Crpc Law Notes Pdf In Hindi

[Sergei Chime]

Accordingto Cr.P.C, the police have the authority to detain a person in both cognizable and non-cognizable cases. Police can detain a person in a cognizable case without a warrant from a qualified magistrate. However, under Section 155 Cr.P.C, the police must first obtain a signed warrant of arrest from a qualified magistrate before they can make an arrest in a non-cognizable matter.

A person may be detained in a number of situations. The police are a state apparatus with the authority to detain people who have broken the law or committed crimes. According to Section 41 of the Criminal Procedure Code, a person may be detained without a warrant from a magistrate in a number of situations, including: when a person has committed or has been accused of committing a non-cognizable offense in the presence of a law enforcement officer and refuses to give his or her true name or address; any person concerned or reasonably suspected to be concerned in any act committed at any place outside India, any person belong to one or more of the categories of persons specified in Section 109 or 110 of C.P.C and so on.

5) The police power to obtain assistance: -Any person that a police officer has the legal right to arrest in accordance with Section 37 of the Cr.P.C may be asked to help him take an additional person into custody or stop that person from escaping. The individual who has been asked to help has a legal duty to do so, and any willful omission on his side to do so is punished under Section 187 I.P.C.

(7) Power to re-arrest escapee: -A person in lawful custody who escapes or is rescued is subject to immediate pursuit and arrest by the person from whose custody he escaped or was rescued in any location in India, according to Section 60 of the Criminal Procedure Code. In terms of employing force to make an arrest, searching a location, etc., the person making the re-arrest shall have the same rights and obligations as described above.

(2) Seizure of offensive weapons: -Any offensive weapons that the detained person has on him or her may be taken by the police officer or other person conducting the arrest, and all weapons thus taken must be delivered to the court or officer that the arrested person must appear before in accordance with Section 52 of the Cr.P.C.

(3) Medical examination of accused:- A registered medical practitioner could conduct the examination at the request of a police officer not below the rank of a sub-inspector if the crime for which the arrested person is charged is of such a nature and is alleged to have been committed in such circumstances that the evidence as to the commission of the crime would be provided by the medical examination of such an arrested person. Any force that is deemed to be reasonably required for the purposes of the medical examination may also be employed.

Several basic practices regarding the rights of the arrested individual have been established by the Code of Criminal Procedure, the Indian Constitution, different Supreme Court rulings, and other International Human Rights Covenants and Conventions. These rights are enforceable at various stages of an arrest, and a police officer who violates them faces harsh disciplinary and criminal consequences.

The Supreme Court held in Khatri v. State of Bihar, (1981) 1 SCC 627, that the State has a constitutional obligation (implicit in Article 21) to provide free legal representation to an indigent accused person. The Supreme Court further held that this constitutional obligation to provide legal representation does not only arise when the trial begins but also when the accused is first brought before the magistrate and when he is occasionally remanded. However, unless he is immediately and properly informed about it by the court when he is brought before it, the constitutional right of an accused person who is impoverished to receive free legal representation may turn out to be illusory. The Supreme Court has therefore cast a duty on all Magistrates and courts to inform the indigent accused about his right to get free legal aid.

Any arrested person who claims that the examination of his body will provide evidence that will disprove the commission of any crime by him or that will establish the commission of any crime against his body by another person must request that the Magistrate order the examination of his body by a registered medical professional at the time when he is brought before a magistrate or at any other time during the period of his detention in custody. However, the Magistrate need not give such a direction if he considers that the request for medical examination has been made by the arrested person for the purpose of vexation or delay or for defeating the ends of justice under Section 54 Cr.P.C.

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The issues presented for decision are: (1) whether petitioner's distributive share of a limited partnership's income is exempt from taxation by virtue of the 1942 Income Tax Convention between the United States and Canada; and (2) if that income is not exempt, whether petitioner is subject to the addition to tax under section 6661(a) for making a substantial understatement of tax.

Petitioner, Robert Unger, was a resident of Salt Spring, British Columbia, Canada, at the time the petition in this case was filed. Petitioner is a dentist who during 1984 owned a limited partnership interest in the Charles River Park "C" Company (CRPC), a Massachusetts limited partnership.

CRPC was formed on October 23, 1964, when a Partnership Certificate was filed with the state of Massachusetts. CRPC's purposes are to construct, develop, and manage residential housing projects within the Commonwealth of Massachusetts. During the year at issue, CRPC sold certain real estate located in Boston, Massachusetts. The long-term capital gain resulting from that sale was distributed among CRPC's seven general partners and 22 limited partners. Petitioner's distributive share of that sale's gain as a limited partner of CRPC was $289,260.

Petitioner filed a United States Non-Resident Alien Income Tax Return, Form 1040NR, for the 1984 taxable year. That return did not include as taxable income petitioner's distributive share of CRPC's long-term capital gain from the sale of real estate. In response to the following questions posed by the Form 1040NR, petitioner provided the following information:

On a handwritten statement attached to the Form 1040NR, petitioner listed, among other things, the rental income and section 1231 gain he realized in relation to his investment in CRPC during 1984. At the bottom of that statement petitioner wrote, "Capital gains are exempt under Article VIII of the U.S. Canada Tax Treaty."

The first issue for decision is whether petitioner's distributive share of CRPC's income is taxable in the United States. Section 871(b)(1) provides that nonresident alien individuals engaging in a trade or business within the United States are taxable in this country on the income effectively connected with the conduct of that trade or business. Section 875(1) provides:

Petitioner contends his distributive share of the gains realized by CRPC are exempt from taxation, not under Article VIII of the Convention as asserted on his Form 1040NR, 2 but under Article I of the Convention. Article I generally provides an enterprise of Canada is not subject to taxation by the United States with respect to its industrial and commercial profits EXCEPT with respect to those profits allocable under the Convention to its "permanent establishment" in the United States. Pursuant to the Convention's first Protocol:

(f) the term "permanent establishment" includes branches, mines and oil wells, farms, timber lands, plantations, factories, workshops, warehouses, offices, agencies and other fixed places of business of an enterprise, but does not include a subsidiary corporation.

When an enterprise of one of the contracting States carries on business in the other contracting State through an employee or agent established there, who has general authority to contract for his employer or principal * * *, such enterprise shall be deemed to have a permanent establishment in the latter State.

The fact that an enterprise of one of the contracting States has business dealings in the other contracting State through a commission agent, broker or other independent agent * * * shall not be held to mean that such enterprise has a permanent establishment in the latter State. [56 Stat. 1407- 1408.]

Respondent asserts petitioner has a permanent establishment in the United States and, therefore, is subject to taxation in this country pursuant to the Convention. To support his position, respondent cites Donroy, Ltd. v. United States, 301 F.2d 200 (9th Cir. 1962).

Petitioner argues Donroy is factually distinguishable from the case at hand. If we find Donroy factually indistinguishable, petitioner argues Donroy should be disregarded as it is based upon a purportedly archaic interpretation of the law governing limited partnerships.

Donroy involved Canadian corporations which were limited partners in a Californian limited partnership. The issue presented was whether the Canadian corporate limited partners had a "permanent establishment" in the United States within the meaning of the Convention such that the corporations' distributive share of the Californian limited partnership's income was taxable in the United States. The Court of Appeals for the Ninth Circuit held:

Under this concept of partnership as an association of individuals, it follows that each partner, whether general or limited has an interest as such in the assets and the profits of the partnership, including the physical plant or offices at which the partnership conducts its business, so that the office or permanent establishment of the partnership is IN LAW, the office of each of the partners -- whether general or limited. * * *

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