commissioner. On the basis of those incidents and allegation it was submitted that Delhi police cannot be relied for fair investigation in a case of present nature involving members of ‘AAP’ and therefore the Court should order for fair investigation by an independent agency.
On the other hand, Mr. Luthra submitted that police itself acted fairly and did not submit charge-sheet against any of the accused persons arrested for causing death of constable Subhash Tomar.He pointed out that the concerned ACP who had slapped petitioner No.1 was placed under suspension. According to him the allegations that the erstwhile Delhi Police Commissioner was close to a white collared criminal, has no substance and that matter cannot have any effect upon the investigation of the present incident.
In our considered view,it is not necessary to examine the effect of earlier incidents for the purpose of deciding the present writ petition. There is no dispute that petitioners have received injuries but according to counter affidavit,these were due to some of the protestors falling down on the vehicles parked along the walls of the compound and there was no lathi charge or any act of beating of the protestors.Such statement in paragraph 5 of the counter affidavit cannot be accepted in view of the last part of the video footage already noted earlier. A glimpse of action taken by the police is available in paragraph 8 of the counter affidavit wherein it is claimed that Police resorted to minimal use of force which was only enough to disperse a large violent crowd and safeguard the police personnel. No part of the video footage shows the crowd to be very large or indulging in any physical violence. Even if this version in the counter affidavit is accepted in part, one is left to wonder why the petitioners who had injuries on their bodies had to be arrested instead of allowing them to disperse with the crowd which was allegedly large and violent.It is also intriguing as to why the FIR bearing No.251/13 for rioting etc.was registered at 5.35 p.m. after eighteen persons were apprehended at 3.30 p.m.and not before their arrest if they had vandalized the 18 police station and caused damage to the public property.
In the light of the aforesaid discussions and the fact that the video footage recorded at the instance of the police does not show acts of rioting or any arms or brickbats in the hands of the protestors and the recording was stopped as soon as police started using lathis upon the protestor, we are left with no option but to hold, at least prima facie, that in the incident in question, peaceful protestors were subjected to beating by lathis etc. by the police force which included policemen from the concerned police station as well as force called from adjoining police station, P.S. Jyoti Nagar and P.S. Bhajanpura.The counter version of the respondents that the petitioners indulged in rioting and damaged public property is neither supported by photographs contained in Annexure R.2 (colly) nor by the video footage shows to this Court. In that view of the matter, the whole incident of 19.06.2013 at Gokul Puri Police Station, District North-East, Delhi requires to be investigated/enquired by an independent agency or by a Special Investigation Team. Considering the possibility of our arriving at this opinion we had requested learned counsel for the rival parties to provide us proposals containing names of some persons who could be entrusted with conducting investigation in the said incident. On behalf of the petitioners two names have been proposed which are as follows:
1. Sh. I.C.Dwivedi, IPS (RTD.),
Former Director General of Police, Uttar Pradesh,
Address: 9/26, Vishal Khand, Gomati Nagar, Lucknow.
2. Sh. N.Dilip Kumar, IPS (Retired)Special Commissioner Delhi Police also worked as Joint Commissioner of police (Vigilance) Delhi Police Worked in CBI for seven years Address: 16 A, Rajpura Road, Civil Lines, Delhi.
On the other hand, on behalf of the respondents only a letter addressed to Sh. Sidharth Luthra, leaned Additional Solicitor General along with copy of an order dated 31.10.2013 issued from the office of Commissioner of Police, Delhi, has been submitted to us to show that since during the course of hearing of this matter this Court had expressed the need for an impartial or fair investigation by some other competent setup, the Commissioner of Police Delhi has approved for formation of a Special Investigation Team headed by Sh. Bhisham Singh DCP/Crime to work under close supervision of Joint Commissioner of Police, Crime,Delhi.
So far as investigation of the FIR No. 251/13 is concerned, in our considered view it has rightly been transferred from police station Gokal Puri to a Special Investigation Team. However that cannot take care of the petitioners’ grievances that they have been subjected to excessive use of force and abuses etc. and that the force used was not at all justified and hence hey have been deprived of their fundamental right to a life of dignity. In view of our prima facie findings noted above, we are of the view that the grievances of the petitioners require investigation by an authority having statutory jurisdiction in such matters. If the State had itself suggested names of the persons who could constitute Special Investigation Team for the purpose, the matter would have been different and we could have considered to direct for formation of such a team by the State by selecting persons from the names suggested by the parties. But in the absence of such option, we direct the National Human Rights Commission to enquire into the complaint of the petitioners regarding violation of their fundamental rights particularly one under Article 21 of the Constitution of India. Such direction is granted in view of Section 12(A) of the Protection of Human Rights Act, 1993. Under that Act the definition of “Human Rights” is large enough to include rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution.
In that view of the matter, the writ petition is disposed of with the following directions:-
(1) Investigation of FIR No.251/13, as per order of the Commissioner of Police, Delhi, dated 31.10.2013 shall be carried out by Special Investigation Team and not by the police officials of P.S. Gokul Puri.
(2) The complaint of the petitioners as made before this Court regarding violation of their fundamental right to life and liberty shall be enquired into by the National Human Rights Commission expeditiously. For that purpose the Commission may use its statutory powers including those under Sections 13 and 14 of the Protection of Human Rights Act, 1993.
The Commission shall take further required steps and action as per law after concluding the enquiry/investigation so that persons(s) found guilty may be subjected to required penalty according to law, without undue delay.
The writ petition is allowed to the aforesaid extent.
J.(Shiva Kirti Singh)
November 19, 2013
Friday, November 1, 2013
Governing Law on Cheque Bounce Cases:
Governing Substantive Law:
- The Object of N.I Act is to create an atmosphere of faith and reliance in the banking system.
- Negotiable Instrument Act,1881[Special Law–Central Act]- Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988.
- Sections 138 to 142, Chapter XVII, was inserted in the Negotiable Instruments Act, 1881 by an Amending Act, Act 66 of 1988. These sections came into force w.e.f. 29.3.1989[amended after Dr Rajamannar report]
- Negotiable Instruments[Amendment and Miscellaneous Provisions Act, 2002] in short the Act. No 55 of 2002 , Lay down a kind of complete Code for trial of offences under the Negotiable Instruments Act, Whereby additional powers have been conferred upon the court to take cognizance even after expiry of the period of limitation by conferring on it a discretion to waive the period of one month.
- Section 143 gave to the court the power to try cases summarily; Section 144 provided for the mode of service of summons;
- Section 146 provided that the bank's slip would be prima facie evidence of certain facts.
- Section 147 made the offences under the Act compoundable.
- Punishment extended up to two years after the second amendment with effect from February 6, 2003:FINE upto twice the amount of cheque.
Governing Procedural Law:
· 1.Criminal Procedure Code,1973
· 2.Indian Evidence Act, 1872.
· 3.The Criminal Rules of Practice and Circular Orders,1990
[Check state rules/bye laws]
Other Important Allied Acts:
· 1.Indian Limitation, 1963.
· 2.General Clauses Act 1897.
· 3.Bankers' Books Evidence Act, 1891.
· 4.Bills of Exchange Act, 1882.
· 5.Information Technology Act, 2000.[Electronic Cheque]
· 6.Constitution of India [Rights of Accused]
Five Important Elements/Fundamental to be noted in 138 N.I Act :
1Drawing the cheque.
2.Presentation of the cheque to the Bank.
3.Returning the cheque unpaid by the drawee Bank.
4.Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount.
5.Failure of the drawer to make payment within 15 days of the receipt
The Following are the important stages in a Cheque Bounce case:
A Cheque bounce case normally takes an average of one year to complete the proceedings before trial court.After receiving bank slip of bouncing of cheque, statutory notice to be sent to accused within 30 days of cheque bounce.
1) Filing of complaint:
- Filing of complaints u/s 138 with M.M./A.M.M.
- M.M. verifies the complaints and marked the same to the concerned M.M. / A.M.M.[Fast Tract courts-N.I Act -e.g. Erramanzil Court or Hastinapuram Court, R.R Dist] for further proceedings.
- Accrual of cause of action : Accused not making payment within 15 days from date of receipt of notice, complainant entitled to file complaint within next month from date on which cause of action arose Clause (c) provisio of 138 N.I. Act. [date of bank intimation excluded in determining the limitation]
- The complainant needs to be present before the magistrate at the time of filing.
- The original documents need to be shown to the magistrate.[Bounced returned cheque,Bank Slip-Bank's slip prima facie evidence of certain facts.].
- If prima-facie a case is made out, the magistrate will post the matter for sworn statement.
Note:Option of summary trial or summons is available for N.I act case not IPC case,
STAGE TWO :
2) Sworn Statement:
At this stage, the complainant needs to enter the witness box and give further details regarding the case.
If the magistrate is satisfied that there is some substance in the case of the complainant, then he will issue a summons to the accused.
3) Appearance of Accused: On receipt of summons:
The accused need to appear in the court.[engage a counsel]
If he does not appear in the court, the court will issue an arrest warrant against him.
After appearance, the accused is supposed to take a bail from the court with or without sureties.
If the accused is unable to furnish a surety then he can deposit a cash security, instead of surety.This cash security is refundable to the accused after the conclusion of the case.
4) Recording of Plea:
- The court will ask the accused as to whether he has committed the offence or not.
- If the accused admits the guilt, the court will immediately give him punishment. [u/s 251 Cr.P.C]
- If he pleads innocence, the court will post the matter for evidence.
- The Complainant has to furnish his evidence, normally by way of affidavit; this is known as examination-in-chief.
- He needs to produce all documents in support of his case like bounced cheque, dishonor memo,copy of notice etc.
- Later complainant will be cross examined by the accused. If there are other witnesses in support of the complainant,then their evidence also has to be recorded.
6) Statement of the Accused:
After the Complainant side evidence is over,the court will put some questions to the accused regarding his guilt,An accused needs to give his version to the same.
After the Complainant side evidence is over,the court will put some questions to the accused regarding his guilt,An accused needs to give his version to the same.
STAGE SEVEN :
7) Defence Evidence:
After the Accused statement the court will give an opportunity to the accused to leave his evidence.
The accused can also produce documents in support of his case, as well as witnesses in his support.
Accused and his witnesses will be cross examined by the complainant. After this, the case is posted for arguments.
STAGE EIGHT :
- Both the Complainant and the accused will submit their arguments before the court.
- They can also furnish important judgments of High courts and Supreme Court in support of their case.
- Normally a written argument containing a gist of the oral argument is also furnished to the court.
STAGE NINE :
- After the arguments,case is posted for judgment.if the court finds that the accused has committed offence,
- He will be punished with fine or imprisonment.If he is innocent, the court will acquit him.If accused is convicted, then he needs to suspend his sentence, for a period of 30 days with in which time, he can file an appeal before the sessions court.
Note: Please go through all acts [Manuals] thoroughly &rules framed there under with latest case [citation of S.C]law for in debt understanding of the cheque bounce litigation.[deviations in some procedures /process may exists in different states,pl check out]
Re-construction& compilation by;
M Ravi Kumar B.A, LL.M,PGDHR
Advocate, A.P High Court ,HYDERABAD