Two possible reasons why Supreme Court could not postpone execution of death warrant for even 14 days :- 1)

1) Lawyers who woke up Supreme Court Judges at midnight may have good hope that court will extend time to execute death warrants by 14 days.

Because general law is : When Court fixes that something to be done in certain time, then court can extended if there are sufficient reasons to do so.

2) As per media reports :

A) One reason was that "Second Clemency petition has been rejected by President just now. Thereafter 14 days time should be given from now on.

This argument presuppose that any number of clemency petitions can be filed and After last clemency petition is rejected, 14 days should be given.

This argument did not stand.

Because there is no law that any number of clemency petitions can be filed after main clemency is rejected.

Secondly, If you accept this argument, and give 14 days, than another clemency petition can be filed after 10 days... And after its rejection another 14 days.....etc...so on..

The argument failed.

2) Second argument was, 14 days time should be given so that relatives can meet.

This argument failed because, the Supreme Court was told that relatives were already there and the warrant was issued 90 days ago... Ample time was already given.

So this argument also failed.

The Judges must have felt that same arguments are being repeated again and again and no plausible ground is made out to extend warrant by 14 days which could if done, indirectly  meant almost setting aside warrant, a prayer which was rejected in afternoon.  It was not possible for judges since no good reason was pointed out to them.

(This views are personal and based on media reports. I may be wrong)

Haresh Raichura
31/7/2015

Present Law Regarding Death Penalty in India ( 5 points)

1) Heinous crimes like murder, are punishable with punishment in jail for life or by death.

2) The section does not say when to give life imprisionment and when to give death. Therefore Supreme Court has laid down law and defined category of "Rarest of Rare" Crime, and has said that death sentence be given in Rarest of Rare crime. In all other cases of murders, life imprisonment. 

3) There is no fix definition of what is Rarest of Rare Crime. But in brief, such crimes are those which shock the conscience of society as a whole.

4) If trial court grants death sentence, then case is deeply examined by High Court. And then High Court judgement is examined by Supreme Court to eliminate chances of human error.

5) The President and The Governors have power to commute death penalty into life imprisonment. But they are also bound to follow some norms.

Haresh Raichura
29/7/2015

Know that In Supreme Court, whenever one of the two judges differs, the case is normally admitted and referred to other Bench

To those who are not familiar with Supreme Court, this may be a new thing.

Here, judges normally sit in benches of "Two" Judges. If one of the two judge disagrees about order to be passed, then normally matter is referred to Chief Justice to place matter before another 2 Judges  or 3 Judge Bench.

In meanwhile, if some stay is required, it is normally granted.

Haresh Raichura
28/7/2015

When quashing of FIR is possible by High Courts Some pointers

If a FIR is registered, then only High Court or Supreme Court can quash it.

Usually a petition under Sec.482 of Cr.P.C is filed in High Court.

Such petition usually say that:

1)  FIR does not disclose crime,

2) It is abuse of criminal law.

3) Or that, it is barred by some law.

Such petition is accompanied by a copy of FIR and relevant documents on basis of which petitioner wishes to argue his case.

If High Court refuses to quash FIR, than the aggrieved person can approach Supreme Court under Art.136 of Constitution of India.

Haresh Raichura(c)
26/7/2015

If trapped in any false criminal case or false FIR, first most important thing is to keep calm and think rationally

All people are not emotionally equal. Some people think that the world is a kind and just place to live.

When they feel that some false FIR or False Case is filed against them, their illusions about world crashes. Their emotions get fired and they begin to see Worst Case Scenario all the time, day and night for weeks and months.

In addition, lifeless and machine like atmosphere of courts put extra fears and angers on them.

These all together, impairs their ability to think rationally and calmly. They take wrong decisions and they themselves injure their case.

To handle such clients is very difficult even for their lawyers.

So the first thing for such people is to keep calm. They should try to think that whatever may happen, "Sky is not going to fall."

Then they should think stage by stage. The court process is long consisting of several stages. Focus should be on next stage only.

Haresh Raichura(c)
26/7/2015

Know that a wife can file fresh #498A case also even after recording compromise in Court. No Res Judicata

The principle called Res Judicata means that parties are not allowed to agitate same issue again once it has been decided finally by court.

In 498A, situation is little different. Each event of cruelty gives rise to a fresh case of 498A.

There are cases were wife had filed several cases of 498A. The court directed that all cases be tried together.

Suppose in some case, compromise is recorded in court, allegation of 498A are dropped wife. But even then, if wife alleges new incidents of cruelty, fresh case of 498A lies. But this new case cannot reopen old incidents. Only new events of cruelty will be tried in this new case.

Then what is the value of compromise? What is the value of the fact that previously also wife had filed and dropped such cases?

These facts are relevant for considering conduct of wife. If the wife is in habit of filing and dropping such cases, it dents her creditability and the judge may refuse to believe her.

Haresh Raichura (c)
25/7/15

Exception 2 to Sec 499 IPC Law of Defamation of public men.. In shortest form.

Exception 2 to Sec 499 IPC

Law of Defamation of public men.. In shortest form.

1) Every citizen has a right to comment on those acts of public men which concerns him as citizen of the country...A writer in a public paper has the same right, and it is his privilage, if indeed it is not his duty, to comment on acts of public men which concern public.

Vide : E.I. Howard v M. Mull, 1866 (1) BHC (Appx) lxxxv,xci

2) Supreme Court : Those who fill a public position must not be too thin skinned in reference to comments made upon them. Whoever fills a public position renders himself open to attack. He must accept an attack as a necessary, though unpleasant, appendage to his office.

Vide : Kartar Singh AIR 1956 SC 541

Haresh Raichura
24/7/2015

Lawyer applied for bail for his client with a forged Medical Certificate.. Judge issued notice to Bar Council & Medical council

Yesterday, I overheard about this incident.

A lawyer in District Court moved temporary bail application for his client. Application was attached with a apparently false medical certificate.

At top, date was different. Below his signature, the doctor had put another date.

It was obvious that certificate was prepared and signature of doctor was obtained on letter date.

The Judge was not amused.

He issued notice to Bar Council and also to medical council and also to Doctor.

Moral of story : A lawyer should carefully check medical certificate. Given by client.

Haresh Raichura
21/7/15

The five judge of Supreme Court has laid down how media trial can be restrained by all lower courts in India

The crucial part of the judgement is as  under :

“We are not framing guidelines but we have laid down constitutional principle and appropriate writ courts will decide when the postponement order has to be passed on case to case basis".

The full judgement can be searched on Google for those who want to study this issue more deeply.

The above key is the direction to legal steps which can be taken to restrain media.

Haresh Raichura
12/7/2015

Know what is difference between CBI and Non-CBI Investigations

1) In Pre Independence Day, CBI was formed by a resolution to investigate corruption in central govt offices at Delhi.

2) Then, CBI was put under Delhi Police Act.

3) It is a force of Central Govt. It takes cases suggested by Central Govt. Any State Govt can ask Central Govt for help of CBI in any State crime. HCs and SC can also order them to probe any case.

4) No difference between CBI and other Police, once FIR is,registered. Both are then controlled by Criminal Procedure Code..

5) CBI has published a Manual guiding how its inspectors will investigate crimes. It can be seen on their website. No such manuals are seen in State Police Dept.

6) CBI officers are controlled administratively by Central Govt. Other State police is controlled by their state govts.

7) There is not much difference between the two.

It is only a matter of public perception.

Mainly, when a case is given to CBI, state functionaries cannot control CBI officers. This is the main reason for its existence.

Haresh Raichura (c)
9/7/15

If required, the Courts can allow service of summons through email, SMS, Facebook, Twitter or Social Media? #Knowhow

The procedural laws are changing very fast.

Before any Case can be started, the Court has to serve summons of case on accused or respondent.

These summons are often returned as accused may have left, gone abroad, or may have gone underground. Or he may be just playing hard and seek with Court.

Courts have evolved various procedures to deal with  such cases..

All procedures are not discussed here, but I have discussed only few points.

Points

1) Service of summons by Email is now well known.

2) Service by Facebook. Recently, in one foreign case, a wife had filed divorce case. The husband was not  receiving summons. The Court allowed Wife to serve summons on husband through Facebook Post.

3) If Facebook is allowed, Twitter, SMS, LinkedIn other media can also be allowed if court is satisfied about identity of receipent of such message.

4) The initiative has to be taken by creative lawyers. They have to apply to court with necessary details of social media accounts of respondents on whom summons are to be served.

5) Remember. All procedures are only handmaids of Justice. The judges can evolve new procedures with changes in time.

(C) Haresh Raichura
07/07/2015

Two Lama discuss how Collegium system in a 1000 year old Monastery was destroyed:-

In mountains of Himalayas

Younger Lama asked Elder Lama,
"Please tell me about Collegium System which existed in a 1000 year old monastery and please tell me how this monastery came to be destroyed"

Elder Lama replied thus.

"1000 years ago in those remote mountains, there used to be a monastery where 30 monks used to live.

The monastery attained fame because of its two famous rules.

As per first rule, every Monk had to leave this Monastery on attaining certain age. No monk was allowed to live in Monastery after he attained certain fixed age.

Another famous rule was about entry of new Monks in the Monastery.

Whenever a vacancy arose, the senior most monks used to decide which new monk should be admitted in Monastery."

Younger Lama asked further,

"Tell me about the points on which these 30 monks always agreed and tell me about points on which they always disagreed".

Elder Lama replied,

"All the 30 monks always agreed on two points.

Rule One, all of them agreed that in Monastery, they will discuss only three topics, namely, Law, Justice and welfare of humanity.

They strictly restricted their meditations around these three points.

And they used to write verses only around these three topics.

Rule Two. They always agreed with an ancient law which said "As is below, so is above. As is above, so is below...

They believed that if higher level people are corrupt, lower level people are corrupt. If lower level people are corrupt, the higher level people are corrupt....

Higher level people and lower level people are of same quality. You cannot say that Higher are better than lower and you cannot say that lower are better than higher."

Younger Lama asked for more information.

"Please also tell me about points on which these 30 monks always disagreed", asked Younger Lama

Elder Lama replied,
"Outside monastery, there used to be long queues of monks who wanted to enter in this monastery as soon as any vacancy arose.

The collegium of Senior Monks used to decide who should be admitted.

And this was always hotly contested issue among 30 monks.

They always used to have different views on suitability of a new monk."

"And how this monastery was destroyed 1000 years ago?" asked Younger Lama

"The disputes over entry of new Monks reached to the King. Some one whispered in his ears that all the inner walls of monastery are made of Gold and he was told that bribes and favours are exchanged whenever a new monk is admitted into the monastery.

The King invaded the monastery but could not find any walls made of Gold as he was told.

He became a very very angry and he killed all the 30 monks and burnt up their verses about law, justice and welfare of humanity. He destroyed the monastery forever."

Elder Lama thus described the tragic end of this 1000 years old monastery.

Haresh Raichura
3/7/2015

Copyright : Haresh Raichura 2015. All Rights reserved.

Know when you can challenge ANY Govt order in High Court - Mini 8 point Checklist

Here is a small mini checklist to let you know when you can challenge any Govt order (or order of any Govt controlled body) in any High Court by filing a writ petition under Art. 226

MINI CHECK LIST OF POINTS

1) The order (or inaction) to be challenged in High Court, must be by a govt body or by a govt controlled body.

Even a private Trust or Private company can have to answer court if they are in public service areas. (BCCI is a private body...And yet some of its orders can be challenged in High Court)

2) The order must have been passed contrary to stated policy or rules.

3) Or the order is not based on any rule or policy

4) Order is such that same category of people are being treated differently,

5) Or order is such that it treats unequal category of people as if they are equal,

6) Or the order is passed in such a way that no prudent and reasonable person can pass such order,

7) Or, order is passed on basis of some material which is not relevant at all.

8) Or, while passing order, some material and relevant documents were not looked into.

Together,  or separately, amounts to violation of fundamental right of equality under Art.14

Haresh Raichura
1/7/2015