Civil Disputes and Police

1. Civil Disputes and Police Dr.T.S.N.Sastry Prof & Head Dept of LAW UNIVERSITY OF PUNE

2. According to the UDHR Art,2 prohibits all types of discrimination Art 5 Prohibits all types of Torture Art 8 Prescribes right to an effective remedy Art 9 Prohibits Arbitrary Areest Human Rights to be followed by police Civil Disputes Art 9 Prohibits arbitrary arrest

3. Art 17 prescribes right to property and no arbitrary deprivation • Art 30 either the State group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms

4. Legal Concept of Property • Property is an institution. As a legal right it confers ownership on the possessor of the property • Being a legal right, all other persons are forbidden to interfere with the owner in the exercise of the right in respect of the property owned (Golkanath V State of Punjab SC 1967)

5. A right in property impose a duty on others not to interfere with the owner’s use of it. • Property is a legal relation between one individual and others and individuals and things.

6. According to Blackstone right to property encompasses three more rights, Right of Free use, Right to enjoy Freely and Disposal and acquisitions. • The other rights are Right to Possess; Right to use; Right to enjoy fruits; Right to incidental benefits; Right to dispose; Right to prohibit others interference

7. Economic Institution • Confers an exclusive right to its owner a an authority to make decisions on resource use as to derive income there from • All the jurisprudential theories advocate the rights stated above and prohibits the interference of others in the enjoyment of the rights conferred by law.

8. Property is three types; Immovable (Real Property) Movable (personal) Corporeal ( Which can be touched) Intangible Property (which can not be touchable) Intellectual property The first two are classified as Corporeal property

9. Private and Public Property • Private property belongs to the individuals and public property belongs to the State • Intellectual Property which is Copy Right, Trade Marks, Patents and Industrial Designs • Intellectual Property like any other property is not absolute in terms

10. In immovable property in the following areas disputes normally arise between the disputing parties. • Sale; Mortgages; Leases; Exchanges; Gift; Succession, Insolvency, By act of parties

11. Intellectual property provides for both civil and Criminal remedies, mostly it is civil disputes that provide a sufficient remedy to the injured party especially in the area of copy rights • In majority of the cases of transfer of property when one group or other approach the police, though no right exist they indulge themselves with one party or the other

12. Section 330 IPC • Whoever voluntarily causes hurt for the purpose of extorting from the sufferer or from any person interested in the sufferer, any confession or any information which may lead to the detection of an offence or misconduct, or for the purpose of constraining the sufferer or any person interested in the sufferer to restore or to cause the restoration of any property or valuable security or to satisfy any claim or demand, or to give information which may lead to the restoration of any property or valuable security, shall be punishable

13. Examples • A police officer tortures B to induce him, to point our where certain stolen property is deposited • A land lord tortures where in the police helps the land lord without bothering about the truth

14. Basically this section prevents torture by the police. A police officer is under a legal duty to prevent the infliction of torture on those who are in his custody and his failure to discharge that duty makes him a party to the crime. • Ingredients: The accused caused hurt voluntarily: Hurt was caused to extort confession; to restore any property or valuable security; satisfy a claim or demand or restoration of property

15. Sect 331 • Grievous Hurt; • Ingredients • Grievous Hurt or caused; To extort confession, restoration of any valuable property or any other aspect while dealing with property disputes

16. The same may be used even in Family disputes like matrimonial; issues on children issues, during judicial conjugation; Love marriage issues; inter caste marriages etc.

17. cheque • In order to regulate the issue of Dishonor of Cheque for insufficiency of funds, in the year 1988 the Government introduced an amendment to section 138 of the Negotiable Instruments Act and empowered the Judiciary to punish the offenders with criminal law provisions under section 420 of the IPC.

18. At present if any drawer issues a cheque negligently with an intention to cheat the payee then liable for punishment for cheating. In this situations also the court has to find out the Mens Rea of the Person and even it it’s done intentionally On the court has power not the police

19. The cheque should have been issued in discharge of a legally enforceable debt • The cheque should have been presented within the period of its validity • The cheque should have been dishonored for want of funds in the account of the drawer

20. The payee or holder of the cheque should have issued a notice in writing to the drawer demanding the amount of cheque within a stipulated time • The drawer must have failed to make payment with in 15 days of receipt of notice

21. Amendment in 2002 • Seeing the misuse of the provision after a number of judicial pronouncements, the government introduced some important aspects. More time to send notice; punishment increased from one year to two years, power to court for condo nation of delay in filing of complaint, excluded liability of government nominated directors etc.

22. However the police have a limited role for the criminal jurisdiction is concerned. They have to register the FIR if a complaint is received and has to submit to the Magistrates court.

23. Various Reasons for Dishounour • A Cheque may be dishonored for a variety of reasons • Account Closed • Over Draft • Stop Payment instructions • Refer to Drawer; • Reasons such as technical or irregularity of endorsement signature of drawee is incomplete

24. When cause of action arises • The cause of action for filing of the complaint arises from the non-payment within 15 days of notice. • Filing of complaint should have been made to a metropolitan or a first class judicial magistrate by the payee or the holder in due course of the cheque within one month from the date on which the a cause of action arose • Premature complaint can not be entertained until the period of maturity takes place

25. Procedure for Complaint • A complaint under s. 138 has to be a private complaint with section 200 of Cr.P.C. before the competent magistrate. The police cannot act on the private complaint of an offence under Sec 138. • A complaint u/s.138 being a private complaint, the magistrate should not refer it to the police for investigation u/s 156 (3) of Cr.P.C.

26. Katta Panchayat • Describing the acts of katta panchayat the Madras High Court in Gopal V. The State of Tamil Nadu (2005 (4) CTC 241) held that police supporting or being silent to these illegal mafia or hooligans is unfortunate. In this regard what happened to Suganthi in Rajendran and others V State of Tamil Nadu is an unfortunate affair

27. In the year 2003 the Director General of Police had issued directions to all Superintendent of Police to issue directions to all subordinate officers about the illegality and not to participate or support the local pancahyats

28. The Local panchayats cannot function without the aid and help of the police or other authorities. • Police as the protection force of the people and as part of the state administrative machinery should work for the progress of the people than anything else

29. Strong Disciplinary action need to be taken against earring police officials • The DGP accordingly issued circulars to the lower officials to see that police should not indulge in this illegal gatherings

30. Code of Conduct for Law Enforcing Officials (1979)G.A. Resolution • Law enforcement officials shall at all times fulfill the duty imposed upon them by law, by serving the community and by protecting against illegal acts, consistent with the high degree of responsibility required by their profession. • In performing the duty they have to respect the right to human dignity

31. No Law enforcement official may inflict, instigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment, nor may any law enforcement official invoke superior orders or cite exceptional circumstances on the name of war, national integration, national threat as justification for using inhuman or degrading treatment or punishment

32. Prohibition of corruption • No Law enforcement official shall not commit any act of corruption. • They shall rigorously oppose and combat all such acts • Law enforcement authorities shall respect the law of the Land and to their capability prevent and rigorously prevent any such violations to the law of the land

33. Suggestions • At the Local level or Village level police is the important organs which needs to gain the support of the people • The Officers of Police should encourage honest police men and uplift the name and fame of the Dept in public • Regular motivation camps need to be conducted

34. Senior officers should visit the stations regularly and meet with public to know the pulse of their subordinate staff • Rough and tough attitude need to be eliminated. • Civil Disputes if police are involved they need to be punished or remedial action need to be taken

35. Public Education Campus need to be conducted • Legal literacy need to be an important component in training programmes • Outlines the objectives and performance standards and setup independent mechanism to measure the performance

36. Human Rights training must be encouraged. • With help of human rights experts regular lectures or the public perception need to be presented to lower officials • Moral and Ethical values need to taught regularly

37. Make public participation camps and cultural, social, psychological recreations to know their potential and the necessity to help the society • Introduce Civic oversight policies and be courage's of their job without any fear or favour from others

38. Treat them with love and affection. Behavioral change of the higher officials certainly change the behavior of the lower officers • Establish some community network and link them to police activities

39. Thank You All