A SAFETY-VALVE FOR DEATH: SECTION 46 OF CODE OF CRIMINAL PROCEDURE AND INADEQUATE ACCOUNTABILITY - The Daily Guardian
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A SAFETY-VALVE FOR DEATH: SECTION 46 OF CODE OF CRIMINAL PROCEDURE AND INADEQUATE ACCOUNTABILITY

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The notional aspect of an arrest has time and again been subjected to judicial scrutiny and deliberation because of the very fact that the rights of an individual arrested are often put at peril by instruments that wear the cape of perfect legality and often the very procedure and purpose of an arrest is seen to be violated.

This paper deals with Section 46 of the Criminal Procedure Code 1973 (CrPC), more specifically its Sub sections (2) and (3). The section through its words contains a string of loopholes which can be mis-used by authorities, police more particularly, to interpret it literally and justify any death that occurs while they are arresting any person. Easy justification and lack of accountability is what this section enables through its interpretation; although this fact must never be ignored that such an intent can never be promoted by any law maker. Still the section is in existence and in use. This article seeks to analyze the core flaws of the section and its misuse which is happening.

INTRODUCTION OF SECTION 46 OF CRIMINAL PROCEDURE CODE

Section 46 of the Criminal Procedure Code 1973 speaks explicitly about ‘Arrest how made’.

The word of primary importance here, which is arrest,has surprisingly never been defined anywhere including frameworks like Indian Penal Code (IPC), CrPC or any other enactment dealing with criminal offenses for that matter.

However, the section for discussion that is Section 46 of the CrPC somewhat talks about the word arrest by using the words ‘Touch’ and ‘Confine’. The term, in general sense, may be defined as deprivation of a person of his liberty, as in liberty to move anywhere, by a legal authority or at least by apparent legal authority.

There are 4 subsections in the said section of 46 but the ones often under scrutiny are sub sections (2) and (3). Section 46(3) reads as follows, “If such person forcibly resists the endeavor to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to affect the arrest.”

So this implies that if the person who is being arrested attempts to escape or evade their arrest in any manner or rather resists the police, then the police can use ‘all means necessary’ to effect the arrest. This expression ‘all means necessary’ may also mean unfettered force as a requirement to stop the fleeing accused.

Section 46(3) reads as: “Nothing in this section gives a right to cause the death of a person who is not accused of an offense punishable with death or with imprisonment for life.” This section explicitly says that there is nothing that would be used to justify the death of a person who has not been accused of an offense punishable with death or imprisonment for life.

So does this mean that the death caused in a circumstance otherwise is justifiable under the procedure under law? This also raises the question that is whether section 46 blatantly approves encounters and Police brutality in the garb of the powers granted to them.

JUSTIFICATION OF DEATH SOUGHT DURING ARRESTS UNDER SECTION 46

Critically analyzing the section brings forth the probable loopholes that the legislators and the law enforcers have long overlooked and this fact has been very well used to benefit by the people who have sworn to commit offenses according to the procedure established by law.

The High Court of Guwahati opined that “Causing of death of any human being by another human being is treated to be not an offence, when it is done strictly in accordance with law, for example, the execution of a convict who is awarded the death penalty by the competent court.” This premise that the police may cause death in circumstance hence provided has been actually considered in various cases.

So what section 46 (2) may be interpreted as is that, by the virtue of this case, something that would have been a plain case of culpable homicide or murder for that matter can be excused if the judge or the executor are acting to the procedure that has been laid down in the law.

This interpretation of the particular law has led to the rise in the case of Extra judicial killings, more commonly known as Encounters. If the police is able to show that there was any attempt to evade arrest or any attack on the police then the police is justifiable even if in the process of the arrest the life of the arrestee is lost.

Additionally, one more enactment is of prime importance here and should be considered while discussing arrests. Sections 100 and 103 of the Indian Penal Code illustrate the right of private defense of body and property. So if section 46(2) as well as 46(3), read together with the above mentioned provisions as enumerated in the IPC, is taken up as a shield by any police official or any executor of an arrest for that matter, then that person is basically foolproof to kill any person on the pretext of right to private defense or an evasion of arrest.

But this must be borne in mind that sections 100 and 103 of the IPC actually elaborate and try to justify circumstances which would justify the causal of the death but section 46 on the other hand just stresses upon the charges that have been levied upon the person and that alone justifies his death.

The section 46 only requires the fulfillment of two meager conditions for justification of the death thereby caused and they are:-

1. The person forcibly attempts to resist their arrest or tries to evade it

2. The person has been accused of any offense punishable with a death sentence or an imprisonment for life.

So it is quite evident that if critically analyzed, the sub sections (2) and (3) of section 46 have made it extremely easy for a death to be justified. No doubt cases of death have only risen in the past and up till now

As draconian as it may feel, provisions like these have been used to justify numerous encounters and because they have all been conducted with due importance laid upon the ‘procedures given by the law’, the parties causing the death have been always excused.

But being the judge in one’s own case is not something that is needed in this state that runs on a welfare model.

Time and again the courts of law in India in cases like Public Union for civil liberties v. Union of India and the National Human Rights Commission if India (NHRC) has tried to incorporate a mode of guidelines that would cut down the misuse of section 46(2) and (3) where in some cases branding the people as terrorists or insurgents is done but the authorities have failed to exercise those.

In fact NHRC provides strict guidelines regarding bestowing of gallantry awards and promotions upon those who have misused the powers granted under the right to arrest. The NHRC, in its revised guidelines issued on the 12th of May 2010 Point F, has strictly advised against this practice, until and unless the doubt on the executor is disproved beyond any iota of doubt.

The NHRC, in the said guidelines, advised that information report is to be made in cases in which death has occurred while arrest of a person is being made. But these sorts of guidelines are hardly being followed while dealing with cases of this kind.

SECTION 46 AND BEING A JUDGE IN ONE’S OWN CASE

The literal interpretation of section 46 makes the delivery of justice entirely at the hands of the executors. All this is because the literal interpretation of section 46 makes the executors so less accountable for their actions which would in normal circumstances amount to culpable homicide or murder. An increased quantum of Police accountability is called for.

The National Police Commission (NPC) appointed by the Government of India in 1977 promised a varied term of reference covering the police organization, its role, accountability functions, relations with the public, political watch in its work, misuse of powers, evaluation of its performance etc. said in its 8th report about the sensitization of the idea of holding some form of accountability to the people and this would be very crucial if the misuse of section 46(2) and (3) is to be stopped. Although this report did say that these complaints should be dealt with by the police itself.

It happens that most of the trials on this topic of death caused by the police during arrest is handled by them themselves and this was dealt in by the Padmanabhaiah Committee (2000) which said in its report at point number 25 that the complaint should be handled by a Non Statutory authority headed by the District Magistrate.

The NPC report also suggests withdrawal of Protection as have been given under Sections 132 and 197 of the CrPC 1973 which provide protection to various public servants against prosecution brought against them relating to performance of official duties. This may be regarded as a cue to stop the misuse of section 46 and justification of death because of the two pointers that have already been mentioned in page 5 because this would enable transparency, remove the garb of power under procedure and enable citizens to complain against the officials without being restrained by the procedural protection which are being used as shield.

The judiciary too has shown a pro police attitude in the past. For example in the case of Vandana Vikas Waghmare v. State of Maharashtra Bombay High Court held that, it is the responsibility of the police concerned to take adequate and appropriate steps to book the ‘gangsters’ under the law. In this interpretation the Court completely overlooked how the facets of subsections (2) and (3) can be so easily misinterpreted.

The modes of holding an official accountable are often capricious and politically expedient. The investigation process as to whether the pointers laid in section 46 of the CrPC are fulfilled or not, is susceptible to a great deal of manipulation because the judiciary would only act upon and according to the evidence and materials presented before it and this gives a great deal of power in the hands of the police.

Although streaks of reform in this attitude of the Courts of Law have been showcased in multiple cases.

The Supreme Court of India in the case of Extra Judicial Execution Victim Families Association, Justice Madan B. Lokur said that “Scrutiny by courts in these cases makes the state complain of its having to fight militants, insurgents and terrorists with one hand tied behind its back. Justice Lokur went on to say that such a criticism is not valid because what is under scrutiny is the Smoking Gun, not the operation. Then it went on to draw the difference between use of force in an operation and use of such deadly force that is akin to using a sledgehammer to kill a fly saying that one is an act of self-defense while the other an act of retaliation.

The Apex Court in the case of D.K. Basu v. State of West Bengal while framing guidelines that were to be followed in all cases of arrest or detention till formulation of legal provisions regarding the same are done insisted upon ‘transparency of action and accountability’ as safeguards against the misuse of powers entrusted to the police just as the one in Section 46 and pointed towards basic human values to be adopted.

The landmark case of Om Prakash elucidated the crux of what happens when arrest is made simply for the sake of it and the sanctity of a clean, authorized legal procedure is blatantly ignored, by stating, “Admonishment of ‘Trigger Happy Personnel who fabricate evidence and present the same to avail protection under sections like 46 of the CrPC is what is needed as according to the Judicial wing. Because killings in the garb of procedural laws would be just a form of State sponsored terrorism.”

CONCLUSION

Article 21 of the Indian Constitution reads as, “No person should be deprived of his life or personal liberty except according to procedure established by law”. So this points out to the fact that if procedure established by law is followed then deprivation of life or personal liberty is allowed which may also include a person’s death. This paves the perfect path for its misuse because evidence as to what actually happens in such encounters is often in the hands of the executors.

Deaths are quite often justified by calling those who are killed as militants insurgents etc. Now, in all probabilities, this fact must be noted in mind that police faces dire situations while dealing with criminals and miscreants, where sections like 46 of the CrPC helps dealing with the offenders faster and in a more effective way but the element of accountability, a faire and just welfare state and of course the Rule of Law which believes in Presumption of innocence also needs to be taken into account.

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AN ASSOCIATION OF CORPORATE BODIES CAN ESTABLISH A CAPTIVE POWER PLANT PRIMARILY FOR THEIR OWN USE UNDER THE ELECTRICITY ACT: SUPREME COURT

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The Supreme Court in the case Chhattisgarh State Power Distribution Company Ltd. vs Chhattisgarh State Electricity Regulatory Commission observed that a captive power plant primarily for their own use can be established by an association of corporate bodies.

The requirement would be that the consumption of SBIPL and SBMPL together should not be less than 51% of the power generated. Admittedly, the joint consumption by SBIPL and SBMPL is more than 51% and under the provisions of the said Act, the use of electricity by it would be for captive use only even an association of corporate bodies can establish a power plant. Since SBMPL holds 27.6% of the ownership, the requirement of not less than 26% of shares is fulfilled by SBMPL as SBMPL holds 27.6% equity shares in SBPIL.

The fourth proviso to sub­section (2) of Section 42 of the said Act would also reveal that surcharge would not be leviable in case open access is provided to a person who has established a captive generating plant for carrying the electricity to the destination of his own use and under Section 9 of the said Act, could be an individual or a body corporate or association or body of individuals, whether incorporated or not, it is clear that the person will get benefit even an association of corporate bodies can establish a captive power plant it has been seen. The definition of “person” is wide enough to include any company or body corporate or association or body of individuals, whether incorporated or not, or artificial juridical person it should be primarily for the use of the members of such co­operative society or association is the requirement, the Bench observed while referring to the provisions of the Electricity Act.

The BPIL, the respondent contended and supported the impugned judgment that no permission is required from the Commission for supply of electricity for its own use. Thereafter the appellant Company contended that unless SBPIL consumes 51% of the aggregate electricity generated by it, it will not be entitled to get the benefit under Section 9 of the said Act, in an appeal filled before the Apex Court.

An appeal was dismissed by the Appellate Tribunal for Electricity filed by the Company further The Commission held that SBPIL was entitled to supply electricity to its sister concern SBMPL and the same would qualify to be treating as own consumption and within the ambit of Section 9 read with Section 2(8) of the Electricity Act, 2003 and Rule 3 of the Electricity Rules, 2005 SBPIL submitted a petition for providing open access and wheeling of power through the transmission system of the Chhattisgarh State Power Distribution Company Ltd (Company) for captive use by SBMPL to the Chhattisgarh State Electricity Regulatory Commission, the commission. A Captive Generation Plant is established by SBPIL, and is a sister concern of SBPIL Shri Bajrang Power and I spat Ltd and Shri Bajrang Metallics and Power Ltd, SBMPL.

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Where the crime was committed the remission or premature release policy of the state has to be considered: Supreme Court

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The Supreme Court in the case Radheshyam Bhagwandas Shah, Lala Vakil vs State of Gujarat observed that where the crime was committed has to be considered in the remission or pre­mature release in terms of the policy which is applicable in the State.

While allowing the writ petition the court observed and contended that Once the crime was committed in the State of Gujarat, after the trial been concluded and judgment of conviction came to be passed, all further proceedings have to be 6 considered including remission or pre­mature release in terms of the policy which is applicable in the State of Gujarat where the crime was committed and not the State where the trial stands transferred and concluded for exceptional reasons under the orders of this Court, as the case may be. The court further stated that under Section 432(7) CrPC the appropriate Government can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments.

the appropriate Government in the ordinary course would be the State of Gujarat. But the case was transferred in exceptional circumstances by this Court for limited purpose for trial and disposal to the neighboring State i.e., the State of Maharashtra by an order dated 06.08.2004. ordinarily, the trial was to be concluded in the same State and in terms of Section 432(7) CrPC as the crime in the instant case was admittedly committed in the State of Gujarat, observed by the Apex Court.

he application for pre­mature release has to be filed in the State of Maharashtra and not in the State of Gujarat, as prayed by the petitioner by judgment impugned dated 17.07.2009 As His petition filed in the High Court of Gujarat was dismissed taking note of Section 432(7) CrPC on the premise that since the trial has been concluded in the State of Maharashtra. Thereafter He had filed his petition for pre­mature release under Sections 433 and 433A of the Code of Criminal Procedure, 1973 stating that he had undergone more than 15 years 4 months of custody.

The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed and noted that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of the appropriate Government.

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Adopt roster based reservation for preferential candidates as followed by JIPMER: Supreme Court directs all AIIMS institutes

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The Supreme Court in the case Students Association AIIMS Bhopal And Or’s. v. AllMS and Or’s observed and directed all AIIMS Institutes to adopt roster-based reservation followed by Jawaharlal Institute of Postgraduate Medical Education and Research, Pondicherry (JIPMER) as a plea was filled in the Court seeking direction to AIIMS to have a defined criteria for arriving at seat matrix for institutional preference candidates in INI-CET examination.

the order of the Apex Court in the case AIIMS Students’ Union v. AIIMS And Or’s, would not be applicable if It emphasized that if the roster-based system is implemented the actual roster points for AIIMS would be different from JIPMER as the same would depend on the percentage of seats decided to be allocated to the preferential candidates but It stated that the reservation would be similar to the one adopted by JIPMER AIIMS New Delhi was willing to provide a roster-point based reservation for its institutional preference candidates, by way of an affidavit 20th January 2022 the Bench was apprised that pursuant to a meeting held on 28th June 2020 as prescribed the relevancy:

It shall not be too wide with the one for the general category candidate, that the margin of difference between the qualifying marks for the Institute’s candidate.

The one who has secured marks at the common entrance PG test less than the one secured by any other candidate belonging to reserved category enjoying constitutional protection such as SC, ST etc. cannot be the AIMS graduate the last student to qualify for admission.

appearing on behalf of AIIMS, Advocate, Mr. Dushyant Parashar, New Delhi was asked to get instructions from AIIMS, Bhubaneswar and Jodhpur so that the Court can pass appropriate orders on the next date of hearing. As that apart from AIIMS, Bhubaneswar and AIIMS, Jodhpur, all other AIIMS before the Apex Court has agreed to implement the roster-based reservation system followed by JIPMER Puducherry for their institutional preference candidates, the Court was informed at the last date of hearing.

the petition had been filed seeking direction to AIIMS to disclose how the seats for institutional preference candidates are to be allotted in the view of the same the petitioners claim that in the INI-CET examination conducted in July, 2021, only 4 seats (1.87%) in AIIMS, New Delhi were allotted to institutional preference candidates. Rivetingly, the petitioners note that no seats were allocated to any other AIIMS for admission of institutional preference candidates.

the Bench comprising of Justice L. Nageswara Rao and the justice A.S. Bopanna observed and noted that to record in the order that the roaster system would be applicable from this year. Mr. Parashar informed it that since new software is to be put in place for counselling, it might cause some delay. The bench further stated that the court will order it to apply this year but in case of delay AIMS can come later.

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‘The crime committed has to be considered in the remission or premature policy of the state’

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The Supreme Court in the case Radheshyam Bhagwandas Shah, Lala Vakil vs State of Gujarat observed that where the crime was committed has to be considered in the remission which is applicable in the State and the pre­mature release in terms of the policy

The Court noted while hearing the writ petition that in terms of the policy which is applicable in the State of Gujarat where the crime was committed and not the State where the trial stands transferred and concluded for exceptional reasons under the orders of this Court once the crime was committed in the State of Gujarat, after the trial been concluded and judgment of conviction came to be passed, all further proceedings have to be 6 considered including remission or pre­mature release, as the case may be, in the instance case. under Section 432(7) CrPC, there cannot be a concurrent jurisdiction of two State Governments, can be either the Central or the State Government of the appropriate government.

in terms of Section 432(7) CrPC, the trial was to be concluded in the same State and ordinarily in the State of Gujrat the crime in the instant case was admittedly committed. by an order 06.08.2004., the case was transferred in exceptional circumstances by this Court for limited purpose for trial and disposal to the neighbouring State i.e., the State of Maharashtra, observed by the bench of Apex Court.

As mentioned by the petitioner in the plea that by judgment impugned dated 17.07.2019., the application for pre­mature release has to be filed in the State of Maharashtra and not in the State of Gujarat and His petition filed in the High Court of Gujarat was dismissed taking note of Section 432(7) CrPC on the premise that since the trial has been concluded in the State of Maharashtra. under Sections 433 and 433A of the Code of Criminal Procedure, 1973, the petition was filled by the petitioner for premature release further the petitioner stated that that he had undergone under the custody of more than 15 years 4 months.

Section 302, 376(2) (e) (g) and reading it with Section 149 IPC, Shah was found guilty for the offence, the offence committed by him in the State of Gujrat.

The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of that appropriate government.

The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of that appropriate government.

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Seeking reduction of qualifying the percentile for admission in ayurveda course: A plea in Supreme Court

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The Supreme Court in the Case Amit Kumar v UOI & Or’s observed in Ayurveda course in view of large number of vacancies and for seeking reduction of qualifying percentile for admission, an ayurveda aspirant who appeared in NEET 2021 has approached the Court.

the court had observed that lowering the minimum marks and reducing the percentile for admission to first year BDS Course would not amount to lowing the standards of Education and further the Court directed to lower the percentile mark by 10 percentiles for admission in first year of BDS Course for academic year 2020-2021, with regards to substantive the contentions made by the petitioner by referring the judgement passed in the case in Harshit Agarwal & Or’s v Union of India.

the percentile may also be reduced for Ayurveda programme enabling the Petitioner to take admissions then If percentile is being reduced/considered for reduction for BDS course was further stated by the petitioner in the plea, while referring to an order dated 04.29.2022. Thereafter the top Court had asked Centre to consider lowering the percentile for BDS Courses.

Seeking the Centre’s response in a plea by filing a counter affidavit, noted by the Top Court specifying the above-mentioned information:

after deducting the admission granted for MBBS Courses (BDS Courses), the total number of Candidates.

in All India Quota and State Quota, the totals number of vacant seats.

in government colleges on one hand & private/deemed colleges on the other hand, the number of seats which are remaining.

the petition was filed through AOR Neeraj Shekhar and for the petitioner Advocate Shivam Singh appeared.

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Bank case rejected by Supreme Court against farmer

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The Supreme Court in the case Bank of Maharashtra & Or’s v Mohanlal Patidar observed an order given by the High Courts of directing the bank the OTS proposal given by a farmer who had availed a loan from the bank, the court further pulled up the Bank of Maharashtra for challenging the order.

The Bank shall complete remaining formalities and provide all consequential benefits flowing therefrom to the petitioners, the court further stated that it is needless to emphasize The OTS proposal given by the petitioners in both the cases shall be accepted by the Bank and ‘sanction letters’ be issued forthwith, the court allowed the petitioner plea.

The petitioner not only promptly challenged the said order, it is noteworthy that petitioner never acceded to the unilateral decision dated 25th August 2021 and even otherwise the letter dated 25th August 2021 is held to be illegal by us, clause-7 of policy cannot take away the fruits of OTS benefits, within two months from the date of issuance of order dated 22th September 2021, the petitioner filled the instant petition and further the court directed we are unable to give stamp of approval to the impugned orders and action of the Bank, observed by the bench comprising of Justice Sujoy Paul and the justice Dwarka Dhish Bansal while setting aside the impugned orders of the bank.

In an order dated 03.09.2021 it was stated and it showed that the petitioner was required to pay minimum 10% of the OTS amount within stipulated time and that he had deposited Rs.35,00,000/- out of Rs.36,50,000/- within the stipulated time, it was argued before the court by the counsel.

As full and final settlement of the dues, he will be required to deposit Rs.50.50 lakhs as he was informed by the Asset Recovery Branch of the Bank.

Whole law comes into place when a matter of farmers come as the down payment were also accepted and it was further stated by the bench in an oral remark You don’t file cases against the ones who loot 1000s of crores.

The respondent had obtained a loan and intended to pay it in terms of a One Time Settlement which was quantified as Rs 3650000/-. in furtherance thereof the respondent had deposited Rs 35,00,000 with the bank, in the above-mentioned matter.

The bank had miserably failed to accept the same and on the contrary, decided to enhance the compromise amount to Rs.50.50 lakhs unilaterally which was contrary to the OTS scheme, contended by the counsel further the counsel stated that the bank had miserably failed to accept the same and on the contrary, decided to enhance the compromise amount to Rs.50.50 lakhs unilaterally which was contrary to the OTS scheme.

The bench comprising of Justice DY Chandrachud and the justice Surya Kant observed and remarked while dismissing the plea assailing Madhya Pradesh High Court’s order dated 02.21.2022 Such a litigation in Supreme Court will spoil the families of farmers financially, Go after bigger fish.

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