july news letter - modified by director · the sexual harassment of women at workplace (prevention,...

Karnataka Judicial Academy

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CONTENTS

• From the President’s

Desk

• Important Amendments

by Parliament

• Important amendments

by the Karnataka State

Legislature

• Important judgments of

Supreme Court of India

• Important judgments of

High Court of Karnataka

• Articles

• Programmes of Karna-

taka Judicial Academy

• Other News

July

2013

From the President’s Desk

July 2013 PAGE 2

From the President’s Desk July 2013 PAGE 3

The Sexual Harassment of Women at Workplace

(Prevention, Prohibition and Redressal) Act, 2013 * [ 14 of 2013]

* (Received the assent of the President on 22nd of April, 2013 and published in the Gazette of India, Extra, Part ii, Section dated 23rd 2013)

An Act to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto.

WHEREAS sexual harassment results in violation of the fundamental rights of a woman to equality under articles 14 and 15 of the Constitution of India and her right to life and to live with dignity under article 21 of the Constitution and right to practice any profession or to carry on any occupation, trade or business which includes a right to a safe environment free from sexual harassment;

AND WHEREAS the protection against sexual harassment and the right to work with dignity are universally recognized human rights by international conventions and instruments such as Convention on the Elimination of all Forms of Discrimination against Women, which has been ratified on the 25th June, 1993 by the Government of India;

AND WHEREAS it is expedient to make provisions for giving effect to the said Convention for protection of women against sexual harassment at workplace.

BE it enacted by Parliament in the Sixty-fourth Year of the Republic of India as follows:- Statement of Objects and Reasons.- Sexual harassment at a workplace is considered violation of women’s right to equality, life and liberty. It creates an insecure and hostile work environment, which discourages women’s participation in work, thereby adversely affecting their social

Important amendments by the Parliament

July 2013 Karnataka Judicial Academy PAGE 6

and economic empowerment and the goal of inclusive growth.

2. The Constitution of India embodies the concept of equality under articles 14 and 15 and prohibits discrimination on grounds of religion, race, caste, sex or place of birth or any of them. Article 19(1)(g) gives the fundamental right to all citizens to practice any profession, or to carry on any occupation, trade or business. This right pre-supposes the availability of an enabling environment for women, which is equitous, safe and secure in every aspect. Article 21, which relates to the right to life and personal liberty, includes the right to live with dignity, and in the case of women, it means that they must be treated with due respect, decency and dignity at the workplace.

3. Article 11 of the Convention on Elimination

of All Forms of Discrimination (CEDAW), to

which India is a party, requires State parties to

take all appropriate measures to eliminate

discrimination against women in the field of

employment. In its General Recommendation

No.19 (1992), the United Nations Committee on

CEDAW further clarified that equality in

employment can be seriously impaired when

women are subjected to gender-specific

violence, such as sexual harassment at the

workplace. India’s commitment to protection

and promotion of women’s constitutional rights

as well as respect for its obligations under

various international treaties is unequivocal.

4. With more and more women joining the workforce, both in organized and unorganized sectors, ensuring an enabling working environment for women through legislation is felt imperative by the Government. The proposed legislation contains provisions to protect every woman from any act of sexual harassment irrespective of whether such woman is employed or not. 5. The Supreme Court of India in the case of Vishaka & Ors. V.State of Rajasthan & Ors. (1997(7) SCC 323), also reaffirmed that sexual harassment at workplace is a form of discrimination against women and recognized

that it violates the constitutional right to equality and provided guidelines to address this issue pending the enactment of a suitable legislation.

6. It is, thus, proposed to enact a comprehensive legislation to provide for safe, secure and enabling environment to every woman, irrespective of her age or employment status (other than domestic worker working at home), free from all forms of sexual harassment by fixing the responsibility on the employer as well as the District Magistrate or Additional District Magistrate or the Collector or Deputy Collector of every District in the State as a District Officer and laying down a statutory redressal mechanism.

7. The notes on clauses explain in detail the various provisions contained in the Bill.

8. The Bill seeks to achieve the above objectives.

CHAPTER I PRELIMINARY

1. Short title, extent and commencement.-

(1) This Act may be called THE SEXUAL

HARASSMENT OF WOMEN AT WORKPLACE

(PREVENTION, PROHIBITION AND

REDRESSAL) ACT, 2013.) (2) It extends to the whole of India. (3) It shall come into force on such date as

the Central Government may, by notification in the Official Gazette, appoint.

2. Definitions.-In this Act, unless the context otherwise requires,-

(a) “aggrieved woman” means-

(i) in relation to a workplace, a woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent;



(ii) in relation to a dwelling place or house, a woman of any age who is employed in such a dwelling place or house;

(b) “appropriate Government” means-

(i) in relation to a workplace which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly- (A) by the Central Government or the

Union territory administration, the Central Government;

(B) by the State Government, the State

Government; (ii) in relation to any workplace not covered

under sub-clause (i) and falling within its territory, the State Government;

(c) “Chairperson” means the Chairperson of the

Local Complaints Committee nominated under sub-section (1) of section 7;

(d) “District Officer” means an officer notified

under section 5; (e) “domestic worker” means a woman who is

employed to do the household work in any household for remuneration whether in cash or kind, either directly or through any agency on a temporary, permanent, part time or full time basis, but does not include any member of the family of the employer;

(f) “employee” means a person employed at a

workplace for any work or regular, temporary, ad hoc or daily wage basis, either directly or through an agent, including a contractor, with or, without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are express or implies and includes a co-worker, a contract worker, probationer, trainee, apprentice or called by any other such name;

(g) “employer” means –

(i) in relation to any department, organization, undertaking, establishment, enterprise, institution, office, branch or unit of the appropriate Government or a local authority, the head of that department, organization, undertaking, establishment, enterprise, institution, office, branch or unit or such other officer as the appropriate Government or the local authority, as the case may be, may by an order specify in this behalf; (ii) in any workplace not covered under sub-clause (i), any person responsible for the management, supervision and control of the workplace.

Explanation.- For the purposes of this sub-

clause “management” includes the person or board or committee responsible for formulation and administration of policies for such organization;

(iii) in relation to workplace covered under sub-clauses (i) and (ii), the person discharging contractual obligations with respect to his or her employees; (iv) in relation to a dwelling place or house, a person or a household who employs or benefits from the employment of domestic worker, irrespective of the number, time period or type of such worker employed, or the nature of the employment or activities performed by the domestic worker; (h) “Internal Committee” means an Internal

Complaints Committee constituted under section 4;

(i) “Local Committee” means the Local

Complaints Committee constituted under section 6;

(j) “Member” means a Member of the Internal

Committee or the Local Committee, as the case may be;

(k) “prescribed” means prescribed by rules

made under this Act;



(l) “Presiding Officer” means the Presiding

Officer of the Internal Complaints Committee nominated under sub-section (2) of Section 4;

(m) “respondent” means a person against

whom the aggrieved woman has made a complaint under section 9;

(n) “sexual harassment” includes any one or

more of the following unwelcome acts or behaviour (whether directly or by implication) namely:-

(i) physical contact and advances; or (ii) a demand or request for sexual

favours; or (iii) making sexually coloured remarks;

or (iv) showing pornography; or (v) any other unwelcome physical,

verbal or non-verbal conduct of sexual nature;

(o) “workplace” includes- (i) any department,

organization, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate Government or the local authority or a Government company or a corporation or a co-operative society;

(ii) any private sector organization or a

private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organization, unit or service provider carrying on commercial, professional, vocational, educational, entertainmental, industrial, health services or financial activities including production, supply, sale distribution or service;

(iii) hospitals or nursing homes; (iv) any sports institute, stadium, sports

complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto;

(v) any place visited by the employee

arising out of or during the course of employment including transportation provided by the employer for undertaking such journey;

(vi) a dwelling place or a house; (p) “unorganised sector” in relation to a

workplace means an enterprise owned by individuals or self-employed workers and engaged in the production or sale of goods or providing service of any kind whatsoever, and where the enterprise employs workers, the number of such workers is less than ten.

This clause provides for definitions. It defines the various expressions used in the proposed legislation which, inter alia, include the expressions “aggrieved woman”, “appropriate Government”, “Chairperson”, “District Officer”, “employee”, “employer”, Internal Committee”, “Local Committee”, “respondent”, “sexual harassment”, “workplace” and “unorganized sector”. (Notes on Clauses). 3. Prevention of sexual harassment.- (1) No woman shall be subjected to sexual harassment at any workplace. (2) The following circumstances, among other circumstances, if it occurs or is present in relation to or connected with any act or behaviour of sexual harassment may amount to sexual harassment:- (i) implied or explicit promise of preferential treatment in her employment; or (ii) implied or explicit threat of detrimental treatment in her employment; or (iii) implied or explicit threat about her present or future employment status; or (iv) interference with her work or creating an intimidating or offensive or hostile work environment for her; or (v) humiliating treatment likely to affect her



health or safety.

This clause makes provision for prevention of sexual harassment. It provides that no woman shall be subjected to sexual harassment at any workplace- (i) implied or explicit promise of preferential treatment in her employment; or (ii) implied or explicit threat of detrimental treatment in her employment; or (iii) implied or explicit threat about her present or future employment status; (iv) interference with her work or creating an intimidating or offensive or hostile work environment for her; or (v) humiliating treatment likely to affect her health or safety. (Notes on Clauses).

CHAPTER II CONSTITUTION OF INTERNAL COMPLAINTS COMMITTEE

4. Constitution of Internal Complaints Committee.- (1) Every employer of a workplace shall, by an order in writing, constitute a Committee to be known as the “Internal Complaints Committee”:

Provided that where the offices or administrative units of the workplace are located at different places or divisional or sub-divisional level, the Internal Committee shall be constituted at all administrative units or offices.

(2) The Internal Committee shall consist of the following members to be nominated by the employer, namely:-

(a) a Presiding Officer who shall be a woman employed at a senior level at workplace from amongst the employees:

Provided that in case a senior level woman employee is not available, the Presiding Officer shall be nominated from other offices or administrative units of the workplace referred to in sub-section (1):

Provided further that in case the other offices or administrative units of the workplace do not have a senior level woman employee, the Presiding Officer shall be nominated from any other workplace of the same employer or other department or organization;

(b) not less than two Members from amongst employees preferably committed to

the cause of women or who have had experience in social work or have legal knowledge;

(c) one member from amongst non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment:

Provided that at least one-half of the total Members so nominated shall be women.

(3) The Presiding Officer and every Member of the Internal Committee shall hold office for such period, not exceeding three years, from the date of their nominations as may be specified by the employer.

(4) The Member appointed from amongst the non-governmental organizations or associations shall be paid such fees or allowances for holding the proceedings of the Internal Committee, by the employer, as may be prescribed.

(5) Where the Presiding Officer or any Member of the Internal Committee,-

(a) contravenes the provisions of section 16; or

(b) has been convicted for an offence or an inquiry into an offence under any law for the time being in force is pending against him; or

(c) he has been found guilty in any disciplinary proceedings or a disciplinary proceeding is pending against him; or

(d) has so abused his position as to render his continuance in office prejudicial to the public interest,

such Presiding Officer or Member, as the case may be, shall be removed from the Committee and the vacancy so created or any casual vacancy shall be filled by fresh nomination in accordance with the provisions of this section.

This clause provides for the constitution of Internal Complaints Committee. It provides that every employer of a workplace shall constitute, by an order



in writing, a Committee to be known as the “Internal Complaints Committee”. It further provides that where the offices or administrative units of the workplace are located at different places or divisional or sub-divisional level, the Internal Committee shall be constituted at all administrative units or offices.

It also provides that employer shall nominate members of the Internal Committee which shall consist of – (a) a Presiding Officer who shall be woman employed at a senior level at workplace from amongst the employees; (b) not less than two Members from amongst employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge and (c) one member from amongst non-governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment. Out of these members at least one-half shall be nominated from amongst women.

It also provides that the term of the Presiding Officer and every Member of the Internal Committee shall be specified by the employer which shall not exceed three years from the date of their nomination and their fees or allowances for holding the proceedings of the Internal Committee, as may be prescribed by rules made in the behalf, shall be paid by the employer.

It also provides that the Presiding Officer or any Member of the Internal Committee shall be removed from the Committee, if he – (a) contravenes the provisions of section 16; or (b) has been convicted for an offence or an inquiry into an offence under any law for the time being in force is pending against him; or (c) he has been found guilty in any disciplinary proceedings or a disciplinary proceeding is pending against him; or (d) has so abused his position as to render his continuance in office prejudicial to the public interest, and the vacancy so created or any casual vacancy shall be filled by fresh nomination in accordance with the provisions of this clause. (Notes on Clauses).

CHAPTER III CONSTITUTION OF LOCAL COMPLIANTS

COMMITTEE

5. Notification of District Officer.- The appropriate Government may notify a District Magistrate or Additional District Magistrate or the Collector or Deputy Collector as a District Officer for every District to exercise powers or discharge functions under this Act.

This clause provides for notification of the District Officer. It provides that the appropriate Government may notify a District Magistrate or Additional District Magistrate or the Collector or Deputy Collector as a District Officer for every District to exercise powers or discharge functions under the proposed legislation. (Notes on Clauses).

6. Constitution and jurisdiction of Local Complaints Committee.- (1) Every District Officer shall constitute in the district concerned, a committee to be known as the “Local Complaints Committee” to receive complaints of sexual harassment from establishments where the Internal Complaints Committee has not been constituted due to having less than ten workers or if the complaint is against the employer himself.

(2) The District Officer shall designate one nodal officer in every block, taluka and tehsil in rural or tribal area and ward or municipality in the urban area, to receive complaints and forward the same to the concerned Local Complaints Committee within a period of seven days.

(3) The jurisdiction of the Local Complaints Committee shall extend to the areas of the district where it is constituted.

This clause provides for constitution and jurisdiction of the Local Complaints Committee. It provides that every District Officer shall constitute in the district concerned, a committee to be known as the “Local Complaints Committee”.

It further provides that the District Officer shall designate one nodal officer in



every block, taluka or tehsil in rural area and ward or municipality in the urban area, to receive complaints and forward the same to the concerned local complaints committee within a period of seven days.

It also provides that the jurisdiction of the Local Complaints Committee shall extend to the areas the district, where it is constituted. (Notes on Clauses).

7. Composition, tenure and other terms and conditions of Local Complaints Committee.- (1) The Local Complaints Committee shall consist of the following members to be nominated by the District Officer, namely:-

(a) a Chairperson to be nominated from amongst the eminent women in the field of social work and committed to the cause of women;

(b) one Member to be nominated from amongst the women working in block, taluka or tehsil or ward or municipality in the district;

(c) two Members, of whom at least one shall be a woman, to be nominated from amongst such non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment, which may be prescribed:

Provided that at least one of the nominees should, preferably, have a background in law or legal knowledge:

Provided further that at least one of the nominees shall be a woman belonging to the Scheduled Casts or the Schedules Tribes or the Other Backward Classes or minority community notified by the Central Government, from time to time;

(d) the concerned officer dealing with the social welfare or women and child development in the district, shall be a member ex officio.

(2) The Chairperson and every Member of the Local Committee shall hold office for such period, not exceeding three years, from the date of their appointment as may be specified by the District Officer.

(3) Where the Chairperson or any Member of the Local Complaints Committee-



(a) contravenes the provisions of section 16; or

(b) has been convicted for an offence or an inquiry into an offence under any law for the time being in force is pending against him; or

(c) has been found guilty in any disciplinary proceedings or a disciplinary proceeding is pending against him; or

(d) has so abused his position as to render his continuance in office prejudicial to the public interest, such Chairperson or Member, as the case may be, shall be removed from the Committee and the vacancy so created or any casual vacancy shall be filled by fresh nomination in accordance with the provisions of this section.

(4) The Chairperson and Members of the Local Committee other than the Members nominated under clauses (b) and (d) of sub-section (1) shall be entitled to such fees or allowances for holding the proceedings of the Local Committee as may be prescribed.

This clause provides for composition, tenure and other terms and conditions of Local Complaints Committee. It provides that the members of Local Complaints Committee shall be nominated by the District Officer which shall consist of – (a) a Chairperson to be nominated from amongst the eminent women in the field of social work and committed to the cause of women; (b) one Member to be nominated from amongst the women working in block, taluka or tehsil or ward or municipality in the district; (c) two Members, of whom at least one shall be a woman, to be nominated from amongst such non-governmental organisations or associations committed to the cause of women, which may be prescribed provided that one of the nominees should, preferably, have background in law or legal knowledge.

It further provides that the Chairperson and every Member of the Local Committee shall hold office for such period as may be specified by District Officer which shall not exceed three years from the date of their

appointment.

The Chairperson and Members of the Local Committee shall be entitled to such fees or allowances for holding the proceedings of the Local Committee as may be prescribed by rules. (notes on Clauses).

8. Grants and audit.- (1) The Central Government may, after due appropriation made by Parliament by law in this behalf, make to the State Government grants of such sums of money as the Central Government may think fit, for being utilized for the payment of fees or allowances referred to in sub-section (4) of section 7.

(2) The State Government may set up an agency and transfer the grants made under sub-section (1) to that agency.

(3) The agency shall pay to the District Officer, such sums as may be required for the payment of fees or allowances referred to in sub-section (4) of section 7.

(4) The accounts of the agency referred to in sub-section (2) shall be maintained and audited in such manner as may, in consultation with the Accountant General of the State, be prescribed and the person holding the custody of the accounts of the agency shall furnish, to the State Government, before such date, as may be prescribed, its audited copy of accounts together with auditors’ report thereon.

This clause provides for grants and audit. It provides that the Central Government may, after due appropriation made by Parliament by law in this behalf, make to the State Government grants of such sums of money as the Central Government may think fit, for being utilized for the payment of fees or allowances of the Chairperson and Members of the Local Committee.

It also empowers the State Government to set up an agency and transfer the grants made under sub-clause (1) to that agency and the agency shall pay to the District Officer, such sums as may be required for the payment of fees or allowances of the Chairperson and Members of the Local Committee.

It also provides that the accounts of the agency shall be maintained and audited in such manner as may be prescribed by rules in consultation with the Accountant General of the State and the person holding the custody of the accounts of the agency shall furnish its audited copy of accounts together with auditors report thereon to the State Government before such date as may be specified by rules. (Notes on Clauses).

CHAPTER IV COMPLAINT

9. Complaint of sexual harassment.- (1) Any aggrieved woman may make, in writing, a complaint of sexual harassment at workplace to the Internal Committee if so constituted, or the Local Committee, in case it is not so constituted, within a period of three months from the date of incident and in case of series of incidents, within a period of three months from the date of last incident:

Provided that where such complaint cannot be made in writing, the Presiding Officer or any Member of the Internal Committee or the Chairperson or any Member of the Local Committee, as the case may be, shall render all reasonable assistance to the woman for making the complaint in writing:

Provided further that the Internal Committee or, as the case may be, the Local Committee may, for the reasons to be recorded in writing, extend the time limit not exceeding three months, if it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period.

(2) Where the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise, her legal heir or such other person as may be prescribed may make a complaint under this section.

This clause provides for making of complaint of sexual harassment. It provides that any aggrieved woman may, at her option, make in writing a complaint of sexual harassment at workplace to the



Internal Committee if so constituted, or the Local Committee if an internal committee is not constituted or if the complaint is against the employer himself.

If further provides that in a case where such complaint cannot be made in writing, the Presiding Officer or any Member of the Internal Committee or the Chairperson or any Member of the Local Committee, as the case may be, shall provide all reasonable assistance to the woman for making the complaint in writing.

It also provides that in a case where the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise, her legal heir or such other person as may be prescribed may

make a complaint under this clause. (Notes on Clauses).

10. Conciliation.-(1) The Internal Committee or, as the case may be, the Local Committee, may, before initiating an inquiry under section 11 and at the request of the aggrieved woman take steps to settle the matter between her and the respondent through conciliation:

Provided that no monetary settlement shall be made as a basis of conciliation.

(2) Where a settlement has been arrived at under sub-section (1), the Internal Committee or the Local Committee, as the case may be, shall record the settlement so arrived and forward the same to the employer or the District Officer to take action as specified in the recommendation.

(3) The Internal Committee or the Local Committee, as the case may be, shall provide the copies of the settlement as recorded under sub-section (2) to the aggrieved woman and the respondent.

(4) Where a settlement is arrived at under sub-section (1), no further inquiry shall be conducted by the Internal Committee or the Local Committee, as the case may be.

This clause makes provision for conciliation. It provides that before initiating enquiry under clause 11 and at the request of the aggrieved woman, the Internal Committee and the Local Committee may take steps to settle the matter between her and the

respondent through conciliation and where a settlement has been arrived, the Internal Committee or the Local Committee shall record the settlement so arrived and forward the same to the employer or the District Officer to take action as specified in the recommendation.

It further provides that the Internal Committee or the Local Committee shall provide the copies of the recorded settlement to the aggrieved woman and the respondent and no further enquiry shall be conducted by the Internal Committee or the Local Committee. (Notes on Clauses).

11. Inquiry into complaint.- (1) Subject to the provisions of section 10, the Internal Committee or the Local Committee, as the case may be, shall, where the respondent is an employee, proceed to make inquiry into the complaint in accordance with the provisions of the service rules applicable to the respondent and where no such rules exist, in such manner as may be prescribed or in case of domestic worker, the Local Committee shall, if prima facie case exist, forward the complaint to the police, within a period of seven days for registering the case under section 509 of the Indian Penal Code (45 of 1860), and any other relevant provisions of the said Code where applicable:

Provided that where the aggrieved woman informs the Internal Committee or the Local Committee, as the case may be, that any term or condition of the settlement arrived at under sub-section (2) of section 10 has not been complied with by the respondent, the Internal Committee or the Local Committee shall proceed to make an inquiry into the complaint or, as the case may be, forward the complaint to the police:

Provided further that where both the parties are employees, the parties shall, during the course of inquiry, be given an opportunity of being heard and a copy of the findings shall be made available to both the parties enabling them to make representation against the findings before the Committee.

(2) Notwithstanding anything contained in section 509 of the Indian Penal



Code (45 of 1860), the Court may, when the respondent is convicted of the offence, order payment of such sums as it may consider appropriate, to the aggrieved woman by the respondent, having regard to the provisions of section 15.

(3) For the purpose of making an inquiry under sub-section (1), the Internal Committee or the Local Committee, as the case may be, shall have the same powers as are vested in a civil Court under the Code of Civil Procedure, 1908 (5 of 1908) when trying a suit in respect of the following matters, namely:-

(a) summoning and enforcing the attendance of any person and examining him on oath:

(b) requiring the discovery and production of documents; and

(c) any other matter which may be prescribed. (4) The inquiry under sub-section (1) shall be completed within a period of ninety days.

This clause makes provision for inquiry into complaint. It provides that subject to the provisions of clause 10, the Internal Committee or the Local Committee shall proceed to make enquiry into the complaint in such manner as may be prescribed by rules.

It further provides that if the aggrieved woman informs that any term or condition of the settlement arrived at under sub-clause (2) of clause 10 has not been complied with by the respondent, then the Internal Committee or the Local Committee shall proceed to make an enquiry into the complaint.

It also provides that for the purpose of making enquiry, the Internal Committee or the Local Committee shall have the same powers as are vested in a civil Court under the Code of Civil Procedure, 1908 when trying a suit in respect of the matters relating to – (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; and (c) any other matter which may be prescribed by rules. The enquiry under this clause shall be completed within a period of ninety days, (Notes on Clauses).

(To be continued in next news letter……….)


Important amendments by the Karnataka State Legislature

Law, Justice and Human Rights Secretariat

Notification.No.LAW 292 LAC 2005,

Bangalore, Dated 29th December 2006

Whereas the draft of the following rules

which the High Court of Karnataka proposed to

make was published as required by sub-section

(1) of Section 122 of the Code of Civil Proce-

dure, 1908 (Central Act 5 of 1908) in Notifica-

tion No. LAW 293 LAC 2005 dated: 18.03.2006

in Part IVA of the Karnataka Gazette dated

18.03.2006 inviting objections or suggestions

from the persons likely to be affected thereby

and notice was given that the said draft rules

will be taken into consideration on or after thir-

ty days from the date of its publication in the

Official Gazette.

And whereas, the said copy of the Ga-

zette Notification was made available to the

public on 18.03.2006.

And whereas, no objections or sugges-

tions have been received to the said draft rules

by the High Court of Karnataka.

Now, therefore, in exercise of the powers

conferred by Section 89 and Section 122 read

with Section 126 of the Code of Civil Procedure,

1908 (Central Act 5 of 1908) and with prior ap-

proval of the State Government, the high Court

of Karnataka hereby makes the following rules,

namely:-

1. Title and commencement:- (1) These

rules may be called the Civil Procedure

(Mediation) Rules, 2005.

(2) They shall come into force from the date

of their publication in the Official Gazette.

2. Appointment of mediator:- The court

may appoint one or more mediators agreed to

between the parties from the panel of media-

tors.

3. Panel of Mediators:- (1) The High

Court shall, for the purpose of appointing medi-

ators between parties in proceedings filed on its

original side, prepare a panel of mediators and

publish the same on its Notice Board, within

thirty days of the coming in to force of these

rules, with a copy to the Bar Association at-

tached to the original side of the High Court.

(2)(i) The Courts of the Principal District and

Sessions Judge in each District or the Courts of

the Principal Judge of the City Civil Court or

Courts of equal status shall, for the purposes of

appointing mediators to mediate between par-

ties in suits filed on their original side, prepare

a panel of mediators, within a period of sixty

days of the commencement of these rules, after

obtaining the approval of the High Court to the

names included in the panel and shall publish

the same on their respective Notice Board.

(ii) Copies of the said panels referred to in

clause (i) shall be forwarded to all the Courts of

equivalent jurisdiction or Courts subordinate to

the Courts referred to in sub-clause (i) and to

the Bar Associations attached to each of the

Courts.

(3) The consent of the persons whose names

are included in the panel shall be obtained be-

fore empanelling them.

(4) The panel of names shall contain a de-

tailed Annexure giving details of the qualifica-

tions of the mediators and their professional or

technical experience in different fields.

4. Qualification of persons to be em-

panelled under rule 3.- The following per-

sons shall be treated as qualified and eligible

for being enlisted in the panel of mediators un-

der rule 3, namely:-

(a)(i) Retired Judges of the Supreme Court of

India;

(ii) Retired Judges of the High Court; Re-

tired District and Sessions Judges or re-

tired Judges of the City Civil Court or

Courts of equivalent status.

Legal practitioners with at least fifteen years

standing at the Bar at the level of the Supreme

Court or the High Court; or the District Courts

or Courts of equivalent status.

Experts or other professionals with at least fif-

teen years standing.

Institutions which are themselves experts in

mediation and have been recognized as such by

the High Court, provided the names of its mem-

bers are approved by the High Court initially or

whenever there is change in membership.

5.Disqualifications of persons. – The follow-



ing persons shall be deemed to be disqualified

for being empanelled as mediators:-

any person who has been adjudged as insolvent

or is declared of unsound mind; or any person

against whom criminal charges involving moral

turpitude are framed by a criminal Court and

are pending; or

any person who has been convicted by a crimi-

nal court for any offence involving moral turpi-

tude;

any person against whom disciplinary proceed-

ings or charges, relating to moral turpitude

have been initiated by the appropriate discipli-

nary authority which re pending or have result-

ed in a punishment;

any person who is interested or connected with

the subject matter of dispute or is related to

any one of the parties or to those who represent

them, unless such objection is waived by all the

parties in writing;

any legal practitioner who has or is appearing

for any of the parties in the suit or in any other

suit or proceedings;

such other categories of persons as may be noti-

fied by the High Court.

6. Venue for conducting mediation.-

The mediator shall conduct the mediation at

one or other of the following places:-

(1) Mediation centres established by the High

Court.

(2) Venue of the Lok Adalat or permanent Lok

Adalat.

(3) Any place identified by the High Court/ Prl.

District Judge within the Court precincts

for the purpose of conducting mediation.

(4) Any place identified by the Bar Association

or State Bar Council for the purpose of me-

diation, within the premises of the bar Asso-

ciation or State Bar Council, as the case

may be.

(5) Any other place as may be agreed upon by

the parties subject to the approval of the

Court.

7. Preference.- The Court shall, while

nominating any person from the panel of me-

diators referred to in rule 3, consider his suita-

bility for resolving the particular class of dis-

pute involved in the suit and shall give pref-

erence to those who have proven record of suc-

cessful mediation or who have special quali-

fication or experience in mediation.

8. Duty of mediator to disclose cer-

tain facts.- (1) When a person is approached

in connection with his possible appointment as

a mediator, the person shall disclose in writing

to the parties, any circumstances likely to give

rise to justifiable doubt as to his independence

or impartiality.

(2) Every mediator shall, from the time of

his appointment and throughout the continu-

ance of the mediation proceedings, without de-

lay, disclose to the parties in writing, about the

existence of any of the circumstances referred

to in sub-rule(1).

9. Cancellation of appointment.- Upon

information furnished by the mediator under

rule 8 or upon any other information received

from the parties or other persons, if the Court,

in which the suit is filed, is satisfied, after con-

ducting such inquiry as it deems fit, and after

giving a hearing to the mediator, that the said

information has raised a justifiable doubt as to

the mediator’s independence or impartiality, it

shall cancel the appointment by a reasoned

order and replace him by another mediator.

10. Removal or deletion from panel.- A per-

son whose name is placed in the panel referred

to in rule 3 may be removed or his name be de-

leted from the said panel, by the Court which

empanelled him, if:-

(i) he resigns or withdraws his name from the

panel for any reason;

(ii) he is declared insolvent or is declared of

unsound mind;

(iii)he is a person against whom criminal

charges involving moral turpitude are

framed by a criminal court and are pend-

ing;

(iv) he is a person who has been convicted by a

criminal court for any offence involving

moral turpitude;

(v) he is a person against whom disciplinary



proceedings on charges relating to moral

turpitude have been initiated by appropri-

ate disciplinary authority which are pend-

ing or have resulted in a punishment;

(vi) he exhibits or displays conduct, during the

continuance of the mediation proceedings,

which is unbecoming of a mediator;

(vii) the court which empanelled, upon receipt of

information, if it is satisfied, after conduct-

ing such inquiry as it deems fit, is of the

view, that is not possible or desirable to con-

tinue the name of that person in the panel;

provided that, before removing or deleting

his name, under clauses (vi) and (vii), the

Court shall hear the mediator whose name is

proposed to be removed or deleted from the

panel and shall pass a reasoned order.

11. Procedure of mediation.- (1) The me-

diator shall follow the procedure herein after

mentioned, namely;

he shall fix, in consultation with the parties, a

time schedule, the dates and the time of each

mediation session, where all parties have to be

present;

he shall hold the mediation conference in ac-

cordance with the provisions of rule 6;

each party shall, ten days before a session, pro-

vide to the mediator or brief memorandum set-

ting forth the issues, which, according to it,

need to be resolved, and its position in respect

to those issues, and all information reasonably

required for the mediator to understand the is-

sues such memoranda shall also be mutually

exchanged between the parties;

each party shall furnish to the mediator, copies

of pleadings or documents or such other infor-

mation as may be required by him in connection

with the issues to be resolved; Provided that

where the mediator is of the opinion that he

should look into any original document, the

court may permit him to look into the original

document before such officer of the court and on

such date or time as the court may fix.

Each party shall furnish to the mediator such

other information as may be required by him in

connection with the issues to be resolved.

12. Mediator not bound by Evidence

Act, 1872 or Code of Civil Procedure, 1908.

- The mediator shall not be bound by the Code

of Civil Procedure, 1908 or the Evidence Act,

1872, but shall be guided by principles of fair-

ness and justice, have due regard to the rights

and obligations of the parties, usages of trade,

if any, and the nature of the dispute.

13. Non-attendance of parties at ses-

sions or meetings on due dates.- (1) The

parties shall be present personally or may be

represented by their counsel or power of attor-

ney holders at the meetings or sessions noti-

fied by the mediator.

(2) If a party fails to attend a session or a

meeting notified by the mediator, other parties

or the mediator can apply to the court in which

the suit is filed, to issue appropriate directions

to that party to attend before the mediator and

if the court finds that a party is absenting him-

self before the mediator without sufficient rea-

son, the court may take action against the said

party by imposition of costs.

(3) The parties not resident in India, may

be represented by their counsel or power to at-

torney holders at the sessions or meetings.

14. Administrative assistance.- In order

to facilitate the conduct of mediation proceed-

ings, the parties, or the mediator with the con-

sent of the parties, may arrange for adminis-

trative assistance by a suitable institution or

person.

15. Offer of settlement by parties.- Any

party to the suit may, ‘without prejudice’, offer

a settlement to the other party at any stage of

the proceedings, with notice to the mediator.

16. Role of mediator.- The mediator shall

attempt to facilitate voluntary resolution of the

dispute by the parties, and communicate the

view of each party to the other, assist them in

identifying issues, reducing misunderstand-

ings, clarifying priorities, exploring areas of

compromise and generating options in an at-

tempt to solve the dispute, emphasizing that it

is the responsibility of the parties to take deci-

sion which affect them he shall not impose any

terms of settlement on the parties.


Sakiri Vasu Vs. State of U.P. & Others

Criminal Appeal No. 1685 of 2007

K.Mathur, Markandey Katju JJ While dealing with the powers of the Magistrate with regard to directing the Police to register the case, to investigate a case properly, monitoring the case and reopening the investigation the Hon’ble Apex Court has held as follows:

15. Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII Cr.P.C. In cas-es where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same.

16. The power in the Magistrate to order

further investigation under Section 156(3) is an independent power, and does not affect the power of the investigating officer to fur-ther investigate the case even after submis-sion of his report vide Section 173(8). Hence the Magistrate can order re-opening of the investigation even after the police submits the final report, vide State of Bihar vs. A.C. Saldanna AIR 1980 SC 326 (para 19).

17. In our opinion Section 156(3) Cr.P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the pow-er to order registration of an F.I.R. and of or-dering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) Cr.P.C., though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation.

24. In view of the abovementioned legal posi-tion, we are of the view that although Section 156(3) is very briefly worded, there is an im-plied power in the Magistrate under Section 156(3) Cr.P.C. to order registration of a crimi-nal offence and /or to direct the officer in charge of the concerned police station to hold a proper investigation and take all such nec-essary steps that may be necessary for ensur-ing a proper investigation including monitor-ing the same. Even though these powers have not been expressly mentioned in Section 156(3) Cr.P.C., we are of the opinion that they are implied in the above provision

Important judgments of the Supreme Court of India

Sadhwi Pragyna Singh Thakur Vs. State of Maharashtra J.M.Panchal & H.L.Gokhale JJ

2011 (10) SCC 445 = JT 2011 (12) SC 56= (2011) 10 SCALE 771

In para No.51 to 58 of the judgment the

Hon’ble Apex Court has dealt with the

powers of Magistrates under section

167(2), Cr.P.C. as under:

51…………………In other words, the rele-vant date of counting 90 days for filing charge sheet is the date of first order of the remand and not the date of arrest. This proposition has been clearly stated in the Chaganti Satyanarayana and Ors. v. State of Andhra Pradesh, (1986) 3 SCC 141.

52. If one looks at the said judgment one finds that the facts of the said case are set

out in paragraphs 4 and 5 of the judgment. In paragraph 20 of the reported decision it has been clearly laid down as a proposition of law that 90 days will begin to run only from the date of order of remand. This is al-so evident if one reads last five lines of Para 24 of the reported decision. Chaganti Satya-narayana and Others (Supra) has been sub-sequently followed in the following four deci-sions of this Court:

(1)Central Bureau of Investigation, Special Investigation Cell-I, New Delhi v. Anupam J. Kulkarni, (1992) 3 SCC 141, para 9 placi-tum d-e, para 13 placitum c where it has been authoritatively laid down that:

Important judgments of the Supreme Court of India


53(2)(b)). The reasoning is to be found in pa-

ras 33 to 49.

55. This principle has been reiterated in the

following decisions of this Court:

(1) State of M.P. v. Rustam and Ors., (1995) 3 Suppl. SCC 221, para 4, (2) Dr. Bipin Shantilal Panchal v. State of Gujarat, (1996) 1 SCC 718 para 4. It may be men-tioned that this judgment was delivered by a Three Judge Bench of this Court. (3) Dinesh Dalmia v. CBI, (2007) 8 SCC 770 para 39, and (4) Mustaq Ahmed Moham-med Isak and Ors. v. State of Maharash-tra, (2009) 7 SCC 480 para 12.

56. In Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453, a Three Judge Bench of this Court considered the meaning of the expression “if already not availed of” used by this court in the decision rendered in case of Sanjay Dutt and held in para 48 and held that if an application for bail is filed before the charge sheet is filed, the accused could be said to have availed of his right under Section 167(2) even though the Court has not considered the said appli-cation and granted him bail under Section 167(2) Code of Criminal Procedure This is quite evident if one refers para 13 of the re-ported decision as well as conclusion of the Court at page 747.

57. It is well settled that when an applica-

tion for default bail is filed, the merits of the

matter are not to be gone into. This is quite

evident from the principle laid down in Union

of India v. Thamisharasi and Ors., (1995) 4

SCC 190 para 10 placitum c-d.

58. From the discussion made above, it is

quite clear that even if an application for bail

is filed on the ground that charge sheet was

not filed within 90 days, before the consider-

ation of the same and before being released

on bail if charge sheet is filed, the said right

to be released on bail, can be only on mer-

its………………

The period of 90 days or 60 days has to be computed from the date of detention as per the orders of the Magistrate and not from the date of arrest by the police.

(2) State through CBI v. Mohd. Ashraft Bhat and Anr., (1996) 1 SCC 432.

(3) State of Maharashtra v. Bharati Chandmal Varma (Mrs), (2002) 2 SCC 121 Para 12, and (4) State of Madhya Pradesh v. Rustom and Ors., (1995) 3 Suppl. SCC 221.

53. Section 167(2) is one, dealing with the power of the learned Judicial Magistrate to remand an accused to custody. The 90 days limitation is as such one relating to the pow-er of the learned Magistrate. In other words the learned Magistrate cannot remand an accused to custody for a period of more than 90 days in total. Accordingly, 90 days would start running from the date of first remand. It is not in dispute in this case that the charge sheet is filed within 90 days from the first order of remand. Therefore, the Appel-lant is not entitled to default bail.

54. There is yet another aspect of the mat-

ter. The right under Section 167(2) of Code

of Criminal Procedure to be released on bail

on default if charge sheet is not filed within

90 days from the date of first remand is not

an absolute or indefeasible right. The said

right would be lost if charge sheet is filed

and would not survive after the filing of the

charge sheet. In other words, even if an ap-

plication for bail is filed on the ground that

charge sheet was not filed within 90 days,

but before the consideration of the same

and before being released on bail, if charge

sheet is filed, the said right to be released

on bail would be lost. After the filing of the

charge sheet, if the accused is to be re-

leased on bail, it can be only on merits.

This is quite evident from Constitution

Bench decision of this Court in Sanjay Dutt

v. State, (1994) 5 SCC 410 (Paras 48 and


Important judgments of the High Court of Karnataka

Crl.Petition No.2604/2012 Dated: 9.7.2013

Quoram: Hon’ble Mr.Justice M. Shan-

tanagoudar & Hon’ble Mr.Justice V.Suri

Appa Rao

Dealing with the reference on the ques-

tion on receipt of affidavit in lieu of

sworn statement in 138 NI Act cases, the

Division Bench of Hon’ble High Court of

Karnataka, has held as below:-

28. There cannot be any dispute that the pro-

visions of Sections 143 to 145 of the N.I. Act

have got overriding effect. These Sections

contain the non-obstante clause. Therefore

the relevant provisions under Cr.P.C. are

subject to the provisions of Sections 143 to

145 of the N.I. Act. Such provisions of

Cr.P.C. thus, are not attracted. Moreover

Section 4(2) Cr.P.C. further makes it amply

clear that all offences under any other law

including N.I. Act shall be investigated, in-

quired into, tried and otherwise dealt with

according to same provisions but subject to

the enactment for the time being in force reg-

ulating the manner or place of investigating ,

inquiring into, trying or otherwise dealing

with such offences. It is further made clean

in Section 5 of Cr.P.C. that nothing con-

tained in the Cr.P.C. shall, in the absence of

a specific provision to the contrary, affect any

special or local law for the time being in

force, or any special jurisdiction or power

conferred, or any special form of procedure

prescribed, by any other law for the time be-

ing in force. Since the special law i.e., N.I.

Act provides particular procedure for receiv-

ing the complaint and for filling the affidavit

in lieu of the sworn statement, those provi-

sions prevail over the procedure contemplat-

ed under Section 200 of Cr.P.C. The object of

enquiry envisaged under Section 200 of

Cr.P.C. is to verify the truth or falsehood of

the averments made in the complaint and to

find out whether there is primafacie material

or evidence in support of the complainant to

issue Process against an accused Process

against an accused and nothing more than

that. And that object is fulfilled by the docu-

ments filed with such complaints for offence

under Section 138 of N.I. Act. So examina-

tion or non-examination of the complainant

and his witnesses , if any, on oath has no

such effect on the enquiry in respect of the

complaints filed for offence under Section

138 of N.I. Act. The interest of the accused

is well protected under Section 145(2) of the

N.I. Act inasmuch as the accused can call

for the complainant or any witnesses or any

witnesses for being cross-examined. The

procedure followed by the Court at the stage

of Section 200 Cr.P.C. or prior to the stage

of Section 203 or 204 Cr.P.C. would be noth-

ing but ‘enquiry’.

Thus what is recorded during the course of

preliminary enquiry can be regarded as

‘preliminary evidence’. Section 145 of the

N.I. Act is inserted with the avowed object

of dispensing with the preliminary evidence

of the complainant in order to have speedy

trial. In this view of the matter, we have no

hesitation in our mind but to conclude that

the affidavits of the complainant/his wit-

nesses may be received under Section 200 of

Cr.P.C. The affidavits so received may be

termed as pre-summoning evidence’. As

post-summoning evidence can be received in

the form of affidavit of the complainant or

his witnesses under Section 145 of the N.I.

Act, there is no reason to debar the filling of

affidavits at the pre-summoning stage.

In view of the above, we answer the

referred question as under:

“Having regard to the amendment to the

Negotiable Instruments Act, 1881 Act,

brought about by the amending Act 55/2002,

and the statement of objects and reasons

thereto, with effect from 6.2.2003, whereby

Sections 143 to 147 are inserted, recording

of a sworn statement by the Magistrate as

required under Section 200 Cr.P.C. is not

mandatory in respect of the proceedings in-

stituted for an offence punishable under

Section 138 of the Negotiable Instruments

Act, 1881. The recording of the sworn state-

ment may be dispensed with and the affida-

vit may be received in lieu of a sworn state-

ment”.


system as ‘First Information Report-FIR’. Thus, there is a clear distinction between FIS and FIR; they are not the same. If FIS and FIR are understood in this manner and in the light of the various columns of FIR form seen in Part III of Karnataka Po-lice Manual, it can be understood that FIS can be a part of FIR. However, it is seen that there are judgments of the Supreme Court in which FIS is referred to as FIR and vice versa, without highlighting the difference be-tween the two. The following observation of the Court may be seen (T.T. Anthony V/s. State of Kerala and others and oth-er cases (AIR 2001 SC 2637) Para 18 :– “ An information given under sub section (1) of Section 154 of Cr.P.C., is commonly known as FIRST INFOR-MATION REPORT (FIR), though this term is not used in the Code …… And as it’s nick name suggests it is the earliest and the First Information of a cognizable of-fence recorded by an officer in charge of a police station” Para 20:- “……. It follows that under the scheme of the provisions of section 154, 155, 156, 157, 162, 170 and 173 of Cr. P.C., only the earliest or the first infor-mation …… satisfied the requirements of Section 154 Cr.P.C. ……. On receipt of in-formation about a cognizable offence …….. and on entering the FIR in the Sta-tion House Diary, the officer in charge of a Police Station has to investi-gate…..” (Emphasis supplied)

In an earlier decision [State of Har-yana V/s. Bhajanlal (1992)1 Supp SCC 335 (Para 102)], the Supreme Court seemed to treat FIR as a complaint. In a much later decision [Anju Choudhary V/s. State of UP (2013)6 SCC 384] the Su-preme Court observed as follows:-

Section 154 of Code of Criminal Pro-cedure 1973 (for short, the Code) deals, inter alia, with ‘information’ regarding commission of cognizable offences. Though the word ‘FIRST’ is not seen in the section that is how it is understood by the legal system. If such information is given orally to the officer in charge of a Police Station, that is the Station House Officer (SHO), the same shall be reduced to writ-ing by him or under his direction and be read over to the informant and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may pre-scribe in this behalf. A copy of such infor-mation as recorded shall be given forth-with, free of cost, to the informant.

2. The heading of this paper refers to two distinct documents, FIS and FIR. When information regarding commission of a cognizable offence is “given” orally or in writing to Police, such information can be said to have been “stated” to Police; therefore the information stated orally and reduced to writing by Police or information stated or given in writing, can be regarded as a “statement”. What is stated is a statement hence, it is described as FIS. At the same time, it is possible to say that the informant “reports” to Police about commission of a cognizable offence and hence it can be loosely described as First Information Report-‘FIR’. Yet nowhere does Section 154 use the word “Report”. As a matter of fact, the Code does not use the words ‘First Information Report-FIR’ either. In connection with first infor-mation about commission of cognizable offence received by Police, Section 157 re-quires Police to “send forthwith a report” to the jurisdictional Magistrate. This “Report” is what is understood by the legal

Article

FIRST INFORMATION STATEMENT (FIS) FIRST INFORMATION REPORT (FIR)

Justice U.L. Bhat


mation must unmistakably, relate to the commission of a cognizable offence and it shall be reduced to writing (if given orally) and shall be signed by it’s maker. The next requirement is that the substance thereof shall be entered in a book kept in the police station in such form as the State Govern-ment has prescribed. First Information Re-port (FIR) has to be prepared and shall be forwarded to the Magistrate …..” (Emphasis supplied) In another case [M.C. Ali and another V/s. State of Kerala, AIR 2010 SC 1639, see also – Sheralliwali Mohammed V/s. State of Maharashtra AIR 1972 SC 2443 (Four Judge Bench)

AND State of Kerala V/s. Anilachandran AIR 2009 SC 1866; Jogendra Nahak V/s. State of Orissa AIR 1999 SC 2565; Pam-mi V/s. Govt. of MP AIR 1998 SC 1185; Bava Hajee Hamsa V/s. State of Kerala AIR 1974 SC 902 - (ALL THREE JUDGE

BENCH DECISIONS) ], while referring to

the fact that the informant narrated to the S.I. of Police what had happened, the Su-preme Court described it as follows:- Para 13:– “First Information Statement was taken from PW1 by PW7 (SI of Police) in the house of CW9)” (Emphasis supplied)

Paragraph 16 and 18 of the judgment

also refer to that statement given to the SI of Police as “First Information Statement”

It is thus clear that the oral infor-mation given by the informant and recorded by the Police (the information furnished by him in writing) is the FIS and after record-ing FIS, the Police officer concerned enters the substance of the information in the book containing forms prescribed by the State Government and thereafter FIR is to be prepared and forwarded to the Jurisdic-tional Magistrate. In this light, FIS and FIR are different, though FIS may be initially recorded or (in the case of a written FIS) copied in a particular column in the FIR.

Para 10:- “Thus, there is an obligation on the part of a police officer to register the information received by him of commis-sion of a cognizable offence” “The opening words of section 154 suggest that every information relating to commis-sion of a cognizable offence shall be re-duced to writing by the officer …….. This implies that there has to be first infor-mation report about an incident which constitutes a cognizable offence” Para 20:- “Section 154 of the Code places an unequivocal duty upon the Police of-ficer in charge of a Police Station to regis-ter FIR upon receipt of the information ……. (Emphasis supplied ) In another case [Dilawar Singh V/s. State of Delhi AIR 2007 SC 3234] the Supreme Court observed in para 17 as fol-lows:- “After all registration of FIR involves only the process of entering the substance of the information relating to the Commis-sion of a cognizable offence in a book kept by the officer in charge …. as indicated in section 154 of the Code” (Emphasis sup-plied)

3. That the above references to “information” as FIR were casual and passing, is clear from certain other deci-sions of Supreme Court. Supreme Court [Binay Kumar Singh and other V/s. State of Bihar (AIR 1997 SC 322)] speaking through K.T. Thomas, J, while discussing whether Police were in error in treating a particular exhibit as FIS, stated as follows:- Para 8A:- “But we do not find any error on the part of the Police in not treating Ex. 10/3 as first information statement for the purpose of preparing the FIR in this case. It is evidently a cryptic information and is hardly sufficient for discerning the com-mission of a cognizable offence therefrom. Under section 154 of the Code, the infor-

Article


new FIR Form. Thus, it is seen that what we call FIS, is a part of the FIR. In other words FIR includes FIS recorded in col-umn (9) of new FIR Form.

The manual employs the words “First Information Report” (FIR) and does not employ the words “First Information Statement” (FIS). As a matter of fact the Manual refers to the F.I. Statement as FIR, leading to some confusion.

6. Para 1194 of Volume II of Karna-

taka Police Manual occurring under the heading “Registry in First Information Book”, states, inter alia, that “Information” coming under any of the headings referred to thereunder (the first heading takes in cognizable offences) re-ceived at a police station shall be regis-tered in the First Information Report book (Form 126). “which is the book prescribed under section 154 of the Criminal Proce-dure Code” and these quoted words can create some confusion.

Black’s Law Dictionary (Abridged sixth edition) furnishes the following meanings for the words “Register” and “Registration”:- Page 887 Register - “To record for-mally and exactly, to enter precisely in a list or the like ……” Page 889 Registration - “Recording, in-serting in an Official Register.

Thus, when para 1194 requires “information’ to be registered in FIR Book, it only means that FIS to be recorded or reproduced in a particular column of a page in the FIR Book. This means that oral information must be recorded and written information must be reproduced in column (9) of new FIR form in FIR Book. Four more carbon copies are re-quired to be taken simultaneously. (See para 1212(3) of Chapter XXVII). The question that arises is whether the FIR book is the book referred to in the latter part of section 154(1) of the Code of

POLICE MANUAL 4. Provisions in Police Manuals are in-structions issued with the approval of state government. Karnataka Police Man-ual is in three parts or volumes and the volumes do not contain the various forms referred to in the manual. Obviously forms were issued separately. 5. An informant may himself prepare or get drafted in writing particulars of in-formation about commission of a cogniza-ble offence which he desires to communi-cate to SHO and handover such written information to SHO. He may also furnish orally such information to the SHO, in which case, the latter is obliged to record the same accurately. In either case, the information so furnished or reduced to writing is required to be read over to the informant and the same shall be signed by the informant. This is what is provided for in the earlier part of section 154 (1) of the Code. In either case, The information so furnished in writing or reduced to writing is itself First Information Statement (FIS), though the words “First” or “Statement” are not found in the Code. When such in-formation is first furnished to the SHO, it is FIS.

Para 1189 in Chapter XXVII of Vol-

ume 2 of Karnataka Police Manual ex-plains what constitutes “First Infor-mation”. The manual does not refer to “FIS” but refers indiscriminately to “First Information Report” (FIR). FIS, furnished orally, is required to be recorded accurate-ly in column (8) of old FIR form prescribed in Form 126. If FIS is given in writing, that has to be affixed to FIR. The heading of column (9) in new Form 126 is “FIR contents (Attach separate sheet if neces-sary)”. After recording FIS in the proper way, the SHO is required to fill up the oth-er columns in the FIR book (which con-tains the FIR forms); signature of the in-formant has to be taken in the written in-formation, if any, and also in column (9) of

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technology, it is understood that Police Headquarters introduced the system of preparing FIR (not FIS) using computers and its transmission online to the Court. Nevertheless Magistrates receive the hard copy of the FIR as mandated U/s. 157 of the Code. The online form is somewhat different form No.126. In fact, the online form does not state that it is form No.126 at all. The title of the online form in Kan-nada means “FIR” and it is further stated “under section 154”. Many of the col-umns in the online form are the same as the corresponding columns in the form 126, though there is difference in certain other columns. Difference is seen in col-umn (10) of online form which corre-sponds to column (9) of new FIR Form No.126. Column (10) of online Form re-lates to “particulars” of FIS and not con-tents or substance of FIS. “Particulars” does not mean “particular”, the two words may carry different meanings. While “particular” suggests a part or portion of anything, “Particulars” suggests a detailed statement of particulars. (See Black’s Law Dictionary Abridged Sixth Edition, page 772). Obviously the full text of FIS is to be attached to the FIR which is required to be sent to the Magistrate. 9. It is necessary that judges be famil-iar with the provisions of the Police Manu-al, particularly Chapter XXVII since Police are expected to obey the mandate of the manual. Para 1212 refers to the salient points to be remembered by Police Offic-ers. The conclusion in the precluding pa-ra is supported by point (6) which states, inter alia, that SHO should proceed to reg-ister the case in the prescribed form, mak-ing relevant entries in the S.H. Diary. OBJECT OF FIS 10. The object of FIS is to set the crimi-nal law in motion in regard to cognizable offences[Hasib Vs. State of Bihar AIR 1972 SC 283]. An early FIS can imply that the implication of accused in the case

which the form is required to be pre-scribed by the state government? The mandate of the latter part of section 154(1) is that after the FIS is submitted or rec-orded, read over and signed, the sub-stance of the FIS shall be entered in a book to be kept by SHO in such form as prescribed by the State Government. The form referred to in para 1194 is the FIR book in form 126 and the column in the form requires that contents of FIS and not substance, to be recorded in column (9) of new FIR Form.

The requirement of section 154(1) of

the Code is merely to record the substance of the FIS and not the entire FIS in the prescribed book. This means that the state Govt. felt that it is safer to require the en-tire FIS to be recorded or copied in the particular column in FIR, instead of mere-ly recording the substance of FIS in FIR, since in recording merely the substance, there could be honest (unintentional) or dishonest (intentional) omissions. The state Govt., in its wisdom could very well require the entire FIS to be recorded or copied in Form 126 in the FIR Book. Para 1200 of Chapter 27 refers to the require-ment of recording the “substance” of “information” in the Station House Diary (SHD). SHD is also referred to in para 1101 and 1102 of Chapter 23 of the man-ual. The form of S.H. Diary prescribed is seen in form No.66 in volume III of the manual. Thus, instead of recording the substance of FIS in the FIR Book, the en-tire FIS is required to be recorded therein. 7. Para 177 (Chapter V) of the Karna-taka Police Manual requires the Sub-Divisional officer to scrutinize all case dia-ries received from inspectors and to main-tain a crime register in form No.20 to watch the receipt of the case diaries and the progress reports. Various particulars of crimes are to be entered in columns (2) and (8) of the Crime Register. 8. With the introduction of information

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1954 sc 30, Panduranga Vs. State of Hyderabad AIR 1955 SC 216]. Omission of important facts in the FIS given by an eye-witness has some significance [Ramjanam Singh Vs. State of Bihar) AIR 1956 SC 643]. If the FIS is based on hearsay, there may be omission of some facts and no suspicion can be attached to the FIS [State of Rajasthan Vs. Kartar Singh AIR 1970 SC 1305]. Non-mention, of the name of the assailant in the FIS, if properly explained, is not significant [Bison Das Vs. State of Punjab AIR 1975 SC 573, State of Maharashtra Vs. Mo-hammad Sajid Hussain AIR 2008 SC 155]. Omission of the names of eye-witness is relevant, but is not by itself, de-cisive [Narpal Singh V/s. State of Harya-na AIR 1977 SC 1066] . Non-mention of a dying declaration in the FIS cannot lead to disbelief of the dying declaration [State of M.P. Vs. Dhirendra Kumar AIR 1997 SC

318]. Every omission to mention a fact is

not of any consequence as it could be due to disturbed physical and mental condi-tion of the informant [Animireddy Venka-taramana Vs. Public Prosecutor, High Court of Andhrapradesh AIR 2008 SC

1603].

Credibility of eye-witnesses cannot be doubted merely because their names are not mentioned in the FIS [Raj Kishore Jha Vs. State of Bihar AIR 2003 SC 4664]. Such an omission may lead to some suspicion, but if the informant is not an eye-witness or is a close relation who was in disturbed state of mind, the omission may not matter. If the witnesses were questioned without delay, their pres-ence at the scene of occurrence can be ac-cepted [Chittarlal Vs. State of Raja-

sthan AIR 2003 SC 3590]. Regarding

the absence of reference to the existence of light in the FIS, see Jaishree Yadav Vs.

State of U.P. [AIR 2004 SC 4443]

(To be continued in next news letter……….)

is not an afterthought [Damodar Prasad Chandrika Prasad v. State of Maharash-tra AIR 1972 SC 622]. Information which discloses commission of a cognizable of-fence must be treated as “information” that is, FIS under section 154 of the Code. It does not matter if the informant is an eye-witness or not. FIS need not contain all the details of the occurrence, such as, manner and details of occurrence, partici-pation in the crime, etc.[Hemraj Vs. State of Punjab AIR 2003 SC 4259] Tel-ephone information received by the SHO without any details regarding identity of the accused or nature of the injuries caused to victims and also names of the assailant is not to be treated as F.I.S. though proper telephonic information can be recorded as FIS on the basis of which FIR can be registered [Ravishwar Manjhi Vs. State of Jharkhand AIR 2009 SC 1262] . Cryptic information over the tele-phone or by telegram cannot be regarded as FIS [Tapinder Singh Vs. State of Pun-jab and another AIR 1970 SC 1566, Vikram and others V/s. State of Maha-rashtra AIR 2007 SC 1893 Surajit Sarkar V/s. State of West Bengal AIR

2013 SC 807)].

11. In appropriate cases, an entry in the general diary can be treated as FIS if it discloses commission of a cognizable of-fence [Superintendent of Police, CID Vs. Tapan Kumar Singh AIR 2003 SC 4140] . FIS is to be recorded first and thereafter an entry is to be made in the Station House Diary (SHD). Hence, the truth of the contents of the FIS cannot be tested with reference to such entries. When the entries in the FIS and SHD are totally con-tradictory, there could be serious doubt regarding the genuineness of the diary en-tries [Paramjit Singh v. State of Punjab AIR 2008 SC 441]. Omission of the name of the assailant in the FIS is material un-less the informant is not an eye-witness or if an eye-witness is not aware of his name [Thakur Prasad v. State of M.P. AIR

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Programmes of Karnataka Judicial Academy

ItoVContinuingeducationprogrammeforCivilJudgesheldduringthe

monthofJuly2013.



VItoVIIContinuingeducationprogrammeforCivilJudgesheldduringthe

monthofJuly2013

Smt.RadhaH.R.DeputyDirector,KarnatakaJudicialAcademyaddressing

thetraineejudicialof'icersonCISonVIIIContinuingeducationprogramme

forciviljudgesfrom29-7-13to31-7-13



CISComputerTrainingforJudicialOf�icersof

BangaloreUnitconductedon7.7.13atKarna-

takaJudicialAcademy

StateBarCouncilhadorganizedtrainingforen-

rollingadvocateson12.07.2013&19.07.2013at

KarnatakaJudicialAcademy,Bangalore.

Hon’ble Mr.Justice N.Kumar, Judge, HCK & President, KJA, inaugurated the workshop on

13.7.2013 for Judicial Of�icers of Gulbarga & Bidar Districts on Perspectives of Marginalised

Woman at Zilla Panchayat Auditorium in Bidar. Hon’ble Justice A.N.Venugopalagowda, Judge,

HCK&AdministrativeJudgeofBidarDistrictpresidedover.

Other News


KarnatakaStateCommissionforProtectionofChildRightsincollaborationwithKar-

natakaStateLegalServicesAuthorityhadorganizedStateLevelworkshoponEffec-

tiveimplementationofProtectionofchildrenfromsexualoffencesAct&Rules–

2012(POCSOAct&Rules)on27.07.2013atKarnatakaJudicialAcademy.

Hon’bleMr.JusticeV.Gopalagowda,Judge,SupremeCourtofIndia,inauguratedthework-

shopwhichwasgracedbyHon’bleMr.JusticeK.SridharRao,Judge,HighCourtofKarna-

taka&Chairperson,KSLSA,Ms.KushalSinghChairperson,NCPCR,NewDelhi,Ms.Nina

P.Nayak,Member,NCPCR,NewDelhi,Dr.Rameshwaripandya,Sri.H.R.UmeshAradhya,

Chairperson,KCPCR,Sri.RameshB.Zalki,PrincipalSecretary,Departmentofwoman&

childDevelopment

KARNATAKA JUDICIAL ACADEMY

GOVERNANCE

Patron-in-Chief

Hon’ble Chief Justice D.H.Waghela

High Court of Karnataka

President

Hon’ble Mr. Justice N.Kumar

Judge, High Court of Karnataka

Board of Governors

Hon’ble Mr.Justice Ashok B.Hinchigeri


Hon’ble Mr.Justice A.S.Bopanna


Hon’ble Mrs. Justice B.V.Nagarathna


Hon’ble Mr.Justice B.V.Pinto


july news letter - modified by director · the sexual harassment of women at workplace (prevention,...

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