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Know the Law - Special GB
Sunday Meet
Report by Sachin J
zhansinahidoongi@hotmail.com
Know the Laws : what Indian laws and the criminal justice system mean to the average gay person in Mumbai city.
This was the subject of the The Gaybombay Sunday Meeting on September 25,
2005.
The Meet was informative and empowering.
The following aspects were covered:
SUPREME COURT GUIDELINES ON ARREST
CONTACT DETAILS of the Organisations
First some general information:
Criminal law in India has mainly 3 acts: Indian Penal Code, Criminal Procedure
Code, and Indian Evidence Act.
The meeting was held at Zouk.
It was excellently conducted by Vijay Hiremath and Rebecca Gonsalvez. They are
young, dynamic lawyers working for Criminal
Justice Initiative (CJI), a
part of the India Center for Human Rights and Law (ICHRL).
Vijay ably tailored his talk to make it relevant to the gay community. He began
by explaining the structures of the courts and the police system in Bombay. He
described the powers and duties of the police, including their preventive
powers.
The Meet was attended by 39 people.
Delicious Sandwiches and spring-rolls were served.
First everyone introduced him/herself, describing his/her own experience with
the police or the law, and what they were looking for in this meeting.
Around 50% of those present, I would say, had had some sort of experience: an
incident when cruising turned into an ugly situation, all the way to beatings
and outright robbery. A lot of people were looking to know their rights, and
what they can practically do to deal with the police.
Types of OFFENCES:
Cognizable: A police officer can arrest without a warrant. He/She can
investigage the matter without the order of a magistrate. E.g. Theft,
housebreaking.
Non-cognizable: A police officer cannot arrest without a warrant. A police officer cannot investigate without the order of a magistrate. E.g. Criminal intimidation.
Bailable: The arrested accused is entitled to bail as a matter of right under section 436 of the Cr.P.C. The bail can be furnished in the police station. The police themselves can and should release the accused on bail after arresting him. In Bombay the police can grant bail up to Rs. 950 in bailable offences. If the police do not grant him bail he can apply to the court for bail. Example: Causing simple hurt, kidnapping.
Non-Bailable: The arrested accused is not entitled to bail as a matter of right. The accused can apply to the court for his release on bail immediately after his arrest [Section 437 or 439 of Cr. P.C.]. The court has the power to grant or refuse bail. E.g. Murder, theft, rape, robbery.
Compoundable: The injured party/complainant and the accused can enter into a settlement. Compounding has the effect of an acquittal. Ex: Theft, where the value of the property stolen is Rs. 250 or less.
Non-compoundable: No settlement can be entered
into between the injured party/complainant and the accused. Ex: Rape, murder.
These definitions basically explain the seriousness of the offence.
Section 377 of the Indian Penal Code is cognizable, non-bailable and
non-compoundable.
[377: Unnatural Offences: "Whoever has carnal intercourse against the order
of nature, with man, woman or animal is liable to imprisonment and/or fine for
term from ten years to life." Explanation: Penetration is sufficient to
constitute the offence.]
ACCUSED:
An accused is a person suspected, arrested or charged with the commission of a
crime.
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SUPREME COURT GUIDELINES ON ARREST:
1. 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. The police officer carrying out the arrest of the arrestee shall prepare a
memo of the arrest at the time of the arrest. This memo shall be attested by at
least one witness. It can either be a member of the family of the arrestee or a
respectable person of the locality from which the arrest is made. It shall be
countersigned by the arrestee. It shall contain the date and time of arrest.
3. Consider 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. He/she
shall be entitled to have one friend or relative, or other person known to him
having interest in his welfare, to be INFORMED, as soon as practicable. The
information is that he has been arrested and is being detained at the particular
place.
4. If the next friend or relative of the arrestee lives outside the district or
town, the time, place of arrest, and venue of custody of an arrestee must be
notified by the police through the LEGAL AID ORGANIZATION in the district, and
the police station in the area notified telegraphically within a period of 8 to
12 hours after the arrest.
5. The person arrested must be made aware of his right to have someone informed
of his arrest or detention as soon as he is put under arrest or detained.
6. An entry must be made in the diary at the place of detention regarding the
arrest of the person. It should disclose the name of the next friend of the
person who has been informed of the arrest. Also it should contain the names and
particulars of the police officers in whose custody the arrestee is.
7. The arrestee should, where he so requests, be also examined at the time of
arrest. Major and minor injuries if any are present on his body, 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.
9. Copies of all the documents including the memo of arrest referred to above
should be sent to the 'ilaaqa' Magistrate for his record.
10. The arrestee is permitted to meet his lawyer during interrogation, though
not throughout the interrogation.
11. Information regarding arrest and place of custody must be sent to the police
control room at state and district headquarters. It is to be communicated by the
officer making the arrest within 12 hours of effecting the arrest. It should be
displayed on a conspicuous notice board at the police control room.
INFORMATION TO THE ACCUSED/ARRESTEE:
1. The accused must be informed of the grounds of his arrest.
2. The accused must be told the offence in connection with which he/she as been
arrested.
3. If the accused is arrested in connection with a bailable offence, the police
must inform him of his right to bail.
4. If the accused is arrested in connection with a non-bailable offence, the
police should inform him of his right to apply for bail.
5. The police must inform the relative/next friend of the accused about the time
and place of arrest as well as the venue of custody.
STAGES OF A CASE
Registration of an offence/complaint (in the form of an FIR, a first information
report for a cognizable offence, or an NC for a non-cognizable offence.
Investigation by police or magistrate.
Arrest of accused.
Remand: Accused is produced before magistrate, remanded to police or judicial
custody and then interrogated by the police.
Bail
Discharge of accused by police
Filing of chargesheet: Filed by the police if they find enough evidence against
the accused. Includes all documents relied on by police. Contains list of
witnesses prosecution would like to call. A copy of chargesheet along with all
documents must be given to accused.
Committal of case to Sessions court
Discharge of accused by court
Framing of charges
Accused pleads guilty
Accused pleads not-guilty
Summons/warrant to prosecution witnesses
Examination of prosecution witnesses
Statement of accused
Examination of defence witnesses
Final arguments
Judgement/sentencing
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REGISTERING AN OFFENCE
A victim of any criminal offence has the right to complain regarding the
offence. The complaint can be made at a police station, or in court.
Non-Cognizable offence [sec 155 of CrPC]:
The police will register an NC and enter a brief statement of facts into the NC
register.
To investigate the offence the police require a magistrates permission.
If the police do not take steps to get permission for investigation, complainant
can apply to the court for such permission.
Cognizable offence [sec 154 of CrPC]:
If the offence is a cognizable one the police will register a cognizable offence
in their cognizable offences register.
Since it is the first piece of information that pertains to the commission of a
cognizable offence, it is called a First Information Report or FIR.
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ESSENTIALS OF AN FIR:
A complaint regarding a cognizable offence may be given orally or in writing.
When a complaint is given orally it has to be reduced into writing in the form
prescribed for that purpose.
The FIR is required to be a brief statement of facts.
It must be signed by the complainant.
The complainant is entitled to a copy of the FIR free of charge, immediately
after the registration of the FIR.
The FIR should be specific about:
What exactly happened - the facts which make out the offence.
Sequence of events.
Name and description of the offender if possible.
Date and time of offence.
Place of offence.
Description of property stolen if any. Attach receipts or bills for the same.
Description of weapons used if any.
Description of injuries sustained, if any, with attached medical certificate, if
any.
WHO CAN FILE AN F.I.R.?
Any person who has first-hand knowledge of the facts.
Can also be filed by any person who has just heard or read about the commission
of the offence, but does not have first-hand information about the facts.
WHEN:
An FIR should be registered at the earliest possible opportunity.
Delayed F.I.R.: any delay in the FIR should be properly explained.
Effect of unexplained delay: it casts doubt on the complaint.
WHERE:
Register the FIR at the police station within whose jurisdiction the scene of
the offence lies.
If you are not sure about the police station that exercises jurisdiction,
register the FIR at the nearest police station.
They must take down your complaint, and forward it to the police station
exercising jurisdiction.
The police have a duty to register an FIR whenever they receive any information
about the commission of a cognizable offence.
The police cannot refuse to register the FIR on the grounds that the offence was
not committed within their jurisdiction, or that the information is not true.
PROCEDURE:
Go to police station. Meet officer in charge.
Narrate step by step in an orderly sequence to the officer, every bit of
information about the offence.
The officer should reduce the orally given information into writing.
It should be read to you.
It should be signed by you.
It should be entered in a book to be kept by the officer.
If given in writing, it should be in the format of a formal letter, addressed to
the senior police inspector of the concerned police station.
Carry a photocopy of the letter and take an acknowledgement of receipt on it
from the police station after handing over the original.
If given orally ensure it is reduced to writing immediately.
A copy of the FIR must be given to you free of charge.
There are many more useful things in the book, about witnesses, appeals,
juveniles, women and chapter cases. Also sample applications for exemptions,
cancellation of warrant, application for bail and reduction of bail. Also a
fantastic tale of classification of offences under the Indian Penal Code.
Why didn't someone make this before!! Kudos to you guys.
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GAY SPECIFIC INFORMATION:
All the above information is very useful to any gay person as well. But
considering the specific problems faced by gays, I understood the following from
Vijay, Rebecca and the discussion:
1. If you find yourself being interrogated, it is not necessary or advisable to
describe your sex life or sex acts that you commit. If someone keeps insisting,
respectfully say "It is my private business", or suggest that its none
of their business. Though some homosexual acts are a crime in India, it is NOT A
CRIME TO BE GAY. if the fact of your sexual orientation comes out,
it does not make you a criminal in the eyes of the law, even with the presence
of Sec 377 I.P.C. I think not knowing this fact is the ESSENCE of the fear and
ignorance of gay men that leads to their harassment, blackmail etc., and I
cannot overstress this point enough.
2. Also, if someone threatens you with Sec 377, know that you have a VALIANT
SOLDIER on your side, called Section 389.
Section 389: Offence: Putting a person in fear of accusation of an offence
punishable by death, imprisonment for life or imprisonment for 10 years IN ORDER
TO COMMIT EXTORTION. Punishment: Imprisonment for 10 years and fine.
If the offence is an unnatural offence, the punishment for the extortion attempt
is an imprisonment for life!
What this means is that if someone threatens to have you arrested under 377 in
order to blackmail you or extort money you, you can turn right round and tell
him, "I will have YOU arrested under section 389 for threatening me with
extortion!"
3. Will the police call my parents? If you find yourself in trouble and the
police threaten to phone/meet your parents, mention that you are an adult and
not a minor. Say that you are capable of handling your own affairs, and that
they should not be involved. However there is nothing you can legally do to
prevent them from contacting your parents in the course of their investigation.
But if they are contacting your parents with the sole aim of extorting money
from them/scaring you into paying up, then that is a crime.
4. While filing a complaint, giving a false name and address is an offence.
It is necessary to give your name and contact information.
5. If they demand to have your mobile phone, wallet or any other object, ask for
them to make the demand in writing, take their signed written demand and then
hand the phone etc. over.
6. If a policeman says he is going to arrest you, he should be wearing a visible
name tag with his id and designation.
7. Respectfully ask for the policeman's id and take down all the details on the
ID card and keep them with you. Address the officers as "Sir" always,
however low his rank may be, or however high your social status may be.
8. If you get a blackmailer punished for harassing you, and he gets out on bail,
don't worry. A precondition of the bail is that he cannot intimidate you, or
else the bail stands cancelled.
9. Anyone can file an FIR, even a friend of yours if you cannot at that moment.
Also you cannot be made to run around from one station to another. As mentioned
previously the nearest police station has to take the complaint and then forward
it to the jurisdiction police station.
10. If you get into trouble on a local train, or the tracks, or the stations -
the offence comes under the jurisdiction of the railway police and they have to
be contacted. The railway police booth station is usually on the platform and
just outside the station, any railways staff or the food stall-wallahs will
direct you to it.
11. Do not use obscenities to show that you are not scared. Do not threaten to
contact some mythical higher-ups in the police. You will bring out hostility in
the cops and make matters worse.
12. Preferably talk in Marathi, as the police force is overwhelmingly
Maharashtrian. If you can, take along a respectful friend who speaks good
Marathi.
13. If you hire a lawyer, tell them everything about yourself, including your
sexual orientation. it will help them to fight the case better. Besides they are
obligated to respect your privacy and confidentiality.
14. Don't start with the assumption of corruption and run around trying to bribe
everyone. A vast number of police offers are honest and clean. Stand tall and
have no fear. You are not in the wrong simply for being gay.
15. Tell your gay friends what's happened to you. Share it with each other and
with mailing lists like Gaybombay. It will enable others to help you, support
you, as well as will prevent others from having the same problem. It will also
enable us to catch the blackmailers and get them punished.
16. Don't tease or deliberately provoke the
police or people in public. You can stand on Marine Drive and smooch your
boyfriend in broad daylight, but be prepared to face the consequences of your
actions, and to stand your ground.
17. Porn CDs: It is an offence to distribute them under Sec 108 of Cr.P.C. and
Section 292 of the IPC. Never accept/buy such materials from a stranger.
18. Contact Lawyers Collective or India Center for Human Rights and Law in case
you have such a problem. LC is another organization that has done fantastic work
in this regard.
Criminal
Justice Initiative (CJI), a
part of the India Center for Human Rights and Law (ICHRL), is dedicated to the use of law as a shield to protect human rights within
the criminal justice system. It provides legal aid to undertrial and convict
prisoners, and the victims of crime. They also conduct training on criminal law,
investigate cases of human rights violations, address issues of prisoners'
rights, and initiate campaigns on various issues.
They have come out with an excellent book called "Criminal Law - Law for
Activists Series: Volume 1". Not only should every gay person definitely
have it, it is wonderfully simple and easy to understand and has fun cartoons.
Suggested contribution is Rs. 40. It is available at CJI.
Please please please
everyone get your copy. I'm gonna get at least 50 for myself and gift them to
people I know.
CONTACT DETAILS
ICHRL:
4th Floor, CVOD Jain School, 84 Samuel Street, Dongri Mumbai 400009 India.
Tel: 022-2343 6692; 022-23439651.
Email: huright@vsnl.com
Website: www.indiarights.com
Lawyers Collective:
61 Jalaram Kripa, Ground Floor,
Janmabhumi Marg, Fort, Mumbai.
India 400001
Tel: 22875482, 22875483
Email: lawyers@vsnl.com
Website: www.hri.ca/partners/lc
Criminal Justice Initiative
4th Floor, CVOD Jain High School,
Pala Gali, Dongri,
Mumbai - 400 009
Ph: 022- 23439651 / 23436692
Ph : 022-23439651/23436692
Fax : 022-23433698
email : cji@ichrl.org