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Saturday, April 12, 2008

Arrest guidelines in case of 498a(cognisable crimes)- Judgement -Joginder Kumar Vs State Of UP

Arrest guidelines in case of 498a(cognisable crimes)- Judgement -Joginder Kumar Vs State Of UP




Video Details: NDTV News- Delhi Police Commisioner's Circular (No Arrest without Investigation or Sanction from ACP?DCP- in case of complaints under IPC sections 498, 406


Commisioner of Police, Delhi has issued a circular to all police stations in Delhi,
The instructions in this circular are:1)Full investigations before any arrest in case of Indian Penal Code sections 498a & 406 2)Sanction of ACP required for arrest of prime accused, sanction of DCP required for arrest of other co-accused. There three such circulars from Delhi police now.

See a Tv program about this Delhi police circular in CNN-IBN

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A Plea to file RTIs for all states to get Similar Circulars to all Police Stations in the state


IMPORTANT : This message is of common interest, for all Indian States- if we do this exercise all over India we will make a quantum jump in tackling the menace of 498a(arrests by police could avoided to a large extent, even without Anticipatory bails). So please read carefully

Hi SLV,

Here is some stuff which you have to use with conviction(they are not the panacea you are looking for, but they could be, if you use it well. The Hyderabad group has used these material and had avoided an arrest(See http://groups.yahoo.com/group/saveindianfamily/message/83251 and its threads), so take the help of the Delhi group and do it for yourselves, but you need to do some work too ok, here is the plan)

See the links below, mainly

1) Hyderabad Police Commissioner has issued a memo to all AP police stations based on the judgement(Joginder Kumar Vs State of UP) , there will be similar memo issued by Commissioner of Police to all Police stations in delhi, similarly in other states of India (since the judgement below has directed all the states to issue such a memo and most likely all the commissioner of police would have issued them around 2002 like in Hyderabad). So take some help from our delhi team and get the Similar memo for Delhi through Right to Information(RTI, similarly others can do for their states).

2) judgement(Joginder Kumar Vs State of UP- Powers Of The Police To Arrest )

3) judgement(Allahabad HC reiterating the judgement of Joginder Kumar Vs State of UP)

Hope you are in touch with the delhi team, if not ask someone to contact them tomorrow(Saturday) when they have their weekly meeting in Patiala House(Gate no.2, at the Lawns there, from 4PM to 7 or so). For phone numbers see http://www.savefamily.org/)

Hi All in the group,

I wish all the states do this RTI work and get the respective commissioner memo which follows the Judgement of Joginder Kumar Vs State of UP. These memos will help the local groups to avoid arrests of families accused of false 498a, if we do this all over India with at least some rate of success we would have made a quantum jump in tackling the menace of 498a.

1) Here is the link to the judgments and Hyderabad Commissioner Memo:
http://ipc498a.files.wordpress.com/2008/03/hyd-police-comm-memo-498a-no-arrest.jpg

for complete details see http://ipc498a.wordpress.com/2008/03/29/hyd-comm-of-police-no-arrest-without-permission-of-dcp-in-498a-cases-2002/

There will be an equivalent of this order from the Delhi police commissioner, etc.(other State guys please put RTIs to fish out the respective Commissioner of Police memos, there is one in Mumbai which I am going to get soon), get that through RTI.

2) Powers Of The Police To Arrest In Accordance With Joginder Kumar Vs State Of UP
http://ipc498a.files.wordpress.com/2008/03/joginder-kumar-vs-state-of-up-apr-1994.pdf

Read the contents of this link as well to get the complete picture:http://ipc498a.wordpress.com/2007/09/23/magna-carta-and-joginder-kumar-vs-state-of-up/

3) Allahabad HC Reiterate Powers Of The Police To Arrest In Accordance With Joginder Kumar Vs State Of UP
http://ipc498a.wordpress.com/2007/10/29/allahabad-hc-reiterate-powers-of-the-police-to-arrest-in-accordance-with-joginder-kumar-vs-state-of-up/

*****************************
Whenever members manage to get the Memo of CP of their respective states through RTI, please send a scanned copy to me by private mail, so that I can get them incorporated in the Survival Guide(take a look at this wonderful resource if you all have not : http://ipc498a.files.wordpress.com/2008/04/a-guide-to-surviving-ipc498a-apr-2008-indexed.pdf ).
Warm Regards,

Gokul,
http://gokul.go.to, 9821414336(Mumbai)

Editor - www.siftimes.com , Director- http://www.pifngo.info/

Protect Indian Family: "For Family Harmony.. Against Legal Terrorism"

Re: Can CAW arrest?
Posted by: "stupidlawvictim"
Fri Apr 11, 2008 10:48 am (PDT)
I have read the survival guide. It was definitely helpful. However, there are some issues ... Since the complaint at CAW cell is already made, apparently we can notget AB as easily. The girls side will also be brought to table andthey will try to stop it. If I get AB in Delhi, apparently I can get it very easily for a fewdays (say 15 days). However, if my in laws dont file a FIR by thattime, it is waste. Say, they file the FIR on 20th day and police comesto arrest on 25th day, the AB would have already expired. Lastly, it is only my old parents who are in India. If they arearrested, yes, I will be afraid of that possibility. My father can noteven move. My sister will be appearing for 12th. It will be disastrousif they are arrested. Net net .. I dont have a fool proof plan to tackle the summon from CAWcell. I and my old parents need help

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You can send this petition to your Commissioner of Police to try and avoid arrest in case of false 498a: http://at498a.blogspot.com/2008/05/impending-498a-send-this.html

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A related order of High Court Chennai: TN women cops use third degree to solve wedding woes

7 comments:

Anonymous said...

Stupidlawvictim,
You need to read A Guide TO Surviving IPC 498A fully again.
The powers of the CAW cell are covered. You must also read this judgment by Justice Dhingra which very clearly states that the CAW cell proceedings are VOLUNTARY !!!
http://ipc498a.wordpress.com/2007/08/12/delhi-hc-no-coercive-action-can-be-taken-by-the-caw-cells/
OR
http://tinyurl.com/2gf5wo
You should also know that if you stand up with the judgment of Joginder Kumar VS State OF UP, the police will think twice about arresting your parents.

gopelalwani said...

The quality of a nation's civilisation can be largely
measured by the methods it uses in the enforcement
of criminal law. Rule of law is an essential Feature of the
constitution and part of the basic structure .

This case is classic case of police brutality and corruption.




Ms. Lavina Chatur Kripalani is an law attorney admitted to practice in Bombay. She came to
USA on Fiance K-1 Visa applied by her on 12. 07. 2001., to marry US Citizen.
Fiance Visa for six months was granted to her by the US Consulate in Bombay on 06. 12. 2001.
She was married in USA on 13. 02. 2002 in woodbridge NJ Court and subsequently she was
divorced on 01. 04. 2003 by order of the Superior Court Middlesex New Jersey USA Court.
Her father is also practising advocate at Bombay High Court Mumbai .

While the divorce proceedings against her were in progress in USA, she realised that she
can not stop the petitioner from obtaining divorce against her and that she was not likely to
get any amount of money or property in settlement,she resorted to the misuse of the police
machinery in India, with oblique motives to bring pressures, wreak revenge and unleash
legal-terror. She filed complaint at Nagpada Police Station Bombay on 10. 12. 2002 making
allegations against each and every member of the family ( USA Citizens) alleging cruelty to
her in USA. The complaint was the Counter-Blast to the on going divorce proceedings in USA.
She did not disclose in the complaint, that there was divorce case pending against her in USA,
and the same was being contested by her and her lawyer father; in which they had demanded /
claimed US $ 200 Thousand (Rs. one crore) in settlement. No one of husband's family has been
spared and left out from being framed in this criminal case.

Ms. Lavina Chatur Kripalani was residing at 12/36 Navjivan Housing Society Dr. D.B. Marg;
Mumbai within the territorial Jurisdiction of Nagpada Police Station Mumbai, at the time of
lodging the written complaint under section 156 code of Criminal procedure 1973 of India.
Simple reading of the complaint lodged by Ms. Lavina Chatur Kripalani, on 10. 12. 2002 explain
that, no crime was alleged to have taken place within the territorial Jurisdiction of Nagpada Police
Station Mumbai (India). The parties never married within the territorial Jurisdiction of Nagpada
Police Station. The parties never visited or resided together within the territorial Jurisdiction of
Nagpada Police Station before their marriage nor after their marriage in USA. Marriage took place
in USA. Matrimonial home was in USA. The alleged crime of Cruelty was allegedly committed in
USA. No investigation was needed to come to the conclusion that part of crime was committed
within the territorial Jurisdiction of Nagpada Police Station nor any where within the Territory of
India .Nagpada Police Station, registered FIR No. 405/2002 on 31. 12 2002 for the offences under
section 498-A, 406 r/w S. 34 I.P.C. and section 4 of Dowry Prohibition Act.

No enquiry or scrutiny or investigation was carried out by the police officers, as required
under Section 156(1) of the Criminal Procedure Code 1973, after registering the FIR. When an
information is lodged at the police station and an offence is registered, then the complaint
would be of secondary importance. The material and evidence collected during the investigation
by the police is important. FIR is not an encyclopedia of facts. The entire and complete facts
are to be collected by the investigating agency before taking action. The Police officer dealing
with the FIR did not determined the Territorial Jurisdiction in respect of alleged offences made
out in the complaint. The Police Officer Violated Section 170 and 177 Criminal Procedure Code
1973 and Illegally proceeded with the matter.

The section 170 Criminal .Pr.Code 1973 specifically provides that if crime was not committed
within the territorial jurisdiction of Police Station, that FIR can be forwarded to the Police Station
stating having jurisdiction over the area in which crime was committed. The law is that police can
register an FIR of commission of a cognisable crime ,but after registration of FIR, if on scrutiny or
investigation, it is found that crime was not committed within the jurisdiction of that Police Station
but was committed within the jurisdiction of some other Police Station, the FIR should be
transferred to that Police Station. However, if at the time of registration of FIR itself, it is apparent
on the face of it that crime was committed outside the jurisdiction of the Police Station, the Police
after registration of FIR should transfer the FIR to that Police Station for investigation. Normally
a 'Zero' FIR is registered by Police in such cases.
Under section 177 of criminal procedure code 1973 of India, no part of cause of action arose
within the Jurisdiction of concerned court and Police Station where the complaint was filed.
Therefore the entire proceedings had no foundation.
This is the question of law regarding lack of Jurisdiction.

TERRITORIAL JURISDICTION
(Registration of FIR and Police / Court Jurisdiction)
Supreme Court of India had considered the question of registration of FIR at length and taking
note of different Sections of Cr.P.C. observed that the territorial jurisdiction was prescribed
under Sub-Section 1 of Section 156 Cr.P.C. to the extent that a Police Officer can investigate
any cognisable case, which a Court having jurisdiction over the local area within the limits of
said Police Station would have power to enquire into or try under the provisions of Chapter XIII.
However, Sub Section (2) of Section 156 Cr.P.C. makes it clear that proceedings of Police Officer
in any case cannot be called in question on the ground that the case was one which such Officer
was not empowered to investigate.

The Supreme Court further observed that Section 170 Cr.P.C. specifically provides that if, upon
investigation, it appears to the Officers In-charge of the Police Station that crime was not
committed within the territorial jurisdiction of Police Station, that FIR can be forwarded to the
Police Stating having jurisdiction over the area in which crime is committed.

In spite of the fact that no crime or part of crime was alleged in complaint, that had taken place,
within the territorial jurisdiction of Nagpada Police Station and in spite of the facts that the alleged
offences were not committed on the Indian soil by foreign nationals and in-spite of the prohibition by
law for not proceeding further against the accused in view of Section 170, 177 Criminal Procedure
Code, and section 188 criminal Procedure Code r/w section 4 Indian Penal Code 1860 the non bailable
arrest warrants were illegally issued against entire family of USA Citizens. Airport Immigration
Police were informed and posted with "look-out circular" naming all members of US Citizen family.

After about three months of the divorce granted by US court, my wife and son were detained and
arrested unaware on 29. 06. 2003, while boarding the scheduled flight for returning to USA after a
short visit to India; by Mumbai Airport Immigration Police; enforcing the Illegal Warrants of Arrest
issued and posted in Violation of Section 170 &177 Code of Criminal Procedure 1973 and Section 4
of Indian Penal Code 1860 r/w Section 188 Criminal Pr. Code 1973 of India.

Illegally arrested USA Citizens were produced before the Holiday Metropolitan Magistrate, and
Remand Custody Application dated 29. 06. 2003 was submitted by the Nagpada Police, stating that:
"The Arrested persons committed criminal offences against complainant for
fifteen days after her marriage in Mumbai during the month of February 2002
and onward in New-york USA till 28. 06. 2002".
Where-as the accused were arrested at Airport, enforcing Illegal Warrants of Arrest stating that:
"The Arrested persons committed criminal offences against the complainant who married during
the month of November 2001 and then was mistreated in New York USA in the month of December
2001 onward till 28. 06. 2002".

The USA Passports seized by the Police at Mumbai Airport earlier showed that the persons
arrested by the police, were never in India during the month of February 2002, according to Indian
Immigration Arrival/Departure stampings in passports.The FIR No. 405/2002 registered by Nagpada
Police also states that the Complainant was present in USA from 9th December 2001 till 28th June 2002.
Therefore the Remand Custody Application submitted to the Holiday Metropolitan Magistrate by
Nagpada Police Station is a deliberately and fraudulently engineered document to mislead the Holiday
Magistrate and secure Police Cusody of the accused fraudulently.

Remand Custody Application is as under:-
Nagpada Police Station Mumbai.
Date:29-06-2003

To.
Metropolitan Magistrate
15th Court,
Mazgaon,
Mumbai.

Respected Sir,
I hereby report that the complainant herein Smt. Lavina Kripalani, age 30 years, residing
at Navjivan Society Dr. J.V.-----Road has filed her complaint with this Police Station that
She got married in India in February 2002 and when she was in India for 15 days her
husband Dinesh,Mother-in-law Indira Age 74 years) sister-in-law Poonam, and
brother-in-law Girish have mentally harassed and beat the complainant and that the
accused were frequently demanding the money saying that they did not spent money,
gave less dowry and demanded things, beat her and mentally harassed her.

The accused being settled in America , there also beat the complainant and demanded
money. The complainant fed up with the mental harassment, she came back
to India in JUNE 2002 and she filed complaint in Nagpada Police Station vide
C.R.No. 405/2002 u/s 498A, 406, 34 of IPC and section4 of Dowry Prohibition Act.

As the Accused, being settled in America, hence at the time of lodging the complaint,
they could not be found in India and therefore information was given to the Airport
Branch against the accused and their names were given to the look out cell.

Accordingly as per the information of Airport Branch, Police of Nagpada Police Station
were sent to Airport and from their the Accused were taken n possession and as they
were wanted in the said offence.They were arrested on this 29th June 2003 at 10.00 hrs.

The said Accused other relatives, sister-in-law of the complainant, father-in-law and
brother-in-law, are to be arrested in the above said offence and to investigate the case
and the statements of the witnesses are to be recorded.

And therefore praying for grant of Police custody of the above said Accused.

Yours faithfully
Sd/-
Assistant Police Inspector,
Nagpada Police Station
Mumbai.
Round Seal Of
Nagpada Police Station.


The Holiday Magistrate at Metropolitan Court failed to apply his mind properly at the stage of
scrutiny and nor the requirements of law were correctly and responsibly followed by him before
proceeding with the matter. Honourable Holiday Magistrate failed to apply his mind on the
contradictory statements made by the Police in the Remand Application and FIR No.405/2002
registered by Police. He even did not care to read and understand the case and simply took the
text from the Police.Honourable Holiday Magistrate even did not determine his own territorial
jurisdiction to deal with the matter, in view of section 167, 170 & 177 Criminal Pr. Code 1973 and
Section 4 Indian Penal Code 1860.

Honourable Holiday Magistrate Illegally approved and ordered Police custody of the Illegally
arrested persons in violation of Section 4 Indian Penal Code and section 170 &177 Criminal
ProcedureCode 1973 and without any consideration for falsely engineered evidence in the
Remand Application Falsifying FIR No. 405/2002 dated 31.12. 2002.
The Remand Application accepted without application of mind by the Honourable Holiday
Magistrate, allowing Police Custody of the accused also does not establish that the alleged
offences took place, and were committed within the Territorial Jurisdiction of Nagpada Police
Station and thus within the Territorial Jurisdiction of Holiday Magistrate.
The Remand Custody Application submitted by the Police to the Holiday Metropolitan Magistrate
was deliberate and fraudulently engineered document to misguide the court and fraudulently
secure the police custody of the accused illegally for the ulterior motives. Manipulations and
interpolations in the Remand Application are crystal clear on the part of the Nagpada police
officer. The learned Holiday Magistrate Mazgaon Court has proceeded to take cognisance
without applying his mind, just like putting a rubber stamp on it. By no stretch of reasoning
the Metropolitan Holiday Magistrate was competent to take cognizance of the matter.
The proceedings initiated against the accused were liable to be dismissed on the ground of
lack of jurisdiction alone, under section 177 of criminal procedure code 1973. No part of
cause of action arose within the Jurisdiction of Mazgaon Metropolitan court where the Police
Custody Remand Application was filed by the Nagpada Police. Therefore the entire
proceedings had no foundation. This is the question of law regarding lack of Jurisdiction.
Don't the magistrate know the basic of criminal law? Judges have to be responsible, when
they pass orders. They must be aware of its consequences.

Neither the Nagpada Police Station informed the USA Consulate that the USA citizens were
arrested by them. Nor the higher authorities in the state of Maharashtra and Ministry of External
Affairs were informed about the arrest of foreign nationals in violation of Section 4 Indian Penal
Code 1860 by the Nagpada Police Station. No permission was obtained from higher authorities
as required by the Section 188 of Indian Criminal Procedure Code 1973.

While in Police custody the accused were taken at their property situated at Versova, Andheri
West Mumbai, having territorial jurisdiction of Versova Police Station and Andheri Metropolitan
Court in violation of section 166 Criminal Pr. Code 1973, for search of the premises.The search was
illegally carried out by Nagpada Police Station without having territorial jurisdiction vide section
170 Criminal Procedure Code and also without the knowledge or the permission of the the Police
Station having territorial jurisdiction. Nothing was found during search. The search was carried
out by Nagpada Police Station in spite of the fact that the FIR No.405/2002 registered by Nagpada
Police Station does not show any particulars of properties stolen /involved and the values of the
same at serial 9 and 10 of the said FIR. Nor the complainant has claimed any involvement of any
property lying at the said premises in her complaint.

After obtaining Police-Custody of accused illegally and fraudulently from Holiday Magistrate
they were produced before Metropolitan Magistrate 15th court Mazgaon Mumbai, after 2 days
of Jail on 01. 07. 3003. The honourable Magistrate without ascertaining his territorial jurisdiction ,
proceeded with the matter, in spite the fact that the said court had no jurisdiction to try the offences
as the cause of action did not accrue within the territorial jurisdiction of Nagpada Police Station,
under Section 170 & 177 Code of criminal Procedure, while dealing with the FIR. No crime has been
alleged to have been committed within the Jurisdiction of Nagpada Police Station. No investigation
was needed to come to the conclusion that part of crime was committed within the Jurisdiction of
Nagpada Police Station or within the Jurisdiction of Metropolitan Court at Mazgaon, Mumbai.
Under section 177 of criminal procedure code 1973 no part of cause of action arose within the
Jurisdiction of concerned Court where the complaint was filed by police. Therefore the entire
proceedings had no foundation. This is the question of law regarding lack of Jurisdiction
The proceedings were initiated illegally without any scrutiny, responsibility and without jurisdiction
and without respect for law by the Honourable Magistrate Mazgaon Court. Therefore the impugned
judgements and orders delivered by the said court cannot be sustained.

Nagpada Police Station in spite of seizing USA Passports from the accused, falsely and
fraudulently submitted to the Metropolitan Magistrate at Mazgaon Court, that the accused
were Indian Citizens, holding Indian Passports. Nagpada Police further submitted to the court
that the accused were residing in USA as such holding USA permanent resident "Green Card".
The Nagpada Police Station requested to the Magistrate to order to the accused to surrender
the Indian Passport and USA Green-Card to the Police.

The bail order is as under:-

MEMO Mumbai, Dt. 1/7/2003
TO:
The Inspector of Police.
Nagpada Police Station.
Mumbai.

You are hereby informed that the accused No. 1 Dinesh Gop Lalwani and accused No. 2
smt Indira Gop Lalwani who were arrested by your police station in C.R. No. 405/2002 of
the offence punishable U/ sec 498(a), 406, 34 I.P.C r/w 4 Dowry Act are ordered to be
released on execution of P. R. Bond of Rs. 20,000/- each with one of sureties in the like
amount with a condition to attend police station every day from 10.00 a.m to 12.00 noon
until further orders.

Accused are ordered to surrender their Passport and Green Card (in original) with I.O.

Accused are further directed not to leave the limit of Mumbai without prior permission of
court till further orders.

Option of cash bail of Rs. 20,000/- each is allowed in lieu of solvent surety.

This is for your information and compliance condition.

By order
SD/-
Judicial Clerk,
Metropolitan Magistrate's
15th Court, Mazgaon, Mumbai.



The Illegally arrested US Citizens were released on bail after execution of P. R. Bond of
Rs. 20,000/- each with one of sureties in the like amount with a condition to attend police
station every day from 10.00 a.m to 12.00 noon until further orders.
Accused were ordered to surrender their Passport and Green Card (in original) with I.O.
Accused were further directed not to leave the limit of Mumbai without prior permission of
court till further orders.

The accused attended Nagpada Police station daily between 10.00 A.M. to 12.00 Noon as
ordered by the court. Accused submitted an application to the concerned Magistrate on
14 .07. 2003 for return of their USA Passports and permission to leave India. The request
was granted and the USA Passports were returned on furnishing additional cash security
of Rs. 10,000/-each against receiving Passports from Nagpada Police Station.Accused were
permitted to leave India for six months and directed to report their where abouts to Nagpada
Police Station within that period of six months.Attendance conditions imposed in bail order
were vacated.

The Court Order is as under:-
RETURN OF PASSPORT & PERMISSION TO GO BACK TO U.S.A
AND CANCELLATION OF ATTENDANCE.

NOTICE NO: 103/N/2003 and Mumbai, Dated 14th July 2003.
104/N/2003

C.R. No. 405/2002
M E M O:

The Inspector of Police, Nagpada Police Station, Mumbai is hereby informed that on application made by
Smt. Indira Gope Lalwani in Notice No. 103/N/2003 and Dinesh Gope Lalwani in Notice No. 104/N/2003 for
return of Passport bearing No. 95443898 of U.S. Passport and Passport bearing No. 112524200 of U.S.Passport
and permission to go back to U.S.A. and cancellation of attendance. The said Passports are lying in your custody.
This Court has passed the following order:

O R D E R
"Notice No. 103/N/2003 & 104/N/2003 and prayer made therein of both
the accused is hereby allowed. They are permitted to leave India".

Senior P. I. of Nagpada Police Station is hereby directed to hand over the original
Passports of both applicants /accused by retaining xerox copies on record.

Both applicant/accused are hereby directed to keep their advocate on record to present
them in court on each and every date until further orders. Failing which, necessary action
will be taken against both the applicant/accused.

Applicant/Accused are hereby directed to furnish additional surety or cash security of
Rs. 10,000/-each against receiving Passports from Nagpada Police Station.

Applicant/Accused are permitted to go abroad for six months and directed to report t
heir where abouts to Nagpada Police Station within that period of six months.

"Attendance conditions imposed in bail order are vacated".

You are therefore directed to comply above orders.

BY ORDER
ROUND SEAL SD/-
METROPOLITAN MAGISTRATE
15th Court, Mazgaon, Mumbai.
TO:
The Inspector of Police
Nagpada Police Station Mumbai.


Metropolitan Magistrate while passing above orders releasing USA Passports did not even
review his own earlier order, directing to the Police to take possession of Indian Passports
and USA Green Cards from the accused. Honourable Metropolitan Magistrate even did not
ascertain the non compliance of the said Judicial orders, and the reasons for the non-compliance
of taking possession of Indian Passports and USA Green Cards.
Therefore the above order returning USA passports confirms that the concerned Honourable
Magistrate was very well aware that the accused were USA Citizens and their USA Passports
were in possession of Nagpada Police, and allowed the police to mislead the court and deny the
possession of USA passports.

Metropolitan Magistrate's failure to ensure effective implementation of his bail orders requiring
the surrender of Indian passports and Green Cards by the accused, to the Nagpada Police Station,
after falsely determining that accused were Indian Citizens and subsequently ordering to return
the USA Passports to the accused, and recognising the Foreign nationals not being Indian nationals
by the same Judge, proves hand and glove conspiracy and speaks volumes of unlawful conduct by
law enforcers in India. The laws and Judicial System have been completely violated, short circuited,
sabotaged and made irrelevant in this matter.
The Orders/ judgements have been passed in a mechanical manner, without applying mind to the
facts of the case made in the FIR No. 405/2002. Had the Presiding Officer scrutinised even the
F.I.R. he would have learnt that no offence had taken place in the territorial jurisdiction of
Metropolitan Court at Mazgaon Mumbai India.
Malpractices, Manipulations and Mala fide on the part of the Nagpada Police Officer stands proved.
In view of the above manipulations by the Police officer and non application of mind firstly by the
learned Holiday Magistrate, and secondly by the learned Metropolitan Magistrate 15th court
Mazgaon the criminal proceedings stand vitiated.

Supreme Court of India had considered the question of registration of FIR at length and taking
note of different Sections of Cr.P.C. observed that the territorial jurisdiction was prescribed
under Sub-Section 1 of Section 156 Cr.P.C. to the extent that a Police Officer can investigate
any cognisable case, which a Court having jurisdiction over the local area within the limits of
said Police Station would have power to enquire into or try under the provisions of Chapter XIII.
However, Sub Section (2) of Section 156 Cr.P.C. makes it clear that proceedings of Police Officer
in any case cannot be called in question on the ground that the case was one which such Officer
was not empowered to investigate.
The Supreme Court further observed that Section 170 Cr.P.C. specifically provides that if, upon
investigation, it appears to the Officers In-charge of the Police Station that crime was not
committed within the territorial jurisdiction of Police Station, that FIR can be forwarded to the
Police Stating having jurisdiction over the area in which crime is committed.


Illegally arrested and prosecuted accused in India reached back in USA; after fifteen days of
harassment, agony and extortion by the police and judicial system in India.

gopelalwani said...

Don't the magistrate know the basic of criminal law?
Rule of law is an essential Feature of the constitution
and part of the basic structure.

Dear Sirs,

Two US Citizens were detained and arrested unaware on 29. 06. 2003, while boarding
the scheduled flight for returning to USA after a short visit to India; by Mumbai Airport
Immigration Police in Violation of Section 170 &177 Code of Criminal Procedure 1973
and Section 4 of Indian Penal Code 1860 r/w Section 188 Criminal Pr. Code 1973 of India.

They were produced before Holiday Magistrate. who Illegally remanded them in police
custody in Violation of Section 167, 170 and 177 Code of Criminal Procedure 1973 and
Section 4 of Indian Penal Code 1860 r/w Section 188 Criminal Pr. Code 1973 of India.

After 2 days of police custody they were produced before the Metropolitan Magistrate
Mazgaon Court Mumbai on 01. 07. 2003. The honourable Magistrate Illegally proceeded
with the bail and other matter s in Violation of Section 170 &177 Code of Criminal
Procedure 1973 and Section 4 of Indian Penal Code 1860 r/w Section 188 Criminal
Pr. Code 1973 of India.Therefore the entire proceedings had no foundation. This is the
question of law regarding lack of Jurisdiction. The entire proceedings by the honourable
Magistrate Mazgaon Court stand vitiated.
Don't the magistrate know the basic of criminal law?

Subsequently Petition for Quash under Section 482 Criminal Procedure Code and
Article 226 of constitution of India was filed with Honourable Bombay High Court,
on behalf of accused being Criminal Writ Petition Nos 1558 and 1559 of 2003 praying
for quashing of complaint (FIR). The Petitions were rejected vide order dated 21. 01. 2003.
The Bombay High Court held that the prayers made in the Writ Petitions were premature
and all the pleas are open to petitioners in the event of charge sheet being filed by the police.

An application dated 23. 03. 2004 in the Case No. 631/P/2003 was filed in
Metropolitan Magistrate's 15th Court at Mazgaon Mumbai, for "discharge"
on grounds of Section 4 of the Indian Penal Code ead with Section 188 of
the Code of Criminal Procedure, and other grounds as follows:

a. The prosecution was filed without obtaining the requisite sanction from
central government under Section 188 of the Code of Criminal Procedure,
as such the prosecution was bad in law.
b. Even if the entire contents of the FIR No. 405/2002 dated 31.12.2002 are
admitted for the sake of arguments, the said contents by any stretch of
imagination, does not constitute any offence under the Indian Penal Code
1860 and Dowry Prohibition Act.
c. The fact that the accused No.1 and the complainant were married in USA,
has been admitted by the complainant herself in the FIR whereas, the
complainant's other contentions that she was married with the accused
no. 1 first time in India is not corroborated or supported by any documentary
evidence, as any such document does not find any place in the charge-sheet
filed by police in the above case. Even if her contentions are accepted as true
that she married in India, then also "The marriage in India does not
constitute the offence under the Indian Penal Code and Dowry
Prohibition Act 1961.
d. The fact that even the marriage between accused no.1 and the complainant
solemnised and registered in USA, according to USA laws was dissolved by
the Judgement of divorce dated 01. 04. 2003, passed by the honourable
Judge Mr. Bradley Ferenz in the divorce petition filed by the accused no. 1
against the complainant on 30. 07. 2002.
e. It was pertinent to note that as per her own complaint, the complainant had
returned to India on 28. 06. 2002, filed her Written Answers to the divorce
petition on 11. 09. 2002 but has lodged the complaint in the present case
on 10. 12. 2002 as an after thought.
f. It was also pertinent to note that even if the complainant had filed her complaint
against accused no.1 on 10. 12. 2002, in her Written Answers dated 11. 09. 2002
to the Divorce Petition,
the complainant had categorically stated in para no. 6 that
The Defendant has no grievances with her HUSBAND and very much wants
to continue, preserve and nurture her marriage and return to her Husband.
g. Thus, it can be seen that the complainant, when realised that she can not stop the
accused from obtaining divorce against the complainant and that she was not likely
to get any amount of money or property from him had filed the present complaint
against the the entire family as late as about six months after returning to India and
3 months after after stating in her written answers
to the divorce petition that she does not have any grievance against her Husband.
h. The accused further stated that the accused, by virtue of being American
Citizens are foreign nationals. As per the provisions of section 4 of the
Indian Penal Code, 1860 and section 188 of Code of Criminal Proceedure,
1973, Your worship does not have the Jurisdiction to enquire into the
above case and to try the above accused.
j. In view of the above circumstances and the legal position, the accused pray that
your lordship may be pleased to order the above accused persons to be
Discharged from the above case.

The honourable magistrate without entertaining the above application for 'discharge',
cancelled bail granted on 14. 07. 2003 and issued non-bailable arrest warrants on
8th April 2004 insisting presence of of the accused in the court. The bail proceedings
were conducted by the honourable Magistrate in violation of section 170 and 177 Code
of criminal procedure.

The Criminal Revision Application No. 38 of 2004 was filed by the advocate for
accused with the Bombay sessions court at Sewri Mumbai, against the said order
of the honourable magistrate cancelling the bail and issuing non-bailable warrants
without disposing the application for discharge made as per section 4 of Indian
Penal Code and section 188 of Criminal Pr. Code of India. The Honourable Sessions
Court was requested to examine the legality and propriety of the impinged order
issued by the Metropolitan Magistrate Mazgaon Court.

The Revision Application was allowed and disposed on 28th May 2004.
The non-bailable warrants issued by the Honourable Magistrate were ordered to
stand cancelled. Honourable Magistrate at Mazgaon Court was advised to consider
the application for discharge, and decide the same expeditiously in accordance with law.
The Honourable Magistrate was further advised to give reasonable time to petitioners to
appear before him, keeping in mind that the petitioners were residents of USA, in case
the discharge application was rejected by him.

The Honourable Metropolitan Magistrate, once again without considering and
deciding the application for discharge on 10th June 2004, and without examining the
legality and propriety of his actions; once again insisted on the appearance of the
applicants before him, as the applicants were allowed permission for 6 months, and
were ordered to return to India within 6 months vide his order dated 14th July 2003.
The honourable magistrate issued non-bailable arrest warrants on 8th April 2004 once
again insisting presence of the accused in the court.

The Criminal Revision Application No. 6 of 2004 was filed by the advocate for accused
with the Bombay sessions court at Sewri Mumbai, against the said order of the
honourable magistrate cancelling the bail and issuing non-bailable warrants without
disposing the application for discharge made as per section 4 of Indian Penal Code
and section 188 of Criminal Pr. Code. and as directed by the Sessions Court at Mumbai.
The Honourable Sessions Court was requested to examine the legality and propriety of
the impunged order issued by the Metropolitan Magistrate Mazgaon Court.

Even if contentions in FIR are accepted as true that complainant married in India, then
also The marriage in India does not constitute the offence under the Indian Penal Code
and Dowry Prohibition Act 1961. Metropolitan Magistrate Mazgaon Court has no
"All India or All Maharashrta or All Bombay Territorial Jurisdiction". By no stretch of
reasoning the Metropolitan Magistrate was competent to hear and deal with the matter
of "discharge" under section 188 Criminal Procedure Code r/w sect 4 Indian Penal Code
on the ground of lack of jurisdiction alone, as no part of cause of action arose within the
Jurisdiction of Mazgaon Metropolitan court. Entire proceedings at Mazgaon Metropolitan
Court at Mumbai had no foundation. This is the question of law regarding lack of Jurisdiction.
Don't the magistrate know the basic of criminal law? The Sessions court at Mumbai
aught to have considered and decided the case for Discharged as Metropolitan Mazgaom
Court had no territorial Jurisdiction accordance with Section 170 and 177 Criminal Procedure
Code to deal with the matter. Sessions Court ought to have used power of superintendence
over the sub ordinate courts.

Dealing with Section 4 Indian Penal Code 1860, there was materials to show that the
accused are the citizen of USA . They have been visiting India on Visas issued by Indian
Government. They, thus, indisputably are not the citizen of India. They might have been
staying in India and having property and Investments in India, as has been contended by
the complainant, but it can not be denied and disputed that they are not the citizen of India.
If they are not the citizen of India having regard to the provisions contained in Section 4 of
the Indian Penal Code 1860 and Section 188 of the Code of Criminal Procedure 1973, the
prosecution taking cognisance of offence must be held to be illegal. In terms of Section
4 of the Indian Penal Code, the Indian courts will have jurisdiction to try an accused only if
the accused is a citizen of India even if the offence was committed outside India or by any
person on any ship or aircraft registered in India wherever it may be. Neither of the
aforementioned contingencies is attracted in the instant case. Section 188 of the Code
of Criminal Procedure also deals with offences committed outside India. Clause (a)
brings within its sweep a citizen of India, whether on the high seas or elsewhere, or by
a person, although not citizen of India when the offence is committed on any ship or
aircraft registered in India.
In view of the fact that the offence is said to have been committed in USA, the provisions of
the Indian Penal Code or the Code of Criminal Procedure cannot be said to have any application.
In the constitutional scheme, all laws made by Parliament primarily are applicable only within the
country. Ordinarily, therefore, persons who commit a crime in India can be tried in place where the
offence is committed.

The accused have fundamental right in terms of Article 21 of the Constitution of India to be
proceeded against only in accordance with law. The law which would apply in India subject
to the provisions of Section 4 of the Indian Penal Code and Section 188 of the Code of Criminal
Procedure is that the offence must be committed by foreign national within the territory of India.
If admittedly, the offence has not been committed by foreign national within the territorial limits
of India, then the provisions of the Indian Penal Code as also the Code of Criminal Procedure
would not apply. Being accused of committed offences outside India, the provisions of Section
4 of I.P.C. and Section 188, Cr. P.C. were fully attracted to this case.

The Supreme Court of India has ruled in respect of the Similar Application made under
Section 188 Cr. P. Code 1973 and Section 4 IPC 1860.
http://judis.nic.in/supremecourt/qrydisp.aspx?filename=31538
THE SUPREME COURT OF INDIA HAS DECIDED THE ISSUE ON 13th MAY 2008 .
IN CRIMINAL APPEAL ARISING OUT OF SLP (Crl) No.6004 of 2006.
Fatma Bibi Ahmed Patel.... Versus State of Gujarat & Anr.
The Supreme court of India Judgement says:-
"The proceedings were initiated illegally and without jurisdiction".
"In view of the fact that the offence is said to have been committed
outside India, the provisions of IPC or CrPC cannot have any application".

Thanking You,
Regards.
Gope Lalwani.

gopelalwani said...

Don't the magistrates know the basic of criminal law?



Dear sirs,

In spite of the fact that no crime or part of crime was alleged in complaint, that
had taken place, within the territorial jurisdiction of Nagpada Police Station Mumbai.

In spite of the facts in the complaint that the alleged offences were not committed on
the Indian soil by foreign nationals (US Citizens).

In-spite of the prohibition by law for not proceeding against the accused in view of
Section 170, 177 Criminal Procedure Code, and section 188 criminal Procedure Code
r/w section 4 Indian Penal Code 1860.

The non bailable arrest warrants were illegally issued against entire family of USA Citizens.
Airport Immigration Police were informed and posted with "look-out circular" naming all
members of US Citizen family. Two members of the family were arrested at Mumbai Airport
on June 29, 2003, while taking scheduled return flight to USA after a short visit to India.

They were jailed in police remand custody for two days and there after detained in India for
15 days. The non bailable arrest warrants against remaining three members of the US Citizens
family are still pending for execution with immigration police at Indian Airports.

The quality of a nation's civilisation can be largely measured by the methods it uses in
the enforcement of criminal law. Rule of law is an essential Feature of the constitution and
part of the basic structure .

This case is classic case of police brutality and corruption.
This has reference to FIR No. 405/2002 dated 31. 12. 2002 registered at Nagpada Police Station
Mumbai, and case No. 631/P/2003 on the files of Metropolitan Magistrate 15th Court Mazgaon
Mumbai.

Thanking You,
Regards.
Gope Lalwani.
Pennsylvania USA

fedup bylaw said...

Hi thanks for the information. can we have informational websites for "CrPc 125/maintenance cases. How to survive from them? thats a real frustration wen our money goes to such woman & child while we cant actually see them & enjoy fatherhood. its a request from a lot of harased husbands fighting CrPC125 & some of us paying maintenance from several months/yrs

CruiserDeep said...

For defending Cr.PC125(maintenance) you have a lot of citations, see these links.

All the major judgements/citations that you may need is here: www.mynation.net and http://www.498a.org/forum/viewforum.php?f=16&sid=1592eb0eed276fe804822de5daf4db2a .

Read the 498a Survival Kit for getting an overall idea of how to solve your legal problem: http://ipc498a.wordpress.com/2007/07/01/the-498a-survival-kit

Blog2008 said...

Even without written complaint am arrested in April 2005, this makes sense only, if police follows the laws, however this is definitely boon to fight with mis-user.

This what happened in my case: http://apstatepolice498a.wordpress.com/