The law is loose in this regard in India since last several years.
What is happening
In sensational cases, police is under immense pressure by media to arrest criminals.
After arresting them, immediately police poses with arrested persons for photo ops by media.
Within hours everyone has seen the accused on TV and in Press.
How it destroys or weaken evidence in court
After arrests, an identification parade is held before Magistrate. Here, accused are mixed up with similar looking 10 to 12 persons.
From this group, eye witnesses are asked to point out the man whom they had seen..
If witnesses identify these accused, the evidence of Identification parade can lead to their conviction.
Effect of releasing photographs of Accused to public before identification parade is held
In such cases, DefenceLawyer can argue that evidence of Identification Parade be discarded from prosecution evidence because, accused's photographs were already shown to witnesses through press and TV.
Danger of Innocent being sent to jail
Since in such media cases, police is under immense pressure to catch criminals, sometimes they may arrest some innocent also. He may be criminal in some other crime but he may be innocent in present crime. Since his photograph is given to press and TV, these witnesses may easily identify them in Identification Parade and they may go to life Imprisionment on basis of such weak evidence.
Some guidelines need to be issued by courts or by governments.
Haresh Raichura
29/6/2014
June 29, 2014
Quotation Craze - Why you should not read quotations randomly thrust upon you - a brief note
I still vividly remember the day when I first came across a book of quotations.
The book was titled "Words to live by".. The quotes were amazing. I felt as if I can spend my whole life seeking guidance from and following these quotes.
This was about 40 years ago. Today I remember only title of this book and nothing else. None of those quotes accompanied in my life.
In years that rolled by I read hundreds and thousands of quotations.
In fact, this habit of keep reading quotations confused me a lot.
A Greek lawyer, recently tweeted me and explained words "Cognitive Dissonance".
He explained that if we put contradictory quotations in our head, it creates cognitive dissonance. Mind becomes confused. It becomes unable to go in any direction.
Then recently I read autobiography of a man who invented Microsoft Word. (not Bill Gate). This man was fully in charge of department which was responsible for developing software called "Microsoft Word".
He became so rich at age of 35 that he retired. He had not much work to do except to enjoy life and to go to various clubs at night. No worry to earn money. Just like living in heaven without worry to work or to earn.
Then he wrote his autobiography.
He dealt with issue of contradictory quotations or contradictory thumb rules.
He listed various contradictiory thumb rules and discussed how one should go about it.
For example, one quote can advise "Say Less Than Necessary".
Another quote can say ,"Speak More, to Sell More."
So, which quote to follow? He reached to conclusion that each quote is good for the context in which it is to be applied.
If situation is such that it is better to apply "Say less than necessary", then apply that. If situation is such that it is better to apply "Speak more to sell more", then apply that.
In brief, he said, use quotations or thumb rules which works for you in each situation.
In Supreme Court of India, I have a very senior and wise advocate friend M N Tandon. I often turn to him to resolve my philosophical confusions.
He said, "A man should sit down to strengthen his basic beliefs." He meant to say that whatever thumb rules or quotations we wish to apply in our life, we should sit down and make them strong. In life, we cannot progress much if our basic beliefs are not strengthened.
In book 'Feeling is the Secret', the author Neville Goddard opens the book by quoting some old saying that 'there is no end to books in this world, there is no end to reading materials in this world. Reading more leads to confusion. Zero down on few worthy reading, and read them many many times'.
This much, I have to say today to those who keep reading every day new quotes.
Contradictory view
Nani Palkhiwala, the eminent jurist wrote in his books "We, the People", that it helps a lot if daily morning before starting our day, if read few inspirational books.
It does help if in morning we read some good books, quotes etc. It prepares mind to beat dust of routine life.
Thus, reading some good quotes in early morning helps us to come alive.
Conclusion
It is okay to read good quotes /books in morning. But we should strengthen our basic beliefs first. Otherwise, reading diverse quotations can lead to cognitive dissonance.
Haresh Raichura
29/6/14
The book was titled "Words to live by".. The quotes were amazing. I felt as if I can spend my whole life seeking guidance from and following these quotes.
This was about 40 years ago. Today I remember only title of this book and nothing else. None of those quotes accompanied in my life.
In years that rolled by I read hundreds and thousands of quotations.
In fact, this habit of keep reading quotations confused me a lot.
A Greek lawyer, recently tweeted me and explained words "Cognitive Dissonance".
He explained that if we put contradictory quotations in our head, it creates cognitive dissonance. Mind becomes confused. It becomes unable to go in any direction.
Then recently I read autobiography of a man who invented Microsoft Word. (not Bill Gate). This man was fully in charge of department which was responsible for developing software called "Microsoft Word".
He became so rich at age of 35 that he retired. He had not much work to do except to enjoy life and to go to various clubs at night. No worry to earn money. Just like living in heaven without worry to work or to earn.
Then he wrote his autobiography.
He dealt with issue of contradictory quotations or contradictory thumb rules.
He listed various contradictiory thumb rules and discussed how one should go about it.
For example, one quote can advise "Say Less Than Necessary".
Another quote can say ,"Speak More, to Sell More."
So, which quote to follow? He reached to conclusion that each quote is good for the context in which it is to be applied.
If situation is such that it is better to apply "Say less than necessary", then apply that. If situation is such that it is better to apply "Speak more to sell more", then apply that.
In brief, he said, use quotations or thumb rules which works for you in each situation.
In Supreme Court of India, I have a very senior and wise advocate friend M N Tandon. I often turn to him to resolve my philosophical confusions.
He said, "A man should sit down to strengthen his basic beliefs." He meant to say that whatever thumb rules or quotations we wish to apply in our life, we should sit down and make them strong. In life, we cannot progress much if our basic beliefs are not strengthened.
In book 'Feeling is the Secret', the author Neville Goddard opens the book by quoting some old saying that 'there is no end to books in this world, there is no end to reading materials in this world. Reading more leads to confusion. Zero down on few worthy reading, and read them many many times'.
This much, I have to say today to those who keep reading every day new quotes.
Contradictory view
Nani Palkhiwala, the eminent jurist wrote in his books "We, the People", that it helps a lot if daily morning before starting our day, if read few inspirational books.
It does help if in morning we read some good books, quotes etc. It prepares mind to beat dust of routine life.
Thus, reading some good quotes in early morning helps us to come alive.
Conclusion
It is okay to read good quotes /books in morning. But we should strengthen our basic beliefs first. Otherwise, reading diverse quotations can lead to cognitive dissonance.
Haresh Raichura
29/6/14
"Wake up and Live" by Dorothea Brande
Some books change us the moment we read them.
The books written and published 75 years ago had different styles.
The author used to labour hard in writing. Everyone did not get his or her work published.
The publishers used to hire best editors to select books to be published.
Thus those books have different qualities.
One such book is "Wake Up and Live" by Dorothea Brande.
From the first line in Forward, the author talks about a one line formula which changed her life instantly.
It turned her from failure to success. It turned her instantly in active mode. It transformed her life.
But up to 4th chapter, the author does not disclose this formula. Nor gives any hint.
The author just keeps ploughing our mind.
In fourth chapter, she discloses the formula and we feel as if we have conceived something. It looks as if a seed has been down in our mind.
In rest of the book, it looks as if author is adding Fertilizers in our mind so that the seed can grow into a plant.
At the end of book, we feel automatically changed. No effort seems required. No affirmations. Nothing.
If we wake us up from a sleep, we need to do nothing further to remain awake.
At least, this is how I felt after reading this book.
Haresh Raichura
29/6/2014
The books written and published 75 years ago had different styles.
The author used to labour hard in writing. Everyone did not get his or her work published.
The publishers used to hire best editors to select books to be published.
Thus those books have different qualities.
One such book is "Wake Up and Live" by Dorothea Brande.
From the first line in Forward, the author talks about a one line formula which changed her life instantly.
It turned her from failure to success. It turned her instantly in active mode. It transformed her life.
But up to 4th chapter, the author does not disclose this formula. Nor gives any hint.
The author just keeps ploughing our mind.
In fourth chapter, she discloses the formula and we feel as if we have conceived something. It looks as if a seed has been down in our mind.
In rest of the book, it looks as if author is adding Fertilizers in our mind so that the seed can grow into a plant.
At the end of book, we feel automatically changed. No effort seems required. No affirmations. Nothing.
If we wake us up from a sleep, we need to do nothing further to remain awake.
At least, this is how I felt after reading this book.
Haresh Raichura
29/6/2014
June 28, 2014
"Ask yourself, will you die if you will not write?" In Letters to a Young Poet - by Rainer Maria Rilke
Just reading. Feeling liberated.
Just reading this old classical book, "Letters to a Young Poet"
I had some misconceptions about worthiness of my poems. The misconceptions evaporated in seconds.
Such is the power of old classic books. Here, the author, Rainer was born in 1875... 139 years ago.
I just read following lines:
"But I am very poor, and my books, as soon as they are published, no longer belong to me. I can't even afford them myself."
He advises young poets to stop doing it. Stop seeking approvals of others for poems they write.
A poet should ask himself, must he write? Will he die if he will not write? If answer to this question is Yes, then he must write on....
An artist or a creator writes for his own. He feels complete the moments he has brought out his creation into this world.
A poet or an artist passes through two phases, gestation and birthing.....
Just reading on the book......
Still reading....
27.06.2014
05.07.2014
Haresh Raichura
June 27, 2014
"Did you check that, the key which you found from thief, actually opened door of burgled house?" Lawyer asked Policemen (Cross Examination)
It was night. A beat constable was routinely making rounds in the street. He saw door of a house partly open.
He entered house. Caught a thief red handed. Thief was brought to police station. He produced key with which he had opened lock of door of house. He signed a confession in which he admitted burglary.
His trial began in court. Judge asked prosecutor to show evidence against thief.
1) First, prosecutor showed confession made by accused before police.
2) Then, he showed evidence of Policeman who had caught the thief red handed.
The Judge rejected both the evidences.
----------
Here, larger public safety issue is involved. If you begin to send people to jail, on basis of statement of police, or on basis of statements signed before police, then, you are giving police power to send anyone to jail.
Today this thief may go in jail. But tomorrow, many innocent people can be sent to jail by police.
So there is public policy all over world that Judges will not rely on such police evidence.
---------
Judge asked Prosecutor to show some more evidence to connect accused with crime.
The Prosecutor produced key which was found from the pocket of thief.
Yes. This was evidence.
Once it is proved that key of house was found from pocket of thief, it was burden of accused to explain how this key came in his possession.
---------
Police man came in witness box and said that he found this key from pocket of accused.
The defence lawyer asked,
"It may be true that you found a key from pocket of my client....But this can also be a key of his own flat......Did you check that this key actually opened door of burgled house?.......Did you recover anything else from my client like any stolen articles? "
The policeman said that he had not recovered any stolen article from accused. He also admitted that he had not checked that if this key actually opened the door of the burgled house.
-----
As there was no other evidence to connect accused with crime, judge acquitted accused.
Case of prosecution failed.
(Based on an autobiography of a famous American Judge called Lebowitz)
Haresh Raichura
27/6/2014
He entered house. Caught a thief red handed. Thief was brought to police station. He produced key with which he had opened lock of door of house. He signed a confession in which he admitted burglary.
His trial began in court. Judge asked prosecutor to show evidence against thief.
1) First, prosecutor showed confession made by accused before police.
2) Then, he showed evidence of Policeman who had caught the thief red handed.
The Judge rejected both the evidences.
----------
Here, larger public safety issue is involved. If you begin to send people to jail, on basis of statement of police, or on basis of statements signed before police, then, you are giving police power to send anyone to jail.
Today this thief may go in jail. But tomorrow, many innocent people can be sent to jail by police.
So there is public policy all over world that Judges will not rely on such police evidence.
---------
Judge asked Prosecutor to show some more evidence to connect accused with crime.
The Prosecutor produced key which was found from the pocket of thief.
Yes. This was evidence.
Once it is proved that key of house was found from pocket of thief, it was burden of accused to explain how this key came in his possession.
---------
Police man came in witness box and said that he found this key from pocket of accused.
The defence lawyer asked,
"It may be true that you found a key from pocket of my client....But this can also be a key of his own flat......Did you check that this key actually opened door of burgled house?.......Did you recover anything else from my client like any stolen articles? "
The policeman said that he had not recovered any stolen article from accused. He also admitted that he had not checked that if this key actually opened the door of the burgled house.
-----
As there was no other evidence to connect accused with crime, judge acquitted accused.
Case of prosecution failed.
(Based on an autobiography of a famous American Judge called Lebowitz)
Haresh Raichura
27/6/2014
Principles of Guesswork by Judges in Court cases
In case of Trisala Jain, these principles are discussed by Supreme Court.
In deciding cases under some laws, it is not possible to get best evidence and some guess work has to be done.
The instant case was relating to Land Acquisitin where market price was required to guess.
The Court said, guessing is not permissible when there is no evidence but if there is some evidence, guesswork can be applies as per principles (Para 33)
Judgement is reported in 2011(5)Scale 469 dated 5/6/2011 in CA No 7496 of 2005
June 26, 2014
Witness said, "After seeing murder, I took a cup of tea.".. Here is how he may be cross examination by defence lawyer ->
This is just a short imaginary example.
-------
Prosecutor to Eye Witness : "Where is your flat situated?"
Witness : "My flat is situated opposite police station. Police station is just across road in front of my flat."
Prosecutor:"What happened that day?"
Witness: "I heard a shout from nearby flat. I came out from my flat. I saw accused killing my neighbour and running away".
Prosecutor: "Then what did you did?"
Witness :"I immediately went to police station to inform."
------
In Cross Examination:
Defence Lawyer :" After you saw murder, and before you went to police station, what did you do?"
Witness: "I went back in my flat and took a cup of tea and then I went to police station to inform."
-----
Now if case rests here, then at time of argument, defence lawyer will argue before Judge that witness is not reliable. After seeing murder, instead of calling police, he goes back in his own flat, coolly takes a cup of tea, and then goes to inform police. His conduct is not natural and he should not be believed.
-----
But if case does not rest there, prosecutor will ask permission to reexamine witness.
And then he will ask more questions about cup of tea.
------
Prosecutor: "What were you doing when you heard the shout?"
Witness : "I was about to take my cup of tea. But as I heard shout, I put back cup of tea on table to see what is happening. After seeing I was about to go to police station, but my wife said it will be omen if I go without finishing cup of tea. So I hurriedly finished cup of tea and went to police station."
-------
See, how one question changes the course of trial in courts. These are games wit. A lawyer has to think on his feet.
Haresh Raichura
26/06/14
-------
Prosecutor to Eye Witness : "Where is your flat situated?"
Witness : "My flat is situated opposite police station. Police station is just across road in front of my flat."
Prosecutor:"What happened that day?"
Witness: "I heard a shout from nearby flat. I came out from my flat. I saw accused killing my neighbour and running away".
Prosecutor: "Then what did you did?"
Witness :"I immediately went to police station to inform."
------
In Cross Examination:
Defence Lawyer :" After you saw murder, and before you went to police station, what did you do?"
Witness: "I went back in my flat and took a cup of tea and then I went to police station to inform."
-----
Now if case rests here, then at time of argument, defence lawyer will argue before Judge that witness is not reliable. After seeing murder, instead of calling police, he goes back in his own flat, coolly takes a cup of tea, and then goes to inform police. His conduct is not natural and he should not be believed.
-----
But if case does not rest there, prosecutor will ask permission to reexamine witness.
And then he will ask more questions about cup of tea.
------
Prosecutor: "What were you doing when you heard the shout?"
Witness : "I was about to take my cup of tea. But as I heard shout, I put back cup of tea on table to see what is happening. After seeing I was about to go to police station, but my wife said it will be omen if I go without finishing cup of tea. So I hurriedly finished cup of tea and went to police station."
-------
See, how one question changes the course of trial in courts. These are games wit. A lawyer has to think on his feet.
Haresh Raichura
26/06/14
SC Govt: Show Cause Notice Why all Rapes and Gang Rape casesshould not be FAST TRACKED?
SC to Govt: Show Cause Notice Why all Rapes and Gang Rape cases should not be FAST TRACKED and why Law should not be amended in this area?
Though there are Fast Track Courts, the procedures also needed to be amended to make them Fast Procedures.
Supreme Court also issued a general notice to all lawyers to assist court in this case.
A Bench of Justice Gyan Sudha Misra and Justice V. Gopala Gowda, JJ, passed this order in SLP(Crl) No. 5073/2011 on date 25/4/2014
Order said that there is pressing need to make
drastic changesin law of rape cases. It said that in all such cases witnesses should be directly taken to a
Lady Magistrate, statements be recorded and be kept in sealed cover till trial is held. (this can prevent pressures on witnesses to change statements in court)
The Bench of Judges felt that the Law needs to be amended and Supreme Court issued notice to Govt to know its response to this issue.
The copy of this order is sent to all Director Generals of Police of all the States / Commissioners of police in Metro cities & Union Territories.
Text of full judgement can be located on website of Supreme Court of India by searching with number and date of judgement.
Haresh Raichura
13/6/2014
The copy of
Though there are Fast Track Courts, the procedures also needed to be amended to make them Fast Procedures.
Supreme Court also issued a general notice to all lawyers to assist court in this case.
A Bench of Justice Gyan Sudha Misra and Justice V. Gopala Gowda, JJ, passed this order in SLP(Crl) No. 5073/2011 on date 25/4/2014
Order said that there is pressing need to make
drastic changesin law of rape cases. It said that in all such cases witnesses should be directly taken to a
Lady Magistrate, statements be recorded and be kept in sealed cover till trial is held. (this can prevent pressures on witnesses to change statements in court)
The Bench of Judges felt that the Law needs to be amended and Supreme Court issued notice to Govt to know its response to this issue.
The copy of this order is sent to all Director Generals of Police of all the States / Commissioners of police in Metro cities & Union Territories.
Text of full judgement can be located on website of Supreme Court of India by searching with number and date of judgement.
Haresh Raichura
13/6/2014
The copy of
June 22, 2014
20 years after death of daughter in law, the aged Father in Law and aged Mother in Law are sent to Jail by SC
Supreme Court Judgement is dated 15th April, 2014 in Criminal Appeal No. 666 of 2009
Importance of Judgement
There is difference in "Abetting suicide of Daughter in Law" and "Abetting suicide of Daughter in Law for purpose of dowery". In later case, the punishment is minimum 7 years jail. In former case, there is no minimum mandatory requirement.
This judgement shows reasonings of courts about deciding this fine difference.
Here, trial court acquitted father in law and mother in law as it found that evidence about demand of dowery was not believable. There was some other dispute about living in some separate house.
High Court, however, reversed acquittal by observing that in this case the Husband has not come forward to give evidence in support of his parents. Therefore, accused father in law and mother in law must be guilty. And then there is evidence of some witnesses that deceased was being harassed for dowery.
Supreme Court, took different view and found that there is no evidence that soon before death demands of dowery were made.
So the accused cannot be convicted for 7 years jail under dowery law....But there was sufficient evidence that the Father in Law and Mother in law created situation which drove daughter in law to commit suicide. So the crime of "Abetting to suicide of daughter in law" was proved.
Now, the Father in Law and Mother in Law had crossed age of 60 years. They had been looking after son of the deceased all these years. And looking to other facts of case, Supreme Court ordered rigorous Imprisionment for two years and Rs.50,000/- fine.
Style of Judgement.
The Judgement is written in following format:-
1) Question before Supreme Court and answer given by Supreme Court.
2) Facts
3) Decision by trial court (Its Reasons)
4) Decision by High Court (Its Reasons)
5) Discussion (Reasons prevailed in Supreme Court)
6) Conclusion (Final order)
The style is easy to read for law students, layman and lawyers.
Judgement can be searched in official website of Supreme Court of India by searching in "Judgements" tab.
Haresh Raichura
21/6/2014
Importance of Judgement
There is difference in "Abetting suicide of Daughter in Law" and "Abetting suicide of Daughter in Law for purpose of dowery". In later case, the punishment is minimum 7 years jail. In former case, there is no minimum mandatory requirement.
This judgement shows reasonings of courts about deciding this fine difference.
Here, trial court acquitted father in law and mother in law as it found that evidence about demand of dowery was not believable. There was some other dispute about living in some separate house.
High Court, however, reversed acquittal by observing that in this case the Husband has not come forward to give evidence in support of his parents. Therefore, accused father in law and mother in law must be guilty. And then there is evidence of some witnesses that deceased was being harassed for dowery.
Supreme Court, took different view and found that there is no evidence that soon before death demands of dowery were made.
So the accused cannot be convicted for 7 years jail under dowery law....But there was sufficient evidence that the Father in Law and Mother in law created situation which drove daughter in law to commit suicide. So the crime of "Abetting to suicide of daughter in law" was proved.
Now, the Father in Law and Mother in Law had crossed age of 60 years. They had been looking after son of the deceased all these years. And looking to other facts of case, Supreme Court ordered rigorous Imprisionment for two years and Rs.50,000/- fine.
Style of Judgement.
The Judgement is written in following format:-
1) Question before Supreme Court and answer given by Supreme Court.
2) Facts
3) Decision by trial court (Its Reasons)
4) Decision by High Court (Its Reasons)
5) Discussion (Reasons prevailed in Supreme Court)
6) Conclusion (Final order)
The style is easy to read for law students, layman and lawyers.
Judgement can be searched in official website of Supreme Court of India by searching in "Judgements" tab.
Haresh Raichura
21/6/2014
June 20, 2014
SC : Govt's deliberative process itself need to open up to sunlight of public scrutiny.
Supreme Court said thus:-
"A society which adopts openness as a value of overcharging significance not only permits its citizens a wide range of freedom of expression, it also goes further in actually opening up the deliberative process of the Government itself to the sunlight of public scrutiny."
Ref: Judgement of Supreme Court dated 12/12/2011 titled CIC versus Manipur State
Haresh Raichura
20/06/2014
"A society which adopts openness as a value of overcharging significance not only permits its citizens a wide range of freedom of expression, it also goes further in actually opening up the deliberative process of the Government itself to the sunlight of public scrutiny."
Ref: Judgement of Supreme Court dated 12/12/2011 titled CIC versus Manipur State
Haresh Raichura
20/06/2014
SC: Very Useful Ruling : If your case is similar to any judgement, youcan insist govt to follow ruling
If you come across any judgement of Supreme Court or any High Court, and if this judgement is in your favor, you can approach concerned government statutory authority to follow the law laid down in that judgement.
Supreme Court in this case ruled :
"Judicial rulings and the principles are meant to be followed by the statutory authorities while deciding similar issues based on the legal principles settled by judicial rulings"
If the authority or any officer violates guidelines and law laid down by Supreme Court, proceedings for contempt of court lies. Departmental inquiry proceedings can also start against that officer for violating norms laid down by Supreme Court without just cause.
This judgement dated 16.5.2013, titled State of M.P versus Sanjay can searched from Supreme Court's official website.
Haresh Raichura
20/6/2014
Supreme Court in this case ruled :
"Judicial rulings and the principles are meant to be followed by the statutory authorities while deciding similar issues based on the legal principles settled by judicial rulings"
If the authority or any officer violates guidelines and law laid down by Supreme Court, proceedings for contempt of court lies. Departmental inquiry proceedings can also start against that officer for violating norms laid down by Supreme Court without just cause.
This judgement dated 16.5.2013, titled State of M.P versus Sanjay can searched from Supreme Court's official website.
Haresh Raichura
20/6/2014
June 17, 2014
SC: DDA cannot Demand for Charges for Misuser after lapse of many years
Law is settled that in some laws time limit is not fixed for taking action.
But even then, all such demands for misuse of property has to be asked within reasonable period.
In this case, Demand for misuse of basement of building was after lapse of 25 years by Delhi Development Authority.
By detailed judgements, Delhi High Court and Supreme Court both cancelled such orders.
Plz refer to judgement of Supreme Court dated 15 March, 2011 reported in 2011(3) SCALE 563
Haresh Raichura
But even then, all such demands for misuse of property has to be asked within reasonable period.
In this case, Demand for misuse of basement of building was after lapse of 25 years by Delhi Development Authority.
By detailed judgements, Delhi High Court and Supreme Court both cancelled such orders.
Plz refer to judgement of Supreme Court dated 15 March, 2011 reported in 2011(3) SCALE 563
Haresh Raichura
'Jaljira' - is it 'Masala' or is it 'Edible Preparation'? SC reversed HC decision and held it 'Masala'
It was all about at which rate Sale Tax was required to be paid.
If it was "Edible Preparation", 10% Sales Tax.
If it was Masala, then 16% Sales Tax.
HC said it was edible preparation. It was not added in food, therefore it was not Masala.
SC reversed above judgement by saying that a Clarificatory order said that a combination of two or more masala is also a masala. Therefore Jaljira is Masala... Pay 16% Sales Tax.
Ref: CTO v. Jalani, SC decision dated 17/3/2011
Haresh Raichura
If it was "Edible Preparation", 10% Sales Tax.
If it was Masala, then 16% Sales Tax.
HC said it was edible preparation. It was not added in food, therefore it was not Masala.
SC reversed above judgement by saying that a Clarificatory order said that a combination of two or more masala is also a masala. Therefore Jaljira is Masala... Pay 16% Sales Tax.
Ref: CTO v. Jalani, SC decision dated 17/3/2011
Haresh Raichura
June 16, 2014
Golden Key to success in Court Room Debates- As discussed by Two Lama
In The Mountains of Tibet
Younger Lama asked Elder Lama,
"What is the Golden Key to success in courtroom debates?"
Elder Lama replied,
"Know that there are no bad cases,
Know that there are no good cases,
Know that there are no good lawyers,
Know that there are no bad lawyers,
Know that there are no bad judges,
Know that there are no good judges,
Know that there are three teams in debates of courtroom
One is team of judges
One is team of petitioners' lawyers
One is team of Respobdents' lawyers,
At crucial point,
The team which has read the most,
Prevails over the other two teams.
This is the Golden Key."
(C) Haresh Raichura
16/06/2014
Younger Lama asked Elder Lama,
"What is the Golden Key to success in courtroom debates?"
Elder Lama replied,
"Know that there are no bad cases,
Know that there are no good cases,
Know that there are no good lawyers,
Know that there are no bad lawyers,
Know that there are no bad judges,
Know that there are no good judges,
Know that there are three teams in debates of courtroom
One is team of judges
One is team of petitioners' lawyers
One is team of Respobdents' lawyers,
At crucial point,
The team which has read the most,
Prevails over the other two teams.
This is the Golden Key."
(C) Haresh Raichura
16/06/2014
"Why judgements of Supreme Court are not perfect? Asked Younger Lama
"Why judgements of Supreme Court are not perfect?
Asked Younger Lama
"No generation has any right to
to claim perfection. Each generation improves on the previous generation
And it's work is subject to revision by subsequent generation."
Elder Lama replied.
Haresh Raichura
16/06/2014
Two Lama On Eve of Retirement of Hon'ble Dr.Justice B.S.Chauhan, Judge Supreme Court of India (1/7/2014)
Two Lama On Eve of Retirement of Hon'ble Dr.Justice B.S.Chauhan, Judge Supreme Court of India (1/7/2014)
In the mountains of Tibet
Two lama were watching birds flying in the evening sky
Birds were circling in sky round and round
To search their destination for the night
Younger Lama asked Elder Lama,
"What do you say about contribution of Justice Chauhan?"
"He contributed towards consolidating 'V-Shape Leadership' of judges in Supreme Court"
Replied Elder Lama
"What is V-Shape Leadership?"
Asked Younger Lama
Elder Lama pointed out to a flock of birds flying in high sky
Younger Lama looked up at the sky
One bird was flying in the middle
One row of birds was on its left
One row of birds was on its right
Both rows were following the bird in the middle
And they formed a V-Shape
Suddenly the bird at the extreme left changed its course
Other birds also changed course,
The V-Shape became a straight row
Then again suddenly,
The bird at the extreme right changed its course,
Other birds followed
Again a V-Shape was formed,
And then it again became a row
Thus the birds were circling in the whole sky
Elder Lama explained,
"This is how Supreme Court Judges lead,
Each one is leader
And each one is following bird next to it
This is V-Shape leadership."
Younger Lama thought for awhile
And then asked again,
"And how Justice Chauhan consolidated
This V-Shape Leadership?"
"When judgement of bird at extreme left
And the judgement of bird at extreme right
Were printed in one volume of Law Reports,
The trial court judges and lawyers used to get confused
Right bird used to say, 'Go Right'
Left bird used to says, 'Go Left'
Some Trial Court Lawyers and Judges
Unaware about V-Shape Leadership concept,
Presumed lack of co-ordination among
Judges of The Highest Court !
Justice Chauhan used to streamline
All such judgements in one judgement
And used to tell courts below
About 'One Direction to go forward'
Since directions were clear
It saved time of lawyers and judges
And it streamlined V-Shape Leadership of Apex Court."
Elder Lama explained to Younger Lama
Haresh Raichura
In the mountains of Tibet
Two lama were watching birds flying in the evening sky
Birds were circling in sky round and round
To search their destination for the night
Younger Lama asked Elder Lama,
"What do you say about contribution of Justice Chauhan?"
"He contributed towards consolidating 'V-Shape Leadership' of judges in Supreme Court"
Replied Elder Lama
"What is V-Shape Leadership?"
Asked Younger Lama
Elder Lama pointed out to a flock of birds flying in high sky
Younger Lama looked up at the sky
One bird was flying in the middle
One row of birds was on its left
One row of birds was on its right
Both rows were following the bird in the middle
And they formed a V-Shape
Suddenly the bird at the extreme left changed its course
Other birds also changed course,
The V-Shape became a straight row
Then again suddenly,
The bird at the extreme right changed its course,
Other birds followed
Again a V-Shape was formed,
And then it again became a row
Thus the birds were circling in the whole sky
Elder Lama explained,
"This is how Supreme Court Judges lead,
Each one is leader
And each one is following bird next to it
This is V-Shape leadership."
Younger Lama thought for awhile
And then asked again,
"And how Justice Chauhan consolidated
This V-Shape Leadership?"
"When judgement of bird at extreme left
And the judgement of bird at extreme right
Were printed in one volume of Law Reports,
The trial court judges and lawyers used to get confused
Right bird used to say, 'Go Right'
Left bird used to says, 'Go Left'
Some Trial Court Lawyers and Judges
Unaware about V-Shape Leadership concept,
Presumed lack of co-ordination among
Judges of The Highest Court !
Justice Chauhan used to streamline
All such judgements in one judgement
And used to tell courts below
About 'One Direction to go forward'
Since directions were clear
It saved time of lawyers and judges
And it streamlined V-Shape Leadership of Apex Court."
Elder Lama explained to Younger Lama
Two Lama, then once again
Began to watch the flock of birds
Flying and now moving towards
far far horizon
Haresh Raichura
Advocate on Record
16/06/2014
16/06/2014
Does our Legal System seriously take note of cases of outraging modesty of woman? May be not
A society is as much strong as its legal system is.
The law provides two sets of legal remedies to woman who alleges that her dignity and modesty is outraged by a man.
One is civil remedy to seek damages by filing a civil case under Law of Torts. Second remedy is in criminal law.
In criminal law, such offences are bailable, to be tried by a Magistrate, punishment with jail up to two years, or fine, or both - depending on serious nature of act complained of.
The woman offended can compromise the case.
Since the criminal cases are made Compoundable, it is possible that the complaining woman may remain under pressure to settle case out of court.
Most cases must be compromising at police investigation stage or in courts. I have not come across any reliable study on such cases.
But in rare cases, no compromise is reached and the cases reach up to Supreme Court. In one such case, the woman was an IAS officer. She fought all the way resisting all the pressures.
It is very doubtful whether laws are very serious about such cases.
Haresh Raichura
16/6/2014
The law provides two sets of legal remedies to woman who alleges that her dignity and modesty is outraged by a man.
One is civil remedy to seek damages by filing a civil case under Law of Torts. Second remedy is in criminal law.
In criminal law, such offences are bailable, to be tried by a Magistrate, punishment with jail up to two years, or fine, or both - depending on serious nature of act complained of.
The woman offended can compromise the case.
Since the criminal cases are made Compoundable, it is possible that the complaining woman may remain under pressure to settle case out of court.
Most cases must be compromising at police investigation stage or in courts. I have not come across any reliable study on such cases.
But in rare cases, no compromise is reached and the cases reach up to Supreme Court. In one such case, the woman was an IAS officer. She fought all the way resisting all the pressures.
It is very doubtful whether laws are very serious about such cases.
Haresh Raichura
16/6/2014
June 13, 2014
+++SC to Govt: Show Cause Notice Why all Rapes and Gang Rape cases should not be FAST TRACKED?
SC to Govt: Show Cause Notice Why all Rapes and Gang Rape cases should not be FAST TRACKED and why Law should not be amended in this area?
Though there are Fast Track Courts, the procedures also needed to be amended to make them Fast Procedures.
Supreme Court also issued a general notice to all lawyers to assist court in this case.
A Bench of Justice Gyan Sudha Misra and Justice V. Gopala Gowda, JJ, passed this order in SLP(Crl) No. 5073/2011 on date 25/4/2014
Order said that there is pressing need to make drastic changes in law of rape cases. It said that in all such cases witnesses should be directly taken to a Lady Magistrate, statements be recorded and be kept in sealed cover till trial is held. (this can prevent pressures on witnesses to change statements in court)
The Bench of Judges felt that the Law needs to be amended and Supreme Court issued notice to Govt to know its response to this issue.
The copy of this order is sent to all Director Generals of Police of all the States / Commissioners of police in Metro cities & Union Territories.
Text of full judgement can be located on website of Supreme Court of India by searching with number and date of judgement.
Haresh Raichura
13/6/2014
The copy of
Though there are Fast Track Courts, the procedures also needed to be amended to make them Fast Procedures.
Supreme Court also issued a general notice to all lawyers to assist court in this case.
A Bench of Justice Gyan Sudha Misra and Justice V. Gopala Gowda, JJ, passed this order in SLP(Crl) No. 5073/2011 on date 25/4/2014
Order said that there is pressing need to make drastic changes in law of rape cases. It said that in all such cases witnesses should be directly taken to a Lady Magistrate, statements be recorded and be kept in sealed cover till trial is held. (this can prevent pressures on witnesses to change statements in court)
The Bench of Judges felt that the Law needs to be amended and Supreme Court issued notice to Govt to know its response to this issue.
The copy of this order is sent to all Director Generals of Police of all the States / Commissioners of police in Metro cities & Union Territories.
Text of full judgement can be located on website of Supreme Court of India by searching with number and date of judgement.
Haresh Raichura
13/6/2014
The copy of
June 12, 2014
SC: Yes, we do have powers to see how Govt notifies numbers of appointments... We are Constitutional Courts
Normally, it is Executive Decision, taken by government to notify required number of posts for govt jobs.
Normally, Court cannot sit on appeal over such decisions to see if posts should be more advertised or not.
But in case of Nihal Singh, reported in 2013(14) SCC 65, decided on 7.8.13, Supreme Court asserted that Constitutional Courts are not prevented from examining such decisions.
It means, all High Courts and Supreme Court can examine such decisions if so required in the interest of justice.
Haresh Raichura
11/6/2014
Normally, Court cannot sit on appeal over such decisions to see if posts should be more advertised or not.
But in case of Nihal Singh, reported in 2013(14) SCC 65, decided on 7.8.13, Supreme Court asserted that Constitutional Courts are not prevented from examining such decisions.
It means, all High Courts and Supreme Court can examine such decisions if so required in the interest of justice.
Haresh Raichura
11/6/2014
SC: Candidates in Waiting Lists also have some rights to be appointed if selected do not join
Normally, it is considered that after selecting required number of employees, appointing authority keeps a waiting list.
The candidates in waiting list have normally no right to appointment. But suppose, if some appointed candidates, do not turn up to accept jobs. Then, the persons next in waiting lists can ask that they may be appointed.
For more details, please see Manoj Manu Case, Supreme Court Judgement dated 12/8/13, reported in 2013(12)SCC 171
Haresh Raichura
11/6/2014
The candidates in waiting list have normally no right to appointment. But suppose, if some appointed candidates, do not turn up to accept jobs. Then, the persons next in waiting lists can ask that they may be appointed.
For more details, please see Manoj Manu Case, Supreme Court Judgement dated 12/8/13, reported in 2013(12)SCC 171
Haresh Raichura
11/6/2014
June 10, 2014
In brief: Power of President to Suspend Any State Government - "Rashtrapati Shasan"
Art.356 of the Constitution provides:
1) The President can impose President's Rule in any State on receipt of a Governor's report about failure of Constitutional machinery in State,
2) Or, even without any report of Governor, the President can exercise such power on his own information.
3) The period of President Rule Can be maximum up to 3 Years. Art 356(4) Proviso.
4) During such period, President can direct the Governor to exercise all function of State Government
5) Or, President can even declare that, instead of the Governor, the Parliament shall exercise all the functions of that State Government.... Art.356(1)(b)
6) The powers of High Courts shall not be affected by such Rule.
For more details, plz see Art.356 of Constitution of India.
Haresh Raichura
10/6/2014
1) The President can impose President's Rule in any State on receipt of a Governor's report about failure of Constitutional machinery in State,
2) Or, even without any report of Governor, the President can exercise such power on his own information.
3) The period of President Rule Can be maximum up to 3 Years. Art 356(4) Proviso.
4) During such period, President can direct the Governor to exercise all function of State Government
5) Or, President can even declare that, instead of the Governor, the Parliament shall exercise all the functions of that State Government.... Art.356(1)(b)
6) The powers of High Courts shall not be affected by such Rule.
For more details, plz see Art.356 of Constitution of India.
Haresh Raichura
10/6/2014
"Mental Cruelty to Wife" - Can it be easily proved or disproved in Court? Different meaning in other countries
Law, normally, is all about punishing a person for his visible acts or omissions.
The Law does not propose to undertake to punish people for whatever may be "Mental- Going inside his mind".
1) When it comes to punishing a person for inflicting "Cruelty to wife", courts of some countries have taken view that Cruelty means, physical cruelty which can be proved or disproved in court.
2) Indian Courts do not follow foreign rulings which are made under their laws to meet social needs of those countries.
In India, in social context, "Cruelty" means "Mental Cruelty" as well as "Physical Cruelty" both. This is the way laws are interpreted.
3) If wife shows mark of injuries on her body, and complains of cruelty, it will be easy for the judge to believe her. Injury can be verified by physical examination.
4) But a husband or his in laws can torture a wife in many other ways, without physically hurting her.
The way they look at wife, the way they speak insulting words to wife, the way they withdraw from company of wife etc are mental cruelty.
Mental cruelty can take shapes in thousands of forms.
So here, the judge listens to wife and her witnesses if any. Then he listens to husband and his in laws. Then at the end of hearing, he forms an opinion whether wife has been subject to cruelty or not.
Thus, was there a mental cruelty or not depends on evidence and depends on the overall impression coming out from conducts of parties.
During, trial of such cases, the Judge often notices behaviour of Husband and his relatives. He also notices behaviour of wife and her relatives. Their facial expression during trial also helps Judge in understanding their nature.
Haresh Raichura
10/6/2014
(c) Haresh Raichura
The Law does not propose to undertake to punish people for whatever may be "Mental- Going inside his mind".
1) When it comes to punishing a person for inflicting "Cruelty to wife", courts of some countries have taken view that Cruelty means, physical cruelty which can be proved or disproved in court.
2) Indian Courts do not follow foreign rulings which are made under their laws to meet social needs of those countries.
In India, in social context, "Cruelty" means "Mental Cruelty" as well as "Physical Cruelty" both. This is the way laws are interpreted.
3) If wife shows mark of injuries on her body, and complains of cruelty, it will be easy for the judge to believe her. Injury can be verified by physical examination.
4) But a husband or his in laws can torture a wife in many other ways, without physically hurting her.
The way they look at wife, the way they speak insulting words to wife, the way they withdraw from company of wife etc are mental cruelty.
Mental cruelty can take shapes in thousands of forms.
So here, the judge listens to wife and her witnesses if any. Then he listens to husband and his in laws. Then at the end of hearing, he forms an opinion whether wife has been subject to cruelty or not.
Thus, was there a mental cruelty or not depends on evidence and depends on the overall impression coming out from conducts of parties.
During, trial of such cases, the Judge often notices behaviour of Husband and his relatives. He also notices behaviour of wife and her relatives. Their facial expression during trial also helps Judge in understanding their nature.
Haresh Raichura
10/6/2014
(c) Haresh Raichura
June 6, 2014
Power of President to Dismiss Governors appointed by Previous Goverments
This short article is for layman. Reference to sections, articles, judgements is not made.
GIST:
1) Any Governor can be dismissed any time by order of The President.
2) President is bound to dismiss a Governor if the Ruling Government recommends dismissal.
3) The Court has no power to sit in appeal over decision of government to dismiss a governor.
4) The Court has no power to sit in appeal over order of President passed in such case.
5) But the Court has power to call for files to see that the decision is based on some "Relevant Material" and "Decision is based on some reasons".. .. But.. the court cannot examine whether "Reasons were politically right or wrong".
6) The court can cancel order only if there is no material, or no sufficient material on file to take such decision.
6) Since last some years, Supreme Court is aware that an outgoing goverment may be passing some policies, some orders, some appointments...at last minutes... for some extraneous considerations.
The Courts are therefore, recently, of view that any New Incoming Government can Review and Reverse orders passed by outgoing governments.
Haresh Raichura
6/6/2014
June 3, 2014
Two Lama On Eve of Retirement of Hon’ble Justice Surinder Singh Nijjar, Judge, Supreme Court of India (On 6/6/2014)
Two Lama On Eve of Retirement of
Hon’ble Justice Surinder
Singh Nijjar,
Judge, Supreme Court of India
(On 6/6/2014)
In The Mountains of
Tibet
Younger Lama asked Elder Lama,
“What can you say about
Justice Nijjar?
Elder Lama thought for a while and
said,
“He was a sojourner.
A sojourner is a person
Who lives like a traveller on Earth.
An air of aloofness and detachment
Surrounds him wherever he goes.
He feels like a foreigner
On every part of Earth.
He discharges his duty without
attachments.”
Younger Lama reflected for sometime
And then asked,
“You once said that,
‘To know a person well,
find out what he dislikes most’,
So tell me,
‘What did Justice Nijjar dislike most,
What did he disapprove most?”
Elder Lama replied,
“He disliked the way
Some Senior Advocates argued cases.
He disapproved their squabbling with
each other,
They were fighting cases
As if their own life and fortunes
were at stake in cases!
He used to caution them many times,
And used to ask them to argue
objectively,
And to maintain decorum of Supreme Court.”
“Why do some senior advocates
Start squabbling during arguments?
What makes them so involved in some
cases to the extent
That they do not mind even abusing
the judge?”
Younger Lama asked a worrisome question
Elder Lama replied,
“It is because of Pavlovian
Conditioning.
Experiments were made in 1920
And it was found that
Possibilities of higher
rewards
Change behaviours of animals
Findings were seen working on human
beings also
In absence of fee related regulations,
Performance of lawyers
Changes,
From lawyer to lawyer,
And from case to case
Across the India.”
“Are there no regulations
About how much rewards a Senior
Advocate can ask
For his professional services in
India?”
Asked Younger Lama
“Sky is the limit.”
Replied Elder Lama
Haresh Raichura
Advocate on Record.
Extention of Temporary Bail - Depends on reasons shown in each case
In criminal cases, there is a concept of granting temporary bail to an accused.
The prisoner does not cease to be a social human being once he is sent to jail.
If there are some eventuality like death of some near relative, or some social event in family, etc, temporary bails are granted by courts.
Once he is on temporary bail, he has to report back in jail by certain date.
Sometimes, there are further developments or unavoidable circumstances, for which an accused may want Extension of this period.
Courts grants such extensions in exercise of their inherent powers, if they are satisfied about the requirements of such extension.
There are no hard and fast rules. Each case is decided as per its own merits.
Haresh Raichura
3/6/14
The prisoner does not cease to be a social human being once he is sent to jail.
If there are some eventuality like death of some near relative, or some social event in family, etc, temporary bails are granted by courts.
Once he is on temporary bail, he has to report back in jail by certain date.
Sometimes, there are further developments or unavoidable circumstances, for which an accused may want Extension of this period.
Courts grants such extensions in exercise of their inherent powers, if they are satisfied about the requirements of such extension.
There are no hard and fast rules. Each case is decided as per its own merits.
Haresh Raichura
3/6/14
June 2, 2014
President can dismiss even Secretary level employees without any inquiry. Art.311(2)(c) : SC
It is possible that it may come to knowledge of Government that certain Secretary Level person is acting against the interest of government.
Normal rule is of holding an inquiry and dismiss him after inquiry.
But there may be situations when setting up inquiry may not be advisable or possible.
In such cases, even without inquiry, President is empowered to dismiss concerned a Secretary from service under Art. 311(2)(c).
For more reference, plz see SC judgement dated 30.3.2011 in C.A. No. 2797 of 2011
Haresh Raichura
2/6/2014
Normal rule is of holding an inquiry and dismiss him after inquiry.
But there may be situations when setting up inquiry may not be advisable or possible.
In such cases, even without inquiry, President is empowered to dismiss concerned a Secretary from service under Art. 311(2)(c).
For more reference, plz see SC judgement dated 30.3.2011 in C.A. No. 2797 of 2011
Haresh Raichura
2/6/2014
June 1, 2014
Trapped in a Bank's Debt Recovery Case? Remember, no appeal unless you deposit 25% upfront
Debt recovery laws are very strict. The Banks have special adjudicating debt recovery tribunals where such cases are tried.
Once the judgement is passed, a debtor may want to appeal to Appellate tribunal.
But here there is problem.
At the time of filing appeal, debtor has to deposit 50% of amount.
In Special cases, Tribunal may reduce such deposit to 25%.
But in no case, it can totally wave deposit. Appeal is not maintainable unless deposit is made.
For more reference, please check judgement of Supreme Court dated 18/3/2011 in case of N C G versus UCO Bank.
Haresh Raichura
1/6/2014
For oral interviews for jobs / promotions in Govt Depts? How many marks? 50%, 33%, 25%, 22%, 15%? 10%? Legal?
For oral interviews for jobs / promotions in Govt Depts? How many marks? 50%, 33%, 25%, 22%, 15%? 10%? Legal?
In Nagmani Case, 25% held not excessive. 2009 5 SCC 515
In Kiran Gupta case, 15% held not excessive. 2000 7 SCC 719
In Ashok Kumar Case, 22.2% was considered excessive and arbitrary. 1992 1 SCC 28
In Ajay Hasia case, 33.3% was held arbitrary. 1981 1 SCC 722
In Minor A Peeriakaruppan, 75 marks for oral interview out of total 275 was held arbitrary. 1971 1 SCC 38
In Nishi Magnu case 50 marks for oral interview out of total 150 marks was held arbitrary. 1980 4 SCC 95
In Mohinder Sain Garg Case, 25% was held excessive 1991 1 SCC 662
In P. Mohanan Pillai Case, 50% was held excessive 2007 9 SCC 497
Summarily : Excessive marks allocated for oral interviews for appointments or for promotions makes the whole process arbitrary. It becomes breeding ground for corruption.
10% for oral interview is ideal.
Haresh Raichura
1/6/2014