Guidelines to be kept in mind while filing a Public Interest Litigation or writ in High Court or Supreme Court

Time to time, Supreme Court as well as various High Courts have summarized Guidelines for filing public interest litigation, petitions.

In one judgement of Hon'ble Gujarat High Court, these guidelines are summarized as under:

The Courts may ordinarily allow PIL if :-

i. That the impugned action is violative of any of the rights enshrined in Part III of the Constitution of India and relief is sought for its enforcement;

ii. That the action complained of is palpably illegal or mala fide and affects the group of persons who are not in a position to protect their own interest on account of poverty, incapacity or ignorance;

iii. That the person or a group of persons were approaching the Court in public interest for redressal of public injury arising from the breach of public duty or from violation of some provision of the Constitutional law;

iv. That such person or group of persons is not a busybody of meddlesome interloper and have not approached with mala fide intention of vindicating their personal vengeance or grievance;

v. That the process of public interest litigation was not being abused by politicians or other busybodies for political or unrelated objective. Every default on the part of the State or Public Authority being not justiciable in such litigation;

vi. That the litigation initiated in public interest was such that if not remedied or prevented would weaken the faith of the common man in the institution of the judiciary and the democratic set up of the country;

vii. That the State action was being tried to be covered under the carpet and intended to be thrown out on technicalities;

viii. Public interest litigation may be initiated either upon a petition filed or on the basis of a letter or other information received but upon satisfaction that the information laid before the Court was of such a nature which required examination;

ix. That the person approaching the Court has come with clean hands, clean heart and clean objectives;

x. That before taking any action in public interest the Court must be satisfied that its forum was not being misused by any unscrupulous litigant, politicians, busybody or persons or groups with mala fide objective of either for vindication of their personal grievance or by resorting to blackmailing or considerations extraneous to public interest.

A person who wants to file a PIL in any court must reflect on these before preparing his PIL.

Haresh Raichura
28/2/2013

Absconding Husbands -498A Case - Advertisements seen in newspapers - Case for preventing abuse

Husbands often complaint that Sec. 498a has been misused.

When a complaint by wife is filed, the initial tendency of husband is to avoid summons.

Then court issues warrant. Then he is not found!

Then Court, then issues proclamation requiring his presence in Court under sec 82 which is published in newspaper.

Today I read some advertisements in newspaper relating to 498A cases.

It would have been better if in such marriage offenses, bail are granted. Then parties can keep fighting in court.

The problem is, such cruelty is alleged to have happened in matrimonial home.

There will be no witnesses for wife. So how can she prove allegation except by her statement.

Same difficulty is with husband. How can husband prove that he said nothing, he did nothing, except by his statement.

Some conclusion can be reached only after parties are examined and cross examined.

Haresh Raichura
26/2/2013

Value of Statement of Nathuram Godse, given in Court before his conviction #Law

Many ppl give too much importance on Nathuram Godse's last statement in Court under Sec. 313.

In Courts we do not give much importance to such statements.

Here are the reasons:

If accuses comes forward to give statement on oath, other-side has right to cross examine, to put questions to him and to bring out lies and truths from what he is saying.

When accused, chooses not to come forward to give evidence on oath, but when he chooses only to give statements under Sec.313, where no questions can be asked to him, we do not believe in truth of such statements.

Secondly, mainly such statements are prepared by lawyers or his other advisors.

These are not words coming out directly from the mouth of accused.

In courts, we believe that statements made in court, but where other side is not permitted to question, such statements have no value.

Haresh Rauchura
24/2/2013

For those who are appointed on compassionate grounds and are unable to pass service exams

Case God helped me to win -Supreme Court Judgments: 18/01/13 - Brijesh Vs. Gujarat: http://t.co/SKrfbDbC5B

How litigants are also responsible for delays and adjournments in case

First date of every case.

These first few dates are very crucial.

Here, Courts have discretion

(1) to grant stay order without hearing opposite side, or

2) Or to Just issue notice to other side and grant stay only after hearing

3) Or, to grant a stay only for 10 to 15 days and issue notice to other side why stay should not be continued till further orders.

1) In first case, where petitioner has got stay order without notice to other side, the petitioner will ask his advocate to delay case as much possible so that other side cannot vacate stay.

2) Where Court have issued notice to other side to ask why stay should not be granted, then respondents will ask their advocate to delay matter as much as possible so that petitioner do not get stay order.

3) When court has given only limited stay for ten days and asked other side to say why stay should not continue then, in such cases, Time is usually so short time that other side has to ask for time, and then court continues stay order till replies and counter replies are filed and till further order. Then the petitioner asks his advocate to delay matter as much as possible.

PRACTICE COURTS IN FOREGN COUNTRIES

I heard, that in some countries, there is practice that if a party is asking for stay, he has to file and undertaking that if other side suffers any loss due to stay, I will pay up as per direction of court.

In such cases, if court finds that, wrong stay is obtained, or if too many adjournments are made, it will ask party to pay damages to other party.

The reforms in this direction may make judiciary more effective.


Haresh Raichura
23/2/2013

Dangers of Live-in-Relationship which can turn into a Rape Case. Road Better to travel less.

Supreme Court has held that consensual sex between to adult can not be an offense under present law.

The young generation started thinking that it is green signal for live in relationship and they need not marry and can walk out anytime. This may not be correct impression.

I have seen three cases of live in relations. In two wife file case of Rape in addition to other cases.

Because, in some cases Supreme Court has held that consent obtained by false promise of marriage, is no consent, and therefore it is rape.

Now see the complications.

Whether it was case of false consent of marriage or not can be decided by court only in trial of rape case.

In the meantime, the only options with husband seems to be 1) Apply for Anticipatory bail, 2) then regular bail or for quashing petition under 482 in HC and under Art 136 in SC if HC refuses to quash complaints, 3) face trial of rape.

The Scene for Husband of a live in relationship seems bad.

Haresh Raichura
22/2/2013

Destiny is shaped by Fate+Law of Cause and Effect - James Allen (100 Years Ago)

James Allen had studied GITA also.

He wrote some great books 100 years ago. Recently, I downloaded some his audio books from iPhone App Store.

Regarding our Destiny, he said there are two school of thoughts.

Some say, Fate controls our destiny. Whatever we may do, our luck or fate will happens.

Some say, law of cause and effect controls us. We are result of choices we make in life.

He said, Truth must be somewhere in middle of these two schools of thought.

It is fate or our luck which offers us certain options. And from then onward, it is the choice we make, that is followed by law of Cause and effect which shapes our destiny.

For example, at one point, I got an option. I can be a judge by passing an exam. Or I can be a lawyer.

Now it is fate that in certain family I was born who could educate me up to this level where these options opened to me.

But here onward, if I choose to be judge, I may go to certain route by law of cause and effect.

If I choose to be lawyer, the law of cause and effect could lead me to certain different destiny.

In summary he meant to say that we are governed by both, Our Fate and by our choices Which take us in certain direction through The Law of Cause and Effact.

The options which we get are offered by Our Fate.

But thereafter, what we opt for, will decide what will be our destiny, by following law of Cause and Effect.

Those who wholly believe in Fate, can still say that Fate works on our mind and it forces us to choose in a certain way.

They may be right also.

But Janes Allen thought that middle path between those who believe only in Fate and Those who believe only in Cause and Effect, should be followed.

Haresh Raichura
20/2/2013

How a small town lawyer reached Supreme Court- My Story & Our ills of Legal Profession Part 2 of 3

In earlier, part 1, I briefly explained my recollections about how I struggled for cases in District Court and how I moved to practice in High Court.

My aim is to record my recollections and impressions. No intention to hurt image of Judiciary or lawyers. Only intention is to show that many advocates from Districts have reached up to Supreme Court by struggling, even if they may not have support of anyone.

1986 - 1990

1) How I Filed First Case in High Court

A district court lawyer friend gave a case to me to file in High Court. I took case, but I had no idea, how matters are prepared, filed and argued in High Court.

I knew no one in High Court who can help me.

I reached in High Court at about 9 AM. In room of typists, only one or two typists had come.

I reached one of them and explained my problem. I asked for his help. He agreed to help me. Till today I remember he was known as Shah.

He started typing my case. When other advocates started coming, he introduced an advocated to me who agreed to dictate my whole matter for Rs.200/-. (Later this advocate became HC Judge)

Typist also introduced me to a clerk (Sunil- who now become advocate) who agreed to file my case, to take care of matter and to inform me whenever matter is listed in court.

Then, I requested clerk to give me samples of various types of matters in High Court. He gave me some samples. Now I was ready to file any type of matter in High Court.

Later, in 1990, when I decided to shift from High Court to Supreme Court, I used the same method.

2) Dealing With Bullying to a new comer.

I sensed, that I was not welcome in new place. I was coming from a small town. The people here in city were educated in famous law collages and were sophisticated. I sensed a sense of rejection and could read dislike in their eyes.

I saw that no one gives support to anyone.

Then some lawyer tried to bully me and said that I should not have shifted to High Court at all. He said I should go back to my town and should practice there.

He said this, as if High Court belonged to city lawyers only, and a raw lawyer from a small town had no business to practice in High Court.

Same day, I dropped a letter to Judge of High Court. It ran like this :-

"It is said in Gita, that 'all glorious and strong persons are parts of God and our problems will disappear if we will reach to them.'

Hence, I write this letter. I have shifted here from a small town and here I am being bullied. I am also passing through financial struggle"

Two days after I had posted letter. The Judge(Justice D.H.Shukla) called President of High Court Bar to his chamber and showed him letter and asked him to see that I am helped.

From Judge's chamber, the President came directly in Bar Room where I was sitting. He was full of rage and anger and he fired me like anything. "How dare you write such a letter to a Judge? He shouted.

I was taken aback and stunned. Other lawyers sitting around me looked at me as if I had committed a great sin.

After two hours, the President came back again. Now he was very cool and very polite. He invited me for dinner at his home. ( Perhaps he thought what may happen if I write another letter to Judge. He had second thoughts)

During dinner at his house, he told me that no human being is fit to be worshipped as God.

Next day, a senior advocate close to him offered me job of Junior advocate for Rs.500/- per month. I politely declined.

Now, I began to stay at a jain-hotel which charged Rs.10/- per day. From Monday to Thursday, I stayed at Ahmedabad and practiced in High Court.

Friday to Sunday, I will be in my home town to collect cases for High Court from my District Court friends.

3) Joining Chamber of Vasant J Desai

Since early childhood, I was oriented towards GITA. I used to read it even when, I did not understand a word from it. I believed in Divine Help.

In First Part, during my District Court practice, I experienced a series of miracles. But for some reasons, I have avoided mentioning them.

In High Court I was new. Without any background or influence. One day someone introduced me to Vasant Desai and suggested him to took me as his junior. This was miracle for me because, it was unplanned, effortless fortune. I did not either advocate who introduced me nor I knew Vasant Desai.

He used to talk whole day and worry about nation and how it is ushering into an international Debt-Trap.

He was impressed when I said that I also write letters on public issues in Times of India and Indian Express and they were published.

4) How career changes, the moment you join chamber of a good advocate

The moment I joined his chamber, everyone in Bar begin to respect
me. Even HC judges began to respect me.

It was all due to his reputation as a good, upright, innocent and public spirited advocate.

He put a condition to me before I joined his office.

He said he will not pay me anything. He believed that juniors should be allowed to starve. Then only they begin to flap their wings and begin to fly on their own.

I put one condition. I will not attend his chamber on Friday to Monday, as I may have to go to different districts to collect my own cases. He agreed.

I learned a lot from him during 1986 to 1990. You can see value of associating with him from following incident.

In 2010, After about 23 years, From Supreme Court, one day, I had gone to High Court for some work.

After work was over, I randomly, without any preplan, went and sat in one court to watch proceeding.

Suddenly, within 5 minutes, judge adjourned all cases and went in his chamber. He sent someone to call me in his chamber.

I was surprised. I went in his chamber. He said, " Do you remember me?".

I was blank. I could not remember the Judge.

He said, when I was junior with Vasant Desai, he was a judge in Civil Court. He had given a case to Vasant Desai.

He said, as a junior of Vasant Desai I worked overnight, and cracked his case and he won. He was thankful.

I had no recollection of this case. But it proves that if you do good work, someone may say thank you even after 23 years. Nothing goes in vain.

5) Marriage and Child.

She is also an advocate. At present, I think, I should write only few things about her.

Since early childhood she wanted to become advocate. At that time there were no TV. There was no advocate in her family. Even she does not recollect how this ambition to become an advocate came to her.

After she became advocate, one day she went in local court. Every one gave her respect and welcome.

But from next day she decided not join practice. She felt that atmosphere in Bar Room was not right for an unmarried young lady.

She postponed all her desire for becoming an advocate till her marriage.

She was religious. She placed her Enrollment Certificate in her Puja before Krishna and prayed that she may get a lawyer husband and she may get a poor husband so that she can get as per her destiny.

She did not look forward to marry by looking at wealth or income of in- laws.

Our marriage were family arranged marriage. We both studied in same law college. But none of us had seen each other.

After marriage, she started practicing with me in HIgh Court.

6) Nature and Extent of struggle and a miracle

From my house, two buses used to go to High Court. One Charged 50 paise. Another charged 75 paise. If bus charging 75 paise will come first, I will let it pass. I will wait for bus charging 50 paise.

Reason for low income: I never quoted fees. I allowed clients to pay whatever they can pay without feeling agony. This is my weakness which still troubles me.

Miracle: We lived in a house rented for Rs. 700/- per month. One day, in an unplanned way, some one approached us and offered us a larger house for Rs.1500/- with a suggestion that if we cannot pay this much, he will be satisfied with Rs.700/-.

We moved to his house. Later we realized that it was miracle.

New house was near to Bus Terminal where buses from all over Gujarat used to come.

Clients begin to pour in every morning. I no longer needed to go to districts to collect briefs.

The same landlord offered another flat for making my office. Here also he agreed that I need not pay any rent if my income does not grow.

Soon I have about four juniors working under me. Everyday, my about 8 cases were listed in various court rooms. Other advocates regarded us with jealousy.

But income was minimum. I could earn enough to meet my overhead expanses.

7) Some memorable cases.

There are many cases which I remember. Some are most prominent in my memory.

A babaji came from a village. He lived under a hut structure under a tree for 20 years. Now collector wanted to remove him. Collector has found that it was Govt land and he had no right to live there.

He had nothing to pay to lawyer and no money for lunch. We gave him lunch. Filed his case. Next day his case was heard.

Judge asked, what right your client has to live there. I said, Art.21. Every beggar has right to some shelter, some space to live. Give him some space to live and then remove him.

Judge rejected my argument and dismissed case.

Situation is same even today.

Some poor were living in big gutter pipes, lying unused somewhere in Mumbai. The Corporation wanted to remove them.

A young lawyer, moved by their plight, filed PIL for granting them some space before removing them.

Mumbai High Court rejected his PIL.

He filed appeal in Supreme Court.

The judges warned him that there is no merit in his case but if he insisted on arguing and wasting time of court, the court may impose fine on him.

He insisted on arguing and for 20 to 30 min took time of court. The court dismissed his case and imposed fine of Rs.1 Lakh on him.

The poor lawyer broke down and started weeping in court. Security staff removed him from court.

The law is clear. The Right to shelter for beggars are still not declared by Supreme Court. Till then, no right no relief is the law.

Wasting time of Apex Court in spite of previous warning, is very costly

Another case I remember is, someone told me that I am called in Chief Justice Court. A case was listed but I did not know and I had no papers.

Doesn't matter,one judge said and gave his papers to me to argue. Without looking at papers, from only my memory, I argued case and won it.

Then I remember, a criminal appeal which I argued for three days. I thought I was clever. But no. It was actually, the Judge who was giving me training for arguing a criminal appeal.

Then I remember about arguing a PIL which resulted in release of 300 bonded laborers.

Later, someone told me that when case was going on, the court of chief justice become so crowded that it was impossible to come or to enter in court room.

Then, I remember filing a petition to search for a missing sailor from famous Navvy Army Ship Vikrant.

I had a great satisfying career at High Court.

8) Moving to Supreme Court

Child was now about one and half year. Then someone suggested that if I wanted to move to Supreme Court, this was the right time. Because, once child starts going to school, it is difficult to change city.

We decided to move on.

Continued.-

I'll keep revising this and earlier part 1 as I get time and new recollection to mind. My aim is to show path which I took to shift to Supreme Court from a small district town court.

How a small town lawyer reached Supreme Court- My Story & Our ills of Legal Profession Part 1 of 3

This is my story for young lawyers practicing in Small District Courts to tell them how I climbed up to Supreme Court from a small town of Junagadh(Gujarat).

I will try to be true as per my recollection. But you should be skeptical and accept only that which feels true to you. Nothing in this intended hurt image Judiciary. I am simply recording my impressions, not necessarily true, as I passed life.

You can quit reading anytime you feel bored.

1982
1) In My family there were no lawyers, no godfather to support me in initial struggling period when even if you may be better than others, clients will to not trust their cases of thousands lakhs, crores of rupees and lives into your hand.

The point of telling you this is: Even if you have no lawyer in family, no godfather, you can make a success in legal profession and can climb up to Supreme Court.

2) My type: I am Libra. Libras are considered to love challenges and are justice oriented and are naturally attracted to Law.

I was a voracious reader. In school days, I was usually among first four in class.

Even if I was studying in Gujarati classes, in B.Com Last year, before 3 months of final exam, I opted to give exam in English.

This is called principle of Burning the bridge so that there is no chance to retreat.

Now I have to master English and be ready to write answers in all subjects in English or to fail. This was a courageous or foolish decision. I do not want others to take such foolish suicidal decisions.

I worked hard. Passed with all subjects in English medium with good marks except in English.

In English, examiner gave me only minimum passing mark 36 from 100. Probably he was angry. Because in answer to one question, I was to answer No. But instead, I had written, "No. A thousand times No." This showed my arrogance. The examiner was also probably arrogant.

I felt my first touch of injustice done to students by examiners in all school and colleges. Courts upto Supreme Court, refuse to enter in this area. Even in Examination which Supreme Court takes, many have lots of heart burning. But courts till today refuse to give relief to students by giving reasons. Judges do not want courts to be flooded by students complaining arbitrary evaluations even in subjects like mathematic were it is very easy for a judge to check whether injustice to student is done or not.

Today, I can feel that all High Courts and Supreme Court may be WRONG in their interpretations in this area of law.

2) Competitions which I surveyed in District Court:

There were good established senior advocates. They used to catch most of cases from city.

There were lawyers who had shifted from villages. They were getting cases from villages.

I tried to join some good office of senior lawyers. They said no. They sensed that I looked intelligent. They did not need intelligent juniors. They needed dumb juniors who can bring cases to them and can stay unlearned and dependent on them for years.

I looked at Legal Aid Cell to offer my free services. There I sensed "Games". Cases of poor, which could be won, were assigned to Rich and Well established lawyers. And poor people's cases which were not likely to be won were assigned to lawyers like me.

I avoided legal aid cells. I had gut feeling that same games may be in legal aid cells of High Court and Supreme Court. These are impressions and gut feelings which can be felt but cannot be proved.

I was not political. No chance of getting on any Govt panel of lawyers.

In accident cases, I noticed doctor-lawyers nexus. Doctors were advising to patient to engage certain lawyers and doctor used to give medical papers, not to patients but to the lawyers directly. Lawyers also used to invest by paying their doctor's bill. Here also, I had no chance to get any case.

Lands of villagers were acquired by Govt and cases were arising in District Courts.

Here I found nexus of Civil Engineers and lawyers. Even before Govt land acquiring notifications were published, some lawyers used to get information.

They used to go to these villages, entering into land deals and were preparing ground work of creating sale deeds to get maximum price from Govt. when lands were notified for acquisition.

They used to invest money and share fruits of litigation. Here also, I had no chance of getting any cases.

I saw criminal lawyers. Their languages were of criminal type. They used to keep revolvers in coats. They had nexus with police. Police used to ask criminals to engage these lawyers to get bail and acquittal. If they engage other lawyers, the police and prosecutor used to fight strongly and they were getting convicted. Govt pleaders used to assist Criminal Lawyers on how to cross examine witnesses.
Here also, I see no chances for me.

Touts: Those who bring cases to lawyers are called touts. In Court compound there were many touts who were giving cases to established lawyers. They ruined chances of junior advocates to get small cases.

I complained to District Judge about touts. He advised,"Never kick on stomach of anyone. He will fight back with his life." I understood. It was not advisable to complain against touts. Later, I saw many touts in High Court and Supreme Court compounds. But I never complained.

Strategy which I worked out to get cases

Purchased Coat on Loan

Starting legal practice requires investment of buying one pen and a black coat. Purchased a second hand black coat from a lawyer for Rs.500/- to be paid in six months.

The earning first Rs.50/- in legal profession took some time.

Lawyer friends used to give some small work of going to some village court and to take time. Some cases of deserted women could still come to me for filing maintenance application.

I practiced there for four years. I vividly remember two cases.

A husband snatched away one year son from a mother and went away to his village. Mother came to me. I applied for search and custody warrant to judge. I argued, "breasts mother are paining with milk and urgent custody of child needed."

Judge asked "How do you know? Do you know till what age of child Mother's breasts gave milk? I had no answer. I was unmarried. I had no idea how a woman body functions. Judge gave order as I had asked. Mother got his son back.

Then a tenant came. Landlord had engaged a Rent Matter Specialist Senior Lawyer. Client said Rent Specialist was entering into secret purchase of property from landlords at low price.

After tenant is evicted, he used to take over properties. This was unethical. Lawyers were not supposed to make such agreements. Client paid me Rs.300/- to defend him.

That night, I thought it over. The other side lawyer was too big for me. Enmity could be costly. Further he was elected as Member of Disciplinary Committee of Conduct Regulating Body of Lawyer.

Next day, I called client. Returned his fees and explained my inability to defend him.

STRATEGY

Being brief less was tiring. There were two other brief less lawyers like me. I suggested a formula to them.

"At any given point of time, there were always going to be some clients who may have been fed up with their lawyers and they may be looking for new lawyers. We should get noticed by them. They may give us some work. We should divide fees in three parts every evening"

We three kept moving whole day in court lobby. We begin to earn something and divide it in evening.

In the meantime, I made friendship with maximum lawyers of District Court. They used to call me "Stuntman". I never learned why they said so.

Then after four years, one day, I declared that every Monday, I am going to Ahmedabad to High Court. If they want to refer me cases for High Court, they can give me. Then for few Mondays, I kept sleeping at home. My lawyer friends thought that I had gone to High Court at Ahmedabad.

It took some time but strategy paid. I started getting cases for filing and arguing in High Court. After few months, I shifted to High Court at Ahmedabad.

Here, I would like to pause and seek your reactions before continuing. In noway I want to damage reputation of Judiciary and lawyers. But some part of us looks ill. We need help to help us from ourselves.

Continued-

How many Women, aged Parents, and children in India know about their Rights under Sec.125 of Cr.PC.?

City Criminal Courts and Family Courts premises are full of women in distress seeking maintenance from affluent husbands who may have forced them to leave marital home.

They are also accompanied by their legitimate or illegitimate children who also seek compensation.

The aged mothers and father also come to seek maintenance from their sons who may have thrown out them from their own houses.

All these applications are filed under Sec. 125 of Criminal Procedure Code. No court fee is payable. These are summary (Speedy) provision. A wife does not have bring proof of marriage. Judge has to only see if there were/are "marriage relationship" or not. Same is about children and aged parents. They have to show only make them statements on oath should inspire confidence of judge that they are speaking truth. Often a little evidence is enough.

Some judgements I read long ago in Gujarat said that even one day "Living together like husband and wife" entitles a cheated woman to seek monthly maintenance.

Earlier, these cases used to go on for years. But then one day, Gujarat High Court relying on a Supreme Court judgement held that every court which has power to grant final relief can also grant interim or exparte maintenance order.

Since then all such applications are filled along with interim applications of maintenance which are decided in one or two months. So case may go on but women, children, parents start getting monthly maintenance amounts.

For more details, please consult your lawyer or Google Search for Sec.125 of Cr.P.C.

One Gujarat small court judge discovered a formula to count maintenance payable. Calculate total income of husband. Divide it by total number of dependents on husband and count accordingly.

The law however is silent on how decide amount. Judges look at facts of case and decide as per income, lifestyle status of parties.

No upper limit to what court can award.

Haresh Raichura
17/2/2013

Note: This post is inspired by a journalist and NGO at Hyderabad

When you have a Right to File Appeal appeal in Supreme Court of India?

Everyone who loses a case in High Court, do not have Right Appeal in Supreme Court. High Courts are Last Courts for most of cases.

But it is right of Supreme Court under Art. 136 to cancel any order passed by any Authority or Court if it so thinks fit. Further it has a Right under Art. 141 to pass any kind of order to do ultimate Justice to parties in any case.

So under their power, after losing a case, parties file applications to Supreme Court to accept their case under Art. 136 as request Supreme Court to cancel order of High Court under it's special power.

So it ultimately entirely on Supreme Court Judges to accept or not to except a case.

In my view in Supreme Court about 60,000 civil and criminal cases are filed with such request in one year. Out of these about 70% cases are not accepted.

Where you have a Right of Appeal to Supreme Court

A) Suppose a person is acquitted by trial court, but High Court sends him to Jail for 10Years or more. Then such party has Right to Appeal to Appeal. Where such parties have right to Appeal to Supreme Court, It has to accept such Appeals.

2) Suppose, you have won in one court, but lost in two courts, then also you have good chance under Art 136 to accept your Appeal by SUpreme Court.

Because here Supreme Court looks at both sides. Why one court was in your favour and why other court was not in your favour. One of the court must be wrong. So here you can take calculated chance.

3) There are cases which are First time heard in appeal. Then also there is Right of Appeal. For example, Babari Masjid Case. It was heard and decided first time in High Court. So appeal to Supreme Court was a Right to Appeal.

4) If you approach High Court, to quash a False Case or a False FIR, then also you can approach Supreme Court under Art. 136, because nowhere else appeal lies to Supreme Court.

5) When more than Two States are involved, it is a good idea to approach Supreme Court.

6) When you desire that a case should be transferred from one state to another State, only Supreme Court has power to do so. Here also It is a good idea to approach Supreme Court.

7) There is an issue of national interest. Issue affects people of whole nation, then also it is good idea to Approach Supreme Court by way of Art 32 to PIL. In a separate post, I will right about guidelines for filing of public interest litigations.

8) I will keep updating this post whenever some new point comes to my mind.

There are many other provisions where it is Right to Approach to Supreme Court. But these are mostly do not concern common man. The purpose of this blog to explain law which affects layman in simple language. Hence, I have not mentioned them all.

Haresh Raichura
16/2/2013

False Case in India- Defamatory Statements in case pleadings- Can you file criminal/civil cases for Defamation?

My prima facie view is yes. But nature of Defamatory statements made in case papers need to be checked, examined.

There are four aspects:

1) One law of Defamation says that it will not be defamation what may be written in Court Orders or Proceedings.

But this does not protect what is written in case papers. If someone files a case and in that case, if defamatory baseless statements are made, they are not protected.

2) There is also a counter proposition. It is not defamation if you say something about a person to his superior authority who has powers to take actions against that person.

3) There is a third aspect also. If something objectionable is written in any case, every court can direct that such paragraphs be deleted from the case.

4) There is also a fourth aspect.

Now courts have started imposing fines on persons who may be misusing or abusing court processes.

One can make an application to concerned court to impose fine on person who has abused process of court, by giving details of such abuse. ( Frankly speaking, one of my own client is recently fined Rs,1 Lakh as the SC judges felt that he was abusing process of court by filing false cases)

Legal Profession is an Art.

Every lawyer's advice can be different than every other lawyer's advice. The decision as to which legal remedy should be pursued, depends on facts situation, willingness and affordability of parties etc.

Your family lawyer is best suited to give you advice.

Haresh Raichura
15/2/2013

An Interesting Argument in a Rape Case in SC- Purely for those who want to understand process of Law

The purpose of this post is not to influence any pending case. Idea is only to educate people about how the process of law and arguments work at Supreme Court level.

A woman, mother of a child, complained that 3 days ago, accused raped her.

She suffered injury on private parts and also on thigh.

She said she went home. She washed her salwar which contained seaman stains.

Then she went to doctor who made dressing on thigh injury. After consulting husband, she filed complaint after 3 days.

In Court, Doctor said, injury on thigh could have been one month old also. He also said that injury on private parts could be ten days ago also.

Accused said that due to some some land dispute, he had not paid some amount to Husband, therefore this false case is filed. He is totally innocent.

Trial Court rejected vacillating statement of Doctor and and also disbelieved story of enmity put up by accused and convicted accused and sent him to jail.

Accused appealed to High Court.

High Court said there were no stain of seaman on salwar and evidence of Doctor was not clear. Doctor at one placed said one finger could go in private part and at other place says two finger. Therefore HC gave benefit of doubt and acquitted accused.

State filed appeal in SC. SC asked accused why HC order should not be set aside and why he should not be convicted and sent to jail.

Counsel of accused strongly argued that this is false case. Injuries on thigh could have been one month old. Since she was a married woman, injuries on private part could have been done by husband also.

Now, SC Judge flared up in anger and told counsel that this is not the way to argue in Supreme Court.

We see ring of truth in statement given by woman. Do not argue flimsy and technical grounds.

Try to satisfy us why this woman should be disbelieved when she herself says that she went home and washed her salwar.

Forget all discrepancies in Doctor's evidence. Argue like a Supreme Court advocate.

The case adjourned.

I repeat. The object of this post is to educate layman about how we try to separate truth from falsehood. I have no intention to influence any case. Therefore no names, no case details are disclosed here. Name of judge is also not mentioned here.

Haresh Raichura
14/2/2013

Husband asked wife to not to keep intimacy with outsiders. Wife commits suicide. Husband cannot be said to have abated suicide

Husband asked wife to not to keep intimacy with outsiders.

Wife commits suicide.

Husband cannot be said to have abated suicide under Sec 306 of IPC nor has committed cruelty under 498A

2010 (13) SCC 657 para 42,59,60 Case title Sunil Kumar v Maharashtra

Haresh Raichura
11/2/2013

SC proactive order :Private Hospitals and Government can be asked to treat cancer patients at Govt Rates

Affordable Health Care is our fundamental right under Art. 21

Government Hospitals are over flooded. Where can poor go?

SC said, Non State Actors (Private Hospitals) Can formulate their own schemes to help poor. And if they need, they can also ask Govt to give them funds.

The case is under consideration. Certain directions are given.

In the meantime, Private Cancer Hospital Directed to treat patients referred from Govt hospital at Govt. Rates.

Case: Dharmshila Hospital V Social Jurist 2012. (6) SCC 105

Haresh Raichura
11/2/2013

False Case under Narcotic Act. Safeguards against personal search

Ashok Kumar Sharma Vs. State of Rajsthan 2013(1)Scale 193

Narcotic Act is a special Act. If some officer wants to search your pockets to see if you have got any narcotic drugs in your pocket or not,

He has two obligations. 1) He has to tell you that Law gives you right to be searched in presence of either a Magistrate or a Gazatted Officer 2) Then he has to ask you whether you desire to be searched in presence of Magistrate or whether you want to be searched before a Gazatted officer.

If you say Magistrate, then he will have to take you to a Magistrate and then only he can search your pockets. If you say gazzated officer than he has to take you to a Gazatted officer.

This safe guards are provided to see that police does not false implicate some innocent person.

But if police wants to search your hand bag or car, there is no such requirement as stated above.

Haresh Raichura
11/2/2013

Outraging Modesty of Girl by neighbor- offense can be compounded if girl forgives neighbor SC

2013 (1) SCALE 1 Surat Singh Vs Uttarakhand

The upshot of this judgement is, cases of molestation of woman can be compromised if woman forgives the molestor.

Haresh Raichura
11/2/2013

False Case 498A Belated FIR. Court sets aside such belated FIR

Chandralekha & Ors v state of Rajsthan 14.12.12 JT 2012 (12) SC 390

The upshot of this case is, if after leaving matrimonial home, after several months or years, if wife files belated FIR of cruelty under 498A, the Higher Courts have power to cancel and set aside such FIR as abuse of 498A

Haresh Raichura
11/2/2013

Even if signature on cheque and specimen signature in Bank are different, even then check dishonor offense of 138 made out.

M/s Laxmi Dychem V State of Gujarat 27.11.2012 JT 2012 (12) SC 65

Many smart people used to give post dated cheques with a different signature. Bank returns the cheque saying that signature does not tally with specimen signature given in Bank.

SC has now held that such cases are also punishable under 138 of Negotiable Instrument Act.

Earlier these cases were dealt with as cases of cheating under 420IPC.

Haresh Raichura
11/2/2013

False case by wife. Damaging public image of husband. Ground for divorce

U.Shree v U Srinivas 11.12.2012 JT 2012 (12) SC 358

Sometimes, after filing complaints against Husband, wife side gives information in press.

Newspaper publish such allegations contained in FIR of wife.

This damages public reputation of Husband and his relatives. Acrimony develops between parties.

Court said that this is "Mental Cruelty to husband" and it is good ground for granting divorce in favor of husband.

Haresh Raichura
11/2/2013

Court can appoint Amicus Curie Advocate to defend accused if his advocate says No instruction

When a criminal appeal comes up for hearing, and if advocate for appellant says that he has no instruction to appear, then court will appoint an Amicus Curie, ( Friend of Court) to assist court and then, this court appointed advocate will argue for appellant.

DaharamPal v U P followed in Jeewan & Ors v Uttarakhand 13.12.12 SC JT 2012 (12) SC 473

Haresh Raichura
25/2/2013