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Illegal Arrest /False Arrest

Remedies Against Illegal Action By Police Illegal Arrest /False Arrest The word “arrest” is not defined in The Code of Criminal Procedure, 1973. Chapter V (Five) of The Code of Criminal Procedure, 1973 u/s 41 to 60 deals with the provisions relating to arrest of persons. Arrest means deprivation of a person of his liberty by legal authority. It is expected that every arrest must be in accordance with the procedure establish by law for example Article 21 and Article 22 of the Indian Constitution. In D.K Basu v/s State of West Bengal, [(1997) 1 SCC 416; AIR 1997 SC 610] the Court has laid down detailed guidelines to be followed by the police at the time of arrest and detention. “(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register. (2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest. (3) A person who has been arrested or detained and is being held in custody in a police station or interrogation center or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested an is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. (4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee fives outside the district or town through the Legal Aid Organization in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. (5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained. (6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the, police officials in whose custody the arrestee is. (7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her bed, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee. (8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, health Services of the concerned state or union territory. Director, Health Services should prepare such a penal for all tehsils and districts as well. (9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Magistrate for his record. (10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. (11) A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on conspicuous notice board. When arrest is made, without complying with the procedures or provisions as laid down in The Code of Criminal Procedure, 1973, it is an unlawful restraint of an individual’s personal liberty or freedom and can be called false or illegal arrest. Illegal arrests and wrongful imprisonment result in violation of fundamental rights guaranteed by the Constitution of India. Arrest has to be usually made, keeping in mind, that to secure the administration of law and to protect and uphold the human rights of the citizens is of utmost importance. Remedies For False or Illegal Arrest Constitutional Remedy: The right of personal liberty and freedom has been guaranteed in our Constitution under Article 19, 20 and 21. The writ of “Habeas Corpus” is one of the golden remedy for an illegal or false arrest or for prolonged detention by police officers. The Supreme Court of India and High Court of all states can issue this writ of “Habeas Corpus” under Article 32 and Article 226 respectively. Article 21 of the Constitution says that ”no person shall be deprived of his life or personal liberty except according to procedure established by law”. If the police has arrested or detained any person without the authority of any law or in contravention of the procedure established by law which authorizes such arrest or detention, such arrest or detention is itself invalid and unconstitutional. The High Court or the Supreme Court may issue a writ of “Habeas Corpus” against the authority which has arrested the person and kept him in custody and order the release of the person under detention. In false imprisonment, the equal protection of law which is guaranteed under our Constitution, is usually not implicated to the person which somehow leads to violation of his fundamental rights. The case of Joginder Kumar v/s State of U.P [1994 AIR 1349, 1994 SCC (4) 260] is an example which highlights the wrongful use of arrest power by the police without a valid reason and the arrest was not recorded in the police diary.

Laws of Intestate succession

Laws of Intestate succession are different for Hindu, Muslims and Christians. For Hindus, which include Buddhist, Jains, Sikhs, Arya Samaj, the law of intestate succession is codified in Hindu Succession Act, 1956. The principles of devolution of property of deceased in this case are as follows: Male Hindus: There are four classes of Legal heirs. The property will pass on exclusively to legal heirs specified in Class 1 if there is anyone available. Class 1 relatives include wife, son/daughter, mother, son/daughter of predeceased son/ daughter, widow of the predeceased son and few other such relatives. The property would be distributed in equal share to widow, mother and each of children. In case, any of the child has predeceased, his spouse and children will collectively get his / her share. Example, A has died. He has left behind B, his wife, C, his mother and D, elder son, F, youngest son and G, his daughter. E, his middle son had died few years earlier and he left behind his wife E-1, and two children E-2 and E 3. His property would be divided in 6 parts, Each legal heir would get one part. Wife and children of deceased E would collectively get one part. The legal heirs specified in Class II will get the estate of the deceased only if there is no relative in Class 1. Relatives in Class II have been put in sequence and it is provided that the relative named first in list would get full, in preference to the next. Second person will get in Full, only if first named relative is not there and so on. In this schedule, Father is named first and brother/sister as second and so on. As such, if there is no relative in class 1 and father is there, then he will inherit the estate fully. If father is not there, then brothers and sisters of the deceased shall inherit the estate fully. Class III and IV are Agnates (relations only through male) and Cognates (relations not wholly through males). In case there are no heirs even in class II, then succession would devolve upon agnates of such deceased, failing which by cognates. If there are no Agnates and Cognates also, the estate will devolve upon the Government. Among the Agnates and so also in cognates, the one closer in relation is preferred. For female Hindu, class 1 relatives are somewhat similar ie Husband, sons and daughters, including children of predeceased son/daughter. If none of them are there, estate shall devolve upon the heirs of the husband. If there are no heirs of husband also, it will devolve upon the mother and father of the deceased, if alive. One special provision is there for property inherited by the female Hindu from her father or mother. Such property would revert back to the legal heirs of her father, in case she does not leave behind any son or daughter. The law also provides that if two people die simultaneously, say in a car or plane accident and exact timing of death of each cannot be ascertained, it shall be presumed that the older one died first, unless contrary is proved. Further, person guilty of murder of any person shall not inherit his property. However, his heirs are not so disqualified, and it will be presumed that such murderer died immediately before death of murdered person. These provisions are important as they affect the line of succession / ratio of property coming to legal heirs. Muslims: Different personal laws are there for Shias and Sunnis and such laws are not codified in any Statute. For Sunnis following Hanafi Law (most Muslims in India follow this law) personal law restricts legacies to maximum one-third of the estate remaining after taking care of funeral expenses, outstanding wages of domestic servants and debts etc. The remaining estate is required to be distributed amongst legal heirs. There are three classes of legal heirs: Sharers: these legal heirs are entitled to a prescribed share of the estate Residuaries: they will get remaining estate, if anything remains are sharers get their prescribed shares. Distant kindered: they are other relatives who are neither sharers nor residuaries. They will only get if there are no Sharer or residualry. Meher i.e. Dower promised by husband, would be 1st charge (priority debt), if the same has not been paid by deceased during his lifetime. Christians: The widow/widower inherits one-third share and balance goes to the lineal descendants. In case there are no lineal descendants, then one-half goes to the widow and balance to the other relatives, i.e. prescribed as kindered. Amongst the lineal descendants, each child or if pre-deceased, his children collectively will get equal shares. In the kindered, the first preference is given to the father and in case he is predeceased then mother, brother and sister (or their children together if any one is predeceased) equally.

Family Laws- Matrimonial Disputes

Laws Governing Matrimonial Disputes The disputes that take place between the married couple, relating to issues that arise out of the practices and customs of marriage, are known as matrimonial disputes. These issues include withdrawal from the other’s society without reasonable cause, mental illness at the time of marriage, desertion of the spouse for a continuous period of 2 years etc., which result in different remedies, such as restitution of conjugal rights, annulment or divorce. There are many types of reliefs available to couples suffering from matrimonial problems, which include restitution of conjugal rights, judicial separation etc. Restitution of Conjugal Rights If either spouse has, without reasonable cause, withdrawn from the society of the other, the aggrieved spouse can approach the court for restitution of conjugal rights. This enforces the rights that derive from the wedded state of the couple. The court would expect the explanation of the defence of ‘reasonable cause’ from the defendant. Annulment When either spouse makes an application to nullify the marriage, certain grounds have to exist. It is a procedure by which a marriage is nullified in that it is declared to have never existed at all. It is usually difficult to prove and not many cases have granted annulment as a remedy. However, it covers a range of situations, such as: Either party was already married to someone at the time of marriage The parties are not Sapindas of each other The parties are not within the degrees of prohibited relationship Dissolution Before the codification of Hindu marriage laws, the position on dissolution of marriages was very rigid and did not allow dissolution except under certain specified grounds. However, after independence, the law provided for a few grounds on which a marriage could be legally dissolved. The procedure for doing so is known as a divorce. A case for Judicial Separation would look into grounds of a similar nature to that of a case for divorce. But legal separation only entails physical separation for some time and does not change the married status of the parties. This is not the case with a divorce, where if a couple gets divorced, and intend to get back together, they must remarry. Divorce: Divorce is the procedure for dissolution of the marriage. If a couple or one of the parties feels that their marriage is over for reasons of desertion, adultery, bigamy or others as specified in the Act, they may approach the court to grant them a divorce. A divorce is a momentous proceeding and it results in many upheavals in the married life of the parties. Consequent to a divorce, there are other issues such as custody of the children and maintenance to the dependents, such as the wife and children. Maintenance in Hindu Law Maintenance is an ancillary relief – in that it does not arise independently, but will be granted along with and as a consequence of relief such as divorce, custody, redressal of domestic violence. Under Hindu Law, the wife has an absolute right to claim maintenance from her husband. But she loses her right if she deviates from the path of chastity. Her right to maintenance is provided for in the Hindu Adoption and Maintenance Act, 1956. In assessing the amount of maintenance, the court takes into account various factors like position and liabilities of the husband. It also judges whether the wife is justified in living apart from husband. What is ‘justifiable’ is determined by reasons spelt out in the Act. Maintenance pendente lite (pending the suit) and even expenses of a matrimonial suit will be borne by either, husband or wife, if the other spouse has no independent income for his or her support. The same principle will govern payment of permanent maintenance. The Parsi Marriage and Divorce Act, 1936 recognizes the right of the wife to maintenance-both alimony pendente lite and permanent alimony. The maximum amount that can be decreed by court as alimony during the time a matrimonial suit is pending in court, is one-fifth of the husband’s net income. In fixing the quantum as permanent maintenance, the court will determine what is just, bearing in mind the ability of husband to pay, own assets of wife and conduct of the parties. The order will remain in force as long as wife remains chaste and unmarried. The Indian Divorce Act, 1869 inter alia governs maintenance rights of a Christian wife. The provisions are the same as those under the Parsi law and the same considerations are applied in granting maintenance, both alimony pendente lite and permanent maintenance.