All courts have power to order Reconstruction of Files form whatever material available, in whatever possible way and than it can convict an accused on basis of such reconstructed case papers.
These are wide powers. There are no hard and fast rules. Looking to facts of each case, every judge can pass necessary orders to reconstruct files.
No accused can be ever allowed to go scot free on the ground that case file is missing.
When case file involving criminal-accused goes missing, the needle of suspicion usually goes towards accused. They are the possible beneficiaries.
Missing court-file is not supposed to give benefit to any accused.
Haresh Raichura
29/8/14
August 30, 2014
"Nature of Criminality in Decision Making" in Coal Block Allotment Cases, once policy is found flawed from 1993- A view
In Criminal Laws,
Four types entities are liable
1) Human Beings
2) Corporations
3) Statutory bodies
4) Government bodies.
For criminal actions, Corporations, Statutory bodies and Government bodies cannot be put in jail. But fine can be imposed on them.
The key persons of these bodies, who are vicariously liable for criminal actions, can also be put inside jails. Sometimes a Minister can also be held liable.
In foreign countries, laws of vicarious criminal liability are more explored. In India, law is yet to be explored by legal experts.
All Erroneous Decisions are not per se criminal.
There can be "Wrong but not criminal decisions."
The application of criminal law is gone if it is found that "Decision were erroneous but were not motivated by any MalaFide intention"
Once it is said, that allotments of coal blocks were bad since 1993, it is a case of erroneous beliefs.
1) The Criminality for Taking Decisions is gone.
However,
2) Criminality for preparing false document, forge documents or for destroying evidence, or for reckless negligence, etc however remains.
The conclusion :
If something is being done since 1993, an accused can very well say that he was following precedents and he had no criminal intention.
Haresh Raichura
27/8/14
Four types entities are liable
1) Human Beings
2) Corporations
3) Statutory bodies
4) Government bodies.
For criminal actions, Corporations, Statutory bodies and Government bodies cannot be put in jail. But fine can be imposed on them.
The key persons of these bodies, who are vicariously liable for criminal actions, can also be put inside jails. Sometimes a Minister can also be held liable.
In foreign countries, laws of vicarious criminal liability are more explored. In India, law is yet to be explored by legal experts.
All Erroneous Decisions are not per se criminal.
There can be "Wrong but not criminal decisions."
The application of criminal law is gone if it is found that "Decision were erroneous but were not motivated by any MalaFide intention"
Once it is said, that allotments of coal blocks were bad since 1993, it is a case of erroneous beliefs.
1) The Criminality for Taking Decisions is gone.
However,
2) Criminality for preparing false document, forge documents or for destroying evidence, or for reckless negligence, etc however remains.
The conclusion :
If something is being done since 1993, an accused can very well say that he was following precedents and he had no criminal intention.
Haresh Raichura
27/8/14
August 29, 2014
Legal Rights of a Baby Girl born yesterday to a Live-in-Couple
One live-in-relation couple sent me a box of sweet to share their happiness. Yesterday they were blessed with birth of a baby girl.
I wondered about the legal rights of the baby girl.
1) Should we call her a legitimate child or illegitimate child?
Law so far treated such "Children born out of wedlock" as illegitimate children.
2) Law is yet to formulate civil rights of Live in Relationship people.
3) But Supreme Court has said it is not illegal if two adult start living together with their free will. So the children of such couple should not be branded as "Illegitimate" children.
4) Another complicated question comes up : What will be property rights of such children in ancestral property of Husband side? If my impression is not incorrect one such case is referred to and is pending before larger bench of Supreme Court.
It seems that Society is moving faster.
Law is slow to catch up.
Haresh Raichura
29/8/2014
I wondered about the legal rights of the baby girl.
1) Should we call her a legitimate child or illegitimate child?
Law so far treated such "Children born out of wedlock" as illegitimate children.
2) Law is yet to formulate civil rights of Live in Relationship people.
3) But Supreme Court has said it is not illegal if two adult start living together with their free will. So the children of such couple should not be branded as "Illegitimate" children.
4) Another complicated question comes up : What will be property rights of such children in ancestral property of Husband side? If my impression is not incorrect one such case is referred to and is pending before larger bench of Supreme Court.
It seems that Society is moving faster.
Law is slow to catch up.
Haresh Raichura
29/8/2014
August 28, 2014
"I follow Calcutta-Practice. Read and Mark everything", Judge said to a junior lawyer
As the case called out, a junior lawyer from Appellant side stood up and said,"My case is covered by a direct judgement of this court." Then he gave case books to judges.
Judges said nothing.
They opened the book. Read the judgement. And listened.
And then one of the two judge told junior advocate that this was not a correct way to start arguments in an Appellate Court.
You should first state factual aspects of case. Other side should listen so that they can correct if wrong facts are given.
And only thereafter point should be canvassed. And then lastly, relevant judgements should be shown.
Then judge said, "I follow Calcutta-Practice. Read and Mark everything. I have read and marked case papers. I know the facts. But even then, it is on you to first present facts and only then argue."
And then the Judge showed Junior Lawyer his case paper book to junior lawyer to show his markings.
The Lesson.
1) Read everything.
2) Mark what you have read.
Haresh Raichura
28/8/14
Judges said nothing.
They opened the book. Read the judgement. And listened.
And then one of the two judge told junior advocate that this was not a correct way to start arguments in an Appellate Court.
You should first state factual aspects of case. Other side should listen so that they can correct if wrong facts are given.
And only thereafter point should be canvassed. And then lastly, relevant judgements should be shown.
Then judge said, "I follow Calcutta-Practice. Read and Mark everything. I have read and marked case papers. I know the facts. But even then, it is on you to first present facts and only then argue."
And then the Judge showed Junior Lawyer his case paper book to junior lawyer to show his markings.
The Lesson.
1) Read everything.
2) Mark what you have read.
Haresh Raichura
28/8/14
A self disciplined lawyer exercises discipline in three areas 1) Mind 2) Body & 3) Brain
1) In high-stake cases there are emotional dramas. Costs on emotions are very high if mind is not trained to be equanimous in all ups and downs of cases.
2) The court tasks requires physical performance in an open court room in presence of judges and audience of court room. Physical fitness and discipline of body are essential.
3) Brain does key work necessary to analyse cases, to form key points and to evolve strategy of everyday court life. It has to have a disciplined way of thinking.
Haresh Raichura
28/8/14
August 27, 2014
"For whom should I earn?" - said Justice T. U. Mehta - a brief memoir
When I shifted from Gujarat High Court to practice in Supreme Court, Justice T.U.Mehta was practising as a Senior Advocate in Supreme Court.
I had few occasions to engage him in cases of my clients.
Once he said,"For whom should I earn?"
There are stories about Supreme Court advocates charging Lakhs of rupees for appearing on one day of hearing.
But this is not true about High Court Judges who have retired and are practising as Senior a Advocates in Supreme Court.
Their values are different.
They are not here for money.
They are here for giving their service to judiciary.
They are not keen about charging lots of fees from clients.
Justice T. U.Mehta served in Supreme Court as Senior Advocate for many years.
One day he said, "For whom should I earn?.... I have two daughters only. They are married and settled U.S. No need to send money to them. Then for whom should I earn?"
One day he closed work as Senior Advocate and returned to Gujarat. There he spent full time in active social services.
The point is :
Among lawyers and judges, there are good human beings who believe in giving their whole life in serving the society.
Haresh Raichura
27/8/14
I had few occasions to engage him in cases of my clients.
Once he said,"For whom should I earn?"
There are stories about Supreme Court advocates charging Lakhs of rupees for appearing on one day of hearing.
But this is not true about High Court Judges who have retired and are practising as Senior a Advocates in Supreme Court.
Their values are different.
They are not here for money.
They are here for giving their service to judiciary.
They are not keen about charging lots of fees from clients.
Justice T. U.Mehta served in Supreme Court as Senior Advocate for many years.
One day he said, "For whom should I earn?.... I have two daughters only. They are married and settled U.S. No need to send money to them. Then for whom should I earn?"
One day he closed work as Senior Advocate and returned to Gujarat. There he spent full time in active social services.
The point is :
Among lawyers and judges, there are good human beings who believe in giving their whole life in serving the society.
Haresh Raichura
27/8/14
August 26, 2014
"It is very difficult to give justice when no one identifies accused in court"- said a retired Judge.
The retired judge was recounting his own experience.
He could see that witnesses were lying on oath. But until some of the witness identifies the accused in court, he cannot convict.
From the demeanour of witnesses he can clearly see that witnesses were not telling truth. It is easy for him to see this.
But case is to be decided on basis of actual words spoken by witnesses in court.
If no one names or identifies the accused, how can a judge give justice?
Haresh Raichura
26/8/14
He could see that witnesses were lying on oath. But until some of the witness identifies the accused in court, he cannot convict.
From the demeanour of witnesses he can clearly see that witnesses were not telling truth. It is easy for him to see this.
But case is to be decided on basis of actual words spoken by witnesses in court.
If no one names or identifies the accused, how can a judge give justice?
Haresh Raichura
26/8/14
August 25, 2014
Procedures set up by Supreme Court earlier when Allotments of Petrol Pumps were cancelled #Knowhow
I still remember some procedures adopted when a Supreme Court Bench headed by Justice Kuldeep Singh cancelled several Allotments of Petrol Pump granted by Union Government.
General Principle
Before cancelling an allotment, the person in whose favour allotment is made is required to be given an opportunity of hearing. During such hearing he can state whatever defences available to him.
What was done in Petrol Pump Case?
A Committee headed by a retired Supreme Court Judge was constituted.
The Committee heard all affected parties.
Then it gave its report to Supreme Court giving list of Petrol Pump Allotment which required to be cancelled.
It also identified allotments which need not be cancelled.
Requirement of natural justice was fulfilled.
Supreme Court later accepted report and necessary orders were passed.
Haresh Raichura
25/8/2014
General Principle
Before cancelling an allotment, the person in whose favour allotment is made is required to be given an opportunity of hearing. During such hearing he can state whatever defences available to him.
What was done in Petrol Pump Case?
A Committee headed by a retired Supreme Court Judge was constituted.
The Committee heard all affected parties.
Then it gave its report to Supreme Court giving list of Petrol Pump Allotment which required to be cancelled.
It also identified allotments which need not be cancelled.
Requirement of natural justice was fulfilled.
Supreme Court later accepted report and necessary orders were passed.
Haresh Raichura
25/8/2014
August 24, 2014
Nature of Power of Supreme Court over orders of Speakers of Legislative Bodies #Knowhow (In 9 Sentences)
The Law in these areas are debated in past and are settled laws.
1) "Judicial Review" is basic feature of Constitution of India.
It means this : The Courts shall have power to examine legality of any order of any authority of India however high it may be. And if necessary, Court can struck down such order.
Thus orders of Speakers, Prime Minister, President of India, Lokpal, Lokayukt etc are subject to review by Courts in India.
The Courts have laid down certain strict norms to review such orders. They will exercise their powers sparingly only in rare and fit cases.
2) In Legislative Bodies, Speaker has final authority to give rulings. But such ruling can be always challenged in Court on certain grounds.
Haresh Raichura
24/08/2014
1) "Judicial Review" is basic feature of Constitution of India.
It means this : The Courts shall have power to examine legality of any order of any authority of India however high it may be. And if necessary, Court can struck down such order.
Thus orders of Speakers, Prime Minister, President of India, Lokpal, Lokayukt etc are subject to review by Courts in India.
The Courts have laid down certain strict norms to review such orders. They will exercise their powers sparingly only in rare and fit cases.
2) In Legislative Bodies, Speaker has final authority to give rulings. But such ruling can be always challenged in Court on certain grounds.
Haresh Raichura
24/08/2014
August 22, 2014
To protect honest IAS civil servants SC & HC should change TWO main rules of game- (in 8 Sentences)
For IAS as well as State Level Class I officers.
Present Rules of Game
A) If an IAS civil servant is working honestly, he is bound to suffer injustice. Adverse entries in service record, transfer, denial of promotions etc.
B) As per present rules of game, he cannot directly approach High Court. He has to first approach Central Administrative Tribunal. (Or State Service Trubunal)
C) Generally in Service matters, no stay order is granted.
These rules B & C need to be revised by Supreme Court in order to protect honest civil servants.
I do think that some protection is needed to honest IAS officers as well as Class 1 officers in State Services.
Haresh Raichiura
22/8/2014
Present Rules of Game
A) If an IAS civil servant is working honestly, he is bound to suffer injustice. Adverse entries in service record, transfer, denial of promotions etc.
B) As per present rules of game, he cannot directly approach High Court. He has to first approach Central Administrative Tribunal. (Or State Service Trubunal)
C) Generally in Service matters, no stay order is granted.
These rules B & C need to be revised by Supreme Court in order to protect honest civil servants.
I do think that some protection is needed to honest IAS officers as well as Class 1 officers in State Services.
Haresh Raichiura
22/8/2014
"Why are you keeping your hand in your pocket?" - Judge asked Junior Advocate about court manners.
In court room, certain discipline and certain decorum is required.
Junior advocates often need to be so told by their peers.
In Supreme Court, under new rules, an advocate having less than one year of standing at bar, cannot address the court in a case.
In one case, junior advocate was making his submission in the case. At same time, he had kept his left hand in his pocket. He was in a little "Who Cares-Pose"
Judge immediately took objection and asked,"Why are keeping your hand in your pocket?".
Junior advocate immediately realised his mistake, removed his hand from pocket and regained a posture appropriate for an advocate while addressing judges.
"That's better." Judge said and continued to hear case.
Haresh Raichura
22/8/2014
Junior advocates often need to be so told by their peers.
In Supreme Court, under new rules, an advocate having less than one year of standing at bar, cannot address the court in a case.
In one case, junior advocate was making his submission in the case. At same time, he had kept his left hand in his pocket. He was in a little "Who Cares-Pose"
Judge immediately took objection and asked,"Why are keeping your hand in your pocket?".
Junior advocate immediately realised his mistake, removed his hand from pocket and regained a posture appropriate for an advocate while addressing judges.
"That's better." Judge said and continued to hear case.
Haresh Raichura
22/8/2014
Can a Bill be challenged in Court, even before it has become an Act? Yes. It can be. My view (In 4 Sentences)
There has been precedents where a threat by proposed by a Bill was so serious and imminent, that Court has entertained petition challenging it's constitutionality.
The Principle
If a thing is not prohibited by law, it can be done. There is no bar or prohibition on Courts to receive a petition challenging a Bill. To entertain such a petition or not, is a question for court to decide depending on facts of each case.
Haresh Raichura
22/8/2014
The Principle
If a thing is not prohibited by law, it can be done. There is no bar or prohibition on Courts to receive a petition challenging a Bill. To entertain such a petition or not, is a question for court to decide depending on facts of each case.
Haresh Raichura
22/8/2014
August 18, 2014
Sabbatical : No blog posts. No tweets. No Facebook updates for sometime.
Sabbatical : No blog posts. No tweets. No Facebook updates for sometime.
Haresh Raichura
17/8/2014
Haresh Raichura
17/8/2014
August 16, 2014
"Asking for bribe in name of a Judge"- Make it a separate offence under Prevention of Corruption Act
Many judicial orders and judgements are predictable.
Unscrupulous persons take advantage of this knowledge.
They ask from litigant bribe in name of Judge and guarantee that certain type of order will be passed.
Judge may never know about this. He may be just passing routine orders in all similar cases as per settled law.
The moment he passed the order, the money or bribe is exchange between litigant and the unscrupulous person.
Though he may be honest, he will be branded as corrupt in eyes of public and agencies.
Thanks to the thousands and thousands of such unscrupulous persons moving in courts.
------
Why a separate offence need to be specified?
If you file a complaint against such unscrupulous person, the police will have to involve judge also.. Even if he may be just passing routine orders. The complaints can be so vexatious that it will be impossible to protect those judges who are thoroughly honest.
What will happen if a separate offence in carved out in Prevention of Corruption Act?
Then, "Asking of bribe in name of a Judge" itself will become a punishable offence.
This offence can be proved by audio recording or by eye witness or by sting operation.
The police need not involve judge, unless there is some further evidence against a judge also.
This will make it possible to avoid harassment of honest judges and at the same time will facilitate fast prosecution of persons asking for bribe in name of judges.
Haresh Raichura
16/8/2014
Two methods: For removing corruption of staff in Lower Judicial Courts in District towns
I have experience of practising in District Court, High Court and Supreme Court.
In Supreme Court, CC TV cameras are fitted everywhere. Very difficult for court staff to ask or to take bribes or gifts.
In 1982, when I practised in trial court, I had seen court staff asking for bribe for giving dates, giving copies etc. I am not aware about present situation.
Legal Position- Two Routes
The staff of court, including public prosecutors, are covered under Prevention of Corruption Act,1988
A litigant can go to Anti Corruption Branch for arranging traps and raid on corrupt person. (There is probably some protocol that ACB will seek permission of District Judge before raiding within court premises. But this is for ACB office to needful. This does not bar a litigant from lodging complaint with ACB)
2) Second route is, a litigant should make a written complaint to District Judge. There should be enough factual details, dates etc in complaint.
The District Judge is expected to take action as per law.
What Judiciary Can Be Expected To Do?
If it has budget ( To be given by State Govts), the working area of judicial staff should be covered under CC TV Camera with audio recording.
The installation of cameras itself will prove deterrent.
2) Audio recorded on a mobile cell can be forwarded to a specified mobile number notified by Court.
Such arrangement can also help in reducing corruption.
I believe that Supply follows Demand. If people will insist on Corruption Free Judicial Staff, they will get it. But duty is on them to raise such demand. (Duty is on States also to give necessary budgets)
Haresh Raichura
16/8/2014
In Supreme Court, CC TV cameras are fitted everywhere. Very difficult for court staff to ask or to take bribes or gifts.
In 1982, when I practised in trial court, I had seen court staff asking for bribe for giving dates, giving copies etc. I am not aware about present situation.
Legal Position- Two Routes
The staff of court, including public prosecutors, are covered under Prevention of Corruption Act,1988
A litigant can go to Anti Corruption Branch for arranging traps and raid on corrupt person. (There is probably some protocol that ACB will seek permission of District Judge before raiding within court premises. But this is for ACB office to needful. This does not bar a litigant from lodging complaint with ACB)
2) Second route is, a litigant should make a written complaint to District Judge. There should be enough factual details, dates etc in complaint.
The District Judge is expected to take action as per law.
What Judiciary Can Be Expected To Do?
If it has budget ( To be given by State Govts), the working area of judicial staff should be covered under CC TV Camera with audio recording.
The installation of cameras itself will prove deterrent.
2) Audio recorded on a mobile cell can be forwarded to a specified mobile number notified by Court.
Such arrangement can also help in reducing corruption.
I believe that Supply follows Demand. If people will insist on Corruption Free Judicial Staff, they will get it. But duty is on them to raise such demand. (Duty is on States also to give necessary budgets)
Haresh Raichura
16/8/2014
August 15, 2014
A private prayer, shared by a Senior Advocate of Supreme Court
He is a senior advocate in Supreme Court.
We were discussing GITA. We were whispering because we were sitting in court room. Some case was going on.
Then he sent me an SMS.
The following is text of his sms.
The prayer is "Oh God ! Give me the best wisdom and put me in the best work to fulfill the real object of life".
Haresh Raichura
15/8/2014
We were discussing GITA. We were whispering because we were sitting in court room. Some case was going on.
Then he sent me an SMS.
The following is text of his sms.
The prayer is "Oh God ! Give me the best wisdom and put me in the best work to fulfill the real object of life".
Haresh Raichura
15/8/2014
August 13, 2014
SC Judge asked Senior Counsel for Railway: You are fighting against pension of a guard.. In how many cases such question arises?
Story:
For about 20 years he was guard.
He suffered heart attack.
He was treated as medically unfit.
Not fit to be continued as train guard.
He immediately resigned and asked for voluntary retirement and asked for pension as per his last pay drawn.
His resignation accepted.
Two Months Passed
Railway, reverted him to lower grade and fixed pension in Lower guard.
Guard went to Tribunal
Tribunal ordered that Guard be paid pension as per last his pay drawn by him.
Railway lost appeal in High Court.
Railway lost review in High Court.
Railway filed appeal in Supreme Court
Many complex and legal questions of laws were raised in Appeal.
Supreme Court Judge asked a simple but pointed question
"In how many cases of guards such question arises?
The Counsel has no answer.
Supreme Court dismissed case.
Point
It gives pains to see cases of pension disputes reaching to Supreme Court.
Haresh Raichura
13/8/2014
Two remedies in #Fakecases
People often have to suffer because sometimes KNOWINGLY FALSE allegations made in cases.
The people are forced to contest these cases and to prove them innocent.
1) If a civil case is filed, based on false cases, interim stays are obtained, cases are prolonged etc.. For all damages, claim can be made a) in the same court where case is pending or b) by filing separate suit under law of torts.
2) In case a criminal case is filed, based on false allegation which later complainant fails to prove:
There are two remedies:
A) Malicious Prosecution case. Here you have to prove, that complainant knowingly made false allegations.
B) A suit for damages under law of tort for damages suffered due to false case.
Best thing is to seek professional advice of your lawyer.
Internet is good source of informations.
But application of knowledge to facts of a case, requires professional experienc
Haresh Raichura
13/8/2014
The people are forced to contest these cases and to prove them innocent.
1) If a civil case is filed, based on false cases, interim stays are obtained, cases are prolonged etc.. For all damages, claim can be made a) in the same court where case is pending or b) by filing separate suit under law of torts.
2) In case a criminal case is filed, based on false allegation which later complainant fails to prove:
There are two remedies:
A) Malicious Prosecution case. Here you have to prove, that complainant knowingly made false allegations.
B) A suit for damages under law of tort for damages suffered due to false case.
Best thing is to seek professional advice of your lawyer.
Internet is good source of informations.
But application of knowledge to facts of a case, requires professional experienc
Haresh Raichura
13/8/2014
August 12, 2014
Should "Attempt to commit suicide" be continued to be treated as a crime? Must survivor had to undergo trial and punishment? Six Reasons
1) To take someone's life is a crime. Suicide takes a life. So it is crime.
2) An attempt to commit crime, is made punishable for some crimes. Indian Penal Code has specific section which says that "Attempt to Commit Suicide" is crime.
3) If any person helps someone to commit a crime, he is also guilty. So if someone facilitates suicide of someone, he commits a crime.
4) Supreme Court two Judges Bench, headed by Late Justice R.M.Sahay held that provision in IPC to punish a person who has attempted suicide, is bad and law is struck down because, an attempt to commit suicide is actually a cry for help by an individual.
The above judgement was reversed by three judge bench of Supreme Court, because several problem arose in punishing abetment of suicide.
5) Now neuroscience is more advanced. Attempt to suicide and thoughts to commit suicide are treated as brain chemical problems which can be treated.
As soon as person begin's to think "How to" commit suicide, it is a warning signal. Immediate psychiatric help needed to restore chemical balance.
6) Law needs to change with time, needs to change as early as possible. Here, Help is needed. Not trial and punishment.
Haresh Raichura
12/8/2014
2) An attempt to commit crime, is made punishable for some crimes. Indian Penal Code has specific section which says that "Attempt to Commit Suicide" is crime.
3) If any person helps someone to commit a crime, he is also guilty. So if someone facilitates suicide of someone, he commits a crime.
4) Supreme Court two Judges Bench, headed by Late Justice R.M.Sahay held that provision in IPC to punish a person who has attempted suicide, is bad and law is struck down because, an attempt to commit suicide is actually a cry for help by an individual.
The above judgement was reversed by three judge bench of Supreme Court, because several problem arose in punishing abetment of suicide.
5) Now neuroscience is more advanced. Attempt to suicide and thoughts to commit suicide are treated as brain chemical problems which can be treated.
As soon as person begin's to think "How to" commit suicide, it is a warning signal. Immediate psychiatric help needed to restore chemical balance.
6) Law needs to change with time, needs to change as early as possible. Here, Help is needed. Not trial and punishment.
Haresh Raichura
12/8/2014
August 11, 2014
There are no #fakecases. There are only fake allegations which are required to be proved fake
There are no #fakecases. There are only fake allegations.
The fake allegations are required to be proved fake in court.
Suppose I make an allegation before a judge that you have stolen my purse.
This is not a #Fakecase. This is a fake allegation.
But once someone comes with some allegations to a judge, the Judge is bound by law to register it as a case.
The case will be numbered. You will be informed about the allegations made against you by me. Then Judge will ask you to remain present on next dates of case because every statement of mine is required to be recorded in your presence.
Then Judge will ask me to state on oath and bring evidences. Judge will allow you to cross examine me and my witnesses. Then judge will ask you if you want to say anything on oath and bring any witnesses. Judge will also give me opportunity to cross examine you and your witnesses.
After these formalities are over, judge will apply his mind. If he will find it #Fakecase, the Judge will dismiss it and will allow you to file claim for damages and will also allow you to prosecute me for filing a #Fakecase.
This is how the system is laid down in law.
Haresh Raichura
11/8/2014
August 9, 2014
Career Tip by Judge to a Young Lawyer : "Do you know it takes 10 to 12 years before a lawyer gets a chance to address Supreme Court?
Career Tip by Judge to a Young Lawyer :
"Do you know it takes on average about 10 to 12 years before a junior lawyer gets a chance to address Supreme Court? You just wasted your chance.
The Scence:
The case was called out.
A young lawyer appeared and requested judges to keep back the case for some time as his senior lawyer was engaged in some another court.
Judge said, "How much time he may take in coming here?"
Junior said,"About 10 minutes."
Judge said,"Do you have got papers?"
Junior said,"Yes. I have."
Judge asked,"Do you know what is this case about? Have you read papers?"
Junior said,"No, I have not read papers. I do not know what this case is about."
Two Judges looked at each other. They were feeling sorry for the Junior advocate.
Then Senior Judge said,"Do you know that it takes 10 to 12 years before a junior advocate gets a chance to address Supreme Court? You have just wasted your chance."
Haresh Raichura
9/7/2014
"Do you know it takes on average about 10 to 12 years before a junior lawyer gets a chance to address Supreme Court? You just wasted your chance.
The Scence:
The case was called out.
A young lawyer appeared and requested judges to keep back the case for some time as his senior lawyer was engaged in some another court.
Judge said, "How much time he may take in coming here?"
Junior said,"About 10 minutes."
Judge said,"Do you have got papers?"
Junior said,"Yes. I have."
Judge asked,"Do you know what is this case about? Have you read papers?"
Junior said,"No, I have not read papers. I do not know what this case is about."
Two Judges looked at each other. They were feeling sorry for the Junior advocate.
Then Senior Judge said,"Do you know that it takes 10 to 12 years before a junior advocate gets a chance to address Supreme Court? You have just wasted your chance."
Haresh Raichura
9/7/2014
August 8, 2014
You have no right to criticise Judiciary if you have never gone in court as a witness - Story told by a former HC Judge
A retired High Court Judge from Bihar, now a senior advocate in Supreme Court told me this story today.
It happened before his eyes.
A rich man killed a young girl. Her mother was watching it. She was the prime eye witness.
Rich man tried hard to hush up the case. But the mother went door to door seeking justice. Finally the pressure of mother worked.
The man was arrested. After some months his trial began.
The mother was cited as prime eye witness by prosecution.
She said in court, that she does not know the accused. She had never seen the accused. She said that the accused has not killed her daughter.
She had taken money from the Rich Accused to turn hostile in court. She took money and let go the killer of her daughter.
There are many many shocking cases which are not reported by media and people never know.
People just blame Judge.
But what can a judge do if people do not come forward to give evidence in courts?
The Point.
If you have never gone in any court as a witness, then you have not right to criticise judges.
It happened before his eyes.
A rich man killed a young girl. Her mother was watching it. She was the prime eye witness.
Rich man tried hard to hush up the case. But the mother went door to door seeking justice. Finally the pressure of mother worked.
The man was arrested. After some months his trial began.
The mother was cited as prime eye witness by prosecution.
She said in court, that she does not know the accused. She had never seen the accused. She said that the accused has not killed her daughter.
She had taken money from the Rich Accused to turn hostile in court. She took money and let go the killer of her daughter.
There are many many shocking cases which are not reported by media and people never know.
People just blame Judge.
But what can a judge do if people do not come forward to give evidence in courts?
The Point.
If you have never gone in any court as a witness, then you have not right to criticise judges.
August 5, 2014
#Knowhow SIX POWERS of Supreme Court when serious allegations are made against any sitting judge of High Court
1) Some years ago, newspapers reported a brawl, a fisty-fight between the two sitting judges of High Court.
Without giving them opportunity of hearing, Supreme Court transferred both of them to different remote States.
One judge accepted transfer. Another judge resigned.
Point 1 : Transferring a HC judge by way of punishment is a power of Supreme Court. This power can also be used when relatives of that judge are misusing their relationship with judge and are getting undue favourable orders from other judges.
2) Few years ago, serious allegations of sexual harassments of a lady advocate were made against three sitting judges of a High Court.
Supreme Court constituted an inquiry committee of Three Chief Justices of other High Courts.
No one came forward to give evidence. There was no other documentary evidence with committee. The lady advocate gave no evidence. The inquiry was closed.
Point 2 : Supreme Court has power to appoint a committee to inquire into allegations against any sitting judge of any High Court. But such committee is powerless if no one comes to give evidence.
3) During pendency of such inquiry, the Chief Justice of that High Court can give order that No work will be given to this judge till inquiry is over.
So here, the judge can come to high court. He can sit in chamber. He can draw his salary. But no work will be given to him. He will not be given any case to judge. This will be humiliating to him. In ancient time, such punishments were known as Pillory Punishment ( Silent Condemnation in public glare.)
Point 3 : Supreme Court has power to ensure that no work is given to that judge till inquiry is over.
4) If the High Court Judge is on probation of 2 years as Additional Judge, he will not be further confirmed. His service will come to an end at this period.
Point :4 Supreme Court can punish him by not making him permanent judge.
5) If allegations are against a Chief Justice of High Court or against a Senior Judge, he loses chance to be elevated to Supreme Court.
Point 5 : Supreme Court can stop elevation of such Chief Justice to Supreme Court...and if he is a senior judge, Supreme Court can deny him promotion as Chief Justice.
6) If found guilty in inquiry, Supreme Court can recommend that Parliament may intimate proceedings for impeachment through parliament.
Point 6: Supreme Court has power to recommend to Parliament for impeachment of such judge. The judge is removed if Parliament accepts report.
Haresh Raichura
5/8/2014
Without giving them opportunity of hearing, Supreme Court transferred both of them to different remote States.
One judge accepted transfer. Another judge resigned.
Point 1 : Transferring a HC judge by way of punishment is a power of Supreme Court. This power can also be used when relatives of that judge are misusing their relationship with judge and are getting undue favourable orders from other judges.
2) Few years ago, serious allegations of sexual harassments of a lady advocate were made against three sitting judges of a High Court.
Supreme Court constituted an inquiry committee of Three Chief Justices of other High Courts.
No one came forward to give evidence. There was no other documentary evidence with committee. The lady advocate gave no evidence. The inquiry was closed.
Point 2 : Supreme Court has power to appoint a committee to inquire into allegations against any sitting judge of any High Court. But such committee is powerless if no one comes to give evidence.
3) During pendency of such inquiry, the Chief Justice of that High Court can give order that No work will be given to this judge till inquiry is over.
So here, the judge can come to high court. He can sit in chamber. He can draw his salary. But no work will be given to him. He will not be given any case to judge. This will be humiliating to him. In ancient time, such punishments were known as Pillory Punishment ( Silent Condemnation in public glare.)
Point 3 : Supreme Court has power to ensure that no work is given to that judge till inquiry is over.
4) If the High Court Judge is on probation of 2 years as Additional Judge, he will not be further confirmed. His service will come to an end at this period.
Point :4 Supreme Court can punish him by not making him permanent judge.
5) If allegations are against a Chief Justice of High Court or against a Senior Judge, he loses chance to be elevated to Supreme Court.
Point 5 : Supreme Court can stop elevation of such Chief Justice to Supreme Court...and if he is a senior judge, Supreme Court can deny him promotion as Chief Justice.
6) If found guilty in inquiry, Supreme Court can recommend that Parliament may intimate proceedings for impeachment through parliament.
Point 6: Supreme Court has power to recommend to Parliament for impeachment of such judge. The judge is removed if Parliament accepts report.
Haresh Raichura
5/8/2014
August 4, 2014
Today, Supreme Court Judges of Germany visited India's Supreme Court. They told us how judges are appointed in Germany
Today, Supreme Court Judges of Germany visited India's Supreme Court.
They wanted to see how lawyers and judges in India work in the top court.
They also told us how judges are appointed in Germany.
They were about six.
At about 11.30, they came and sat in Chief Justice Court.
They watched how arguments are made here and how Supreme Court judges are deciding cases.
Harish Salve, the prominent Senior Advocate, and pMukul Rohtagi ( Attorney General of India) and many other Senior Advocates were arguing cases. I was sitting in a corner seat and was watching their reactions. They looked simple and humble. Air of arrogance was missing in them.
At 1.30 PM, they came in Library room of Supreme Court Bar Association.
There, one of them explained how judges are appointed in Germany.
1) First, law graduates have to pass an examination. Then they start practising as lawyers.
2). Then they have to pass a second tough examination. If they pass this exam, they are called Justices.
3) Then they become eligible to be appointed as judges in lower courts.
4). But before that, they are appointed as Justice-Clerks to assist High Court and Supreme Court Judges.
5) There they work like clerks under High Court and Supreme Court Judges...and there they learn how to judge cases.
6) Then they are appointed as judges in lower court.
7) If they have merit, if they are competitive, they get promotions as High Court Judges.
8) If they work well there, they get chance to be appointed as Judges in Supreme Court.
The process is very competitive up to top to ensure that only best can reach up to Supreme Court Judges.
--------
Well, this is how judges are appointed in Supreme Court and other courts in Germany. Now you can say what do we need to change about appointments of Judges in India.
Haresh Raichura
4/8/2014
They wanted to see how lawyers and judges in India work in the top court.
They also told us how judges are appointed in Germany.
They were about six.
At about 11.30, they came and sat in Chief Justice Court.
They watched how arguments are made here and how Supreme Court judges are deciding cases.
Harish Salve, the prominent Senior Advocate, and pMukul Rohtagi ( Attorney General of India) and many other Senior Advocates were arguing cases. I was sitting in a corner seat and was watching their reactions. They looked simple and humble. Air of arrogance was missing in them.
At 1.30 PM, they came in Library room of Supreme Court Bar Association.
There, one of them explained how judges are appointed in Germany.
1) First, law graduates have to pass an examination. Then they start practising as lawyers.
2). Then they have to pass a second tough examination. If they pass this exam, they are called Justices.
3) Then they become eligible to be appointed as judges in lower courts.
4). But before that, they are appointed as Justice-Clerks to assist High Court and Supreme Court Judges.
5) There they work like clerks under High Court and Supreme Court Judges...and there they learn how to judge cases.
6) Then they are appointed as judges in lower court.
7) If they have merit, if they are competitive, they get promotions as High Court Judges.
8) If they work well there, they get chance to be appointed as Judges in Supreme Court.
The process is very competitive up to top to ensure that only best can reach up to Supreme Court Judges.
--------
Well, this is how judges are appointed in Supreme Court and other courts in Germany. Now you can say what do we need to change about appointments of Judges in India.
Haresh Raichura
4/8/2014
August 3, 2014
Election Law: Wrong rejection of nomination papers and Wrong acceptance are treated differently
Wrong Rejection:-
1) If it is proved that some one's nomination Form was wrongly rejected, the election process can be set aside only on this count.
Wrong Acceptance
2) But if someone's nomination paper is wrongly accepted, then, on this ground alone, election need not be set aside.
Court will further examine, how many votes that candidate got? ... Would it have really affected ultimate results?
In this way, two things are looked upon differently by courts.
Haresh Raichura
3/8/2014
1) If it is proved that some one's nomination Form was wrongly rejected, the election process can be set aside only on this count.
Wrong Acceptance
2) But if someone's nomination paper is wrongly accepted, then, on this ground alone, election need not be set aside.
Court will further examine, how many votes that candidate got? ... Would it have really affected ultimate results?
In this way, two things are looked upon differently by courts.
Haresh Raichura
3/8/2014
Courts have to grant bail if Charge sheet (Challan) not filed in 90 days by police Sec.167(2) Compulsory Bails (Even under Terrorist Laws)
Courts have to grant bail if Charge sheet (Challan) not filed in 90 days by police Sec.167(2) Compulsory Bails (Even under Terrorist Laws)
The law has a time frame. If an accused is arrested and sent to jail, then timer sets in under Sec.167(2) of Cr.P.C.
This is a statutory timer.
Within 90 days police has to complete investigation and has to file Charge Sheet ( or Challan) stating evidence found against accused.
If for any reason, if charge sheet is not filed, and also no application for Extention of time is filed within 90 days, the accused has to be released on bail under Sec.167(2) of Cr. P.C.
This is even where Prevention of Terrorist Activities Act is applied.
Until now, the law was vague. Police could ask for Extention for time to file charge sheet... Now the law is made more clear in this judgement.
The law has a time frame. If an accused is arrested and sent to jail, then timer sets in under Sec.167(2) of Cr.P.C.
This is a statutory timer.
Within 90 days police has to complete investigation and has to file Charge Sheet ( or Challan) stating evidence found against accused.
If for any reason, if charge sheet is not filed, and also no application for Extention of time is filed within 90 days, the accused has to be released on bail under Sec.167(2) of Cr. P.C.
This is even where Prevention of Terrorist Activities Act is applied.
Until now, the law was vague. Police could ask for Extention for time to file charge sheet... Now the law is made more clear in this judgement.
In this case prosecution filed application to extend time of 90 days, after 90 days were over. By this time right had already accured to accused.
Courts did not approve such procrastination.
To my mind, this is a revolutionary judgement. Supreme Court has frowned upon procrastination and delay of police.
In this case no chargesheet was filed in 90.....Charge sheet was filed much later. ....Even then bail was given because chargesheet was not filed within 90 days.
For more details and for more accurate details, the latest law is discussed Union of India versus Nirala Yadav Criminal Appeal 786 of 2010 Supreme Court Judgement dated 30/06/2014.
Judgement can be seen on official website of Supreme Court.
Haresh Raichura
3/8/2014
Haresh Raichura
3/8/2014
A possible method to invoke powers of God - 5000 Years ago, a Mysterious Man was born among us. He used..
A possible method to invoke powers of God -
5000 Years ago, a Mysterious Man was born among us. He used to help us even if we were not his relatives or friends.
One day we asked him who he was and why was he helping us even if we were not his relatives or friends.
He told us that He was God. He said He comes here in every century to help us.
He said, all Glorious and Strong Persons in every century are Parts of Him. He said that all these Glorious and Strong Persons will help us in every century and they will lead the whole mankind to that which is ultimate common good.
So we asked him, how would we recognise a Glorious and Strong Person?
So He said, "A person in whose presence evil persons refrain from doing evil on their own, are truly the Glorious and Strong Persons. Their glory will be such that in their presence, evil persons will refrain from doing any evil."
Then we asked Him, how should we seek help from such Glorious and Strong Persons? We told Him that some of us are mute, ignorant and illiterate.
He said it is enough if you reach to them.
Then, they will themselves find out your wishes and will grant those wishes according to your merits and their nature and strength.
Haresh Raichura
3/8/2014
(Above theme is based on some interpretation of GITA- Vibhuti Yoga.)
5000 Years ago, a Mysterious Man was born among us. He used to help us even if we were not his relatives or friends.
One day we asked him who he was and why was he helping us even if we were not his relatives or friends.
He told us that He was God. He said He comes here in every century to help us.
He said, all Glorious and Strong Persons in every century are Parts of Him. He said that all these Glorious and Strong Persons will help us in every century and they will lead the whole mankind to that which is ultimate common good.
So we asked him, how would we recognise a Glorious and Strong Person?
So He said, "A person in whose presence evil persons refrain from doing evil on their own, are truly the Glorious and Strong Persons. Their glory will be such that in their presence, evil persons will refrain from doing any evil."
Then we asked Him, how should we seek help from such Glorious and Strong Persons? We told Him that some of us are mute, ignorant and illiterate.
He said it is enough if you reach to them.
Then, they will themselves find out your wishes and will grant those wishes according to your merits and their nature and strength.
Haresh Raichura
3/8/2014
(Above theme is based on some interpretation of GITA- Vibhuti Yoga.)
August 2, 2014
Taking E-Ricksaw out of Motor Vehicle Act could be another legal blunder - 2 Legal Reasons
High Court has banned E-Ricksaw for lack of policy and statutory laws.
It appears that an attempt is being made to take out E-Ricksaw from moter vehicle Act.
In my view this could be against the law for TWO reasons.
1) Any kind of Vehicle which is run by a motor, is motor vehicle. All 'Juggad' vehicles are also motor vehicle as per Supreme Court Judgement.
2) There has been cases where even "Sugarcane Juice Making Machine" is held to be motor vehicle, run by a motor. I was surprised when I had read this judgement long ago. But law is law.
Conclusion
1) Any attempt to take out E-Rickshaw from operation of Motor Vehicle Act may be challenged in court and court may not approve such attempt.
2) E-Rickshaw is run by a motor. Here, the Public Interest, is at risk. Laws needed to specify
a) Specification of E-Rickshaw,
b) ownership registration,
c) capability of being insured against third party loss of life in accident
d) minimum educational qualification of drivers
e) Registration of drivers.
Nothing short of this may satisfy courtsं.
Haresh Raichura
2/8/2014
It appears that an attempt is being made to take out E-Ricksaw from moter vehicle Act.
In my view this could be against the law for TWO reasons.
1) Any kind of Vehicle which is run by a motor, is motor vehicle. All 'Juggad' vehicles are also motor vehicle as per Supreme Court Judgement.
2) There has been cases where even "Sugarcane Juice Making Machine" is held to be motor vehicle, run by a motor. I was surprised when I had read this judgement long ago. But law is law.
Conclusion
1) Any attempt to take out E-Rickshaw from operation of Motor Vehicle Act may be challenged in court and court may not approve such attempt.
2) E-Rickshaw is run by a motor. Here, the Public Interest, is at risk. Laws needed to specify
a) Specification of E-Rickshaw,
b) ownership registration,
c) capability of being insured against third party loss of life in accident
d) minimum educational qualification of drivers
e) Registration of drivers.
Nothing short of this may satisfy courtsं.
Haresh Raichura
2/8/2014
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