Ipc Project (1).docx

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY SABBAVARAM, VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE – PRIVATE SECURITY AGENCIES (REGULATION) ACT, 2005

SUBJECT – CRIMINAL LAW

NAME OF THE FACULTY – DR. NANDINI C.P.

NAME OF THE CANDIDATES – SAUMYA SINGH (2017082) RACHANA BANDI (2017071) SRILAKSHMI SWETHA (2017123) UDAY KUMAR REDDY (2017128)

SEMESTER - FOURTH SEMESTER

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TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................... 3 LITERATURE REVIEW OF CHAPTER 1 ................................................................................... 4 PRIVATE SECURITY AGENCIES AND ITS IMPORTANCE ................................................... 5 CASE ANALYSIS.......................................................................................................................... 9 LITERATURE REVIEW OF CHAPTER 2 ................................................................................. 12 PRIVATE SECURITY AGENCIES RULES FRAMED BY VARIOUS STATES IN INDIA .. 13 CASE ANALYSIS........................................................................................................................ 17 LITERATURE REVIEW OF CHAPTER 3 ................................................................................. 20 THE TAINTED RELATIONSHIP BETWEEN PRIVATE SECURITY AND POLICE OFFICIALS AND ITS SOLUTION. ............................................................................................ 21 CASE ANALYSIS........................................................................................................................ 25 LITERATURE REVIEW OF CHAPTER 4 ................................................................................. 32 INTERNATIONAL DEVELOPMENTS IN PRIVATE SECURITY INDUSTRY. ................... 33 CASE ANALYSIS........................................................................................................................ 37 CONCLUSION ............................................................................................................................. 42

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INTRODUCTION The Private Security Agencies (Regulations) Act, 2005 was introduced for a person or body of persons other than a government agency, department or organization who is engaged in the business of providing private security services, including training to private security guards or their supervisor or providing private security guards to any industrial or business undertaking or a company or any other person or property.1 The term “private” has multiple senses, but it refers to “providing something by an individual or organization or a private entity, and not by a governmental organism or coordinated by the state". In the same sense, of a special importance is also who pays for a certain service, because there can be ambiguities regarded by the situation in which the government is the one that pays for certain services provided by private entities. It is also interesting to analyze the situation in which a policeman or other type of employee in the security domain runs activities after finishing his program in the service of the state, case in which we are obviously dealing with a type of private service.2 The term “security” has a broad sense and it can be defined in multiple forms. However, from the security refers to precaution measures taken for preventing certain unwanted events. Another definition of security refers to that state of fact in which individuals or groups can run the activity without external interventions and without the fear of losses or other type of harm of integrity or interests. From the point of view of the sense of the concept of security for an organization, this implies the capacity of the institution to be able to run continuously its activities without being affected by criminal threats or natural disasters. In analogous manner, the security services, or otherwise said; private providers of such services have to do with the protection of properties, of persons or that of information. Moreover, from the definitions presented results the fact that security has three possible basic elements: either individuals, groups, or an organization.

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Id. Alexandru Anastasescu & Georgia Voicu, Conceptual approaches regarding private security companies, 3 Eur. J. Pub. Ord. & Nat’l Sec 23. 23,28 (2016). 2

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LITERATURE REVIEW OF CHAPTER 1 1. Alexandru Anastasescu & Georgia Voicu, Conceptual approaches regarding private security companies, 3 Eur. J. Pub. Ord. & Nat’l Sec 23. 23,28 (2016). In this article the author explains the terms private and security separately Moreover, the author explains the three possible basic elements of security they are either individuals, groups, or an organization. This article explains the conceptual approaches of the private security with various explanations and also says the different between the private and government security like security guards and police men. in the security domain runs activities after finishing his program in the service of the state, case in which we are obviously dealing with a type of private service. 2. Steven Euller, Private security and the exclusionary rule, 15 Harv. C.R.-C.L.L. Rev. 649, 684 (1980). In this article discusses three approaches to the problem of state action in private security. And the author also says about the more criminal suspects will be handled by private rather than public police. Constitutional sanctions should be applied uniformly to all “criminal investigators,” public or private, in order to preserve the constitutional rights of criminal suspects. Private security actions that involve police functions or that demonstrate interplay between private and public law enforcement personnel should be held to constitute state action and should be subject to the constitutional restraint of the exclusionary rule. 3. Philip C. Stenning & Clifford D. Shearing, Modern Private Security: Its Growth and Implications, 3 Crime & Just. 193, 245 (1981). The author explains the what is private security very clearly and also explains the size and growth of the modern private security this article also have a role of private security the author also explains the private security and the public police. Essential features of private security suggest that the reorganization of policing that private security is precipitating is part of a more general phenomenon in the transformation of social control. To characterize private security policies and practices as essentially disciplinary in nature is likely to provoke some very negative reactions. 4|Page

PRIVATE SECURITY AGENCIES AND ITS IMPORTANCE The term “private” has multiple senses, but it refers to “providing something by an individual or organization or a private entity, and not by a governmental organism or coordinated by the state”. In the same sense, of a special importance is also who pays for a certain service, because there can be ambiguities regarded by the situation in which the government is the one that pays for certain services provided by private entities. It is also interesting to analyze the situation in which a policeman or other type of employee in the security domain runs activities after finishing his program in the service of the state, case in which we are obviously dealing with a type of private service.3 The term “security” has a broad sense and it can be defined in multiple forms. However, from the security refers to precaution measures taken for preventing certain unwanted events. Another definition of security refers to that state of fact in which individuals or groups can run the activity without external interventions and without the fear of losses or other type of harm of integrity or interests. From the point of view of the sense of the concept of security for an organization, this implies the capacity of the institution to be able to run continuously its activities without being affected by criminal threats or natural disasters. In analogous manner, the security services, or otherwise said; private providers of such services have to do with the protection of properties, of persons or that of information. Moreover, from the definitions presented results the fact that security has three possible basic elements: either individuals, groups, or an organization. The Private Security Agencies (Regulations) Act, 2005 was introduced for a person or body of persons other than a government agency, department or organization who is engaged in the business of providing private security services, including training to private security guards or their supervisor or providing private security guards to any industrial or business undertaking or a company or any other person or property.4

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Alexandru Anastasescu & Georgia Voicu, Conceptual approaches regarding private security companies, 3 Eur. J. Pub. Ord. & Nat’l Sec 23. 23,28 (2016). 4 Id. 5|Page

Private Security Agencies Act 2005 How It Works, It's Functions. The Private Security Agencies Act, 2005 extends to the whole of India except the State of Jammu and Kashmir and is in existence since June 2005. The paramount purpose of the Private Security Agencies Act is to standardize the rights and duties of private security agencies and other issues in connection therewith.5 PSA is silently protecting our society when government agencies and mechanisms put by them fail to do so. Private security guards are present almost everywhere these days from malls, societies to companies and schools. There’s no place which could function without a security guard, the rapid increase is often due to the increasing crime in the society. In this, article we will tell you procedure and steps to get Private Security Agency License in India.6 Private security agencies are those organizations involved in providing security services including training of security guards to any industrial or business undertaking or a company or any other person or property. The Formation and Running of a private security agency, in India Falls under the Domain of The Private Security Agencies Regulation Act, 2005.7 The act is a state-specific act and gives power to State Government to make rules for carrying out the provisions of this Act. Therefore, many of the States have implemented Private Security Agencies Rules to effectively discharge the responsibilities of the State Government under the Act. The Controlling Authority for the State is responsible for the issuance of private security agency license, renewal and regulation of the operation of private security agencies. The Act empowers the Central Government to appoint an officer of the Home Department equivalent to the Joint Secretary of the State to act as the Controlling authority. A person with similar rank shall also be appointed by the Government.8 The companies which are based in India or whose majority shareholders are Indian nationals are eligible for security agency license. In addition to the above condition, some category of people are eligible for obtaining a license for a private security company which is: The person or company who is not convicted of an offence in connection with promotion, formation or 5 6 7 8

legaladda.myonlineca.in (last accessed on 4th Feb, 2019). Steven Euller, Private security and the exclusionary rule, 15 Harv. C.R.-C.L.L. Rev. 649, 684 (1980). Supra Note 1. Id.

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management of a company (any fraud or misfeasance committed by him in relation to the company), including an undischarged insolvent The person or company should not be held by a competent court for any offence. The person or company is required not to have any links with any organization or association which is banned under any law on account of their activities which pose threat to national security or public order. The person cannot be prohibited or terminated from Government service on grounds of misconduct or moral turpitude.9 Fee for Private Security Agency License: The government fee for obtaining security agency license is as follows: Private security agency operating in one district: Rs.5000/Private security agency operating in one to five districts: Rs.10000/Private security agency operating in entire state: Rs.25000/-10 A private security agency is required to provide training to all the security guards in assigned training institute as may be prescribed by the controlling authority. The agency is also required to ensure that the security guards meet the standard of physical fitness given in Private Security Agencies (Regulation) Act, 2005.Grant of license, condition for license, offences and penalties: Once the application is filed and verified by the controlling authority, a license can be granted to the private security agency to start functioning. A prescribed amount of fees has to be paid to get the license. The licensee is required to inform the controlling authority regarding any change in the address of persons forming the agency and change of management within seven days of such change. The fee paid for the grant of license is non-refundable.11 Renewal, cancellation and suspension of license and appeals: Every agency is required to apply to the controlling authority for the renewal of license. The application form and the fee chargeable for the renewal of license will be the same as stated for the grant of original license. The agency is required to maintain a register with all the details of the agency and that of its employed private security guards. The agency also has to issue a photo identity card to all the

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Philip C. Stenning & Clifford D. Shearing, Modern Private Security: Its Growth and Implications, 3 Crime & Just.

193, 245 (1981). 10 11

Private Security Agencies (Regulation) Act, 2002, Act 29 of 2005. Supra Note 7.

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security guards that would have their details. There are various reasons through which a license can be cancelled or suspended by the controlling authority.12 Historical Background And Impact In Modern Society Due to increase in the number of business establishments and increasing demands for security. There has been a proliferation of private security agencies in the recent years. The growing tendency to hire security guards from private sources by an industrial or business undertaking has led to coming up to of large number of private security agencies all over the country. Through this private security agencies have helped in meeting the security needs of business establishments. There has been a growing concern about the manner of functioning of these agencies. Many of these agencies seemed to conduct their operations without private security guards.13 The concept of private security is often considered to be a relatively modern phenomenon; the reality is that some form of private security has existed for centuries. Whether it is the invention of locks, or the design of ancient forts and battlements, or the provision of different peoplerelated services, the concept of private security has existed for much longer than the modern security guard. This chapter will look at examples of early security and follow the gradual emergence of the Private Security Industry (PSI) and what we find today. While it would be impossible in one chapter to cover the entire vast history of the industry, we have selected examples that, as we believe, show the broad spectrum within the PSI and some of the key points in the industry’s history. In looking at some of the earliest forms of private security, we will also be able to draw parallels with the industry that exists today.14

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Supra Note 1. Christopher A Hertig, Developing Productive Relations with Private Security, 55 FBI L Enforcement Bull. 19, 22 (1986). 14 Id. 13

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CASE ANALYSIS CASE 1 NAME OF THE CASE: -Security Guard v. Security of Personnel Suites CITATION: -1987 SCR (3) 19 LEGISLATIVE PROVISIONS: -Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, 1981: s. 23 read with ss. 22 and 1(4). BRIEF FACTS OF THE CASE : - The petitioners applications for exemption from the provisions of the Act like Section 1(4) of the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, section 2(10), section 3, section 22, section 23. Having been rejected by the State Government they filed writ petitions before the High Court which were dismissed by a Single Judge. On appeal, the Division Bench took the view that the applications had been rejected as a result of the policy decision not to grant exemption to any security agency and that this was wrong, that each application for exemption had to be considered on its own merits and so disposed of, and consequently directed the Government to consider the applications afresh. And the decision of division bench was appeal to Supreme Court by Security & Personnel Services Pvt. Ltd. & Ors. Etc. JUDGEMENT: - The orders of the State Government refusing to grant exemption to the respondents from the operation or the provisions of the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, 1981 do not call or any interference. CASES REFERRED:1. Radha Kant Yadav vs. State Of Bihar And Ors. 2. Maharashtra Suraksha Rakshak Sangthan vs State Of Maharashtra And Anr CASE 2

CASE NAME : - B. T. Nayak S/o T. S. Nayak and others v Union of India and others CITATION: - 13385-13401 of 2010(GM-RES) 9|Page

PROVISIONS OF LAW: - Private Security and Regulation Act section 25 BRIEF FACTS: - The petitioners are independent Contract Agencies engaged in providing security personnel services for attending to the watch and ward duties at various industrial and commercial establishments. The petitioners are before this Court challenging the notices issued by the Controlling Authority and Deputy Inspector General of Police (Internal Security Division), calling upon the petitioners to obtain licenses under the Private Security Agencies (Regulation) Act, 2005 and the Karnataka Private Security Agencies Rules, 2008. The petitioners have also called in question, the vires of the rules framed by the Government of Karnataka in exercise of the power conferred by the sub-section (1) of Section 25 of the Private Security Agencies (Regulation) Act, 2005. The main contention of the petitioners is that the impugned draft rules were required to be published and objections were required to be called for from the general public before bringing the Rules into force. The Additional Chief Secretary has admitted to the position that the draft rules were not published and objections were not called for, before bringing the Rules into force. In the affidavit, the Additional Chief Secretary has also sought liberty to the State Government to publish the draft rules calling upon the general public to file their objections and thereafter, re-enact the rules in accordance with law. JUDGEMENT:- All notices issued by the Controlling Authority were quashed and set aside. Liberty was granted to the state government to redo the process of framing the rules in accordance with law. The petition was partly allowed. CASE 3 NAME OF THE CASE: - Krantikari Suraksha Rakshak v. Bharat Sanchar Nigam Ltd CITATION: - SLP (C) No.13553/2007. LEGAL PROVISIONS:- Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, 1981 and Contract Labour (Regulation and Abolition) Act,1970. BRIEF FACTS: - Petitioners field writ petition before High Court, the principal contention of the petitioners was once Security Guard Board constituted under the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, 1981 allots guards to a principal employer, it loses the power to recall, re-allot or transfer such guard as the guard so allotted 10 | P a g e

becomes an employee of the principal employer. By the impugned judgment the High Court held that the main contentions advanced by the Unions were covered by a series of judgments of earlier Division Benches as well as of learned Single Judges of the High Court which were binding upon it. Nevertheless, the Division Bench also examined the acceptability of contentions advanced and ultimately held that the contentions were without substance. And then appeal to Supreme Court. JUDGEMENT- Supreme Court held that the appeal are without merit and are accordingly dismissed. CASES REFERRED: Mohan Sampatrao Torsale v The Railway Goods Clearing.

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LITERATURE REVIEW OF CHAPTER 2 1) Stephen Rushin, The Regulation of private police, 115 W Va. L. Rev. 159, 171 (2012) This article tells the traditional law enforcement. This article evaluates the statutory and judicial regulation of the private police. This theorizes on the inadequacies of the current regulatory scheme. This show that most state statutes only regulate a certain category of private police officers, leaving a substantial portion of the private policing industry virtually unregulated. 2) Ian Loader, Thinking Normatively about Private Security, 24 J.L. & Soc'y. 377, 390 (1997) This article tells the important of developing the private security. This is all resort by business and government organization to private mode of security. An intensification of local authority involvement in security provision, through funding and operating CCTV systems, the sporadic development of citizen patrols, an increasing deployment of crime. 3) Elizabeth E. Joh, Conceptualizing the Private Police, 25 Utah L. Rev. 573 (2005) This article talks about what is the proper relation between the state and policing and what are the legal scholarship has often assumed of socio legal approach. when courts talk about private policing, they make unstated and sometimes erroneous assumptions. Yet these disagreements and misunderstandings remain unexamined.

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PRIVATE SECURITY AGENCIES RULES FRAMED BY VARIOUS STATES IN INDIA Private Security Agencies (Regulation) Act, 2005 regulates functioning of Private Security Agencies so that they operate within a legal framework and are accountable to a regulatory mechanism. The Controlling Authority is to be appointed by State Governments for the purpose of granting licenses. License is mandatory for carrying on business of private security agency. PENALTY SYSTEM With the passage of time, PSAs have evolved into corporate entities with operational offices in every state or specific sites akin to manufacturing companies that would own one or more production units/factories in distinct states. As a normal practice, such state-wise units and their day to day affairs are managed by a manger/person-in charge who reports to the Chief Executive Officer or the Board of Directors, as the case may be. The existing form of the Act and rules there under hold the Directors directly responsible for any act/omission on the part of a guard or guards while rendering private security services. Revise the Act to allow for compounding of offences, at the discretion of the regulator, for minuet, very technical or first-time offences. PRIVATE SECURITY AGENCIES ACT, 2005 – CENTRAL RULES15 This act was enacted by parliament in the 52th year of the republic of India. This contains with 25 section deals with appointment of controlling authority and eligibility, persons, applications, renewal for license. This also tells exhibited, cancellation and suspension of license. This needs to issue of photo identity card and disclose delegation of the unauthorized person. This also focused on punishments, penalty for unauthorized use of certain uniforms and offences, indemnity, framing of model rules for adoption by state and last with the power of state government to make rules. ANDHRA PRADESH PRIVATE SECURITY AGENCY (REGULAITON) RULES 200816 This act was in effect based on the order that is issued by the government of India, Ministry of home Affairs under section 25(1) of the private security agencies act, 2005 (central Act 29 of 2005). This contains 14 sections which deal with issuance of notification for the applicants and

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https://mha.gov.in/sites/default/files/The%20Private%20Security%20Agencies%20%28Regulation%29%20Act%2 C%202005.pdf 16 https://psara.gov.in/Upload_file/20271G.O.MS.31_2016_04_28_11_32_57_129.PDF 13 | P a g e

the modes for verification antecedents, character of the applicants, training for the security guards, their educational qualifications, physical standards for security guards, supervisors, conditions for grant of license and renewal of license and finally with punishment for contravention of certain rules which includes payment of fine in case of any contravention with other provisions. MAHARASHTRA PRIVATE SECURITY AGENCY (REGULATION) RULES, 200717 This act was in effect based on the order that is issued by the government of Maharashtra in exercise of the powers conferred by section 25 of the Private Security Agencies (Regulation) Act, 2005. This contains 16 sections which deal with types of verification and character of applicants. And also about Security training, educational qualification for security guards, provision for supervisors, conditions, renewal, appeals and procedure. And it cover register to maintained by the agency and photo identity card and finally with other conditions for the agencies. In a case18 the Accused no 1 and no 2 were neighbour of P.W 1and residing at Warangal. P.W.1(aged of 7years ) daughter was return from school took her lunch and playing with her sister. The accused no 2 offer a chocolate to P.W. 1 daughter. They took her to shop and she don’t return home. But PW1 has return home from shop. The police record F.I.R. and it was mainly against accused 1 and accused 2 that they have committed rape and murder her. On based on F.I.R the crime at C.R.NO9/2016 under section 201, 302, 363, 376(2) and 377r/w of Indian Penal Code and under section section 3 and 4 of POSCO act came to registered. The learned trial Judge held the accused as not juvenile and accepted the prosecution case as against the present appellants and convicted them for various offences and sentenced them. Hence, the appeal against conviction and in view of capital punishment was accordingly dismissed.

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http://mahasecurity.gov.in/pdf/regulations/private_security_agencies_regulation_rules_2007.pdf Bhagwat Parbati Kshirsagar vs The State Of Maharashtra.

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WEST BENGALPRIVATE SECURITY AGENCIES RULES, 200819 This act was in effect based on the order that is issued by the governor in exercise of the powers conferred by section 25(1) of the Private Security Agencies (Regulation) Act (Act 29 of 2005). This contains 15 sections with verification and character of antecedents of the security guard and supervisor. And also about security training, standard of physical fitness and provision for security guard. It also deals with the manner, making the license to grant. And it mainly deals with the conditions for grant and renewal of license. This state needs the appeals, procedure, register and photo identity card by the agency and finally with other conditions. DELHI PRIVATE SECURITY AGENCIES RULES, 200920 This act was in effect based on the order that is issued by the governor of the national capital territory of Delhi. In exercise of the powers conferred by section 25 read with clause (1) of section 2 of the private security agencies(regulation) act, 2005 (29 of 2005). This contains with 17 sections with manner, verification, and training of character and antecedents of the guard. It also deals with physical standards, provision of supervisors and condition, renewal, cancellation, suspension and other conditions of license. And finally with appeal, register and identity card for guard and supervisor. In a case bunch of complaints were registered regarding the remuneration insecurity of services of around 7000 security guards. A survey was conducted in this regard and was found that most of the agencies are not registered under the Shops and Establishments Act. Section 3 of Security Guards Act empowers State Government to provide security guards with schemes and regulations but in this case they are not even entitled with the benefits. Contention raised in the writ petition by workers is that the scheme does not offer any continuity or guarantee of employment to those who are already working in factories. The court directed the government to ensure that all the benefits provided by the scheme and the Security Guards Act are received by all the workmen of all factories.21

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https://psara.gov.in/Upload_file/20241West%20Bengal%20Private%20Security%20Agencies%20(Regulation)%2 0Rules%202007.pdf 20 http://delhi.gov.in/wps/wcm/connect/c7a1d58041af4cac8b2baf2772a64d89/Private%2BSecurity%2BAgencies%2 B%2528Regulation%2529%2BRules%2B09.pdf?MOD=AJPERES&lmod=577940030 21 Security Guards Board v Security and Personnel, 1987 SCR (3) 19 15 | P a g e

POLICY ISSUES CONCERNING PRIVATE SECURITY INDUSTRY22 The private security industry in India is governed by various regulations, the most relevant being the Private Security Agencies Regulation Act (PSARA), 2005 formulated by the Ministry of Home Affairs (MHA). The Act regulates the eligibility criteria for operating a security agency as well as prescribes training requirements for security guards. Additionally, PSARA also prescribes various compliance requirements for the security agencies eg- verification of employees, affidavit for compliance with FDI policy where applicable, maintaining statutory registers, commencement of activities etc. Apart from the PSARA some other (indicative) regulations applicable to PSI are: ▪ Arms Act, 195923 ▪ FDI Policy ▪ Minimum Wages Act, 194824 ▪ Provident Fund Act, 195225 ▪ Employee State Insurance Act, 194826 ▪ Payment of Bonus Act, 196527 ▪ Payment of Gratuity Act, 197228 PSARA has an inclusive definition of “private security” i.e. the business of providing private security services including armored car service, private security guards, etc. Similarly, PSA is defined as a person or body of persons other than a government agency, department or organization engaged in the business of providing private security services, including training to private security guards or their supervisor or providing private security guards to any industrial or business undertaking or a company or any other person or property. The scope of “private

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http://ficci.in/spdocument/23012/Private%20Security%20Industry%20Report.pdf The Arms Act, 1959, Act 54 of 1959. 24 The Minimum Wages Act, 1948, Act 11 of 1948. 25 The Provident Fund Act, 1952, Act 19 of 1952. 26 The Employees State Insurance Act, 1948, Act 34 of 1948. 27 The Payment of Bonus Act, 1965, Act 21 of 1965. 28 The Payment of Gratuity Act, 1972, Act 39 of 1972. 23

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security” under PSARA is broad and does not prescribe an objective test to determine the activities that are sought to be regulated.

CASE ANALYSIS CASE 1 CASE NAME : Bikas Chatterjee vs Union of India & Ors CITATION: Writ Petition (crl.) 188 of 2004 (2004) 7 SCC 634 PROVISIONS OF LAW: article 32 and article 72 section 302 of Ipc BRIEF FACTS OF THE CASE: A most heinous and barbaric rape was committed on an 18 year school going girl by security guard of the apartment. After granting of death sentence a petition of pardon from President under article 72 of the Constitution was filed. PRELIMINARY ISSUES: Whether the person has a plea under article 72? JUDGEMENT: Death sentence was awarded to the security guard in this regard but the pardon petition was dismissed by the court and upheld conviction. CASES REFERRED: Dhananjoy Chatterjee v. State of W.B. Bachan Singh v. state of Punjab RATIO DECIDENDI: The Court showed its concern and awareness that the consequence of the sentence of death would be depriving of a human life and then held that the facts of the case warranted no punishment other than the capital punishment being awarded to the accused. Accordingly, the sentence of death imposed upon the appellant was confirmed by dismissing the pardon under article 72.

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CASE 2 CASE NAME : Bhagwat Parbati Kshirsagar vs The State Of Maharashtra. CITATION: 2018 (criminal appeal no. 180 of 2017) PROVISIONS OF LAW: section 201, 302, 363, 376(2) and 377r/w of Indian Penal Code BRIEF FACTS OF THE CASE: The Accused no 1 and no 2 are neighbour of P.W 1 and residing at Warangal. P.W.1(aged of 7years ) daughter was return from school took her lunch and playing with her sister. The accused no 2 offer a chocolate to P.W. 1 daughter. They took her to shop and she don’t return home. But PW1 has return home from shop. The police record F.I.R. and it was mainly against accused 1 and accused 2 that they have committed rape and murder her. On based on F.I.R the crime at C.R.NO9/2016 under section 201, 302, 363, 376(2) and 377r/w of Indian Penal Code and under section section 3 and 4 of POCOS act came to registered. JUDGEMENT: The court convicted him under several offences and awarded life imprisonment not less than 30 years without remission. RATIO DECIDENCI: Normally in these cases death sentence is given butas the intention of causing death was not proved, he was not awarded death sentence. Depending on the gravity of offence he was awarded life imprisonment. CASE 3 CASE NAME : Vikas Yadav and others v State of Uttar Pradesh and others

CITATION: Criminal Appeal Nos. 1531-1533 of 2015

PROVISIONS OF LAW: section 302, 364, 201, 34 of Indian Penal Code BRIEF FACTS OF THE CASE: Defendants accused allegedly with common intention committed murder of young boy (23 years) with single blow by hard object which resulted in the death of the victim and then put the body on the fire, with intention of abolishing incriminating evidence 18 | P a g e

PRELIMINARY ISSUE: Whether Trial Court order dt. 30-5- 2008 against all the three accused on the sentences are premised on consideration of relevant circumstances as per law, are well reasoned and therefore, cannot be interfered with? JUDGEMENT: Trial judge has held that could not be termed as 'murder in a brutal or diabolical manner'. Destruction of evidence was separate offence u/s. 201 IPC which did not invite the extreme penalty of death. Trial judge held that it is not the death penalty which is deterrent in which a person is hanged to death in a few seconds that to the contrary, it is life imprisonment which is deterrent wherein a convict dies every moment in the jail. It was held that the case did not fall in the category of rarest of rare cases. CASES REFERRED: 1. Suresh and another v State of Haryana 2. O. M. Cherian @ Thankachan v State of Kerala and others 3. Mofil Khan and another v State of Jharkhand RATIO DECIDENDI: Acts of defendants are not just crimes but more gravely they tantamount to obstruction or interference in the administration of justice and strike a blow to the rule of law. These acts prove beyond doubt that the defendants have no remorse and are beyond reformation

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LITERATURE REVIEW OF CHAPTER 3 1. Christopher Hertig, Developing Productive Relationships with Private Security, 55 FBI L. Enforcement Bull. 19 (1986). Private security today is a rapidly emerging field. There is currently more private security personnel employed than there is public police. The current demands of private citizens for better protection, coupled with budgetary constraints, mandate that police administrators develop costeffective crime control strategies. The author talks about the relationship between police officials and private security personnel. He talks about the problems and makes strategies for problem solving. According to him, creativity on the part of police administrators is the key component necessary for facilitating improved police-security relations. 2. Nicola Jagers, Regulating the Private Security Industry: Connecting the Public and the Private through Transnational Private Regulation, 6 Hum. Rts. & Int’l Legal Discourse 56 (2012). Recent years have witnessed a growing use of private military and security companies in conflict zones. States, but also non-state actors such as multinational corporations and NGOs, are increasingly relying on the private provision of security to protect their assets and their employees. Highly publicized incidents have given rise to criticism of alleged human rights abuses and a lack of accountability. The author has discussed about the drivers that have led to the emergence of transnational private regulation aimed at improving the human rights performance of the private security sector. 3. Rick Sarre, Legal Sources of Private Security Powers, 7 Canberra L. Rev. 109 (2003). In the recent past, increasing demands for protection of people and property, together with financial constraints on governments and contemporary moves towards making citizens more responsible for their security, have greatly expanded the roles of modem private security providers, inquiry agents and guard personnel. The specific focus of the author is upon private security personnel, and the many and varied sources of law that empower and govern them and their activities.

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THE TAINTED RELATIONSHIP BETWEEN PRIVATE SECURITY AND POLICE OFFICIALS AND ITS SOLUTION. The importance of law and order cannot be overemphasized. India is a 5000 year old civilization with about 7516 kms borders to protect and even more number of critical establishments to secure. There is also a need to secure the 29 states and 7 Union Territories from internal threats or law and order situations. As the 7th largest and 2nd most populous country in the world (population of 1.15 billion) our country has less 2.5 million policemen. This effectively translates into a very poor police to public ratio. With the ever increasing growth in population and establishments, the traditional policing function has to restrict itself to serve the fundamental duties to protect the citizens.29 ‘Defence of a country or the security of a country is not a static concept. A country has to be in a perpetual state of preparedness. Eternal vigilance is the price of liberty.’ The above observations of the Hon’ble Supreme Court of India30 are of utmost relevance today. Goods and services cannot be static and have to constantly evolve in order to respond to the needs of the economy and the market, with the security industry being no exception. With the traditional policing and national security agencies serving the law and order function, there is an increasing uptake of private security agencies for protection of establishment or goods or person. Industry today requires private security to perform functions other than mere guarding services. 31 To cater the increasing needs of private establishments, private security industry has emerged as a viable alternative globally and in India. It is estimated that this industry is growing at 25% CAGR every year in India. Private security today is a rapidly emerging field. There is currently more private security personnel employed than there is public police. The current demands of private citizens for better protection, coupled with budgetary constraints, mandate that police administrators develop cost-effective crime control strategies. The role that private security can

29

Grant Thorton, Private Security Services in India, 6 FICCI, 43, 56 (2015). Giani Bakshish Singh v Government of India, (1973) 2 S.C.C. 688. 31 Christopher Hertig, Developing Productive Relationships with Private Security, 55 FBIL. Enforcement Bull. 19(1986). 30

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plan within these programs is substantial, making it obvious to astute administrators that a positive relationship with private security practitioners must be cultivated.32 In 1980 Hallcrest Systems, Inc., conducted a comprehensive study of the nature and extent of private security efforts and founded the following – 1. There is robust growth in private security with the expenditures and employment exceeding public law enforcement. This trend will continue as private security growth escalates while public law enforcement resources stabilize.33 2. The majority of law enforcement managers and officers have a general idea of the functions of private security, but the total scope of private security functions is beyond the comprehension of law enforcement personnel who have not interacted with the private sector in their community.34 3. Law enforcement executives perceive the performance of private security as being ineffective in reducing crime.35 4. Law enforcement officers rate the performance of private security personnel as poor in most areas. 5. The amount of interaction and cooperation between public police and private security is limited. 6. Police and private security managers are both receptive to the idea that private security respond to minor criminal acts on the property it is assigned to protect and that some noncrime related tasks be contracted out to private sector organizations.36 7. Major problems affecting the security-police relationship include police officers moonlighting in private security and the excessive number of false alarms to which police must respond.37 In order to solve the problem between the public officials and the private agencies, the police have to go through a self test which will help public law enforcement personnel assess their knowledge of and attitudes about the private security sector in their jurisdictions. After evaluating one's own knowledge and perceptions regarding police-security relationships, the time 32

Rick Sarre, Legal Sources of Private Security Powers, 7 Canberra L Rev. 19 (2003). William Cunnigham, The growing role of Private Security, 2 LQR, 6 (1985). 34 Todd H Talor, Interaction and Co-operation between Law enforcement and Private Security, 1 JHPN, 72 (1996). 35 Id. 36 Supra Note 6. 37 Supra Note 7. 33

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comes for affirmative educational efforts regarding the scope and functions of private security. These efforts can include contacts with private security practitioners and organizations.38 Increasing the amount of cooperation between public and private protection agencies is certainly an important goal. In order to fulfill the goal following has to be done1. Analyze the crime prevention and crime-fighting capabilities of local guard services, alarm companies, and private investigators; 2. Establish joint committees to catalyze public and private crime control efforts; 3. Form public and private task forces in response to specific crime problems, such as credit card fraud, commercial robbery, and arson; 4. Invite representatives from private industry groups to address staff meetings of police supervisors; 5. Communicate with security organizations at the local level on current problems the police agency is having with private security, local laws, and court decisions which concern private security and other items of mutual interest; 6. Consider having police managers join local security organizations so that continuous informal communication is maintained; and 7. Actively support certification and accreditation efforts within the private sector.39 While the thought of private security personnel responding to alarms may seem dangerous to police executives, it has been an ongoing practice. It may be a good idea for police managers to examine the apprehension of burglars and other criminals by private persons within their jurisdictions. They may be both surprised at the amount of criminals captured by private security personnel, and at the same time, see an opportunity to foster improved relationships with those persons. The creative implementation of training efforts directed toward security personnel is a good place to start. After all, it is this creativity on the part of police administrators that is perhaps the key component necessary for facilitating improved police-security relations.40

38

Supra Note 5.

39

Nicola Jagers, Regulating the Private Security Industry: Connecting the Public and the Private through Transnational Private Regulation, 6 Hum. Rts. & Int’l Legal Discourse 56 (2012). 40

Id.

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In Purushottam Dashrath Botare & Anr. v State of Maharashtra41, the deceased was residing in Pune with her family and was working as an Associate in the BPO Branch of WIPRO, where she used to work in the night shift, i.e., from 11:00 pm to 9:00 am. To ensure the safety and security of the female employees, the company imposed a mandatory obligation, upon the owner of the car, that a security guard must be present in the said vehicle. One day, as per the usual practice the cab picked the deceased. During the course of journey, a conspiracy was hatched between A1 (cab driver) and A2 (security guard) to abduct her and take her to a secluded part. They committed the heinous offence of gang rape and then strangulated her to death with her odhani, slashed her wrist with the blade and even smashed her head with a stone. Then, they left her body in the field of the informant. FIR was registered. Court of Session Judge passed a judgement for the conviction of the accused appellants for the offence u/s 302, 376 (2) (g), 364 and 404 r/w 120B of IPC and consequently awarded Death Sentence. On appeal, the Death Sentence was confirmed by the Bombay HC. Accused Appellant approached SC through SLP. SC affirmed the judgement and order passed by the HC and dismissed the appeal.42 In Rajiv @ Monu & Anr State of NCT of Delhi43, Poonam (A2) lodged a missing report of her husband. On the same evening, Jagan Pal (PW1), father of the deceased visited the police station and stated that his son has not returned home from past one day. He even stated that A2 used to meet Monu (A1) despite objections raised by the deceased, which led to multiple altercations between A1 and deceased. He also stated that 2-3 days before, deceased had a verbal altercation with A1 and A3, who was working as a security guard and was a friend of A1. FIR was registered and investigation commenced. It was found that deceased was murdered by A1 and A3 and both of them were hiding. They were apprehended and they confessed that they murdered deceased and dumped the body in the borewell pit. Body was discovered by the police. Additional Session Judge convicted both of them for the offence committees u/s 302 r/w 120B and u/s 201 r/w 120B of IPC. They were sentenced to undergo rigorous life imprisonment with a fine of Rs 25000/- and Rs. 5000/-. They appealed to Delhi HC. Delhi HC confirmed the

41

2015 Indlaw S.C. 338. Id. 43 2018 Indlaw Del 3000. 42

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judgement and order passed by the Additional Session Judge and dismissed the appeal accordingly.44

CASE ANALYSIS CASE 1 CASE TITLE- Mohd. Iliyas Sk. Omar Kirmani v State of Maharashtra & Ors CITATION – 2010 Indlaw Mum 813 TOPIC – Private Securities (Regulation) Act, 2005 PROVISIONS OF LAW - On receipt of an application under sub-section (1), the Controlling Authority may, after making such inquiries as it considers necessary and obtaining no objection certificate from the concerned police authority, by order in writing, either grant a license or refuse to grant the same within a period of sixty days from the date of receipt of application with complete particulars and the prescribed fee. Provided that no order of refusal shall be made unless – a) the applicant has been given a reasonable opportunity of being heard; and b) the grounds on which license is refused is mentioned in the order. BRIEF FACTS OF THE CASE - The petitioner was the proprietor of the firm namely Impact Services, Aurangabad which was registered under the Bombay Shop and Establishment Act, 1948 and the petitioner was carrying on the business of Private Securities Agency since last 15 years and had obtained the shop Act license therefore since 1995 which is produced and about 1000 employees were dependent upon the petitioner and its business. The Private Security Agencies (Regulation) Act, 2005 came into force in the year 2005 and therefore petitioner applied for the license under the said Act and Rules there under on 2.2.2009 to the Commissioner of police, Aurangabad Division, Aurangabad i.e. respondent No.3. However, the respondent No.3 passed an order on 27.5.2009 without assigning any ground/reasons therein and thereby rejected the said application of the petitioner for license. Thereafter petitioner preferred appeal 44

Id.

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u/s. 14 of the said Act before Principal Secretary, Home Department, Government of Maharashtra, Mantralaya, Mumbai i.e. respondent No.2. ISSUES RAISED - Whether the order passed by Respondent No. 3 is valid? JUDGEMENT - The appeal was rejected by the said Appellate authority i.e. respondent No.2 by order dated 13.4.2010 which was communicated to the petitioner on 17.4.2010. GROUNDS FOR APPEAL – Whether the order passed by Respondent No.3 and Respondent No. 4 is valid? JUDGEMENT – The court held that both the impugned orders were erroneous and unsustainable thus they were quashed and set aside. The petition was allowed partly in respect of the quashment of both the said orders with liberty to the petitioner to apply for the license afresh within the period of fifteen days and with directions to respondent No.3 to decide said application expeditiously in accordance with law, and interim order dated 5.5.2010 needs to be continued till then and till 15 days thereafter. RATIO DECIDENDI & OBITER DICTA - Although the petitioner had submitted an application to respondent No.3, on 2.2.2009, the impugned order was passed by respondent No.3 after lapse of more than 60 days i.e. on 27.5.2009 and hence it is amply clear that impugned order dated 27.5.2009 was not passed within the prescribed period by respondent No.3. Moreover, the applicant was not given an opportunity of being heard before passing the impugned order, although it is contemplated under proviso (a) of sub section 4 of section 7 of the said Act. Adding to this, no grounds were assigned for the refusal of the grant of license. COMMENT – The researcher second the judgement given by the Hon’ble HC of Judicature at Bombay because not only the provisions of the said Act were violated by the Respondents but also the basic fundamental right of access to justice i.e., audi alteram partem , one of the Principles of Natural Justice, were violated by them.

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CASE 2 CASE TITLE – Alsecure and Protection Services (1) and Ors v State of Maharashtra & Ors CITATION – 2009 Indlaw Mum 1002 TOPIC – Private Securities Regulation Act, 2005 & Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, 1981 PROVISIONS OF LAW - The State Government may, after consulting the Advisory Committee, by notification in the Official Gazette and subject to such conditions and for such period as may be specified in the notification, exempt from the operation of all or any of the provisions of this Act or any Scheme made there under, all or any class or classes of Security Guards employed by the agency or agent as may be specified in the notification and deployed in any factory or establishment or in any class or classes of factories or establishment, if in the opinion of the State Government, all such Security Guards or such class or classes of Security Guards are in the enjoyment of benefits, which are on the whole not less favourable to such Security Guards than the benefits provided by or under this Act or any Scheme made there under. Provided that, the State Government, may, by notification in the Official Gazette, at any time, for reasons to be specified rescind the aforesaid notification BRIEF FACTS OF THE CASE - Security agencies were carrying on business of security agencies even prior to the commencement of the State Act. Some of the Petitioners agencies were granted exemption from the provisions of the State Act by making an order u/s. 23 of the State Act. The Petitioners have also made grievance about the State Government not renewing the exemption order in their favour within time. 7 more Writ Petition were filed on the same issue having the same relief thus, it was clubbed by the HC. ISSUES RAISED – 1. Whether the State Act does not operate in relation to the private security agencies after the enactment of the Central Act?

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2. Whether the State Government should be directed to pass orders on the proposal pending before it u/s. 23 of the State Act for the exemption from the provisions of the State Act immediately if the State Act continues to operate in relation to the Private Security agencies? JUDGEMENT – No relief was granted to the Petitioner. HC directed state government to make orders on the application for exemption or application for renewal of exemption that have been filed before it. Petitions were accordingly disposed of. It was also directed that in case there are any interim orders presently operating they are continued to operate for a period of eight weeks from the date of this judgement. CASES REFERRED – 1. Security Guards Board for Greater Bombay and Thane District v Security and Personal Service Pvt. Ltd & Ors, A.I.R. 1987 S.C. 1370. 2. M/S Tradesvel Security Services Pvt. Ltd. v State of Maharashtra, (1982) 84 B.L.R. 608. 3. Krantikari Suraksha Rakshak Sanghatana v State of Maharashtra, (2006) 6 ALLMR 401. RATIO DECIDENDI & OBITER DICTA – In order to seek the benefit of sec 23, three conditions are necessary. Firstly, the class or classes of Security Guards should be employed by the agency or agent. Secondly, those Guards must be deployed by the concerned agency in a factory or establishment or in any class or classes of factories or establishments and thirdly, in the opinion of the State Government, all such Security Guards or such class or classes of Security Guards are in the enjoyment of benefits which are on the whole not less favourable to such Security Guards than the benefits provided by or under this Act or any Scheme made there under. The State Act is a Labour Legislation, which the State Government is competent to enact. The subject matter of the State Act is private security guards who may be engaged by the principal employer either through the Board or through the security agencies. The subject matter of the Central Legislation is not the private security guards, but private security agencies. Thus, there is no conflict between them. COMMENT - The researcher second the judgment of the HC because there was no question of repugnancy between the State Act and the Central Act. The objective of the concerned

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legislature behind the enactment of the particular statute was completely different. Hence the validity of them cannot be questioned. CASE 3 CASE TITLE – Dhananjoy Chaterjee Alias Dhana v State of West Bengal CITATION – (1994) 2 S.C.C. 220. TOPIC – Theft, rape and murder by Private Security Guard. PROVISIONS OF LAW – 302. Punishment for murder. - Whoever commits murder shall be punished with death, or 1[imprisonment for life], and shall also be liable to fine. 380. Theft in dwelling house, etc. - Whoever commits theft in any building, tent or vessel, which is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 376. Punishment for Rape. – Whoever commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. BRIEF FACTS OF THE CASE – The appellant Dhananjoy was one of the security guards deputed to guard the building ‘Anand Apartment’ by M/S. Security and Investigating Bureau of which Mr. Shyam Karmakar (PW 21) was the proprietor. One day deceased complained to her mother (PW 3) that the appellant had been teasing her on her way to and back from school and had even proposed to her to watch movie with him. It was informed to her father, who in turn informed this to PW 21, who replaced the appellant with another security guard. One day after 29 | P a g e

writing her examination deceased came to her home. At that time no one was there in the house and appellant visited the home. After few minutes he hurriedly left the place. When PW3 returned, it was informed to her by one of the neighbors that appellant had visited her in order to make a call during her absence. On reaching the flat she rang the bell repeatedly but no one answered. Eventually the door was broken open by some neighbors. She found the deceased lying on floor with her private parts being visible. There were patches of blood on her head, hands, and private parts as well as on the floor. She was taken to the hospital by PW3 where she was declared dead. FIR was recorded and investigation commenced. ISSUES RAISED – 1. Did the accused raped her and eventually strangulated her to death? 2. Did the accused committed theft of the wrist watch from the flat of the deceased? JUDGEMENT – The learned Additional Session Judge convicted him for rape, theft and murder and sentenced him to death penalty. He was sentenced to imprisonment for life for committing an offence u/s 376 and had to undergo a rigorous imprisonment for five years for an offence u/s 380. Appellant appealed to High Court which was dismissed and the sentence of death for conviction of the appellant u/s 302 of IPC was confirmed by the High Court and the appellant was executed. GROUNDS FOR APPEAL – Appellant approached SC through SLP and the leave was accordingly granted. JUDGEMENT – The sentence of death imposed on the Appellant by the courts below for the offence u/s 302 was confirmed by the SC. The order of sentence imposed on the appellant u/s 376 and 380 was also confirmed and the appeal was dismissed accordingly. RATIO DECIDENDI & OBITER DICTA – The sordid episode of the security guard, whose sacred duty was to ensure the protection and welfare of the inhabitants of the flats in the apartments, have subjected the deceased, a resident of one of the flats, to gratify his lust and murder. If the security guards will behave in this manner, who will guard the guards? The faith of the society by such a barbaric act of the security guard gets totally shaken and its cry for justice becomes loud and clear. The offence was not only inhuman and barbaric but it was a 30 | P a g e

totally ruthless crime of rape followed by cold blooded murder and an affront to the human dignity of the society. COMMENT – The researcher second the judgment given by the Hon’ble SC because if the protectors will become predators then what will happen to the society? In order to curb this, SC has to take a bold move. Committing rape on an innocent and defenseless young girl of 18 years, by the security guard certainly makes this case a ‘rarest of the rare’ case which calls for no punishment other than the capital punishment.

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LITERATURE REVIEW OF CHAPTER 4 1. Joseph G. Deegan, Mandated Training for Private Security, 56 FBIL, Enforcement Bull. 6 (1987). This article speaks about private security industry trainings. It is basically a discussion with representatives of local law enforcement, private security, and the educational community. There are three important perspectives which are discussed. Later the article emphasizes upon the issue of training for private security apart from police officials. It says that training for the private security is the key to professionalism. It is also important to conduct relevant programs associated with training and private security industry.

2. Clifford D. Shearing; Philip C. Stenning, Private Security: Implications for Social Control, 30 Soc.Probs. 493 (1982). This article mainly speaks about the development and legitimization of the private security industry in United States and Canada. Private security has become a pervasive feature of modern North American policing, both because of its rapid growth since 1960 and because it has invaded the traditional domain of the public police. This development has been viewed as an addendum to the criminal justice system, its significance for social control has not been recognized. This paper traces the development of private security in Canada and the United States since 1960, examines the reasons for its present pervasiveness, and explores its essential features: it is non-specialized, victim-oriented, and relies on organizational resources as sanctions. We conclude that private security is having a major impact on the nature of social control.

3. Philip Stenning; Clifford Shearing, Private Security and Private Justice, 6 Brit. J.L. & Soc'y 261 (1979). Private security became a crucial part in society with increase in problems. In order to resolve those Problems, it is shear necessity to build up Private security Industry. This article discusses the same. Justice within Society is the principle idea which thus tricks speaks about.

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INTERNATIONAL DEVELOPMENTS IN PRIVATE SECURITY INDUSTRY. The role of private security extend from private adjunct to public policing which is the sole rationale for whose existence is to “plug the gaps” left by an unfortunately incomplete public police presence. Private security represents much more than the growth of an industry which may or may not need to be controlled. This private security industry represents something of a “quiet revolution” in our social arrangements for policing and social control, which finds its roots in Fundamental economic, social and political changes occurring within our society45. The most important benefit of the Private security and Private Justice System is that it offers a radical alternative to the public police and public criminal Justice system. These systems of private justice may become the preferred vehicle for the resolution of many disputes as well as social problems. While the concept of private security is often considered to be a relatively modern phenomenon, the reality is that some form of private security has existed for centuries. Whether it is the invention of locks, or the design of ancient forts and battlements, or the provision of different people-related services, the concept of private security has existed for much longer than the modern security guard46. Private Military and Security Companies Private military and security companies which is widely known as PMSC is a private company that provides security services or armed combat in order to secure peace in the society. These are increased over last two decades. They operate in Iraq, Afghanistan and Pakistan, the Gulf of Aden as well as Latin America and Western governments, which are also increasingly hiring private contractors for domestic purposes. But at the same time there are some misconducts of this PMSCs. In many countries it became private rather than for public good. It may improve the safety of certain individuals, but simultaneously it is damaging the protection of society as a whole especially in failed states like Somalia. Public order can be restored back if the states

45

Philip Stenning; Clifford Shearing, Private Security and Private Justice, 6 Brit. J.L. & Soc'y 261 (1979). Clifford D. Shearing; Philip C. Stenning, Private Security: Implications for Social Control, 30 Soc. Probs. 493 (1982) 46

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legitimacy is achieved, but this could not be made possible because of the interference of private actors. These PMSCs also lack democratic accountability.47 United Nation also supports the use of private military security companies, in order to protect its personnel and facilities in unstable crisis and conflict zones. As UN workers became the targets for mounting attacks in Afghanistan, the UN has decided to hire the company IDG Security to provide Nepalese guards for UN compounds and guesthouses in the country. The use of this type of services has proven controversial within the organization, with some worrying that it might affect the credibility and legitimacy of UN missions abroad48. The Private Security Industry in the Europe. According to 2011 analysis, the security services in Europe were increased and it targets wide geographical area of 34 countries of Europe49. The security services in Europe were extended to legal aspects as to Private Security Legislation, controls and sanctions, collective labour agreements, entrance requirements, specific requirements, powers and competences, weapons, K9(dogs), training and related provisions, public-private cooperation, the fight against piracy on the high seas.50 Germany Germany has no separate legislation on the private security industry. Paragraph 34a of the Trade Regulation Act applies to the establishment of a private security organisation. This provision reads: “Anyone who wishes to guard the life or property of third persons on a professional basis must obtain a license”. This paragraph was tightened up on 28 October 1994 by the Crime Control Act. Specific rules were given in relation to training and basic security knowledge. Since 23 November 1994 it has also been possible to check the criminal antecedents of security personnel. In addition, the Firearms Law applies to the possession and use of weapons by security personnel. It is not expected that changes to the legislation will take place

47

The global policy forum report, 2016. UN Embraces Private Military Contractors, Colum Lynch, Foreign Policy, January 17, 2010 49 Private Security services in Europe, CoESS Facts and figures, 2013( confideration of Europeans security services) 50 The private security industry in international perspective, European Journal on Criminal Policy and Research 7(2):143-174 · January 1999. 48

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in the near future. The size of the German private security industry is expected to expand in the years to come.51 United States of America: The use of private security industry is in wide range in USA. There are many security agencies in USA. There was a case where a girl who came as a guest to Simpson College was raped by two security persons of the same college. That guest to party brought negligence action against college alleging student employees omissions resulting in her injuries following sexual assault. There Court held that college was not vicariously liable for student employee’s alleged omissions. At the same time the person who raped the student guest ot that college was not on duty at that particular time52. In United States of America each of the 50 states had that power to license a security a Industry. There is an enactment in USA i.e., the Private Security Officer Quality Assurance Act of 1997. Base on this the employees will be selected. In case if the states provide additional licensing to the security companies, then it becomes the responsibility of the state itself. Separate training, annual training requirements, and vetting for armed guards are required. Training is one of the essential parts of the security companie s. It is mandatory for every employee to get trained before joining in the respective security jobs 53. There is increase in Industry because of the following reasons: (a) increased movement of securit y services from the proprietary to the contract sector, (b) fear of litigation due to inadequate securit y, (c) requirements by i nsurers, and the desire to make people feel safer.

51

Id. Freeman V Busch, 150 F. Supp.2d 995 (2001) 53 Joseph G. Deegan, Mandated Training for Private Security, 56 FBI L. Enforcement Bull. 6 (1987) 52

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International Code of Conduct: The International Code of Conduct for Private Security Service Providers (ICOC) is a set of principles for private security providers. It has been created by a multi-stakeholder initiative which convened by the Swiss government. This includes representatives from private security companies, states, and civil society organizations. The code i.e., ICOC reinforces and articulates the obligations of private security providers particularly with regard to international humanitarian law and human rights law. It ICOC also sets the foundation for developing an institutional framework that provide meaningful and independent oversight of and accountability to the ICOC. The Association for this ICOC provides, promotes and governs the implementation of the international code of conduct and the responsible provision of private security services. In this association there are 7 governments, 95 security companies, 30 civil society organizations and 31 observers. The aim behind this is to maintain an effective internal governance framework and to protect the interests of the people.54 Misconducts and Risks of Private Security Guards: A minor student was raped by two security guards and security supervisor and she brought this complaint through a friend against them. She asked the court of law to make the board liable as a municipality for the civil right violation. But court did not made the board liable since security guards are private in nature and had no relation with the board55. This is an example of back drop of Private security Companies. The security guard was shot by the petitioner near a mall, with a gun. He was arrested and was charged under attempt to murder in the second degree and criminal possession of a weapon in the second degree. He filed pro se petition for Habeaus Corpus relief after his conviction for attempted murder. But his petition was dismissed by the Court of law56. Private security who were supposed to do services in order to protect the people were themselves are at threat. Due to this there is less increase of private security companies in few countries. In other situation where a property insurer brought subrogation action against security guard service company to recover for negligently allowing a theft by insured’s employee. District court 54

International code of conduct for private security service providers (November 9, 2010). Floyd v. Waiters 831 F. Supp. 867 (1993) 56 Holmes v. Ricks, 378 F. Supp.2d 171 (2004) 55

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in United States granted the company’s motion against jury’s opinion. Then insurer appealed and the court of appeals held the evidences and jury’s verdict was reinstated 57. In Orlando, a security guard raped a woman and then murdered her and he was sentenced to life imprisonment58. Convention on Private Military and security Companies for consideration and action by the Human Rights Council: (United Nations General Assembly) This convention is basically for regulating the activities of the PMSCs and to promote international cooperation between the states. It reaffirms and strengthens the state responsibility for the use of force. The convention consists of articles which are providing rules for getting the license for the private security company, other security services, intergovernmental organizations and contracting states. The aim behind the implementation of this convention is to make sure that the functions of the PMSCs are properly regulated and done accordingly.

CASE ANALYSIS CASE 1 CASE TITLE: Heeralal Misra v. State of Madhya Pradesh.

CITATION: MANU/MP/0975/2015

TOPIC: Granting license to Private Security Agency

PROVISIONS OF LAW: Section 419 of Indian Penal Code, sections 11, 13, 2(e), 20, 25, 4, 6, 7, 7(1), 7(4), 8, 9 of Private Security Agencies Regulation Act, 2005

BRIEF FACTS OF THE CASE: The present petitioner is having a firm by Himachal Security Services which was registered with the Registrar of Firms from, 2000 and was running a business of security agency. But after the enactment of The Madhya Pradesh State rules of 2012, he again filed an application for grant of license. When the application was pending he was forced to close down the firm. A criminal case was also registered against 57 58

Aetna Cas. & Sur. Co. V. Pendleton detectives of Mississippi, Inc., 182 F.3d 376 (1999) www.wftv.com (wftv9abc).

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him by Respondent No.4 contending that the petitioner was running the firm without proper license violating certain provisions of Private Security Agency Regulations Act, 2005 and section 419 of Indian Penal Code.

ISSUES RAISED: Whether the present petitioner can be granted with the order of license?

JUDGMENT BY TRIAL COURT: Court held that the petitioner cannot be issued with any Grant of license.

GROUNDS FOR APPEAL: After the grant of license was cancelled to petitioner, he filed a writ petition before the High court of M.P challenging the order passed by trial court.

JUDGMENT : The writ petition is Allowed and the order passed by the Controlling Authority has been set aside by the High court and the Petitioner was directed to appear before the controlling Authority .

RATIO DECIDENDI AND OBITER DICTA: In the present case, the petitioner is running a security agency when the act of 2005 came in to force. But again he filed an application for grant of license undisputedly after the passing of M.P state rules for the grant of license. The petition was supposed to be decided by 60 days which was kept pending for long time. At the same time he was forced to close his business by the respondents. Those actions were not in accordance with law and there is delay in deciding the application for grant of license.

CASE 2 CASE TITLE: Karbarn Yadav S/O Ramadev Yadav v. State of Karnataka

CASE CITATION: CRIMINAL PETITION NO. 11221/ 2012, HC of Karnataka.

TOPIC: Cheating, misappropriation and carrying of illegal arms by Security Guards

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PROVISIONS OF LAW: Sections 420, 468, 417 of Indian Penal Code, read with section 25 of Arms Act and section 22 of the Private Security Agency Act, 2005.

BRIEF FACTS OF THE CASE: In the present case the petitioners are ranked as Accused No. 1 and 2 in a criminal case. On 17th of april 2012 at 8.00A.M, Prakash who was a PSI of Sandur went to visit the Dharmapur Bypass on receiving and incredible information. Near the tollgate he found persons belonging to Ajad Security Services which was run by accused 03,. They were on guard and were in possession of guns.when he questioned them they produce dlicense and live cartridges. He seized them. When examined, it was found that the license was false. A case was filed and charges were framed under above mentioned sections.

ISSUES BEFORE THE COURT:

Whether the petitioners were guilty of having

fabricated license and they are also guilty of being in possession of guns, which is illegal?

JUDGMENT BY TRIAL COURT: The court ordered for detention of accused and they were put behind the bars.

GROUNDS FOR PETITION: The accused files a petition before the High court, under section 439 of the code of criminal procedures seeking for grant of bail and to pass an order directing the Civil and Judicial Magistrate of First Class to release the said accused.

JUDGMENT: The petition of the Accused was allowed partly and the court directed for grant of bail to the said accused. Provided that they should execute a bond of Rs. 25000 each and they shall not leave the jurisdiction of the sessions court without prior permission.

RATIO DECIDENDI AND OBITER DICTA : The petitioners were bona fide employers of the Ajad Security Seervices. In the complaint filed by the PSI, it is not mentioned that the petitioners have fabricated the license. The detention of the petitioners is not that correct. Therefore the petition is allowed.

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CASE 3 CASE TITLE: Nishant v. State of Madhya Pradesh CASE CITATION: M. Cri. No. 10177/2017 PROVISIONS OF LAW: Sections 419, 420 of Indian penal code and section 4/20 of Private Security agencies Act, 2005 BRIEF FACTS OF THE CASE : The accused who was a security guard in Ratlam district, was made punishable for offences committed under section 419 and 420 of IPC and section 4 reas with section 20 of the private security agencies (regulation ) act, 2005. He was arrested by the police of Ratlam. Hie application for anticipatory bail was also dismissed by the court Of law. He filed bail potion under section 439before the sessions court. ISSUE BEFORE THE COURT: 1) Whether the agency is a registered security agency and received sanction from the Government of Madhya Pradesh. ? 2) Whether the Accused can be granted with bail under section 439 of CrPC? JUDGMENT OF TRIAL COURT: Trial court didn't grant bail for the accused under section 439 of the code of criminal procedure. More over the accused was convicted for offence under section 4/20 of the said act For a maximum of one year. GROUNDS FOR PETITION BEFORE HIGH COURT: Since the Bail petition before the sessions court has been dismissed holding that the security agency is not a registered security agency. Based on this the accused contended and so filed a bail petition under section 439 of the said act for granting bail. JUDGMENT: The application made by the Accused is allowed by the High court of Madhya Pradesh and granted him bail upon furnishing of bond with a sum of Rs. 25000/- and attend the trial court during trial without fail, in default Of this His bail petition will be cancelled. RATIO DECIDENDI AND OBITER DICTA: The Charges which are made against the accused were bailable in nature. But he was not granted with bail. His anticipatory bail has been

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dismissed because of the offence which is bailable in nature. Even thought Petitioner has filed a photo copy of the registration certificate of his agency issued by the Assistant Labour Commissioner, he was not granted with bail. Based on all the above he was granted with bail since he was in custody for long time provided that they should not cause any disturbance during the presence of the case and trial in the trial court.

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CONCLUSION

Incorporating the following clauses within the Act and the Rules would allow for the industry to gear-up for true self-regulation. 1. It is recommended that the existing framework under the Act is revised to hold the person in-charge for operations in a particular state/project office primarily responsible for any violations. All service/process in connection with such violations should also involve such person as the first point of contact. The board or CEO should only be summoned in cases of serious breaches or in the absence of any such person in-charge being nominated by the PSA. 2. The act should be revised to allow the compounding of offences, at the discretion of the regulator, for very minute, technical or first-time offences. 3. Provisions relating to issuance of improvement notice and suspension of license for noncompliance may be incorporated to aid better enforcement. Regulator may proceed to cancel/revoke the license if the PSA does not satisfy compliance even after the said notices.

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