This is a new idea. Idea stems from a Supreme Court Judgement which says that Arbitration Law can be applied to civil disputes of all kinds. (Not only commercial disputes)
In commercial world, arbritration has become popular.
It there is an Agreement between parties that certain type of civil disputes will be solved under Arbitration Act, then parties cannot go to Civil Courts. Court appoints a mutually agreeable person as arbitrator, and his judgement become Decree of Court.
This can solve civil disputes between husband and wife regarding divorce, maintenance, right of custody of children and their inheritance rights etc. All they need to do is to have signed an agreement that if such dispute arises in their marriage life, it will be resolved through arbitration under Arbitration laws.
An arbitrator can then be appointed by court. He can give judgement in four months.
Once, one of the party will go to arbitration, the heat of criminal cases will go away. And most probably, arbitrator will try to resolve those cases also.
This is an idea. Need to be more explored by lawyers and parties and by about to be married young generation, under guidance from their lawyers.
Haresh Raichura
29/5/13 17:32
May 29, 2013
Think Like A Lawyer (Part 3) Vague and Specific Arguments
"There were several persons who show the incident."
This is a vague argument. "Several" can mean more than 1 but can it be more. We cannot judge how many persons were there.
This is a vague arguments.
The specific arguments are considered stronger arguments.
Haresh Raichura
28/3/13 00:19
Think Like A Lawyer (Part 2) Two things happened one after other
Two things may happen one after another. But that by itself cannot prove that first thing cause second think.
Example: A left a meeting suddenly for some work. After 5 minutes a bomb blast took place in meeting.
Here, one thing happens after another, but that does not prove that person who suddenly left meeting had planted the bomb or he had any previous knowledge of blast.
Some more evidence are needed.
Two things may happen one after another. But that by itself cannot prove that first thing cause second think.
Haresh Raichura
28/3/13 00:08
Example: A left a meeting suddenly for some work. After 5 minutes a bomb blast took place in meeting.
Here, one thing happens after another, but that does not prove that person who suddenly left meeting had planted the bomb or he had any previous knowledge of blast.
Some more evidence are needed.
Two things may happen one after another. But that by itself cannot prove that first thing cause second think.
Haresh Raichura
28/3/13 00:08
May 28, 2013
Think Like A Lawyer (Part 1) Argument form Authority
These posts are supposed to be short and they may familiarise you with the way lawyers and judges evaluate arguments.
Argument 1) Prime Minster also said that there should be zero tolerance to Naxalites. Therefore we should have zero tolerance for Naxalites.
Analysis: This is a weak argument. Prime Minister is an authority. Since what he said must have value, we should follow what he said. This is an weak argument. This is a "Mr. So and so said so, therefore it should be so" type weak argument.
No other reason is given why we should have zero tolerance.
Therefore, the argument cannot be accepted unless some more reasons are given.
28/05/13 23:54
Argument 1) Prime Minster also said that there should be zero tolerance to Naxalites. Therefore we should have zero tolerance for Naxalites.
Analysis: This is a weak argument. Prime Minister is an authority. Since what he said must have value, we should follow what he said. This is an weak argument. This is a "Mr. So and so said so, therefore it should be so" type weak argument.
No other reason is given why we should have zero tolerance.
Therefore, the argument cannot be accepted unless some more reasons are given.
28/05/13 23:54
Understanding Criminal Justice(Part 21) "Mense Rea" is needed in all crimes
Mense Rea is a legal word. Here we are not concerned with its exact legal meaning.
You can read Mense Rea as "Intention to commit" a crime.
"Intention to commit crime" is a MUST for convicting someone for any crime.
"Intention" of a person is hidden in mind of a person. How can it be proved whether a person has "Intention" or not in his mind? There are no MRI test or CAT scan reports to check intentions.
So ?
So lawyers and judges developed a set of thumb rules: "If this, then criminal intention proved. If this then criminal intention or Mense Rea not proved"
For layman, it is difficult to understand how these thumb rules work. But they are there and they do work.
Then, in some cases, law makers came out with laws which need not require that Mense Rea be proved.
For example, Prevention of Food Adulteration Act. If food found adulterated, then it is not necessary to prove that Seller had criminal intention to adulterate food.
There are so many such laws.
But basis principle is such that Mense Rea must be there before a person can commit a crime.
Haresh Raichura
28/3/12 18:20
You can read Mense Rea as "Intention to commit" a crime.
"Intention to commit crime" is a MUST for convicting someone for any crime.
"Intention" of a person is hidden in mind of a person. How can it be proved whether a person has "Intention" or not in his mind? There are no MRI test or CAT scan reports to check intentions.
So ?
So lawyers and judges developed a set of thumb rules: "If this, then criminal intention proved. If this then criminal intention or Mense Rea not proved"
For layman, it is difficult to understand how these thumb rules work. But they are there and they do work.
Then, in some cases, law makers came out with laws which need not require that Mense Rea be proved.
For example, Prevention of Food Adulteration Act. If food found adulterated, then it is not necessary to prove that Seller had criminal intention to adulterate food.
There are so many such laws.
But basis principle is such that Mense Rea must be there before a person can commit a crime.
Haresh Raichura
28/3/12 18:20
Understanding Criminal Justice (Part 20) Jury System and its advantages
Slowly slowly, we have become aloof to judicial system.
We have no role to play unless we are called upon to give evidence.
Jury System is different. Here a LIST of Educated Citizens is maintained.
The court calls them to do jury duty in court whenever a murder case is being tried.
They sit in group of 11 and after trial is over, they give their opinion whether the criminal is guilty or not.
Thereafter, the judge gives punishment order.
Here, independent, 11 persons are called upon to discharge their duty to society. They are paid daily wages for attending court.
This way, a section of society gets involved. And that is what is needed today. People should be allowed to participate in Judicial system by way of Jury Duty.
Haresh Raichura
27/3/2013 15:14
May 27, 2013
Understanding Criminal Justice (Part 18) Does law permit Police to beat accused for questioning?
Very often now TV shows clips, where police is seen beating a person while questioning.
Does law permit Police to beat or to torture an accused while asking questions about any crime?
The answer is simply NO.
There is no provision in criminal procedure code which permits investigating officer to beat or to torture an accused for getting information.
The police can use force, and only necessary force to arrest an accused if accused resists arrest.
The police can use force, only necessary force, to disperse assembly etc....
But there is no provision which authorises Police to use force during interrogation or questioning.
As soon as a person is arrested, his relative or friend has to be informed immediately as per SC guideline. The friend and relative can request magistrate to immediately order medical examination of arrested person so that if he is tortured during investigation, it can be proved and action can be taken.
But these are all laws on paper. When people know their rights, when they know their remedies, then only they can approach court. And court can then help.
Haresh Raichura
27/5/2013 18:46
Does law permit Police to beat or to torture an accused while asking questions about any crime?
The answer is simply NO.
There is no provision in criminal procedure code which permits investigating officer to beat or to torture an accused for getting information.
The police can use force, and only necessary force to arrest an accused if accused resists arrest.
The police can use force, only necessary force, to disperse assembly etc....
But there is no provision which authorises Police to use force during interrogation or questioning.
As soon as a person is arrested, his relative or friend has to be informed immediately as per SC guideline. The friend and relative can request magistrate to immediately order medical examination of arrested person so that if he is tortured during investigation, it can be proved and action can be taken.
But these are all laws on paper. When people know their rights, when they know their remedies, then only they can approach court. And court can then help.
Haresh Raichura
27/5/2013 18:46
Understanding Criminal Justice (Part 18) Why poor in jail for inability to pay fine?
In most criminal cases, Court fees are not levied.
And yet, some of our laws are not consistent with International Legal Treaties which India has signed, and therefore many poor are in jail today.
Poor faces trouble mostly in following area:
1) .........A Court grants him bail on furnishing bond of Rs 50,000/- But he is hand to mouth. He is unable give such bond. So he has to stay in jail.
Now Supreme Court has taken care of this and said, in such case, poor can be released on personal bond. Jail Authorities need to be made duty bound to brought such facts to notice of court.
2)........ When excessive fine is imposed which poor is unable to pay.
Supreme Court has in recent judgement asked lower courts to consider financial condition of a convict while imposing fine.
3) .....,,There are laws that if a person is found guilty, he will be punished with minimum fine of Rs.2 Lakh.
Here, even in case of poor, the court is bound to impose fine of Rs.2 Lakh and he may have to suffer two more years in jail if he cannot pay.
There may be hundreds of such poor. I am told by one client that there are about 20 such prisoners in Central Jail, Sabarmati. But when I asked him to brought their names, he failed to give names.
There may be however many such poor who have no access to legal remedies.
4) ........A person cannot honor a cheque. Therefore he is fined double the amount of check and has to go in jail because of inability to pay debt. This is as per Check Dishonour Law.
Here also, we have a person who may have gone bankrupt after issuing check. He is jailed for non payment on account of poverty.
These situation are not taken care of under present laws which are inconsistent with International Agreements of India.
What is International Treaty which India has signed?
This is known as Geneva Convention. Here India has signed a convention that in our country, we will not keep any person in jail because of his inability to pay debt or decree.
I think there are many laws in India which need to be checked or quashed before some poor can be released from jail.
Poverty is no crime.
Haresh Raichura
27/5/13 15:10
And yet, some of our laws are not consistent with International Legal Treaties which India has signed, and therefore many poor are in jail today.
Poor faces trouble mostly in following area:
1) .........A Court grants him bail on furnishing bond of Rs 50,000/- But he is hand to mouth. He is unable give such bond. So he has to stay in jail.
Now Supreme Court has taken care of this and said, in such case, poor can be released on personal bond. Jail Authorities need to be made duty bound to brought such facts to notice of court.
2)........ When excessive fine is imposed which poor is unable to pay.
Supreme Court has in recent judgement asked lower courts to consider financial condition of a convict while imposing fine.
3) .....,,There are laws that if a person is found guilty, he will be punished with minimum fine of Rs.2 Lakh.
Here, even in case of poor, the court is bound to impose fine of Rs.2 Lakh and he may have to suffer two more years in jail if he cannot pay.
There may be hundreds of such poor. I am told by one client that there are about 20 such prisoners in Central Jail, Sabarmati. But when I asked him to brought their names, he failed to give names.
There may be however many such poor who have no access to legal remedies.
4) ........A person cannot honor a cheque. Therefore he is fined double the amount of check and has to go in jail because of inability to pay debt. This is as per Check Dishonour Law.
Here also, we have a person who may have gone bankrupt after issuing check. He is jailed for non payment on account of poverty.
These situation are not taken care of under present laws which are inconsistent with International Agreements of India.
What is International Treaty which India has signed?
This is known as Geneva Convention. Here India has signed a convention that in our country, we will not keep any person in jail because of his inability to pay debt or decree.
I think there are many laws in India which need to be checked or quashed before some poor can be released from jail.
Poverty is no crime.
Haresh Raichura
27/5/13 15:10
May 26, 2013
498A - Has anyone asked Supreme Court or High Court to lay down guidelines for preventing abuse of 498a Cases?
The Guidelines can certainly be laid down as to how police will investigate such complaints and when it will not arrest husbands or in laws.
But someone has to approach these judicial bodies with proper petition.
I am not sure whether anyone has moved any High Court or Supreme Court for purpose of laying guidelines.
Haresh Raichura
24/5/13 21:16
But someone has to approach these judicial bodies with proper petition.
I am not sure whether anyone has moved any High Court or Supreme Court for purpose of laying guidelines.
Haresh Raichura
24/5/13 21:16
Understanding Criminal Justice (Part 17) Why difficulties in getting bail of terror case accused
Name of Sadhvi Pragya comes immediate to mind as I write this post.
Laws are different for bail when a person is accused of a crime in some terror related law.
In Part 16, I have discussed general law of bail. Here we are concerned with bail in terror related laws.
COURT SHALL NOT GRANT BAIL IF GOVERNMENT ADVOCATE SAYS "NO".
This is the tenor of all such laws.
Such laws say: When accused is charged under this law, the court will not grant bail 1) Without first giving notice to government ,and 2) Court will not grant bail if Government Advocate says "No".
Validity of such laws were challanged before Supreme Court. How can there be such a law which binds down hands of court in matter of grant of bail in obviously a false case?
How can "No" of Govt pleader can prevent court from granting bail?
After much debate, it was finally laid down 1) Such laws are valid 2) But court can grant bail even when Govt. Pleader says "No".. But in that case, the judge will have to write in his order that "I am satisfied that the accused will not commit any such act in future if I grant him bail"
This is the catch. Govt Advocate will say NO as per desire of political bosses. And few judges will have courage to take it upon themselves to certify that accused will not commit any such crime if he will grant him bail. How can a judge give such a certificate?
The laws are certainly bad.
Haresh Raichura
24/4/13
Laws are different for bail when a person is accused of a crime in some terror related law.
In Part 16, I have discussed general law of bail. Here we are concerned with bail in terror related laws.
COURT SHALL NOT GRANT BAIL IF GOVERNMENT ADVOCATE SAYS "NO".
This is the tenor of all such laws.
Such laws say: When accused is charged under this law, the court will not grant bail 1) Without first giving notice to government ,and 2) Court will not grant bail if Government Advocate says "No".
Validity of such laws were challanged before Supreme Court. How can there be such a law which binds down hands of court in matter of grant of bail in obviously a false case?
How can "No" of Govt pleader can prevent court from granting bail?
After much debate, it was finally laid down 1) Such laws are valid 2) But court can grant bail even when Govt. Pleader says "No".. But in that case, the judge will have to write in his order that "I am satisfied that the accused will not commit any such act in future if I grant him bail"
This is the catch. Govt Advocate will say NO as per desire of political bosses. And few judges will have courage to take it upon themselves to certify that accused will not commit any such crime if he will grant him bail. How can a judge give such a certificate?
The laws are certainly bad.
Haresh Raichura
24/4/13
Understanding Criminal Justice (Part 16) What is Bail?
When police feels that certain person has committed a crime, police arrests him.
Here, first question of bail comes.
If crime is of minor nature, police can let the accused go after taking undertaking from him that he will come and appear before judge. This is bail.
If crime is of serious nature, police keeps arrested man in his custody, but he has to produce this man before magistrate in 24 hours.
This is police custody.
When man is brought to Magistrate, he sends the man to jail. This is Judicial Custody.
At this time, if police tells judge that he needs custody of accused for few more days for further investigation, the judge grants him further custody for few days. This is called Remand Custody to Police.
After, investigation or before investigation, the man can again apply to judge that he is innocent and he will come whenever called, and he may be released on bail pending trial.
After trial is over and after his conviction, he can file appeal to higher court and here again he can say that he is innocent, the judgement of trial court is wrong, and he can ask for bail till appeal is finally heard.
There is no restriction on number of application for bail which can be filed.
There are norms and principles for deciding such applications.
If one court rejects bail application, another application can be moved to higher court.
If bail is wrongly granted to some criminals, the complainant or State can apply to Higher Court to cancel bail order.
Most bail orders contain condition that accused will not threaten witnesses.
If any witness is threatened, he can ask for cancellation of bail order on the ground of breach of condition.
Haresh Raichura
24/5/13 12:44
Here, first question of bail comes.
If crime is of minor nature, police can let the accused go after taking undertaking from him that he will come and appear before judge. This is bail.
If crime is of serious nature, police keeps arrested man in his custody, but he has to produce this man before magistrate in 24 hours.
This is police custody.
When man is brought to Magistrate, he sends the man to jail. This is Judicial Custody.
At this time, if police tells judge that he needs custody of accused for few more days for further investigation, the judge grants him further custody for few days. This is called Remand Custody to Police.
After, investigation or before investigation, the man can again apply to judge that he is innocent and he will come whenever called, and he may be released on bail pending trial.
After trial is over and after his conviction, he can file appeal to higher court and here again he can say that he is innocent, the judgement of trial court is wrong, and he can ask for bail till appeal is finally heard.
There is no restriction on number of application for bail which can be filed.
There are norms and principles for deciding such applications.
If one court rejects bail application, another application can be moved to higher court.
If bail is wrongly granted to some criminals, the complainant or State can apply to Higher Court to cancel bail order.
Most bail orders contain condition that accused will not threaten witnesses.
If any witness is threatened, he can ask for cancellation of bail order on the ground of breach of condition.
Haresh Raichura
24/5/13 12:44
May 25, 2013
Understanding Criminal Justice (Part 15) 7 daughters saved father from corruption charges
This is true story. (Inferences may be wrong)
A villager killed a buffalo.
Police Inspector called him at police station and said he has committed crime of murder under 302 of IPC and can go in jail for life imprisionment unless he pay bribe.
The villager went to Anti corruption crime branch and lodged complaint against police inspector.
A trap was laid by anti corruption branch. Police Inspector was trapped. He was convicted for one year jail for demanding bribe. He was dismissed from job.
High Court confirmed conviction.
He came to me for filing appeal in Supreme Court.
I saw no point in his case and told him so. He still wanted to file appeal. He made a request. He said his astrologer has advised him that he has good chances if his Appel is filed on certain Saturday between 11:00 AM to 12 PM.
This was in my control. I agreed to do so. It was filed at time and day given by his astrologer.
In appeal, Supreme Court issued notice to state government. But thereafter when appeal was listed, the judge was not ready to listen and was bent on dismissing case. I had engaged a Senior Counsel, but he was not there, so matter was adjourned.
Thereafter the matter did not come on board for hearing for some reasons. The Judge who strongly wanted to dismiss case, was also retired.
The Police Inspector has completed one year jail. He came out and met me and asked for reasons of delay. I showed him how much I tried to get matter listed early and failed. I asked him to ask his astrologer about delay in hearing.
After some months, the matter was listed before a very kind Judge Justice Sahay. (He was the judge who held that attempt to suicide is not a crime, it is a 'Cry for Help' from society. His judgement was later upturned by three judges of SC)
He looked into grounds of my appeal. In every ground, I have repeatedly said, "My client is father of seven daughters. All his daughters are now reaching marriageable age"
The judge felt, looking at findings of court below, that the prosecution has failed to prove its case beyond reasonable doubt. He acquitted the man.
The man had already served one year jail pending appeal. But he got back his job.
The judgement does not say that the Judge is acquitting him because of her seven daughters. But I have feeling that this was the main reason.
Haresh Raichura
24/4/13 09:59
A villager killed a buffalo.
Police Inspector called him at police station and said he has committed crime of murder under 302 of IPC and can go in jail for life imprisionment unless he pay bribe.
The villager went to Anti corruption crime branch and lodged complaint against police inspector.
A trap was laid by anti corruption branch. Police Inspector was trapped. He was convicted for one year jail for demanding bribe. He was dismissed from job.
High Court confirmed conviction.
He came to me for filing appeal in Supreme Court.
I saw no point in his case and told him so. He still wanted to file appeal. He made a request. He said his astrologer has advised him that he has good chances if his Appel is filed on certain Saturday between 11:00 AM to 12 PM.
This was in my control. I agreed to do so. It was filed at time and day given by his astrologer.
In appeal, Supreme Court issued notice to state government. But thereafter when appeal was listed, the judge was not ready to listen and was bent on dismissing case. I had engaged a Senior Counsel, but he was not there, so matter was adjourned.
Thereafter the matter did not come on board for hearing for some reasons. The Judge who strongly wanted to dismiss case, was also retired.
The Police Inspector has completed one year jail. He came out and met me and asked for reasons of delay. I showed him how much I tried to get matter listed early and failed. I asked him to ask his astrologer about delay in hearing.
After some months, the matter was listed before a very kind Judge Justice Sahay. (He was the judge who held that attempt to suicide is not a crime, it is a 'Cry for Help' from society. His judgement was later upturned by three judges of SC)
He looked into grounds of my appeal. In every ground, I have repeatedly said, "My client is father of seven daughters. All his daughters are now reaching marriageable age"
The judge felt, looking at findings of court below, that the prosecution has failed to prove its case beyond reasonable doubt. He acquitted the man.
The man had already served one year jail pending appeal. But he got back his job.
The judgement does not say that the Judge is acquitting him because of her seven daughters. But I have feeling that this was the main reason.
Haresh Raichura
24/4/13 09:59
May 23, 2013
Understanding Criminal Justice (Part 14) Killing for Private Defence
In India, women are given special provision giving special powers to them that they can kill if they apprehend imminent danger of being raped.
But otherwise, there are general powers given in law of private defence by which a person can use force to protect threat to his or her body or property.
But these are very complicated laws to understand. They look attractive in law books. But are hard to apply in real life.
Some years ago, Supreme Court of India gave a ruling that Right of Private Defence includes also Right to kill aggressor in order to protect oneself.
But there was a caveat in ruling. To avail benefit of Private Defence, you have to prove that situation was so serious that it was really not possible for you to save yourself unless you kill the aggressor.
Now, think how can a man prove this, when perverse investigation has charged him with murder and when he is in jail and when he is facing a trial?
The Court says, he has to specifically take this plea in trial court. In other words, first a) he should admit that he killed the deceased and then b) he should prove through evidence that it was in private defence.
No good lawyer will give him advice to admit anything in a criminal trial.
Suppose if he fails in proving necessary requirements of b) Private Defence, then on basis of his own admission of first part a) , he will be convicted for murder and will be sent to serve a life term.
It is too risky. Particularly when crime investigations are not so good in our country.
For the time being, I will conclude by saying that, when society has started becoming insecure more and more, the Right of Private Defence need to be re-looked by Apex Court by keeping in mind hard realities of trial court situations.
No one would like to exercise Right of Private Defence if proving it is made too difficult. Good citizen will become meek and docile with passage of time.
Haresh Raichura
23/5/13 19:33
But otherwise, there are general powers given in law of private defence by which a person can use force to protect threat to his or her body or property.
But these are very complicated laws to understand. They look attractive in law books. But are hard to apply in real life.
Some years ago, Supreme Court of India gave a ruling that Right of Private Defence includes also Right to kill aggressor in order to protect oneself.
But there was a caveat in ruling. To avail benefit of Private Defence, you have to prove that situation was so serious that it was really not possible for you to save yourself unless you kill the aggressor.
Now, think how can a man prove this, when perverse investigation has charged him with murder and when he is in jail and when he is facing a trial?
The Court says, he has to specifically take this plea in trial court. In other words, first a) he should admit that he killed the deceased and then b) he should prove through evidence that it was in private defence.
No good lawyer will give him advice to admit anything in a criminal trial.
Suppose if he fails in proving necessary requirements of b) Private Defence, then on basis of his own admission of first part a) , he will be convicted for murder and will be sent to serve a life term.
It is too risky. Particularly when crime investigations are not so good in our country.
For the time being, I will conclude by saying that, when society has started becoming insecure more and more, the Right of Private Defence need to be re-looked by Apex Court by keeping in mind hard realities of trial court situations.
No one would like to exercise Right of Private Defence if proving it is made too difficult. Good citizen will become meek and docile with passage of time.
Haresh Raichura
23/5/13 19:33
May 22, 2013
Understanding Criminal Justice (Part 12) "Paper Evidence"
Some evidences in criminal cases are referred to as Documentary Evidences.
There can be letters, certificates, post mortem reports, mobile phone records, pager message records, email records, post cards, inland letters, etc etc.
All these are Documentary or Paper Evidences. There are rules under which these documents are required to be proved. Once they are proved, court can look into them to convict or to acquit an accused.
These are normally used jointly with Word of Mouth or Oral Evidences.
Haresh Raichura
22/5/13 11:45
There can be letters, certificates, post mortem reports, mobile phone records, pager message records, email records, post cards, inland letters, etc etc.
All these are Documentary or Paper Evidences. There are rules under which these documents are required to be proved. Once they are proved, court can look into them to convict or to acquit an accused.
These are normally used jointly with Word of Mouth or Oral Evidences.
Haresh Raichura
22/5/13 11:45
Understanding Criminal Justice (Part 11) "Word of Mouth" Evidence
In criminal cases, certain evidences are referred as Oral Evidence. They can be also described as Word of Mouth Evidence.
Witnesses speak before police about who committed what crime. Police reduces these words in writing as statements of witnesses.
Then witnesses speak before court, who committed what offences. The Court reduces such words in writing as depositions of witnesses.
The lawyers then question the witnesses to find out if they are lying. Their replies are also reduced to writing as cross examinations of witnesses.
All these are words of mouth evidences. Judge and lawyers discuss these evidence about which part is reliable and which is not.
Then the Judgement comes. Many convictions are based only on words of mouth stated on oath before court or before a Magistrate.
Haresh Raichura
22/5/13
Witnesses speak before police about who committed what crime. Police reduces these words in writing as statements of witnesses.
Then witnesses speak before court, who committed what offences. The Court reduces such words in writing as depositions of witnesses.
The lawyers then question the witnesses to find out if they are lying. Their replies are also reduced to writing as cross examinations of witnesses.
All these are words of mouth evidences. Judge and lawyers discuss these evidence about which part is reliable and which is not.
Then the Judgement comes. Many convictions are based only on words of mouth stated on oath before court or before a Magistrate.
Haresh Raichura
22/5/13
Understanding Criminal Justice ( Part 10) Prosecuting Big Companies for Cheating and Murders
Law is settled by Supreme Court that not only individuals, but even companies can be prosecuted for criminal offences.
Though the Companies cannot be jailed, they can be punished with fine and other consequences can follow if a company is convicted for offence like Cheating or Murder etc..
It is easy to understand that a company can be charged with Cheating. But how can it be charged with murder?
There have been cases abroad where Concept of Vicarious Liability of Companies for acts of its key officials, is evolved.
If key officials are involved in conspiracy to murder or to commit any crime, the Company can also be prosecuted and convicted.
In India, such cases are yet not seen. Prosecution and Investigating agencies have yet to work a lot for bringing Crimes of Companies to books.
Haresh Raichura
22/5/13 08:42
Though the Companies cannot be jailed, they can be punished with fine and other consequences can follow if a company is convicted for offence like Cheating or Murder etc..
It is easy to understand that a company can be charged with Cheating. But how can it be charged with murder?
There have been cases abroad where Concept of Vicarious Liability of Companies for acts of its key officials, is evolved.
If key officials are involved in conspiracy to murder or to commit any crime, the Company can also be prosecuted and convicted.
In India, such cases are yet not seen. Prosecution and Investigating agencies have yet to work a lot for bringing Crimes of Companies to books.
Haresh Raichura
22/5/13 08:42
Understanding Criminal Justice (Part 9) Plea-Bargaining Not Taking Off
The concept of plea bargaining was introduced in India because some jurists felt that it may speed up criminal justice system.
Though laws are amended accordingly, the idea has still not received popularity in litigating public.
There are some crimes, where it is possible for Prosecutors to concede and to drop higher charges and to settle for lower punishment.
Here, before beginning of trial, accused has to show willingness to plead guilty if lesser punishment is assured to him. If the prosecutor, the Judge and the defence counsel are able to agree on issue, the accused pleads guilty and he is let off with lesser punishment. It saves valuable time of trial court.
The idea has yet to become popular in India. There must be some practical difficulties and issues of which I may not be aware.
But the law of plea bargaining is now possible in India under certain circumstances.
Haresh Raichura
22/5/13 08:22
Though laws are amended accordingly, the idea has still not received popularity in litigating public.
There are some crimes, where it is possible for Prosecutors to concede and to drop higher charges and to settle for lower punishment.
Here, before beginning of trial, accused has to show willingness to plead guilty if lesser punishment is assured to him. If the prosecutor, the Judge and the defence counsel are able to agree on issue, the accused pleads guilty and he is let off with lesser punishment. It saves valuable time of trial court.
The idea has yet to become popular in India. There must be some practical difficulties and issues of which I may not be aware.
But the law of plea bargaining is now possible in India under certain circumstances.
Haresh Raichura
22/5/13 08:22
Understanding Criminal Justice (Part 8) Degrees of Murders
Very few layman know that the every murder is a killing, but every killing is not a murder.
A murder of highest degree, under Indian laws is punishable with Life Imprisionment or Death Sentence.
But the word murder itself is categorised under degrees.
For example, a killing made due to sudden provocation by diseased, done on spur of moment, without any premeditation stands on different footing than a well calculated and planned killing.
The different punishments are prescribed for these different degrees of murder.
The point is, every murder is not automatically a murder of highest degree. It is job of defence counsel to make out a case for lower punishment under lower degrees of murder.
Haresh Raichura
22/5/13 08:07
A murder of highest degree, under Indian laws is punishable with Life Imprisionment or Death Sentence.
But the word murder itself is categorised under degrees.
For example, a killing made due to sudden provocation by diseased, done on spur of moment, without any premeditation stands on different footing than a well calculated and planned killing.
The different punishments are prescribed for these different degrees of murder.
The point is, every murder is not automatically a murder of highest degree. It is job of defence counsel to make out a case for lower punishment under lower degrees of murder.
Haresh Raichura
22/5/13 08:07
Understanding Criminal Justice (Part 7) Hanged by a Thread
However clever a criminal may be, it is nature's law that something goes wrong and he is caught.
One's a criminal is caught, if he is a simple person, he prays to God for his acquittal.
If he is a little clever or intelligent or influential person, he tries to destroy evidences against him.
Because he knows that a judge will not be able to convict him unless there is evidence on record.
First, deals are with police. Something happens and some evidences become doubtful.
Second, he engages a very clever lawyer, known for getting more acquittal. The lawyer pulls down the evidence to make them look unreliable by art of cross examination, knowledge and experience.
In the last scene, only some threads of evidences remain for a judge to consider. If he considers as reliable even one thread of evidence against accused, he convicts the accused.
This is what I mean by words "hanged by a thread".
Moral: Quantity of Evidence is not relevant. Quality of Evidence is important.
Haresh Raichura
22/5/13 07:18
One's a criminal is caught, if he is a simple person, he prays to God for his acquittal.
If he is a little clever or intelligent or influential person, he tries to destroy evidences against him.
Because he knows that a judge will not be able to convict him unless there is evidence on record.
First, deals are with police. Something happens and some evidences become doubtful.
Second, he engages a very clever lawyer, known for getting more acquittal. The lawyer pulls down the evidence to make them look unreliable by art of cross examination, knowledge and experience.
In the last scene, only some threads of evidences remain for a judge to consider. If he considers as reliable even one thread of evidence against accused, he convicts the accused.
This is what I mean by words "hanged by a thread".
Moral: Quantity of Evidence is not relevant. Quality of Evidence is important.
Haresh Raichura
22/5/13 07:18
May 21, 2013
Understanding Criminal Justice (Part 6) Nothing is certain here
To frame laws, to coin words and to lay down rules of criminal justice is easy.
But to do justice as per law is almost impossible. Humans are genius.
Their actions are neither predictable nor can they be placed in pigeon boxes of law.
For example, if you lay down law that dying declaration of a person should be believed because a dying person tells no lie,.... very next day another case comes up where a dying person has falsely named all members of his enemy's family- including those who were not even city.
To meet new fact situation, the law has to be changed or tweaked again to do justice.
Same is true regarding all other rules and concepts of criminal law. Nothing is certain here.
Even Supreme Court has to qualify most of laws laid down by itself by adding a caveat that 'No hard and fast law can be laid down'...
Each criminal case has its own fate. Nothing here is sure like a mathematical formula. Results are uncertain.
Haresh Raichura
21/5/13 22:10
But to do justice as per law is almost impossible. Humans are genius.
Their actions are neither predictable nor can they be placed in pigeon boxes of law.
For example, if you lay down law that dying declaration of a person should be believed because a dying person tells no lie,.... very next day another case comes up where a dying person has falsely named all members of his enemy's family- including those who were not even city.
To meet new fact situation, the law has to be changed or tweaked again to do justice.
Same is true regarding all other rules and concepts of criminal law. Nothing is certain here.
Even Supreme Court has to qualify most of laws laid down by itself by adding a caveat that 'No hard and fast law can be laid down'...
Each criminal case has its own fate. Nothing here is sure like a mathematical formula. Results are uncertain.
Haresh Raichura
21/5/13 22:10
Understanding Criminal Justice (Part 5) Why Husbands/wives are seen in criminal courts?
Disputes of Husbands and wives are supposed to be decided in civil courts.
Not in criminal courts. They are not the hard core criminals as we understand.
Earlier in times of Britishers, it was noticed that many husbands used to desert their wives.
The deserted wife then had to beg or to sell her virtue to survive.
To overcome, this situation, a speedy remedy was desired.
A provision was made in Criminal Procedure that Magistrate can order husband to pay maintenance per month and can send him to jail if he refuses to do so.
Up to Earlier than, 1980's the upper limit of order was maximum Rs.500/- per month only. Then, Parliament increased limit to Rs.1,000/-, then increased it to 1500/- and then increased to unlimited amount.
Upper limit on power of Magistrate on how much amount he can order, was removed by Parliament.
Since then, as soon as disputes break out, wife moves Magistrate for maintenance and sometimes asks Rs.25,000/- to Rs.1,00,000/- per month or more as per her status. If the husband is serving in foreign country in some multinational company- he instantly faces chance of losing job on account of this criminal case in India....
Husbands are summoned in criminal court to face the case.
These are misuses of good laws.
The wife nowadays, no more wants to go to civil court get her civil rights decided.
Her first choice is to file a criminal case against husband and in laws for maintenance.
This is how well-meant laws are abused. This is how families are broken in India.
Haresh Raichura
21/5/13 13:51
Not in criminal courts. They are not the hard core criminals as we understand.
Earlier in times of Britishers, it was noticed that many husbands used to desert their wives.
The deserted wife then had to beg or to sell her virtue to survive.
To overcome, this situation, a speedy remedy was desired.
A provision was made in Criminal Procedure that Magistrate can order husband to pay maintenance per month and can send him to jail if he refuses to do so.
Up to Earlier than, 1980's the upper limit of order was maximum Rs.500/- per month only. Then, Parliament increased limit to Rs.1,000/-, then increased it to 1500/- and then increased to unlimited amount.
Upper limit on power of Magistrate on how much amount he can order, was removed by Parliament.
Since then, as soon as disputes break out, wife moves Magistrate for maintenance and sometimes asks Rs.25,000/- to Rs.1,00,000/- per month or more as per her status. If the husband is serving in foreign country in some multinational company- he instantly faces chance of losing job on account of this criminal case in India....
Husbands are summoned in criminal court to face the case.
These are misuses of good laws.
The wife nowadays, no more wants to go to civil court get her civil rights decided.
Her first choice is to file a criminal case against husband and in laws for maintenance.
This is how well-meant laws are abused. This is how families are broken in India.
Haresh Raichura
21/5/13 13:51
Understanding Criminal Justice (Part 4) Justice based on prejudices of judges
I am not criticising Judges or Lawyers who participate in criminal justice. They are doing a great service to nation. They know the value of work done by them. I am also aware of high value of work done by them.
But a system based on Prejudices of Judges is sign of a very very weak judicial system.
When a client comes, we say, you case can come up for hearing before any of two judges, either in court of Mr. Justice X or in court of Mr. Justice Y.
If it comes up for hearing before Mr. Justice Y, you will be acquitted or will be granted bail.
But if it comes up for hearing before Mr. Justice X, you are dead. He will dismiss your case in half a minute only.
And so it happens.
Our predictions are based on knowledge about prejudices of judges and our experience.
But..... these are sign of a very very weak judicial system. They send all sorts of undesirable messages to people.
Haresh Raichura
21/5/13 09:19
But a system based on Prejudices of Judges is sign of a very very weak judicial system.
When a client comes, we say, you case can come up for hearing before any of two judges, either in court of Mr. Justice X or in court of Mr. Justice Y.
If it comes up for hearing before Mr. Justice Y, you will be acquitted or will be granted bail.
But if it comes up for hearing before Mr. Justice X, you are dead. He will dismiss your case in half a minute only.
And so it happens.
Our predictions are based on knowledge about prejudices of judges and our experience.
But..... these are sign of a very very weak judicial system. They send all sorts of undesirable messages to people.
Haresh Raichura
21/5/13 09:19
May 20, 2013
Understanding Criminal Justice (Part 3) Mysterious Suicides of girls in small towns
In large numbers of districts in India, mysterious suicides of girls take place at regular intervals.
Since these deaths are wound up as suicides, the cases never reach courts.
Judges and lawyers never get opportunity to examine these deaths.
But if newspaper cuttings of such mysterious suicides are analysed, it may be seen :-
1) The dead girl was poor or middle class family.
2) She was suspected to have illicit relations with few boys of rich families.
3) A "Who Done it" mysterious suicide story run for about a month in local vernacular language newspapers.
4) A suspicion arises that under guise of investigation, police may be interrogating parents of rich boys to extort bribes for winding up murder as suicide.
And after a month, chapter is closed as mysterious suicide.
In present laws, there are no provisions that mysterious deaths also are required to be reported to court.
Haresh Raichura
20/5/13
Since these deaths are wound up as suicides, the cases never reach courts.
Judges and lawyers never get opportunity to examine these deaths.
But if newspaper cuttings of such mysterious suicides are analysed, it may be seen :-
1) The dead girl was poor or middle class family.
2) She was suspected to have illicit relations with few boys of rich families.
3) A "Who Done it" mysterious suicide story run for about a month in local vernacular language newspapers.
4) A suspicion arises that under guise of investigation, police may be interrogating parents of rich boys to extort bribes for winding up murder as suicide.
And after a month, chapter is closed as mysterious suicide.
In present laws, there are no provisions that mysterious deaths also are required to be reported to court.
Haresh Raichura
20/5/13
Understanding Criminal Justice (Part 2)
When corruption is high, no one is interested in preventing crime.
The Police gets no bribe if it stops the crime. But if it allows the crime to be committed, it can get huge bribes from those who have committed crime.
In a Corrupt State, crime investigation is often a tool for blackmailing people who have committed crime and to extort bribes from them- sometimes to destroy evidences against them also.
Yes. So far as the poor criminals are concerned, they cannot afford to pay bribes.
So their crimes get investigated, cases are filed. And these cases keep lawyers and judges busy.
I repeat the underlying thought in this post:-
In a Corrupt State, no one is motivated for stopping a crime. The rewards in form of bribes come only after a crime takes place
Haresh Raichura
20/5/13 19:31
The Police gets no bribe if it stops the crime. But if it allows the crime to be committed, it can get huge bribes from those who have committed crime.
In a Corrupt State, crime investigation is often a tool for blackmailing people who have committed crime and to extort bribes from them- sometimes to destroy evidences against them also.
Yes. So far as the poor criminals are concerned, they cannot afford to pay bribes.
So their crimes get investigated, cases are filed. And these cases keep lawyers and judges busy.
I repeat the underlying thought in this post:-
In a Corrupt State, no one is motivated for stopping a crime. The rewards in form of bribes come only after a crime takes place
Haresh Raichura
20/5/13 19:31
Understanding Criminal Justice (Part 1) Why courts acquit some criminals
Here, I wish to jot down some recollections of past cases to make you familiarise with the way criminal justice system works.
Many years ago, a man comes in the village market. 12 people are waiting there with various kinds of arms like swords, sticks etc.
As soon as the man comes in market, he is attacked and is killed. As per my recollection, there may be 30 or more injuries on his body.
It trial court, eye witnesses who saw the incident gave clear evidence.
The trial court convicted all the 12 to life Imprisionment.
They went in appeal to High Court. High Court admitted appeal, but refused bail.
After two years, High Court acquitted all of them.
The judgement was perverse. The Judge did not look at evidence properly. Nor did he discuss why Sessions Judge was wrong.
By giving some superficial reasons, High Court had acquitted all.
The Complainant, the relative of deceased came to Supreme Court and challenged acquittal.
Supreme Court admitted appeal.
After many years, appeal came up for hearing. I was for complainant. I had engaged a Senior Advocate to argue.
To me, judgement of High Court was clearly wrong. All the 12 accused were liable to be sent to jail. And we were likely to succeed in appeal.
As soon as the appeal was called out, the Supreme Court Judges made it clear to Sr Advocate that they are not inclined to go into merits of appeal and are inclined dismiss our appeal.
I was shocked. But the Senior Advocate was cool.
He understood why judges were not inclined to hear appeal even if High Court Judgement was wrong.
He did not argue much. I kept nudging and keep insisting him to fight forcefully.
The Judges saw my impatience. They smiled. Then they looked at Senior Advocate and said,
"Look, we will tell you how judges think. This is not written in any law books. You will not find it in any law reports. But this is how we think.
"Here, one life is lost. Therefore 20 years jail. Here, 12 persons have already spent two years in jail. That means 24 Years have been spent in jail.
That is enough according to us. These are our thumb rules, not reported in law books".
I understood and became calm.
The appeal was dismissed.
Later, I found another reason, why Supreme Court refused to set aside acquittal.
The deceased was a head strong terror man. The women in villages did not feel safe because of vulgarity of deceased. He was a criminal. The 12 villagers had just joined together and had killed him for the peace in village.
Well, the Judges did not say anything. But these facts must have weighed in their minds too.
Haresh Raichura
20/5/13 08:20
Many years ago, a man comes in the village market. 12 people are waiting there with various kinds of arms like swords, sticks etc.
As soon as the man comes in market, he is attacked and is killed. As per my recollection, there may be 30 or more injuries on his body.
It trial court, eye witnesses who saw the incident gave clear evidence.
The trial court convicted all the 12 to life Imprisionment.
They went in appeal to High Court. High Court admitted appeal, but refused bail.
After two years, High Court acquitted all of them.
The judgement was perverse. The Judge did not look at evidence properly. Nor did he discuss why Sessions Judge was wrong.
By giving some superficial reasons, High Court had acquitted all.
The Complainant, the relative of deceased came to Supreme Court and challenged acquittal.
Supreme Court admitted appeal.
After many years, appeal came up for hearing. I was for complainant. I had engaged a Senior Advocate to argue.
To me, judgement of High Court was clearly wrong. All the 12 accused were liable to be sent to jail. And we were likely to succeed in appeal.
As soon as the appeal was called out, the Supreme Court Judges made it clear to Sr Advocate that they are not inclined to go into merits of appeal and are inclined dismiss our appeal.
I was shocked. But the Senior Advocate was cool.
He understood why judges were not inclined to hear appeal even if High Court Judgement was wrong.
He did not argue much. I kept nudging and keep insisting him to fight forcefully.
The Judges saw my impatience. They smiled. Then they looked at Senior Advocate and said,
"Look, we will tell you how judges think. This is not written in any law books. You will not find it in any law reports. But this is how we think.
"Here, one life is lost. Therefore 20 years jail. Here, 12 persons have already spent two years in jail. That means 24 Years have been spent in jail.
That is enough according to us. These are our thumb rules, not reported in law books".
I understood and became calm.
The appeal was dismissed.
Later, I found another reason, why Supreme Court refused to set aside acquittal.
The deceased was a head strong terror man. The women in villages did not feel safe because of vulgarity of deceased. He was a criminal. The 12 villagers had just joined together and had killed him for the peace in village.
Well, the Judges did not say anything. But these facts must have weighed in their minds too.
Haresh Raichura
20/5/13 08:20
May 17, 2013
Sample Copy of a PIL or Writ Petition for Directing Authorities to supply enough drinking water..
Please note that this is just a rough draft for education purpose only. This is not legal advice. You need to act only after consulting a certified legal practitioner. This post is inspired by some tweets regarding people dying without water in village, 100 km from Mumbai, from where drinking water is supplied to Mumbai.
-------------------
In The High Court of ___________
Writ Petition (Civil) PIL No. ... Of 2013
In the matter between:
ABC, an NGO or Public Spirited
Group of Person, through
Secretary,
Address.....
Versus
The Water Supply Authority
Through, Chairman,
Address
__________. ....... Respondent
A Writ Petition PIL under Art.21,14 and Art.226 of the Constitution of India.
To
The Hon'ble Chief Justice and
His Companion Justices
In the High Court of ______
Most Respectfully Showth:
1) That the petitioner is a non profit making, public spirited organisation. The petition is filed through secretary of the institution. The credentials and authority letters are annexed herewith at Anx.A
2. The petition is filed for benefit of poor resident of village_____ who are denied drinking water which is their fundamental right.
The petitioner and the persons for whose benefit this petition is filed are citizens of India and hence they are entitled to approach this Hon'ble Court for protection of their fundamental rights under Art.21, Art. 14 Art.226 of the Constitution of India
3) The Fact Situation Relating to Drinking water shortage at village _____
______
______
4) Details Representations made by petitioners to various authorities for making available drinking water and replies if any received:
_______
______
The correspondence is Annexed at Annexture B
5.. It is submitted that Right to Drinking water is Findamental Right under Art.21 of the Constitution of India. Because of inaction of respondent authority right under Art.21 is violated and this Hon'ble Court may be pleased to issue appropriate directions to protect Art 21
6.... That, the inaction of respondent is arbitrary and without any just excuse and therefore Art.14 is violated.
7. That petitioner has no other efficacious remedy except to approach this Hon'ble Court by way of this writ petition under Art.226 of the Constitution of India.
8. That the petitioner has not filed any other petition on the same subject matter either in Supreme Court or in this Hon'ble High Court except this present petition.
9. The annextures, photographs, CD, Video film etc are true and correct copies.
10 The petitioner reserves right to amend, add, modify or to rescind any contents of this petition if so required in the interest of justice.
11. In above facts and circumstances, the petitioner humbly prays that
A) Your Lordship may be pleased to issue writ of mandamus or any other writ or direction or order under Art.226 of the Constitution of India to protect rights of petitioner under Art. 14,21, by directing respondent to forthwith provide drinking water to village___ District_____
B) Pending hearing and final disposal of this petition, Your Lordship may be pleased to direct respondent supply drinking water by at least 3 Tankers per day to village______ District_____
C) Any other relief, or order which Your Lordship may deem fit to pass
AND FOR THIS ACT OF KINDNESS, THE PETITIONER SHALL REMAIN OBLIGED AS IN DUTY BOUND
Advocate for Petitioner
Date:
Place:_______
-------------------
In The High Court of ___________
Writ Petition (Civil) PIL No. ... Of 2013
In the matter between:
ABC, an NGO or Public Spirited
Group of Person, through
Secretary,
Address.....
Versus
The Water Supply Authority
Through, Chairman,
Address
__________. ....... Respondent
A Writ Petition PIL under Art.21,14 and Art.226 of the Constitution of India.
To
The Hon'ble Chief Justice and
His Companion Justices
In the High Court of ______
Most Respectfully Showth:
1) That the petitioner is a non profit making, public spirited organisation. The petition is filed through secretary of the institution. The credentials and authority letters are annexed herewith at Anx.A
2. The petition is filed for benefit of poor resident of village_____ who are denied drinking water which is their fundamental right.
The petitioner and the persons for whose benefit this petition is filed are citizens of India and hence they are entitled to approach this Hon'ble Court for protection of their fundamental rights under Art.21, Art. 14 Art.226 of the Constitution of India
3) The Fact Situation Relating to Drinking water shortage at village _____
______
______
4) Details Representations made by petitioners to various authorities for making available drinking water and replies if any received:
_______
______
The correspondence is Annexed at Annexture B
5.. It is submitted that Right to Drinking water is Findamental Right under Art.21 of the Constitution of India. Because of inaction of respondent authority right under Art.21 is violated and this Hon'ble Court may be pleased to issue appropriate directions to protect Art 21
6.... That, the inaction of respondent is arbitrary and without any just excuse and therefore Art.14 is violated.
7. That petitioner has no other efficacious remedy except to approach this Hon'ble Court by way of this writ petition under Art.226 of the Constitution of India.
8. That the petitioner has not filed any other petition on the same subject matter either in Supreme Court or in this Hon'ble High Court except this present petition.
9. The annextures, photographs, CD, Video film etc are true and correct copies.
10 The petitioner reserves right to amend, add, modify or to rescind any contents of this petition if so required in the interest of justice.
11. In above facts and circumstances, the petitioner humbly prays that
A) Your Lordship may be pleased to issue writ of mandamus or any other writ or direction or order under Art.226 of the Constitution of India to protect rights of petitioner under Art. 14,21, by directing respondent to forthwith provide drinking water to village___ District_____
B) Pending hearing and final disposal of this petition, Your Lordship may be pleased to direct respondent supply drinking water by at least 3 Tankers per day to village______ District_____
C) Any other relief, or order which Your Lordship may deem fit to pass
AND FOR THIS ACT OF KINDNESS, THE PETITIONER SHALL REMAIN OBLIGED AS IN DUTY BOUND
Advocate for Petitioner
Date:
Place:_______
When Police catches accused, they are brought with faces covered. This is for...
When Police catches accused, they are brought with faces covered to the Court of Magistrate.
This is for the purpose that later in the day or within couple of days, an identification parade will be held in presence of a District Magistrate.
Here, accused will be mixed up with similar looking other persons. From this group, the witnesses will identify the accused persons.
The whole process is reduced to writing and is later produced as evidence of identification parade in court.
Haresh Raichura
17/5/13 21:11
Thanks to @MsWeera for the question.
This is for the purpose that later in the day or within couple of days, an identification parade will be held in presence of a District Magistrate.
Here, accused will be mixed up with similar looking other persons. From this group, the witnesses will identify the accused persons.
The whole process is reduced to writing and is later produced as evidence of identification parade in court.
Haresh Raichura
17/5/13 21:11
Thanks to @MsWeera for the question.
Spot Fixing in Cricket- Doubts and What may be required to be proved for IPC 420-120B Case-
The new crimes are taking place. The Indian Penal Code provisions are very old. A question will be certainly raised in some cases as to how offense of Cheating and Criminal Conspiracy -IPC 420 and 120 B can apply in spot fixing cases and what may be needed to be proved.
1) It has to be proved that earlier, there was a meeting of mind between players and bookies.
2) That conspiracy was to cheat masses who may be watching cricket matches in Stadium after buying tickets.
3) That, act pursuant to Conspiracy, were actually committed.
Here the IMPORTANT POINT is there is NO CHEATING between The alleged Players and The alleged Bookies.
The Cheating is alleged with public which was induced to part with money by buying tickets in stadium.
Here, the people purchased Tickets from Match Organizers. How it can be proved that any inducement to part with money was ever given to public either by Players or by Bookies....?
At least I am not clear how the crime will be proved.... I am sure that Judge will lay down correct law in such cases.
Haresh Raichura
17.5.2013 16:15
1) It has to be proved that earlier, there was a meeting of mind between players and bookies.
2) That conspiracy was to cheat masses who may be watching cricket matches in Stadium after buying tickets.
3) That, act pursuant to Conspiracy, were actually committed.
Here the IMPORTANT POINT is there is NO CHEATING between The alleged Players and The alleged Bookies.
The Cheating is alleged with public which was induced to part with money by buying tickets in stadium.
Here, the people purchased Tickets from Match Organizers. How it can be proved that any inducement to part with money was ever given to public either by Players or by Bookies....?
At least I am not clear how the crime will be proved.... I am sure that Judge will lay down correct law in such cases.
Haresh Raichura
17.5.2013 16:15
May 16, 2013
Usually, small people walk to Anti-Corruption Branches of Police to lodge complaint against corrupt officers
Talking against corruption is one thing. To actually enter in battle field and to fight actual battle is another thing.
Usually, people living in poverty or who have moderate income, stand up to fight back. They are not rich enough to afford to pay bribe of Rs.1000/-.
They walk to the Anti Corruption branch of Police wing. There, their complaint is registered. Then they are guided about the trap to be laid.
As per directions, the traps are laid and the corrupt official is caught.
These people are small soldiers who Walk the Talk.
Haresh Raichura
19/5/13 12:23
Usually, people living in poverty or who have moderate income, stand up to fight back. They are not rich enough to afford to pay bribe of Rs.1000/-.
They walk to the Anti Corruption branch of Police wing. There, their complaint is registered. Then they are guided about the trap to be laid.
As per directions, the traps are laid and the corrupt official is caught.
These people are small soldiers who Walk the Talk.
Haresh Raichura
19/5/13 12:23
May 15, 2013
"No one comes here for charity"- Remark of experienced Judge
Very often litigants who come to court say that they are doing this case for good of public or for charity to poor.
Over the years, I have found these claims to be false. Therefore when one judge remarked, "No one comes here for charity" stuck immediate chord in my heart.
The sentence "No one comes here for charity" takes away wind from all so called public interest litigants. Most of them have some private agenda also. This private agenda goes side by side in name of doing charitable work for public.
Haresh Raichura
15/5/13 10:250
May 13, 2013
SC: Test to know whether candidate was holding "Office of Profit" when contesting election
Justice R.C. Lahoti (Former Chief Justice of India)
"This court has laid down the tests for finding out whether the office in question is an office of profit under a Government. These tests are Whether the Government makes the appointment: Whether the Government has the right to remove or dismiss the holder whether the Government pays the remuneration what are the functions of the holder? Does he perform them for the Government and Does the Government exercise any control over the performance of those functions." (Vide Pradyut Vs. Swapan 2000 (8) SCALE 297)
"This court has laid down the tests for finding out whether the office in question is an office of profit under a Government. These tests are Whether the Government makes the appointment: Whether the Government has the right to remove or dismiss the holder whether the Government pays the remuneration what are the functions of the holder? Does he perform them for the Government and Does the Government exercise any control over the performance of those functions." (Vide Pradyut Vs. Swapan 2000 (8) SCALE 297)
+++ For Men only : An ignorance which need to be removed by repeating it a million times.
In India, there are more than 50 Crore men and boys. Many of them do not know that it is in the sperm of MAN , which decides whether he will get a baby boy or a baby girl.
Since centuries, we proud Indians are blaming, beating and divorcing a woman who cannot deliver a Baby Boy.
Woman has nothing to do with it. Her egg in her body contains only
yy cells.
Man's sperm delivers x and y sperm to woman. If he delivers x gene, boy is born. If he delivers y, then a baby girl is born.
If we want to punish someone for birth of a Baby Girl, it is the man who need not be punished. And not the woman.
This fact need to be told retold again millions of time. Because in my view, out of 50 Crore boys and men, 49 Crore men and boy may not be knowing this fact
SC quotes Lord denning : If local authority does not fulfil the law , this court will see that it does.
Justice Lord Denning
"A passage from the judgement of Lord Denning in Bradbury and Ors. Vs. London Borough of Enfiled, 1967 (3) All England Law reports Page 434, was also pressed into service by Mr. P.P. Rao, which it is worth - while to quote hereunder:-
"It has been suggested by the Chief education officer that, if an injunction is granted, chaos will supervene. All the arrangement have been made for the next terms, the teachers appointed to the new comprehensive schools, the pupils allotted their places, and so forth. It would be next to impossible, he says, to reverse all these arrangements without complete chaos and damages to teachers, pupils and the public. I must say this: if a local authority does not fulfil the requirements of the law, this coaurt will see that it does fulfil them. It will not listen readily to suggestions of "chaos". The department of education and the council are subject to the rule of law and must comply with, just like everyone else. Even if chaos should result, still the law must be obeyed; but I do not think that chaos will result. The evidence convinces me that the "chaos" is much over-stand". (Vide State Govt. Vs. Karnataka 2000 (8) Scale 281).
SC: Weapon of contempt not to be used in abundance or misused.
Justice M.B. Shah
"We may reiterate that weapon of contempt is not to be used in abundance or misused. Normally, it cannot be used for execution of the decree or implementation of an order for which alternative remedy in law is provided for . Discretion given to the Court is to be exercised for maintenance of Court's dignity and majesty of law." ( R.N. Dey Vs. Bhagyabati 2000 (3) Scale 365).
"We may reiterate that weapon of contempt is not to be used in abundance or misused. Normally, it cannot be used for execution of the decree or implementation of an order for which alternative remedy in law is provided for . Discretion given to the Court is to be exercised for maintenance of Court's dignity and majesty of law." ( R.N. Dey Vs. Bhagyabati 2000 (3) Scale 365).
SC: It is for the law courts to rise up to the occasion and grant relief to a seeker of a just cause.
Justice U.C. Banerjee and Justice S.B. Majmudar;
The society shall have to thrive: The society shall have to prosper and this prosperity can only come in the event of there being a wider vision for total social good and benefit. It is not bestowing any obligation to see that the society thrives. The deprivation of the weaker section we had for long but time has now come to cry halt and it is for the law courts to rise up to the occasion and grant relief to a seeker to a just cause. (G.B.Pant Uni. Vs. U.P. 2000 (5) Scale 569)
The society shall have to thrive: The society shall have to prosper and this prosperity can only come in the event of there being a wider vision for total social good and benefit. It is not bestowing any obligation to see that the society thrives. The deprivation of the weaker section we had for long but time has now come to cry halt and it is for the law courts to rise up to the occasion and grant relief to a seeker to a just cause. (G.B.Pant Uni. Vs. U.P. 2000 (5) Scale 569)
Supreme Court quotes Tolstoy and Swami Vivekananad - an ideal situation but a far cry presently.
Justice Umesh C. Banerjee & Justice S.B. Majmudar
Tolstoy wrote:
"the abolition of slavery has gone on far a long time. Rome abolished slavery. America
abolished it and we did but only the words were abolished, not the thing."
Perhaps what Tolstoy wrote about abolition of slavery in a large sense applies to what we have done to the constitutional ethos. It has still remained on paper and is contained in the book, common man. What Swami Vivekananda wrote in a different context may perhaps help a quicker implementation of the goal to bring about the overdue changes for transforming India in a positive way and in fulfilling the dreams of the Constitution fathers. These were the words of the Swami:
"It is imperative that all this various yogas should be carried out in practice. More theories about them will not do any good. First we have to hear about them; then we have to think about them. We have to reason the thoughts out, impress them on our minds and mediate on them; realise them, until at last they become our whole life. No longer will religion remain a bundle of ideas or theories or an intellectual assent; it will enter into out very self. By means of an intellectual assent, we may today subscribe to may foolish things, and change our minds altogether tomorrow. But true religion never changes. Religion is realisation; not talk, nor doctrine, nor theories, however beautiful they may be. It is being and becoming not hearing or acknowledging. It is the whole soul's becoming changed into what it believes. that is religion."
As a matter of fact the constitutional philosophy should be allowed to become a part of every man's life in this country and then only the Constitution can reach everyone and the ideals of the Constitution framers would be achieved since the people would be nearer the goal set by the Constitution - an ideal situation but a far cry presently. (Balbir Vs. Steel Authority 2000 (4) Scale 670)
Tolstoy wrote:
"the abolition of slavery has gone on far a long time. Rome abolished slavery. America
abolished it and we did but only the words were abolished, not the thing."
Perhaps what Tolstoy wrote about abolition of slavery in a large sense applies to what we have done to the constitutional ethos. It has still remained on paper and is contained in the book, common man. What Swami Vivekananda wrote in a different context may perhaps help a quicker implementation of the goal to bring about the overdue changes for transforming India in a positive way and in fulfilling the dreams of the Constitution fathers. These were the words of the Swami:
"It is imperative that all this various yogas should be carried out in practice. More theories about them will not do any good. First we have to hear about them; then we have to think about them. We have to reason the thoughts out, impress them on our minds and mediate on them; realise them, until at last they become our whole life. No longer will religion remain a bundle of ideas or theories or an intellectual assent; it will enter into out very self. By means of an intellectual assent, we may today subscribe to may foolish things, and change our minds altogether tomorrow. But true religion never changes. Religion is realisation; not talk, nor doctrine, nor theories, however beautiful they may be. It is being and becoming not hearing or acknowledging. It is the whole soul's becoming changed into what it believes. that is religion."
As a matter of fact the constitutional philosophy should be allowed to become a part of every man's life in this country and then only the Constitution can reach everyone and the ideals of the Constitution framers would be achieved since the people would be nearer the goal set by the Constitution - an ideal situation but a far cry presently. (Balbir Vs. Steel Authority 2000 (4) Scale 670)
May 9, 2013
How to fight against gender bias arbitrarily laws- Some suggestions
You cannot frighten away a bad law by making noises about it in social media or print media.
The Constitution says three things :
1) State will not discriminate among citizens on basis of gender.
So it can not pass laws which are more in favour of one gender and which are less in favour of other gender.
2) Secondly, it says that, State can make laws to protect a Weaker class.
So State can pass laws, if they are really intended to protect a weaker class. But such classification should be based on sound reasons.
3) It says, that HC and SC has power to declare a law bad, if some one proves to it that certain law passed by any State or Centre is violative of fundamental rights and the classification made is not sound.
4) Such petition has to be filed in High Court under Art. 226, 13,14 etc.
5) Such petitions can be filed in Supreme Court under Art.32,13,14 etc.
6) The petition should be filed by some bonafide NGO or Social Organisation which may be working in this area from quite some time.
7) Petition should be backed by undisputed research and data on which judges can rely.
Haresh Raichura
09/05/13 12:35
May 7, 2013
"Mr. Accused, this is the evidence against you. Tell me whatever you want to tell me."- Judge asks every accused. Know procedure
At end of prosecution statement, Judge asks this question to every accused.
The Judge summarises to accused what each witness has said against him. And each point, he asks the accused to explain his position.
This procedure is prescribed under Sec.313 of Criminal Procedure Code.
If accused believes that he is falsely implicated in case, this is his chance to explain to judge, why certain witness was lying. He can also request court to call as witnesses some persons who can prove that he is innocent.
A good defence lawyer can guide accused about how to use this opportunity to his advantage.
Haresh Raichura
07/05/13 09:44
+++ What most of People do not know about Juvenile Justice Age System? (Part 2)
Most people are not aware how Court decides whether an accused is juvenile or not. If his juvenile (below age of 18), then, different law and milder punishments apply.
1) First, Court will go by the age shown in birth Certificate, produced in school at the time of admission in First Attended School.
2) Then on Municipal Records showing birthdate.
3) If (1) and (2) are not available, then Doctors Radiologist will conduct a bone test report to determine date of birth on basis of density of bone mass.
Haresh Raichura
7/5/13 02:52
+++ What most of People do not know about Juvenile Justice Age System? (Part 1)
Most people in India do not following facts about Juvenile Justice Act.
1) It is open for each and every state to reduce Age when an accused can be considered Juvenile.
The Central Govt has long back fixed age at 18. But it is open to each and every state in country to reduce age to 16 or below or other criteria.
2) During Nirbhaya case protest, pressure was applied on Central Govt to reduce age. But why pressurise Central Govt only. Each and every State has power to amend this age to 17 or 16 or below.
3) The State Law makers and Chief Ministers ought to think on this issue.
4) But why should they make such change? We need to assure them that their votes will increase if age is reduced.
Haresh Raichura
7/7/13 02:26
May 5, 2013
Legal Tip: With the help of tape recording, a husband got divorce successfully
Today, just now my old client told me on phone that he had succeeded in getting divorce.
He was tricked into a marriage. When he learned about fraud, he fought for divorce.
Against maintenance order he had come to me. I could not get much relief for him, but his suit was expedited.
Every stage, every judge asked him to reconcile. But he said, even if Rama and Krishna will come and ask him to reconcile, he will refuse.
In one meeting with in laws, he got certain illegalities recorded about "Quick Marriage" into which he was trapped.
This telephone recording helped as he filed it in court divorce case.
He finally succeeded and now lives happily.
For talking him into marriage, she had told me that she was selected and appointed as an IAS officer. Later, this fraud was discovered.
Haresh Raichura
5/5/13 18:06
May 3, 2013
+++ Are 'Sharia Courts', 'Hindu Courts', 'Khap Courts' "Caste Courts', 'Sarkar Court' etc valid in law?
Arrears of cases are piled up in courts. Disputes are increasing by leaps and bounds. People have started looking elsewhere for resolving disputes.
Every one is supposed to have a personal law. Or there can be custom laws being followed by centuries in some caste.
PRIVATE BODIES
1) Such bodies are like Lok Adalats.
2) They derive their power to judge from consent of parties. They can decide only civil disputes like family disputes. They cannot touch criminal matters. They cannot decide 498A IPC cases even if this may be a family dispute.
3) They cannot decide where one party wants to go to regular court. Hindu, Muslim, Parsi, Sikh whosoever, he may be. No one can force him and no one can prevent him from going to court.
4) Such bodies cannot decide Criminal Disputes.
5) Orders of such bodies can be cancelled by Regular Courts if the orders are obtained by using forced consent or fraudulent consent of one party.
6. Such Private or Customary or Religion based, or Panchayat based courts are not believed to be sign of a healthy rule of law. But when we have few judges, few courts, alternative routes have to be tried. Abuse if any, can be set right by regular court.
7. Such courts have no power to force attendance of party. Nor can it use force to make anyone obey its order.
Haresh Raichura
3/5/13
SC Milestone: All orders of Presidents and Governors, granting or rejecting mercy petitions, liable to be cancelled by courts if wrong.
Popular knowledge is such that President of India is top authority of India and its orders are Supreme.
No.
The fact is Supreme Court and Rule of Law are Supreme in India.
The Constitution provides for a " Basic Structure" which cannot be altered by Parliament of India even by amending Constitution!
One condition of Basic Structure is such that orders of Even Highest Authority of the Country can be set aside by Courts, which are here to uphold Rule of Law.
Thus, Rule of Law is Supreme in India. The Rule of Law is what Supreme Court of India says.
IMPLICATIONS
This has wide implication. Supreme Court has ruled that Life means whole life imprisionment, but it is open to President and Governors to release life convicts after 14 years in jail.
So now all life convicts can queue before ministers to get their release through President or Governor's pardon. This powers can be abused. And ruling parties may release criminals for political purposes.
THE CATCH
The catch is, Supreme Court and High Court can cancel wrongly granted pardons and can put back criminals in jail.
THE QUESTION
If a dreaded criminal is given pardon or released wrongly from jail, sometimes even before mandate of 14 years, who will dare to come to court to challange such wrong order? Will Supreme Court or High Court protect him after he has filed such a public interest petition?
Haresh Raichura
5th May, 2013
No.
The fact is Supreme Court and Rule of Law are Supreme in India.
The Constitution provides for a " Basic Structure" which cannot be altered by Parliament of India even by amending Constitution!
One condition of Basic Structure is such that orders of Even Highest Authority of the Country can be set aside by Courts, which are here to uphold Rule of Law.
Thus, Rule of Law is Supreme in India. The Rule of Law is what Supreme Court of India says.
IMPLICATIONS
This has wide implication. Supreme Court has ruled that Life means whole life imprisionment, but it is open to President and Governors to release life convicts after 14 years in jail.
So now all life convicts can queue before ministers to get their release through President or Governor's pardon. This powers can be abused. And ruling parties may release criminals for political purposes.
THE CATCH
The catch is, Supreme Court and High Court can cancel wrongly granted pardons and can put back criminals in jail.
THE QUESTION
If a dreaded criminal is given pardon or released wrongly from jail, sometimes even before mandate of 14 years, who will dare to come to court to challange such wrong order? Will Supreme Court or High Court protect him after he has filed such a public interest petition?
Haresh Raichura
5th May, 2013
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