FIRST INFORMATION REPORT: Registration of
Different Benches of the Supreme Court have taken divergent views in different cases on the main issue whether under section 154 of the Code of Criminal Procedure, a police officer is bound to register an FIR when a cognizable offence is made out or he (police officer) has an option, discretion or latitude of conducting some kind of preliminary enquiry before registering the FIR.
The Supreme Court on 14-7-2008 passed a comprehensive order expressing its grave anguish on non-registration of the FIR even in a case of cognizable offence. In response to the directions of the Court, various States and the Union Territories filed comprehensive affidavits. It has been submitted that on a bare reading of a complaint lodged, automatically and in a routine manner an FIR is not to be registered. Observing the divergent opinions in a large number of cases decided by the Supreme Court, it has been held that it has become extremely important to have a clear enunciation of law and adjudication by a larger Bench of the Apex Court for the benefit of all concerned- the courts, the investigating agencies and the citizens.
Lalita Kumari v. Government of UP , 2012 (3) SCALE 152; Decided on 27-2-2012 [Dalveer Bhandari, T.S. Thakur and Dipak Misra, JJ.]
RIGHT TO PRIVACY: Sleep
Right to privacy has been held to be a fundamental right of the citizen being an integral part of Article 21 of the Constitution of India. The citizens/persons have a right to leisure; to sleep; not to hear and to remain silent. The knock at the door, whether by day or by night, as a prelude to a search without authority of law amounts to be police incursion into privacy and violation of fundamental right of a citizen. Illegitimate intrusion into privacy of a person is not permissible. However, right of privacy may not be absolute and in exceptional circumstance particularly surveillance in consonance with the statutory provisions may not violate such a right. Thus, it is evident that right of privacy and the right to sleep have always been treated to be a fundamental right like the right to breathe, to eat, to drink, to blink etc. An individual is entitled to sleep as comfortably and as freely as he breathes. To disturb sleep, therefore, would amount to torture which is now accepted as a violation of human right. It would be similar to a third degree method which at times is sought to be justified as a necessary police action in heinous and cold blooded crimes.
In the instant case, just after midnight, at about 12:30 a.m., a huge contingent of about more than a thousand policemen surrounded the encampments while everybody was fast asleep inside and they were forcibly woken up by the police, assaulted physically and were virtually thrown out of their tents. This was done in the purported exercise of the police powers conferred under section 144 of Code of Criminal Procedure but it was held malice in law.
Re: Ramlila Maidan Incident v. Home Secretary, Union of India , 2012 (2) SCALE 682
RIGHT OF SPEECH AND ASSEMBLY: Reasonable Restrictions
Even for ensuring the exercise of the right to freedom of speech and assembly, the State would be duty bound to ensure exercise of such rights by the persons desirous of exercising such rights as well as to ensure the protection and security of the people i.e. members of the assembly as well as that of the public at large. This tri-duty has to be discharged by the State as a requirement of law for which it has to be allowed to apply the principle of reasonable restriction, which is constitutionally permissible.
Freedom of speech, right to assemble and demonstrate by holding dharnas and peaceful agitations are the basic features of a democratic system. It is the abundant duty of the State to aid the exercise of the right to freedom of speech as understood in its comprehensive sense and not to throttle or frustrate exercise of such rights by exercising its executive or legislative powers and passing orders or taking action in that direction in the name of reasonable restrictions. The preventive steps should be founded on actual and prominent threat endangering public order and tranquility, as it may disturb the social order.
Re: Ramlila Maidan Incident v. Home Secretary, Union of India , Suo Motu W.P. (Crl.) No. 122 of 2011; Decided on 23-2-2012 (SC) [Dr. B.S. Chauhan and Swatanter Kumar, JJ.]
BABA RAMDEV CASE: Unwarranted Police Action
The persons at the realm of affairs of the police force have to take a decision backed by their wisdom and experience whether to use force or exercise greater control and restraint while dispersing an assembly. Rule 14.56 of the Punjab Police Rules (which are applicable to Delhi) provides that the main principle to be observed is that the degree of force employed shall be regulated according to the circumstances of each case. The object of the use of force should be to quell the disturbance of peace or to disperse the assembly which threatens such disturbances and has either refused to disperse or shows a determination not to disperse.
In the instant case, incident occurred on midnight of 4/5-6-2011 at Ramlila Maidan in Delhi when all men and women belonging to different age groups, who had come to the Ramlila Maidan, Delhi, to participate in the Yoga Training Camp of Baba Ramdev, were sleeping. Baba Ram Dev alongwith his large number of followers performed a Shanti Paath at about 10 p.m. on 4 th June, 2011, whereafter, all those who had assembled and stayed back, went to sleep under tents and canopies to again get up in the morning the next day at about 4 a.m. to attend the schedule of Ashtang Yoga training to be conducted by Baba Ramdev. However, just after midnight, at about 12:30 a.m. on the 5 th of June, 2011, a huge contingent of about more than a thousand policemen surrounded the encampments while everybody was fast asleep inside. There was a sizeable crowd of about 20,000 people and they were forcibly woken up by the police, assaulted physically and were virtually thrown out of their tents.
The Supreme Court has held that the action demonstrated the might of the State and was an assault on the very basic democratic values enshrined in Indian Constitution. While directing the State Government to take disciplinary action against all the erring police officers/ personnel who had indulged in brick-batting, had resorted to lathi charge and excessive use of tear gas shells upon the crowd, the Court awarded ad-hoc compensation of ` 5 lakhs to heirs of Smt. Rajbala, who got spinal injury in the incident and subsequently died. The persons who suffered grievous injuries were held entitled to compensation of ` 50,000 each.
Re: Ramlila Maidan Incident v. Hone Secy. Union of India, 2012 (2) SCALE 682
BAIL: Delayed Trial
When there is a delay in the trial, bail should be granted to the accused. But the same should not be applied to all cases mechanically. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. The Supreme Court has repeatedly held that when the undertrial prisoners are detained in jail custody for an indefinite period, Article 21 of the Constitution is violated.
The accused alongwith the others were charged with economic offences of huge magnitude. Though the Investigating Agency had completed the investigation and submitted the charge sheet including additional charge sheet, the fact remains that the necessary charges have not been framed. There is no possibility of commencement of trial in the near future. Considering the fact that the accused was in custody from 31-3-2010, except the period of interim bail, i.e. from 15-9-2011 to 30-11-2011, the Supreme Court has held that it was not a fit case to fix any outer limit taking note of the materials collected by the prosecution. Considering the health condition, the accused was held entitled to an order of bail pending trial on stringent conditions in order to safeguard the interest of the CBI.
Dipak Shubhashchandra Mehta v. CBI , Crl. A. No. 348 of 2012; Decided on 10-2-2012 (SC) [P. Sathasivam and J. Chelameswar, JJ.]
LAND ACQUISITIONS: Cooperative Societies
Any scheme submitted by any cooperative society relating to housing must receive prior approval of the appropriate Government and then only the acquisition of the land for such scheme can be held to be for public purpose. Prior approval as required by section 3(f)(vi) of the Land Acquisition Act, 1894, of the appropriate Government is not just a formality, it is a condition precedent to the exercise of the power of acquisition by the appropriate Government for a housing scheme of a cooperative society.
The Housing Society is bound to frame scheme disclosing the total number of members eligible for allotment of sites, the requirement of land including the size of the plots and broad indication of the mode and manner of development of the land as a layout. The State Government could then apply mind whether or not the housing scheme framed should be approved. In the absence of a housing scheme having been framed by the housing society, the acquisition of land was held, not to be for a public purpose as defined in section 3(f)(vi) of the 1894 Act.
B. Anjanappa v. Vyalikaval House Bldg. Co-op Society , 2012 (2) SCALE 504; Decided on 7-2-2012; Bangalore City Cooperative Housing Society Ltd. v. State of Karnataka, 2012 (2) SCALE 235 (Decided on 2-2-2012)