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Charge Of False Accusation U/S 211 IPC Can Be Made Against De Facto Complainant & Not Against Investigating Officer: Madras High Court

first_imgNews UpdatesCharge Of False Accusation U/S 211 IPC Can Be Made Against De Facto Complainant & Not Against Investigating Officer: Madras High Court LIVELAW NEWS NETWORK27 Feb 2021 7:04 AMShare This – xThe Madras High Court has held that an officer who conducted investigation or filed a final report pursuant to filing of a criminal complaint cannot be prosecuted under Section 211 of IPC for making false accusations, in case of acquittal of the accused. A Single Bench of Justice N. Anand Venkatesh observed that if investigating officers are exposed to such proceedings in all…Your free access to Live Law has expiredTo read the article, get a premium account.Your Subscription Supports Independent JournalismSubscription starts from ₹ 599+GST (For 6 Months)View PlansPremium account gives you:Unlimited access to Live Law Archives, Weekly/Monthly Digest, Exclusive Notifications, Comments.Reading experience of Ad Free Version, Petition Copies, Judgement/Order Copies.Subscribe NowAlready a subscriber?LoginThe Madras High Court has held that an officer who conducted investigation or filed a final report pursuant to filing of a criminal complaint cannot be prosecuted under Section 211 of IPC for making false accusations, in case of acquittal of the accused. A Single Bench of Justice N. Anand Venkatesh observed that if investigating officers are exposed to such proceedings in all cases where the accused persons are acquitted, it will directly interfere with their independence in conducting an investigation. The Court further made it clear that the language used under Section 211 regarding false charge can only relate to the defacto complainant who set the criminal law in motion, and not the investigating officer. The observation was made in a criminal petition filed by an ex-DSP of CBCID, challenging the summons issued by a Trial Court based on the complaint given by the Respondent under Section 340 of CrPC. [Section 340 stipulates the procedure to be observed by a Court in cases mentioned in section 195 of CrPC which prescribes prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence] Background The Petitioner who was then the Deputy Superintendent of Police, CBCID was assigned the task of investigating a case against the Respondent herein. After acquittal from all charges, the Respondent filed a complaint before the court below under Section 340 CrPC against the defacto complainant and the Petitioner herein, on the ground that they have committed an offence under Section 211 IPC, and the entire case was a malicious prosecution against the Respondent. Challenging the summons before the High Court, the Petitioner submitted that he had only investigated the FIR after it was transferred to CBCID and the mere fact that the Respondent was acquitted by the court will not attract an offence under Section 211 IPC. He contended that if Respondent’s claim of malicious prosecution is taken to be true, the Respondent can only file a suit claiming for damages for malicious prosecution before the competent court, and it cannot be a ground to file a complaint under Section 340, CrPC. The Respondent on the other hand submitted that the findings given by the trial court clearly show that the entire case is false and he was intentionally roped in as an accused for having filed a Habeas Corpus Petition questioning an illegal arrest made by the police. He further argued that the court below has only called the Petitioner for a preliminary enquiry and whatever grounds are raised by the Petitioner in the present petition, can be raised before the court below. Findings Firstly, the Court dealt with maintainability of the instant petition in view of the Respondent’s submission. The Court was of the opinion that if the allegations made in the Respondent’s complaint, even if taken as it is, do not make out an offence under Section 211, IPC, then the Petitioner shall not be required to go through the ordeal of even a preliminary enquiry before the court below. Thus, it was held that it is essential to hear this petition and test the complaint to satisfy as to whether an offence under Section 211 IPC has been made out against the Petitioner. The Court concurred with the Petitioner that the complaint filed by the Respondent at the best makes out a case for malicious prosecution. It held, “In a case of malicious prosecution, which gives rise to a tortious liability, only a suit for damages can be filed by establishing the ingredients to maintain such a suit. The grounds for maintaining a suit for malicious prosecution cannot form the basis for filing a petition under Section 340, Cr.P.C. since it has to independently satisfy the requirements of Section 195(1)(b), Cr.P.C.” Reliance was placed on Santokh Singh &Ors. v. Izhar Hussan & Anr., (1973) 2 SCC 406, whereby the Supreme Court had held that the words “false charges” must be read along with the expression “institution of criminal proceedings”, which relates back to the initiation of criminal proceedings and it can never be related to an alleged false charge framed after the filing of the final report. The Court further held that an investigation officer cannot be charged for false accusation under Section 211 IPC on acquittal of the accused. “If investigating officers are going to be exposed to such proceedings in all cases where the accused persons are acquitted from all charges, it will directly interfere with the independence of the authority in conducting an investigation,” it observed. In context of the present case, the Bench noted, that the on a complaint given by one Mr. Rajamani, the FIR was registered and the arrest was made. The Petitioner came into the scene only at a later point of time when the case was transferred to the file of the CBCID. Thus, admittedly, it was not the Petitioner who had set the criminal law in motion. Case Title: A. Radhika v. Wilson Sundararaj Click Here To Download Order Read OrderNext Storylast_img read more

Rethinking Abortion In India: A Human Rights Conversation

first_imgColumnsRethinking Abortion In India: A Human Rights Conversation Niharika Kaul16 May 2021 4:46 AMShare This – xThe issue of abortion has gained particular momentum in the past few months with two interesting developments in very different parts of the world- the passage of the Medical Termination of Pregnancy (MTP) (Amendment) Bill 2020 in the Rajya Sabha (Upper House) in India and the recent passage of the Argentinian abortion bill, that legalises abortions up to the 14th week of pregnancy. While the MTP (Amendment) Bill 2020 extends the existing time period within which abortion can be conducted in India to 24 weeks in some cases, the Argentinian bill replaces the prior abortion law based on the ‘exception model’, where three exceptions were allowed to an otherwise blanket criminal prohibition- when a pregnancy endangers the life or health of a woman, girl, or pregnant person, or when it results from rape. After the Argentinian Senate narrowly rejected a bill to decriminalize abortion in 2018, the lower house of Congress finally passed the bill this January.Advertisement Statistics given by the World Health Organisation (WHO) on unsafe abortions globally paint a very worrying picture. Between 2015 and 2019, on average, 73.3 million induced (safe and unsafe) abortions occurred worldwide each year. Amongst these, 1 out of 3 abortions were carried out in the least safe or dangerous conditions. Over half of all estimated unsafe abortions globally were in Asia, most of them in south and central Asia. Each year between 4.7% – 13.2% of maternal deaths can be attributed to unsafe abortion. In the backdrop of these figures, Argentina’s passage of the abortion bill is a positive step towards creating safe mechanisms for carrying out abortion in Argentina, thereby helping women and girls to access the most basic human right, i.e. the right to life.Advertisement Abortion and the right to life The right to terminate pregnancy hinges on the most fundamental human right, that is right to life. The right to life, enshrined in Article 3 of the Universal Declaration of Human Rights, is the most valuable right that rests in every human being, and that which’s effective protection is the prerequisite for the enjoyment of all other human rights. Treaty jurisprudence suggests that denying women access to abortion can amount to violations of the rights to health, privacy and many times, the right to be free from cruel, inhumane and degrading treatment. The General comment on right to life adopted by the UN Human Rights Committee explicitly advocates for women’s right to safe abortion as an integral part of the right to life:Advertisement Advertisement ‘restrictions on the ability of women or girls to seek abortion must not… jeopardize their lives, subject them to physical or mental pain or suffering which violates article 7, discriminate against them or arbitrarily interfere with their privacy. States parties must provide safe, legal and effective access to abortion where the life and health of the pregnant woman or girl is at risk, and where carrying a pregnancy to term would cause the pregnant woman or girl substantial pain or suffering, most notably where the pregnancy is the result of rape or incest or is not viable.’Advertisement Advertisement Advertisement Thus, the General comment places women’s right to life above any state efforts to regulate voluntary termination of pregnancy and urges states to actively revise their abortion laws to ensure the same. It affirms that criminalising abortion is contrary to right to life of women and girls because such measures compel them to resort to unsafe abortion mechanisms. Despite the clear international consensus on the importance and urgency in facilitating safe abortions, women and girls in India continue to face systemic socio-cultural, economic, religious, political and infrastructural barriers in accessing safe and dignified abortion.The MTP (Amendment) Bill 2020 in India Criminalising abortion often causes denial or delay of safe abortion, and forced continuation of pregnancy, that are in fact forms of gender-based violence.[1] Covid-19 exacerbated delays in accessing safe abortion facilities for women and girls in India, which will have long-lasting impacts on their lives. Although the Medical Termination of Pregnancy (Amendment) Bill 2020 (MTP Bill 2020) in India provides for certain provisions which are progressive, it still doesn’t address some of the critical aspects about abortion that require urgent intervention. In India, the MTP Bill 2020 was introduced in the Lok Sabha in March 2020 and was recently passed in the Rajya Sabha on 16th March, 2021. Amongst the highlights of the bill is the extension of the period of conducting the abortion from 12 weeks (previously) to 20 weeks (revised) on advice by one medical practitioner. The upper gestation limit for certain categories of women is enhanced from twenty to twenty-four weeks. Second, the explanation in Section 3 regarding mental health issues caused by failure of contraceptives, substitutes ‘any married woman or her husband’ to ‘any woman or her partner’. This revision paves the way for live-in partners, un-married pregnant couples to undertake abortion which is definitely a progressive step. Right to abortion based on the principle of choice The biggest challenge posed by the amendment is that it still doesn’t place emphasis on the choice and agency of the woman; rather it prescribes limited medical, psychological and socio-cultural factors that determine whether abortion can be conducted for the woman. State level Medical Boards have been proposed to be set up to decide if a pregnancy may be terminated after 24 weeks in cases of substantial foetal abnormalities. If a woman, for whatever reason wants to get an abortion after 24 weeks, and the medical board denies her permission, she can only take recourse through a writ petition in court, which in itself isn’t an adequate remedy. The category of women who may be permitted to terminate their pregnancies between 20-24 weeks is unspecified, which are to be delineated in the MTP Rules, arguably a convenient way of usurping powers to determine the category solely by the executive. The link between discrimination and women’s reproductive role is a matter of recurrent concern which has been recognised in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 1979, (The Convention 1979), to which India is a signatory. The Convention 1979 affirms women’s right to reproductive choice. The Supreme Court of India in the landmark judgment Justice K S Puttaswamy (Retd.), And Anr. Versus Union Of India And Ors. (2017) upheld the decision in Suchita Srivastava v Chandigarh Administration (2009) 9 SCC 1 and affirmed the right to bodily autonomy of a woman as a constitutional right, which is an ingredient of personal liberty under Article 21. Given that right to bodily autonomy is a constitutional right under Article 21, conducting an abortion to one’s pregnancy being hinged on the principle of choice over ones own body must be decriminalised, and made accessible for any woman who chooses to abort her pregnancy. In India, it is the lower caste, poor, socio-economically vulnerable women who are the biggest sufferers of criminalisation of abortion. Right to abortion is directly linked to the right to a dignified life, a fundamental right that every woman must be able to access. Destigmatisation of abortion must be a parallel process that the executive engages with, through community-based initiatives. Engaging local governing bodies, women students, health workers and practitioners to create awareness and evidence-based knowledge resources about the importance of the right to abortion and health risks involved in local languages will help trickle the effects of such campaigns down to the most marginalised sections. Investment in health infrastructure, local- level medical staff, and family planning measures through bloc – level initiatives is the only way abortion can be a reality for the Indian woman. Views are Personal [1] General Recommendation 35 (2017) on gender-based violence against women, updating general recommendation 19, para. 18 TagsMedical Termination of Pregnancy (MTP) (Amendment) Bill 2020 World Health Organisation (WHO) Subscribe to LiveLaw, enjoy Ad free version and other unlimited features, just INR 599 Click here to Subscribe. All payment options available.loading….Next Storylast_img read more