In India, How to lodge a FIR and What to do if a False FIR is filed against You

Without boring you, in simple language, I want to tell you about my views on:-

1) How to Lodge a FIR in Police station, if someone has committed a crime against you,

2) And, What should you do if you learn that a False FIR is lodged against you and police is likely to arrest you anytime.

DISCLAIMER  FIRST:  These both are very ticklish subject. What to exactly do can only be advised by your advocate who will study all facts and will give you sound advice. This article is only academic and if you do anything on basis of this article, and any damage you suffer, it will be solely your responsibility and I will not be responsible or answerable to you. Go strictly by your own advice and advice of your own advocate.


WHY PEOPLE FIND IT DIFFICULT TO REGISTER F.I.R.

People are often heard saying that though a crime against them is committed, police is not registering FIR.(First Information of crime)

To register a FIR is a burden for a police officer.

If FIR is registered, in 24 hours or as early as possible, he has to send a copy of FIR to Court.

And in about three months he is required to complete investigation and give one of the Five Types of Reports to Court; namely,

1/ Crime has been committed. Here are the persons who committed the crime and these are the evidences against them,

2/ Or he can say that crime is committed, but there are not enough evidence to prosecute any one,

3/ Or, he can say that crime is committed, here are the evidences, but accused has flew away.

4/ Or, he can say that though complaint may be true, it looks like a civil dispute and there seems nothing criminal about it. He will give Court supporting papers.

5/Or, he can say that the Complaint is wholly false and Complainant should be prosecuted for filing a false FIR and wasting time of police and for giving false information to police.


WHAT PEOPLE DO WHEN THEY FEEL THAT POLICE IS NOT REGISTERING THEIR FIR

To avoid so much waste of time, police may not register your FIR. They may call other side and ask them   to talk with you and to wind up the whole matter. Or he may take copy of your complaint, and give a letter-inward number for your satisfaction.

This has practically no meaning.

To be fair to Police, it is required to be stated that police is not required to register a FIR whenever people give all sort of complaint against anybody. It is possible that Police may not register your complaint if what you have said in complaint does not look like an offence.

WHAT PEOPLE WILL DO NOW!

First, People wait for some time.

Then, they will wonder whether their complaint is not being registered because accused is a big person and he has given some money to police for not registering FIR!

Then they will go to a lawyer. Lawyer may say, "It is duty of police to register FIR. Let us go to High Court.
They  will file an Art.226, petition in High Court seeking direction against Police to Register FIR.

High Court may say,"No doubt we have power to direct police to register FIR. But we use this power sparing. You have got an alternative remedy. You go to Court and file your complaint in Court. Court will direct police to investigate and report back."

Fair enough. You will return from High Court empty handed and will now come to trial court. Your complaint will be registered. Court may direct Police  to investigate and give report or Court itself may make an inquiry.

Then you will be lost in crowd. Because all courts are heavily crowded. You may not get even a place to sit in Courts.

LET US GO NO FURTHER.

What happens to you thereafter is not within scope of this article. Here, we are concerned with questions:

1) Why police did not register your FIR in the first place?
2) Why though it was his duty, police did not register FIR? Was some bribe an issue here? Or was it because accused was a big politician?
3) What else you could have you done?


NO ANSWER.

The Article ends with no answer. I have no answer to your 1) and 2) questions.

Regarding third question, I have given following advice to some clients. Sometimes it has worked and sometimes it has not worked.

I told my client like this:

Instead of going to police station, first you go to Post & Telegram Office..
From there you sent a long and urgent telegram to your police station.
The Telegram should contain following details:

1/ Your First and Last Name, Your Age, Your Gender, Your address.
2/ Date and time when the incident happened with you. Approximate distance from police station to place where incident happened.
3/ Names and addresses of persons who committed crime. If you do not know their names, say that you do not know their names.
4/ Then describe how the crime was committed. Who did what, why, where, how, when etc.
5/ Then say that since you are in hurry to go somewhere you are sending this telegram and say that you will come to police station in about two hours.
6/ Then after taking breakfast, after some time, you go to police station to lodge FIR,

Police will ask you "What was necessity to send this? What is written in this telegram?
I don't understand at all."

Very well. Then explain him what has happened.

Some clients said that they were happy with police action. Some client said that telegram was returned back to them with endorsement that "There is no such Police Station. Address incomplete".

******
Since I have put disclaimer in the beginning of this article I have nothing further to say except that take legal advice by engaging a lawyer and act as per his advice.

Regarding What to do when a False FIR is filed against you, I need a break. I will write about it in a couple of days.-------(Continued)


Haresh Raichura

Is Everything OK With Our Supreme Court of India Judges And High Court Judges?

I don't think that everything is OK with our Supreme Court and High Court Judges.

They discuss their problems in their Judges meetings and in annual meeting of Chief Justices of all High Courts of India.

But they have no voice. They cannot come out on public forums and say what is hurting them most.

At the most, they convey their concerns to Law Minister or to Attorney General. They are trained to believe that whatever a Judge has to say, he can say only through Judgement. They follow some kind of High Standards and Discipline.

I am not holding any brief on behalf of Judges. But I am pained to see that a section of society, is continuously hitting out veiled attacks at Judiciary.

I think this issue concerns us all because we all want a strong judiciary and only a strong judiciary can protect us. We have to understand how attempts are being made to weaken judiciary.

1.

Providing Not enough funds in Budgets for Judiciary.

The number of population and litigation are increasing in leaps and bounds. No corresponding increase in number of Judges or Courts.

The position of litigants in courts is worse than position of patients in Hospital.

2.

As per my knowledge, No one from Government consults about financial requirement of Judiciary before fixing budget of Judiciary.

3.

As per my knowledge, Last year, we read in Newspapers that Chief Justice of India asked an appointment to meet our Prime Minister to discuss financial needs of Judiciary.

He was given appointment with a cabinet secretary. So Sad, if I am correct!

4.

No increase in Retirement Age of Judges.

Instead of increasing retirement age of judges in view of increase in life expectancy of people,the Government has created large number of posts where retired Judges of SC and HC can be appointed.

Idea is simple. Judges who do not pass adverse orders against Governments, and those who are in good books of ministers, are the only one who are considered fit for such posts.

If my perception is right, this is not good for independence of Judiciary.

5

After retirement, judges cannot practice in courts. But they can take Arbitration works.

The Public Sector Undertakings, will refuse to give arbitration work to Judges who are not in good books of Ministers.

There are many other issues which we should understand about problems of Supreme Court and High Court Judges. But right now I conclude this post as it 1.45 PM.

I only wish to convey you that those who are leveling wild allegations against Judiciary should be looked at with a little difference.

Most of them have some kind of private agenda in defaming Judiciary.

Haresh Raichura

The Judge And The Sparrow

THE JUDGE AND THE SPARROW ​

‘Are We Left With No Standards?’
Judge asked counsel
Hearing a matter of national importance.

The counsel looked at one another
Then looked at clients
Then looked to the ground
To search for an answer
Which was not there!

In the evening when sky grew darker
TV and Media flashed the question
Across the sky and puzzled the nation.

In the morning when Sun rose again
Millions opened newspapers
And searched their souls
To look for an answer.  
They asked themselves:

‘What are our standards?’
‘Where are they?’
‘Which are they?’

Days and months passed
Judge looked sad
His question no one answered!

Perhaps he asked too big a question
The judge mused.

Just then a little sparrow Came from nowhere
And answered his question!

‘Sir, we do have standards!
Our judges and lawyers Are of very high standard!
Unparalleled in the world!’  

‘They are our standards.’
‘They are our last hopes
To live in a nation
Which has misplaced its standards.’
Said the little sparrow.  

(From book, Tomato Soup For Judges And Lawyers)
Inspired by overhearing a court question
asked by then Chief Justice of India Justice S.P.Bharucha

How to Criticize Supreme Court and High Court Judges by Forming a NGO

(This is a purely imaginary literary work not intended to offend any judge,lawyer, litigant or any one else) 


In the Mountains of Tibet

A younger lama said to an elder Lama,

“ I want to set up a NGO

to criticize Judges of Supreme Court and High Courts”

Younger Lama expressed a desire

“Not a bad idea”

Elder Lama said and asked,

“Who will fund your NGO?”

“There are 1000 Judge- Hunting-Clubs in India

They all will provide me with funds.

There are 1000 politicians

Who are unable to get bails,

They will donate me generous funds

There are 1000 businessmen in India

Who want to control Supreme Court and High Court Judges.

They will sponsor advertisements of my NGO

There are 1000 ministers in Government

Who want to divide Supreme Court

By hook or by crook

They all will provide Funds and State Patronage 
And TV Coverage to my NGO”

Younger Lama explained his well thought out secret plan.

(2)

Elder Lama asked,

“And who will come forward to save you

if these judges decide to fix you up

and to shut up you?”

“Chief Justice of India will help me out.

We used to study together in nursery school”

Younger Lama explained.

“And who will help you

If these judges decide to physically beat you up

when CJI may have gone abroad?”

Elder Lama pointed out a sublime risk factor.

“That could be a serious problem! I never thought about that”

Younger Lama admitted

3)

After half an hour,

Elder Lama suggested an alternative plan,

“Why don’t you set up an NGO

to criticize those who attack Judiciary?”

“Not a bad idea!

Younger Lama said and asked,

“And who will fund my NGO?”

Elder Lama replied,
“It will be unethical for sitting judges

to fund your NGO. But some retired judges

May give you few hundred rupees to cover your stationary expanses”

Younger Lama asked again,

“And who will save me

if 1000 judge-hunting –clubs in India,

1000 politicians, and 1000 businessmen,

and 1000 ministers decide to beat me up
for defending judiciary?”

Elder Lama replied,

“Your friend Chief Justice of India will help you out.

You said that he and you used to study together in nursery school"

“True.  But now he has become a big man.

He may refuse to remember anyone who may be studying with him

in a nursery school”

Younger Lama posed a realistic difficulty

“That could be a serious problem!

I never thought about that”

Elder Lama admitted

For one hour none of them said anything

And they kept sitting silently

Then Elder Lama asked
“So what did you finally decide?”

Younger Lama replied,
“If my heart becomes my Sun with light of knowledge,

Then I would not have to look at others for light.

And if I do not look at others for light,

Then I will not have any need to criticize anyone.


So I think best idea for me is not to set up any NGO.”

Younger Lama concluded.

(From Book, Tomato Soup for Judges and Lawyers- By Haresh Raichura)

                

Are Debt-Enforcement Laws of India, worse than Chinese Laws?

Yesterday, I wrote, Is the Law of land to Send you in Jail for Dishonour of a Cheque is a Constitutionally Valid Law? Why I said No.

Today I am moving further and trying to convince you that Debt-Enforcement Laws of India are worse than Chinese laws

Yesterday I looked for any Supreme Court Judgement which says that Sec.138 of Negotiable Instrument Act is valid. I found none.

So the fact remains that till today Supreme Court has not spoken about validity of Sec.138. It is this draconian provision under which we can be jailed for TWO years if Our Cheque is dishonoured and a fine of the double the amount of Cheque is slapped on us.

Why such a stringent Act is passed by Parliament on us? Is this law good for people? Or is this law passed at instance of multinational banks who wanted to explore credit sector of 1.2 billion country?

WHAT HAPPENED IN CHINA FEW DAYS AGO

Three Indian business who were not able to pay their dues to a Chinese firm. They were detained in illegal custody. They called from their mobile to TIMES NOW, NDTV and other TV channels. A CRY OUT was  made by media against government. The diplomat who went to help these people in China died of diabetes complications. After much noise, the businessmen were released in about a week.

And what happens in India? If you are unable to pay your debt and if your Cheque is bounced, you can be detained in jail upto two years.

The difference between above two example is this: In china, the businessmen were illegally detained for a week. In India, they can be legally detained for two years!

WHY WE ARE SUFFERING SO MANY UNCONSTITUTIONAL LAWS?

Constitution Art.13, gives our court powers to strike down laws.

Earlier, a system was in place that if you are challenging a Parliament Law, you can challenge it in only Supreme Court. And if you are challenging a State made Law, you have to challenge it in High Court of that State only.

Then this practice was changed. Now a Parliament Law can be challenged in every High Court. High Courts takes about 10 years to say whether the Act is legally valid law or not. Cases are filed in every High Courts challenging same Act, and every High Court expresses its own different views in about 10 years.

By that time, if sufferers of This Act are poor, they lose steam to take up this matter to Supreme Court. And thus, though a Parliament may pass a Constitutionally invalid law, it remains in operation for many years.

In this Case, Sec.138 of Negotiable Instrument Act is in force since 24 Years.

36 cases are checked by me passed by different High Courts regarding validity of this 138 Sec. I am not satisfied about legally correctness of these judgments. Since the parties might be poor and debt-ridden, they may not have means to approach Supreme Court. In any case, I have not come across any judgement of Supreme Court which says that such debt-enforcement laws are constitutionally valid and are permissible in our Constitution.

WHY PARLIAMENT WILL PASS SUCH UNCONSTITUTIONAL LAW?

We don't have to look far. Many of you may have seen on TV debate on Lokpal Bill. Opposition Parties said that the Bill is Unconstitutional and therefore it should not be passed.

Whereas Government Minister said, "Our job is only to pass laws.If it is unconstitutional, court will decide. It is not for us to check whether it is constitutionally valid or not"

And it take 10 to 20 years for courts to declare a Parliament Made Law illegal.

Few month ago, in T.K.Plantation Case, Supreme Court said that a particular law which deprived a man of his property without any payment, was not Constitutionally valid.

It took 25 Years to High Court and Supreme Court to declare that this law was in violation of Constitution.The parties who fought the case were already dead and forgotten!

WHAT IS THE WAY FORWARD?

We have to challenge Sec.138 of Negotiable Instrument law in Supreme Court and to see what it says about Sec.138 of Negotiable Instrument Act.

I am not a very big lawyer or a Constitutional Expert Lawyers. I have still not got any chance to argue a constitutional matter in Supreme Court.

But if you tweeples will keep me encouraged, I will certainly try.

In next blog, I will write about what I propose to Argue in Supreme Court about unconstitutionality of this law.

In next blog, I will try to formulate what may appeal to Supreme Court to examine this law.

Is the Law to Send a person in Jail for Dishonour of Cheque is Constitutionally Valid Law? Why I say No.

This is supposed to be either a very brilliant article, or it is supposed to be Trash written by some "Out of his mind" writer.

Why?. Because since 1988 this law is applied in India. If your check is dishounoured, you havt to go in jail and be fined double the amount of checks. Lakhs of cases are filed. Courts are clogged with such cases. Even Chief Justice of India said that huge load of such cases are clogging courts so much that they are unable to decide other cases.

Now, suddenly, this morning I have woke up with the idea that the whole law is unconstitutional. Provisions should be struck down. Lakhs of cases pending in courts should be quashed.

Great ! I will be hero in legal world if I can prove what I say. And I will be a big Zero if I am proved wrong.

First thing I checked is , has the validity of this law checked by Supreme Court? Because in our Constitution, Law is not what Parliament says. Law is what Supreme Court says! So if the Supreme Court has said that this law is constitutionally valid, then I don't need to think further and you don't need to read further.

I have a 45Rs. book on the subject. It does not say that validity of this law has ever been challenged in Supreme Court in last 24 Years!!!Good ! This in encouraging! It says a lot about our Lawyers!

Why no one ever came to Supreme Court to challenge validity of this law to Supreme Court? I asked myself a second question. I must be mistaken somewhere!

But then the answer came. The victims of this law are people who have run out of their money and they are unable to pay fees of our Constitutional Expert Lawyers to challenge validity of this law.

Very right reason. We are busy lawyers. We charge per minute of our time. If no one pays our charges, how can a lawyer spend his valuable time on this issue! It is immaterial in this world to bother about lakhs of people who may be in jail because of an unconstitutional law.

For reason which God may be knowing, today I am charged with this issue. And if my other works permit me, by the evening or by tomorrow morning, I will tell you why I think that this law is unconstitutional and why Supreme Court may struck down this law if its constitutionality is challenged, and why people who are in jail must be freed immediately. Lakhs of pending cases in this matter must be thrown out of courts. Courts will become free from unnecessary burden of these Case.

Right now two clients are waiting i my office. So I leave. But if any of you is lawyer who have come across any judgement which says that SC has upheld validity of this law, then please tweet me at @hareshraichura.

(Continued)

HORROR - How innocent person can be sent to jail by Police

The purpose of this article is to show shortcomings of our legal system because of which even a person as innocent as you can be sent to jail due to fabrication of evidences.

To make my point very clear and real, I will give an imaginary example to show how YOU also can be sent to jail if evidences are fabricated and your lawyer is unable to beat maze of laws.

I do not want to scare you unduly. Our system is fine and works well barring some exceptional cases.

But we must be aware about shortcomings in our system. Several Police reforms are suggested by Supreme Court, but they are not seeing light of day, because there is no demand from public for immediate police reforms. No political parties have promised police reforms. I wonder why.

1

NO SECRET

It is now no more any secret that innocent people can be jailed by fabricating evidence. Recently, news reports came that a person who was supposed to have been murdered many years ago surfaced. And on charge of his murder, three innocent persons were in Jail SINCE 10 YEARS.

Supreme Court immediately took notice and released these persons.

So there is nothing surprising about what I am writing.

2.

In place of Convicted person, some other paid employee in jail.

Such news also have surfaced that some rich man was convicted. Some switch over was made and in his place an innocent person was willing to spend time in jail. Of course, salary was being regularly sent his family.

3.

Caged by a False Dying Declaration.

As a lawyers, we have come across cases where wife and husband relations become so strained that wife decides that she will commit suicide but will see that whole family of husband goes to jail. She burns herself and gives dying declaration giving names of all members of in laws family.

On basis of Dying Declaration, police arrests them, courts send them to Life Imprisonment. High Court on appeal, acquits some and confirms conviction of some. Then those who are still in jail, come to Supreme Court.

The first question which Supreme Court asks us is ,"Tell us and argue why this dying declaration given before a Magistrate should not be believed?" If we fail to answer convincingly, our client remains in jail.

4.

Let Us Examine The System

Let us take an imaginary example of You. You have never committed any crime in your dreams also.
Can this existing system harm you? How can they do it?

This is only an academic discussion. No intention to scare you. Intention is just to make you aware about need for earliest police reforms.

Let us start a story about You.

If some rich enemy of you, decides to send you in jail, he will have to first consult police investigating officer of your area or his higher officer.

Then without your knowledge, your phone will be tapped. It is necessary to catch you alone. One Sunday morning, you decides to go alone in your office and clear some pending matters.

Suddenly door opens and police comes and arrests you for murder of someone. You will be taken to police station where you will be asked to change your clothes and give clothes you were wearing.

You are shocked.Your family is shocked. They contact a lawyer. He gets copy of FIR or compliant from police.

Complaint says that there were two brothers who had came from Porbandar to your office and had asked you to return Rs.5000/- loan which they had given. You refused and got angry and killed one of them. His brother rushed to police station  and you were arrested.

You will tell your lawyer that you do not know these person. You were just doing some pending work.

Lawyer will  move bail application but police will oppose, saying that weapon of murder is yet to recover and investigation is yet going on.

The Court will reject bail application.

Next Sunday, police will take you and some two witnesses, to compound of your office. Being a Sunday, no one else will be there in compound of your office. Police will dig somewhere and surprisingly, a knife will be found. You will be taken back to custody.

After some days, chargesheet will be given to you. And thereafter sometime trial will begin.

Prosecution will first examine brother of deceased who will say that you killed his brother. There will be other witnesses who will say that they saw two brother entering in your office.

Other two witnesses will say that police called them at police station and asked them to witness recovery of weapon. In their presence, you told police that you were willing to show where murder weapon is hidden.

Then all of you went to compound of your office and you pointed out a place where you had hidden knife.. On digging at that place, a knife was recovered.

Chemical Examiner will say that blood group of deceased and blood group of stains on your clothes and blood group on knife matches.

A hawker will come in witness box and will say that you purchased this knife from him a week ago.

At the end of trial, Judge will ask you,"What have you to say ?"

You will say ,"All the witnesses are lying. You do not know any one from Porbandar except one Mohan"

Judge will say, " Do you want to examine any evidence in support of your defense? Do you want to examine this Mohan or anyone else who can prove you innocent?"

You will say, "Sir, how can I examine Mohandas Karamchand Gandhi? He was born in Porbandar but then he was shot dead and he become Mahatma Gandhi. I remember him on every 2nd October. But he won't come to give evidence in my favour."

Judge will close the case. Hear arguments of lawyers.

Your lawyer will point out why these witnesses should not be believed. He will also argue that motive of murder for Rs.5000 loan is unbelievable and not proved.

The Judge will say that in our system motive is not required to be proved. It is only to be seen whether there are enough evidence to believe that your client has committed crime without any doubt.

 The Judge will sentence you for life imprisonment on basis of evidence came on record.


5

Answering Your One Question

The first question which may come to your mind is, "From where police can get so many persons to lie against me?"

Here is the answer. There are many small time offenders and criminals. Police catch them and then let them go if they give promise to be police witness in any case and to depose whatever police says. The police has always such witnesses ready.

The dead body may be of some beggar.

6.

Exception proves the Rule but it is not the  Rule itself.

Let us put things in proper prospective. Such fabrication may be in some cases but by and large we have good police officers and they do very good investigations. We have honest public prosecutors who don't prosecute false cases. Our system is safe for you and me and it works very well.

7.

FIVE Weaknesses in the System

A. States are refusing to implement police Reforms though asked repeatedly by Supreme Court.

B. Weakness of Defense Lawyers in not taking aid of private detective agencies to collect evidence for defense.

C. Lack of Public Awareness and lack of public demand for Police Reforms.

D. There are enough provisions in Law for filing complaint of malicious prosecution against police, and to take out perjury proceedings against lying witnesses and complainants.

But they are only in books. Time limit to file such counter complaint is one year from the date a false case is filed against you. Such counter cases should be filed immediately... without any delay. But few lawyers give such advice. I don't know why they don't give such advice.

E. People have a mind set that Judges should do everything. Judges are not Gods. It is a wrong mind set that they should do everything..

Lawyers, Prosecutors, Activists and also you, all have duty to ask for reforms and to do their bits about it.

Haresh Raichura
21/2/2012

DISCLAIMER:Nothing stated herein is legal advice. There is no intention to defame any police or judicial system. The only intention is academic discussion for debate and public awareness. Nothing stated herein should be taken an authentic or representative view of the system.

Law to seek damages from Government Hospitals for negligence in free treatments

Law to seek damages against Government Hospitals under Law of Tort is not much used by in India because few lawyers have tried to study this subject to specialize in filing Damage Suits under law of Tort.

The Law of damages, known as law of torts, can be explained in few lines like this,

"If anybody does you any wrong whatsoever,
you can knock the doors of Court and Court will award you damages
from whosoever may have wronged to you,"

"Whosoever" includes all government departments, all government hospitals, all municipal bodies, all government public secotor bodies etc.etc.

It does not matter whether Government Hospital is giving you free services or whether it is charging some fee.

If you do not get water for one day from municipal body, you can ask for damages under Law of Tort.

If you fall in pit left open by Jal Board, you can file suit for damages against Jal Board and MCD.

If you feel that Government Hospital has not treated you or your relative properly, you can file a suit for damages against Government Hospital.

The Charity Hospitals who may be providing free treatments to people, are also liable for damages under law of Tort.

Recently, this law has been re-examined by the Legendary Justice Markendey Katju in a 05-05-2008 (2008) Volume 9 SCC Page 527 headnote C ) judgement, where he examined all earlier leading Indian and Foreign cases under Law of Tort and clarified that in India, Suits under Law of Tort can be filed against even Governmental and Statutory bodies who may be providing free service. The judgement gives several such examples.

Supreme Court has now armed people with power to file suit for damages against all Government and Statutory bodies.

Whenever you feel that against any public body has done you wrong, though it had a duty to care, you can take legal advise to consider suit for filing damages under Law of Torts.

Disclaimer: This is not supposed to be a legal advice. If you do anything whatsoever on basis of whatever said above, you do it at your own risk and you are responsible. I am not Liable under Law of Tort or for any other law if you do anything on basis of this academic article.

What is Criminal Law? What we lawyers and judges do in the Court-rooms?

What is Criminal Law? What we lawyers and judges do in the Court-rooms? Why even a person who has committed crime in front of TV Cameras, can still be acquitted in a court of law?

Most of the people, journalists,TV anchors (Including Justice Arnab), Activist, Thinkers, probably, do not understand process of a court of law. I will try to demystify the whole process of law in just two lines.

These two lines are found in Shakespeare's Hamlet,

                      Polonious:     " What do you read, my Lord?"

                      Hamlet :         " Words, Words, Words."

This is what lawyers and judges do in court and at home. Whatever may have happened, first Police reduces it into pages full of words. Then witnesses come in court. Whatever they have to say, is reproduced in pages full of words. Then from this pool of words, prosecutor throws some words on a platter, by way of his arguments. Then, defense lawyer picks up some words from the pool and throws on a a platter, by way of defense argument. Then Judge picks up some words from the pool and also from the platter, and then he compares with words printed in law books. If the words are matching, the accused is sent to jail.If the words do not match, the accused is acquitted.

This is as simple as a crossword game. Judge or Lawyer do not go by what is shown on TV or Printed media. Media does sometime build pressure on judiciary. But there is nothing like Media Trial. Everything goes strictly by the words contained in compilation of any case.

Haresh Raichura
20/02/2012

How one can criticize Judiciary, Supreme Court, High Courts without showing Contempt to Courts

If you are reading this blog, it means that somewhere in your heart there is a desire to say something about, Judiciary, Supreme Court and High Court.

But you refrain to do so because of fear of Contempt of Court Proceedings against you.

In fact, we have become a Republic of Banana, because we have lost art of criticizing our Institutions without offending them.

Judges often say in meetings with advocates, "Please, Criticize us wherever we are doing something which we should not do. In fact we want to know from you." But even many Seniors Advocates do not know how to criticize Judiciary without committing contempt.

Some Senior Advocates are in very advance age. They often speak contemptuous words in Court Room in front of judges. And they dare Judges to initiate Contempt Proceedings against them. Judge however lets them go because of their old age.

And after coming out from court room, they brag to other advocates about how brave they are! I feel sorry for such advocates.

FOR WHOM THIS ARTICLE IS?

This is for you. Let us forget advocates. You may be a journalist, or a public spirited citizen, or you may be a TV anchor, or a tweeter or Facebook user, or a law student, or you may be a litigant who wants to say something "Not Nice" about judiciary.

Let us see how you can criticize judiciary without falling in Pitfall of Contempt of Court Act.

WHO SHOULD NOT CRITICIZE JUDICIARY AT ALL

1)          If you are a litigant in any pending, disposed or about to be filed case, than, please never, never criticize judiciary or any judge. Whatever you may say be considered as an attempt to influence a judge about a case, and will be clearly a contempt of court. It is another thing that looking at your all over condition, the judge may not take contempt proceeding against you. But whatever you say on internet or on print media may be treated as contempt.

I remember a case in Supreme Court being heard by the then Supreme Court Judge Santosh Hegde.
Some film producer had lifted a theme from an author's book. He did not want to give credit or royalty to the author. The author was suing the film producer.

Two days before hearing was to take place, Leading English newspapers carried two page full discussion on various laws and cases laws on the subject. It was an obvious attempt to influence mind of Supreme Court judges.

As soon as the case was called out, Justice Santosh Hegde, a very upright judge, took a very strong exception to pre-hearing publicity stunt by the lawyers. The articles contained detailed discussion of law. Not possible without active guidance of lawyers. It was an obvious contempt of court.

Recently, a Supreme Court Judge, dismissed a PIL filed by an advocate about midnight lathicharge on Baba Ramdev Rally , only on the ground that the advocate had  given wide publicity to petition even before the matter was heard.

The moral is do nothing to influence mind of judges anyway if you are likely to have a case in court.

2)          Second, If you are a law student or a junior advocate who have just joined Bar, please avoid criticizing judiciary. Allow at least seven years experiences to pass before you say something. Because academic knowledge is different thing. How to apply law and to do justice in this period tremendous stress is a tough task. Judges and lawyers have to go by ,"What is possible to do" rather than "What should be done."  Better for you to wait for some years, before trying to judge, Judges and Lawyers.

FIRST PRINCIPLE OF CRITICIZING ANYONE

The first principle I always apply is from GITA. It says, "He who does not displease anyone, nor is displeased by anyone is dear to Me"

I always remember this principle when I want to criticize anyone. It is a very tough task. You have to search for right words to say right thing. But this takes out toxic venom from you mind and also reduces anger.

Let me give a simple example which makes out this point.

If you say to your mother, "Hi, Mother, or Hi Mom". It must be OK. No contempt.

But if you call mother as. "Hi, my father's wife!" It must be contempt.

CONTEMPT IS LESS ABOUT WHAT YOU SAY,
AND MORE ABOUT HOW YOU SAY.

In my view, truth is no defense in Contempt Proceeding. You may be perfectly right in what you are saying about the Judge or the Judiciary. But still you are guilty of contempt if you do not say it in a right and non-offensive way.

What is this non-offensive way to say a Bitter Truth? You may ask.

I cannot define it. No one can define it. You have to judge for yourself whether what you are going to say is likely to offend anyone or not.

PERSONAL ATTACKS ON CONCERNED JUDGE CANNOT BE DONE.

Why not! You will instantly ask.
When you have evidence that a particular judge is corrupt, why you cannot expose him?

These are the questions over which  since since last five hundred years, lawyers and judges of all times have pondered seriously. And a view has been taken by wisdom of all years, that such thing should not be done, because a collateral damage is reputation  of judiciary which will be so high that the people will loose faith in Judicial system and it will collapse.

This a time tested-wisdom-based conclusion that if you see a corrupt judge, find some legal and permissible way to do it without damaging reputation of entire judiciary. You can initiate legal action if so advised, but to publish your allegation on platforms which are not within legal frame work, is not desirable.

Recently, a high dignitary of Judicial System said publicly, "Do not destroy old structure until you find a better structure".

Our strong Judiciary is our oxygen to live under a very stressful government system. This supply of oxygen should not be punctured.

In next part I will try to give examples of right methods of criticizing judiciary and judges.
I will need to give exact cases of how certain methods of criticizing judges or judiciary is held to be permissible.

I will also need to give case law, that even a litigant or an advocate can start contempt proceedings against the Judge if Judge uses abusive language in court.

I need sometime to compile authentic law.

Continued-----

DISCLAIMER: This is my personal view. This is not a legal advice. This article is for academic and Education purpose. If you do anything on basis of this, you are solely responsible for your action.I am not responsible if you suffer any damages on basis this article.

Business of Filing False Civil and Criminal Cases in India

The tile of this blog is somewhat unbelievable. Do I mean to say that some people in India are actually earning their income by filing false civil and criminal cases on innocent people ? My is answer is Yes.

The next question will come to your mind, If some one files a false civil or criminal case, can you not go to Higher Courts and Supreme Court to set aside such false case? My answer is "It will not help".

Then, can you not go to Government authorities and ask them take action against person who has filed false cases against you? The answer is again No. They cannot interfere with a sub-judice matter.

Then what are your options? As I see it, the only option you have is to go to a nearby friendly lawyer and engage him, and contest the suit or complaint on merit. And it will take many many year. You are stuck up in a system even if you may have done nothing wrong.

Unbelievable, isn't it?

But at the end of this article, if you agree with me, I think is your duty also to see if there is anything which you can do to  improve this system.

FOUR INCIDENTS WHICH INDICATE THAT SOMETHING IS WRONG

One.

In 1982, when I had just joined District Court Bar at Junagadh, in Gujarat, I saw a litigant who was daily coming to court. We met. Over a cup of tea, I asked him what he was doing for his living?

He said, every year he files one or two false cases on someone's property and he will obtain stay preventing him to do construction.

He said,  "I will file some false deeds to claim my ownership. Other side will file appeal to higher courts. Higher Courts will dismiss his appeal on two grounds. First, Higher Courts normally cannot interfere in interim orders. Second, whether documents produced by me are false or not can only be seen after evidence and trial has gone. It will take years."

One day, the innocent person will offer him money for withdrawing case.
He will take money, will withdraw case and the stay will be vacated and the innocent man will become free.

This is how he used to earn his living.

Two.

In 1989, when I have just shifted to Supreme Court, some one called me from Gujarat.

He said that he has heard that a False Rape cases can be filed in Delhi and Jammu against any person living anywhere in India. He said that he has heard that "Hired Complainant" and "Hired Witnesses" are also available at these places.

He said that he wanted to file a Rape Case against a person in Gujarat who is not paying him his due money. He said that he also wanted a non-bailable warrant against this person in Gujarat.

I replied that I do not do this type of cases and disconnected his phone. Thereafter he never called.

Three.

Two persons were living in Canada. They had some money dispute. Though they both lived in Canada,
a criminal case was filed in Delhi Court purported to have been signed by one of them and summonses were served to other person in Canada.

The other person who was innocent, contacted me and engaged me.

I said this is a serious matter. Even if the complaint is false, we may not get much relief from court at this stage. I asked him to write 700 letters to all members of Parliament of India and Prime Minister and Law Minister about how false cases in India are filed against Indian living aboard.

He followed my advice and posted all the letters by Registered Post from Canada. Consider the postal expanses he may have incurred. No one replied. After some time a letter came from Law Ministry which was nothing more than a mere acknowledgement of his letter.

It was understandable. Our Judiciary is independent. Neither Prime Minister, Nor Law Minister, Nor any Member of Parliament can interfere in a pending case, even if it may be pending in the Magistrate Court.

Then I moved High Court and Supreme Court to quash the complaint and to stay the trial. I failed at both places.

Because present law says that, "A criminal complaint containing serious allegation cannot be quashed at threshold without trial. The remedy for accused (Even if he may be innocent) is to first appear before Trial Court Judge, furnish bail bonds, and then move any application for dismissal of case. Then if there is no material  allegation, innocent accused may be freed, but if allegations are such that trial must proceed, then trial will go on.

My Client in Canada felt that the laws in India are horrible and Government offices are deaf. He did not want to come even once to India to appear before Magistrate and to obtain bail and to face trial.

We were at dead end. If he doesn't appear, Non-bailable warrant, Declaration of Absconder and Attachment of his property in India were bound to happen.

And just then, there was an happy end.

My client parted with some ransom- money, and other side advocate withdrew case.
The innocent man was freed from a false criminal case.

As an advocate, I failed in this case, but my client said that I have done my best. Even today he calls me every New Year Day

Four

This is final point. This must convince you without any doubt that something is wrong with the our Laws.
Some years ago, two journalists in Dahod, Gujarat, decided to draw attention of Country towards false criminal cases being filed in criminal courts.

To prove their ponit, they filed  afalse Criminal Case in Dahod Court.

Soon, Non Bailable Warrants were issued against the Then Chief Justice of India, One other Sitting Judge of Supreme Court, and against one Sitting Judge of Bombay High Court.

As the news of warrants against judges poured in  TV and Print Media, the Supreme Court swung into action. The warrants were stayed, Trial Court Judge suspended, inquiry ordered against Journalists who filed false complaint, the complaint was quashed, some guidelines were issued for identification of complainant,
and then everything was forgotten.

The system goes on as usual. The night moves on.

Now, here comes the End of this Article.

I do not claim to be a well informed lawyer or a jurist. But as per my little knowledge, neither the Government nor Higher Judiciary have specifically addressed the issue of "How to Prevent Business of Filing False Civil and Criminal Cases against innocent citizens". I also don't know how can they address this issue. I accept the life as it is.

I dedicate this article to two unknown Journalists of Dohod Village, who first made this point clear by obtaining Non-Bailable Warrants against the then Chief Justice of India. Their method was unacceptable, but they did make a point.

Haresh Raichura
18/2/2012
(You can also Read March 2012 Post: India what you can do if a flase FIR or a False Case is Filed Against You)

No Need for Citizen Charter. You can seek damages from Govt. for delay in providing services.

Citizen Charter is an Utopian Idea which is almost impossible to implement. This idea is propagated by Popularists..

Perhaps, CITIZEN CHARTER is not necessary. What is really necessary is a friendly lawyer who can file suit for you for damages against any Government :Statutory or Municipal Body under Law of Torts, for any delay or negligence in providing you public services. Once the suit is filed, Court will take over from there and in addition may award you exemplary damages also so that concerned Government servant or Department does not delay and does not become negligent in other matters of other citizens also.

Law of Tort is not much ploughed by judiciaryi in India because few lawyers have tried to study this subject to specialize in filing Damage Suits under law of Tort.

The Law can be explained in one line like this, "If anybody does you any wrong whatsoever, you can knock the doors of Court and Court will award you damages from whosoever may have wronged to you,"

"Whosoever" includes all government departments, all government hospitals, all municipal bodies, all government public secotor bodies etc.

It does not matter whether Government body is giving free services or whether it is charging some fee. If you do not get water for one day from municipal body, you can ask for damages under Law of Tort. If you feel that Government Hospital has not treated you or your relative properly, you can file a suit for damages against Government Hospital. The Charity Hospitals who may be providing free treatments to people, are also liable for damages under law of Tort.

Recently, this law has been re-examined by the Legendary Jstice Markendey Katju in a 2008 judgement, where he examined all earlier leading Indian and Foreign cases under Law of Tort and clarified that in India, Suits under Law of Tort can be filed against even Governmental and Statutory bodies who may be providing free services.

So in my view, CITiZEN CHARTER is an Utopian idea which is impossible to be implemented. There is no need for Citizen Charter when Supreme Court has armed people with power to file suit for damages against all Government and Statutory bodies.

Whenever you feel very very angry against any Government Department, all you need to do is to find a friendly lawyer who may have some expertise in Law of Tort. He will advise you what to do..

Disclaimer: This is not supposed to be a legal advice. If you do anything whatsoever on basis of whatever said above, you do it at your own risk and you are responsible. I am not Liable under Law of Tort or for any other law if you do anything on basis of this academic article.

Two Lama Discuss Three Step Formula followed by most SupremeCourt Judges for dciding admission hearing cases

In the Mountains of Tibet

Two Lama discuss Three Step Formula

Mostly followed by Supreme Court Judges

While admitting a matter

Younger Lama asked Elder Lama

“Tell me about method of deciding cases

By Supreme Court Judges."

Elder Lama replied,
“Most Judges decide cases
By adopting a Three Step Formula

1) What type of orders I have recently passed
In such type of matters?

2) What order I am expected to pass
By my peers?

3) What will be the consequences of my order
To the parties?”

If there is a positive answer to all three questions,

Chances of matter being admitted by SC are high."

Elder Lama explained the method.

Two Lama discuss virtues of 2G Judge, Justice A.K. Ganguly, Former Supreme Court Judge

An imaginary piece
Inspired by
Hon’ble Mr. Justice A.K.Ganguly

In the mountain of Tibet

Elder Lama explained to Younger Lama
About Power of Metaphors
And explained that
Metaphors can capture
A sea of information
just in few words.

Younger Lama asked,
Which are the Metaphors
Which can describe Justice A.K. Ganguly?

Elder Lama replied,
He is an iceberg, a catalyst and a farmer.

An Iceberg, because whatever is visible about him
Is just a tip of an iceberg.
His simplicity hides depth of his knowledge.

A Catalyst, because in his presence,
Things began to move on their own,
Even persons who may be hostile to each other,
May start talking amicably in his presence.

A Farmer, because he believes in sowing seeds
For future generations.

Many of his judgments and orders
Are seeds which are sown.

Only after some years,
People will be able to see trees
At places where he has sown seeds.”

(2)

Younger Lama asked again,
“Tell me why he was leaning towards
Junior advocates?
It looked as if he was trying to teach them?”

Elder Lama relied,
“All human beings have an instinct
Called Instinct of Legacy.

When a Supreme Court Judge is retiring,
He is retiring from a summit.

The knowledge which he has accumulated so far,
Is going to be of little use hereafter.

He looks around to see
Where he can leave his Legacy.

Junior Advocates are his first choice.

Because they are
The Future Supreme Court of India.”
Elder Lama explained.


Haresh Raichura
Advocate on Record
Supreme Court