Rajasthan Judicial Service Main Exam Sample Question Papers!
PART-A
Q.1 What do “heinous offences” mean under the Juvenile Justice (Care and Protection of Children) Act, 2015?
Ans. “Heinous offences” includes the offences for which the minimum punishment under the Indian Penal Code, 1860 or any other law for the time being in force is imprisonment for seven years or more. [Section 2(33), Juvenile Justice (Care and Protection of Children) Act, 2015]
Q.2 Where a person aggrieved by any decision of Cyber Appellate Tribunal may file an appeal and what is the limitation for that is prescribed under the Information Technology Act, 2000?
Ans. Any person aggrieved by any decision or order of the Cyber Appellate Tribunal may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Cyber Appellate Tribunal to him on any question of fact or law arising out of such order. [Section 62, Information Technology Act, 2000]
Q.3 How the amount ordered to be paid under sub-section (1) of Section 5 of the Probation of Offenders Act, 1958 may be recovered?
Ans. The amount ordered to be paid under Section 5(1), Probation of Offenders Act, 1958 may be recovered as a fine in accordance with the provisions of Sections 386 and 387 of the Criminal Procedure Code, 1973. [Section 5(2), Probation of Offenders Act, 1958]
Q.4 What does “monetary relief’ mean under the Protection of Women from Domestic Violence Act, 2005?
Ans. While disposing of the application submitted by the aggrieved person before the competent Magistrate, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and child of the aggrieved person as a result of the domestic violence.
Such relief may include, but not limited to the—
(a) loss of earnings;
(b) medical expenses;
(c) loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and
(d) maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under Section 125, Cr.P.C., 1973 or any other law for the time being in force.
The grant of the aforesaid monetary relief shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.
The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.
The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order. [Section 20, Protection of Women from Domestic Violence Act, 2005]
Q.5 According to General Rules (Criminal), 1980, to whom the Sessions Court, for the purpose of giving information, on its issuance, shall forward a copy of warrant for execution of death sentence?
Ans. On the issuance of the warrant for execution of death sentence, the Sessions Court shall forward its copy to the District Magistrate for information. [Rule 107, General Rules (Criminal), 1980]
Q.6 A, being an officer directed by law to take property in execution, in order to satisfy a decree pronounced in Z’s favour by a Court of Justice, knowingly disobeys that direction of law, with the knowledge that he is likely thereby to cause injury to Z. What offence A has committed under Indian Penal Code, 1860?
Ans. Offence relating to “public servant disobeying law, with intent to cause injury to any person”. [Section 166, Illustration, Indian Penal Code, 1860]
Q.7 Who can be specified by the State Government as an exclusive Special Public Prosecutor for exclusive Special Court under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989?
Ans. For every Exclusive Special Court, the State Government shall, by notification in the Official Gazette, specify an Exclusive Special Public Prosecutor or appoint an advocate who has been in practice as an advocate for not less than seven years, as an Exclusive Special Public Prosecutor for the purpose of conducting cases in that Court. [Section 15(2), Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989]
Q.8 When a Magistrate may conduct proceedings in camera under the Protection of Women from Domestic Violence Act, 2005?
Ans. If the Magistrate considers that the circumstances of the case so warrant, and if either party to the proceedings so desires, he may conduct the proceedings in camera. [Section 16, Protection of Women from Domestic Violence Act, 2005]
PART-B
Q.9 Discuss the provisions relating to rehabilitation and social reintegration of children under the Juvenile Justice (Care and Protection of Children) Act, 2015.
Ans. The process of rehabilitation and social integration of children under this Act shall be undertaken, based on the individual care plan of the child, preferably through family based care such as by restoration to family or guardian with or without supervision or sponsorship, or adoption or foster care.
For children in conflict with law the process of rehabilitation and social integration shall be undertaken in the observation homes, if the child is not released on bail or in special homes or place of safety or fit facility or with a fit person, if placed there by the order of the Juvenile Justice Board.
The children in need of care and protection who are not placed in families for any reason may be placed in an institution registered for such children under this Act or with a fit person or a fit facility, on a temporary or long-term basis, and the process of rehabilitation and social integration shall be undertaken wherever the child is so placed.
The Children in need of care and protection who are leaving institutional care or children in conflict with law leaving special homes or place of safety on attaining eighteen years of age, may be provided financial support as specified in Section 46, to help them to re-integrate into the mainstream of the society. [Section 39, Juvenile Justice (Care and Protection of Children) Act, 2015]
Q.10 Describe the rights of victims and witnesses under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989?
Ans. It shall be the duty and responsibility of the State to make arrangements for the protection of victims, their dependents, and witnesses against any kind of intimidation or coercion or inducement or violence or threats of violence.
A victim shall be treated with fairness, respect and dignity and with due regard to any special need that arises because of the victim’s age or gender or educational disadvantage or poverty.
A victim or his dependent shall have the right to reasonable, accurate, and timely notice of any Court proceeding including any bail proceeding and the Special Public Prosecutor or the State Government shall inform the victim about any proceedings under this Act.
A victim or his dependent shall have the right to apply to the Special Court or the Exclusive Special Court, as the case may be, to summon parties for production of any documents or material witnesses or examine the persons present.
A victim or his dependent shall be entitled to be heard at any proceeding under this Act in respect of bail, discharge, release, parole, conviction or sentence of an accused or any connected proceedings or arguments and file written submission on conviction, acquittal or sentencing.
Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the Special Court or the Exclusive Special Court trying a case under this Act shall provide to a victim, his dependent, informant or witnesses—
(a) the complete protection to secure the ends of justice;
(b) the travelling and maintenance expenses during investigation, inquiry and trial;
(c) the social-economic rehabilitation during investigation, inquiry and trial; and
(d) relocation.
The State shall inform the concerned Special Court or the Exclusive Special Court about the protection provided to any victim or his dependent, informant or witnesses and such Court shall periodically review the protection being offered and pass appropriate orders.
Without prejudice to the generality of the provisions of Sub-section (6), the concerned Special Court or the Exclusive Special Court may, on an application made by a victim or his dependent, informant or witness in any proceedings before it or by the Special Public Prosecutor in relation to such victim, informant or witness or on its own motion, take such measures including—
(a) concealing the names and addresses of the witnesses in its orders or judgments or in any records of the case accessible to the public;
(b) issuing directions for non-disclosure of the identity and addresses of the witnesses;
(c) take immediate action in respect of any complaint relating to harassment of a victim, informant or witness and on the same day, if necessary, pass appropriate orders for protection.
It shall be the duty of the Investigating Officer and the Station House Officer to record the complaint of victim, informant or witnesses against any kind of intimidation, coercion or inducement or violence or threats of violence, whether given orally or in writing, and a photocopy of the First Information Report shall be immediately given to them at free of cost.
All proceedings relating to offences under this Act shall be video recorded.
It shall be the duty of the concerned State to specify an appropriate scheme to ensure implementation of the following rights and entitlements of victims and witnesses in accessing justice so as—
a. to provide a copy of the recorded First Information Report at free of cost;
b. to provide immediate relief in cash or in kind to atrocity victims or their dependents;
c. to provide necessary protection to the atrocity victims or their dependents, and witnesses;
d. to provide relief in respect of death or injury or damage to property;
e. to arrange food or water or clothing or shelter or medical aid or transport facilities or daily allowances to victims;
f. to provide the maintenance expenses to the atrocity victims and their dependents;
g. to provide the information about the rights of atrocity victims at the time of making complaints and registering the First Information Report;
h. to provide the protection to atrocity victims or their dependents and witnesses from intimidation and harassment;
i. to provide the information to atrocity victims or their dependents or associated organisations or individuals, on the status of investigation and charge sheet and to provide copy of the charge sheet at free of cost;
j. to take necessary precautions at the time of medical examination;
k. to provide information to atrocity victims or their dependents or associated organisations or individuals, regarding the relief amount;
l. to provide information to atrocity victims or their dependents or associated organisations or individuals, in advance about the dates and place of investigation and trial;
m. to give adequate briefing on the case and preparation for trial to atrocity victims or their dependents or associated organisations or individuals and to provide the legal aid for the said purpose;
n. to execute the rights of atrocity victims or their dependents or associated organisations or individuals at every stage of the proceedings under this Act and to provide the necessary assistance for the execution of the rights.
It shall be the right of the atrocity victims or their dependents, to take assistance from the Non-Government Organisations, social workers or advocates. [Section 15-A, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989]
Q.11 Explain the offence of defamation described under Chapter XXI of the Indian Penal Code, 1860.
Ans. Defamation.—Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or published any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.
Explanation 1.—It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.
Explanation 2.—It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.
Explanation 3.—An imputation in the form of an alternative or expressed ironically, may amount to defamation.
Explanation 4.—No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.
The following subject-matters do not fall within the definition of “defamation”:—
(1) Imputation of truth which public good requires to be made or published.
(2) Expression in good faith of any opinion respecting the conduct of a public servant in the discharge of his public functions.
(3) Expression in good faith of any opinion regarding the conduct of any person touching any public question.
(4) Publication of reports or proceedings of Courts.
(5) Expression in good faith of any merits of the case decided in Court or conduct of witnesses and other concerned.
(6) Expression in good faith respecting the merits of any performance which its author has submitted to the judgment of public.
(7) Censure passed in good faith by person having lawful authority over another.
(8) Accusation preferred in good faith to the authorised person.
(9) Imputation made in good faith by person for protection of his or other’s interests.
(10) Caution intended for good of person to whom conveyed or for public good.
Whoever, defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both. [Sections 499 and 500, Indian Penal Code, 1860]
Q.12 What powers are available to a police officer for the purpose of investigation of an offence punishable under the Electricity Act, 2003?
Ans. For the purposes of investigation of an offence punishable under the Electricity Act, 2003, the police officer shall have all the powers as provided in Chapter XII of the Code of Criminal Procedure, 1973. [Section 151-A, Electricity Act, 2003]
Q.13 Write note on following:—
(1) Offences by companies under the Information Technology Act, 2000.
(2) Duties of probation officers under the Probation of Offenders Act, 1958.
Ans. (1) Offences by companies under the Information Technology Act, 2000.—
Where a person committing a contravention of any of the provisions of this Act or of any rule, direction or order made thereunder is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of business of the company as well as the company, shall be guilty of the contravention and shall be liable to be proceeded against and punished accordingly.
Provided that nothing contained in this sub-section shall render any such person liable to punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention.
Notwithstanding anything contained abode, where a contravention of any of the provisions of this Act or of any rule, direction or order made thereunder has been committed by a company and it is proved that the contravention has taken place with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly. [Section 85, Information Technology Act, 2000]
(2) Duties of probation officers under the Probation of Offenders Act, 1958.—
A probation officer shall, subject to such conditions and restrictions, as may be prescribed,—
(a) inquire, in accordance with any directions of a Court, into the circumstances or home surroundings of any person accused of an offence with a view to assist the Court in determining the most suitable method of dealing with him and submit reports to the Court;
(b) supervise probationers and other persons placed under his supervision and, where necessary, endeavour to find them suitable employment;
(c) advise and assist offenders in the payment of compensation or costs ordered by the Court;
(d) advise and assist, in such cases and in such manner as may be prescribed, persons who have been released under Section 4; and
(e) perform such other duties as may be prescribed. [Section 14, Probation of Offenders Act, 1958]
PART-C
Q.14 Answer both the following questions:
(1) When an opinion as to electronic signature is relevant?
(2) “X” agrees in writing, to sell a car to “Y” for Rs.2,00,000/- or Rs.2,50,000/-. Whether on basis of this writing, evidence can be given to show which price is to be given? Support your answer by referring relevant provision of the Indian Evidence Act, 1872.
Ans. (1) When the Court has to form an opinion as to the electronic signature of any person, the opinion of the Certifying Authority which has issued the Electronic Signature Certificate is a relevant fact. [Section 47-A, Indian Evidence Act, 1872]
(2) When the language used in a document is, on its face, ambiguous or defective, evidence may not be given of facts which would show its meaning or supply its defects.
Therefore, in the illustration in question, to prove as to whether the price of the car to be given was Rs.2,00,000/- or Rs.2,50,000/-, evidence cannot be given. [Section 93, Indian Evidence Act, 1872]
Q.15 Discuss the provisions relating to admissibility of electronic records in evidence as per the provisions of the Indian Evidence Act, 1872.
Ans. (1) Notwithstanding anything contained in this Act, any information contained records in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in Sub-sec. (1) in respect of a computer output shall be the following, namely:—
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in any respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in Clause (a) of Sub-sec. (2) was regularly performed by computer, whether—
(a) by a combination of computers operating over that period ; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in Sub-sec. (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purpose of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purpose of this section,—
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purpose of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. [Section 65-B, Indian Evidence Act, 1872]
Q.16. Discuss the provisions relating to application for plea bargaining and guidelines for mutually satisfactory disposition under the Code of Criminal Procedure. 1973.
Ans. Application for plea bargaining:—(1) A person accused of an offence may file application for plea bargaining in the Court in which such offence is pending for trial.
(2) The application under Sub-section (1) shall contain a brief description of the case relating to which the application is filed including the offence to which the case relates and shall be accompanied by an affidavit sworn by the accused stating therein that he has voluntarily preferred, after understanding the nature and extent of punishment provided under the law for the offence, the plea bargaining in his case and that he has not previously been convicted by a Court in a case in which he had been charged with the same offence.
(3) After receiving the application under Sub-section (1), the Court shall issue notice to the Public Prosecutor or the complainant of the case, as the case may be, and to the accused to appear on the date fixed for the case.
(4) When the Public Prosecutor or the complainant of the case, as the case may be, and the accused appear on the date fixed under Sub-section (3), the Court shall examine the accused in camera, where the other party in the case shall not be present, to satisfy itself that the accused has filed the application voluntarily and where—
(a) the Court is satisfied that the application has been filed by the accused voluntarily, it shall provide time to the Public Prosecutor or the complainant of the case, as the case may be, and the accused to work out a mutually satisfactory disposition of the case which may include giving to the victim by the accused to compensation and other expenses during the case and thereafter fix the date for further hearing of the case.
(b) the Court finds that the application has been filed involuntarily by the accused or he has previously been convicted by a Court in a case in which he had been charged with the same offence, it shall proceed further in accordance with the provisions of this Code from the stage such application has been filed under Subsection (1).
Guidelines for mutually satisfactory disposition:—
For mutually satisfactory disposition the Court shall follow the following procedure:—
(a) in a case instituted on a police report, the Court shall issue notice to the Public Prosecutor, the police officer who has investigated the case, the accused and the victim of the case to participate in the meeting to work out a satisfactory disposition of the case:
Provided that throughout such process of working out a satisfactory disposition of the case, it shall be the duty of the Court to ensure that the entire process is completed voluntarily by the parties participating in the meeting:
Provided further that the accused, if he so desires, may participate in such meeting with his pleader, if any, engaged in the case.
(b) in a case instituted otherwise than on police report, the Court shall issue notice to the accused and the victim of the case to participate in a meeting to work out a satisfactory disposition of the case:
Provided that it shall be the duty of the Court to ensure, throughout such process of working out a satisfactory disposition of the case, that it is completed voluntarily by the parties participating in the meeting:
Provided further that if the victim of the case or the accused, as the case may be, so desires, he may participate in such meeting with his pleader engaged in the case. [Sections 265-B and 265-C, Criminal Procedure Code, 1973]
17. Write short note on the following:
(1) Conditional order for removal of nuisance under the Code of Criminal Procedure, 1973.
(2) Sentence on offender already sentenced for another offence.
Ans. (1) Conditional order for removal of nuisance:—
Whenever a District Magistrate or a Sub-divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers—
a. that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; or
b. that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated; or
c. that the construction of any building, or the disposal of any substance, as is likely to occasion conflagration or explosion, should be prevented or stopped; or
d. that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary; or
e. that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public; or
f. that any dangerous animal should be destroyed, confined or otherwise disposed of,
such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order—
(i) to remove such obstruction or nuisance; or
(ii) to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed; or
(iii) to prevent or stop the construction of such building, or to alter the disposal of such substance; or
(iv) to remove, repair or support such building, tent or structure, or to remove or support such trees; or
(v) to fence such tank, well or excavation; or
(vi) to destroy, confine or dispose of such dangerous animal in the manner provided in the said order;
or, if he objects so to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the order, and show cause, why the order should not be made absolute.
It is noteworthy that no such order duly made by the Magistrate shall be called in question in any Civil Court. [Section 133, Criminal Procedure Code, 1973]
(2) Sentence on offender already sentenced for another offence:—
If the accused, having been previously convicted of any offence, is liable, by reason of such previous conviction, to enhanced punishment, or to punishment of a different kind, for a subsequent offence, and it is intended to prove such previous conviction for the purpose of affecting the punishment which the Court may think fit to award for the subsequent offence, the fact date and place of the previous conviction shall be stated in the charge; and if such statement has been omitted, the Court may add it at any time before sentence is passed. [Section 211(7), Criminal Procedure Code, 1973)
Hence, in the subsequent criminal case, on declaring the accused person’s conviction, but before punishment, he may be charged about his previous conviction and previous punishment with full particulars thereof.
In a criminal case an order of conviction and punishment may be made on the basis of merits of the case and confession of the accused, which subject-matter relates to Sections 235 and 229, CrPC.
In a case where a previous conviction is charged under the provisions of Sub-section (7) of Section 211, and the accused does not admit that he has been previously convicted as alleged in the charge, the Judge may, after he has convicted the said accused under Section 229 or Section 235, take evidence in respect of the alleged previous conviction, and shall record a finding thereon.
Provided that no such charge shall be read out by the Judge nor shall the accused be asked to plead thereto nor shall the previous conviction be referred to by the prosecution or in any evidence adduced by it, unless and until the accused has been convicted under Section 229 or Section 235. [Section 236, Criminal Procedure Code, 1973]
PART-D
Q.18 Discuss the provisions relating to procedures for recording of statement of a child and medical examination of a child under the Protection of Children from Sexual Offences Act, 2012.
Ans. Recording of statement of a child by police officer.—The statement of the child shall be recorded at the residence of the child or at a place where he usually resides or at the place of his choice and as far as practicable by a woman police officer not below the rank of Sub-inspector.
The police officer while recording the statement of the child shall not be in uniform. The police officer making the investigation, shall, while examining the child, ensure that at no point of time the child come in the contact in any way with the accused. No child shall be detained in the Police Station in the night for any reason. The police officer shall ensure that the identity of the child is protected from the public media, unless otherwise directed by the Special Court in the interest of the child.
Recording of statement of a child by Magistrate.—If the statement of the child is being recorded under Section 164 of the Code of Criminal Procedure, 1973, the Magistrate recording such statement shall, notwithstanding anything contained therein, record the statement as spoken by the child:
Provided that the provisions contained in the first proviso to Sub-section (1) of Section 164 of the Code shall, so far it permits the presence of the advocate of the accused shall not apply in this case.
The Magistrate shall provide to the child and his parents or his representative, a copy of the document specified under Section 207 of the Code, upon the final report being filed by the police under Section 173 of the Code.
At the time of recording the statement of the child, the Magistrate or the police officer shall also follow the following additional provisions:—
The Magistrate or the police officer, as the case may be, shall record the statement as spoken by the child in the presence of the parents of the child or any other person in whom the child has trust or confidence.
Wherever necessary, the Magistrate or the police officer, as the case may be, may take the assistance of a translator or an interpreter, having such qualifications, experience and on payment of such fees as may be prescribed, while recording the statement of the child.
The Magistrate or the police officer, as the case may be, in the case of a child having a mental or physical disability, seek the assistance of a special educator or any person familiar with the manner of communication of the child or an expert in that field, having such qualifications, experience and on payment of such fees as may be prescribed, to record the statement of the child.
Wherever possible, the Magistrate or the police officer, as the case may be, shall ensure that the statement of the child is also recorded by audio-video electronic means. [Sections 24, 25 and 26, Protection of Children from Sexual Offences Act, 2012]
Provisions relating to the medical examination of the child are as under:—
The medical examination of a child in respect of whom any offence has been committed under this Act, shall, notwithstanding that a First Information Report or complaint has not been registered for the offences under this Act, be conducted in accordance with Section 164-A of the Code of Criminal Procedure, 1973.
In case the victim is a girl child, the medical examination shall be conducted by a woman doctor.
The medical examination shall be conducted in the presence of the parent of the child or any other person in whom the child reposes trust or confidence.
Where, in case the parent of the child or other person referred to above cannot be present, for any reason, during the medical examination of the child, the medical examination shall be conducted in the presence of a woman nominated by the head of the medical institution. [Section 27, Protection of Children from Sexual Offences Act, 2012]
Q.19 Write a note regarding involuntary subjection of a person to narco-analysis test, polygraph test and brain mapping test with special reference to the latest judgments of Supreme Court of India.
Ans. The term “Narco” has been derived from the Greek word “narke” which means anesthesia indicating numbness. Narco Analysis is an alternative to third degree to extract information which is used as evidence against the accused which is often referred to as ‘cruel, inhuman or degrading treatment’. Under criminal jurisprudence, a person is presumed to be innocent until proved guilty by the prosecution. A person accused of an offence cannot be compelled to be a witness against himself as mentioned under Article 20 (3) of the Constitution that “No person accused of any offence shall be compelled to be a witness against himself’.
The ‘rule against involuntary confessions’ is also embodied in Sections 24, 25, 26 and 27 of the Evidence Act, 1872, which seeks to serve both the objectives of reliability as well as voluntariness of testimony given in a custodial setting. This right against self-incrimination should be read with Article 21, since this approach was recognized in Maneka Gandhi vs. Union of India, AIR 1978 SC 597.
The use of narco-analysis as an investigative tool is violative of the right to life, liberty and the right against self-incrimination. The unreliability of the procedure and the impact of the drugs on the psyche may result in miscarriage of justice and conviction of innocent persons.
Uptil 2010 the High Courts across the country have uphold the use of such tests.
Thereafter, the Supreme Court in Selvi & Ors vs. State of Karnataka & Anr., AIR 2010 SC 1974, discredited the tests on the grounds of — (a) The unreliability of the tests; (b) Self-incrimination protections; (c) Substantive due process rights. This test violated subjects’ rights against self-incrimination which is in contravention of Article 20(3) read with Article 21 of the Constitution of India. This Court also extended the scope to the investigative stage in criminal cases read with Section 161(2) of the Code of Criminal Procedure, 1973 which protects accused persons, suspects as well as witnesses who are examined during an investigation. This case was again relied on numerous judgments both by the Supreme Court and the High Courts of India. The Supreme Court in, Mohd. Ajmal Amir Kasab vs. State of Maharashtra, (2012) 9 SCC 1 agreed with the unconstitutionality of Narco Analysis Test. Therefore, keeping in mind constitutional and human rights norms and also the involuntary subjection of a person to narco-analysis test was held unconstitutional.
Q.20. Sita Devi was married to Ramesh on 16.04.2006. Two children, Arpit and Pankaj, were born out of this wedlock in the years 2008 and 2012 respectively. Ramesh used to quarrel with Sita on trifle issues. Ramesh and his mother Kailashi Devi were not satisfied with the dowry given in the marriage. Ramkishan, father-in-law of Sita, however, protected her on several occasions and asked his own wife Kailashi Devi and son Ramesh not to harass and torture Sita for bringing inadequate dowry. Even then, Ramesh and Kailashi subjected Sita to cruelty and mal-treatment. Exasperated by circumstances, Sita committed suicide on 09.09.2015. Dashrath, father of deceased Sita, lodged a first information report against her husband, mother-in-law and father-in-law.
On basis of the FIR lodged by Dashrath, father of Sita, investigation was made and Smt. Kailashi, Shri Ramkishan and Shri Ramesh were charge-sheeted. The competent Court took cognizance of the offence and the case was committed to the Court of Sessions. The Sessions Court framed the necessary charges against all the accused persons. The accused denied the charges and desired trial. During the course of trial, Krishan Kumar, Om Prakash and Smt. Radha (neighbours of the accused persons), Dashrath (father of the deceased), Vasundhara (mother of the deceased) and Kiran Kumari (sister of the deceased) were examined. All these witnesses stated about torture and harassment of deceased Sita by Ramesh and Smt. Kailashi for dowry. Nothing was said by these witnesses against Shri Ramkishan. The accused were afforded opportunity by the Court to explain the circumstances appearing against them in prosecution evidence. Final order is passed by the Court.
Write a judgment, briefly discussing as to for what offence the accused persons are charged and ultimately what order is passed, either of acquittal or of conviction, giving reasons therefor.
Ans. Court of the Sessions Judge, Jodhpur (Raj.)
Presiding Officer………………, R.H.J.S.
Sessions Case No……………….. /2015
The State of Rajasthan
v/s.
(1) Ramesh S/o. Ramkishan, aged 30 years
(2) Ramkishan S/o. Gopikishan, aged 60 years
(3) Smt. Kailashi Devi W/o. Ramkishan, aged 55 years,
all by caste Brahmin, residents of……………, Jodhpur (Raj) …………… Accused persons.
Offences under Section 306 and 498-A, I.P.C.
Present:—
Shri………………., Public Prosecutor, for the State of Rajasthan.
Shri………………, Advocate for the accused persons.
Accused persons (In Judicial custody).
Dated; 17th April, 2017
The Public Prosecutor has filed this challan against the accused persons under Sections 306 and 498-A, Indian Penal Code. Copies of the documents relating to the challan were furnished to the accused persons.
In Brief, the story of the prosecution is that Sita Devi was married to Ramesh on 16.04.2006. Two children, Arpit and Pankaj, were born out of this wedlock in the years 2008 and 2012 respectively. Ramesh used to quarrel with Sita on trifle issues. Ramesh and his mother Kailashi Devi were not satisfied with the dowry given in the marriage. Ramkishan, father-in-law of Sita, however, protected her on several occasions and asked his own wife Kailashi Devi and son Ramesh not to harass and torture Sita for bringing inadequate dowry. Even then, Ramesh and Kailashi subjected Sita to cruelty and maltreatment.
Exasperated by circumstances, Sita committed suicide on 09.09.2015. Dashrath, father of deceased Sita Devi lodged a first information report against the accused persons in the City Police Station, Jodhpur. On the basis of this first information report, after completion of the investigation, a challan was submitted against the aforesaid three accused persons under Sections 306 and 498-A, I.P.C. before the competent Court, and that Court took cognizance of the offence and committed the case to the Sessions Court.
All the accused persons were read over and explained the charge for the offences under Sections 306 and 498-A, I.P.C. They pleaded not guilty and claimed to be tried.
During trial, the prosecution examined P.W. 1 Krishan Kumar, P.W. 2 Om Prakash, P.W. 3 Smt. Radha, P.W. 4 Dashrath, P.W. 5 Smt. Vasundhara, P.W. 6 Kiran Kumari, P.W. 7 Surendra Singh, P.W. 8 Bhagirath, P.W. 9 Prem Narain and P.W. 10 Dr. Sunil Sahni.
Statements of the accused persons were recorded. They refused to produce any evidence in defence.
I have heard the arguments advanced by the parties and carefully perused and analysed the file.
P.W. 1 Krishna Kumar is the nearest neighbour of the residential house (place of occurrence) of the accused persons. This witness has deposed that deceased Sita Devi married accused Ramesh in Jodhpur on 16.04.2006. He has stated about torture and harassment of deceased Sita Devi by Ramesh and Smt. Kailashi for dowry. Both these accused persons used to tell Sita Devi to be the “Child of beggars”. Both these accused persons used to make demand of a car from Sita Devi in dowry. Accused Ramesh and Kailashi, in a taunting manner, used to tell Sita Devi that she is “burden on the earth” and so she should die. By such intolerable conduct and acts of abetment, they made the survival of Sita Devi very difficult. Due to the intolerable conduct and acts of abetment, aggrieved by these circumstances, Sita Devi committed suicide on 09.09.2015 in the residential house of her in-laws (place of occurrence).
P.W. 2 Om Prakash and P.W. 3 Radha, who are also the neighbours of the place of occurrence, have fully corroborated the statement of P.W. 1 Krishna Kumar.
Whereas P.Ws. 1 to 6, witnesses of the prosecution, have admitted this fact that Ramesh’s father Ramkishan had neither misbehaved with deceased Sita Devi nor did he complained her regarding inadequate dowry.
P.W. 4 Dashrath, P.W. 5 Vasundhara and P.W. 6 Kiran Kumari are father, mother and sister respectively of decesed Sita Devi. While proving the first information report Ex..P. 1, they have fully corroborated the statements of P.Ws. 1 to 3.
In my opinion, P.W. 1 to P.W. 3 being neighboures of the place of occurrence and P.Ws. 4 to 6 being the members of the family of deceased Sita Devi, their evidence appears to be quite natural and reliable.
By the aforesaid evidence, this fact is proved beyond doubt that accused persons Ramesh and Kailashi, by their conduct and acts, abated for suicide of Sita Devi and committed the offence of cruelty against her. Hence, offences under Sections 306 and 498-A, I.P.C. are proved against them.
But the prosecution has fully failed to prove this fact against Ramkishan accused that he is liable for abetment of suicide and cruelty.
Consequently, accused Ramkishan is acquitted of the offence under Sections 306 and 498-A, I.P.C.
Whereas, accused persons Ramesh and Kailashi Devi are convicted for the offences under Sections 306 and 498-A, I.P.C.
Sd/-
Session Judge, Jodhpur
After announcement of conviction against accused persons Ramesh and Kailashi Dev, I have heard the parties on the point of punishment.
Order
For the offence under Section 306, I.P.C. accused persons Ramesh and Kailashi Devi are sentenced to rigorous imprisonment of ten years-ten years and fine of Rs.10,000/- Rs. 10,000/- each; and in default of payment of fine, each of the aforesaid accused persons will undergo one year-one year additional rigorous imprisonment for this offence.
For the offence under Section 498-A, I.P.C. both these accused persons Ramesh and Kailashi Devi are sentenced to rigorous imprisonment of two years – two years and fine of Rs.5,000/- – Rs.5,000/- each; and in default of payment of fine, each of the aforesaid accused persons will undergo six months – six months additional rigorous imprisonment for this offence.
The substantive sentences of both these accused persons Ramesh and Kailashi Devi will run concurrently. In the period of sentence of both these accused persons, the period of police custody and judicial custody be set off.
Accused Ram Kishan is hereby acquitted to the offences under Sections 306 and 498-A, I.P.C.
Sd/-
Sessions Judge, Jodhpur
Judgment signed and pronounced in open Court today the……….
Seal of the Court. Sd/-
Sessions Judge, Jodhpur.