Have Indians become cowards because of lack of clarity and certainty on "Self Defense Law"?

Know what is Self Defense and How it can be proved?

General

There are sections in IPC regarding self defense. They can be summed up in two points.

1) A person has right to strike at assailant in order to protect his person, family or property. But such right should not be exercised, more than necessary, and not to be used in a cruel way.

2) A woman is given additional right of self defense. In order to protect herself against rapist, she can kill if it is necessary and unavoidable.

Uncertainty

What use of force was necessary in the facts of case is always a matter of fact. The Judges can take different views as per different facts of each case.

How to prove self defense in trial court is another problem area.

Supposed a thief breaks at night in your house and you had to kill him in order to save your family and property.

But how will you prove this self defense in Courts ?

In order to prove Self Defense you have to take specific plea in trial court saying that you killed in self defense.

It means, you have to first admit crime. After you have admitted, suppose court refuses to believe your defense theory, than you can be convicted on basis of your admission that you killed. !

Thus to take a plea of self defense is like gambling. Your lawyer may advise not to do such admission and such plea.

And if you do not make admission and do not take specific plea of self defense, the court cannot give you benefit of self defense laws.

Way Forward

Supreme Court should take pragmatic view of laws and should allow accused to take alternative plea of self defense and admissions made for purpose of taking plea of self defense, should not be used to convict accused, if his plea of self defense fails.

Need of the hour

The crime is on increase. Not enough police force. People should be allowed to use self defense laws more easily. Law needs to be more clearer on this issue.

Haresh Raichura
29/5/2016

1982 Supreme Court judgement has still not seen light of day in India

In 1982, in Avtar Singh case Supreme Court  of India held that it is inhuman to force accused to remain standing in court during trial.

Today, after 34 years, the judgment is yet to see light of day in trial court.

It is for High Courts to implement the spirit of judgment and to give directions to trial court.

But till today, as I see it, accused do have to stand in courts during trial.

(Blog post idea credit to Shri Adv.Anant Saxena)

Haresh Raichura
24/4/16

Some tips on what legal steps a person can consider to prevent abuse on social media ?

1) Please note that in title, I have used word "Prevent" and not used word "Prosecute".

The first rule of battles is not to start fight without knowing strength of enemy.

Behind anonymous or fake handles, you do not know who is there. It can be a mouse or a tiger.

If a criminal mentality person is using fake handle to abuse, then you must know that it is not your job to prosecute criminals.

There is no law in India to protect complainants and witnesses.

Avoid taking blind risks.

2) Use simple preventive measures like blocking and reporting to social media's grievance site.

They will probably check and suspend the fake account.

3) If abuse is such that you may have to initiate legal action, then first make "emails to self" of the offending posts, tweets or updates.

This way you will have digital evidence with you. Or take screen shots. Whatever you think fit. But collect the evidence.

4) Cyber cell, etc agencies are still new in India. They may or may not have enough manpower to deal with your complaint effectively.

But still if you think you must initiate police actions, you can search their addresses from website and can register complaint.

5) And what if they do not take any action?

Then you need advice of a lawyer. He may advice you about filing a criminal complaint in court of a Magistrate or can advice you to file civil suit for preventing abuse and / or to seek damages and/ or to seek injunction or stay orders against website also.

6) Remember first rule of battles. Do not start battles without first assessing your own strength.

Haresh Raichura (c)
22/5/2016

Do you know that even in Criminal Cases you do not have to go to court on every date if you apply exemption?

Do you know that even in Criminal Cases you do not have to go to court on every date if you apply exemption?

Generally, people are aware that in civil courts you do not have to go to court on every date but in criminal cases, if you do not go to court on fix date, the court issues non bailable warrant against you.

To some extent above you is right if you do not know anything about Sec.205 of Code of Criminal Procedure.

The idea behind this provision is like this.

All evidences in criminal will be recorded in presence of accused only.

But accused can always make an application to court that there is no dispute about his identification, and he will not mind if evidence is recorded in presence of his advocate, and he will come as and when necessary.

Then the court can grant him  exemption from personal appearance under Sec.205 during the case.

Then the accused need not remain present on every date, but in that case his advocate must be present in court when case is called out.

Then, it will be burden on advocate to sit and wait for case to be called out on every date.

In place of his client, his advocate will have to suffer agony of "sitting and waiting" in court rooms.

SUGGESTION

If you have a criminal case where you are made accused, then in addition to your main senior advocate, also engage an additional  junior advocate to remain present in court on every date of case.

Then if court grants your Sec 205 Application for exemption from person appearance, you need not go to court on every date.

That junior advocate will record presence on your behalf in court.

Then, you may have to go only on date when court specifically asks you to remain present.

Haresh Raichura
17/05/2016

#Knowhow : When Supreme Court or High Court can treat a letter as a Public Interest Litigation

Supreme Court Judges and High Court Judges often receive letters from citizens requesting to take up certain issues as PIL or Public Interest Litigation.

They usually have set down some criterias on when to treat such letters as a PIL case.

1) First, in 1983, the then Chief Justice of India, P. N. Bhagvati laid down such criteria.

2) Then over years, the guidelines have changed and they keep changing with needs of time.

Generally, there are TWO broad principles.

1) The Judge who receives letter should not treat it as PIL Case. He should refer letter to PIL cell or to Chief Justice  to take decision on it.

2) The letter should disclose Cause of People who are unable to approach court on their own through regular petitions.

For example, a person languishing as a Bonded Labour  The children kept as bonded labour, a person kept in jail though his term has expired etc.

By nature of letter, it should look that the persons to whom justice is to be given, are not likely to be able to reach on their own to the court.

In 1983, a widow had approached me.

Her family pension was not being given. She had no money to pay me fee for filing case. I therefore, wrote a letter to a High Court judge, and asked her to sign it and drop it in a  post box.

At that time, that was the maximum thing I could do free without charging fee.

Her letter was treated as PIL by High Court judge.

She got her family pension.

As I remember, later, she paid me Rs.300/- for drafting that letter for her.

Haresh Raichura
16/05/2016

Regulator needed to monitor conduct of (alleged) criminals released on bail by Courts

Police and Chief Public Prosecutor are duty bound to report to court if some accused is violating conditions of bail.

But that is not being done.

In India, criminal law depends too much on people to come forward to complain at take risks to their life in doing so.

If criminal is released on bail on some conditions, and if he violates condition, unless someone comes and files application for cancellation of bail, the court is helpless.

The complainants are mostly victims who cannot come to complain without increasing risk on them.

An independent authority is needed to move such applications.

Haresh Raichura

"Yesterday police beat up my son"- a father called to seek legal advice: Remedy

Yesterday evening, a father, living in Rajasthan, Called up and said that his son was taken away and was beaten up by police.

Criminal  Procedure Code provides for two remedies in such situations: 

1) a person can complaint to the higher police officer against conduct of any Investing Officer. Such higher officer is bound by law to make an inquiry.

2) a person can apply to the Chief Judicial Magistrate to inquire and to get done in medical examination of the detained person.

The Magistrate can order Police Investigating Officer to produce before him the detained person along with medical reports.

Such  steps should be
taken under guidance of a lawyer.

- Haresh Raichura
15/05/2016

Girl 17 years. Boy 21 years. Consensual Sex is Statutory Rape under Indian Law

Last week I felt sad. I had to argue two cases of statutory rape in Supreme Court.

In both cases, girls were slightly less than 18 years. The boys were slightly above 18 years.

In each of these cases, the girl had eloped from the home with boy. They traveled to several cities. Stayed in hotels as husband and wife. At some places, they lived in a rented room.

In each case, their honeymoon lasted less than 15 days. Then boys were arrested.

In both cases father had lodged complaints against boy on two counts. 1) For abducting minor girl from custody of father. 2) And of Rape under sec 376.

The boys were arrested.

Trial was held.

But there was nothing much to prove.

Once girl is proved to be below 18 years, the offense of Statutory Rape is proved.

Consent of girl below age 18 has no value. The Statutiryvl Rape stood proved.

The lives of boys ruined. They were sent to jail.

Trial court and High Court both convicted boys.

Now they have approached Supreme Court.

What can I argue? These are cases of statutory presumed rape. Maximum I can ask is for reducing sentence of jail

In other country, a zone of three years is created. This is scientific also.

Maturity, minority or majority mindset of a boy or girl are variable by 3 to 5 years as per psychologists.

In India, no one has yet argued this proposition. It is unpredictable, when Supreme Court will consider this Zone of three years.

I hope for early progress in law of statutory rapes in India.

Haresh Raichura
12/05/2016

What legal steps possible if a Big Pvt Company is cheating large number of people with small amounts like Rs.100/-?

If you find that a large big private company has cheated you with small amount like Rs.100/-, you will probably forget it and let it go. You will not go to lawyer or to file suit to recover Rs.100/- .

2) On the other hand the big company will have made millions of rupees by cheating millions of people by small amounts.

3) Since this is a Pvt company, there is nothing which government can do. It is a matter between you and the company.

4) The legal step which can be taken is to file a class action  Representative Suit by any 4 persons who are cheated similarly.

5) In the suit, you can ask refund of your Rs.100/- with interest along with legal cost of litigation, but what is more, you can ask Court to direct The Big Company to refund Rs.100/- with interest to EVERYONE whom the company may have cheated similarly. This is great.

6) When such suit is filed in a Civil Court by any Four Persons, the Court directs that an advertisement about filing of suit be published in two national newspapers and two local newspapers so that other persons similarly cheated can also join in the suit.

7) This is called Class Action in other countries, here in our Civil Procedure Code, it is called Representative Suit.

Haresh Raichura
7/5/16

What legal steps possible if an Educational Institute is not complying with policy promised in admission brochures

Instances are seen where an Educational Institute gives many promises in brochures and websites at time of admission, but after admission is taken, such policies are not followed.

What legal steps can be taken ?

Actual legal advice may differ from case to case, but here are some general suggestions :

1) Think before starting the battle. Mostly students are victims. If they fight, they may be victimized at time of examination. So one should think and consider one's position before starting fight.

2) It is much better if some public spirited persons or NGOs  start the battle.

3) There are two roads. One via High Court. Second road is via local Civil Court.

4)In High Court, petition for writ of Mandamus can be filed against the Institute under Art.226.

But before filing petition a representation should be made to the Institute and its controlling authority  demanding compliance with policy

5) Second route is to file a Representative Civil Suit or a personal civil suit in a civil court. In suit, if Govt authority is to be made defendant, then it is advisable and mandatory to give 60 days notice under Sec.80 of CPC.  Thereafter a suit can be filed.

6) These are general suggestions for academic interest. This is not a legal advice.

Haresh Raichura
6/5/2016