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ENEMY PROPERTY ACT, 1968 WITH SPECIAL REFERENCE TO ORDINANCE 2016

person DateMarch 17, 2017

ENEMY PROPERTY ACT, 1968  WITH SPECIAL REFERENCE  TO ORDINANCE  2016

 

  • In the wake of the India-Pakistan wars of 1965 and 1971, there was migration of people from India to Pakistan; the Government of India took over the properties of those who took Pakistani nationality. The same was done for property left behind by those who went to China after the 1962 Sino-Indian war
  • In the year 1968 this Act was enacted by the Government of India to get control over such property spread across the country especially in Uttar Pradesh.
  • The act barred the Indian citizens who claimed to be the legal and rightful heirs of the original owners from inheriting those properties.
  • Under this act all these properties as called as “Enemy Properties” (movable & immovable) and powers is given to central government to take over properties owned by people who left for Pakistan or China when India was at war with these countries.
  • Under Section 3 of the Act Central Government appoints a custodian for enemy property for India and one or more deputy/assistant custodians as assistances.
  • All enemy properties in the country are within the control of this Custodian of Enemy Property
  • The role of the Custodian was to preserve, manage, administer and control the properties on behalf of the enemy; ( Sections 8, 10 and 15)
  • The Custodian had no power to sell the enemy property except under special circumstances namely there was no money with him to pay taxes and/or he had no money for preserving the properties and/or for the maintenance of that individual (enemy) or his family in India; (Sections: 8 (1))
  • In addition, there are also movable properties categorized as enemy properties.
  • Under the Act of 1968 Courts was having power to deal with the issues relating to enemy property.

 

 

 

 

ENEMY PROPERTY (AMENDMENT AND VALIDATION) FIFTH ORDINANCE, 2016

Need of Amendment

  • There have been various judgments by courts that have adversely affected the powers of the Custodian and the Government of India as provided under the Enemy Property Act, 1968. In view of such interpretation by various courts, the Custodians are finding it difficult to sustain his actions under the Enemy Property Act, 1968.

 

  • One such court judgment was passed in the case of the estate of the erstwhile Raja of Mahmudabad, who owned several large properties in Hazratganj, Sitapur and Nainital. Following partition, the Raja left for Iraq and stayed there for some years before settling in London. His wife and son Mohammed Amir Mohammad Khan, however, stayed behind in India as Indian citizen

 

 

  • After The Enemy Property Act was enacted in the year 1968 by the Government of India, the Raja’s estate was declared enemy property. When the Raja died, his son claim to the properties. After a legal battle that lasted over 30 years, an apex court Bench comprising Justice Ashok Bhan and Justice Altamas Kabir on October 21, 2005, ruled in favor of the son.

 

  • Soon after, there were more litigants who queued up to get back their properties. To ensure that the enemy property continues to vest in the Custodian, appropriate amendments were brought in by way of an Ordinance in the Enemy Property Act, 1968

 

OBJECT

The amendments to the Enemy Property Act, 1968 will eradicate the loopholes in the Act to ensure that the enemy properties that have been vested in the Custodian remain so and they do not revert back to the enemy subject or enemy firm.

The Enemy Property (Amendment and Validation) Bill, 2016 has the following salient features:

  • Once an enemy property is vested in the Custodian, it shall continue to be vested in him as enemy property irrespective of whether the enemy, enemy subject or enemy firm has ceased to be an enemy due to reasons such as death etc;
  • Law of succession does not apply to enemy property.
  • There cannot be transfer of any property vested in the Custodian by an enemy or enemy subject or enemy firm and that the Custodian shall preserve the enemy property till it is disposed of in accordance with the provisions of the Act.
  • Retrospective application: The Ordinance amends several provisions of the 1968 Act retrospectively. The ordinance nullifies all deals to transfer properties since 1968 and stipulates that once an enemy property is vested in the Custodian, it won’t matter if the legal heir is an Indian citizen or not. As a result, divestments (i.e., returning of property from the Custodian to the owner) and transfers of enemy property that had taken place before the promulgation of the Ordinance, which are not in compliance with the Ordinance, will be considered void.
  • DEFINITION OF ENEMY: Changes and expanded the definition of enemy to include:
  • Legal heirs of enemies even if they are citizens of India or of another country which is not an enemy
  • Nationals of an enemy country who subsequently changed their nationality to that of another country, etc.
  • VESTING OF ENEMY PROPERTY: In the following cases these properties will continue to vest with the Custodian:
  • the enemy’s death
  • (ii) if the legal heir is an Indian
  • (iii) enemy changes his nationality to that of another country, etc.
  • Vesting of enemy property with the Custodian will mean that all rights, titles and interests in the property will vest with the Custodian. No laws and customs governing succession will be applicable to these properties.
  • DIVESTMENT: Enemy property to be returned to the owner only if an aggrieved person applies to the government and the property is found not to be an enemy property.
  • Power of Sale: the Custodian can sell or dispose of enemy property. The Custodian may do this within a time period specified by the central government, irrespective of any court judgments to the contrary.
  • Transfers by Enemies: The Ordinance removes the provision of transfer by enemies, and prohibits all transfers by enemies. Further, it renders transfers that had taken place before or after the commencement of the 1968 Act as void.
  • Jurisdiction of Courts: The Ordinance bars civil courts and other authorities from entertaining cases against enemy properties. But it allows a person aggrieved by an order of the central government to appeal to the High Court, regarding whether a property is enemy property. Such an appeal will have to be filed within 60 days (extendable up to 120 days).
  • Powers of the Custodian: The 1968 Act authorized the Custodian to take measures to preserve enemy property, and maintain the enemy and his family if they are in India, from the income derived from the property. The Ordinance removes the duty to maintain the enemy and his family.

 

 

 

 

 

 

 

 

 BY- VINITA SINGH

 

 

 

 

 

OFFENCES AGAINST SCs or STs COMMUNITIES AS DEFINED UNDER SCs and STs (Prevention of Atrocities) Act 1989

person DateFebruary 24, 2017

 SCs and STs (Prevention of Atrocities) Act 1989

Under this act offences can be committed only by non-Scheduled Caste or non-Scheduled Tribes on members of the Scheduled Caste or Scheduled Tribes communities i.e.

Offender under this Act – non SCs or non STs Members

Victim under this Act – member of SCs or STs Communities

Actions to be treated as offence (atrocities) under this Act are :{ Section 3(1)}

  • Offender compelled victim to eat or drink objectionable or bad substance
  • Offender dump waste materials in the premises or neighborhood of victim with the intension to insult or annoy them
  • Garlanding with footwear, painting the face or body of victim
  • Parading naked or semi naked to the victim
  • Wrongfully occupies the farming land owned or possessed by victim
  • Destroy the crops or takes away the produce of victim
  • Forced to do beggar and other form of forced and bonded labour
  • Compelled a victim to do manual scavenging or to dig graves
  • Intentionally touching a women belonging to SCs or STs Communities in sexual manner or dedicating her as devadasi in a temple
  • Preventing victim from exercising of their right to vote or to vote according to their will
  • Preventing the chairperson or member of Panchayat who belongs to SCs or STs Communities in performance of their duties
  • Giving threat to institute false legal proceeding
  • Causing injury or annoyance by public servant on the basis of false information given to them
  • Publically humiliating and abusing the victim
  • Destroy or damage object held to be sacred by the victim’s community
  • Promoting the feeling of hatred and enmity against victim or any late person held in high esteem by the member of SCs or ST either by words spoken or written or by visible representation
  • Polluting the water of any spring, river, reservoir etc ordinarily used by victim
  • Compel the victim to leave his house, village, residence etc
  • Hindering or restricting the member of SCs or STs communities from doing the following activities :
  • Using public property i.e. river, well, water tap, bathing gaths etc
  • Riding bicycles, motorcycles, or wearing footwear’s, clothes etc in public place
  • Mounting a horse or other vehicle during weeding ceremony
  • Entering a place of worship that is open for public
  • Entering an educational or health institution
  • Practicing any profession or carrying on any business etc which other member of public have a right to use or to have access
  • Blaming for practicing witchcraft or for being a witch
  • Threatening for economic or social boycott

(more…)

APPRECIATION OF EVIDENCE UNDER EVIDENCE ACT 1872

person DateFebruary 17, 2017

The definition of ‘evidence’ as per Section 3 of the Indian Evidence Act 1872 covers a) the evidence of witnesses and b) documentary evidences. Evidence can be both oral and documentary. Electronic records can also be produced as evidence. In criminal case, the prosecution has to prove the charge beyond reasonable doubt. the presumption is that the accused is innocent until the contrary is clearly established. One has to appreciate the evidence in proper perspective and reach a conclusion one way or the other. It is no quantity of evidence but the quality that matters.

In a criminal case appreciation of evidence is one of the first and primary tests to consider the trustworthiness and consistency of the prosecution version both oral and documentary. The finding of the facts, the question of law and the conclusion of the Judges of the Court culminating into the judgments in a criminal case mainly based on the appreciation of evidence. Right from setting the law in motion in a criminal case by preferring FIR and after completion of investigation filing the final report ultimately resulting in producing and adducing the evidence before the Court consist varied kinds of evidence both oral and documentary and the admissibility and reliability of such evidence should be considered by the Court on the basis of the facts and law for arriving at the just decision of the case. Therefore appreciation of evidence is the heart and soul of the special consideration of justice delivery system in criminal law. Criminal cases involves life and death problem of a citizen and the destiny of the citizen is to be decided by carefully analyzing and examining the evidence adduced by the prosecution. (more…)

MATERNITY BENEFIT : RIGHTS OF WORKING WOMEN UNDER MATERNITY BENEFIT ACT 1961 WITH SPECIAL REFERENCE TO AMENDMENT OF 2016

person DateFebruary 5, 2017

INTROCUTION

Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection. In order to protect the working women and her soon to be born child, the law makes provision for maternity benefit (Maternity Benefit Act 1961) so that the women can play both her productive and reproductive role efficiently.

 

MATERNITY BENEFIT AND INDIAN CONSTITUTION

Article 15(3) State to make special provisions for women and children

Article 39(e) health and strength of workers both men and women are not abused

Article 42 requires that the State shall make provision for securing just and humane conditions of work and for maternity relief

Article 46 right to improvement in employment opportunities and conditions of the working women

Who entitled to Maternity Benefit?

Every woman employee, who has actually worked for a period of at least 80 days during the 12 months immediately preceding the date of her expected delivery, is entitled to receive maternity benefit.

How does one can claim maternity benefit?

A woman employee is required to give her employer notice in writing asking for maternity leave and benefit. The notice may be given during the pregnancy or as soon as possible, after the delivery. (more…)

CONFESSION TO POLICE OFFICER IS IRRELEVANT IN THE EYE OF LAW

person DateJanuary 13, 2017

   

A confession is a statement made by the person charged with crime suggesting an inference as to any fact in issue or as to relevant facts. A confession may be defined a statement by a  suspect in which he or she voluntarily, knowingly and  intelligently acknowledges that he or she committed or participated in the commission of a crime and which makes it  clear that there is no defence in law that would make his or  her conduct lawful. A confession must be defined as an unequivocal admission of guilt by an accused person.  Confessions and admissions remain proper elements in law enforcement and it has been shown in some reported decision that some criminal cases are capable of solution only by means of confessions and/or admissions.

There are three phases that are important in determining whether a confession is admissible in evidence.

  1. The first phase is when a suspect is interrogated by the police. This is a phase of our predominantly accusatorial system of criminal procedure. There is a need to protect a suspect against untoward conduct by the police during his interrogation.
  2. The second phase is when a confession is recorded either by a magistrate or a justice of the peace. This is a crucial stage because the “YES” and “NO” answers of a suspect on a roneod confession form and additional questions put to him may satisfy a court of law that a confession was made freely and voluntarily be an accused in his sound and sober senses and without having been unduly influenced thereto.
  3. The third phase is when the admissibility of a confession is challenged in court in a trial within a trial. If a suspect is undefended, he may not adequately exercise  his procedural rights. But, if he or she made a confession to a magistrate, a suspect is presumed to have acted freely and voluntarily etc. and a confession is admitted in evidence on  its mere production if his or her name corresponds to the  name of the person who has signed the confession and if it  appears on the document containing the confession that it was  made freely and voluntarily and without his or her having  been unduly influenced thereto the admissibility of confessions.

CONFESSION TO POLICE

According to SECTION-25 OF INDIAN EVIDENCE ACT 1872– Any confession made to the police officer is totally inadmissible in evidence. If the confession to police were allowed to be proved in evidence, the police would torture the accused and tus force him to confess to a crime which he might not have committed. A confession obtained would naturally be unreliable. It would not be voluntary such confession will be irrelevant whatever may be it form.

In other words the police is not considered trust worthy. It is apprehended that any power given to police to record confession or statement is more likely to me misused and overzealous police officer might extort or fabricate confession or manipulate statement.

STATEMENTS DURING INVESTIGATION AND BEFORE ACCUSATION

A confessional statement made by a person to the police even before he is accused f nay offence is equally irrelevant. A statement cannot be proved against any person accused of any offence means that even if the accusation is subsequent to the statement the statement cannot be proved.

A confession is considered involuntary if it is made during an investigation which by its nature, duration or other attendant circumstances creates hopes or fears or sp affects the mind of the suspect that his will crumbles.

CONFESSION IN POLICE CUSTODY

No confession is made to anybody while the person making it is in police custody is provable. The person in police custody is in conversation with any person other than a police officer and Confesses to his guilty. The same fear, namely that police the police would torture the accused and force him to confess. Statements made on TV and press reporters by the accused person in the presence of police and also in police custody held to be inadmissible.

SECTION 25 OF THE EVIDENCE ACT: CONFESSION TO POLICE OFFICER NOT TO BE PROVED

“No confession made to a police officer, shall be proved as against a person accused of any offence.”

The object of this rule is to prevent the extortion of confessions by police officers who in order to gain credit by securing convictions go to the length of positive torture.

A series of conflicting suggestions as to the rational underlying this inflexible statutory bar emerges from the decided cases:

(1) An objective and dispassionate attitude cannot be confidently be expected from police officers.

(2) The privilege against self incrimination has been thought to lie at the root of the principle.

(3) Importance has been attached to the discouragement of abuse of authority by the police that could erode the fundamental rights of the citizen.

Section 25 is an inflexible and a very wide provision disallowing any confessional statement made to a police officer.

This provision needs to be made a little flexible. Some confessions should be allowed to be proved against a person accused of any offence which are made to a police officer. Where a person is a proclaimed offender, confessions made by the accused to the police officer should be allowed.

The provision should be reworded in such a manner where the confessional statements made by a proclaimed offender to a police officer should be made relevant but these statements are to be made by the accused without any threat or violence.

Care must be taken to stop the torture by the police officers to extract confession but confessions made by an accused who is a proclaimed offender to a police officer without threat or violence being committed on the accused by the police officer should be made valid.

The rationale behind allowing confessions of a proclaimed offender is that, these criminals already have a history of committing crimes and they should not enjoy the immunity given to a common man that any confessional statement given to a police officer is not valid. These are dangerous criminals who should not be allowed to go scot-free due to a provision of law but be put behind bars and save the society from crimes.

ACCORDING TO SECTION 164 OF CRIMINAL PROCEDURE CODE  lay down that the Magistrate is empowered to record any confession or statement of a person made during investigation by the police or at any time afterward, but before commencement of inquiry or trial. The confession recorded after the investigation has concluded and inquiry has commenced is not admission. The magistrate has been discretion to record the confession. But if he chooses to record t he has to comply with the following provisions-

  1. It should be recorded and shall be signed in the manner provided in section 281 of Cr.PC and shall be signed by the person making confession.
  2. The Magistrate should give a warning to the accused that he is not bound to make the confession
  3. The Magistrate should be satisfied that the confession is made voluntarily.
  4. The Magistrate shall make a memorandum at the foot of the confession so recorded

First Information Report (FIR)

person DateJanuary 7, 2017

What is an FIR?                                                                                                

First Information Report (FIR) is a written document prepared by the police when they receive information about the commission of a cognizable offence. It is a report of information that reaches the police first in point of time and that is why it is called the First Information Report. It is generally a complaint lodged with the police by the victim of a cognizable offence or by someone on his/her behalf. Anyone can report the commission of a cognizable offence either orally or in writing to the police. Even a telephonic message can be treated as an FIR.

Cognizable offence: A cognizable offence is one in which the police may arrest a person without warrant. They are authorised to start investigation into a cognizable case on their own and do not require any orders from the court to do so.

Importance of FIR: -The FIR is a very important document as it sets the process of criminal justice in motion. It is a statement made soon after the occurrence,hence the memory of the information is fresh and it also unlike that he had opportunity to fabricate. It is only after the FIR is registered in the police station that the police takes up investigation of the case.

Duty to register Fir: It’s a duty of the officer in charge of a police station is legally bound to register the first information report. If the allegation made give rise to an offence which can be investigated without obtaining any permission from the magistrate concerned

Who can lodge an FIR?

Anyone who knows about the commission of a cognizable offence can file an FIR. It is not necessary that only the victim of the crime should file an FIR. A police officer who comes to know about a cognizable offence can file an FIR himself/herself.

What is the procedure of filing an FIR?

The procedure of filing an FIR is prescribed in Section 154 of the Criminal Procedure Code, 1973.

  • When information about the commission of a cognizable offence is given orally, the police must write it down.
  • It is your right as a person giving information or making a complaint to demand that the information recorded by the police is read over to you.
  • Once the information has beenrecorded by the police, it mustbe signed by the person givingthe information. You should sign the report only after verifying that the information recorded by the police is as per the details given by you.
  • People who cannot read or write must put their left thumb impression on the document after being satisfied that it is correct record.
  • Always ask for a copy of the FIR, if the police do not give it to you. It is your right to get it free of cost.

Where to lodge FIR:

An F.I.R. can be lodged in the police station of the concerned area in whose jurisdiction the offence has been committed. FIR is always to be written by an officer in charge of a Police Station. According to sec. 36 of Cr.P.C. Police officers superior in rank to officer incharged of a Police Station may exercise the same powers through the local area to which they are appointed, as may be exercised by SHO with in the limit of his Police Station.

What should you mention in the FIR?

  1. Your name and address;
  2. Date, time and location of the incident you are reporting;
  3. The true facts of the incident as they occurred;
  4. Names and descriptions of the persons involved in the incident;
  5. Witnesses, if any.

You should NOT do these things:                           

* Never file a false complaint or give wrong information to the police. You can be prosecutedunder law for giving wrong information or for misleading thepolice.

* Never exaggerate or distort facts.

* Never make vague or unclear statements.

Investigation by Police

On the basis of FIR the police starts investigation.Sec.156, of Cr. P.C  1973  states that an  officer  in charge  of  Police  Station  is  empowered  to  investigate  any cognizable offences which occurs within his jurisdiction. Section 157 of Cr. P.C., 1973 empowered the officer in charge of police station to depute a subordinate officer not being below such rank as the state Govt. may by general or special orders prescribed in this behalf to proceed to the place and to investigate the factors and circumstances of cases and, if necessary, to take measures for the discovery and arrest of the offender.

What can you do if your FIR is not registered?

* You can meet the Super in – tendent of Police or other higher officers like Deputy Inspector General of Police & Inspector General of Police and bring your complaint to their notice.

* You can send your complaint in writing and by post to the Superintendent of Police concerned. If the

Superintendent of Police is satisfied with your complaint, he shall either investigate the case himself or order an investigation to be made.

* You can file a private complaint before the court having jurisdiction.

The following are the essential ingredients of the FIR:

  • It must be information relating to the commission of a cognizable offence.
  • It must be given to an officer -in -charge of a Police Station.
  • It must be reduced to writing, if given orally.
  • It should be appended by the signature of the informer (Refusal to sing the report is punishable u/s 180 IPC).
  • It should be read over to the informer.
  • The gist of the information should be entered in the Station General Diary.
  • A copy should be given forthwith free of cost to the informer

 

             FIR ACCORDING TO CRIMINAL PROCEDURE CODE, 1973:

According toCHAPTER XII – INFORMATION TO THE POLICE AND THEIR

POWERS TO INVESTIGATE SECTION 154 OF CRIMINAL PROCEDURE CODE, 1973

Information in cognizable cases –

(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing 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 prescribe in this behalf

(2) A copy of the information as recorded under sub-section

(1) shall be given forthwith, free of cost, to the informant

(3) Any person, aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section

(1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence

 

 

Section 155. Information as to non-cognizable cases and investigation of such cases

(1) When information is given to an officer in charge of a police station of the commissionwithin the limits of such station of a non-cognizable offence, he shall enter or cause to be enteredthe substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer, the informant to the Magistrate

(2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial

(3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case

(4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are noncognizable

Punishment for false information:

Section 177 of the IPC contains penal provision for the persons providing false information. This section says that “Whoever, being legally bound to furnish information on any subject to any public servant, as such, furnishes, as true, information on the subject which he knows of has reason to believe to be false, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both”.

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