D.K. Basu,vs State Of West Bengal
The following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures :
(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name togs with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest a such memo shall be attested by atleast one witness. who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.
(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon he is put under arrest or is detained.
(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of he next friend of the person who has been informed of the arrest an the names and particulars of the police officials in whose custody the arrestee is. (7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned Stare or Union Territory. Director, Health Services should prepare such a penal for all Tehsils and Districts as well. (9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the illaga Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. (11) A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.
Failure to comply with the requirements hereinabove mentioned shall apart from rendering the concerned official liable for departmental action, also render his liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter.
Arnesh Kumar vs. State of Bihar and Ors.
The Supreme Court of India in its recent judgment of Arnesh Kumar vs. State of Bihar and Ors. ruled on the principles for making arrest and detention under the Code of Criminal Procedure, 1973 . The Supreme Court, in its Ruling, has issued certain directions to be followed by the police authorities and the Magistrates while making arrest and/or authorizing detention of an accused.
The Supreme Court held that no arrest should be made only because the offence is non-bailable and cognizable. Neither should arrest be made in a routine, casual and cavalier manner or on a mere allegation of commission of an offence made against a person. Arrest should only be made after reasonable satisfaction reached after due investigation as to the genuineness of the allegation. Dealing with Section 41 (1) of the Cr.P.C., which provides for conditions precedent to making arrest, the Supreme Court emphasized that for making arrest, the police must be satisfied that all the conditions set out in the provision are met viz.,:
Arrest is necessary:
- to prevent such person from committing any further offence; or
- for proper investigation of the case; or
- to prevent destruction or tampering with evidence by the accused; or
- to prevent such person from influencing the witnesses; or
- to ensure presence of the accused in the court.
Police must, in any case, record reasons for making, or not making the arrest in a particular case.
The Supreme Court has issued the following directions to all the State Governments:-
- To instruct the police officers to not mechanically arrest the accused under Section 498 A of I.P.C. without satisfying themselves that the conditions of arrest are met;
- All police officers to be provided with the check-list of conditions precedent prescribed under Section 41 of Cr.P.C. This checklist is to be duly filed and forwarded to the Magistrate while producing the accused for further detention;
- The Magistrate shall then peruse the report provided by the police officer and only after recording its satisfaction in writing, may authorize detention;
- The decision to not arrest the accused should be forwarded to the Magistrate within two weeks from the date of institution of the case. The period may be extended by the Superintendent of police for reasons to be recorded in writing;
- The notice of appearance in terms of Section 41 A Cr.P.C. should be served on the accused within two weeks from the date of institution of the case. The same may be extended by the Superintendent of police for reasons to be recorded in writing.
- Failure to comply with the directives set out above may render police officers/Magistrates liable for departmental action and proceedings for contempt of court to be instituted before the High Court having territorial jurisdiction.
Facts of the Case:
Smt. Taruna Batra got married to Shri Amit Batra on 14th April 2000 and they had a male child born to them in the 27th November 2001. As per the prevailing practice, after their marriage, Smt. Taruna Batra shifted into the home of Shri Amit Batra along with her in-laws Shri S.R. Batra and Smt. Dhanwanti Batra. The House is though a two floor building registered in the name of Smt. Dhanwanti Batra, but they all resided on the ground floor of property situated at No. B-135 of Ashok Vihar in Phase I at Delhi-110052.
In early 2002, few months after their son was born, relations between the Smt. Taruna and Shri Amit Batra started deteriorating. According to Smt. Taruna, Shri Amit Batra treated her cruelly. This made them shift to the second floor of the said property, which became Smt. Taruna’s matrimonial home. However, their shifting to the second floor did not improve their relations, rather on the contrary, their relations deteriorated to such an extent that Shri Amit Batra filed a divorce petition. To this Smt. Taruna registered an FIR against Shri Amit Batra and other family members under the provisions of Sections 406/498A/506 and 34 of the Indian Penal Code (alleged to be counterblast to the Divorce petition). On the basis of this complaint Shri Amit Batra and his parents were arrested in January 2003. The happening of these events made it difficult for Smt. Taruna to stay at her matrimonial home and therefore she shifted to her parents’ residence.
Later, when she tried to enter the matrimonial home, she was unable to as she found that the main entrance was locked. This instigated the first court case by Smt. Taruna Batra (Petitioner) seeking mandatory injunction to open the main entrance to enable her to reside in the matrimonial home, that is, the second floor of said property. To which the Respondents (Shri Amit Batra and his Parents) contented that Shri Amit Batra had purchased some property in Ghaziabad and had shifted there which was the matrimonial home of the Petitioner.
Supreme Court Judgement
the apex court observed that unlike in England where the rights of spouses to the matrimonial home was governed by the Matrimonial Homes Act, 1967, no such right exists in India. The Court held that the house belonged to the mother–in-law of the respondent and hence the respondent cannot claim right to live in the said house. The court also held that the house could not be said to be a ‘shared household’ within the meaning of Section 2(s) of the Protection of Women from Domestic Violence Act, 2005 as it neither belonged to the husband nor was it joint family property. Accordingly, the appeal was allowed.
It laid down, that only in three instance can the wife claim the husband’s house as the matrimonial home, they being; if the property was in the name of the husband; or if the husband was paying rent of the property; or if the husband was a member of a joint family and the property being undivided.
The court also went on to discuss the legal obligation of the husband to provide residence to the wife. The fact that Amit Batra applied for a divorce from the Petitioner (although the divorce petition is now said to have been dismissed in default) does not take away his obligation.
Consequently, Amit Batra shifting from the second floor of the said property to Ghaziabad would not ipso facto shift the Petitioner’s matrimonial home to Ghaziabad. Hence according to the Supreme Court in the present case there was no obligation of the respondent to let the petitioner reside in the house that does not belong to their son.
No relief for those with “unclean hands”: SC
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 5239 of 2002
Decided On: 03.12.2009
Appellants: Dalip Singh
Respondent: State of U.P. and Ors.
Hon’ble Judges:G.S. Singhvi and Asok Kumar Ganguly, JJ.
1. For many centuries, Indian society cherished two basic values of life i.e.,
‘Satya’ (truth) and ‘Ahimsa’ (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral Dart of justice delivery system which was in vogue in pre-independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-independence period has seen drastic changes in our value system.
The materialism has over-shadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do no hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings. In last 40 years, a new creed of litigants has cropped up.
Those who belong to this creed do not have any respect for truth.
They shamelessly resort to falsehood and unethical means for achieving their goals.
In order to meet the challenge posed by this new creed of litigants, the courts have,
from time to time, evolved new rules and it is now well established that a litigant,
who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.”