Indian Railways Institute of Civil EngineeringLEGAL AWARENESS

RP Saxena

Topic coveredWhat is law For common manProtection Govt employeePower of Rly employee under Indian Railway actHow to face lawHow to defend yourself in court

IntroductionCommon man / Govt employee are unaware of Law & legal processLawyers takes undue advantage of itPurpose to enhence your legal awareness ..criminal law for youNormally party is represented in court by advocate who charge fortune depend on status of the accused & advocateOne can plead his own case in court appearing as Party in person

CrimeFour stages in commission of crime

Mental stagePreparatory stageExecutionStage of concealment

Participants of crimePerson who commits the crime or gets the same committed by an innocent agentAids and assists in the commission of crimePerson absent from the scene of crime though he counsels or commands another to commit crimePerson who knowing well that the person present at the scene of crime and has committed the crime harbors and assists him to escape or to hide

Govt protection available to officials under section 197 & 19 It is necessary to protect the public servants in the discharge of their duties. They must be made immune from being harassed in criminal proceedings and prosecution, That is the rationale behind Section 197 of the CR PC and section 19 of PC act

Govt Protects EmployeeNo court can take cognizance of criminal charge against Govt employee without prior sanction of Govt

Sanction under section 197 of CR PC protects all actions done in discharge of official duty

Sanction under 19 of PC act protect all actions official/non official if charge under PC act

Type of offenceCognizable police can start enquiry and make arrest.GRP has police power in Railway establishment for Law in order Noncognizable..police can not arrest without specific order of magistrate but can start investigationPolice has unlimited power to arrest a person accused for cognizable offense

Cognizable offenceThere is long list of offense in IPC for cognizable offenceBasically if Country or society in danger , then it is cognizable offence murder, rapes , rioting, vehicle accidents, thefts etc

Power of arrest by Railway official under IR actSection 179..empower rly official to arrest anybody who committed cognizable offence under Rly actSec 180 ..Rly official can also effect arrest by police even in non cognizable offence if there is apprehension that person will abscond

Non cognizable offenceSection 158 IR act-contravention of regulation of wkg hoursSec 177 IR act. Furnishing false return

Few cognizable offence inRailway act para 1105 irwmCognizable offence..police can arrest without magistrate orderSec 145..drunkard affecting passenger comfortSec146..obstructing Rly servant on duty147..tresspassing150-attempting to wreck a train151..attempt to damage to rly property166..defacing public notice175 ..neglecting safety rule endangering passenger life ( applicable to rly servant only)

Power to arrest under section 179179. Arrest for offences under certain sections.-(1) If a person commits any offence mentioned in sections 137, 141to 147, 150 to 157, 160 to 162, 164, 166, 168 and 172 to 175, he maybe arrested without warrant or other written authority by any railway servant or police officer not below the rank of a head constable

Arrest for noncognozable offence180. Arrest of persons likely to abscond, etc. (1) If any person who commits any offence under this Act, other than an offence mentioned in section 179 or

refuses to give his name and address or there is reason to believe that the name and address given by him are fictitious or that hewill abscond, any railway servant authorised in this behalf or any police officer not below the rank of a head constable may arrest him without warrant or written authority.

Why arrest necessaryPerson is dangerous to country or societyPerson may abscond & may not come when summonedCustodial interrogation is requiredPerson may destroy evidencesPolice has to produce arrested person within 24 hr in front of magistrate & get examined medically before putting in lockup or jail

Arrest & bailPolice has unlimited power of arrestPolice is sole judge what section should be charged ..court may differ with view of police at stage of framing charge

So whenever somebody arrested , first step of defense is to get the bail

Who can grant bailOffence ..Bailable or Non bailable

Bailable ..bail can be granted by police station in-charge at police stationNon bailable ..only court can grant the bail

If crime is of murder ,only session court can grant bail

Bail Rules.purpose & condnTo ensure attendance during trialBail may be on personal BondOr may be one or two surety Or May be cash bailNormally conditional bail..surrender passport ,not interfere evidence, cooperate in investigations etcType and amount of bail depends on discretion of court ..

Bail rulesPerson arrested need to be produced within 24 hr in front of magistrateNormally bail is not granted on first day & police custody given for police to interrogate..do not hire top lawyer for bail highly paid lawyer bail delaysMaximum police custody in any crime is 2 week onlyPolice can not interrogate without getting police remand/custody of the accused .it can also not interrogate if person is in judicial custody

Bail RulesBail is rule jail is exception supreme court viewBail can be denied only ifPerson is danger to countryPerson is dangerous to societyApprehension that he can interfere with evidence or threaten witness Sanjay chandra 2G case bail order of supreme court is quoted in every bail case Normally bail to ladies..same day

How lawyer & court delays bailDefense lawyer does not submit bail application Court issue notice to police to submit reply on bail applicationThen argument & then order pased3-4 dates can easily pass ( 15 days) Supreme court says the lady accused should be granted bail same dayEven after bail order..lot of legal process for submitting surety etc

Investigation

FIR is necessary for investigation . It empowers police to start investigations ( para 1103 IRWM) Arrest/raid is part of investigationNo protection is available against investigation to any Govt officerJt sect & above..no more validSection 197 of cr pc protect govt officer to start any criminal case against him in court

Supreme court on investigationPurpose of Investigation is to find truth ..so no impediment The Supreme Court held as invalid the legal provision that makes prior sanction mandatory for the Central Bureau of Investigation to conduct a probe against senior bureaucrats in corruption cases under the Prevention of Corruption Act. ( May 6th 2014)

A Constitution Bench comprising Chief Justice R.M. Lodha and Justices A.K. Patnaik, S.J. Mukhopadhaya, Dipak Misra and Ibrahim Kalifulla, while allowing the petitions filed by BJP leader Subramanian Swamy and the Centre for Public Interest Litigation, held that Section 6A of the Delhi Special Police Establishment Act, which granted protection to joint secretary and above officers from facing even a preliminary inquiry by the CBI in corruption cases, was violative of Article 14 of constitution ie Equality in law

No sanction needed for CBI to probe bureaucrats:SC

Section 197 of CR PC No court should take cognisance of criminal charges against a public servant unless previous sanction to prosecute him is received from a competent authority. (serving public servant)

This safeguard is meant to help government servants perform their duties honestly without fear of malicious prosecution

This protection cannot be claimed immediately after a complaint is lodged. The question of prior sanction would be considered later, during stages in the criminal trial, as and when the need arises, supreme court observed in one of the case

Section 197 does not protectIf crime charged is not part of official duty--Like Murder-rape-car accident by personal carDacoity , theft , smuggling etcCheque bounce etcQuarrel in societyBut will protect you in case of train accident , building or bridge collapse

Section 197 will protect youIn any train accident on Railway track Any collapse of building as in Hubli, Tundla etcAny collapse of Bridge as in BhagalpurFor any other negligence in course of duty Basic Principle of CrimeYou have not done a crime unless you planned , executed and hide it fro law

Section 197 0f CR PC197. Prosecution of Judges and public servants.(1) When any person who is or was a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-Public servant and official duty-opeartive wordSanction by authority competent to remove Independent application of Mind required for granting sanction

Section 197 of CRPC or section 19 of PC actThis is first line of defenseThere are number of supreme court judgment on this sectionAlways legality of sanction challengedWhether competent authority granted sanction-- mechanicallyWhether he applied his mind independently or guided by somebodyWhether it is obtained by hiding the fact or on base of false facts

Section 19 of PC actSection 19 - Previous sanction necessary for prosecution No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction

The word official duty not here . So in all cases under PC act Prior Govt sanction is necessary

Latest judgment on sanctionInspector Of Police & Ors vs Battenapatla Venkata Ratnam & Anr on 13 April, 2015Prof. N.K.Ganguly vs Cbi New Delhi on 19 November, 2015State Of Rajasthan vs Jainudeen Shekh And Anr on 25 August, 20152015Nanjappa vs State Of Karnataka on 24 July, 2015Somveer Lamba vs Haryana Public Service ... on 6 July, 2015Whether sanction under Section 197 of 'CrPC' is required to initiate criminal proceedings in respect of offences under Sections 420,46 B venkatratnam8, 477A, 120B read with 109 of the Indian Penal CodeNO Ref case B V Ratnaam

Land mark caseK. Veeraswami vs UOI.No sanction reqired for retired employeeHarihar Prasad v. State of Bihar ifor offence under Section 120B No sanction required u/s 197 crpcSR Bommai v. union of indiaA.R.Antuleyvs. Ramdas NayakLalu yadav vs union of IndiaVineet narain vs UOI dec 1997 Time limit of 3 months for sanction for prosecution. Recommendation..not agreed by govt

Criminal conspiracy sec 120 IPCCriminal Conspiracy When two or more persons agree to do, or cause to be done (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated as a criminal conspiracy;Agreement between 2 or more person to do An Illegal act orLegal act done illegally

It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable even if an offence does not take place to the illegal agreement.

Important observations of supreme court regarding section 197

iv) There is no universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor it is possible to lay down any such rule.(v) However, there is one safe and sure test to determine this connection is, if the omission or neglect on the part of public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty and if the answer to this question is in affirmative, then it may be said that the such act was committed by the public servant while conducting in discharge of his official duties (vi) An official act can be performed in discharge of official duty as well as in dereliction of it.

(i) It is not every offence committed by a public servant that requires sanction for prosecution under Section 197 Cr. P.C; nor even every act done by him while he is actually engaged in the performance of his official duties.(ii) But, if the act complained of is directly concerned with his official duties so that if questioned, it could be claimed to have been done by the public servants by virtue of the office, then sanction would be necessary.

(iii) Even where the charges are for misappropriation, cheating or conspiracy by public servant, question whether the sanction is required under Section 197 (1) Cr. P.C will depend upon facts of the each case..

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If the acts complained of are so integrally connected with the duties attaching to the office so as to be inseparable, sanction would be necessaryIf there was no necessary connection between the duty and the act, the official status furnishing only the occasion or opportunity for the acts then no sanction would be required.( driving official car met with accident..No sanction required

24. It is pertinent to state that in R. Balakrishna Pillai v. State of Kerala and Another (supra), State of Madhya Pradesh Vs Sheetla Sahai and others (supra), Prof. N.K. Ganguly v. CBI, State through CBI v. Anna Wankhede and others (TAJ CGHS LTD.)Prof. N.K.Ganguly vs Cbi New Delhi on 19 November, 2015The accused persons were charge-sheeted by CBI for the offences under Penal Code as well as under Prevention of Corruption Act.

Since, CBI had not obtained sanction under Section 197 Cr. P.C and the act complained of was found in connection with the discharge of official duties, in the said cases, accused persons were discharged from the penal charges

Neera yadav case IAS NOIDAAllotment of plots ..4 case as per order of supreme courtUP govt did not give sanction u/s 197She applied for dischargeCentral govt gave sanction u/s 19Alld high court observed that once sanction u/s 19 is available ,there is no need of sanction under 197She was finally convicted for 4 yr and 3 years in two diff cases

Allahabad High court observation (I) For prosecution under Prevention of Corruption Act, 1988, once sanction under Section 19 of the said Act is granted, there is no necessity for obtaining further sanction under Section 197 of the Code of Criminal Procedure.

(II) Where a public servant is sought to be prosecuted under the provisions of Prevention of Corruption Act read with Section 120B, I.P.C., and sanction under Section 19 of Act of 1988 has been granted, it is not at all required to obtain sanction under Section 197 Cr.P.C. from the State Government or any other authority merely because the public servant is also charged under Section 120B, I.P.C.(III) The offences under the Prevention of Corruption Act, 1988 as well as charge of criminal conspiracy, cannot be said to constitute "acts in discharge of official duty.

Keep house in orderPolice has right to search the house for collecting evidence during investigationSo Always keep your house in orderNothing illegal or objectionable should be available in house

Part 2

How to defend the case in court of Law

R P Saxena*

How to defend the criminal cases in courtAll the case are contested in court on fact & legality. Facts are provided by accused & legal aspect is taken care of by Advocate. Therefore both have to work hard for defending a case

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Various stage of casesRegistration of FIRInvestigation-Report to incharge .inspector Sanction under section 197 of crpc for prosecution if act is part of official duty Registration of case & submission of Charge sheet in courtRecording of evidenceArgumentJudgement

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InvestgationArrest is part of investigationStatement of witness are taken & got corroborated in field ..evidences retrieved..murder weapon, dead body , theft material etcThe statement are under section 161and not admissible in court as evidenceThe accused has right to remain silent

investigationNo body can be forced to give evidence against himself either during investigation or during trialReport approval.. Decision for trialProcess for sanction

Sanction to prosecuteAppointing authorityIndependent application of mind based on evidence on record in investigation reportNo recommendations No time limit for granting sanction ..supreme court observation 90 days in vineet narain casenot a direction

Fact to know about sanctionSanction refused can not be granted again ..similarly can not be revoked unless new fact came in notice80% cases of Govt officials decided on basis of sanctionNo appeal court will change decision if sanction is defective & not agitated in original court & crime is Proved

Chargesheet in court Copy given with list of RUD and witness All witness may not be called Fresh bail need to be appliedOriginal document or evidence can be seenA date is fixed for framing of chargesList of witness to be called

Discharge application can be filed by accusedDischarge application u/s 482Success rate less than 10%No appreciation of evidenceSometime people use it for delaying the caseIf not agreed by court..appeal & appeals in high court /supreme courtApplication fails..trial starts

Criminal Trial in court

Various stages In court

Criminal case - various stage in courtStage 1 Receipt of charge sheetStage 2- framing of charge & examining of documentsStage 3 Recording of evidenceStage 4 Statement of the Accused under section 313 of Cr P C of 1973The accused can be competent witness u/s 315Stage 5 Argument under section 314 of Cr P C of 1973Judgment & appeals if necessary

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Stage 4 Statement of the Accused under section 313 of Cr P C of 1973.After Recording of evidence (prosecution as well as defense) is over ,the accused is given a chance to explain his point of view .This is the only time when accused is permitted to speak in court . A written statement can also be givenAlthough there is not much evidence value of this statement ,However facts, if any ,not yet come in notice of court, are brought in notice of Judge , he may consider them while making his final judgment.Accused can also act as own witness under oath .here he will be cross examined also. This has the evidential value .Howeve the accused can not be forced to answer such question which goes against him.

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Stage 5 Argument under section 314 of Cr P C of 1973

After recording statement of the accused, Argument are held between prosecution & defense advocate orally in court . Here various decision ( with citation) of high court/supreme court are quoted by both the party to support their arguments

The Judge notes down salient points of arguments.

To avoid the omission or over looking of any crucial point during oral arguments , In addition to Oral argument , a written argument under section 314 of CR PC (optional) should also be submitted before conclusion of oral arguments as this is the only defense paper which remain on record which may help you in appeal in case judgement is gone against you.

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JudgementBased on the evidence on record , argument ,counter argument & laid down legal principles , Hon Judge Finally announce his final judgementIf acquittal- then happy endingIf conviction quantum of sentence & fine is also announce either on same day or next day

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Appeal in high courtIn case due to any reason, judgment is against you & then appeal is filed in high court , Written argument submitted in session court will be helpful as appeal in high court is decided on the bases of documents on record . No new documents or witness is permitted in high court .Only oral arguments are again done in high court where your advocate has to explain where Judge in session court had gone against the evidence on record & sprit of settled law while convicting you.

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FACT YOU WILL LIKE TO KNOW

The complainant & Investigation officer are interested witness . Their evidence value is low .Independent witness are necessary to establish the casePanch witness is independent witness & his evidence value is very high .Cases are lost if independence of Panch is questionable like known to police or complainant or habitual panch or submissiveCase will continue even if the complainant become hostile witness

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Facts you will like to knowMany case are lost due to defective sanction order for prosecution like non application of mind

Tap recorded evidence are not acceptable as primary evidence .These are used as corroborative evidence only

No document can be introduced later on if not cited initially in charge sheet.

There are many laid down procedure for collecting evidence like telephone recording ,recording of conversation ,voice sample ,writing Panchnamas etc.if they are not followed , evidence is not acceptable

Facts you will like to know1Any spl act over ride general provisions of law ,Cr PC etc unless silent

In DA case ,it is accused who has to prove his innocense wheras in all other case prosecution has to prove charge

Suspension of sentence is different from suspension of conviction

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Some common aspect for defensePolice has to prove case beyond reasonable doubt . So create doubt in their story

The complainant & Investigation officer are interested witness . Their evidence value is low .Independent witness are necessary to establish the case.

Panch witness is independent witness & his evidence value is very high .Cases are lost if independence of Panch is questionable like known to police or complainant or habitual panch or submissive

Many case are lost due to defective sanction order for prosecution like non application of mind ,so find fault in sanction

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Facts you will like to knowTap recorded evidence are not acceptable as primary evidence .These are used as corroborative evidence only

There are many laid down procedure for collecting evidence like telephone recording ,recording of conversation ,voice sample ,writing Panchnamas etc.if they are not followed , evidence is not acceptable . Learn about them & co- relate in your case

Read judgements of supreme courts & extracts favorable to your case may be shown to your lawyer

Few Lines about PC act 1988

PC act 1988Every Govt Employee should know salient provisions of Prevention of corruption act 1988 Agency jurisdiction State employeeACBCentral Govt..CBI

CBI CASESFraud cases - complainant is department if decision has caused financial loss to Govt Department

Disproportionate Asset case source observation either from vigillence or from way of living.General survey for Nation Raids No arrest in such cases as having assets is not the crime

Trap cases complainant is a person who has a grudge with you

All these case comes under PC act 1988

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Prevention of corruption act 1988

19.Previous sanction necessary for prosecution(1) No court shall take cognizance of an offence punishable under section 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction

Sanction shall be given by that Government or authority which would have been competent to remove the public servant offence was alleged to have been committed

No finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required

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Prevention of corruption act 1988- Various relevant provision Section 7 Public servant taking gratification accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act ( No demand but agreed to accept is sufficient ).Supreme court insists over proof of demand to establish the guilt ( P.satyanarayana murty vs dist inspector of police..2015 case) Krishan Chander vs State Of Delhi on 6 January, 2016

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Prevention of corruption act 1988

13. Criminal misconduct by a public servant-(1) A public servant is said to commit the offence of criminal misconduct,- (a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration

Section 13(1)d ii - by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or13 (1)(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession property disproportionate to his known sources of income.

Section 13(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.

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PC Act 1988Section 15. Punishment for attempt Whoever attempts to commit an offence referred to in clause (c) or clause (d) of sub-section(1) of section 13 shall be punishable with imprisonment for a term which may extend to three years and with fine

Section 20Section 20. Presumption where public servant accepts gratification

(1) Where, in any trial it is proved that an accused person has accepted, any gratification from any person,

it shall be presumed, unless the contrary is proved, that he accepted gratification, as a motive or reward

What one should doBe happy alwaysDo not fear un-necessarilyMake yourself aware various provision of law..Google liberallyIndiankanoon.org all judgments available. download & readKeep your house in OrderBe ready for defense in adversityHave faith in God & Enjoy life

Any question is most welcomerajendrasaxena@gmail.comPh 9869522838 Ph 9423580564PC act will be covered later in detailTHANKS

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