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NHRC intervention ensures payment of Rs. 20 lakh as monetary relief in a case of deaths of four children due to electrocution in District Sambhal, Uttar Pradesh; State Chief Secretary asked to submit details of action against the delinquent officials

NHRC intervention ensures payment of Rs. 20 lakh as monetary relief in a case of deaths of four children due to electrocution in District Sambhal, Uttar Pradesh; State Chief Secretary asked to submit details of action against the delinquent officials

New Delhi, 2nd March, 2022

On the intervention of the National Human Rights Commission, NHRC, India, in a case of death of four children due to electrocution, the Uttar Pradesh Power Corporation Limited has paid Rs. 5 lakh each as monetary relief to their next of kin. However, having received no information on the departmental action taken and the grant of criminal proceedings against the negligent public servants, the Commission has issued summons for the personal appearance of Chief Secretary, Government of Uttar Pradesh on 28th April, 2022 with the requisite reports. However, he shall stand dispensed with the personal appearance if, the requisite report is received on or before 21st April, 2022.

The Commission had registered the case on basis of complaints, alleging that four children died due to electrocution when a live wire snapped and fell into a tube-well they were bathing in Sambhal district, Uttar Pradesh on 21st June, 2019. Allegedly, the incidence had occurred due to the negligence of the Electricity Department.

On the basis of the material on record received from the concerned authorities in response to its notices, the Commission found the allegations as correct and that the personnel of Paschimannchal Vidhyut Vitran Nigam Limited were responsible for the incident. Thereafter, the Commission issued a notice of Chief Secretary, Government of Uttar Pradesh to show cause why appropriate amount of interim relief may not be recommended to be paid to the next of kin of each of the four deceased children. He was also asked to submit the details of departmental action taken in the matter and grant of prosecution sanction in the criminal case in the matter.

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ALL INDIA COUNCIL OF HUMAN RIGHTS, LIBERTIES & SOCIAL JUSTICE

(AICHLS) is founded by Dr. Anthony Raju - Advocate, Supreme Court of India, Dynamic Internationally Accredited Human Rights Defender, Inspirational, spiritual and motivational speaker, Peace Activist & Social Worker and is one of global's foremost voices of Human Rights and powerful voice for voiceless people globally.

All India council of human rights, liberties & social justice has been added as signatory to UNITED NATION GLOBAL COMPACT. The world's largest corporate responsibility initiative with nearly 12,000 business and non-business participants in 140 countries. That All India Council of Human Rights, Liberties & Social Justice (AICHLS), is a duly registered Society under the Societies Registration Act XXI of 1860, and is functioning with commitment to the Noble Cause of Human Rights Protection and Promotion, Justice for All, Economic Upliftment of the Underprivileged, Education, Love, Peace, Harmony and Friendship, National & International Integration by Exchange of Ideas & Ethos in India and also amongst the neighbouring countries and the people of the rest of the World at large.

 

AICHLS is purely non political and a dedicated Non Government Organisation in service of people for their constitutional rights promotion and protection.

 

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HIGHLY CONDEMNATION, THE ATTACK ON OUR DELHI POLICE PERSONAL AND PARA POLICE.

We, the governing council and the board of patrons, strongly condemn the Delhi Violence on 26th January’2021, in which hundreds of our police personnel sustained serious injuries in the violence and several of them are still admitted to hospitals in critical condition.

 

Strict action need to be taken against all those involved in Delhi Violence on 26th January’2021.

 

 

 

Sincerely yours

 

 

 

Dr. Anthony Raju

Advocate, Supreme Court

President, All India Council of Human Rights, Liberties and Social Justice

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07 Mar 2022 : 23:18 Posted by Administrator Comments:  Views: 
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Can Police file FIR under Section 188 of Indian Penal Code

It is responsibility of every public servant to maintain peace and order in the society. In order to do that public servants can promulgate orders. If someone disobey such order, than he would be liable for prosecution in accordance with provision of Section 188 of Indian Penal Code. In the recent scenario, due to COVID-19 pandemic, government had promulgated order of LOCKDOWN and whoever disobeyed order, consequently faced legal action. Now question arises, whether police has authority to file FIR under Section 188 of Indian Penal Code and arrest such person when provision of Section 195(1)(a) of Criminal Procedure Code makes it clear that a Court is incompetent to take cognizance of any offence punishable under Sections 172 to 188 of Indian Penal Code without a written complaint of the concerned public servant.

Interpretation of Section 188 of Indian Penal Code (IPC) and Section 195(1)(a) of Criminal Procedure Code (CrPC)

Section 188 of Indian Penal Code provides for punishment for disobeying order promulgated by Public Servant. According to Schedule 1st of CrPC, offence under section 188 of Indian Penal Code is cognizable. Definition for Cognizable offence is given under Section 2(c) of Criminal Procedure Code Cognizable offence means offences in which police officer may arrest a person without warrant, following procedure given, for arrest.

In landmark cases of Lalita Kumari V. State of Uttar Pradesh and Sandeep Shukla V. State, Hon’ble Courts held that, police is duty bound to register FIR and investigate matter if the information received by them discloses commission of cognizable offence. As the classification of offence under Section 188 of Indian Penal Code is Cognizable and bailable, it is mandatory on Police to file FIR and investigate the case accordingly.

Section 195(1)(a) of Criminal Procedure Code provides procedure for prosecution of contempt of lawful authority of public servant. According to this section, court shall not take cognizance of any offence punishable under Sections 172 to 188 of Indian Penal Code without a written complaint of the concerned public servant. The term Complaint is defined under Section 2(d) of Criminal Procedure Code as any allegation made orally or in writing to magistrate to take action against person who has committed offence and it does not include police report.

The regular procedure for criminal cases is to register an FIR under Section 154 of Criminal Procedure Code, arrest the accused without a warrant and investigation by the police. Eventually, Police need to submit the Final Report (Charge-sheet) on completion of investigation under Section 173 of Criminal Procedure Code On the basis of such report, the Court takes cognizance and trial begins.

Dispute

Now, the conflict is that if the offence has been committed punishable under section 188 of Indian Penal Code, then police shall register FIR accordingly, as it is cognizable offence and follow regular procedure afterwards. However, in accordance with Section 195(1)(a), court is incompetent to take cognizance of offence committed under Section 188 of Indian Penal Code unless a written complaint of the concerned public servant has been given to the court. It means usual procedure of filing FIR, investigation and final report becomes useless.

Also, conflict arose in between Section 154 of Criminal Procedure Code and Section 195 of Criminal Procedure Code As per Section 154, it is mandatory for police to reduce any information as to commission of cognizable offence in writing i.e. to register FIR. Also it is clearly guided by Hon’ble Supreme Court in Lalita Kumari case. However, Section 195 of Criminal Procedure Code states that no court shall take cognizance of case under Section 188 of Indian Penal Code even though it is classified as cognizable offence. Section 154 and 195 of Criminal Procedure Code are apposite to each other and rather contrary.

Whether Section 195 Criminal Procedure Code Bar Registration of FIR and Investigation of offences under Section 188 of Indian Penal code?

Criminal Procedure Code is procedural law whereas Indian Penal Code is substantive law which provides for offence and punishment. Primarily, if we read Section 195 of Criminal Procedure Code, then we will find nothing which will deter police from filing an FIR for offence punishable under Section 188 of IPC. It just making courts incompetent to take cognizance of the case. Filing of FIR and cognizance of the case are two different things. When Criminal Procedure Code itself provides that offence is cognizable, then it would become mandate to register FIR and do further investigation in the matter. Now, question of cognizance come in picture, when police will submit final report or upon receiving a complaint of facts which constitutes offence, in the court in accordance with Section 190 of Criminal Procedure Code. So in my opinion, if court cannot take cognizance of offence under Section 188 of Indian penal code in accordance with Section 195 of Criminal Procedure Code, then it does not mean police cannot file FIR and investigate matter.

There are several judgments giving different views on this issue:

In State of Punjab V. Raj Singh, the Hon’ble Supreme Court held that, Statutory power of the police to investigate case punishable under Section 188 of Indian Penal Code cannot be controlled by Section 195 of Criminal Procedure Code Court further stated that after completion of investigation police can file charge-sheet in the court. Even though Court is incompetent to take cognizance of the case according to Section 195 of CrPC, it can file complaint on the basis of FIR filed by the aggrieved private party.

In M. Narayandas V. State of Karnataka, Hon’ble Supreme Court observed that Sections 195 and 340 of Criminal Procedure Code do not control the power of the police to investigate under Code.

From abovementioned judgments it is clear that, it is mandatory for police to register FIR for offence under Section 188 of Indian Penal Code and nothing in the Section 195 of Criminal Procedure Code prevents or takes away power of police to investigate in offences as contemplated under Section 195 of Criminal Procedure Code.

Perhaps, recently Madras and Bombay High court put different views regarding this issue.

 

Recently, the Madras High Court had quashed an FIR registered against an Anti CAA protestor for offence punishable under Section 188 Indian Penal Code and relied upon judgment in Jeevandham case.

In Jeevandham v. State, Hon’ble High Court has given following guidelines.

A police officer cannot register an FIR for any of the offences punishable under Section 172 to 188 of Indian Penal Code.

A police officer can arrest a person when a cognizable offence under Section 188 of Indian Penal Code is committed in his presence or where arrest is required, to prevent such person from committing an offence under Section 188 of Indian Penal Code.

The role of the police officer will be limited only to the preventive action and immediately thereafter, he has to inform about the same to the concerned public servant, to enable him to give a complaint in writing to court for taking further action.

No judicial court would take cognizance of Final report in respect of such offence.

Further, court directed Director General of Police of Chennai and Inspector General of various zones to immediately formulate process which would empower concerned public servants to deal with offence under Section 188 of Indian Penal Code to ensure no delay in filling written complaint by such public servant in according to Section 195(1)(a) of Criminal Procedure Code.

Bombay High Court in Shrinath Giram v. State of Maharashtra, had taken similar view. The Court held that no Police officer can file FIR for offence punishable under Section 188 of Indian Penal Code and it is barred under Section 195 of Criminal Procedure Code

Also in the case Apurva Ghiya v. State of Chattisgarh, the Hon’ble High Court has held that the police cannot register an FIR for the offence under Section 188 of Indian Penal Code and entire prosecution would be rendered Void-ab-initio if the procedure given under Section 195 of Criminal Procedure Code is not complied with. The Court further observed that, merely because the offence under Section 188 of the Indian Penal Code is cognizable, does not authorise the police officer to register FIR because the registration of FIR would necessarily result in submission of police report under Section 173(8) of the Code which is specifically barred by Section 195(1)(a) read with Section 2(d) of the Code. The definition of “complaint” contained in Section 2(d) of the Code makes it clear that complaint does not include a police report.

These are the different views of courts on this issue. Perhaps judgement given by Hon’ble Madras High court in Jeevandham case, is clearly per-incuriam to the decisions in Raj Singh and M. Narayandas case. Doctrine of per incuriam means judgement given in ignorance of earlier binding precedents. It is bad in eye of law. 

Dispute Resolution

The conflict will arise if we follow default or usual procedure of cognizable offence, while dealing with an offence punishable under Section 188 of Indian Penal Code, due to bar created by Section 195(1)(a) of Criminal Procedure Code To deal with this conflict we could stray a little bit in usual procedure.

When offence punishable under Section 188 is committed and police received information regarding such offence, then police will register FIR, investigate into the matter and prepare final report (Charge-sheet) in usual manner. But, along with final report, public servant shall give a complaint in writing to the court. So, court can take cognizance of the offence and requisite of Section 195 of CrPC would get complied. Perhaps Madras High court was not accepting this contention in Jeevandham Case.

In the recent situation, when the courts are not fully functional, it is not possible for the concerned Public Servant to approach the court. At this situation, Public servant may give informal complaint to police who shall register FIR, investigate matter and prepare informal report of the matter. And, when courts will be fully functional and it will be possible to approach the court, the Public Servant can give formal complaint in writing in accordance to Section 195 of Criminal Procedure Code along with informal investigation report. If there is any irregularity in report, than court is empowered to reject findings and may order fresh investigation.

Conclusion

In 1949, while advocating a new approach towards Interpretation of Statues, Lord Denning MR in Seaford Court Estates Ltd. V. Asher said, “A judge should ask himself the question: if the makers of the Act had themselves come across this ruck in the texture of it, how would they have straightened it out? He must then do as they would have done. A judge must alter the material of which it is woven, but he can and should iron out the creases”.

Under Section 154 of Criminal Procedure Code, it is mandatory for Police to file FIR if they received information which discloses commission of cognizable offence and on other side, Section 195 of Code, deters police from filing FIR for offence punishable under Section 188 of Indian Penal Code even though offence is classified as cognizable. Therefore, there should always be harmonious interpretation of statue if provisions of law are in conflict with each other. If we follow above mentioned solution then both conflicting provisions under Section 188 of Indian Penal Code and Section 195 of Criminal Procedure Code can operate together. Whenever such conflict arises in between two different provisions of law then it becomes fundamentally important to ding the intention of the legislature, especially while interpreting the procedural laws.

In the end, it is open to Courts in the words of Lord Denning to decide which approach is better towards interpretation, whether The Old Grammatical Approach or The Modern Purposive Approach. 

=====================================

 

 

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RIGHT TO WATER AND LEGISLATION FOR GROUND WATER USAGE EMPHASIZED IN THE NHRC MEETING AS KEY TO ACHIEVING SUSTAINABLE DEVELOPMENT GOALS

Right to water and legislation for ground water usage emphasized in the NHRC meeting as key to achieving sustainable development goals

New Delhi, 27th July, 2021

The National Human Rights Commission, NHRC India, today held an online meeting on the Right to Water with different stakeholders. Chairing it, Mr. Justice A.K. Mishra, Chairperson NHRC said that water is an important component of life. It is an obligation on the part of local bodies to supply potable water. However, conservation, preservation and distribution of water remain a vexed issue not only internationally but also regionally and locally.

Justice Mishra said that contamination of ground and surface water bodies remains a serious problem despite several efforts being made involving huge expenditure. He said that the Commission looks forward to the Jal Jeevan Mission, 2024 seeking to provide potable water taps in every village householdsm

Co- chairing the meeting, the NHRC Member, Mr. Justice M.M Kumar said that in the wake of scarcity of drinking water, it’s judicious use and de-contamination needs to be promoted. Sewage flow in the rivers should be stopped. He spoke about several court judgments and Article 21 of the Constitution to extend Right to Water within the ambit of Right to Life.

NHRC Member, Mr. Rajiv Jain said that crop rotation needs to be promoted to discourage excessive use of ground water resources for irrigation purposes. He also said that codification of Right to potable water on the lines of Right to Food needs to be ensured.

Earlier, NHRC Secretary General, Mr. Bimbadhar Pradhan, triggering the discussions said that big bang water reforms are required to achieve Sustainable Development Goal 6.1. He underlined several issues including overexploitation, inequitable distribution and riparian issues related to water resources.

Mr. Bharat Lal, Additional Secretary, Ministry of Jal Shakti gave an insight into the efforts of the Union Government towards ensuring potable water taps for every household by 2024. He also said that the focus of the Government is not just on addressing the issue of chemical contamination of water bodies including underground and surface but also on the Geogenic contamination.

The other prominent speakers included Mr. Manish Wasuja, WASH Specialist, UNICEF, Mr. V.K Madhavan, Chief Executive, WaterAid India, Mr. Surajit Dey, Registrar (Law), Mrs. Anita Sinha, JS (P&T), also addressed the meeting.

Some of the other important suggestions that emerged during the discussions were as follows:

• Besides recognizing the need for Right to Water, a legislation is also required on ground water use;

• Define clearly Right to Water with reference to groundwater and surface water usage;

• Promote revival of traditional water bodies;

• Promote crop rotation and less water consuming crops;

• Promote micro irrigation technologies;

• Discourage use of potable water for irrigation purposes;

• Besides the chemical contamination, microbiological contamination also needs to be looked into;

• Attention also needs to be paid towards the preservation of dying watershed services like springs, which have been a perennial source of water supply to the rivers and not just the rain and glacier melted water;

• Encourage role of women in water usage and its management;

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All India council of human rights, liberties & social justice has been added as signatory to UNITED NATION GLOBAL COMPACT. The world's largest corporate responsibility initiative with nearly 12,000 business and non-business participants in 140 countries. That All India Council of Human Rights, Liberties & Social Justice (AICHLS), is a duly registered Society under the Societies Registration Act XXI of 1860, and is functioning with commitment to the Noble Cause of Human Rights Protection and Promotion, Justice for All, Economic Upliftment of the Underprivileged, Education, Love, Peace, Harmony and Friendship, National & International Integration by Exchange of Ideas & Ethos in India and also amongst the neighbouring countries and the people of the rest of the World at large.

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Advocate , Supreme Court of India.

Global Chairman , All India Council of Human Rights, Liberties & Social Justice.

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International Convener, Universal mission for Peace and Human Rights.

Chairman, National Council of News and Broadcasting.

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