LAW IN MOTION -2

 

LAW IN MOTION -2

 

          In the first piece, I had tried to explain the basic structure of Indian law in criminal matters. However, one thing that wasn’t elucidated there was the hierarchy of laws. The hierarchy of laws starts from the Indian Constitution at the top, the Central Laws i.e.., the laws enacted by the Parliament and the State Specific Laws.

 

Almost all laws provide for the Central Government and the State Governments to make ‘bye-laws’ and/or ‘rules’ to give clarity to the legal provisions. Then come the ‘regulations’ and/or ‘orders’. Whether in the laws or the rules, there are also provisions for issuing gazette ‘notifications’ to enable certain provisions in the laws or the rules. The bye-laws and rules are usually placed before the legislatures for approval and come into operation only when the legislatures have accorded approval. On the other hand, in most cases, notifications do not require legislative approvals and are more in the nature of administrative instructions for making the laws operative. Last but not the least is ‘administrative orders’ which are more in the way of executive clarifications to give more clarity to the existing laws, bye-laws, rules or regulations or even orders.

 

          Another basic principle for understanding the hierarchy of laws is that while the provisions lower down in the hierarchy can render more clarity to the provisions of the ones above them, the ones towards the lower-end of the table cannot contradict the ones at the top, either in letter or spirit. Thus, no order or regulation or notification or law can contradict the provisions of the Constitution of India. There are numerous instances of legal provisions being declared ultra-vires (beyond) the Constitution. Therefore, the executive, while examining the possibility of issuing orders or executive instructions, has to be careful that the provisions do not contradict the legal or Constitutional mandate. Otherwise they are likely to be challenged.

 

          Thus, all laws/bye-laws/rules/regulations/notification/orders etc., in criminal matters have to fall within the parameters prescribes by the Constitution of India.

 

Law and legal process is not a static process – it evolves with the values of the society. Thus, when legal challenges were mounted to the two legal provisions adultery and suicide by the activists, the Supreme Court of India declared that these ultra-vires the Constitution and so is the application of Section 377 to consensual homosexual sex between adults. Similarly, homosexual sex between consenting individuals was declared unconstitutional, "irrational, indefensible and manifestly arbitrary", by the Supreme Court of India after almost 160 years of being on the statute books. However, Section 377 remains in force relating to sex with minors, non-consensual sexual acts, and bestiality.

 

          Besides these Constitutional and legal provisions, there are three fundamental provisions which may or may not have legal backing but are at the heart of all legal, judicial and executive provisions – principle of natural justice.

         

There are three major principle of natural justice – the “Hearing rule”, the “Bias rule” and “Reasoned Decision”.

 

No one can be condemned unheard or the Hearing Rule which translates to mean that the person or party who is affected by a decision should be given a fair opportunity to express his point of view to defend himself. If this principle is not adhered to, it again vitiates the fairness associated with the decision.

No one should be a judge in his own cause or the “Bias rule” which basically entails that the decision-maker should not be biased while taking the decision. If there is a reasonable possibility of bias or prejudice, the whole rationality of the decision becomes questionable and can vitiate the course justice.

Lastly, a “Reasoned Decision” is imperative in the interests of justice. Thus, the effected party is entitled to know the reasons for the decisions taken on his or her petition or request or on any matter of interest to him or where his interests may be unfavourably impacted. Therefore decision taken by the government authorities should be with valid and reasonable grounds.

          The principles of natural justice are applicable in all walks of life, including the criminal justice system. In the criminal justice system, it could practically manifest itself in many forms – a police officer may not investigate a criminal case where he has an interest i.e., where either the victim or the accused is a relative or a family member or person known to the police officer. These relations may be by blood or business or friendship and should be strong enough to arouse suspicions of prejudice in the minds of others. These decisions can be questioned and changed sought by appealing to the supervisory officers. Similarly, even the judicial officers are ethically duty-bound to recuse themselves from hearing matters where there is a reasonable possibility of bias being attributed to them.

 

          The principle of natural justice are also equally applicable in civil matters where Government is a stake-holder and also in private-business dealings. In government dealings, the Government Servants Conduct Rules are a manifestation of the principles of natural justice – they virtually prohibit government servants from business-dealing in any manner where they or their family members are having any interest or giving business contracts to their own family members of friends. Of course, these would be covered as ‘corrupt practices’ also under other laws.

 

          Suffice to say here that the Fundamental rights enshrined in the Constitution of India (Part III) form the bedrock of civil liberties of all people living in India (although certain rights are not wholly applicable to non-citizens), supplanted by the principles of natural justice, which the ‘State’ can only abrogate or take away through ‘due processes’ which have to come good against these provisions but also in accordance with the laws laid down for their curtailment so that the State can be sustained and the public order and law and order can be maintained in the State for the larger good of the peaceful co-existence of the society – striking a balance between individual liberties and the requirements of the society and the State.

 

          The due processes have been enshrined in the Indian Penal Code, the Code of Criminal Procedure, the Indian Evidence Act and the other Special and Local Laws enacted by the legislatures. Due process is sacrosanct before any liberty is curtailed even as per the laws of the land. Criminal Laws and justice system is deeply rooted in the ‘processes and procedures’ being followed rather than the ‘results’ only.

 

          It is an interplay of these – the Fundamental rights and the Principles of Natural justice, which embodies itself in the division of powers in the Indian system between the legislatures, the executive and the judiciary. Therefore, the Legislature is responsible for enactment of legislations, keeping in mind the larger public sentiment in the country or a State, the Executive (the Ministers and the bureaucracy, down the line) is responsible for executing the legal provisions (including bye-laws, rules, regulations, notifications, orders etc.) while the judiciary sits in judgement as an arbiter or interpretation in accordance with the enacted laws and also the Basic Structure of the Constitution.

 

          These basics lay down a decent foundation for a shallow plunge at first and incrementally deeper topics, as we go by, into the criminal justice system of the country.

 

 

 

 

Law in Motion -3

 

The General Diary or Station Diary or Roznaamcha

 

          Having outlined the basics let us shift a bit to the real policing issues having a bearing on common man. Just a word of caution or advice here – a number of States have State Police Rules and Manuals. Rules would take precedence over manuals. Manuals are usually internal instructions for guidance – a virtual ‘best practices’ or ‘standard operating procedures’ (SOPs). Sometimes, however, the two re used inter-changeably, which is not legally a correct thing to do. Thus while a violation of ‘police rules’ may be justiciable i.e., public may seek redressal from the courts, the violation of ‘manuals’ or SOPs do not give a reason for public to agitate. A violation of an SOP is merely a violation of good practices, unless it is proven that the SOP was violated with mal-intent. Nevertheless, we have the Assam Police Manual and Nagaland Police Manual besides almost all states having their detailed manuals. Most of these manuals have been prepared during British times although they may have been periodically updated. The manuals also derive their authority from the Police Rules or Cr.P.C other laws or the Indian Constitution. Sometimes, the manuals incorporate all the provisions and thus in the nature of a ‘policeman’s handbook’ or ‘reference manual’ in which case, the handbook also contains most of the rules and laws – all in one place.

 

          We can start with how the law is put into motion.

 

          The law starts taking recourse as and when a deviation from socially accepted behavior takes place. Usually, in most societies, most socially deviant behaviours are already known or listed or defined. These behaviours, would either qualify as ‘civil matters’ or ‘crimes, the difference, usually being attributed to motives, intent and the outcomes of the action which is being considered.

 

Thus, if a person ‘A’ takes money from ‘B’ and does not return it,

 

it could very well qualify as a civil matter or a crime. If the intent was never to return it or the money was taken under a misrepresentation of facts, it could be a crime. However, each matter has to be considered separately and that is where discretion comes in – of public, police and even the judiciary. In some cases, a lack of ‘bad’ motive or an intention may not be able to prevent the categorization – a mere act or outcome could be considered as deviant or criminal – e.g. a road accident – intention may be absent but the act itself could complicate things for the doer.

 

Who Can Report to Police :

So, once an act which is ‘improper’ is committed, the law should start taking its course. However, although law is applicable everywhere, law is not omni-present. Thus, the ‘improper acts or omissions’ would have to be noticed and reported. Usually, the acts come to the notice of individuals/persons in the society.  It is the individuals/person who have to report the deviations. These deviations are reported by ‘persons’ to police and public servants. The Indian Penal code defines a person as

 

"person" includes any Company or Association or body of persons, whether incorporated or not.

 

          This definition broadly implies that crimes can be committed by or against ‘persons’ and these persons can be living ‘man/woman’ i.e., human beings or companies and associations. The definition itself prescribes clearly that the company or association may not be incorporated or registered. Thus, a body of individuals, who are identifiable can be either victims of a crime or its perpetrators. Thus also, a report to police or magistrate can be made either by a living person or by a company or association. It is, not necessary, that the company/association make a police report only when it ‘itself’ is a victim or ‘accused’. A company or an association can make a complaint to police on ‘any matter which it feels is a crime’, not necessarily related to its work. Public spirited individuals or companies or associations can also report to police.

         

When is a report to be made to Police :

          An ordinary person is not expected to know which act or omission is a crime or not. However, that said, ignorance of law is no excuse in law. There is a presumption that everyone knows the law.

 

          Therefore, the prudent and commonsense thing is that when we notice or become aware of anything against the society’s morals or ethics or something which is blatantly incorrect, it should be reported to police. Which exact nature of crime is committed in legal parlance, is for the police to decide.

 

          As a matter of caution and commonsense, anything, which is discussed in closed quarters or behind backdoors or is kept hidden in secrecy deliberately is likely or should arouse our suspicions about being ‘irregular’ and perhaps ‘unacceptable’ or ‘’criminal’. This is generally how acts have been criminalized in the societies at large. Crimes, in our systems are not crimes against individuals only, who are called victims, but against the society. It is for this reason that in all criminal cases, the State is the prosecuting party. The whole logic is that acts which are serious enough to cause trouble to individuals but can adversely affect the wellbeing of the society at large are defined as ‘crimes’.

 

          Therefore, when in doubt, inform the police is the advice for the public.

 

What is the format of a Report to Police :

          The Code of Criminal Procedure does not provide for any specific form or format for the public or civilians about information to the police. The public just has to inform the police in whatever manner possible.

 

          In the eyes of an ordinary man, an FIR is the beginning of the process. However, what is not known is that the FIR is usually preceded by the police making a record of the information received in a book/register maintained at the Police Station which is called a General Diary or Station Diary or Roznaamcha. Sometimes, the registration of an FIR and entry in GDE is done simultaneously too.

 

          In my humble opinion, it is the General Diary which is the most important document at a police station. Information recorded in the GDE sets the law in motion in policing – whether it is preventive action or investigation or even simple law and order duties. It is the document for any cross-references for any work done at a police station.

 

          Although the list is not exhaustive, the General Diary of a police station should usually include any or all of the following things/events : 

 

General diary - Contents.

 

(a)  should be kept at all police stations, outposts and beat-houses. The officer in charge is responsible that it is punctually and correctly written.

(b)  The diary should be written in duplicate with carbon paper.

(c)  The morning entry in the diary will show that all furniture have been cleaned, finger print sets cleaned, date stamps checked, etc.,

(d) Every occurrence which may be brought to the knowledge of the police officers. If no incident is to be communicated during the day, this fact should be noted in the diary.

(e)  All information lodged and charges preferred whether cognizable or not, the names of informants, the names of all persons arrested, the offences charged against them;

(f)   the weapons or property of which the police have taken possession and the names of the witnesses who have been examined.

(g)  In case of a person arrested, his name, the number of the case in which the arrest was made, the dates of arrest and receipt in the police station lock-up, the date and hour when forwarded to the court and the expenses, if any, incurred in feeding should be noted.

(h) Information obtained in regard to the following matters :

·        The state of crops, roads, rivers, bridges, railway fences, Government buildings ferries, embankments, trees, telegraph lines, etc.,

·        the occurrence of large fires, inundations, storms, railway or other serious accidents the outbreak, prevalence or cessation of cholera, small pox, fever, or other epidemic diseases;

·        serious cattle-disease;

·        the passage through, or gathering together within the limits of the station circle of large bodies of people;

·        arrival and dispatch of prisoners;

·        receipt an disbursement or transmission of cash ;

·        particulars of taking and making over charge of the station or outpost;

·        distribution of duty amongst officers;

·        departure and arrival of officers to and from mufassil or on and from leave ;

·        assistance rendered by Panchayats in all matters not connected with the actual investigation of cases;

·        transfers and new arrivals of officers;

·        misconduct or instances of meritorious behaviour on the part of the subordinates;

·        arrival and dispatch of dak;

·        submission of periodical returns, and the imparting of instruction in drill, procedure, and other duties to constables.

·        All information as to threatened disturbances should be entered in the general diary.

·        Attendance of village chaukidars, the information furnished by them at muster parade or obtained otherwise regarding the presence of suspicious characters, gamblers, swindlers, foreigners, or members of wandering tribes, the occurrence of any suspicious deaths amongst cattle, the presence of strange boats at village ghats and the disappearance of any therefrom, and the result of enquiry, if any, made regarding them by chaukidars should also be entered in the general or station diary if such information has not been entered in the village crime note book.

(i) The fact of enquiries having been made regarding absconders and surveilles should be briefly entered in the general diary.

(j) If help is given to excise officers in the detection or prevention of excise offences the fact should be noted.

(k) If a prisoner is placed in the lock-up the fact that all locks and fastenings have been tested and found in good order should be noted.

(l) Whenever any escort over treasure or prisoner passes a police station or outpost whether the escort be of that district or of any other, the fact should be entered in the diary and the o/c of the police station/outpost will initial and put the date and hour on the escort's command certificate.

 

Every entry made in the ‘general diary’ is given a marginal heading in as few words as possible, and numbered in a monthly series and attested by the signature of the officer in charge of a police station at the time.

 

In some State Police Rules, if it be proved that an officer in charge of a police station has done any official act which he has not inserted and truly stated in his diary or that any occurrences have been wilfully omitted, or any wilful false entry has been made he will be liable to punishment.

 

          In modern times, the General Diary and entries therein have also assumed significance for a host of other reasons. Citizens usually carry or are in possession of a large number of other documents or items which are important. Sometimes these items get stolen or misplaced and it becomes necessary to get new or duplicate ones.

 

The concerned departments or agencies ask for a police report. Usually in most such cases, a General diary Entry is sufficient. Some such cases could be :

Loss of ID Cards (whether Govt or private or institutional);

Loss of certificates of qualification or education etc;

Loss of Passports;

Loss of Driving Licenses;

Loss of Adhaar Cards;

Loss of ATM – Debit/Credit cards;

Loss of vehicles – although a theft would have to be registered as an FIR:

Loss of Insurance Policies;

Loss of belongings which are not a theft etc;

 

In the GD mention the ID/Passport/Check Number, Date of issue, expiry date etc. if you have this information. The police station officer – usually a Literate Constable or a Sheristadar or a Munshi will record the information in a register and give a certified copy of the report to the informant with a date/time stamp and a General Diary Entry (GDE) Number to the informant for record. This receipt can be used as an official document for report to police in most cases.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

154. Information in cognizable cases –

 

(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf

 

 (2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant

 

However, before