14.3. Welfare of children necessitates, custody with third parties and parents denied custody – Parents sending children to Hostel/ Gurukulam/ Grand parents/ other relatives, for custody and education – The said association thus created between children and others give rise to expectations on the part of children – In the welfare of children, it would be undesirable to disappoint the children – Habeas Corpus Writ not issued. AIR 1914 PC 41.
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SURRENDER APPLICATIONS
15. In the Criminal procedure Code, there is no particular Section which deals with “Surrender Application” or the Court to which it should be moved. Even the established Text books do not have this separate topic. However, the Legal Softwares had helped the Author to read many cases at the click of the mouse of the Computer, and ultimately it is found that, “Surrender Application” and “Bail Application” should be filed simultaneously, thus it can be presumed that, The “Right to surrender” is implied in the Section 437 when the surrender takes place in the Magistrate Court and Section 439 when the Surrender takes place in the Sessions Court or High Court. Accordingly the Court to which surrendered is, if the Trial Court is Magistrate Court, the Surrender to be done in the Magistrate Court. However if the Sessions Court is the Trial Court, after surrender the Magistrate cannot grant Bail, thus accused/ suspect can directly surrender in the Sessions Court. [Bishnu Mallick Versus State of Orissa and Anr. 1993 Legal Eagle(Cri) 1076 : 1993 CrLJ 3817 (Orissa)].
16. When the Police arrest a person, it can be either for an Offence to be tried by a Competent Crl Court; or about Law and Order problems, in which case a Kalandra Proceedings under Sections 107 and 151 Criminal Procedure Code, 1973 may be instituted before an Executive Magistrate, and he should be produced there; or for both.
16.1. It is the point, in which the person who is drafting Criminal Petitions should be aware of. Some times, to avoid being arrested by the Police, a suspect may prefer to Surrender before the Local Illaqua Magistrate Court for the Police Station where the offence is committed.
17. If a person is fearing that, he is likely to be arrested by the Police in some crl cases, it will be very safe for him to surrender before the Magistrate Court, where the alleged crime had taken place. Otherwise, if the Police will arrest him directly, normally the arrest will not be recorded; and he will be tortured by each and every Policemen of that Police Station and neighbouring Stations, to find out two things: (1) There are many other “unsolved cases” with each and every policemen, how many of them had been committed by him; and (2) In the present crime, who are the other persons co-operated with him to commit the crime. After the said torture and Disclosure Statements unofficially recorded, being escorted by Mufti Policemen, he will be send to some Bus Stop, and relying upon the information given by some informer/ Mukhbir/ Khabari, he will be arrested and at the earliest produced in Illaqua Magistrate Court, where his Police Custody/ Remand will be prayed on a large number of cases.
18. The Author is Translator in the Panel of Hon’ble Supreme Court of India, SCLSC and NHRC. There the Trial Court Records are translated, and it can be found that, in each and every FIRs, suspect will be located in some Bus Stops, and immediately after arrest, even prior to he is produced in the Magistrate Court on next morning, he will reveal the places where he kept the murder weapon, etc. From those materials two things can be presumed: (1) In India, every suspect or accused disappear for a few days, immediately after the offence committed and Police do not have any link for those days about that man, the Investigating Officer do not speak even one word, what they did during those days to locate that man. (2) Indian Police Department is having a Satellite moving above the territories of India, and from each peculiar places, the suspects/ accused are located through some sources and the Police arrest them. (3) Indian Police do not torture any of the person who are arrested. After the said arrest, prior to they are produced in the Magistrate Court next day, they will disclose the place where they kept the murder weapon, clothes soaked in blood etc. In fact, Torture is not at all exercised upon arrested persons. Only prior to arrest they are tortured. (4) After obtaining Remand/ Police custody order from the Court next day, the arrested person will start revealing other co-accuseds name, and such persons also will be start located at peculiar nook and corner of the places.
19. The above peculiarity is common to Kerala Police, Rajasthan Police, Delhi Police and all other Polices, who prepare documents in Malayalam or Hindi (Author know only these two languages, thus about other State Polices ability of Arrest, he do not know). It is not that, this Magnificent abilities had been always beneficial to Policemen. In the year 1999, an Assistant Commissioner of Police (= Dy SP) of Delhi Police had to obtain premature retirement, on a fear that direction will be issued by Delhi High Court to terminate his services, in the “Couple Kissing Case” of Police Station Dwarka, New Delhi; where the Delhi Police had taken very bold stand to know the True time of arrest of the accused couple.
20. It is not that, Police Personnel are any criminals for this type of illegal arrest and torture. They are hard-working thus, majority of people in India is able to lead a peacefull life. Otherwise for the fact that, very less number of persons do get convicted by the Courts in India, the Common man may find it difficult to lead a peaceful life. Only when a few criminal minded Policemen want to trap decent people on Loop-holes of Law, the entire Force get bad names. That is the place where the Surrender Application commences.
21. From the following examples, it can be seen that, the Advocate should know how to “surrender” his client. These points noted from the News Report “Murder by hoods, 5 others in jail – Gang nabbed by Delhi University Girl’s rape confesses to killing transporter”, in the Times of India, New Delhi, Friday, 16-1-2009, page 6:
21.1. State of UP Vs. Netrapal & Others, PS Bisrakh, FIR dated Nov 2008: “Area Supdt of Police RK Verma said, “the family of the deceased mislead the Police. We will now go to Court and say there has been an error, and ask for these people to be released”. What happened is, in Nov 2008, Deceased person Ajai Kumar was returning to his village from his Noida Office in his Santro Car about 10 pm. “Now Amit and gang members have confessed to the robbery. They have revealed they shot Kumar after he resisted the robbery”. Prior to Amit Gang had confessed, the natural suspects, the rivals of Deceased Kumar was arrested. “After the incident, the Police arrested 5 of Kumar’s competitiors in the Transport business, who also had a criminal record… Meanwhile the 5 innocent men accused of the murder, Netrapal, Manoj, Vinod, Satish and another remain in Jail”.
21.2. The case of State of UP Vs. Shamshad, FIR dated 2005, of PS Ghaziabad: “But it is not unusual for the State Police to send innocents to jail. On 29-10-2008, the Noida police arrested a man who as per Ghaziabad police records had been “murdered”. One Mr. Shamshad of Ghaziabad had been in jail for 3 years for this man’s “murder”, who had actually been alive”.
21.3. In case of both the “innocents” in jail, the Police can get Judicial Custody = Undertrial Jail for the suspects, only after the suspects will disclose the “murder weapon” and other things. Only when there is a Prima Facie case against an Accused person, he will be send as an Undertrial prisoner to the jail, by the courts. When the dead man is returned, the disclosures given by Mr. Shamshad had been obtained in which manner is a bad day for Indian Courts.
21.4. The Police Personnel are also helpless. There is no machine which can decode the events recorded in suspects brain, like how the DVD player can de-code different Cinemas from different places of the single DVD in a few seconds. Thus the Advocates and Courts should be alert to ensure that, wrong people are not send to Police Custody, and even when send, should be with proper records. That is the role of “Surrender Applications”.
22. The benefit of Surrender Application is clearly known. It cannot help the accused to avoid the Police Custody or Police Torture. However, it may give an opportunity that, all the “unsolved” files will not be kept in his head to close those files. Some times even worse, the Complainant will not be able to torture him along with the Policemen. At least, he will not be killed in any Police Station and a false case of encounter will not be registered. It is because, he should be produced in the same Court from where his custody was obtained to question.
22.1. One of the Senior Advocate and reputed senior political leader, and many times Cabinet Minister, during his college days, surrendered to the Police, only from the Terrace of one Building of the Delhi University Campus, in an effort that, number of witnesses witnessing the arrest will persuade the Police to record his arrest. It was possible for him because of the Popularity he had. For an unknown criminal or suspect, the only place to surrender is Magistrate Court.
23. When a person moves an Application before a Court that, (1) he is an accused in a particular case and (2) He want to surrender, the Magistrate Court is bound to permit him to surrender and either send him to Jail as an Under Trial (Judicial Custody), or give his custody to the Police for investigation or give him Bail.
23.1. From the following judgement, it can be read that, prayer for surrender should not be rejected by asking report from Public Prosecutor:- The practice of some of the subordinate Magistrates not to permit an accused to surrender when they make such request and simply ask the public prosecutor to report is not proper. When an accused surrenders in court and makes an application stating that he is wanted in the crime, his prayer should be accepted. The practice of postponing surrender application is not fair and I must record my strong disapproval of the same. Things may, however, stand differently if the surrender application does not specifically mention that the person surrendering is wanted in a case or that the police may be asked to report if he is wanted at all. Para 10 of the Judgement by Hon’ble Mr. Justice Virendra Saran, in the case Divendra Singh Negi Versus State of U.P.& Anr., 1993 JIC 434 (Allahabad).
24. A person who is in the Hospital Bed, as in-patient also can surrender before the Court. The Court is bound to accept the Prayer, and after taking him into custody, the Police should be send to the Hospital and a Medical Board (at some other hospital) should be conducted, to decide whether he is really ill. This is the ratio in the case: Rahmat Jahan Versus State of U.P. 1999 (1) JIC 214 (Allahabad).
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Specimen 1 about Surrender Application:-
IN THE Court OF JUDICIAL MAGISTRATE FIRST CLASS, PLACE:….
In re: State Vs. Mr.aaa & Ors.
FIR No….. of year.
Under Sections ….. of IPC
APPLICATION FOR SURRENDER Under Section 437 of the Cr PC
BY ONE OF THE SUSPECTS Mr.ggg
Para 1. The Applicant is Mr.ggg aged .. yrs, son of Mr.hhh, resident of ….
Para 2. The Applicant have information that, Mr.aaa, the accused in the above stated FIR had given a Disclosure Statement involving the name of the Applicant. In reality, he do not know the accused person nor he had been involved in the crime.
Para 3. The Applicant had taken steps to apply for anticipatory Bail under section 438 of the Criminal Procedure Code, 1973. However, he do not want to remain Underground/ Absconder, in his search for justice.
Para 4. The Applicant want to Surrender before this Hon’ble Court, related to the FIR stated above.
PRAYER:-
In the light of above submissions, the Applicant hereby prays for the permission of this Hon’ble Court to Surrender before this Hon’ble Court. For this act of kindness the Applicant for ever shall duty bound pray.
Place:… dated…
Mr.ggg, Applicant
Through
Advocate.
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Specimen 2 of Surrender Application (This Application was not moved by one of the clients of the Author, and when he obtained Bail in the Kalandra case, he was picked up by the Cyber Crime Cell of Delhi Police and tortured a lot):-
PARA 2 AND 3 only needs to be re-written:
Para 2. Yesterday at 7 pm, the Police Personnel of the Police Station … had arrested the Applicant at the place…. Due to the good luck of the Applicant, some Human rights Activists had suddenly appeared there, and enquired the matter and compelled the Policemen to record the Arrest.
Para 3. The incidents which led to the arrest of the Applicant is: STATE HERE ALL THE INCIDENTS….
Para 4. In fact, the applicant is arrested in an incident which can be interpreted as a cognizable offence. Thus, the Applicant was thinking that, he will be brought before this Hon’ble Court. However, today at 2 pm, he was taken to the Court of Hon’ble Special Executive Magistrate Court at the place… and only a Kalandra for Maintenance of Law and order, under Sections 107/151 Cr PC is filed.
Para 5. The Applicant is fearing that, after he will obtain Bail in the kalandra case, the Police will again arrest him illegally and torture him. Under such circumstances, the present Surrender Application is filed.
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25. Bail Applications Specimen are given separately in this Book. Bail Bond and surety bond is agailable for paise 50 in any Court campus. Behind that an Affidavit will have to be written by the Surety, Specimen of that Affidavit is given as follows:-
AFFIDAVIT U/Ss 441 and 441A of Cr PC
Para 1. The Surety is Mr.aaa, aged… yrs, son of Mr.bbb, resident of….
Para 2. The Surety is related to the Accused in the following manner:- Father/ Mother/ Brother/ sister/ Son/ Daughter/ Friend/ Neighbour etc.
Para 3. The Surety is having complete control over the accused, and in case he is released on Bail, the surety will be able to produce him for interrogation before the Police and will bring him to stand trial when the Charge Sheet is filed.
Para 4. The Surety is possessing house hold goods for Rs….. which is sufficient to stand as surety in the Bail Order passed to release this accused person.
Para 5. The Surety have the Honour to submit that, other than the present Accused, he is not standing surety for any other accused in this case or any other cases.
Place…. Dated ….
Mr.aaa, Surety.
VERIFICATION
Mr.aaa, aged… yrs, son of Mr.bbb, resident of…., who is the Surety begs to Verify that, he had read out the above affidavit/ he was read aloud the contents of above affidavit; which are understood by him to be true and correct to his personal knowledge and belief and he believes them to be true and correct.
Place…. Dated ….
Mr.aaa, Surety.
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PROTEST PETITION
26. When a person want to prosecute the another, as explained earlier, the first option for him is to give oral or written information to the Local Police, that is under 154 Cr PC. If not actioned by Local Police, the Supdt of Police to be given written information, u/s 154(3). Even thereafter if the FIR is not registered, he can file Complaint in the Judicial Magistrate Court. Here the first point to note is Sec 2(d) of Criminal Procedure Code, 1973 defines “Complaint”. The Private Criminal Complaint can be filed either u/s 156(3) or 200 or both. If it is u/s 156(3), and if the Magistrate is prima-facie satisfied about offence, he will direct the Police to Investigate. In a pvt criminal complaint u/s 200 Criminal Procedure Code, 1973, the Complainant himself should produce list of witnesses, who will be summoned to the Court or he can bring them to Court for evidence, and if required the Summons will be issued to the Accused, and from that time the Public Prosecutor only can appear for the Complainant and not his private Advocate.
27. The word “Protest petition” is initially referred to use only as continuation of the proceedings under the sections 154 and 156(3) Criminal Procedure Code, 1973. Under those sections the Police (or CBI) have the duty to file Charge Sheet or Challan under Section 173; or a closure report that no offence is found. There are three type of Final Reports:-
27.1. Entire complaint of the complainant is accepted by the Police and Charge sheet is filed believing him completely. It will result in Complainant is happy and satisfied.
27.2. Only part of the complaint is believed, example, the injury caused with knife may result in 3 years imprisonment u/s 324 IPC, but the Police is not willing to believe that “knife” was used by that particular accused, thus filed charge sheet only u/s 322 IPC means the maximum punishment is 1 year. It will result in Complainant is not happy completely, and want to try the accused for a bigger charge.
27.3. Police is not willing to believe the incident had taken place; or it was committed by somebody else and the accused is only a Scape Goat, thus no Charge Sheet is filed, but only a Closure Report is filed. It will result in Complainant is very sad, and he want to prosecute the accused under any circumstances.
28. The Role of Protest Petition, which is also not defined in the Criminal Procedure Code, 1973, is commencing from this point onwards. It is applicable for the circumstances stated in para 27.2 and 27.3 supra.
29. This Book already contains a Private Criminal Complaint’s specimen copy. Thus, it is not necessary to write complete specimen of Protest Petitions.
30. The essence or life breath of criminal trial is how much quickly the complainant makes his complaint. Thus, each and every SECONDS will have to be explained. At the Section 468 of the Criminal Procedure Code, 1973, various Limitations for launching criminal prosecution is written. However, no criminal trial commencing at the said moment for the first time is not going to be successful. Whereas the Civil Suits can be filed on the last date of the Limitation, without any explanation as to why it was not filed during those days; in the criminal trials, why the complainant had waited till the last day will have to be explained.
31. Consequently, the first para of “FACTS” will read as follows in a protest petition:-
SPECIMEN PARAS OF PROTEST PETITION.
“The Complainant had been waiting for the Police Personnel at the PS… to file their Final Report, which is Not filed/ or Filed about which the Complainant is not satisfied, thus the present Protest Petition is filed.
“Following are the reasons, why the Complainant is not happy about the Charge Sheet filed by the Police: Reason 1….., Reason 2…..”
32. After giving these reasons, entire complaint should be written, with same clarity how it should have been filed at the first instance before the same Court.
33. Why Protest Petition can be filed even when no Final Report is not filed ?
33.1. What is the Limitation to file Protest Petition ?
33.2. For those two question, only one Answer is sufficient. Vide sec 468 Cr PC, the Court is not permitted to take cognizance after the Limitation period. Thus, within a reasonable time prior to the said Limitation period, if the Final Report is not filed by the Police, that itself is a cause to raise protest. Thus, the Protest petition should be filed prior to expiry of Limitation.
34. What are the Sections which give Authority to file Protest Petition? Answer: only under section 200 Cr PC; but if any other Special Laws give right to file Private Criminal Complaints, under those sections also it can be filed. Here the only intention is, to get a Section under which the Complainant can lead evidence before the Magistrate to prove that there had been commission of an offence.
35. Who is having locus standi to file Protest petition ? Answer: Any body who know the happening of the crime can file Complaint, and can file Protest Petition. The reason is, Magistrate is taking Cognizance of the Crime only and not the complainant or accused. In fact, if the Complaint is allowed to the extent that Summons or warrant is issued to the Accused, the Complainant looses his place along with his Advocate. It is the Public prosecutor who is going to try the accused. In other words, prior to the arrival of the accused, to bring him, the private persons can make efforts. Once he is brought, it is the Government which will try the accused persons. It is to ensure that, no injustice will be shown between the poor and rich complainants.
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SECOND COMPLAINT
36. The Criminal Courts do not have the Jurisdiction to Review their own Judgements, which finally decide the rights of the parties. Other than clerical mistakes, no other corrections can be done. Thus if a Complaint is dismissed, even on default, the next Forum is Sessions Court, either Appeal or Revision according to the nature of the Complaint and not a Review Petition before the same Court. Same law applies for Sessions Court and all other Courts.
37. However, the complainant can file 2nd Criminal Complaint, under certain circumstances, before the same Court. One of the circumstances is Additional facts. In such cases, the requisite paragraphs are as follows:-
SPECIMEN OF ADDL PARAS OF 2ND PVT CRIMINAL COMPLAINT:
Facts Para 1. The complaint by the same complainant against the same Accused persons had been dismissed by this Hon’ble Court on date….. The Complainant came to know about that order on date… However, he did not file any Appeal/ Revision to challenge that order OR he filed following Appeal/ Revision …..
Para 2. However the 2nd Pvt Criminal Complaint is filed before this Hon’ble Court because of discovery of following Facts and Circumstances which came to be known subsequently. (Here give list of those new facts and circumstances….)
38. There are hundreds of pleadings in Criminal Courts. It is not possible to write about them and give specimen in a single book. The efforts of the Author is to explain certain Pleadings which were not found in other books of similar topics. Thus the Author proceeds to next chapter in this book.
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CHAPTER 14 : ACCIDENT CLAIM CASES
Introduction:- If there is an Accident, depending upon the accident, there are various Laws and Forums to file for compensation. The Most common accident is Motor Accident, it means anything from Scooter to Lorry or Bus, which runs in the normal road, and powered with a motor.
Consequently if an old man will get injured after being hit by a bi-cycle, the said accident is not a Motor Accident and the Claim will have to be filed in Civil Courts. That is the same case, if a person fall into the hole dug by the defendant. If there is only injury, the Law of Tort will be applicable. If there is death, the “Fatal Accidents Act, 1855” will be relied to file the case.
In accident cases not caused by Motor Vehicles, and if the Defendant is Government and there are documentary evidence, the Compensation claim can be filed as Writ petition. Even for Motor vehicles, if there are no Insurance, either Civil Suit to be filed or Writ petition can be filed.
FEE RECEIPTS:- There is a belief