28A(1) (d) SEBI's power to order Arrest and Civil Prison is Subject Judicial Precedents under Income Tax & Other Laws
Since August, 2014, SEBI's Recovery Officer is given power to order Civil Prison of defaulter.
The provision further says that this provisions is subject to other provisions of Income Tax Act etc.
The provision itself does not contain any guideline about
1) Length of such Detention and
2) Findings which are necessary to be recorded by Recovery officer before ordering Arrest and Civil Prison.
The section only speaks about purpose of Arrest and Detention.. --That is to enforce recovery of dues of SEBI.
SIMILAR PROVISIONS IN OTHER LAWS.
There are similar provisions in other laws. Namely, in Civil Procedure Code and Income Tax Act.
Validities of such provisions have been challenged upto Supreme Court and the Law is by and large settled by Supreme Court decisions in this area,...
mainly on following THREE POINTS.
Point 1 : India is a signatory to International Convention where it has signed that in India, no one will be sent to jail on ground that he has no money to pay debt.
Point 2 : If a person has no money to pay, he cannot be sent to jail for inability to pay debt.
Point 3 : Even if a person has no money to pay debt, he can be sent to jail if it is found that in order to avoid payment of debt, he had malafidely disposed off all his money and properties.
CONCLUSION
As per judicial precedents, the Recovery officer can arrest and detain a person only if he records findings that
1) Though defaulter had means to pay dues, he has malafidely disposed off his properties to avoid payment of SEBI dues
2) Though he has means to pay, he is avoiding payment.
PROCEDURE
Before ordering Arrest, Recovery Officer issues a notice to Defaulter.
In reply, the Defaulter should produce all details to support his stand that he has actually no property to pay dues, and he has done nothing to malafidely disposed off his properties to avoid debt, and he has bonafidely no means to pay.
If inspite of such facts, Recovery and Arrest are ordered, then Defaulter should take appropriate legal remedy to challenge vires of this provision after taking suitable legal advice.
The views expressed above are in general nature and is not a legal advice.
Haresh Raichura
31/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
December 31, 2014
Under present law, public is not given right to Appeal against Censor Board Certificate. Only producer can Appeal
At present, under Cinemetrograph Act, as per my reading of the Act, if a person applying for Censor Board Certificate is aggrieved by any orders of cutting scenes or refusing certificate, he can apply to Appellate Tribunal.
But Common man does not appear to have been given a right to challenge a Certificate of Censor Board before any Tribunal.
This is lacuna in law.
A common man can go to High Court or Supreme Court by way of writ petition. But here Court may say, "The people sitting in Censor Board are expert on the Film subject. How can we substitute our decision in place of their decision?"
It means that the person going to High Court or Supreme Court can satisfy Court to interfere only if he produces Opinion of some well known experts on film industry to suggest that Certificate is wrongly given or that certain scenes ought to be cut.
Haresh Raichura
31/12/14
Copyright : Haresh Raichura 2014 All Rights Reserved
Apparently Unconstitutional Provision - 129E & 129EE of Customs Act, Requiring Pre Deposits for Appeals
In India, challenging an Unconstitutional Provision of Law is a heart burning and long long procedure, which permits such laws to to injustice for a long time.
Since August, 2014, new provisions are Added in Customs Act and Excise Acts which requires an Appellant to Pre Deposit 10% Amount of Duty or Penalty demanded. Unless the pre deposits such amount is made, his Appeal is not heard.
In my view, this provisions appear unconstitutional for following reasons.
A. Art.14. Arbitrariness, Classifications has no nexus to rationales.
B. Unjust unfair enrichments. - Govt not liable to pay interest for period of appeal even when appellant succeeds in Appeal.
C. In operations, violative of inherent jurisdiction of every judicial body to hear any appeal without insisting any Pre- Deposits.
REASONS IN DETAILS.
A) Three classes of Appeals are defined.
1) Appeal only against main order 2) Appeal against order asking Penalty
3) Order challenging both. For all three classes pre deposit of 10% is asked.
Provisions further says that no forcible recovery during pendency of Appeal, if 10% is paid.
Now, Penalty is only a Consequence of main order.
If a person appeals only against main order, than it cannot be enforced during appeal.
When main order is stayed by Law, it's consequences also remain suspended.
If main order is set aside, Penalty will have to go as I understand.
If this is correct than the provision is violative of Art.14 so far as it asks for 10% deposit on penalty.
B) Unjust Enrichment. Unfairness.
The principle says that no one should get unjustly and unfairly enriched by virtue of court orders.
Here, no interest is provided for period during which appeal is pending as per my reading of provisions.
Thus revenue authorities gets unjust enrichment by making wrong or excessive demands.
C) Violative of Judicial Powers by operating procedures.
It is unwritten law that every judicial body hearing any appeal can pass any interim orders, whether provided by law or not.
Law cannot bind court by saying that such body will not pass such interim orders.
Here, the provisions in the first part say that "No Appeal without Pre Deposit" but in last part says "Appeal Shall Be Liable To Be Rejected".
It means, Appeal and Application for Waiver of Pre Deposit have to be first heard if such an application is filed.
Secondly, if any Pre Deposit is deficient, the Tribunal has inherent power to grant time to deposit balance amount.
It means, Tribunal cannot refuse to hear an appeal related applications unless full Pre Deposit is made.
A friend told me that in practice, no appeal is accepted at counter unless full pre deposit made.
In my personal view, such procedure not sustainable in law.
Haresh Raichura
31/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
Since August, 2014, new provisions are Added in Customs Act and Excise Acts which requires an Appellant to Pre Deposit 10% Amount of Duty or Penalty demanded. Unless the pre deposits such amount is made, his Appeal is not heard.
In my view, this provisions appear unconstitutional for following reasons.
A. Art.14. Arbitrariness, Classifications has no nexus to rationales.
B. Unjust unfair enrichments. - Govt not liable to pay interest for period of appeal even when appellant succeeds in Appeal.
C. In operations, violative of inherent jurisdiction of every judicial body to hear any appeal without insisting any Pre- Deposits.
REASONS IN DETAILS.
A) Three classes of Appeals are defined.
1) Appeal only against main order 2) Appeal against order asking Penalty
3) Order challenging both. For all three classes pre deposit of 10% is asked.
Provisions further says that no forcible recovery during pendency of Appeal, if 10% is paid.
Now, Penalty is only a Consequence of main order.
If a person appeals only against main order, than it cannot be enforced during appeal.
When main order is stayed by Law, it's consequences also remain suspended.
If main order is set aside, Penalty will have to go as I understand.
If this is correct than the provision is violative of Art.14 so far as it asks for 10% deposit on penalty.
B) Unjust Enrichment. Unfairness.
The principle says that no one should get unjustly and unfairly enriched by virtue of court orders.
Here, no interest is provided for period during which appeal is pending as per my reading of provisions.
Thus revenue authorities gets unjust enrichment by making wrong or excessive demands.
C) Violative of Judicial Powers by operating procedures.
It is unwritten law that every judicial body hearing any appeal can pass any interim orders, whether provided by law or not.
Law cannot bind court by saying that such body will not pass such interim orders.
Here, the provisions in the first part say that "No Appeal without Pre Deposit" but in last part says "Appeal Shall Be Liable To Be Rejected".
It means, Appeal and Application for Waiver of Pre Deposit have to be first heard if such an application is filed.
Secondly, if any Pre Deposit is deficient, the Tribunal has inherent power to grant time to deposit balance amount.
It means, Tribunal cannot refuse to hear an appeal related applications unless full Pre Deposit is made.
A friend told me that in practice, no appeal is accepted at counter unless full pre deposit made.
In my personal view, such procedure not sustainable in law.
Haresh Raichura
31/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
December 30, 2014
Know the Difference between "Discharge" and "Acquittal" in criminal cases.
Police collects evidence and produces before judge and asks for trial of accused.
At this stage, Accused has right to say to the judge,"Please go through the evidence produced by police... There is no evidence against me.. Please discharge me.. And dismiss the case against me"...
This is popularly known as "Discharge Application".
The judge then goes through the papers filed by police. He also hears argument of public prosecutor.
Then if the Judge forms an opinion that there is no enough evidence against Accused, he will Discharge the accused and will dismiss case of police.
This is called DISCHARGE.
On the other hand, if judge finds that there is evidence pointing to guilt of accused, he will dismiss Discharge Application of accused.
He will proceed with trial and will record evidence of witnesses.
If after all evidence is recorded, if there is not enough evidence against Accused, he will ACQUIT the Accused.
This is called ACQUITTAL.
Haresh Raichura
30/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
At this stage, Accused has right to say to the judge,"Please go through the evidence produced by police... There is no evidence against me.. Please discharge me.. And dismiss the case against me"...
This is popularly known as "Discharge Application".
The judge then goes through the papers filed by police. He also hears argument of public prosecutor.
Then if the Judge forms an opinion that there is no enough evidence against Accused, he will Discharge the accused and will dismiss case of police.
This is called DISCHARGE.
On the other hand, if judge finds that there is evidence pointing to guilt of accused, he will dismiss Discharge Application of accused.
He will proceed with trial and will record evidence of witnesses.
If after all evidence is recorded, if there is not enough evidence against Accused, he will ACQUIT the Accused.
This is called ACQUITTAL.
Haresh Raichura
30/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
Public Interest Activist can file complaint of violation of Official Secret Act. Question of Sanction under Sec.13(3) will come only..
A Public Interest Activist can file complaint of violation of Official Secret Act.
The Question of Sanction under Sec.13(3) will come only at the stage of taking cognisance by Magistrate.
In case of Dr. Swamy Vs Dr ManMohan Singh, SC has has held that there is no bar in filing complaint.
It is not law that no complaint con be filed until Sanction from Govt is received.
Magistrate has power to order investigation.
Sanction is a later stage required at time of taking cognisance when Magistrate will actually decide to try the case.
The above case was under Prevention of Corruption Act.
But I think that same analogy will apply under Official Secret Act., Sec 13(3).
Haresh Raichura
30/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
The Question of Sanction under Sec.13(3) will come only at the stage of taking cognisance by Magistrate.
In case of Dr. Swamy Vs Dr ManMohan Singh, SC has has held that there is no bar in filing complaint.
It is not law that no complaint con be filed until Sanction from Govt is received.
Magistrate has power to order investigation.
Sanction is a later stage required at time of taking cognisance when Magistrate will actually decide to try the case.
The above case was under Prevention of Corruption Act.
But I think that same analogy will apply under Official Secret Act., Sec 13(3).
Haresh Raichura
30/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
December 28, 2014
POSCO misuse in cases related to rapes where rape is alleged against minor (age below 18 but above 15)
In such rape cases, there are cases also of consent of the victim. Victim and accused both may be teenagers. But Law says that Consent of a minor is no consent.
This is basically a Civil Law Concept incorporated in Criminal law.
But in criminal law, conduct of witnesses and victim is relevant. It is an important evidence available to accused.
This defence is denied or not taken into consideration by law in such cases. Legal presumptions of guilt are drawn by court. Burden is cast on accused to prove innocence. Sometimes it is impossible to prove a negative.
The abuse of law or false accusations is possible. Particularly when corruption is perceived in evidence collecting agencies.
Same is situation in POSCO cases. It's aim is to protect children. But its provisions are capable of misused because it draws presumptions.
When there are too many Laws in same area, selective application of laws takes place. In some cases, POSCO will be used and in some it may not be used. This brings corruption in investigative agencies.
The laws should be few and clear. Provisions should not be capable being misused against innocent.
Haresh Raichura
28/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
This is basically a Civil Law Concept incorporated in Criminal law.
But in criminal law, conduct of witnesses and victim is relevant. It is an important evidence available to accused.
This defence is denied or not taken into consideration by law in such cases. Legal presumptions of guilt are drawn by court. Burden is cast on accused to prove innocence. Sometimes it is impossible to prove a negative.
The abuse of law or false accusations is possible. Particularly when corruption is perceived in evidence collecting agencies.
Same is situation in POSCO cases. It's aim is to protect children. But its provisions are capable of misused because it draws presumptions.
When there are too many Laws in same area, selective application of laws takes place. In some cases, POSCO will be used and in some it may not be used. This brings corruption in investigative agencies.
The laws should be few and clear. Provisions should not be capable being misused against innocent.
Haresh Raichura
28/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
December 27, 2014
Do you know that even if Witnesses becomes untraceable or dead, the Court can still pass conviction?
If Witness becomes untraceable or dead, it does not mean end of trial.. It does not mean that court is helpless and it has to acquit accused.
There are some cases where court has no option but to acquit the accused but there are some cases, as in prevention of corruption cases, where identity of witness is not an issue, conviction may follow.
Criminal Procedure Code has taken care of such situations. In such cases the court. can rely on other previously recorded statements or complaints of the witness in present case or in previous case..
The law is so framed that accused does not get advantage because of death of witnesses or their non traceability.
Criminal Procedure Code has taken care of such situations. In such cases the court. can rely on other previously recorded statements or complaints of the witness in present case or in previous case..
The law is so framed that accused does not get advantage because of death of witnesses or their non traceability.
But this Rule does not apply in cases of insufficient evidence or no evidence.
Haresh Raichura
27/12/2014
Copyright : Haresh Raichura 2014 All Rights Reserved
Haresh Raichura
27/12/2014
Copyright : Haresh Raichura 2014 All Rights Reserved
Can FIR be quashed against Director of Company, if he can satisfy HC that he was not responsible? Yes
When a criminal complaint case or FIR is filed against a Company, often its Directors are also made accused.
Some Directors may be non- active directors and may not be responsible for day to day affairs of the Company.
Then they may not be liable in criminal law.
Earlier there were conflicting views.
In one case it was held that High Court cannot quash FIR because whether a Director was responsible for day to day affairs of Company is question of fact which has to be decided only in trial.
Therefore, it was held that it is not open to HC to quash the complaint under Sec.482 of Cr. PC.
But now recently in case of Gunmala reported in 2014 SCALE 270
It has been held that if Director can show to High Court on basis of indisputable evidence that he was not responsible for day to day affairs of the company, then the complaint can be quashed by HC under Sec.482 of Cr.P.C.
Some Directors may be non- active directors and may not be responsible for day to day affairs of the Company.
Then they may not be liable in criminal law.
Earlier there were conflicting views.
In one case it was held that High Court cannot quash FIR because whether a Director was responsible for day to day affairs of Company is question of fact which has to be decided only in trial.
Therefore, it was held that it is not open to HC to quash the complaint under Sec.482 of Cr. PC.
But now recently in case of Gunmala reported in 2014 SCALE 270
It has been held that if Director can show to High Court on basis of indisputable evidence that he was not responsible for day to day affairs of the company, then the complaint can be quashed by HC under Sec.482 of Cr.P.C.
Thus in each case, whether complaint can be quashed or not depends on 1) Indisputable evidence 2) Satiafaction of High Court.
For more accurate details refer to actual judgement of Supreme Court in Gunmala case.
Haresh Raichura
27/12/2014
Copyright : Haresh Raichura 2014. All Rights reserved.
Haresh Raichura
27/12/2014
Copyright : Haresh Raichura 2014. All Rights reserved.
December 26, 2014
SC: Pay Rs. 3 Lakh to every victim of Acid Attack, out of this amount, pay Rs. 1 lakh within a week
The above order is passed On July 17,2013, in case of Laxmi Versus Union of India, in WP No. 129/2006 by Supreme Court of India.
The order is binding to all Chief Secretaries of States and Union Territories of India.
Several other directions are also given, like slapping of fine Rs.50,000/- to whoever may have sold the acid.
Every victim of Acid Attack is to be paid compensation of Rs.3,00,000/- by Government.
And out of this amount, Rs.1 Lakh is to be paid to victim within One Week of the acid attack.
Haresh Raichura
26/12/2014
Copyright : Haresh Raichura 2014. All Rights reserved.
The order is binding to all Chief Secretaries of States and Union Territories of India.
Several other directions are also given, like slapping of fine Rs.50,000/- to whoever may have sold the acid.
Every victim of Acid Attack is to be paid compensation of Rs.3,00,000/- by Government.
And out of this amount, Rs.1 Lakh is to be paid to victim within One Week of the acid attack.
Haresh Raichura
26/12/2014
Copyright : Haresh Raichura 2014. All Rights reserved.
December 24, 2014
Know the difference between Parole & Furlough leaves given to prisoners.
The convicts in jails are entitled to two types of leave from the jail.
1) Every year, as a matter of right they get leave of about fifteen days to leave jail and to go and meet their families and friends. This is called furlough Leaves.
2) During their jail period, suddenly they need on account of death in family or such some other purpose. Then temporary leave for few days is granted. This is called Parole Leave.
Relevant rules in Prison Manuals are applicable for such leaves.
Haresh Raichura
24/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
1) Every year, as a matter of right they get leave of about fifteen days to leave jail and to go and meet their families and friends. This is called furlough Leaves.
2) During their jail period, suddenly they need on account of death in family or such some other purpose. Then temporary leave for few days is granted. This is called Parole Leave.
Relevant rules in Prison Manuals are applicable for such leaves.
Haresh Raichura
24/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
December 22, 2014
Law: Man & woman live together for long, law will presume marriage, not concubinage-unless proved otherwise
Law has provisions to draw presumption of marriage when a man and women are living together for many years.
I have yet not come across where such relations are presumed to be live in Relationship or Concubinage by law.
Presumption in law are always subject to proving otherwise. So unless it is proved that woman living with man is not his wife, law will presume her to be wife.
The law is discussed in Madan Mohan Singh V Rajni Kant (2010) 9 SCC 209
Haresh Raichura
22/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
I have yet not come across where such relations are presumed to be live in Relationship or Concubinage by law.
Presumption in law are always subject to proving otherwise. So unless it is proved that woman living with man is not his wife, law will presume her to be wife.
The law is discussed in Madan Mohan Singh V Rajni Kant (2010) 9 SCC 209
Haresh Raichura
22/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
Sec.144 (Preventing peaceful assembly of people) expire automatically after 2 months.
Sec.144 notifications are issued under Cr.PC to maintain public order and peace.
It prevents people from forming assemblies and gathering.
But such order expires after 2 months which is maximum limit for which such notification can be issued.
Law in this regard is discussed in Himat Lal K Shah Vs. Commissioner of Police, Ahmedabad in 1973 (1) SCC 227
Haresh Raichura
22/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
It prevents people from forming assemblies and gathering.
But such order expires after 2 months which is maximum limit for which such notification can be issued.
Law in this regard is discussed in Himat Lal K Shah Vs. Commissioner of Police, Ahmedabad in 1973 (1) SCC 227
Haresh Raichura
22/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
Law: Are you owner of Uneaten Food remaining on your dish served to you in Hotels ? Law says No
Law says that you are not the owner of uneaten food on you dish in hotel, even if you may have paid the price.
The payment of price only allows you to sit and eat that food.
You does not become owner of that food.
You cannot do whatever you think fit with uneaten food.
The above view is expressed in Electa B Merril v James W Hodson, (1915 B LRA 481) referred by Supreme Court in Narinder S Chadha v. Municipal Corpn of Greater Mumbai reported in 2014(13)SCALE 575
Haresh Raichura
22/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
The payment of price only allows you to sit and eat that food.
You does not become owner of that food.
You cannot do whatever you think fit with uneaten food.
The above view is expressed in Electa B Merril v James W Hodson, (1915 B LRA 481) referred by Supreme Court in Narinder S Chadha v. Municipal Corpn of Greater Mumbai reported in 2014(13)SCALE 575
Haresh Raichura
22/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
Truth about Supreme Court Judgement permitting "Hukka Smoking"- It never approved it
I was just reading judgement of Supreme Court which permitted Hukka Smoking in public places.
Truth looked different than what was reported in media.
Media reported as if "Supreme Court has Approved/permitted it".
In fact truth is, there is lacuna in Certain Municipal Laws and in Central Laws. Until thiese defects are cured by Parliament or by the State Governments, the Municipality did not have power to pass circulars to ban Hukka Smoking.
That is was Supreme Court said. It did not say that it approves or permits Hukka Smoking.
Proper Laws need to be passed.
Haresh Raichura
22/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
Truth looked different than what was reported in media.
Media reported as if "Supreme Court has Approved/permitted it".
In fact truth is, there is lacuna in Certain Municipal Laws and in Central Laws. Until thiese defects are cured by Parliament or by the State Governments, the Municipality did not have power to pass circulars to ban Hukka Smoking.
That is was Supreme Court said. It did not say that it approves or permits Hukka Smoking.
Proper Laws need to be passed.
Haresh Raichura
22/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
December 20, 2014
SC: "In last 40 Years, a new creed of litigants has cropped up..They shamelessly resort to falsehood..
In a reported case, Supreme Court observed as under:
"..... Truth constituted an integral part of the Justice delivery system which was in vogue in the pre-Independence era and people used to feel proud to tell truth in the courts irrespective of the consequences. However post-Independence period has seen drastic changes in our value system...
In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals...
(He) who attempts to pollute the stream of justice (by resorting to falsehood) or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final."
Dilip Singh V. State of Utter Pradesh 2010(2)SCC 114 relied again in Nova Ads V. Metropolitan Transport Corpn in 2014(13) SCALE 768 para 47
Haresh Raichura
20/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
"..... Truth constituted an integral part of the Justice delivery system which was in vogue in the pre-Independence era and people used to feel proud to tell truth in the courts irrespective of the consequences. However post-Independence period has seen drastic changes in our value system...
In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals...
(He) who attempts to pollute the stream of justice (by resorting to falsehood) or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final."
Dilip Singh V. State of Utter Pradesh 2010(2)SCC 114 relied again in Nova Ads V. Metropolitan Transport Corpn in 2014(13) SCALE 768 para 47
Haresh Raichura
20/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
December 16, 2014
A wonderful argument which shows how intelligent lawyers are
The convict was in Appeal.
Two courts had found that the man had committed crime, because after arrest, he made confession before Magistrate in court that in fact he had committed crime.
Both court had believed confession and other evidences.
In The Court various arguments were made. These were good arguments. But the most interesting argument appealed to me was on confession.
Counsel said,"This confession runs into 100 pages. The time noted below of confession is 11:00AM when confession was started and time was recorded 12:00PM when confession was ended. It is impossible to record 100 page confession in 1 hour."
The argument Prima facie made sense.
It is immaterial to state what happened further. The point is, hard work and intelligence have value in law profession.
Haresh Raichura
15/2/14
Copyright : Haresh Raichura 2014. All Rights reserved. C2/
Two courts had found that the man had committed crime, because after arrest, he made confession before Magistrate in court that in fact he had committed crime.
Both court had believed confession and other evidences.
In The Court various arguments were made. These were good arguments. But the most interesting argument appealed to me was on confession.
Counsel said,"This confession runs into 100 pages. The time noted below of confession is 11:00AM when confession was started and time was recorded 12:00PM when confession was ended. It is impossible to record 100 page confession in 1 hour."
The argument Prima facie made sense.
It is immaterial to state what happened further. The point is, hard work and intelligence have value in law profession.
Haresh Raichura
15/2/14
Copyright : Haresh Raichura 2014. All Rights reserved. C2/
After mortgaging property with Bank, property sold with permission of Bank.. Jurisdiction of Debt & Security Tribunals
There are Special Laws to protect properties mortgaged to Bank or Financial Institutes.
They are given harsh powers to attach and to auction such properties.
Civil courts have NO right to protect against such actions even if they be grossly illegal.
For this purpose, any aggrieved party has to approach to Tribunals set up under these laws only.
But a curious case happened.
After mortgaging property with bank, taking huge loan, after some years, the owner obtained permission letter from Bank to sell the property.
He sold the property to several buyers. Now several parties obtained rights in properties.
Later, after some years, Bank attached this property and also proceeded to auction it.
Various buyers filed suits in civil court for declaring their title, for injunction and also asking decorations that attachment by Bank Authorities was illegal.
The question arose :
Are these suits maintainable?
Who has jurisdiction to decide dispute when some disputes can be decided by only Tribunal and some disputes can be decided only by Civil Court?
Supreme Court held that so far as legality of Attachment Proceedings are concerned ONLY TRIBUNAL can decide.
But so far as other declarations are sought, parties can go to ONLY CIVIL COURT.
Thus prayers in the suits were split up.
And parties were given Liberty to reach appropriate forums.
Haresh Raichura
16/12/14
Copyright : Haresh Raichura 2014. All Rights reserved. C4/6/
They are given harsh powers to attach and to auction such properties.
Civil courts have NO right to protect against such actions even if they be grossly illegal.
For this purpose, any aggrieved party has to approach to Tribunals set up under these laws only.
But a curious case happened.
After mortgaging property with bank, taking huge loan, after some years, the owner obtained permission letter from Bank to sell the property.
He sold the property to several buyers. Now several parties obtained rights in properties.
Later, after some years, Bank attached this property and also proceeded to auction it.
Various buyers filed suits in civil court for declaring their title, for injunction and also asking decorations that attachment by Bank Authorities was illegal.
The question arose :
Are these suits maintainable?
Who has jurisdiction to decide dispute when some disputes can be decided by only Tribunal and some disputes can be decided only by Civil Court?
Supreme Court held that so far as legality of Attachment Proceedings are concerned ONLY TRIBUNAL can decide.
But so far as other declarations are sought, parties can go to ONLY CIVIL COURT.
Thus prayers in the suits were split up.
And parties were given Liberty to reach appropriate forums.
Haresh Raichura
16/12/14
Copyright : Haresh Raichura 2014. All Rights reserved. C4/6/
December 15, 2014
How Doctors in Govt Hospitals Cheat : Take Experience, Leave without resigning, File case on Govt
I heard a strange case which exposed how doctors in government hospitals cheat.
1) In Government hospitals they learn and obtain experiences by operating on the poor.
2) After they get expertise, they leave govt job and join some private hospitals which offer them big salaries. ...Here they play game....They do not give resignation. Nor do they inform their address to Govt Hospital.
3) After many days, when they do not report on duty, the Government sets up an inquiry to dismiss them. But since they have not given any address, govt cannot serve them dismissal orders.
4) After some years, these doctors file case in High Court stating that they are dismissed without following Natural Justice Procedure. They pray that they be reinstated in job and be given salary of all these years!
Strange! But some of them succeed also!
Haresh Raichura
15/12/14
Copyright : Haresh Raichura 2014. All Rights reserved. C2PNMSr
1) In Government hospitals they learn and obtain experiences by operating on the poor.
2) After they get expertise, they leave govt job and join some private hospitals which offer them big salaries. ...Here they play game....They do not give resignation. Nor do they inform their address to Govt Hospital.
3) After many days, when they do not report on duty, the Government sets up an inquiry to dismiss them. But since they have not given any address, govt cannot serve them dismissal orders.
4) After some years, these doctors file case in High Court stating that they are dismissed without following Natural Justice Procedure. They pray that they be reinstated in job and be given salary of all these years!
Strange! But some of them succeed also!
Haresh Raichura
15/12/14
Copyright : Haresh Raichura 2014. All Rights reserved. C2PNMSr
Strange Case: 1 Cheque Dishonoured, 3 Cases filed, Acquitted in 1, Convicted in 2 Cases
A post dated cheque was given.
Cheque was dishonoured on due date as there were no sufficient balance in bank account of person who had given cheque.
The holder of cheque filed 3 cases.
1) One case of cheating under Sec.420 of IPC.
2) Second case for dishonour of cheque under Sec.138 of Negotiable Instrument Act.
3) Third case, summary civil suit for recovery of amount.
Result.
1) Civil Case was dismissed on the ground that consideration for cheque was not proved. Holder of cheque had failed to prove for what purpose cheque was given.
2) He however succeeded in two other criminal cases. In both cases, they were tried as separate cases, and the person who had given cheque was convicted in both these cases.
Legal Point.
1) There in an error. In trial Court, both the criminal cases should have been tried together. Two trials were unnecessary.
2) The Different Judgements appear because STANDARD OF PROOF and PRESUMPTIONS are different in Civil Law and in Criminal Law.
Parties have now appealed in Supreme Court.
Haresh Raichur
15/12/14
Copyright : Haresh Raichura 2014. All Rights reserved. C2/32
Cheque was dishonoured on due date as there were no sufficient balance in bank account of person who had given cheque.
The holder of cheque filed 3 cases.
1) One case of cheating under Sec.420 of IPC.
2) Second case for dishonour of cheque under Sec.138 of Negotiable Instrument Act.
3) Third case, summary civil suit for recovery of amount.
Result.
1) Civil Case was dismissed on the ground that consideration for cheque was not proved. Holder of cheque had failed to prove for what purpose cheque was given.
2) He however succeeded in two other criminal cases. In both cases, they were tried as separate cases, and the person who had given cheque was convicted in both these cases.
Legal Point.
1) There in an error. In trial Court, both the criminal cases should have been tried together. Two trials were unnecessary.
2) The Different Judgements appear because STANDARD OF PROOF and PRESUMPTIONS are different in Civil Law and in Criminal Law.
Parties have now appealed in Supreme Court.
Haresh Raichur
15/12/14
Copyright : Haresh Raichura 2014. All Rights reserved. C2/32
December 14, 2014
Rights of Grand Parents against Sons & Daughters-in-law. Civil & Criminal
In India, there is still joint family system.
The quarrels are seen between Grand Parents Versus Sons / Daughters-in-Law.
The grand parents mainly complain two things : 1) Sometimes they are slapped or beaten up 2) Daily Abuses are hurled at them.
In addition they complain 3) Proper food is not given 4) Pressure is made on them to transfer their property in name of Son etc.
REMEDIES IN CRIMINAL LAW
A) For cruelty in nature of item 1) & 2) above, the grand parents can dial emergency number of police in case of emergency,
B) If there is no immediate danger, a proper criminal complaint should be filed in the court of Chief Judicial Magistrate.
REMEDIES IN CIVIL LAW
Under Sec.9 of CPC, Civil Courts can accept all type of suits.
For item 1) to 4) above mentioned problems, a civil suit for Declaration can be filed to seek Declaration from Court that the Sons and the Daughters-in-law have no right to hurl daily abuses at them and to slap them ..etc.
The Civil Court will probably immediately grant a stay order, will summon Sons and Daughters-in-Law in court and will hear their side.
Best advice is to seek help of court before aged parents become too weak to go to court.
If the grandparents are too aged and too weak to go to Court, some neighbour or some distant relative can also apply to court on behalf of such grandparents in trouble.
Seek professional advice of a lawyer.
Haresh Raichura
14/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
The quarrels are seen between Grand Parents Versus Sons / Daughters-in-Law.
The grand parents mainly complain two things : 1) Sometimes they are slapped or beaten up 2) Daily Abuses are hurled at them.
In addition they complain 3) Proper food is not given 4) Pressure is made on them to transfer their property in name of Son etc.
REMEDIES IN CRIMINAL LAW
A) For cruelty in nature of item 1) & 2) above, the grand parents can dial emergency number of police in case of emergency,
B) If there is no immediate danger, a proper criminal complaint should be filed in the court of Chief Judicial Magistrate.
REMEDIES IN CIVIL LAW
Under Sec.9 of CPC, Civil Courts can accept all type of suits.
For item 1) to 4) above mentioned problems, a civil suit for Declaration can be filed to seek Declaration from Court that the Sons and the Daughters-in-law have no right to hurl daily abuses at them and to slap them ..etc.
The Civil Court will probably immediately grant a stay order, will summon Sons and Daughters-in-Law in court and will hear their side.
Best advice is to seek help of court before aged parents become too weak to go to court.
If the grandparents are too aged and too weak to go to Court, some neighbour or some distant relative can also apply to court on behalf of such grandparents in trouble.
Seek professional advice of a lawyer.
Haresh Raichura
14/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
December 10, 2014
3 Reasons why it is very difficult to STOP new Irbm law(Irretrievably broken marriages)
It is very difficult to stop new proposed amendment in Hindu Marriage Law for some obvious reasons.
1) There is a moral pressure from Supreme Court to persuade law makers to add new ground for divorce, namely "Irretrievable Breakdown of marriage.
2) It is seen that wife never agrees to give divorce. Husband is unable to prove any fault of wife and is therefore not able to get divorce...Even if the marriage may have broke down... Law cannot force husband and wife to live together if one of them disagrees.
The new law gives husband a right to get divorce even if he is not able to prove any fault of wife.
3) When husband goes to court on ground that their marriage is broken since three years and he wants divorce even if there is no fault of wife, then the court may give him divorce subject to some financial compensation to wife.
The amount of compensation is left on court to decide. There is no guidelines. But judge will take overall stock of financial position of husband before deciding compensation.
There is no strict provision that Judge will grant wife any share from property of husband or his father in law... All is left to the wisdom of Judge.
This may be an experimental law.
If there is abuse, higher courts are trusted to correct errors.
Haresh Raichura
10/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
1) There is a moral pressure from Supreme Court to persuade law makers to add new ground for divorce, namely "Irretrievable Breakdown of marriage.
2) It is seen that wife never agrees to give divorce. Husband is unable to prove any fault of wife and is therefore not able to get divorce...Even if the marriage may have broke down... Law cannot force husband and wife to live together if one of them disagrees.
The new law gives husband a right to get divorce even if he is not able to prove any fault of wife.
3) When husband goes to court on ground that their marriage is broken since three years and he wants divorce even if there is no fault of wife, then the court may give him divorce subject to some financial compensation to wife.
The amount of compensation is left on court to decide. There is no guidelines. But judge will take overall stock of financial position of husband before deciding compensation.
There is no strict provision that Judge will grant wife any share from property of husband or his father in law... All is left to the wisdom of Judge.
This may be an experimental law.
If there is abuse, higher courts are trusted to correct errors.
Haresh Raichura
10/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
December 8, 2014
There is no question of Supreme Court exceeding its Jurisdiction - 3 Brief Reasons
In a recent blog, it is contended that Supreme Court is exceeding its Jurisdiction and it is interfering in policymaking domain of executives.
In support of above contentions,three points are cited :
1) Supreme Court should NOT monitor Gangs Cleaning Project.
2) Supreme Court Should NOT have set up Social Justice Bench. These are all government's policy decisions.
3) Supreme Court has NO power to select investigators or prosecutors in sensitive cases.
My answers are follows:
1) All so called River Cleaning Projects have potentials to become scams. Cleaning chemicals and sand dropped in water are washed away. No way to verify. Crores of rupees of public money are debited on this account by manipulating payment vouchers. In past, Supreme Court has found such scam in Yamuna Water Cleaning Project, Taj Mahal, etc. When a PIL is filed, it is duty of Supreme Court to monitor it to protect public money.
2) Setting up a Social Justice Bench is purely an administrative order by CJI to allot certain category of cases to a particular Bench. There is nothing new in it. The cases which are pending before different courts will now be heard by one court to maintain consistency.
3) Thirdly, About power to for Special Investigation Teams and to appoint prosecutors are decided in previous cases after lengthy debates. The law is settled here.
The General principle is, in any area, where, Executive or Legislative are not doing what they ought to be doing' when they are not taking any decision one way or other, Supreme Court and High Courts can step in.
Haresh Raichura
8/12/14
Copyright Haresh Raichura. All rights reserved.
December 7, 2014
In India, many judges consider it waste of time to hear arguments on husband side- Some Possible Reasons
There are some realities.
1) India is still a male dominated society.
2) There are still incidents of killing girl child in womb.
3) Only recently daughters have been given equal share as sons in properties. Rights of married daughters are still vague.
The law is trying to give them equal playing field.
1) In husband wife suits, as soon as case is filed, husband is to first provide and pay for monthly maintenance to wife and to provide for his legal expanses.
Here, judges may consider it waste of time to hear objections by a rich and capable husband.
Here, there are chances of injustice where, husband's financial condition is also weak.
Sometimes, marriage is broke solely due to brazen fault of wife and her relatives.
To grant such amounts to wife is like paying premium to a wrong-doing wife. The very soul of husband revolts against paying such ransom.
Here, judge may refuse to hear husband by saying ,"This is not the stage to hear merits of your case. First pay maintenance to wife, and then argue this when case is ripe for hearing".
This is probably an Error of Judiciary.
But it can only be corrected by a High Court by Supreme Court in some appropriate case.
But unfortunately, cases relating to interim maintenance are not accepted by Supreme Court and rarely accepted by High Courts.
So only time can heal the wounds of husbands.
He deserves permission to argue merits of his case and demerits of wife's case at interim maintenance stage also.
There is no harm in letting him expose what disentitles wife to ask for interim maintenance.
Haresh Raichura
7/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
December 6, 2014
What do we can reasonably EXPECT from SOCIAL JUSTICE BENCH of Supreme Court? -a brief note
From December 12th, 2014, we may see a SOCIAL JUSTICE BENCH in Supreme Court to hear cases relating to social injustice.
What do we can reasonably expect from this Bench? Here are some of my views.
1) There are cases, where one class of citizens is suffering injustice at another class of citizens. Large population of one class is suffering injustice, but very few cases come to notice of Supreme Court. Because, class litigation is yet not popular in India. In a class litigation, any Four Citizens can file suit or PIL for seeking justice for entire class. Few people in India are aware about these provisions. Hence few Class Litigations are coming to Court.
2) Few years ago, Justice S.B.Sinha, laid down in a judgement, that if Supreme Court deems it fit, it can convert any private litigation into a class litigation or public interest litigation and then it can lay down justice for the whole class of population.
3) These are cases mostly, where one class of citizens is claiming some relief against another class of citizens.
4) The Special Bench may devote one Friday each week to hear such cases only. Here , larger public interest cases are given priority over individual interest cases. Each judgement is bound to benefit a large class of population.
We can reasonably expect that social justice will be speedier for many class of citizens.
Haresh Raichura
6/12/14
Copyright : Haresh Raichura 2014 All Rights Reserved
What do we can reasonably expect from this Bench? Here are some of my views.
1) There are cases, where one class of citizens is suffering injustice at another class of citizens. Large population of one class is suffering injustice, but very few cases come to notice of Supreme Court. Because, class litigation is yet not popular in India. In a class litigation, any Four Citizens can file suit or PIL for seeking justice for entire class. Few people in India are aware about these provisions. Hence few Class Litigations are coming to Court.
2) Few years ago, Justice S.B.Sinha, laid down in a judgement, that if Supreme Court deems it fit, it can convert any private litigation into a class litigation or public interest litigation and then it can lay down justice for the whole class of population.
3) These are cases mostly, where one class of citizens is claiming some relief against another class of citizens.
4) The Special Bench may devote one Friday each week to hear such cases only. Here , larger public interest cases are given priority over individual interest cases. Each judgement is bound to benefit a large class of population.
We can reasonably expect that social justice will be speedier for many class of citizens.
Haresh Raichura
6/12/14
Copyright : Haresh Raichura 2014 All Rights Reserved
December 5, 2014
Hate Speech Laws do not apply to something said in Parliament or in Legislative Assembly because
Hate Speech Laws do not apply to something said in Parliament or in Legislative Assembly because general laws do not apply to proceedings in Parliament or Assembly.
These are themselves law makers. The House makes its own law and it has its own power to punish what happens in House.
Courts or Police have no jurisdictions inside House.
Haresh Raichura
5/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
These are themselves law makers. The House makes its own law and it has its own power to punish what happens in House.
Courts or Police have no jurisdictions inside House.
Haresh Raichura
5/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
November 26, 2014
Legal Puzzle : Are Mobile Towers "Building" or "Temporary Structure" for House Tax purpose?
If you put up a temporary construction on rooftop of your house, it may not be taxable for house tax purpose.
But if you put up a mobile tower, and start earning rent from it, it is a different matter.
Some High Courts have taken view that it is "building" and therefore house tax is payable.
Some other High Courts have taken view that it is "Temporary Structure" therefore not a "building", and therefore not liable to house tax.
Supreme Court has yet to decide this issue.
Haresh Raichura
26/11/14
Copyright : Haresh Raichura 2014. All Rights reserved.
But if you put up a mobile tower, and start earning rent from it, it is a different matter.
Some High Courts have taken view that it is "building" and therefore house tax is payable.
Some other High Courts have taken view that it is "Temporary Structure" therefore not a "building", and therefore not liable to house tax.
Supreme Court has yet to decide this issue.
Haresh Raichura
26/11/14
Copyright : Haresh Raichura 2014. All Rights reserved.
November 23, 2014
"General public is hereby informed that one unknown person (Not disclosing his name and whereabouts) aged about..
Police advertisement in Today's newspaper read as under:
"General public is hereby informed that one unknown person (Not disclosing his name and whereabouts) aged about 60, was arrested in connection with allegation of involvement in a kidnapping case. He was given bail by court. But since he is not disclosing his name whereabouts and sureties, he is kept in judicial custody. General Public is requested to inform his identification from photo published herewith"
This was substance of an advertisement issued by police in Times of India dated 23.11.2014.
But behind this, lay deep stories of pain and miseries of poor who are too poor to defend themselves.
They have no money to pay lawyers.
They do not disclose their names, often with fear that police or some other goons may harm their family.
Sometimes they are "Bonded Labourers" of Bigger Criminals.
Sometimes they are deserted by their families.
They live alone on an island, cut off from social ties.
Last year, I had a case of a poor woman.
Somebody had sent her papers. Somebody had paid expanses for filing papers in Supreme Court. We lawyers are also supposed to help poor and needy without charging fees.
I took her case.
Supreme Court granted her bail.
But even thereafter, she remained in jail as no one was coming forward to give sureties.
The person who had come to give papers had stopped contacting.
I had no other contacts or address of any of her relatives.
She continued to be in jail inspite of order of Supreme Court granting bail.
After nine months, I passed a warning to the person who had sent me papers that I am going to mention this matter to Supreme Court Judges by filing an application.
He immediately conveyed that I should not do so since they are doing needful to release the woman from jail.
A week later I was told that some one had furnished sureties and she was released from jail.
The case still remains in darkness for me.
There are many such cases in which even lawyers do not know much about their clients.
Haresh Raichura
23/11/14
Copyright : Haresh Raichura 2014. All Rights reserved.
"General public is hereby informed that one unknown person (Not disclosing his name and whereabouts) aged about 60, was arrested in connection with allegation of involvement in a kidnapping case. He was given bail by court. But since he is not disclosing his name whereabouts and sureties, he is kept in judicial custody. General Public is requested to inform his identification from photo published herewith"
This was substance of an advertisement issued by police in Times of India dated 23.11.2014.
But behind this, lay deep stories of pain and miseries of poor who are too poor to defend themselves.
They have no money to pay lawyers.
They do not disclose their names, often with fear that police or some other goons may harm their family.
Sometimes they are "Bonded Labourers" of Bigger Criminals.
Sometimes they are deserted by their families.
They live alone on an island, cut off from social ties.
Last year, I had a case of a poor woman.
Somebody had sent her papers. Somebody had paid expanses for filing papers in Supreme Court. We lawyers are also supposed to help poor and needy without charging fees.
I took her case.
Supreme Court granted her bail.
But even thereafter, she remained in jail as no one was coming forward to give sureties.
The person who had come to give papers had stopped contacting.
I had no other contacts or address of any of her relatives.
She continued to be in jail inspite of order of Supreme Court granting bail.
After nine months, I passed a warning to the person who had sent me papers that I am going to mention this matter to Supreme Court Judges by filing an application.
He immediately conveyed that I should not do so since they are doing needful to release the woman from jail.
A week later I was told that some one had furnished sureties and she was released from jail.
The case still remains in darkness for me.
There are many such cases in which even lawyers do not know much about their clients.
Haresh Raichura
23/11/14
Copyright : Haresh Raichura 2014. All Rights reserved.
November 18, 2014
Indian Law which needs reconsideration - Sec.149 IPC - An accused can be sent to life even if nothing is done by him
An accused can be sent to life even if nothing is done by him-
A Law in India, which needs some reconsideration -
Sec.149 IPC -
This is a serious provision. Many in jail say that they are innocent, though they had done nothing, they are wrongly sent to jail. They say that their appeals are wrongly dismissed by High Court and Supreme Court.
WHAT IS THIS PROVISION ?
It is sec 149 of IPC.
Suppose few friends decide to go and beat up some rival.
And they actually go.
Now they are no more a "Group of Friends"... They have now become an "Unlawful Assembly" as per provisions of law.
In an Unlawful assembly, each person is liable equally for act of every other person.
It is like partnership firm in civil law. Each partner is liable for all acts of all other partners.
Now, instead of Beating up only, one friend goes overboard and kills the victim.
Now the Whole Group of Friends go to Life Imprisionment.
Even the person who did nothing except accompanying friends, goes in jail.
This is the Law
How this law can be improved or changed?
This law is here since hundreds of years. To change this law is not easy.
I heard an argument in Supreme Court a month ago. This argument prompts me to write this blog.
Case was :-
In a small village, a group of 20 to 25 people killed a man.
No one from village came to give evidence.
But relatives of deceased did gave evidence and gave names of 29 persons as assailants.
The trial court sent all 29 persons to life imprisionment.
It said, there is no reason why relatives of deceased will implicate any innocent person.
There is no reason available on record to disbelieve these eye witnesses (Relative Eye Witnesses)
High Court mechanically confirmed conviction.
Now arguments were in Supreme Court. The Last Court of India.
The arguing senior advocate was also a retired High Court Judge.
When he was judge, he had convicted many in this same way.
But now he was advocate. He was looking at case from perspectives of convicted. He was now thinking differently.
His following arguments touched me:
THREE ARGUMENTS
1) He said, I am lawyer, but I am also an officer of this court. It is my duty to assist court in doing justice.
I find that there is something seriously wrong in this case. Some of these 29, some must have been wrongly implicated by relatives for reasons best known to them.
2) High Court has not done its duty as a First Appellate Court.
It has not examined evidence carefully against each accused.
It just confirmed conviction by saying that in Sec. 149, it is not necessary that each accused must have done something.
3) Then he argued Law.
He said, 149 is in two parts.
A) Accused must be part of an unlawfully assembly
B) Secondly, after this is proved, a Judge has to reach a Subjective conclusion about guilt of each accused.
He said, most courts in India, are not doing their duty by examining second B part of this section.
At this stage, the hearing got adjourned. Judges asked counsel to prepare a chart of each of 29 convicts and evidence found against each of them.
I do not know what happened on next day of hearing in this case as I was too busy with many unimportant work.
A Law in India, which needs some reconsideration -
Sec.149 IPC -
This is a serious provision. Many in jail say that they are innocent, though they had done nothing, they are wrongly sent to jail. They say that their appeals are wrongly dismissed by High Court and Supreme Court.
WHAT IS THIS PROVISION ?
It is sec 149 of IPC.
Suppose few friends decide to go and beat up some rival.
And they actually go.
Now they are no more a "Group of Friends"... They have now become an "Unlawful Assembly" as per provisions of law.
In an Unlawful assembly, each person is liable equally for act of every other person.
It is like partnership firm in civil law. Each partner is liable for all acts of all other partners.
Now, instead of Beating up only, one friend goes overboard and kills the victim.
Now the Whole Group of Friends go to Life Imprisionment.
Even the person who did nothing except accompanying friends, goes in jail.
This is the Law
How this law can be improved or changed?
This law is here since hundreds of years. To change this law is not easy.
I heard an argument in Supreme Court a month ago. This argument prompts me to write this blog.
Case was :-
In a small village, a group of 20 to 25 people killed a man.
No one from village came to give evidence.
But relatives of deceased did gave evidence and gave names of 29 persons as assailants.
The trial court sent all 29 persons to life imprisionment.
It said, there is no reason why relatives of deceased will implicate any innocent person.
There is no reason available on record to disbelieve these eye witnesses (Relative Eye Witnesses)
High Court mechanically confirmed conviction.
Now arguments were in Supreme Court. The Last Court of India.
The arguing senior advocate was also a retired High Court Judge.
When he was judge, he had convicted many in this same way.
But now he was advocate. He was looking at case from perspectives of convicted. He was now thinking differently.
His following arguments touched me:
THREE ARGUMENTS
1) He said, I am lawyer, but I am also an officer of this court. It is my duty to assist court in doing justice.
I find that there is something seriously wrong in this case. Some of these 29, some must have been wrongly implicated by relatives for reasons best known to them.
2) High Court has not done its duty as a First Appellate Court.
It has not examined evidence carefully against each accused.
It just confirmed conviction by saying that in Sec. 149, it is not necessary that each accused must have done something.
3) Then he argued Law.
He said, 149 is in two parts.
A) Accused must be part of an unlawfully assembly
B) Secondly, after this is proved, a Judge has to reach a Subjective conclusion about guilt of each accused.
He said, most courts in India, are not doing their duty by examining second B part of this section.
At this stage, the hearing got adjourned. Judges asked counsel to prepare a chart of each of 29 convicts and evidence found against each of them.
I do not know what happened on next day of hearing in this case as I was too busy with many unimportant work.
I could not keep track of the case.
But a feeling kept lingering in my mind that the law here needs some more care.
Hence, today I have written this short blog. I hope it will reach to people who matters.
Haresh Raichura
18/11/14
Copyright : Haresh Raichura 2014. All Rights reserved.
But a feeling kept lingering in my mind that the law here needs some more care.
Hence, today I have written this short blog. I hope it will reach to people who matters.
Haresh Raichura
18/11/14
Copyright : Haresh Raichura 2014. All Rights reserved.
November 17, 2014
All reservations put together SHOULD NOT EXCEED 50% - A must read for general category people
FIRST SOME TROUBLING QUESTIONS
Why all these reservations in government jobs?
Why not all be treated as equal?
Why meritorious people are rejected in government jobs and why much less meritorious people are given jobs in name of reservation?
Where will general category people go if 100% Reservations are kept in govt jobs and promotion?
ANSWERS :-
We are paying for sins committed by our ancestors. They believed in caste system. Several caste people were treated UNTOUCHABLE. They were not allowed even to take water from a public well. They were not allowed to study education.
They remained crushed for centuries.
CONEPT OF AFFIRMATIVE ACTIONS
The State should confer extra and special benefits to such crushed people. They should be given jobs so that they can uplift themselves. They should be given better level playing field so that they can compete with BETTER CASTE people.
This is how RESERVATIONS are born.
SOME EVEN MORE TROUBLING QUESTIONS
For how many years, these RESERVATIONS will continue ? What about sons and daughters of IAS, Doctors, Lawyers of Schedule Caste? Why are they being given benefit of reservations when their parents have already procured high positions in society?
SUPREME COURT VIEWS
Supreme Court has already made two things clear :-
1) CREAMY LAYER cannot get benefit of RESERVATIONS. The wards of IAS, Doctors, Lawyers etc etc, even if they belong to category of RESERVED class, they cannot get benefit of reservations.
2) All kinds of RESERVATIONS IN GOVT JOBS SHOULD NOT EXCEED 50%. In other words 50% of jobs must be kept for general category of people.
WHAT CAN BE DONE
WHEN MANY STATES ARE PASSING LAWS TO PROVIDE FOR TOTAL RESERVATIONS MORE THAN 50% and sometimes even more than 77% ?
Understand this. All States are not happy with the directions of Supreme Court to observe ceiling of 50% in total reservations.
Some of them are also not happy with directions of Supreme Court to deny benefits to creamy layers.
So they keep passing laws which are in defiance of judgements of Supreme Court.
THE BURDEN TO FIGHT BACK
It is for General Category Candidates to challenge such laws in courts.
They should not keep wishing that Government will take up their cause and will fight for them.
The Government cannot fight for them because it has political vote bank compulsions.
Burden is on ordinary people to go to court and to complain to Supreme Court or to High Court.
God helps those who help themselves.
Haresh Raichura
17/11/14
Copyright : Haresh Raichura 2014. All Rights reserved.
Why all these reservations in government jobs?
Why not all be treated as equal?
Why meritorious people are rejected in government jobs and why much less meritorious people are given jobs in name of reservation?
Where will general category people go if 100% Reservations are kept in govt jobs and promotion?
ANSWERS :-
We are paying for sins committed by our ancestors. They believed in caste system. Several caste people were treated UNTOUCHABLE. They were not allowed even to take water from a public well. They were not allowed to study education.
They remained crushed for centuries.
CONEPT OF AFFIRMATIVE ACTIONS
The State should confer extra and special benefits to such crushed people. They should be given jobs so that they can uplift themselves. They should be given better level playing field so that they can compete with BETTER CASTE people.
This is how RESERVATIONS are born.
SOME EVEN MORE TROUBLING QUESTIONS
For how many years, these RESERVATIONS will continue ? What about sons and daughters of IAS, Doctors, Lawyers of Schedule Caste? Why are they being given benefit of reservations when their parents have already procured high positions in society?
SUPREME COURT VIEWS
Supreme Court has already made two things clear :-
1) CREAMY LAYER cannot get benefit of RESERVATIONS. The wards of IAS, Doctors, Lawyers etc etc, even if they belong to category of RESERVED class, they cannot get benefit of reservations.
2) All kinds of RESERVATIONS IN GOVT JOBS SHOULD NOT EXCEED 50%. In other words 50% of jobs must be kept for general category of people.
WHAT CAN BE DONE
WHEN MANY STATES ARE PASSING LAWS TO PROVIDE FOR TOTAL RESERVATIONS MORE THAN 50% and sometimes even more than 77% ?
Understand this. All States are not happy with the directions of Supreme Court to observe ceiling of 50% in total reservations.
Some of them are also not happy with directions of Supreme Court to deny benefits to creamy layers.
So they keep passing laws which are in defiance of judgements of Supreme Court.
THE BURDEN TO FIGHT BACK
It is for General Category Candidates to challenge such laws in courts.
They should not keep wishing that Government will take up their cause and will fight for them.
The Government cannot fight for them because it has political vote bank compulsions.
Burden is on ordinary people to go to court and to complain to Supreme Court or to High Court.
God helps those who help themselves.
Haresh Raichura
17/11/14
Copyright : Haresh Raichura 2014. All Rights reserved.
November 14, 2014
Words to Live By - "Water runs smooth where it is deep" - a Shakespearean Quote which saved many times
About 40 years ago, I had read a book of quotations from Shakespeare.
Some of the quotations stuck in my mind instantly.
One was "Water runs smooth where it is deep." ... When everything looks completely OK, there may be some danger lurking in background...
We cannot see all things. And yet we have to take decisions.
We see that water is smooth. We are tempted to jump in it to swim.
But here the warning comes.
Here, the water could be deep or there may be some lurking danger about which we may not be yet aware.
Yesterday, I was about to make a big investment in property. Everything looked perfectly ok.
Then this Shakespearean quotation came to find. Water may be deep here because everything looks so smooth.
Deferred my decisions. And then I recognised the deep danger involved. I cancelled decision instantly.
I think this Shakespearean Quote has helped me many times in past.
Hence, today, I acknowledge usefulness of this quote.
Haresh Raichura
14/11/14
Copyright : Haresh Raichura 2014. All Rights reserved.
Some of the quotations stuck in my mind instantly.
One was "Water runs smooth where it is deep." ... When everything looks completely OK, there may be some danger lurking in background...
We cannot see all things. And yet we have to take decisions.
We see that water is smooth. We are tempted to jump in it to swim.
But here the warning comes.
Here, the water could be deep or there may be some lurking danger about which we may not be yet aware.
Yesterday, I was about to make a big investment in property. Everything looked perfectly ok.
Then this Shakespearean quotation came to find. Water may be deep here because everything looks so smooth.
Deferred my decisions. And then I recognised the deep danger involved. I cancelled decision instantly.
I think this Shakespearean Quote has helped me many times in past.
Hence, today, I acknowledge usefulness of this quote.
Haresh Raichura
14/11/14
Copyright : Haresh Raichura 2014. All Rights reserved.
November 11, 2014
Prosecuting Company Directors for publishing FALSE statements in Prospectus - Criminal Cases
Under Company Law, there are provisions under which, a criminal case can be filed against Directors of Company for making False Claims, giving false informations in PROSPECTUS.
Because on basis of such prospectus, the share holders and investors invest in companies. Sometimes they feel they are duped and cheated.
But such cases should be filed at earliest.
Sometimes it takes years for shareholders to find that the company is not using funds for purpose set out in prospectus.
The Limitations for filing complaint starts from the DATE OF KNOWLEDGE OF FRAUD or FALSE STATEMENT IN PROSPECTUS for purpose of filing criminal case under Sec. 63, 628 of Companies Act as per several decided cases. The relevant case laws should be checked before filing a complaint.
Haresh Raichura
11/11/2014
Copyright : Haresh Raichura 2014. All Rights reserved.
Because on basis of such prospectus, the share holders and investors invest in companies. Sometimes they feel they are duped and cheated.
But such cases should be filed at earliest.
Sometimes it takes years for shareholders to find that the company is not using funds for purpose set out in prospectus.
The Limitations for filing complaint starts from the DATE OF KNOWLEDGE OF FRAUD or FALSE STATEMENT IN PROSPECTUS for purpose of filing criminal case under Sec. 63, 628 of Companies Act as per several decided cases. The relevant case laws should be checked before filing a complaint.
Haresh Raichura
11/11/2014
Copyright : Haresh Raichura 2014. All Rights reserved.
Three Differences in Relations : Sudama-Krishna, Arjuna-Krishna and We- Krishna - A brief note
Krisna did not ask Sudama, "How are you doing? What can I do for you?" He just gave him warmth of a childhood friend and then without asking him, He removed poverty of Sudama.
To Arjuna, He was different. He first criticised Arjun for his cowardice and told him that his thoughts were not befitting to him. Then He coached him and encouraged him to fight. Finally, He reasons with Arjuna. He resolves Arjuna's doubts one by one. And in conclusion, asks Arjuna to do what he may think fit.
To us, He is still different. He says, in whatever form we may worship Him, He shall reinforce our faith in him.
His teachings are around since 5000 years. Generations have questioned, doubted His words, but then chosen to believe in him, and they passed on their message to next generations.
And in this way, He is with us today through his teachings.
To us also His message is, "Do not tell about my message to those who do not respect Me. They will only weaken your trust in Me. What I have said to you is a way of life. It is for you to decide. You are free to do what you think fit."
The relations between Him and us are a little different. The relationship is based on knowledge, faith and on how we walk on path suggested by Him. The path itself rewards its followers.
Haresh Raichura
11/11/14
Copyright : Haresh Raichura 2014 All Rights Reserved
To Arjuna, He was different. He first criticised Arjun for his cowardice and told him that his thoughts were not befitting to him. Then He coached him and encouraged him to fight. Finally, He reasons with Arjuna. He resolves Arjuna's doubts one by one. And in conclusion, asks Arjuna to do what he may think fit.
To us, He is still different. He says, in whatever form we may worship Him, He shall reinforce our faith in him.
His teachings are around since 5000 years. Generations have questioned, doubted His words, but then chosen to believe in him, and they passed on their message to next generations.
And in this way, He is with us today through his teachings.
To us also His message is, "Do not tell about my message to those who do not respect Me. They will only weaken your trust in Me. What I have said to you is a way of life. It is for you to decide. You are free to do what you think fit."
The relations between Him and us are a little different. The relationship is based on knowledge, faith and on how we walk on path suggested by Him. The path itself rewards its followers.
Haresh Raichura
11/11/14
Copyright : Haresh Raichura 2014 All Rights Reserved
November 10, 2014
Brief Story : Value of a hair of a moustache and value of habit of keeping one's word
This story has practical value. Lesson from the story has helped me in getting loan for for buying properties in past.
I therefore restate this story for whatever worth it is.
STORY
Many years ago, in a small village a man with a big moustache used to live. He was proud of his moustache. He used to care a lot about trimming and shaping of his moustache. His pointed moustache was his personality.
One day he was in financial needs. He went to a money lender and asked for loan.
The money lender asked,"What will you pledge as security if I give you loan?"
"I am willing to pledge ONE hair of my moustache if you are willing to give me loan of Rs.1 Lakh" said the man.
Money Lender thought for a while and then granted him loan. The man pulled out one hair from his moustache and pledged it.
Next day, another man heard about this. He too used to keep a big moustache. He went to Money Lender and asked him for loan of Rs. 1 lakh in lieu of two hairs of his moustache.
The Money Lender kicked him out.
LESSON OF THE STORY
The key to the story is not the "hair of moustache". The key to story is "Value of Word of mouth of a Man"
The first man in the story always used to keep his word. His words were as valuable to him as his pointed moustache. He could be trusted. Therefore money lender gave him loan.
The second man was not very serious about his words. He thought that money lender was a fool to grant loan in lieu of a hair of moustache. The money lender rightly kicked him out though he had offered to pledge two hairs of his moustache.
PRACTICAL VALUE OF THIS STORY
The point of this story is, if we make a habit of keeping our word, it pays in long run.
Haresh Raichura
10/11/14
Copyright : Haresh Raichura 2014 All Rights Reserved
I therefore restate this story for whatever worth it is.
STORY
Many years ago, in a small village a man with a big moustache used to live. He was proud of his moustache. He used to care a lot about trimming and shaping of his moustache. His pointed moustache was his personality.
One day he was in financial needs. He went to a money lender and asked for loan.
The money lender asked,"What will you pledge as security if I give you loan?"
"I am willing to pledge ONE hair of my moustache if you are willing to give me loan of Rs.1 Lakh" said the man.
Money Lender thought for a while and then granted him loan. The man pulled out one hair from his moustache and pledged it.
Next day, another man heard about this. He too used to keep a big moustache. He went to Money Lender and asked him for loan of Rs. 1 lakh in lieu of two hairs of his moustache.
The Money Lender kicked him out.
LESSON OF THE STORY
The key to the story is not the "hair of moustache". The key to story is "Value of Word of mouth of a Man"
The first man in the story always used to keep his word. His words were as valuable to him as his pointed moustache. He could be trusted. Therefore money lender gave him loan.
The second man was not very serious about his words. He thought that money lender was a fool to grant loan in lieu of a hair of moustache. The money lender rightly kicked him out though he had offered to pledge two hairs of his moustache.
PRACTICAL VALUE OF THIS STORY
The point of this story is, if we make a habit of keeping our word, it pays in long run.
Haresh Raichura
10/11/14
Copyright : Haresh Raichura 2014 All Rights Reserved
November 9, 2014
Few Young Employees Know : Bonds obtained by Companies binding Employees to serve 2 or 3 years compulsorily, cannot be enforced if against law
Companies often hire young and bright employees to serve in their company. They often spend a lot in giving them training and experience on job.
If after two years, the employee walks away, the company's expenditure on training this employee is lost.
Therefore, many companies obtain a Bond on stamp paper from employee that he or she will not leave company before 2, 3 or 5 years.
Sometimes it is part of service contract that Employee will not leave job without giving 3 months advance notice.
How far these agreements or bonds are valid if challenged in Court? Will Court force employee to SERVE EMPLOYER AS PER TERMS OF AGREEMENT?
1) Basic Law : All such bond and agreements are agreements to perform PERSONAL SERVICES. Normally courts have no power to enforce Personal Service of an employee. Normally, it cannot direct that an Employee will have to serve for prescribed period.
2) Most of such agreements have a clause that employee will pay certain damages to employer if he or she will leave job earlier than agreed. If the amount so agreed, looks reasonable, the court may order employee to pay damages agreed. But is such amount is too high, exorbitant, exploitative .. then the Court may refuse to order such amount as agreed in bond. Instead it will pass order of some amount which may look reasonable to court.
But all said and done, an employee cannot be forced to serve against his will even if he may have so agreed by furnishing a signed stamped bond paper.
Another Important Question : What can be done if some big company is taking bonds from employees and forcing them to sign to pay Huge Amount if they have to leave job for some reason before bond period is over ?
If after two years, the employee walks away, the company's expenditure on training this employee is lost.
Therefore, many companies obtain a Bond on stamp paper from employee that he or she will not leave company before 2, 3 or 5 years.
Sometimes it is part of service contract that Employee will not leave job without giving 3 months advance notice.
How far these agreements or bonds are valid if challenged in Court? Will Court force employee to SERVE EMPLOYER AS PER TERMS OF AGREEMENT?
1) Basic Law : All such bond and agreements are agreements to perform PERSONAL SERVICES. Normally courts have no power to enforce Personal Service of an employee. Normally, it cannot direct that an Employee will have to serve for prescribed period.
2) Most of such agreements have a clause that employee will pay certain damages to employer if he or she will leave job earlier than agreed. If the amount so agreed, looks reasonable, the court may order employee to pay damages agreed. But is such amount is too high, exorbitant, exploitative .. then the Court may refuse to order such amount as agreed in bond. Instead it will pass order of some amount which may look reasonable to court.
But all said and done, an employee cannot be forced to serve against his will even if he may have so agreed by furnishing a signed stamped bond paper.
Another Important Question : What can be done if some big company is taking bonds from employees and forcing them to sign to pay Huge Amount if they have to leave job for some reason before bond period is over ?
1) No Employee may come forward to challenge such boards in a Court of Law. Because, this can mar their future career. They will not get job in future in other companies also if they go to court to challenge conditions of bond in Court.
2) Then Remedy is Class Action : A Representative Suit by any Four Citizens of India in Civil Court by way of public interest litigation. These four warriors may not require any job. They need to just show their bonafide and public interest. The Court will direct issuance of Advertisement in Newspapers, telling people that others who want to join in this battle may also join before a given date... The quest for justice will begin. The court will declare void unreasonable amount and conditions mentioned in Bond of this company. This will bring relief to all affected employees.
Haresh Raichura
9/11/2014
Copyright : Haresh Raichura 2014 All Rights Reserved
Haresh Raichura
9/11/2014
Copyright : Haresh Raichura 2014 All Rights Reserved
November 8, 2014
Few know: Employees can seek compensation from employers for Stress-Related injuries, Depression, Pains etc
Basic law is : An employer is liable to compensate for any kind of injury which an employee may suffer on account of job which he is doing on behalf his employers.
Many modern jobs are related to computers. Many jobs are coupled with deadlines and quotas to be fulfilled in time bound manner. Higher pay is linked with more labour. These all cumulatively lead to Stress, Depression, Shoulder pains, knee pains etc.
Few employees in India are aware that they can seek compensation from their employers for all such injuries and for medical treatment expanses if their stress or injury is because of the work they do.
In other countries, there are laws for this purpose. There are also insurance companies who pay on behalf of Employers. The Law and Procedures are well structured to protect health of employees.
In India, there is Workman Compensation Act. But this law may not work when an employee is Manager or Salesman or Clerk. Here, claims have to be made under general law.
Much awareness is needed in employees so that they can claim their rights.
Haresh Raichura
8/11/14
Copyright : Haresh Raichura 2014 All Rights Reserved
November 7, 2014
Then he asked, "Sir, what are the chances of success? How much time the case will take?"
A client was cheated.
He sent papers to know what can be done. I replied that suit can be filed.
Then he asked, "Sir, what are the chances of success? How much time the case will take?"
I replied, "When life looks like fighting, fight and enjoy the fight. No question of fighting for fruits of fight. Only question is, do you have resources enough to fight?
Injustice suffered by you is something that someone harmed you. You have a choice to fight back or not. This is the main theme of Bhagwad Gita.
When good people fight, then only the bad people retreat.
Haresh Raichura
7/11/14
Copyright : Haresh Raichura 2014. All Rights reserved.
He sent papers to know what can be done. I replied that suit can be filed.
Then he asked, "Sir, what are the chances of success? How much time the case will take?"
I replied, "When life looks like fighting, fight and enjoy the fight. No question of fighting for fruits of fight. Only question is, do you have resources enough to fight?
Injustice suffered by you is something that someone harmed you. You have a choice to fight back or not. This is the main theme of Bhagwad Gita.
When good people fight, then only the bad people retreat.
Haresh Raichura
7/11/14
Copyright : Haresh Raichura 2014. All Rights reserved.
November 6, 2014
Judge to Govt pleader : In 3 Rs, you cannot buy even a cup of tea. And you are offering Rs.3 per Sq Mtr. of land..?
I vividly remember this case. Large tract of village land was acquired by State Government for building a Dam.
Since this was for Public Purpose, villagers were bound to sell their land to Government as per law of Land Acquisition Act.
The Collector offered price of Rs. 3/- per square meter of land to villagers.
The Villagers filed cases in Court.
The District Judge appeared to be a fearless judge.
He made sarcastic remark in judgement, "In 3 Rs./- you cannot buy even a tea from a roadside vendor. And government is offering only Rs.3/- per square meter of land ! This is not permissible. If you go to buy even one square meter of cloth, you have to pay rupees 300/-. Whereas, here government here wants to buy LAND, not cloth. I order government to pay Rs.300/- per square meter of land to these owners-villagers."
The Government was not happy. It went in appeal to High Court. Appeal was heard after many years. High Court dismissed appeal of Government.
Then Government filed appeal in Supreme Court. Here again after many years appeal was decided. Supreme Court reduced amount from Rs.300/- to Rs.240/-.
The villagers had to fought in court for about 20 years to get this amount.
For all these years, the Government was liable to pay only 9 percent interest per year. If Government had to borrow these amount from market for 20 years, it might have to pay 40% interest.!
MORAL OF STORY
It pays to drag rightful people into litigation. Wrongful people find themselves rewarded at the end of litigation. ...As you can see above.
Haresh Raichura
6/11/14
Copyright : Haresh Raichura 2014 All Rights Reserved.
Since this was for Public Purpose, villagers were bound to sell their land to Government as per law of Land Acquisition Act.
The Collector offered price of Rs. 3/- per square meter of land to villagers.
The Villagers filed cases in Court.
The District Judge appeared to be a fearless judge.
He made sarcastic remark in judgement, "In 3 Rs./- you cannot buy even a tea from a roadside vendor. And government is offering only Rs.3/- per square meter of land ! This is not permissible. If you go to buy even one square meter of cloth, you have to pay rupees 300/-. Whereas, here government here wants to buy LAND, not cloth. I order government to pay Rs.300/- per square meter of land to these owners-villagers."
The Government was not happy. It went in appeal to High Court. Appeal was heard after many years. High Court dismissed appeal of Government.
Then Government filed appeal in Supreme Court. Here again after many years appeal was decided. Supreme Court reduced amount from Rs.300/- to Rs.240/-.
The villagers had to fought in court for about 20 years to get this amount.
For all these years, the Government was liable to pay only 9 percent interest per year. If Government had to borrow these amount from market for 20 years, it might have to pay 40% interest.!
MORAL OF STORY
It pays to drag rightful people into litigation. Wrongful people find themselves rewarded at the end of litigation. ...As you can see above.
Haresh Raichura
6/11/14
Copyright : Haresh Raichura 2014 All Rights Reserved.
November 3, 2014
Two Lama discuss value of a Supreme Court Judgement which is not communicated to people
Two Lama walks on diamond field ( and value of a Supreme Court Judgement which is not communicated to people)
Two lamas were walking on a barren land
Land was full of sand and pebbles.
Suddenly Younger Lama saw something sparkling in the sand
He picked it up, showed it to Elder Lama and said, "This looks like s diamond ! "
"It is a Supreme Court Judgement. This barren land is full of thousands of such judgements", replied Elder Lama
"What is the value this diamond?" asked Younger Lama
"A diamond begets value only when people know about its properties. Until people know about its properties, it has no value. The value of this diamond remained uncommunicated to people. It has therefore remained unused in this barren land", Elder Lama replied"
(2)
"In Supreme Court, there are press rooms and press reporters. Do they not communicate these judgements to people?", asked Younger Lama
"They can't, even if they wish", replied Elder Lama, "On Monday and Friday, Supreme Court delivers 100 sensational orders and 10 important judgements. Press reporter had to submit only two from these judgements to Editor, who then publishes one of the two.
Rest of judgement become "old news" after 24 hours. All national media have policy to not to publish any news which is beyond 24 hours."
Puzzled Younger Lama asked, "What could be then a way to communicate value of these diamonds to people?"
"Twitter could be the future. U.K and U.S. Supreme Courts have already their official Twitter account to broadcast important matters to people. They are no more dependant on media.", Elder Lama replied
Two Lama then silently walked down the barren land.
Younger Lama had put back the diamond in sand as it was of no use to him.
Haresh Raichura
3/11/2014
(P.S. This piece is inspired by a Justice Mrs. Ranjana Desai Judgement delivered in 2012. It interpreted an important provision of law to say that if a wife is tortured in any household, upon information, a police can file 498A case and police inspector has to become Complainant.
Two lamas were walking on a barren land
Land was full of sand and pebbles.
Suddenly Younger Lama saw something sparkling in the sand
He picked it up, showed it to Elder Lama and said, "This looks like s diamond ! "
"It is a Supreme Court Judgement. This barren land is full of thousands of such judgements", replied Elder Lama
"What is the value this diamond?" asked Younger Lama
"A diamond begets value only when people know about its properties. Until people know about its properties, it has no value. The value of this diamond remained uncommunicated to people. It has therefore remained unused in this barren land", Elder Lama replied"
(2)
"In Supreme Court, there are press rooms and press reporters. Do they not communicate these judgements to people?", asked Younger Lama
"They can't, even if they wish", replied Elder Lama, "On Monday and Friday, Supreme Court delivers 100 sensational orders and 10 important judgements. Press reporter had to submit only two from these judgements to Editor, who then publishes one of the two.
Rest of judgement become "old news" after 24 hours. All national media have policy to not to publish any news which is beyond 24 hours."
Puzzled Younger Lama asked, "What could be then a way to communicate value of these diamonds to people?"
"Twitter could be the future. U.K and U.S. Supreme Courts have already their official Twitter account to broadcast important matters to people. They are no more dependant on media.", Elder Lama replied
Two Lama then silently walked down the barren land.
Younger Lama had put back the diamond in sand as it was of no use to him.
Haresh Raichura
3/11/2014
(P.S. This piece is inspired by a Justice Mrs. Ranjana Desai Judgement delivered in 2012. It interpreted an important provision of law to say that if a wife is tortured in any household, upon information, a police can file 498A case and police inspector has to become Complainant.
Since the message remained uncommunicated to masses, the message seems to have been lost. )
Copyright : Haresh Raichura 2014 All rights reserved.
Copyright : Haresh Raichura 2014 All rights reserved.
October 31, 2014
Can Trial Courts in India give Judgements in 10 Lines as they do in other country? Need for brevity?
Last week a client showed me a Divorce Judgement granted by an Australian trial court.
Judgement appeared to be in a format running into one and a half page and then signature of Judge.
Judgement mentioned facts ACTUALLY ESSENTIAL for judgement only. There appeared a prescribed form in which judgement was given.
If Indian Courts can introduce such short formats much time of courts can be saved.
The initiative has to be taken by Supreme Court or High Court for prescribing a format of judgement to trial courts in India.
Haresh Raichura
31/10/14
Copyright : Haresh Raichura 2014
Judgement appeared to be in a format running into one and a half page and then signature of Judge.
Judgement mentioned facts ACTUALLY ESSENTIAL for judgement only. There appeared a prescribed form in which judgement was given.
If Indian Courts can introduce such short formats much time of courts can be saved.
The initiative has to be taken by Supreme Court or High Court for prescribing a format of judgement to trial courts in India.
Haresh Raichura
31/10/14
Copyright : Haresh Raichura 2014
October 30, 2014
Learning Logic with a Smile -> Judge: Common sense is very uncommon. Lawyer : Yes, Sir. Judge: What did you...
This happened in the court of Justice Dipak Misra, Justice R. F. Nariman and Justice U.U.Lalit.
Justice Dipak Misra said to arguing lawyer, smilingly ,"Common sense is very uncommon".
Lawyer replied smilingly, "Yes, Sir."
Justice Dipak Misra quickly asked back smilingly, "What did you understand by this ?"
Everyone laughed and the lawyer replied, "Nothing."
Justice Nariman quickly came to rescue of lawyer by saying, "I too have understood nothing."
Again everyone laughed.
The arguments then once again resumed.
LOGIC
To say that "Common Sense is uncommon" looks like saying "X is Not X"
But here the word "Common" has two different meanings in same sentence.
Another point is since "Common" and "Sense", two words are used, the logical format can be :
Think over this.
I too have yet not understood.
Haresh Raichura
30/10/14
Justice Dipak Misra said to arguing lawyer, smilingly ,"Common sense is very uncommon".
Lawyer replied smilingly, "Yes, Sir."
Justice Dipak Misra quickly asked back smilingly, "What did you understand by this ?"
Everyone laughed and the lawyer replied, "Nothing."
Justice Nariman quickly came to rescue of lawyer by saying, "I too have understood nothing."
Again everyone laughed.
The arguments then once again resumed.
LOGIC
To say that "Common Sense is uncommon" looks like saying "X is Not X"
But here the word "Common" has two different meanings in same sentence.
Another point is since "Common" and "Sense", two words are used, the logical format can be :
Xy is not X
Think over this.
I too have yet not understood.
Haresh Raichura
30/10/14
October 27, 2014
Myth buster : Know that Filing of FIR is not final step. Police has still powers to close a false case.
In family cases of 498A, 376, or such other cases, the parties against whom a false complaint is filed, often feels and behaves as if sky has fallen on him. This belief and fear is a myth.
FIR is just first step giving power to police to investigate. If police, after investigation, if finds that :-
1) No offence is made out, it can close FIR and report to Magistrate by way of "closure report."
2) If Police finds that Complainant had filed false complaint in order to harass accused, it can give report to Magistrate that the Complaint is false and Complainant should be prosecuted and punished for filing such false complaint. Such reports are often called "C Summary."
I think people should be more aware about this.
And if someone feels that a False FIR is filed against him, he should give such evidences to police officer and should request him to give "C Summary" to court.
Haresh Raichura
27/10/14
FIR is just first step giving power to police to investigate. If police, after investigation, if finds that :-
1) No offence is made out, it can close FIR and report to Magistrate by way of "closure report."
2) If Police finds that Complainant had filed false complaint in order to harass accused, it can give report to Magistrate that the Complaint is false and Complainant should be prosecuted and punished for filing such false complaint. Such reports are often called "C Summary."
I think people should be more aware about this.
And if someone feels that a False FIR is filed against him, he should give such evidences to police officer and should request him to give "C Summary" to court.
Haresh Raichura
27/10/14
October 26, 2014
"Good Evening, Sir", a small worm came out of Earth and said to bird. Next minute it was eaten up by the bird. Moral is....
"Good Evening, Sir", a small worm came out of Earth and said to a bird. Next minute it was eaten up by the bird. Moral of story is....
Moral of story is if you are among small people, be weary of the Big and the Famous.
They are usually very rich, very influential and very smiling.
But many tales of sins are hidden in their past.
These tales sometimes come out after hundred years of their deaths.
I have read Nikola Telsa's autobiography. It says how the great inventor called Edison cheated him.
I have read about Benjamin Franklin. He had favoured government's big contracts to one rich man. His name is good, but many scams of corruption are there in background.
India today has a very famous and great female singer. Thousands of songs are sung by her. So melodious voice!
But if you look into her past, you may discover how she conspired with music directors to see that careers of many other equally talented singers were nipped in bud. She literally forced them to boycott some best new female singers.
The point of this blog post is to caution you, that if you belong to class of small people, do keep a safe distance from the Big and the famous. Always remember this story of this small worm who said "Good Evening" to a bird.
Haresh Raichura
26/10/2014
Moral of story is if you are among small people, be weary of the Big and the Famous.
They are usually very rich, very influential and very smiling.
But many tales of sins are hidden in their past.
These tales sometimes come out after hundred years of their deaths.
I have read Nikola Telsa's autobiography. It says how the great inventor called Edison cheated him.
I have read about Benjamin Franklin. He had favoured government's big contracts to one rich man. His name is good, but many scams of corruption are there in background.
India today has a very famous and great female singer. Thousands of songs are sung by her. So melodious voice!
But if you look into her past, you may discover how she conspired with music directors to see that careers of many other equally talented singers were nipped in bud. She literally forced them to boycott some best new female singers.
The point of this blog post is to caution you, that if you belong to class of small people, do keep a safe distance from the Big and the famous. Always remember this story of this small worm who said "Good Evening" to a bird.
Haresh Raichura
26/10/2014
October 25, 2014
How an NRI, apprehending arrest for 498a, can avoid his "surprised arrest" when visiting in India - 5 steps
1) If you are an NRI, against whom some Indian woman has filed complaint under Sec.498A, or if anyone has filed case of 138 Negotiable Instrument Act, or such other cases, it is possible that police may have given a look-out notice to airports and you may get arrested when you land at any airport in India.
2) It is also possible that police may not have issued any look out notice, but you may get suddenly arrested by police when you may be touring in India or when you may be about to leave India.
SAFEGUARDS
3) Supreme Court has now changed law of arrest and police is directed to not to arrest a person accused of 498a or any such case were maximum punishment is less than SEVEN years.
4) But Supreme Court still permits Police to arrest if police has REASONS TO BELIEVE that the accused may abscond, may disappear or may not be available in India at time of trial.
Police has to record such reasons in writing while making arrest, otherwise, the Police commits contempt of Supreme Court direction. Police may have to face departmental inquiry. A High Court can issue show cause notice to policeman to ask him why he should not be punished for violating guidelines of Supreme Court.
5) What an NRI can do to avoid surprise arrest?
Before coming to India, he can ask a lawyer to move an anticipatory bail for him in Indian court.
In such application, he should assure court that when he will come to India, he will apply for regular bail, and at all time, whenever court will need him for trial of case, he will come from abroad and will attend court.
If court is satisfied, it will pass an anticipatory bail or interim protection order and he will not have to face any Surprise Arrest when visiting India.
SECOND STAGE
He must however, when he comes to India, should appear before Judge and should ask for regular bail till the whole case is finally over.
If he fails to give proper bonds and his proper addresses abroad, the court may decline regular bail.
You can expect bail order only if you are ready to respect court and to abide by orders of court.
Normally, as per Supreme Court directions, even Magistrates are directed to grant bail unless they have reasons to believe that accused may abscond, disappear or not likely to come at time of trial.
They too have to record such reasons if they want to refuse bail in cases were maximum punishment is less than 7 years.
Haresh Raichura
25/10/14
Copyright : Haresh Raichura 2014
2) It is also possible that police may not have issued any look out notice, but you may get suddenly arrested by police when you may be touring in India or when you may be about to leave India.
SAFEGUARDS
3) Supreme Court has now changed law of arrest and police is directed to not to arrest a person accused of 498a or any such case were maximum punishment is less than SEVEN years.
4) But Supreme Court still permits Police to arrest if police has REASONS TO BELIEVE that the accused may abscond, may disappear or may not be available in India at time of trial.
Police has to record such reasons in writing while making arrest, otherwise, the Police commits contempt of Supreme Court direction. Police may have to face departmental inquiry. A High Court can issue show cause notice to policeman to ask him why he should not be punished for violating guidelines of Supreme Court.
5) What an NRI can do to avoid surprise arrest?
Before coming to India, he can ask a lawyer to move an anticipatory bail for him in Indian court.
In such application, he should assure court that when he will come to India, he will apply for regular bail, and at all time, whenever court will need him for trial of case, he will come from abroad and will attend court.
If court is satisfied, it will pass an anticipatory bail or interim protection order and he will not have to face any Surprise Arrest when visiting India.
SECOND STAGE
He must however, when he comes to India, should appear before Judge and should ask for regular bail till the whole case is finally over.
If he fails to give proper bonds and his proper addresses abroad, the court may decline regular bail.
You can expect bail order only if you are ready to respect court and to abide by orders of court.
Normally, as per Supreme Court directions, even Magistrates are directed to grant bail unless they have reasons to believe that accused may abscond, disappear or not likely to come at time of trial.
They too have to record such reasons if they want to refuse bail in cases were maximum punishment is less than 7 years.
Haresh Raichura
25/10/14
Copyright : Haresh Raichura 2014
Science says, every 3 year, every cell of our body is changed. GITA says, from birth to death we continue....
Science says, every 3 year, every cell of our body is changed.
The cells in body continue to die and are remade.
GITA says similar thing, from birth to death we continue to change our physical body.
We give up our childhood-body, when we become adult.
We give up our adult-body when we become aged.
When the body is too old to work, we die and change into a new body by way of a new birth.
The "Life inside us" is in a continuation.
It is a form of Energy.
According to science, nothing is destroyed.
Things just transform into other shapes.
For example, ice can become water and water can become steam and steam can become water etc.
Variations in heats transforms physical shapes of being.
Point as said inspired form GITA :-
The life inside us was here before our birth.
It is here in us when we are passing through this body.
It will remain here even after our death,
and and will find itself a new body after our death.
Haresh Raichura
25/10/2014
The cells in body continue to die and are remade.
GITA says similar thing, from birth to death we continue to change our physical body.
We give up our childhood-body, when we become adult.
We give up our adult-body when we become aged.
When the body is too old to work, we die and change into a new body by way of a new birth.
The "Life inside us" is in a continuation.
It is a form of Energy.
According to science, nothing is destroyed.
Things just transform into other shapes.
For example, ice can become water and water can become steam and steam can become water etc.
Variations in heats transforms physical shapes of being.
Point as said inspired form GITA :-
The life inside us was here before our birth.
It is here in us when we are passing through this body.
It will remain here even after our death,
and and will find itself a new body after our death.
Haresh Raichura
25/10/2014
October 22, 2014
Property Law: Within a year of death of parents, disputes go to courts among brothers and sisters- some basics
1) Where parents have left this world without leaving a Will, the disputes arises between brothers about properties.
2) Where they have left will, but distribution of wealth is not fair in the Will, the disputes arise and even the Will is also challenged.
3) In most cases, for a few month after death of parents, the disputes are expressed as whispers, then mummers, then angry exchanges of words, then exchanges of legal notices, and then in a year, court cases are seen.
4) Courts normally grant stay orders in such cases and say that no heir shall sell any property till case is finally decided.
5) After some years, in most cases parties settle their cases.
6) One reason of dispute is : One brother says that "I kept parents in their old age. I borne all medical expanses. I borne expanses of marriages of all sisters, so I should get a larger share in properties".
This reason is not a valid reason.
The brother who is asking larger share in property because of such reasons, is on wrong side. Such reasons flare up disputes.
7) Sisters support such brother who has borne family expanses of their marriages and who has maintained parents till their last breaths. They like to give their shares to such brother.
8) Compromises are the right way. A compromise brings life time peace to all family members.
Haresh Raichura
22/10/14
2) Where they have left will, but distribution of wealth is not fair in the Will, the disputes arise and even the Will is also challenged.
3) In most cases, for a few month after death of parents, the disputes are expressed as whispers, then mummers, then angry exchanges of words, then exchanges of legal notices, and then in a year, court cases are seen.
4) Courts normally grant stay orders in such cases and say that no heir shall sell any property till case is finally decided.
5) After some years, in most cases parties settle their cases.
6) One reason of dispute is : One brother says that "I kept parents in their old age. I borne all medical expanses. I borne expanses of marriages of all sisters, so I should get a larger share in properties".
This reason is not a valid reason.
The brother who is asking larger share in property because of such reasons, is on wrong side. Such reasons flare up disputes.
7) Sisters support such brother who has borne family expanses of their marriages and who has maintained parents till their last breaths. They like to give their shares to such brother.
8) Compromises are the right way. A compromise brings life time peace to all family members.
Haresh Raichura
22/10/14
October 21, 2014
"Crime Scene Investigation" in India : Every State has its own rules, CBI has its own rules. Police Reforms needed
"Crime Scene Investigation" in India : Every State has its own rules, CBI has its own rules. Police reform desired
1) Crime Investigation comes under powers of State. Therefore every State Police Department has its own rules or procedures.
2) CBI is under Central Government. It has a detailed manual about how a crime scene should be investigated.
3) Some State do not provide enough funds to police department to carry out scientific investigation of crime scene. Sometimes they do not have funds to lift fingerprints from crime scene.
4) Though digital technology has advanced, some police still follow old procedure of drawing map of crime scene etc..
5) Central Govt has no power to enforce police reform across India. Each State has powers to prescribe its own procedures.
6) Only Supreme Court has powers to lay down guidelines for Police reforms which all States are required to follow. A public interest writ is pending in Supreme Court on this subject.
Haresh Raichura
21/10/2014
1) Crime Investigation comes under powers of State. Therefore every State Police Department has its own rules or procedures.
2) CBI is under Central Government. It has a detailed manual about how a crime scene should be investigated.
3) Some State do not provide enough funds to police department to carry out scientific investigation of crime scene. Sometimes they do not have funds to lift fingerprints from crime scene.
4) Though digital technology has advanced, some police still follow old procedure of drawing map of crime scene etc..
5) Central Govt has no power to enforce police reform across India. Each State has powers to prescribe its own procedures.
6) Only Supreme Court has powers to lay down guidelines for Police reforms which all States are required to follow. A public interest writ is pending in Supreme Court on this subject.
Haresh Raichura
21/10/2014
October 20, 2014
Basic Property Law : Agreement to Sell - if seller refuses to sell, court can direct him to sell property as per agreement
This powers of Court are under Specific Performance Act.
If a seller has signed an agreement to sell with you, accepted part payment, and then changes his mind without just reason, then court can direct him to sell property to you as per terms of agreement and can also direct him to execute a sale deed in your favour.
This are discretionary powers. If court sees that there are some just reasons for not ordering sell in your favour, it can direct seller to refund your part payment with interest.
These type of cases are called Suits for Specific Performance of Agreements.
Haresh Raichura.
20/10/14
If a seller has signed an agreement to sell with you, accepted part payment, and then changes his mind without just reason, then court can direct him to sell property to you as per terms of agreement and can also direct him to execute a sale deed in your favour.
This are discretionary powers. If court sees that there are some just reasons for not ordering sell in your favour, it can direct seller to refund your part payment with interest.
These type of cases are called Suits for Specific Performance of Agreements.
Haresh Raichura.
20/10/14
Basic Property Law : Police has no right to evict anyone from possession of any property without order of court
If you are in possession of property, police cannot come and throw you out from possession unless there is an order from court.
If someone forcefully throws you out of property, the Magistrate (Criminal Court) can pass immediate orders under Sec.145 to put you back in possession.
This provision is to ensure that no one takes law in their own hands to dispossess someone from property.
Civil disputes of property are different. Here, Civil Court decides such disputes.
Haresh Raichura
20/10/14
If someone forcefully throws you out of property, the Magistrate (Criminal Court) can pass immediate orders under Sec.145 to put you back in possession.
This provision is to ensure that no one takes law in their own hands to dispossess someone from property.
Civil disputes of property are different. Here, Civil Court decides such disputes.
Haresh Raichura
20/10/14
Basic Property Law : When you have no title deeds of your property - but you are in possession since 12 years..
This is called law of Adverse Possession
If you are in peaceful possession of property, but you do not have property title documents, then two situations may arise ;-
1) No one except true owner of property can evict you from possession of property.
2) Even true owner losses his rights if you are in peaceful possession since more than 12 years. You can say that "Since you did not disturb my possession for 12 years, I have now become owner of this property."
Here, you must prove that since 12 years, you were openly enjoying this property, but no one came to challenge your possession, even by giving a notice..
This Law of Adverse Possession.
Haresh Raichura
20/10/14
If you are in peaceful possession of property, but you do not have property title documents, then two situations may arise ;-
1) No one except true owner of property can evict you from possession of property.
2) Even true owner losses his rights if you are in peaceful possession since more than 12 years. You can say that "Since you did not disturb my possession for 12 years, I have now become owner of this property."
Here, you must prove that since 12 years, you were openly enjoying this property, but no one came to challenge your possession, even by giving a notice..
This Law of Adverse Possession.
Haresh Raichura
20/10/14
Basic Property Law : You cannot claim to be owner of any property only on basis that it in your name in municipal and revenue records.
This is a very settled and basic property law.
You can claim ownership of property on basis of some document by which some title or interest in property could have been given to you.
But simply because property is entered in municipal and revenue records, you cannot claim ownership rights.
Reference : Case of Smt. Sawarni v. Smt. Inder Kaur 1996 (6)SCC 223
Haresh Raichura
20/10/14
You can claim ownership of property on basis of some document by which some title or interest in property could have been given to you.
But simply because property is entered in municipal and revenue records, you cannot claim ownership rights.
Reference : Case of Smt. Sawarni v. Smt. Inder Kaur 1996 (6)SCC 223
Haresh Raichura
20/10/14
"Suicide Note" by itself, no ground to register a F.I.R.
"Suicide Note" has not been given any special status in Evidence Law. It by itself is no ground to register a F.I.R.
I had seen a case. A scheduled caste government officer had committed suicide. In his suicide note, he had named many superior officers as responsible for his death.
Police had registered F.I.R against those named in Suicide Note. High Court had quashed this F.I.R. Supreme Court also maintained this order.
Suicide note may be a map to guide police investigator. But it contains only allegations. Police has to collect some evidence before taking action against persons named in suicide note.
Suicide note also indicates psychological state through which disease may be passing through at time of committing suicide. Sometimes, deceased is wanting to take revenge by bringing disgrace to those who troubled him.
This is a complex piece of evidence. But by itself alone, it is not enough to register a F.I.R.
Haresh Raichura
20/10/14
I had seen a case. A scheduled caste government officer had committed suicide. In his suicide note, he had named many superior officers as responsible for his death.
Police had registered F.I.R against those named in Suicide Note. High Court had quashed this F.I.R. Supreme Court also maintained this order.
Suicide note may be a map to guide police investigator. But it contains only allegations. Police has to collect some evidence before taking action against persons named in suicide note.
Suicide note also indicates psychological state through which disease may be passing through at time of committing suicide. Sometimes, deceased is wanting to take revenge by bringing disgrace to those who troubled him.
This is a complex piece of evidence. But by itself alone, it is not enough to register a F.I.R.
Haresh Raichura
20/10/14
October 16, 2014
Saved so far about FIVE families by advising wife to not to file any cases against husband in a hurry - a memoir
I was just reflecting over my past career as a lawyer.
I started practice in District Court Junagadh in 1982
There I saw a senior advocate who was tenaciously fighting husband-wife cases.
He used to always win.
When he fought for wife, wife used win. When he fought for husband, husband used to win.
But in Bar room we junior advocates used to discuss ethics of his practice.
It was said that once any wife or husband climbed stairs of his office, their marriage has to be destroyed. There was no chance of survival of marriage once any wife or any husband had climbed stairs of his office!
This was 32 years ago. Thereafter, I moved to Ahmedabad to practice in High Court in 1986 and then moved to Supreme Court in 1990.
During this time I mostly did appellate work sent through other advocates.
Very little touch directly with clients and lower district courts.
As I reflect on past, I saw that I have saved family lives of at least five couples who are today living happily.
I did this by advising wife and his family, to not to file any cases in hurry on husband and his family.
I used to advise them to first cool down for few days.
The wife was usually turned out from husband with children. She used to weep. Her relatives used to come flared up in anger. Revenge was used to be on their mind.
After cooling them, I used to point out various legal cases which wife could file on husband and his family.
Then I used to point out to them consequences of filing such cases.
Then I used to tell them how much time these cases will take.
Then I used to ask them to think about what may happen to wife and her children when cases may keep going on in court for years.
They used to come with money. They were eager that I should file their cases. They wanted to pay me my fees.
But somehow, I did not want such fees. I was always reluctant to take their case.
I used to try to keep convincing them why they should not file any case and should let things cool down for some days.
I was advising them against my own financial interests.
Finally, they used to go away disheartened and disappointed.
And After few days, I used to learn that the couple and children have started living together and were happy.
Today same thing happened.
A wife reported that now her husband is all right. They are living together with four daughters. The husband has stopped drinking wine and is regularly going to work. They are all happy.
One year ago, this very wife had come to me to file case on her husband. At that time she was beaten. Her ornaments were not given. She escaped from matrimonial home to save herself from cruelty. Her life looked like hell to her.
I had consoled her and advised her to not to take any steps in hurry. I asked her to cool down for a couple of days. I asked her to stay cool for few days and let the husband realise how his life is when wife has gone!
She waited for a month then the husband had came. He had said sorry to wife and had taken her back to their home.
They are now living happy since a year.
This news came today, so it made me write this blog.
I think I have saved at least five such families so far by advising wife not to file case in a hurry.
Great satisfaction.
Haresh Raichura
16/10/14
I started practice in District Court Junagadh in 1982
There I saw a senior advocate who was tenaciously fighting husband-wife cases.
He used to always win.
When he fought for wife, wife used win. When he fought for husband, husband used to win.
But in Bar room we junior advocates used to discuss ethics of his practice.
It was said that once any wife or husband climbed stairs of his office, their marriage has to be destroyed. There was no chance of survival of marriage once any wife or any husband had climbed stairs of his office!
This was 32 years ago. Thereafter, I moved to Ahmedabad to practice in High Court in 1986 and then moved to Supreme Court in 1990.
During this time I mostly did appellate work sent through other advocates.
Very little touch directly with clients and lower district courts.
As I reflect on past, I saw that I have saved family lives of at least five couples who are today living happily.
I did this by advising wife and his family, to not to file any cases in hurry on husband and his family.
I used to advise them to first cool down for few days.
The wife was usually turned out from husband with children. She used to weep. Her relatives used to come flared up in anger. Revenge was used to be on their mind.
After cooling them, I used to point out various legal cases which wife could file on husband and his family.
Then I used to point out to them consequences of filing such cases.
Then I used to tell them how much time these cases will take.
Then I used to ask them to think about what may happen to wife and her children when cases may keep going on in court for years.
They used to come with money. They were eager that I should file their cases. They wanted to pay me my fees.
But somehow, I did not want such fees. I was always reluctant to take their case.
I used to try to keep convincing them why they should not file any case and should let things cool down for some days.
I was advising them against my own financial interests.
Finally, they used to go away disheartened and disappointed.
And After few days, I used to learn that the couple and children have started living together and were happy.
Today same thing happened.
A wife reported that now her husband is all right. They are living together with four daughters. The husband has stopped drinking wine and is regularly going to work. They are all happy.
One year ago, this very wife had come to me to file case on her husband. At that time she was beaten. Her ornaments were not given. She escaped from matrimonial home to save herself from cruelty. Her life looked like hell to her.
I had consoled her and advised her to not to take any steps in hurry. I asked her to cool down for a couple of days. I asked her to stay cool for few days and let the husband realise how his life is when wife has gone!
She waited for a month then the husband had came. He had said sorry to wife and had taken her back to their home.
They are now living happy since a year.
This news came today, so it made me write this blog.
I think I have saved at least five such families so far by advising wife not to file case in a hurry.
Great satisfaction.
Haresh Raichura
16/10/14
SC: Speeds Up Procedures for deciding check dishonour cases.
1) When law says that certain cases should be tried in fix time limit, the court has to make all attempts to finish such case in that time limit.
2) Law says that in check cases, the judge need to record only substance of what witnesses say. This is summary procedure.
3) If case is such that evidence of witnesses should be recorded in full, then judge has to record an order describing why this case should be tried like a long - summons cases.
4) In every case, if judge is transferred, the new judge need not restart whole case de novo. Earlier case of Nitinbhai explained. If full evidence is recorded, the Nitinbhai case need not be applicable.
5) Duty of First Appellate court. It should not mechanically decide a first appeal. All factual evidence aspects need to be examined.
6) Retrial should be ordered only in rare cases.
Above summary is based on judgement of SC dated 16/10/14 in case of J. V & Co versus State of Gujarat.
Haresh Raichura
16/10/14
2) Law says that in check cases, the judge need to record only substance of what witnesses say. This is summary procedure.
3) If case is such that evidence of witnesses should be recorded in full, then judge has to record an order describing why this case should be tried like a long - summons cases.
4) In every case, if judge is transferred, the new judge need not restart whole case de novo. Earlier case of Nitinbhai explained. If full evidence is recorded, the Nitinbhai case need not be applicable.
5) Duty of First Appellate court. It should not mechanically decide a first appeal. All factual evidence aspects need to be examined.
6) Retrial should be ordered only in rare cases.
Above summary is based on judgement of SC dated 16/10/14 in case of J. V & Co versus State of Gujarat.
Haresh Raichura
16/10/14
October 15, 2014
One Legal Reason why J. Jayalalithaa should be granted bail - a brief note.
1) Supreme Court is not a court of emotions.
Large number of people emotionally wishes bail.
Much larger number also emotionally wish that bail should not be granted.
Supreme Court is not concerned with this.
2) One legal consideration for grant or refusal of bail pending appeal is length of sentence.
Large number of people emotionally wishes bail.
Much larger number also emotionally wish that bail should not be granted.
Supreme Court is not concerned with this.
2) One legal consideration for grant or refusal of bail pending appeal is length of sentence.
If sentence is short, bail is granted till hearing of appeal.
3) Here, there is question mark on length of sentence.
3) Here, there is question mark on length of sentence.
Law provides for 24 hours cooling period after conviction is pronounced.
Only after 24 hours, judge can decide on length of sentence after hearing both sides on quantum of sentence.
4) In this case, this statutory requirement is not followed. Advocates of accused are not given enough time to prepare argument on what length of sentence should be imposed by court.
The conviction and judgement here, is passed on same day. Here, there is a legal flaw. This flow may not affect conviction. But it has bearing on length of sentence.
If cooling period of 24 hours was observed, the judge might have given one year sentence and then bail could have been natural course. It is A possibility.
5) State counsel said in high court that he had no objection to conditional if bail granted. He cannot now change his this stand in Supreme Court.
4) In this case, this statutory requirement is not followed. Advocates of accused are not given enough time to prepare argument on what length of sentence should be imposed by court.
The conviction and judgement here, is passed on same day. Here, there is a legal flaw. This flow may not affect conviction. But it has bearing on length of sentence.
If cooling period of 24 hours was observed, the judge might have given one year sentence and then bail could have been natural course. It is A possibility.
5) State counsel said in high court that he had no objection to conditional if bail granted. He cannot now change his this stand in Supreme Court.
So the balance tilts in favour of granting bail pending final hearing of appeal.
----
This is of course a technical view. My personal view. I am not concerned with case in any way.
Ultimately, Supreme Court is Supreme.
Haresh Raichura
15/10/14
----
This is of course a technical view. My personal view. I am not concerned with case in any way.
Ultimately, Supreme Court is Supreme.
Haresh Raichura
15/10/14
October 13, 2014
Some safeguards which can be directed in Sec.498a to prevent wife from dragging parents & relatives in case.
When a husband wife dispute arises, often, wife files various criminal cases against husband, his parents, relatives, alleging dowery demand, cruelty etc.
Now all these laws are enacted because it was seen that in large number of cases, women are subject to cruelty because of dowery, sometimes because not giving birth to a son and for many other reasons.
The problem arises when instead of filing case against husband, the wife chooses to file case against parents, sisters of husband living in same house also.
This inflames disputes. Passions and anger flare up on all sides. Compromise becomes difficult.
SPECIFICS OF PROBLEM
1) The Laws cannot be amended to say that such cases can be filed only against husband and cannot be filed against other relatives living in same house.
2) During evidence in court, there is a problem.
Wife often gives only her evidence. She has no other witnesses.
She says that no one from family of husband or neighbours of Husband will come to support her case.
3) The court has now difficulty. How to believer only wife's word against all in laws?
And on what basis court can refuse to believe her evidence when she is not in position to bring independent witness?
4) The problem with Husband's relatives is also genuine.
How do they disprove evidence of simple words of wife?
5) The Judge has to find what is probable on basis of words of parties. Independant witness are not available to assist court. Sometimes they give right Judgement. Sometimes they err because of lack of evidence.
What Safeguard can be imposed to prevent misuse of such provisions?
1) Role of Neighbours : Neighbours do not want to get involved in husband wife disupute. But law casts a duty on them to inform truth to police. One Supreme Court Judgement says that a neighbour has also right to lodge a FIR of 498a if wife in next house is being treated cruely.
Thus law casts a duty on neighbours.
2) Duty of Police
There is duty on police. Police cannot simply record statement of wife and file charge sheet against husband and his family.
Police has duty to issue summons to few neighbours in locality of husband and should record their statement. Police should tell neighbour that punishment for giving a false statement to police is six month jail. This will compel neighbours to speak truth.
3) If neighbours also say that other family members were also treating wife with cruelty, then only police need to file Chargesheet against relatives.
This does not prejudice wife. Because in court room, if she can later produce evidence in courtroom against relatives, then court can issue summons to relatives and can make them accused.
This is a safeguard. That only if there neighbours or some independent evidence or some letters written by such relatives demanding dowery come in the hand of police, then only police should file charge sheet against relations.
4) Now who can issue such safeguards ?
All State Governments Home Ministry can issue directions which will be valid in that state. High Courts and Supreme Court can issue such guidelines if such case is made out before them.
5) What husband can do till such guidelines are issued?
As soon FIR against relatives is filed, husband should send a list of at least 10 neighbours to police. He should ask police to take statements of any of these independant witnesses before registering FIR.
Here it is not necessary to obtain consent of neighbour. Even if they are unwilling, the police can call them.
If police does not take statement of any of these witnesses, then husband can complain to Judge when police files chargesheet. Police may have difficulty in explaining court why he did not any of 10 suggested witnesses.
Police or Court can then summons witnesses in court also.
CONCLUSION
5) The Court will now have independent witnesses also to the truth. The court now will not have to rely only on one sides evidence of wife.
Neighbours will probably say that husband and wife both are equally guilty and parents have no faults.
Haresh Raichura
13/10/2014
Now all these laws are enacted because it was seen that in large number of cases, women are subject to cruelty because of dowery, sometimes because not giving birth to a son and for many other reasons.
The problem arises when instead of filing case against husband, the wife chooses to file case against parents, sisters of husband living in same house also.
This inflames disputes. Passions and anger flare up on all sides. Compromise becomes difficult.
SPECIFICS OF PROBLEM
1) The Laws cannot be amended to say that such cases can be filed only against husband and cannot be filed against other relatives living in same house.
2) During evidence in court, there is a problem.
Wife often gives only her evidence. She has no other witnesses.
She says that no one from family of husband or neighbours of Husband will come to support her case.
3) The court has now difficulty. How to believer only wife's word against all in laws?
And on what basis court can refuse to believe her evidence when she is not in position to bring independent witness?
4) The problem with Husband's relatives is also genuine.
How do they disprove evidence of simple words of wife?
5) The Judge has to find what is probable on basis of words of parties. Independant witness are not available to assist court. Sometimes they give right Judgement. Sometimes they err because of lack of evidence.
What Safeguard can be imposed to prevent misuse of such provisions?
1) Role of Neighbours : Neighbours do not want to get involved in husband wife disupute. But law casts a duty on them to inform truth to police. One Supreme Court Judgement says that a neighbour has also right to lodge a FIR of 498a if wife in next house is being treated cruely.
Thus law casts a duty on neighbours.
2) Duty of Police
There is duty on police. Police cannot simply record statement of wife and file charge sheet against husband and his family.
Police has duty to issue summons to few neighbours in locality of husband and should record their statement. Police should tell neighbour that punishment for giving a false statement to police is six month jail. This will compel neighbours to speak truth.
3) If neighbours also say that other family members were also treating wife with cruelty, then only police need to file Chargesheet against relatives.
This does not prejudice wife. Because in court room, if she can later produce evidence in courtroom against relatives, then court can issue summons to relatives and can make them accused.
This is a safeguard. That only if there neighbours or some independent evidence or some letters written by such relatives demanding dowery come in the hand of police, then only police should file charge sheet against relations.
4) Now who can issue such safeguards ?
All State Governments Home Ministry can issue directions which will be valid in that state. High Courts and Supreme Court can issue such guidelines if such case is made out before them.
5) What husband can do till such guidelines are issued?
As soon FIR against relatives is filed, husband should send a list of at least 10 neighbours to police. He should ask police to take statements of any of these independant witnesses before registering FIR.
Here it is not necessary to obtain consent of neighbour. Even if they are unwilling, the police can call them.
If police does not take statement of any of these witnesses, then husband can complain to Judge when police files chargesheet. Police may have difficulty in explaining court why he did not any of 10 suggested witnesses.
Police or Court can then summons witnesses in court also.
CONCLUSION
5) The Court will now have independent witnesses also to the truth. The court now will not have to rely only on one sides evidence of wife.
Neighbours will probably say that husband and wife both are equally guilty and parents have no faults.
Haresh Raichura
13/10/2014
Are trial court judges permitted to decide whether witness is lying or not on basis of his/her body language?
The answer is yes.
In legal language, this is called demeanour of witnesses.
On basis of demeanour (Body Language ) of witnesses, the trial court can write whether the witness is reliable or not.
The power of trial court judge to take into account demeanour of witnesses is recognised by Supreme Court in many judgements.
Haresh Raichura
13/10/14
In legal language, this is called demeanour of witnesses.
On basis of demeanour (Body Language ) of witnesses, the trial court can write whether the witness is reliable or not.
The power of trial court judge to take into account demeanour of witnesses is recognised by Supreme Court in many judgements.
Haresh Raichura
13/10/14
Blind Civil Judge - The Justice is supposed to be blind. Judge is not supposed to be blind.
Blind people also do law courses and pass with flying marks.
Once a blind persons becomes a Law Graduate, he is also entitled to participate in examination of a judge.
One such blind law graduate passed examination of for Civil Judges with flying marks.
As an experiment, he was appointed as civil judge by High Court.
After some months, High Court received complaints against the blind judge.
The blind judge used to ask his wife to sit near him in court and to tell him how witnesses were behaving while giving deposition in court!
This the experiment was not very successful.
So far as blind lawyers are concerned, they can practice law easily. Because someone can always sit by him to assist.
But, a blind judge, is difficult to be appointed.
The Point
The Justice is supposed to be blind. Judge is not supposed to be blind.
Haresh Raichura
13/10/114
Once a blind persons becomes a Law Graduate, he is also entitled to participate in examination of a judge.
One such blind law graduate passed examination of for Civil Judges with flying marks.
As an experiment, he was appointed as civil judge by High Court.
After some months, High Court received complaints against the blind judge.
The blind judge used to ask his wife to sit near him in court and to tell him how witnesses were behaving while giving deposition in court!
This the experiment was not very successful.
So far as blind lawyers are concerned, they can practice law easily. Because someone can always sit by him to assist.
But, a blind judge, is difficult to be appointed.
The Point
The Justice is supposed to be blind. Judge is not supposed to be blind.
Haresh Raichura
13/10/114
Blind Civil Judge - The Justice is supposed to be blind. Judge is not supposed to be blind.
Blind people also do law courses and pass with flying marks.
Once a blind persons becomes a Law Graduate, he is also entitled to participate in examination of a judge.
One such blind law graduate passed examination of for Civil Judges with flying marks.
As an experiment, he was appointed as civil judge by High Court.
After some months, High Court received complaints against the blind judge.
The blind judge used to ask his wife to sit near him in court and to tell him how witnesses were behaving while giving deposition in court!
This the experiment was not very successful.
So far as blind lawyers are concerned, they can practice law easily. Because someone can always sit by him to assist.
But, a blind judge, is difficult to be appointed.
The Point
The Justice is supposed to be blind. Judge is not supposed to be blind.
Haresh Raichura
13/10/114
Once a blind persons becomes a Law Graduate, he is also entitled to participate in examination of a judge.
One such blind law graduate passed examination of for Civil Judges with flying marks.
As an experiment, he was appointed as civil judge by High Court.
After some months, High Court received complaints against the blind judge.
The blind judge used to ask his wife to sit near him in court and to tell him how witnesses were behaving while giving deposition in court!
This the experiment was not very successful.
So far as blind lawyers are concerned, they can practice law easily. Because someone can always sit by him to assist.
But, a blind judge, is difficult to be appointed.
The Point
The Justice is supposed to be blind. Judge is not supposed to be blind.
Haresh Raichura
13/10/114
October 11, 2014
Reasons : Why Sec.498A is very difficult to be amended by Law Makers or by Courts- A brief note
1) First Ask Why This Law Was Passed.
When studying any law, first question should be asked, why this law was passed in the first place? What was the social mischief which the Law wanted to cure?
In legal language, this is called "Mischief Rule of Interpretention".
Regarding 498A, the law makers saw a social problem. After marriage, a girl goes to her husband's house. The house may be far away from her maternal house.
In Husband's house, she is alone surrounded by family members of husband.
If husband turns hostile, she is helpless. No one in house is there to help her.
Sometimes she is beaten by husband and his family members.
Sometimes she is treated cruelly, for not giving birth to a son, for not bringing dowery, for not behaving properly, etc etc. Reasons could be many others also.
So the law called Sec. 498A was passed to remove this mischief in society.
Has this mischief gone? If yes, then law can be revoked. But if there are still thousands of families were wife is sufferering, then the law has to remain. It cannot be cancelled.
2) Why so much cry about abuse of Sec.498a? How the law is abused or misused? Why family of husband say that wife has filed absolutely fake cases on them?
A) In one case, a husband may say, yes, I did treated her cruely. There were just reasons. But then instead of filing complaint only against me, she has filed false complaint against my aged father, mother and innocent sisters also. My father died due to shock. ... Etc. The stories of pain are endless.
But Think For A Moment
Here, Law cannot be so changed that Police will register case only against Husband.. And Not again other family members.... Such amendments in law cannot be made.
If complaint is not proved against parents and sisters, the court can acquit them after trial.
But then, the Law cannot be also changed to say that if case against parents and sister is not proved, the wife will be jailed and heavy cost will be imposed on wife.
Because law is made to protect wife. To make a such provision will be against the object of law.
Secondly, Judges will say, from where can she bring witness to what happened to her in husband's house? No family member of husband or neighbour will come forward to support wife.
So no law can be made that if wife fails to prove case of 498a, she will be automatically made liable.
3) Earlier, A complaint under 498a used to be followed with arrest of family members of Husband. Sometimes aged parents used to die with shock of arrest.
Supreme Court has not STOPPED this. Now police is prevented from making automatic arrest.
But it is still not in power of even Supreme Court to say that no complaint can be filed against parents or sisters of husband who may be also living with husband.
4) It must be remembered that if anything happens to a wife in the house of husband, the court can sent entire family, including aged parents to jail... Here is how the judges may say .....
An actual example.
In a small village, in one house three male members and four females were living on that fateful day. Husband had gone to another town.
Three male members who were in house, burnt wife in kitchen and reported to police that she had committed suicide at 1 PM in kitchen during day time.
Police recorded statements of family members.
After one month, police discovered that it was murder.
Entire family of Three Male Members and Remaining Three females were sent to Life Imprisionment. Husband was acquitted.
Murder was clearly found and proved by scientific evidences.
But Which of the six members in house were responsible for murder was not proved... It cannot be proved as no one else could have seen what was happening in that house.
Lawyers argued that female members, aged mother etc were innocent.
Judge rejected these arguemnt.
Judge said, if they were truly innocent, they should have told truth to court. They were in the house when incident happened. They were knowing what was happening. They could have told truth if they were truly innocent.
The conviction by trial court was upheld upto Supreme Court.
5) The Problem is genuine.
In home, only one person may have inflicted cruelty on wife.
Wife may have filed complaint against one person who actually hurt her, and also against three other innocent members living in same house.
The Burden is on these three innocent persons to tell truth to court. They must tell whole truth to court. They must explain who was truly hurting the wife and why she was driven to file complaint.
If they do not say whole truth to the court, the judge may convict them all even if complaint against them was true regarding one and false against other three.
The law is truly very harsh.
But I see no way any amendment possible.
In 498a, so far it's Non Bailable part is concerned, Supreme Court has already said "No Automatic Arrest."
The bail can now easily be obtained in trial court. Hardship is reduced to this extent.
Haresh Raichura
11/10/14
When studying any law, first question should be asked, why this law was passed in the first place? What was the social mischief which the Law wanted to cure?
In legal language, this is called "Mischief Rule of Interpretention".
Regarding 498A, the law makers saw a social problem. After marriage, a girl goes to her husband's house. The house may be far away from her maternal house.
In Husband's house, she is alone surrounded by family members of husband.
If husband turns hostile, she is helpless. No one in house is there to help her.
Sometimes she is beaten by husband and his family members.
Sometimes she is treated cruelly, for not giving birth to a son, for not bringing dowery, for not behaving properly, etc etc. Reasons could be many others also.
So the law called Sec. 498A was passed to remove this mischief in society.
Has this mischief gone? If yes, then law can be revoked. But if there are still thousands of families were wife is sufferering, then the law has to remain. It cannot be cancelled.
2) Why so much cry about abuse of Sec.498a? How the law is abused or misused? Why family of husband say that wife has filed absolutely fake cases on them?
A) In one case, a husband may say, yes, I did treated her cruely. There were just reasons. But then instead of filing complaint only against me, she has filed false complaint against my aged father, mother and innocent sisters also. My father died due to shock. ... Etc. The stories of pain are endless.
But Think For A Moment
Here, Law cannot be so changed that Police will register case only against Husband.. And Not again other family members.... Such amendments in law cannot be made.
If complaint is not proved against parents and sisters, the court can acquit them after trial.
But then, the Law cannot be also changed to say that if case against parents and sister is not proved, the wife will be jailed and heavy cost will be imposed on wife.
Because law is made to protect wife. To make a such provision will be against the object of law.
Secondly, Judges will say, from where can she bring witness to what happened to her in husband's house? No family member of husband or neighbour will come forward to support wife.
So no law can be made that if wife fails to prove case of 498a, she will be automatically made liable.
3) Earlier, A complaint under 498a used to be followed with arrest of family members of Husband. Sometimes aged parents used to die with shock of arrest.
Supreme Court has not STOPPED this. Now police is prevented from making automatic arrest.
But it is still not in power of even Supreme Court to say that no complaint can be filed against parents or sisters of husband who may be also living with husband.
4) It must be remembered that if anything happens to a wife in the house of husband, the court can sent entire family, including aged parents to jail... Here is how the judges may say .....
An actual example.
In a small village, in one house three male members and four females were living on that fateful day. Husband had gone to another town.
Three male members who were in house, burnt wife in kitchen and reported to police that she had committed suicide at 1 PM in kitchen during day time.
Police recorded statements of family members.
After one month, police discovered that it was murder.
Entire family of Three Male Members and Remaining Three females were sent to Life Imprisionment. Husband was acquitted.
Murder was clearly found and proved by scientific evidences.
But Which of the six members in house were responsible for murder was not proved... It cannot be proved as no one else could have seen what was happening in that house.
Lawyers argued that female members, aged mother etc were innocent.
Judge rejected these arguemnt.
Judge said, if they were truly innocent, they should have told truth to court. They were in the house when incident happened. They were knowing what was happening. They could have told truth if they were truly innocent.
The conviction by trial court was upheld upto Supreme Court.
5) The Problem is genuine.
In home, only one person may have inflicted cruelty on wife.
Wife may have filed complaint against one person who actually hurt her, and also against three other innocent members living in same house.
The Burden is on these three innocent persons to tell truth to court. They must tell whole truth to court. They must explain who was truly hurting the wife and why she was driven to file complaint.
If they do not say whole truth to the court, the judge may convict them all even if complaint against them was true regarding one and false against other three.
The law is truly very harsh.
But I see no way any amendment possible.
In 498a, so far it's Non Bailable part is concerned, Supreme Court has already said "No Automatic Arrest."
The bail can now easily be obtained in trial court. Hardship is reduced to this extent.
Haresh Raichura
11/10/14
PS.
1) Supreme Court has already directed all police and state authorities in India not to unnecessary arrest or trouble any 498a victim. Guidelines given. If any police officers violate these guidelines, Supreme Court has directed that person should approach High Court for contempt and for departmental proceedings against such erring officers.
2) If someone files a totally false case and tries to extort money or to blackmail with threats of any cases, then there are separate provisions in Law under which a person can file complaint in court or can lodge an FIR. A lawyer need to examine whether there is some evidence to sustain such allegations.
(But if a woman asks for high amount of alimony for compromise or for granting divorce, it cannot be said that she is blackmailing or extorting alimony. She may be just placing a too high price for compromise. This is a relevant evidence against wife in a case filed by her , but this may not be a crime.)
October 10, 2014
"Suspension of Sentence" and "Bail Pending Hearing of Appeal" are two different and separate things #Knowhow
After a person is convicted by trial court,
- He files an Appeal to Superior Court ( High Court or District Court depending on nature of conviction)
At time of filing appeal, he can file two more Applications with Appeal :-
1) Application for Bail, saying, "please release me on bail since regular hearing of my appeal can take several months or years."
2) Application for Suspension of Sentence, saying "Please suspend my sentence regarding conviction, during hearing of appeal so that in the meantime I can continue in my job as government servant, and I do not have to deposit fine, and that the conviction do not come in my way in other areas of my occupation."
In these way two things are different.
If only prayer (1) bail, is granted, he is released on bail but he loses govt job etc in meantime and he has to deposit fine.
If prayer (2) is also granted, then conviction judgement itself is suspended and the person can move along with his govt job etc...
He also do not have to deposit fine, or can deposit amounts as may be directed.
Since 2002, generally, sentence is not suspended in corruption cases.
But this all depends on discretion of Court. Each case have different facts.
Haresh Raichura
10/10/14
- He files an Appeal to Superior Court ( High Court or District Court depending on nature of conviction)
At time of filing appeal, he can file two more Applications with Appeal :-
1) Application for Bail, saying, "please release me on bail since regular hearing of my appeal can take several months or years."
2) Application for Suspension of Sentence, saying "Please suspend my sentence regarding conviction, during hearing of appeal so that in the meantime I can continue in my job as government servant, and I do not have to deposit fine, and that the conviction do not come in my way in other areas of my occupation."
In these way two things are different.
If only prayer (1) bail, is granted, he is released on bail but he loses govt job etc in meantime and he has to deposit fine.
If prayer (2) is also granted, then conviction judgement itself is suspended and the person can move along with his govt job etc...
He also do not have to deposit fine, or can deposit amounts as may be directed.
Since 2002, generally, sentence is not suspended in corruption cases.
But this all depends on discretion of Court. Each case have different facts.
Haresh Raichura
10/10/14
October 9, 2014
Young Lawyers in India are doing great job in Supreme Court- A compliment to young generation of lawyers
Till yesterday, I held prejudice against young generation of lawyers. I saw them arguing irrelevantly and immaturely.
I saw that they were busy playing video games and snap chats on mobiles even in court rooms.
I saw that they had short spans of attention and they were hardly paying attention to arguments going on in Supreme Court.
Supreme Court is a great court of India, presided by best judges.
It is a rare privilege to hear how they were weighing each word spoken in court.
I saw that they were missing in court manners and court craft.
Since yesterday, my these views are changing.
Probably, 5 years ago, some great judges and senior advocates, made several attempts to improve legal education in India. Bar Council of India did a great job by taking several pull up measures.
Perhaps all this is now paying dividends.
I noticed following good points which are required to be highly appreciated.
1) They are hard working when they are really working. They focus totally on what they are doing.
2) They have good command on vocabulary. They address judges with right legal vocabulary.
3) They are computer savvy. Here, they beat old generation of Senior Advocates.
Judges all over world have a weakness. If you show them a similar judgement where facts were similar, and law was exactly laid down as you argue, then they are highly impressed.
The young generation had edge in these computer skills.
They search out and come up with latest precedent matching exact facts and law.
This is due to their computer skills which old generation of lawyers in India lack.
Here, they prove better than even Senior Advocates.
4) What they lack is, perhaps, experience of knowing which argument is to be made first and which last.
But this is not so much important. When you are armed with a right kind of law and judgement, the judge will certainly go by law, and not by your standing at Bar.
I saw that they were busy playing video games and snap chats on mobiles even in court rooms.
I saw that they had short spans of attention and they were hardly paying attention to arguments going on in Supreme Court.
Supreme Court is a great court of India, presided by best judges.
It is a rare privilege to hear how they were weighing each word spoken in court.
I saw that they were missing in court manners and court craft.
Since yesterday, my these views are changing.
Probably, 5 years ago, some great judges and senior advocates, made several attempts to improve legal education in India. Bar Council of India did a great job by taking several pull up measures.
Perhaps all this is now paying dividends.
I noticed following good points which are required to be highly appreciated.
1) They are hard working when they are really working. They focus totally on what they are doing.
2) They have good command on vocabulary. They address judges with right legal vocabulary.
3) They are computer savvy. Here, they beat old generation of Senior Advocates.
Judges all over world have a weakness. If you show them a similar judgement where facts were similar, and law was exactly laid down as you argue, then they are highly impressed.
The young generation had edge in these computer skills.
They search out and come up with latest precedent matching exact facts and law.
This is due to their computer skills which old generation of lawyers in India lack.
Here, they prove better than even Senior Advocates.
4) What they lack is, perhaps, experience of knowing which argument is to be made first and which last.
But this is not so much important. When you are armed with a right kind of law and judgement, the judge will certainly go by law, and not by your standing at Bar.
Age of an advocate makes no difference to a judge.
THE POINT
What follows is this.
If you have legal case, you do not need to go to most expensive and most senior lawyers.
Do not get impressed by wooden walls and air conditioned offices of famous lawyers.
First, try and discuss your case with some fresh Young Generation Advocate. The legal education has improved a lot in last 5 years in India.
You may be impressed by new talents.
Haresh Raichura
9/10/2014
THE POINT
What follows is this.
If you have legal case, you do not need to go to most expensive and most senior lawyers.
Do not get impressed by wooden walls and air conditioned offices of famous lawyers.
First, try and discuss your case with some fresh Young Generation Advocate. The legal education has improved a lot in last 5 years in India.
You may be impressed by new talents.
Haresh Raichura
9/10/2014
October 3, 2014
Three Sins Of A Judge - Which sit on his head like coils of a snake
A judge commits three sins, when , he classifies lawyers in three lists:
1) Lawyers in his Good Book
2) Lawyers in his Bad Book
3) Lawyers whom he does not see at all.
Like coils of a snake, these three sins sit on his head once he has committed these three sins.
Haresh Raichura
3/10/14
1) Lawyers in his Good Book
2) Lawyers in his Bad Book
3) Lawyers whom he does not see at all.
Like coils of a snake, these three sins sit on his head once he has committed these three sins.
Haresh Raichura
3/10/14
Three Reasons/ Safeguards on why you should not fear discussing your perceptions about courts / Judiciary: #Knowhow
Three Reasons/ Safeguards on why you should not fear discussing your court perceptions:
1) If you are
a) not discussing your own case to take an indirect shot at judge who decided your case or who is deciding your case,
b) if you are not attributing any motive of bribe or impartiality to any judge, then you need not fear fair discussion about judicial system.
2) If the overall impression of your discussion is not for weakening judicial system, but it is truly intended to strengthen or improve judicial system, then you do not fear fair discussion about judicial system.
3) If what you have discussed is offensive to judicial system, only two type of persons can start contempt proceeding
a) The Court which may have been feeling hurt by what you have discussed
b) All other persons who may be feeling hurt, may have to first Apply to Advocate General or Attorney General for permission to file contempt proceedings.
They will grant permission only if the matter is very serious. They will ignore trivial issues and will refuse permission. This protects fair criticism.
CAUTION : This is, as per my understanding, my view. Discuss Judicial system but do it like a responsible citizen. Do not do to Judges what you do not want them to do to you. If you hurt them, then expect to be hurt.
Otherwise, fair criticism and informed (do not judge system on basis of gossips) of general system is not discouraged by judges.
A former CJI said, Sun light is the best disinfectant for judiciary.
Haresh Raichura
3/10/14
1) If you are
a) not discussing your own case to take an indirect shot at judge who decided your case or who is deciding your case,
b) if you are not attributing any motive of bribe or impartiality to any judge, then you need not fear fair discussion about judicial system.
2) If the overall impression of your discussion is not for weakening judicial system, but it is truly intended to strengthen or improve judicial system, then you do not fear fair discussion about judicial system.
3) If what you have discussed is offensive to judicial system, only two type of persons can start contempt proceeding
a) The Court which may have been feeling hurt by what you have discussed
b) All other persons who may be feeling hurt, may have to first Apply to Advocate General or Attorney General for permission to file contempt proceedings.
They will grant permission only if the matter is very serious. They will ignore trivial issues and will refuse permission. This protects fair criticism.
CAUTION : This is, as per my understanding, my view. Discuss Judicial system but do it like a responsible citizen. Do not do to Judges what you do not want them to do to you. If you hurt them, then expect to be hurt.
Otherwise, fair criticism and informed (do not judge system on basis of gossips) of general system is not discouraged by judges.
A former CJI said, Sun light is the best disinfectant for judiciary.
Haresh Raichura
3/10/14
#Knowhow What you need to prove if "Rape by Husband" is made punishable (11 points)
Judges of that court (Some Court Abroad) may have been disturbed to see so many cases were wives were complaining about rape by husbands.
The Learned Judges must have therefore made observation that some law to punish such rapes by husband may be made... as it is has been reported in Times of India.
But how will you conduct trial? Who will be eye witness? What will be reliable evidence? How a husband can be protected if false allegation is made by wife?
1) Perhaps, there may not be any need for such new law.
2). Physical Assault on Wife by Husband is already punishable.
3) Judge can give punishment under these provisions without bothering himself about details of whether wife was raped or not etc.. etc..
4) In bedrooms, there may not be any eyewitnesses. It will be an oral word of a woman versus an word of a man. How will Judge decide?
5) Injuries on body? Well, there may be injuries or there may not be injuries. Rape can still be committed without injuries also. Doubts will remain.
6) A Doctor will have to come in witness box to say that injuries were not self inflicted by woman.. How can he be so sure? He can never be sure. Medical science is not so perfect.
7) How judge will decide if husband files a counter complaint that it was the wife who raped him? He may also show injuries on his body like nail bites.
8) Judge may look at strained relations in immediate past between wife and husband.. Yes, this can indicate possibility of rape by husband....But it is also a possibility that wife may have filed complaint to take revenge or to extort money from husband or for share in his property...
The Learned Judges must have therefore made observation that some law to punish such rapes by husband may be made... as it is has been reported in Times of India.
But how will you conduct trial? Who will be eye witness? What will be reliable evidence? How a husband can be protected if false allegation is made by wife?
1) Perhaps, there may not be any need for such new law.
2). Physical Assault on Wife by Husband is already punishable.
3) Judge can give punishment under these provisions without bothering himself about details of whether wife was raped or not etc.. etc..
4) In bedrooms, there may not be any eyewitnesses. It will be an oral word of a woman versus an word of a man. How will Judge decide?
5) Injuries on body? Well, there may be injuries or there may not be injuries. Rape can still be committed without injuries also. Doubts will remain.
6) A Doctor will have to come in witness box to say that injuries were not self inflicted by woman.. How can he be so sure? He can never be sure. Medical science is not so perfect.
7) How judge will decide if husband files a counter complaint that it was the wife who raped him? He may also show injuries on his body like nail bites.
8) Judge may look at strained relations in immediate past between wife and husband.. Yes, this can indicate possibility of rape by husband....But it is also a possibility that wife may have filed complaint to take revenge or to extort money from husband or for share in his property...
How judge will decide such allegations and counter allegations?
9) Do we want all husband to live in constant fear that they all are subject to complaint of rape by wife?
10) To me, this idea of making "Rape by Husband an offence" does NOT appeal as practical idea.
11) And last horrible thing. If such law is made, all husbands may have to undergo a Potency Test.... As first step in investigation....
Haresh Raichura
3/10/14
9) Do we want all husband to live in constant fear that they all are subject to complaint of rape by wife?
10) To me, this idea of making "Rape by Husband an offence" does NOT appeal as practical idea.
11) And last horrible thing. If such law is made, all husbands may have to undergo a Potency Test.... As first step in investigation....
Haresh Raichura
3/10/14
October 2, 2014
Before Issuing Law for E-Rickshaws, Total Consumption of Electricity has to provided/Budgeted by Govt...The Problem
Delhi High Court put a stay on plying on E- Rickshaws.. But I have seen auto-rickshaw and goods auto rickshaw plying in other states of India. This is perhaps unfair.
Such vehicles have impact on total electricity available with nation.
Unless proper Electricity Budget is made, the laws cannot be made for such E-Rickshaws...
This all will have impact on Electricity Bill you and I pay.
Haresh Raichura
2/10/14
Such vehicles have impact on total electricity available with nation.
Unless proper Electricity Budget is made, the laws cannot be made for such E-Rickshaws...
This all will have impact on Electricity Bill you and I pay.
Haresh Raichura
2/10/14
September 26, 2014
Do you know that there are about 2000 cases in India in which Lawyers are facing murder charges? - said a Judge
Some months ago, during course of hearing a criminal appeal in Supreme Court, in which some lawyer was convicted on murder charge, the Judge said,
"Do you know there are about 2000 cases across India in which lawyers are charged with murder and trials are pending? We wonder why there is no criticism about this in media."
The issue is really serious. It is about the ethics of legal profession and how far they have deteriorated.
Haresh Raichura
26/9/14
"Do you know there are about 2000 cases across India in which lawyers are charged with murder and trials are pending? We wonder why there is no criticism about this in media."
The issue is really serious. It is about the ethics of legal profession and how far they have deteriorated.
Haresh Raichura
26/9/14
September 25, 2014
"Many innocent go in jail when a civil side lawyer becomes judge and decides criminal cases"-SC Judge to Senior Adv
Arguments in a criminal appeal were going on.
The question was:
"Some persons forms unlawful assembly and attacks. One injured gives several names. Should all persons named by him be sent to jail? Why an injured witness should or should not be believed?"
The SC Judges were helpless in this case because the first appellate court had not properly applied mind.
Then one judge commented,
"When a civil side lawyer becomes a judge, and when he start deciding criminal cases, when he sees a death, he starts sending all accused to jail......... Then such problem arises in appeals."
Senior Advocate responded,
"Ideally, we should have time travel ability. Then we can go in past and can see who has committed crime. But since we have no such ability, we are left with "Probability Principle" only. We have to weigh each statement on touchstone of probability."
Haresh Raichura
25/9/14
The question was:
"Some persons forms unlawful assembly and attacks. One injured gives several names. Should all persons named by him be sent to jail? Why an injured witness should or should not be believed?"
The SC Judges were helpless in this case because the first appellate court had not properly applied mind.
Then one judge commented,
"When a civil side lawyer becomes a judge, and when he start deciding criminal cases, when he sees a death, he starts sending all accused to jail......... Then such problem arises in appeals."
Senior Advocate responded,
"Ideally, we should have time travel ability. Then we can go in past and can see who has committed crime. But since we have no such ability, we are left with "Probability Principle" only. We have to weigh each statement on touchstone of probability."
Haresh Raichura
25/9/14
September 18, 2014
- A brief note and 7 hints for PIL aspirants.
In other countries, PIL ( Public Interest Litigations ) are known as " Class Actions"
1) Four or more people join hands together and file cases on behalf of people against Large Corporations and against Government Actions.
In India also, Civil Procedure Code provides for filing of such class representative suits. But public is not much aware. So this field is yet to be explored in India.
2) The Public Interest Writ Petitions filed in High Courts and Supreme Courts are known as PIL.
3) PILs are filed by individuals, by Non Government Organizations, by public welfare bodies.
4) When a person files PIL, he gets lots of publicity. So many persons file PILs just to seek publicity. This is an abuse of courts.
5) Sometimes, PILs are filed with motive to harass some people or to blackmail them. Sometimes some persons act as front of other vested rival interest people and file PIL. This is a worst kind of abuse.
6) In my view, good PIL lawyers should be free from controversies. They should be so honest that all attempts to buy them must fail. He must inspire respect even from his enemies.
7) In my view, the people should be more educated about following 7 aspects
1) Four or more people join hands together and file cases on behalf of people against Large Corporations and against Government Actions.
In India also, Civil Procedure Code provides for filing of such class representative suits. But public is not much aware. So this field is yet to be explored in India.
2) The Public Interest Writ Petitions filed in High Courts and Supreme Courts are known as PIL.
3) PILs are filed by individuals, by Non Government Organizations, by public welfare bodies.
4) When a person files PIL, he gets lots of publicity. So many persons file PILs just to seek publicity. This is an abuse of courts.
5) Sometimes, PILs are filed with motive to harass some people or to blackmail them. Sometimes some persons act as front of other vested rival interest people and file PIL. This is a worst kind of abuse.
6) In my view, good PIL lawyers should be free from controversies. They should be so honest that all attempts to buy them must fail. He must inspire respect even from his enemies.
7) In my view, the people should be more educated about following 7 aspects
7 Hints
A) Four Persons can join hands and reach nearest civil court to file Representative Suit to espouse any public grievances.
B) For filing PIL in High Court or Supreme Court, four persons should file such petitions. It is not necessary that only NGO can file PIL.
C) PIL should not be filed only on basis of news reports. First, someone must give Notice and Demand action from authority. If authority fail to respond, PIL should be moved.
D) Before filing PIL, proper research should be made about Legal Rights of People. Because courts can enter only if some legal rights of people are being neglected or violated.
E) For filing PIL, you must reach to a lawyer of good reputation. Courts are very sensitive. They can throw away even a good PIL if presented through a lawyer of dubious reputation.
F) One should not desire to file PIL for getting Publicity. The cause must be sincere. You should also be sincere.
G) You should have capacity tolerate backlash of filing PIL. After filing PIL, many activities have suddenly died in accidents. In PIL, you are calling Giants to fight with you. You should know your strength and capacity to fight.
Haresh Raichura
18/9/2014
A) Four Persons can join hands and reach nearest civil court to file Representative Suit to espouse any public grievances.
B) For filing PIL in High Court or Supreme Court, four persons should file such petitions. It is not necessary that only NGO can file PIL.
C) PIL should not be filed only on basis of news reports. First, someone must give Notice and Demand action from authority. If authority fail to respond, PIL should be moved.
D) Before filing PIL, proper research should be made about Legal Rights of People. Because courts can enter only if some legal rights of people are being neglected or violated.
E) For filing PIL, you must reach to a lawyer of good reputation. Courts are very sensitive. They can throw away even a good PIL if presented through a lawyer of dubious reputation.
F) One should not desire to file PIL for getting Publicity. The cause must be sincere. You should also be sincere.
G) You should have capacity tolerate backlash of filing PIL. After filing PIL, many activities have suddenly died in accidents. In PIL, you are calling Giants to fight with you. You should know your strength and capacity to fight.
Haresh Raichura
18/9/2014
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