Tape Recorded conversation. Even if recorded secretly, can be used as evidence in court

Illegally or secretly recorded phone conversations can also be produced in court as evidence.

This gives power to people and journalists to trap corrupt public servants.

This can also be useful to those fighting false cases of 498A.

Delhi High Court gave detailed judgement in W.P.(Crl) 1582/2007 on 21/11/2012.

Among other, it relied on Case of R.M.Malkani versus Maharashtra 1973(1)SCC 471 to say that such contemporary tape recorded evidence is relevant and can be admissible in evidence.

Haresh Raichura
28/12/12

Gang Rape punishable with life Imprisonment.

Provision of gang rape is under Sec.376(2)(g).

Minimum punishment 10 years in jail. Maximum Life Imprisonment.

People are demanding to add death penalty in this section.

Haresh Raichura
24/12/12

Rape on separated wife, punishable with only two years jail

Sec.376A is about wife living separately from husband. If husband commits rape on her without her consent, punishment is only two years jail and fine.

This law is added in 1988.
Needs change.

Haresh Raichura
24/12/12

Selling a girl below 18 for prostitution is offense. But what about selling a girl above 18?

Selling a girl below age 18 for prostitution is offense under Sec.372 of IPC and punishable with 10 years jail.

But what about selling a girl above age 18?

The colonial laws need changes.

Haresh Raichura
24/12/12

Buying a girl below 18, for prostitution is offense under 373. But what about girls above 18?

Our colonial laws which needs changes.

Buying a girl below age 18, for prostitution business is offense punishable with 10 years jail under Sec.373 of IPC.

But what about buying a girl above 18 age for prostitution business?

The law needs changes.

Haresh

Rape on wife against her will is permitted under Exception to Sec. 375

Our laws need lots of changes.

Rape on wife against her will is permitted under Exception to Sec. 375 of I.P.C., provided that wife is not below age of 15. Exception says that this is excluded from definition of rape.

Such colonial laws must be changed by law makers.

Haresh Raichura
24/12/12

Sec.144 orders, what if violated? When it can be challenged ?

An order to prohibit public generally from visiting an area is passed under Sec.144(3) of Code of Criminal Procedure by a duly empowered Magistrate.

If such order is violated, police can arrest under Sec.188 of Indian Penal Code. Punishment upto 6 month jail.

In Case of Madhu Limaye, Supreme Court upheld validity of Sec 144 in 1970. Thereafter no one has challenged this section and it's misuse.

Such order can be challenged if it violates Constitutional rights or if made without following requirement of Sec.144 or if arrest goes beyond scope of order.

To make a person liable for violation of Sec.144, it must be proved that he had knowledge of such order and even then he violated order.

Interference with private individuals rights by 144 orders must be minimum. AIR 1988 SC 93

Haresh Raichura
24/12/12

SC directions to all courts to run session cases on day to day basis..

On 6th December, In case of Akil versus State of NCT of Delhi, SC has issued directions to all courts that session trials should be held on day to day basis. In para 26 it also notes Sec 309 proviso which says that rape cases be finished in two months after start of examination of witnesses.

Directions are issued to all courts. SC also asked trial courts to run sessions cases on day to day basis.

Ref: 2012(11)Scale page 709 Judgement date 6/12/12

Haresh Raichura
22/12/12

Ground for Divorce? Wife giving repeated threats of suicide amounts to cruelty to Husband

Wife suffered from mental illness and was giving repeated threats to husband to commit suicide. This amounts to cruelty. Supreme Court granted divorce to husband.

(Case reference : 2011(11)Scale page 278 SC order date 30-9-2011)

The more important question is how can husband prove that wife was giving repeated threat to commit suicide?

One or two certificate from a psychiatrist will not inspire confidence of Court. There must be evidence of prolonged treatment of wife which was going on since years for mental illness.

Each criminal case is decided by its own case. The judge has to feel satisfied about quality of evidence produced by husband.

Haresh Raichura
19/12/12

SC: Bank has to pay as per pass book entries- Bank liable for misdeeds of it's officials

Allegation was that some officials in Bank, manipulated ledger entries in customer account and withdrew amounts.

Bank was held liable to pay as per entries in passbook of customer by consumer courts. Order was upheld by SC.

Case reference : 2011(2)SCALE 417

Haresh Raichura
17/12/12

In corruption case, even if dept gives clean chit, court can still convict accused

In corruption case, even if dept gives clean chit, court can still convict accused.

Dept clean chit not binding on court.
2012(8)scale 424

Haresh Raichura
15/12/12

Criminal cases between family, if compromised, can be quashed by HC

SC: Even if non compoundable criminal cases between family members can be quashed by HC in Sec. 482

Gian Singh v State of Punjab order dated 24/9/12 in SLP Crl 8989 of 2010 reported in 2012 (9) Scale 257

If police is not investigating properly and not recording statement of complainant- Remedy

If police is not investigating properly and not recording statement of complainant- Remedy is to apply to Chief Judicial Magistrate and also to apply to record statement of complainant.

SC case reference : Judgement dated 27/9/2012 in Cri Appeal 1496 of 2012 titled Ajay Kumar Versus State of Rajsthan also reported in 2012(9) Scale page 542 para 24

Haresh Raichura
15/12/2012

Rehabilitation of Minor and other Sex Workers - Matter under Consideration of Supreme Court

Those who are concerned with rapes, should also think something about life of sex workers in cities and towns. They are looked upon with contempt by society. They are subject exploitation by police and by keepers of brothels.

Do they deserve better life conditions? How do they protect against deadly diseases like AIDs?

Do you have sympathy for them. 

A PIL is pending in Supreme Court. 

Case Reference
Budhadev versus State of West Bengal

2012(4) Scale page 567l

SC: Before searching any person, police has to inform that he has right to be searched in presence of Magistrate or a Gazetted officer in Narcotic Cases

In Narcotic Cases, Before searching any person, police has to inform that he has right to be searched in presence of Magistrate or a Gazetted officer

Myla Venkateshwara vs State of Andhra Pradesh 2012 (4) Scale 199

Haresh Raichura
14/12/12

Delay in appeals to court should be normally condoned unless malafide delay is proved by respondent

Delay in appeals to court should be normally condoned unless malafide delay is proved by respondent

Case: S. Ganeshraju v. Narsamma 2012 (4) Scale 152

25% poor children from neighborhood must be admitted in all private unaided schools also SC

25% poor children from neighborhood must be admitted in all private unaided schools also

SC Case reference: Society for unaided private schools versus State of Rajsthan. Reported in 2012 (4) Scale page 272

Haresh Raichura
14/12/12

Private Armies, Private Detectives/Private Securities - SC takes suo motto actions for their regulations

The cases are coming up where rich people are keeping private armies under guise of "Security Agencies"...

The misuse is obvious. 

Supreme Court has on it's own taken note of how private detective/Securities agencies are operating and how they are being licensed. It has issued notice to seek response from Government to know what rules and regulations are being followed for such "Security Agencies"

This case will lay down guidelines/rules for such agencies.


It has issued notice to Home Ministry on 21-11-12.

Red: 2012 (11) Scale 211

Sec. 66A Validity challenged in Supreme Court

Supreme Court is already examining legality of Sec 66A of IT Act.

Matter is pending. But no stay is granted on any part of 66A.

I cannot say anything about merits of above case nor I wish to prejudge above case nor do I wish to influence anyone.

But in my view Stay application in above matter need to be debated and some orders need to be passed.

Because, large number of people are using Face Book and Twitter.

There is no guideline except the guideline by Govt that no case will be registered without permission of a high officer.

This is no safeguard. People must be told what they can put on Facebook and Twitter and what they cannot.

Without these guidelines, the Act can be misused to target selected people with oblique motives.

This creates unnecessary concern about freedom of expression.

Let this law be cleared by SC as early as possible as it affects millions of Indians.

Haresh Raichura
5/2/2013

Even if you accidentally retweet an offensive tweet, you can be liable under 66A

Sec 66A of IT Act is a draconian Act. It reads as under:

66A.Punishment for sending offensive messages through communication service, etc.: Any person who sends, by means of a computer resource or a communication device,-
(a) any information that is grossly offensive or has menacing character; or
........

Please halt here and mark that clause (a) does not use word "Knowingly". So even if you accidentally retweet an offensive tweet, you can be liable under Sec. 66A(a)

This is draconian law.

I am hopeful that when this section is challenged in Supreme Court it will be struck down or will be read down.

Haresh Raichura
29/11/12

In rape cases, victims can file civil suit for damages also in addition to criminal cases

Law is already there. But few lawyers advise their clients for suit for damages also in addition to criminal cases.

This law is called Law of Torts. Last Supreme Court Judgement is given by Justice Katju in 2008.

As per law, anyone who commits any wrong to you is liable for damages in civil court in a suit for damages.

Rapist and other criminals are also liable in law of tort.

This law is well used in Western Countries. But unfortunately in India, few cases are seen under this law.

Elsewhere in this blog I have written in detail on this Justice Katju Judgement of 2008 where new boundaries are drawn on Law of Tort.

I wish more people come forward to file suits for damages for wrongs they suffer.

Suit takes time. But people have to learn to fight for justice.

Time Limit for filing civil suit is usually One Year from date of wrong complained of.

Haresh Raichura
8/11/2012

SC: PIL Amarnath Yatra

Matter under consideration of Supreme Court. Matters of medical facilities and other matters in case number:

2012(10)SCALE 567

Haresh Raichura
6/11/2012

Case for offending defaming tweet. Delete earliest. Reasons.

Twitter is a platform which promotes free expressions of Individual. In theory, no one should be prosecuting for making a tweet.

But what if
1) A person feels that his reputation is damaged by tweet.or,
2) His feeling are hurt deeply.

Then he will take recourse to civil or criminal proceedings.

One Defense

If you have deleted offensive tweet at earliest opportunity, then it is relevant fact to show that you had no ill intention or design to harm anyone.

If you have retweeted an offensive tweet and you had undo it as soon as you realized that retweet was wrong, then this is also a relevant fact to show that you had no ill will or design to harm anyone.

Advice is: Do not use names in tweet, do not attack anyone personally. Avoid trouble.

But if you get into trouble, there may be many Defenses that can be taken into court.

But you may have to undergo trauma of trial and results are unpredictable.

In Case of Defamation there are exceptions which permit statements made for public good.

The IT Act is technical. Some technical defenses may be available. These are new laws and yet not fully settled areas of laws. Risky waters.

Haresh Raichura
5/11/2012

Ten Most used Laws by Lawyers

1. Code of Civil Procedure

2. Code of Criminal Procedure

3. Evidence Act

4. Indian Penal Code (Crimes)

5. Transfer of Property Act and Specific Relief Act (Land, Property deals)

7. Rent Laws (each State has its own rent laws)

8. Land Acquisition Act (Compulsory Acquisition of Lands)

9. Art.14,16,19,21,31, 32,136,226, 227 Constitution of India (Writs in High Courts)

10. Service Laws


Haresh Raichura

3/11/2012

Success is combination of many factors. Each individual has unique strengths and weaknesses. There cannot be one formula to fit all.

Success is combination of many factors.

Each individual has unique strengths and weaknesses. There cannot be one formula to fit all.

Each one has a unique combination lock.

But there can be some general propositions.

Books and Quotes on "Success" can be in millions.

Guide by inner voice

But you have to be guided by inner self.

There are "Comfort Zones" and "Discomfort Zones".

Somethings may be acceptable to your mind but not acceptable to your body and circumstances.

Conflict

And so on conflict goes on between desire to be successful and ability to become successful.

There is no end to this conflict till desire to be successful lives in your mind.

Questions

Watch these desires? Why you have to become successful? Why you are not satisfied with what you have and do?

When I asked these questions to myself, I came across a blank dark cave. No answers were in sights.

Instead I saw thousands of desires and fears curled up in heaps like snakes in dark corners of my mind.

Any of these desire or fear can sprang any time on me. And can bite me!

When I bundled all these desires, it become my "Desire for Success".

These snakes of desires and fears force me to search for Success in this world.

I see no way to fulfill all these desires. My desires and fears torture me.

Haresh Raichura
3/11/2012

SC: Blind Law- Workman will not get interest from date of accident, will get from date of judgement only...

This is about workmen who suffers accident when on work. Employer is liable to pay Compensation with 6% interest.

SC says this interest is NOT to be payed from Date of Accident, but only from the Date of Judgement.

It means, if employer can delay the case of workman, he will have to pay LESS interest!

Vide: UPSRTC v/s. SATNAM SINGH 2011 (2) SCALE 432 on page 433 in para 7

Haresh Raichura
2/11/2012

A Criminal lawyer need to master only THREE main laws

A Civil Side lawyer need to know about many laws. But a lawyer practicing only on Criminal Side need to master only Three Main Laws:

1) Code of Criminal Procedure,1973
2) The Indian Evidence Act
3) The Indian Penal Code.

These THREE are called MAJOR CRIMINAL ACTS. Mastery of these three main Acts leads to mastery in almost all criminal matters.

All other laws providing for criminal punishments are called Minor Criminal Acts. For example, The Prevention of Corruption Act,1988, The Prevention of Food Adulteration Act, etc are MINOR CRIMINAL ACTS.

Haresh Raichura
1/11/2012

Defamation - Exception No. 2 - Public Conduct of public servants can be criticized

Is it defamation to criticize conduct of public servant ?

Exception No. 2 to Sec. 499 IPC says:

"Public conduct of public servants- It is not defamation to express in good faith ANY OPINION whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further."

Even if this is exception, it may have to be proved in trial and in trial, opponent will get opportunity to cross examine complainant.

Best advice is: Do not defame anyone.

Haresh Raichura
27/10/2012

Why some people say that 80% Judges are corrupt? Some myths are busted here

First about My Bias: 


I am firm believer that Judiciary is last strong pillar of our nation. Corruption in it is minimum.

I am making an attempt to demolish propaganda that '80% Judges are Corrupt'.

Myth 1

Perceptions are such that Judiciary is highly corrupt. 


An NGO made such survey on basis of perceptions of people it surveyed. Someone in Jammu filed criminal complaint of defamation against this NGO. It was Supreme Court which stayed the case. Why? Because we believe in right of people to criticize judiciary. We know that in public there is high perception that "Judiciary is corrupt". This is due to massive misinformation.

Myth 2

All Judges are corrupt.

I will try to demolish this myth with Two aids. 1) One with story of a Hindi Author Premchand Munshi. And 2) With my one experience in trial court.


1) Premchand Munshi wrote a story which says that SEAT of Judge is DIVINE. Anyone who sits on this chair becomes just and honest and impartial.


I will explain it in this way. Suppose if you are asked to become a Judge and decide a case where your friend is charged with raping a minor girl.


After you will sit on chair, process will begin.


You will see the minor girl who is raped. You will hear one by one twelve witnesses who will say how your friend raped this minor child.


Something in you will turn upside down. You will forget about your friendship. You will convict your dearest friend for rape. Because you are EXPOSED TO FACTS OF CASE.


YOU ARE AROUSED BY THE GODDESS OF JUSTICE. THE SEAT ON WHICH YOU SIT IS DIVINE.

SECOND ISSUE


2) In one District court, 30 years ago, a client told me that he himself PAID Rs.5000/- BRIBE TO JUDGE to win a case..


I asked him, how actually did he pay bribe of Rs.5000/- to Judge.

He said, During Court recess time, he and his lawyer went to chamber of judge. Lawyer send his card to judge in chamber. Judge called him. He went inside. Client waited outside. Lawyer came out of chamber and said that he has paid Rs.5000/- to judge. He believed


His lawyer was Member of Legal Aid Committee. He had gone inside chamber of judge to invite judge to a legal aid camp. He duped his client by saying that he had gone in chamber to pay Rs.5000/- to judge.


This is truth. Try to enlarge this. Think more on this.This is why there is so much perception  of CORRUPTION in judiciary.

CONCLUSION

This article is supposed to force you to rethink if you have thoughts that "80% Judges are Corrupt". 

They are NOT. Only 2% are corrupt. Rest of misinformation about Judiciary is false.
I propose to take this issue further and to show how 2% Judges indulge in corruption and what we can do. But let me pause here.

Haresh Raichura
26/10/12

Why do Judges reserve judgement on sentence after convicting an accused? There is such law that

Why do Judges reserve judgement on sentence after convicting an accused?

There is such law that after convicting an accused, the judge will hear accused on how much sentence he should be awarded.

Prosecutor asks for maximum punishment. Defense counsel for accused argues for minimum sentence.

So this is routine a stage to hear accused on quantum of sentence.

But in cases of murder or where minimum punishment is life imprisonment and prosecutor is not asking for death sentence, a judge can dispense with this procedure and can straight away pronounce life imprisonment after convicting an accused.

But in all other cases above procedure is followed.

Haresh Raichura
26/10/2012

Defamation Suit:- Power to Serve Questionnaire And Possible Defenses

Law of Defamation prescribes several exceptions.

Even if some statements may be defamatory, that will not amount to defamation ipso facto in certain circumstances.

POWER TO SERVE QUESTIONNAIRE / INTERROGATORIES

If Suit for Defamation is filed, the parties have rights to serve Questionnaire on other side and court can ask other side to reply on affidavit/oath.

Party can also ask other side to produce a list of documents for inspection or copies thereof.

If otherside refuses to answer, the case goes against that party.

POSSIBLE DEFENSES

1) The Statement was made in public good.

2) It was fair criticism done after due inquiry, proper care and in bonafide.

3) Statement was made to warn public.

4) etc. Etc. List is long. Sec.500 of IPC lists such exceptions.

The mere a statement is defamatory is by itself no defamation.

Haresh Raichura
22/10/2012

(Please take lawyer's advice. This article is not legal advice)

Activists can also start filing cases against corruption in nearest criminal court ->

Supreme Court has empowered citizens to file cases against public servants in criminal court without waiting for permission from Govt.

The Supreme Court Judgement in Case of Dr. Subramanian Swamy versus Dr. Man Mohan Singh and others came, on 31st January, 2012


It said two things:


1) Any Citizen can file a Private Complaint against any Public Servant for charges of corruption in nearest Court.


2) No sanction needed when court registers it as a Complaint Case and Directs its Investigation of Corruption Charges by Higher Officers.

Judge cannot ask "How can you file a complaint? He never asked any bribe from you. How can I accept your Compliant? What right you have to file this complaint?

Every citizen has right to file complaints which will be directed by court to police to investigate and report to court.


THE MORAL

Any activist can file complaints in courts against public servants. No sanction needed at this stage.

Haresh Raichura

22/10/2012

Why do Banks ask for your affidavit if Bank's Demand Draft is lost in transit?

You have obtained a Demand Draft from a Bank, payable to certain person or Bank.

Unfortunately your Demand Draft is lost.

You tell you Bank that draft is lost and you ask your money back which you had paid to get money.

Bank may require you to give two things.

1) A letter from the payee bank that draft is not encashed by it.

2) They may ask an affidavit from you.

Why affidavit?

In affidavit, bank will ask you to state that 1) My Draft is lost 2) In case Bank suffers any damage in future because of this draft, I will compensate -indemnify Bank.

So the Bank wants affidavit for future protection against lost draft...

It is okay.

Haresh Raichura
22/10/2012

Have you tried writing letters to Leading Celebrities of India on national problems? I have tried this with some results..

There is book called 'Who's Who in India' published by Infa publications, Delhi.

It contains short biography and addresses of leading persons of India.

Years ago, I used to write JOINT letters addressed to

1) Few Persons Listed in Who's Who of India Book
2) To few Leading Judges of Supreme Court
3) Few Leading Editors of leading newspapers.

At a time, I used to drop 50 letters.

After 15 days, Actions used to follow like miracles. Some one used to take action.

My grievance exposed in letter used to get redressed though no one used to reply except one late Vijay Merchant, the great social worker.

I think book Who's Who in India is book of live-wire real godfathers of India

This method works on Peer Pressure Rule.

If you write letters to 10 persons, 4 of them may read and 1 of them may take follow up action with Govt.

Someday, try this.

Haresh Raichura
21/10/2012

Senior most Five Judges of every High Courts should here small matters also where junior advocates appear

Senior most Five Judges of every High Courts should hear small matters also where junior advocates appear.

Mostly, in most High Courts, and also in Supreme Court very valuable and tough cases are assigned to senior judges.

Junior advocates never get such tough cases to argue. In initial years of their practice, they got small matters.

They can get chance to argue before Senior Judges only if such small matters are also assigned to Senior Judges.

It is very inspiring for junior advocates to appear before Senior Judges. Because Senior Judges select appointments for new High Court judges from advocates appearing before them.

Haresh Raichura
22/10/2012

If a Private Person takes Money to Influence a Govt Decision, he can be charged under corruption Act

Law is found in Sec. 9 of Prevention of Corruption Act. Punishment is from Six months to Five years.

Any person who takes money to influence 1) Any named public servant 2) Any unnamed public servant 3) Any Government 4) Any Govt Body 5) Any Govt company is liable under this law.

After Dr Swamy Versus Dr. Manmohan Singh, judgement, No Sanction is needed at time of filing of Complaint in Court.

Haresh Raichura
10/10/2012

SC Judgements: How Private persons can use National Flag for rallies etc.

There are two Supreme Court Judgements where this issue has been discussed.

I propose to give here only reference of these judgements and relevant laws so that those who are serious, can search judgements on Google and can read it themselves.

1) Union of India vs Naveen Jindal & Ors AIR 2004 SC 1559

2) V.K. Naswa vs Home Secretary, Union of India 2012(1)SCALE 283

The relevant Laws are:

1) Flag Code of India 2002
2) Prevention of Insult to National Honour Act, 1971
3) Emblems And Names (Prevention of Improper Use) Act, 1950

Haresh Raichura
9/10/2012

SC: WARNING: Appointments of unqualified persons as Primary School Teachers can be cancelled as VOID

Supreme Court frowned at the manner in which unqualified teachers are appointed in primary schools.

It said that it seriously affects right of proper education of Art.21A of Children.

Such appointments can be cancelled as void.

Vide Supreme Court Judgement dated 14/9/2012 Civil Appeal No 6463 of 2012, para 18.,2012 Scale (8) 698

Haresh Raichura
8/12/2012

How to become a High Court Judge? (Tips for Young Lawyers)

In India, as per present system, Judges themselves are appointing Judges.

They look at the young advocates appearing before them.

Then one Judge proposes to other judges that certain advocate can be elevated to Bench.

Then Judges discuss among themselves. Certain procedures are followed.

That advocate becomes a High Court Judge.

TIPS

There are many methods for coming in the eyes of Judges. I cannot write all those methods because some of them are dubious methods.

I will mention two methods heard from three advocates who not only became High Court Judges, they also become Supreme Court Judges. One has retired. Two are still Sitting Judges of Supreme Court.

1) Justice Anil R Dave, Supreme Court Judge is attributed that once he gave following advice to a Junior Advocate:-

Reach in Court at 9:45 AM. Then Sit in Court upto 4:30 PM. Then leave court and go home. Then you do your all other work.

When he was advocate, he used to do like this.

2) Justice Radhakrishnan, Supreme Court Judge, once said during a public speech at Ahmedabad:-

"Only way to come in the eyes of a Judge is by arguing before him. Then only he will know how much is your knowledge and understanding of law."

3) Justice C.K.Thakkar, retired Supreme Court Judge is attributed to have given his advice to a junior advocate only in 3 words:-

"Read, Read and Read"

Now, in my view all the three advice above are sound advice for those who want to become High Court Judges.

Haresh Raichura
8/10/2012

How to train Body with Mind, how to train Mind with Mind?

Trainer and Trainee both comes before training can take place.

How mind can train body? Simple answer is "By Training It".

How mind can train mind? Simple answer is "By Training it".

Let us reverse these questions.

How body can train mind?
How body can train body?

Again simple answer to both questions is "By Training It".

This is not a satisfactory answer.

But this answer must be tried first before rejecting it. "Train it" is the short message or reply to our questions.

Nothing can get trained unless you start training it.

Haresh Raichura
7/10/2012

Are "Interest Free Loans", a legal way of giving "Secured Bribes" invented by super-intelligent people?

You want to give bribe to a politician of Rs.5 Crore for getting a contract of Rs. 100 Crore from Govt.

The politician insist on advance payment of bribe.

You pay him Interest Free Loan of Rs.5 Crore.

So that if you do not get contract, you can demand back Rs.5 Crore from politician.

And if politician gets into trouble, he can return the loan and can wash away hands from entire deal!

Is it a novel legal way of paying Secured Bribes?

Though I am lawyer, I do not know. I am confused! If this is a loophole in law, it ought to be plugged by courts.

Haresh Raichura
5/10/2012

To tell some one to "Die", is abetment of suicide punishable in law

Many times employees commit suicide. They left a note mentioning that Certain person is responsible for his suicide...

That person cannot be charged for abetment of suicide unless his suicide note further says something like.. " On such date... At such time, that person said 'Go and die'.".

Such specific extortion is necessary to be proved.

Exception is in marriage law. If wife commit suicide with seven years of marriage court will prima facie presume husband liable of abetting in suicide.

Haresh Raichura
5/10/2012

Three Judges on whether judges should be address as "My Lords" or as "Sirs"?

I have had occasions to hear three Judges on issue whether Judges should be addressed as 'My Lords' by lawyers while conducting cases before them.

1) An SC Judge asked, "Why do you treat us on a higher level? We are not Gods. We are also like you and we are also fallible. We also have weaknesses like you."

2) A petition was filed to direct Bar Council of India to issue circular that lawyers should not address judges as 'My Lords!'

The judge said,"Who is asking you to address us as my lords? We do not need that you address us as My Lords!"

Petition was withdrawn with liberty to make representation to Bar Council.
Representation was made and Bar Council issued circular that lawyers should not address judges as 'My Lords' but should address as 'Sir'.

3) A Delhi High Court Judge put a notice out side his court that lawyers should address him as 'Sir' and not as "My Lords".

Still habits die hard. Lawyers continue to address judges as 'My Lords' and some judges still insist that they should be addressed as judges.

Haresh Raichura
4/10/12

Why I smiled on reading Presidential Reference Case Judgement? You may also smile!

2G judgement came. Licenses were cancelled. Fresh auction of telecom spectrum was ordered.

To overcome this judgement, Govt filed review petition.

Then it withdrew review petition and made Presidential Reference to Supreme Court.

In haste, it forgot to mention word "DOUBT" in Reference.

At hearing, an objection was raised that since words "Doubt has arisen" not mentioned in Reference it was not maintainable.

Arguments before judges went on for days whether Reference ought to be rejected as word "Doubt" is not mentioned.

Finally, Judges held that it does not matter if word "Doubt" is not mentioned.

Out of 208 page judgement, 70 pages are written on whether Reference was maintainable or not! (1/3 Judgement)!

If while drafting Reference, word "doubt" was mentioned, so much judicial time would have saved!!!

I therefore smiled on reading this Reference Judgement. :) Omission of one word can create lot of problems in legal matters!

Haresh Raichura
3/10/2012

Are Elections in India fought with 'Fake Currency Printing Machines" ? How can we check this? Why such accused have connection with Political leaders?

As a lawyer, I also get cases of accused caught with fake currency notes cases. This often lead me to think on these questions. The accused have always connection with some political leaders.


It is a fact no one can deny that Money is Poured into Election campaigns.


Officially by way of sarees, laptops, TV etc. And also in form of fake currency notes!

How can an honest candidate can stand against this flow of fake currency notes? 


People has to become aware, they have to be made aware before 2013 Elections.


Haresh Raichura

3/10/2012

Is Karmnye Vadhikarasya policy of Geeta is against popular Goal-oriented life style ?

I write this because I am confused.

Geeta says Karmanye Vadhikarasya ma Faleshu Kadachan. You have right to action but you have no rights on fruits thereof.

One philosophy of Karma is, set goals, set targets, and pursue your goals. It says, the whole object of action is to attain some Goal, some fruits.

Geeta also noticed this goal-based philosophy but it objects to it on two grounds

1) In Goal based Karma yoga, there are thousands and thousands methods of achieving a Goal. And none guarantees an outcome. This path is full of confusion. You can get lost.

2) Second objection: The fruit of an action is result of five variables: Doer, his method of doing, time, place and Luck. Fruits can never be exclusive result of your action. Doer cannot claim exclusive right to fryits when other factors are also contributing to outcome of an action.

Krishna says, on the other hand, His suggested philosophy of Claiming no right on fruit have only one method to master:-

"

Choose you action wisely
Do not worry about fruits.
Do not get attracted by fruits.
Nor do things with only object of fruits."

According to Him, this path of Karmayog is better that "For the Fruits only" method of Karma yoga.

Now if we look at it from other angle, by birth, we are trained to see some attractive thing, desire it and then do things to get that thing. We are trained to work only for salary or fruits.

Geeta suggests us to train ourselves in opposite to our natural tendency.

If we look at the whole western culture, it is Goal-fruit oriented. They set targets and move to achieve targets.

Diseases like diabetes, stress, depression, blood pressure are often seen in people who live totally goal-based life.

They also commit crimes to reach targets.

Their end lives are marred with tragic ends.

I have seen an allegedly corrupt chief justice of India lying today in bed as paralytic since many years.

Once a most powerful man of India, now paralytic in bed. His life was goal based.

Now which path to choose? Tell me your firm opinion. Krishna has firmly told in Geeta that his Karma Yog policy is much better than goal-fruit based life style. I look around and I see people setting goals and grabbing fruits. And they are called successful.

Haresh Raichura
3/10/2012

Krishna Neeti "What we DO NOT DO" is more important than what WE DO. Akarma is true Karma

"Karma is Akarma and Akarma is Karma. He who knows this, knows Karma very well"

It is difficult for me to understand this philosophy of Geeta.

I understand this as under: When we RESTRAIN ourselves from doing something, we are doing real Karma.

For example, not to steal, not to accept bribe, not to be irregular, not to worry, not to feel anxious etc are real Karma.

"

Not To Do" prohibited actions is also true action.

List of our "Not to Do" should be longer than our list of "To Do"

This is how I understand.

TO RESTRAIN IS TO ACT.

Haresh Raichura
1/2/2012

Contempt, Disobedience or Disregard of Supreme Court orders ought to be punished more frequently

Orders of Supreme Court are binding on all authorities of India.

It is contempt to disobey or to disregard orders of Supreme Court.

But if people are not punished for disobedience, the disobedience is bound to happen.

Today's TOI news report about halting of work in various information commissions on pretext of some order of Supreme Court is disturbing.

Most probably, some people are responsible for misinterpreting orders of Supreme Court. The mess may be cleared by SC by passing further clarificatory orders.

But it is desired that Supreme Court orders are respected and obeyed by authorities.

It is upto Supreme Court to see that it's orders command respect.

Haresh Raichura
30/9/2012

Bad Laws of India: Husbands suffer for Lack of Clarity in Sec. 125 for maintenance of wife?

Because of peculiar circumstances in India, law is biased in favor of women.

There is lack of clarity in law relating to maintenance of wife under Sec.125 of Code of Criminal Procedure.

Husbands suffer because of lack of clarity by courts in provisions regarding maintenance.

Sec.125 provides for maintenance of wife 1) Who is unable to maintain herself 2) And who is wrongly deserted by husband 3) Section does not speak about any criteria for fixing maintenance.

A wife who is double graduate can easily get a job if deserted by husband. Can she be called "A wife unable to maintain herself"?

In my view she has no right to invoke criminal proceedings under Sec.125. She has to file civil suit for fixing her maintenance. I think Supreme Court law is vague on this issue.

We only hope that some day Supreme Court will clarify difference between Civil law of maintenance and Criminal Law of maintenance under Sec. 125

Haresh Raichura
29/9/2012

A good High Court Judge should not inflict Pillory Punishment on advocates appearing before him

It is settled law that Judges should not pass strictures on advocates appearing before him. Nor on judges of lower court.

And yet many times it is seen that a High Court judge, while dictating judgement, in the judgement, passes negative comments on advocate who may have appeared in case.

Such comments amount to Pillory Punishment- punishment in present of peers of advocate.

When such comments are brought to notice of Supreme Court, it promptly strikes of such comments from the judgement.

However, this spoils atmosphere of mutual respect between judge and Bar.

Sometimes Judges as well as lawyers are suffering from Blood Pressure or Diabetes. It is possible for them to suddenly flare up in course of arguments.

But this should not lead to dictating unfair comments in judgement.

Haresh Raichura
26/9/2012

Dengue- PIL Writ petition ought to be filed in Delhi High Court

Law of writ is simple. If Executive is not doing what it is supposed to do, High Court's and Supreme Court can issue directions.

Today's front page news item on Dengue - Ticking Bomb in Times of India is alarming.

As per my personal view, some public interested reputed body ought to move Delhi High Court.

Haresh Raichura
25/9/2012

SC :Step daughter gets right in ancestral property of step father through rights of her mother.

In an unusual case, Supreme Court today dismissed an appeal in a case where Step daughter was given share in ancestral property of Step Father.

Cousin brother had sought to deny right of Step Daughter in Step Father's ancestral property.

Three courts below granted share to mother and step daughter and rejected case of cousin brother.

Supreme Court dismissed today petition of Cousin brother. Supreme Court also show no reason why Step Daughter should not get her rights in Step Father's property.

Haresh Raichura
24/9/2012

Winning Formula of Amitabh Bachhan - "Boxing Ring - Within four cornered ropes"

I read a great interview of Amitabh Bachhan by Farhana Farook in "iDiva - New Delhi 21.9.2012 on page 16-17.

Interview is great and you must read it by going to www.idiva.com

I am very much impressed by following Winning Formula, put in box in interview:-

"I believe we all walk alone... I discovered this very early in life, when I entered the boxing ring during my school days. Within the four cornered ropes of the 'ring' it was just your opponent and you that mattered".

It means we are living a One to One life. Each one to one interaction is defeat or victory. Together they add up to life we are living.

As a lawyer, I found this very useful. In every case, we are in a boxing ring.

In order to win, we have to knock down the argument of opponent. That matters most. All other things come later.

Haresh Raichura
23/9/2012

Frequently ask, "Therefore what?". This will lead you to meanings of every argument or situation.

I remember Dr.Justice A.S.Anand, former chief justice of India. During his conduct of cases in court, he frequently used to ask, "Therefore?...Therefore what?".

This question used to force counsel to come to meaning of his arguments.

You can try this. Whenever you hear an argument, ask, "Therefore.... Therefore what?"

Perhaps you will instantly see meaning of what is being argued.

Haresh Raichura
23/9/2012

Words are Power. Everything connects us with words

Words are power. Word can lift you up. Words can make you fall.

Words can make you wealthy, words can make you poor.

Words can get you killed. Words can save you.

Words are very important.

It is with words, that I am conveying you this article.

Everything in Universe is connected with us with words. The whole Universe can be contained in one word called 'Universe'.

A giant size property can be contained in one word "Bungalow".

Look around, the more you will go around, you will find that everything is word.

Word is God.

Therefore what?
I will think and write.

Haresh Raichura
23/9/12

Divorce by Mutual Consent in Half an Hour? Hindu Customary Divorce Deed- If you do not need DECREE of Court

Divorce under Hindu Customary Law, by mutual consent is possible in less than half hour.

You have to wait in Court for 6 Months only if you need Decree of Court for going abroad or for some such legal purpose.

Caveat: This Article or any articles on blog are not legal advices. Take legal advice of lawyer before acting on this academic purpose article.

GENERAL : Hindu Law recognizes custom law. If it is customary in some sects to divorce by mutual consent then such divorce is recognized as valid.

HOW LAWYERS DRAW A DIVORCE DEED?

1) Forms of such deeds are available in Book of Deeds.

2) The deed is usually made on Non Judicial Stamp Paper of Rs.500/-

3) It gives history of marriage.

4) Then says that it is custom in their caste for such divorce by mutual consent.

5) Then it says that parties are taking divorce as per custom.

6) Then terms of divorce are narrated.

7) Parties sign before Notary Advocate or before oath commissioner.

8) The deed says that both parties are now from this moment free to remarry.

9) Details of property or money settlement also mentioned if needed.

10) As soon as deed is signed by parties, witnesses, oath commissioner, the procedure is over.

SINCE BOTH parties are agreeable, no one may challenge deed.

But if dispute raises at later date, this deed can be challenged on some grounds in court.

Foreign Countries may also refuse to recognize such deed.

Then the only way is to apply to Court, wait for six month and then get a Decree of Court.

Please consult your lawyer first.

Haresh Raichura
21/9/2012

PS. Some advocates have different views. They advice that even after such a deed, Court's approval is required or desirable. As I said above, go by the advice of your own advocate who will examine your case and will give you advice.

SC: In Forgery cases, even if parties compromise, it is not possible for court to drop case

There are three types of criminal cases namely:

Cases where:
1) Compromise is permissible 2) Compromise permissible if Court also says Yes 3) Compromise not permissible even with permission of Court.

For example, forgery, rape, murder etc type of cases. Here, even if parties enter into compromise, the court cannot drop case. The case will go on and if there is evidence, accused will be convicted.

The question whether such cases can also be compromised or not, is pending before larger Benches of Supreme Court.

But in meantime, law is clear that courts will not drop such cases even if there is compromise between parties.

More accurate and full details can be found in Supreme Court judgement dated 14/3/2012 in WP Crl No. 26 of 2011 titled Ashok Versus Union and reported in 2012(3) Scale page 404

Haresh Raichura
21/9/2012

Two Senior Advocates: One died of cancer. One died with evergreen smile on his face

The way we live is the way we die. This is a short story of two prominent senior advocates.

One was very clever. He fought for companies. He always fought to defend injustice. He always used to win. He could virtually slain opponent advocate with his cleverness in court.
He was adept in bribing judges also.

He died of cancer at young age. His whole life time savings were lost in treatment. He died a tragic death.

Another was a simple man. He always wore a smiling face. When he walked in court lobby, it looked as if he was smiling at everyone who crossed his path.

He was also clever. But he never used his knowledge to perpetuate injustice. He took only those case which deserved justice.

He died his natural death with his usual smile on his face.

Haresh Raichura
21/9/2012

Weak Citizens: Bad Police :- A dead body of a lawyer rotting in house. Neighbours refused to inform police for fear of court involvement.

News report today said a dead body of a lawyer was rotting in a close apartment since 10 days.

Neighbors were getting stench of deadbody.

No one informed police. Possibly with the fear of getting involved in procedure and of becoming a witness.

In so many cases onlookers refuse to come as witnesses.

And still we blame courts for acquitting criminals?

Are we not a nation of weak citizens?

Haresh Raichura
20/9/2012

1966 Supreme Court Rules are outdated and obsolete ?

Many lawyers think that 1966 Supreme Court Rules have become outdated and obsolete. These were framed 46 Years Ago!

Time to time many practice directions and circulars are issued which are not found in the rules.

Fees of Supreme Court Advocate in Rules are obsolete (Rs.1100/-) -An impractical rule.

The Rule requiring that a convict has to surrender before his SLP is heard, is unconstitutional on face of Art.136 as per my view.

The invalid rule is obeyed and implemented because no one has challenged its constitutional validity.

Those who are sentenced to 3 months or one on month only, are also asked to surrender first. Women are also asked to first surrender.

A Court gets power to direct a convict to surrender only where an appeal is pending.

Before an appeal is admitted, Supreme Court does not get power to insist on surrender of a person who is seeking permission to appeal.

There are many other rules which are out of practicality and which needs a re-relook.

Haresh Raichura
18/9/2012

One client came to Supreme Court and asked me to get his matter DISMISSED !

To get a matter dismissed in Supreme Court is also a challenge.

Once a Client came to me to get his matter dismissed!

About two or three matters were dismissed by Gujarat High Court by a common order.

One of the party, was getting some benefits even if his matter was dismissed.

So he did not want Supreme Court to entertain any petition of others.

He had heard that if his matter is dismissed by Supreme Court, then other two matters will also be routinely dismissed by Supreme Court.

So he wanted his matter to be dismissed at earliest.

Today, I may refuse to accept such brief. But those were my early days in Supreme Court.

Normally, to succeed in matter is hard.

It is easy to get a dismissal order.

Strange thing happened

I moved matter in urgency before three Judges.

I started with my weakest point.
"My Lords, my client has lost in all courts below...." and I left sentence incomplete and hoped that judges will pass dismissal order.

Three judges looked at one another, discussed some thing and granted me Stay Order!

I was shocked.

My client has paid me to get matter dismissed. But it did not happen! I failed.

Haresh Raichura
17/9/2012

Two Lama saw a man climbing down from a mountain. The man was CJI S.H.Kapadia

In mountains of Tibet

Two lama saw a man climbing down from a mountain.

Younger Lama asked Elder Lama,
"Look at that man
Does he not look taller than the mountain? Who is he?"

Elder Lama replied,
"He is Chief Justice S. H. Kapadia.
He is retiring as CJI"

"Why does he look taller
Than the mountain! "
Younger Lama asked

"Because he mastered
Every First Principle of Law.
And, therefore, he looks taller than the mountain." Elder Lama replied.

"What are the First Principles of Law? How can one master them?"
Asked younger Lama

"First read all laws which are required to be seen.
Then close all law books.
Then close your eyes
And go back in history
Where there were no codified laws.
Then think what judges of those times may have said.

You will soon begin to see
Glimpses of First Principles of Law"
Elder Lama replied.

(2)

"Tell me about contribution of Justice Kapadia to nation."
Asked Younger Lama

Elder Lama replied,

"First he made every Parsi proud. Though being in micro-minority,
He made all nation proud of Parsi.

"Second, he uplifted bar of moral standards in public life,
By setting aside appointment of CVC on ground that charge of corruption was pending against him.

"Third, he uplifted prestige of Rule of Law in India In International Law
In Vodafone case.

"Fourth, he proved that even in a corruption clad environment,
It is possible to maintain principles.

"Fifth, he made every pageboy proud. He was just a pageboy in a lawyer's office. From there he reached to the Top."

Elder Lama thus summarized
Contribution of the judge

Haresh Raichura
15/9/2012

For more such poetic compositions,
Please read my Book "Tomato Soup for Lawyers and Judges" Volume 1 & 2

Can one file IPC 420 case against ministers who may have cheated people?

There are no ready answers. But I remember that two cases were filed against late Prime Minister Shri P.V. Narshimah Rao.

One case was filed by an NRI Lakhubhai Pathak.

He alleged that he made some payment to a middleman, on being assured of some benefits. But later, it did not happen.

He complained being cheated. IPC 420.

On death of Lakhubhai, this case was closed.

Another case I remember, in Rajkot in Gujarat, someone filed complaint against Shri Rao that certain election promises were made but not fulfilled.

He complained Cheating. IPC 420.

The Brave Magistrate issued summons against the then Prime Minister of India.

But next-day, his superior judge, cancelled his order and then cancelled case itself.

I remember only these two cases where criminal law IPC 420 was invoked against ministers who may have violated Poll Promises or other promises.

The Lawyers need to evolve law on this issue. The public wants to know more.

Haresh Raichura
14/9/2012

Will #Coalgate PIL succeed in SC? What are the main hurdles ?

Popular expectations are high. People want Supreme Court to quash entire Coal blocks allotments.


I will be glad if Supreme Court cancels all allotments of coal blocks.


But to do so:


1) Supreme Court will have to hear each and every allottee of coal blocks. This will become a clumsy petition.


2) Some allotment has become final and approved at High Court level. These High Court judgements cannot be cancelled in PIL. Separate SLP need to be filed for such purpose.


3) Supreme Court will act if it will find that Govt is Doing Nothing. But if Govt has initiated process, to cancel those allotments, Supreme Court will not like to hijack this process.


4) Procedure of setting a Screening Committee itself is faulty. If this is challenged, then only Supreme Court can cancel all allotments done by Screening Committee.


5) Problems of equity will arise. What to do about genuine cases where millions of rupees of bank and people are invested?

6) What will be benefits and losses to people if the whole process is cancelled? For how many years limitations? What if allotment is done more than three years ago or 9 years ago? How far court can go?



Haresh Raichura

14/9/2012

Three Stages of Dependance on Lord Krishna

I passed through three stages of Dependance on Lord Krishna.

1) In first stage, I worshipped Krishna and I trusted that He will look after me and will protect me from evils of this world.

2) In Second Stage, I believed that Krishna Helps Those Who Help Themselves.

In this stage, I felt that burden to take initiative and do my best was on me. Only when I first do this, Krishna adds something which gives me success beyond my expectations.

3) In Third Stage, I felt that I should keep doing my job well. I should not now and then keep looking whether Krishna is helping me or not.

I should work as if I am on my own.
It is for Him to come or not to come to add help to me.

If He comes, it is well and good. If He does not come to add any help, then also it is well and good.

It means, I am surrendering to Him but I am not binding Him to any reciprocal promises towards me. No expectations are violated if His help does not come!

It is all up to Him.

This stage pulls me up to level playing field with all evil persons who do not believe in and who do not fear God.

I fight on my own. Krishna helps me if and when he thinks fit.

Haresh Raichura
14/9/2012

A Weapon more powerful than RTI application => A notice under Sec.80 of CPC,

A District Magistrate or Collector is CEO of a District.

He is accountable for everything in his District. He has as much power as a CEO.

If you want to file any case against Union of India, you have to give notice to him.

In short he is responsible for things happening in his District.

An activist can consider doing three things if he see any wrong things in his district.

80CPC.(Notice) is more POWERFUL than RTI inquiry. Ppl should LEARN to use this weapon.

A) A written Regd AD notice or letter to DM giving details of wrong complained and request him to take action within 60 days as provided in Sec. 80 of CPC.

B) After 60 days,consider filing an RTI application to know status of your complaint.

C) Thereafter, consider further steps like moving a petition in High Court or trial court. Your local advocate may help you. This is som

 A notice under Sec.80 of CPC,.

Notice should be sent as under :

1) Secretary. Home Dept, New Delhi

2) Secretary, Home Dept, 

State Sachivalaya

3) The Collector, 

District Collector office,

4)Chief Officer, Concerned Department.

When you are in doubt about who is responsible, you can send more than one notices.

Some responsible officer may respond.

Remember, DM is the man whom you should send Complaints.

Haresh Raichura
13/9/2012

People should Use this Justice Ganguly and Justice Thakur Judgement to free India from Police Corruption

One Million Tweeple should Read and Use this Justice Ganguly and Justice Thakur Judgement to free India from Police Corruption.

Judgement Says:

"

EVERY citizen has right to see that his complaint is properly investigated."

Judgement further explains:

It is violation of fundamental right Art. 14 if Police do not carry fair investigation.

If you suspect police officer of making dishonest investigation, go to magistrate. It is duty of courts in India to order investigation by higher officer.

In this case a woman goes to police that her husband is kidnapped by Mr. X.

Instead of registering complaint, police gives her copy of "Missing Person Report."

After two days, woman goes to police and informs about finding dead body of husband and gives two names who murdered her husband.

Police does not Register FIR but passes information to Mr. X who had kidnapped husband.

After two days thereafter, namesake FIR is registered at instance of wife but nothing further really done.

Like this case, If you also have reasons to suspect that police has joined hands with other side .....

....and is not properly investigating complaint, then an application under Cr. P.C. sec 173(8) can be made to trial court.

If the Trial Court is satisfied that investigation is really not satisfactory, it will then direct investigation by Higher Police officials and will call for a report.

If for some reason, you are not satisfied with Trial Court order you can always go to High Court and Supreme Court.

In above referred case, the woman had filed Art. 227 petition against order of Magistrate.

For exact or more details look at actual judgement on website of Supreme Court for judgement dated 12.01.12 Azija Vs State of Maharashtra also reported in 2012(1)SCALE page 328
in Criminal appeal No. 126 of 2012 also reported in 2012 (3) SCC 126

Haresh Raichura
12/9/2012

SC: Property Rights of Illegitimate Children- Case sent to Larger Bench

The questions before Supreme Court were:

What are the property rights of illegitimate children under Hindu Law?

1) Are they entitled to a share in the Coparcenary (Ancestral) property also?

2) Or, are they entitled to only share in self acquired property of parents?

Since there were conflicting judgements,  SC bench has referred the questions to larger Bench.

In my view, social consequences will be disastrous if illegitimate children are given rights in ancestral property.

Because then, adults and also married who are sons/daughters of rich, will be exposed to unlimited honey-traps. The aim of such honey trap will be to get share in Rich Parents property.

For more plz. See 2011(4)SCALE Page 189 Ravanasiddappa Case order dated 31.3.2011 in Civil Appeal 2844 of 2011

Haresh Raichura
11/9/2012

PIL in SC: To Declare MOUNT ABU as " Eco Fragile" area

W.P. Civil 202 of 1995 is pending in Supreme Court.

In this case, applications regarding protection of Mount Abu are also filed.

For further reference : 2012(1) Scale 219 may be seen.

Haresh Raichura
11/9/2012

Large Scale illegal mining in River Yamuna Bed: SC Monitoring

Supreme Court is actively monitoring means to stop large scale illegal mining in River Yamuna Bed.

Those interested in subject can join or watch case.

They can look up on SC website case of Deepak Kumar Versus State of Haryana
2012(2) Scale 443 SLP Civil 19628 of 2009 and other

Haresh Raichura
11/9/2012

SC: Without First Framing a Housing Scheme, Govt cannot acquire land for building housing society.

Yes. This is the tenor of a Supreme Court Judgement.

Without First Framing a Housing Scheme, Govt cannot acquire land for building housing society.

Such an acquisition cannot be treated as for Public Purpose. SC order that land be returned to land owners.

For detailed understanding and reading plz refer to Supreme Court Judgement dated 7/2/2012 in Civil Appeal 1930 of 2012 and also reported in 2012 (2) Scale 504

Haresh Raichura
11/9/2012

Improper Acceptance or Rejection of Nomination can result in Declaration of an Election Null and Void by Courts- SC

This was a case of improper rejection of nomination papers of a proposed candidate of MLA election.

When it was found that Returning officer had improperly/illegally rejected a nomination, the election of returned candidate was declared null and void by High Court. Supreme Court confirmed it.

It follows by analogy that Improper Acceptance or Rejection of Nomination papers by Election Officer is a ground for declaring an Election null and void.

More details can be read in Supreme Court Judgement dated 9/12/11 in Civil Appeal No 4956 of 2010 and also in 2011 (13) Scale 423

Haresh Raichura
10/9/2012

Any Voter Can Challenge Election of any Member of Parliament on ground of "Office of Profit" - Supreme Court

Yes. A voter can challenge election of any Member of Parliament on the ground that he is holding a "Office of Profit" under some Govt. Body.

Normal assumption that only contesting candidates can challenge election of any MP is not correct.

I say this on basis of Supreme Court judgement dated 30.11.11 in civil appeal No. 7923 of 20010 which is also reported in 2011(13)Scale 283 on page 284 para 3

In this case, a voter had challenged election of a Member of Parliament on ground that he was receiving money from a Maharashtra Government Company.

Member of Parliament said that he was only being paid actual expanses incurred by him and therefore it was not a "Office of Profit".

The Voter Lost legal battle. But he did made a point that any Voter, with right evidences, can challenge Election of Any Member of Parliament.

Haresh Raichura
10/9/2012

Supreme Court Directions Regarding so called Village Courts or so called Panchayats Courts

Supreme Court Directions 
Regarding so called Village Courts or so called Panchayats Courts 


Directions are given that if barbaric incidents happen of punishments by Kangaroo Courts or So called Panchayats,in various States of India and if it is found that

1) District Magistrate/ or Collector or SSP or SP had been previously informed but they have failed to prevent incident,

2) Or if they have failed to apprehend culprits immediately, 

They be suspended.

The sweep of directions is very wide. And State Governments and officers are bound by Supreme Court directive under Art.141.

These directions are found in para 16/17 of judgement reported also in 2011(4) SCALE page 756 on page 761.


A complainant can go to High Court to see that directions are obeyed by State.


Haresh Raichura

9/9/2012

Supreme Court Relief to Punjab Farmers against Arbitrary Evictions

Many Punjab Farmers were given farming land for farming in 1960 to 1970 around.

It was condition that every year they should give 1/3 share from crops to Government of Punjab ( Seed Farm)

Initial lease was only for 1 year but they continued thereafter and government kept accepting 1/3 share from crops.

After 1985, in many cases, government stopped taking 1/3rd share and started evicting them.

At least three such farmers first went to Punjab and Haryana High Court for protection. Their cases were dismissed.

Supreme Court granted stay and protected these farmers. It appeared that wrong interpretation was given to certain provisions of law by High Court.

These cases are pending in Supreme Court.

Haresh Raichura
8/9/2012

Will- After a Will is executes, subsequent changes in it will have no effect unless done in manner provided in law

Many times after a will is made, afterwards, alteration, interlineation or obliterations are made.

After a Will is executes, subsequent changes in it will have no effect unless done in manner provided in law.

Vide 2011(12)Scale 306: SC judgement date 31/10/2011 Dayanandi case

Haresh Raichura
8/9/2012

SC: Ignorance of law is good excuse for illiterate farmers - A good View

Supreme Court was dealing with case where for faulty seeds, consumer courts had awarded compensation against National Seed Corporation.

The company sought protection under some provisions of Seeds Act.

Supreme Court in para 35 rejected this argument on ground that

"Majority of farmers in the country remain illiterate through out their life.. They have no idea about the Seeds Act and it's rules. The farmers also may not be knowing of Protection of Plants Varieties and Farmers Right Act"

SC did not say exactly that "Ignorance of law is good accused for farmers" but it did gave judgement in favour of farmers.

Haresh Raichura
8/9/2012

Vide 2012(1) Scale 367 on page 393 para 35: judgement date 16/1/12 National Seeds Corporation case

InterCaste Marriage with ScheduleCaste/Tribe- Their child can choose his caste on becoming major- SC

In intercaste marriages where one of spouse is of Schedule Caste or Tribe, then child will get caste of father. But on becoming major, child can ask that his caste may be treated as caste of his mother.

More details available in Supreme Court Judgement dated18/1/2012 in case of Rameshbhai vs Gujarat on Supreme Court website and also in 2012(1)Scale434

Haresh Raichura
8/9/2012

Main LEGAL between 2G and CoalGate Allotment- Difference between Fraud and Fraudulent Policy and Powers of Court to Cancel allotment

I am not a Legal Eagle. I am a very low profile advocate. But I see difference between 2G and Coalgate.

First Principle of Law

Court has full power to set aside "Decision Making Process"

but

has limited power to cancel a "policy of Government."

2G Scam

Here some people were given advance information on Declaration of policy of First Come First Served. When policy was declared, some people had already prepared bank drafts for deposit money. It was an outright fraudulent act, confirmed by subsequent transfers of licenses.

Therefore, Supreme Court has power to cancel it.

COALGATE

Here, a policy was there.

Policy was not challenged for years by anyone.

A screening committee was appointed for examining merits of case.

Only those licenses can be cancelled where 1) False details are given 2) Collusion with members of screen committee is found.

AND IF YOU WANT TO

If you want to cancel all CoalGate licenses, you have to further prove that (1) Policy was fraudulent (2) Entire Screening Committee functioned in fraudulent manner (3) No criteria was fixed (4) Kickbacks are visible. (5) Screen Committee was just a MASK (6) What you cannot do directly, you cannot do it indirectly by setting up a Committee.

This is a tough legal task.

Haresh Raichura
8/9/2012

What to do if wife Files false cases against husband and in- laws?

Judicial Bias

The trend of judiciary is Pro-Woman. Judges will not readily believe that a woman can also be lying and can be filing false cases against the husband and in-laws.

First Principle:

Judge will look for evidence. If you have no evidence, the judge will believe whatever the woman may say.

Transfer Matters

If husband and wife are from different states, and if cases are filed by husband in his state, Supreme Court will most probably transfer all his cases to where wife is living

Wisdom Versus Law

In family disputes, judges go more by their wisdom and social trends than by law.

When dice is heavily loaded against husband in Courts, the laws are much abused.

No standard advice is available. Judges decide on basis of evidence on record on case to case basis.

1)Husband first need to collect and establish evidences against wife.

Letters, tape recording, video recording. Whatever. A local trial court advocate may advise you properly. Seek his advice also about obtaining factual report from a detective agency.

2) It is always advisable to deposit some amount monthly in bank account of wife. It is always a duty of husband to maintain wife and children.

3) Take first step in Civil Court.

The wife will probably file false cases in criminal courts. Before she files complaints, husband should approach Civil Court. In Hindu Law there is a section under which judge can refer dispute to mediation or can try to resolve disputes.

4) Accept reality.

One SC judge once said,"Husbands are well advised to obey their wives". Another SC judge recently said,"It is always a question of accommodation. Accommodate and adjust to your wife or suffer consequences."

This much is all I can say.

There is no effective remedies to protect husbands against false cases by wives till today. But I do hope that Supreme Court will show us way at earliest.

Haresh Raichura
7/9/2012

SC: If Your Son-in-law is troubling your daughter, even if they may be in different city, you can lodge 498A FIIR in your city police station!

A Landmark judgement of Supreme Court has gone unnoticed by media and TV.

In Ushaben case, SC has dispelled assumption that only wife can make complaint under 498a, cruelty to wife by in laws.

Suppose you are living in Delhi. Your son in law and your daughter are living in Mumbai. You receive a distress call from your daughter that her in laws are doing cruelty to her.

You can file 408a conplain in Delhi Police Station. Police will register it as 0 number FIR and will forward it to Mumbai Police for investigation.

If Delhi police refuse to take your complaint, you can move courts and court will call for report.

This judgement is landmark judgement but it has gone unnoticed by media.

Though SC did not say all these what is mentioned above in open words, this is the meaning of this judgement.

Now even a neighbor can file complaint to police that Husband living in next house is beating his wife.

Common perception is such that only "Wife" can file complaint of 498A IPC.

But no.

Supreme Court says that if any police officer finds that you are ill treating your wife, then without permission of your wife, even police officer can file complaint under 498A of IPC and can punish you through court.

Moral: Husbands should not ill-treat wife. Adjust with her. Respect and fear her.

If you want to read more details, it is in Supreme Court judgement dated 23/3/2012 Ushaben versus Kishorbhai. It is also reported in 2012 (3) Scale page 594

Haresh Raichura
7/9/2012

If false complaints are filed on behalf of Wife, then husband has also remedies in court to set aside such complaints.

"I cannot pay more than Rs.35K for filing case in Supreme Court. I have talked with all my relatives" - A poor man said

It pains my heart when I see that High Court has passed a patently erroneous judgement against a poor man.

The poor man, who may be living on hand to mouth basis,may have to come to Delhi and to file case in Supreme Court.

It is normally beyond reach of a poor man to reach Supreme Court. They usually talk with their relatives and take loans from relatives to meet expanses of filing a case in Supreme Court.

I met one such poor client today. High Court judgement was wrong on face of it. But this poor man had no option but to file matter in Supreme Court.

This reminded me of late Senior Advocate B. K. Mehta. We had engaged him. And a poor man paid Rs.10K towards his fees.

Next day, B. K. Mehta called me and said that his conscience was biting him. He returned Rs. 10K to poor man.

I wish there are more such Senior Advocates in Supreme Court.

If you like this TRUE story, please tweet this.

Haresh Raichura
6/9/2012

Second Appeals in High Courts cannot be allowed without first framing questions of Law- Supreme Court

Supreme Court has to reinvent wheel again and again.

Since, 1997, Law is clear and settled that High Courts cannot interfere in lower courts judgements in Second Appeals without first framing substantial questions of law.

Latest judgement is dated 16/3/2012 in case of Hardeep Kaur versus Malkiat Kaur on website of Supreme Court and also reported in 2012 (3) Scale page 501

Haresh Raichura
6/9/2012

Under Right to Information Act, what to do if required information is not furnished?

Under Right to Information Act, what to do if required information is not furnished?

When this issue arose, it is now upheld by SC that Commissioner cannot order disclosure of Information, though he can impose heavy penalty. The Act does not give such powers to force government to disclose specific details, but it can certainly impose heavy penalty on Govt body.

For specific details or information, In my views

1) High Courts have power under Art 226 to direct disclosure of information.

Supreme Court can pass orders to call for records and to file affidavit disclosing specific points.

2) It is also my view that Civil Court can pass orders under provisions of interrogatories to produce documents and disclosures.

More on this can be found in judgement dated 12.12.2011 in case of Chief Information Commissioner versus State of Manipur on website of Supreme Court.

Judgement can be on Google and can also be found in 2011(13)Scale 460

Haresh Raichura
6/9/2011

Supreme Court Election Reforms in all Universities in India to prevent entry of criminals in Students Elections

Supreme Court has laid down guidelines for students elections in all Universities in India.

Guidelines based on Lyngdoh Committee. Further Committee is also asked to examine whether election should be on President system or Democratic system.

All elections have to be as per these guidelines. For those who want to read more details, judgement dated 8.12.2011 titled University of Kerala versus Councils,, also reported in 2011(13) Scale 487

Haresh Raichura
6/9/2012

Unsolicited Calls/SMS- Consumer Fora Slapped Rs 50 Lakh plus exemplary damages- SC upheld judgement.

One consumer filed complaint for exemplary damages of Rs. 34.50,000/- for harassment, mental agony and financial loss suffered by her due to unsolicited calls received on her mobile phone from various banks and financial institutes.

Consumer Fora awarded exemplary penalty of more than

Rs. 50 lakh and gave various directions

The Cellular Operators and companies fought upto Supreme Court. Supreme Court upheld decision.

If you are a consumer Activist, and if you also want more details of this case, you can find more Reference In case of Nivedita Sharma Vs Cellular Operators Asso of India. Reported in 2011 (13) Scale 584 Judgement dated 7.12.2011 can also be found on Supreme Court website. Or on Google.

Haresh Raichura
6/92012

Death Sentence- Delay in execution of sentence even after mercy petition is rejected-.issue pending before SC

In death sentence cases, after mercy petition is rejected by President, there should not be undue delay in executing death sentence.

But what if there is long delay by government even thereafter? Can their death sentence be commuted to life imprisonment?

The issue is pending before SC as referred in judgement dates 9.2.2012 in SLP Crl No. 1105/2012 also reported in 2012(3)Scale page 533

Haresh Raichura
5/9/2012

A Traffic police stops car of a High Court Judge for regulating traffic. Does it amount to Contempt of High Court Judge?

What is Contempt of Court? If a traffic policeman stops car of a High Court Judge for regulating traffic, does it amount to contempt of court?

On 24th Sept, a Traffic Police stopped car of a High Court Judge to allow a procession of adivasis to pass by.

The Judge issued contempt notice to policeman.

The Judge was of view that "Court does not mean Court Room but movement of judge even outside, at least when he is moving to discharge official functions".

The issue is/was still pending to be decided by higher court, as per reference given in Supreme Court Judgement dated 25/8/210 in case of Biman Basu versus Kallol Guha also reported in 2010(8) SCALE page 490 on 493.


Haresh Raichura
5/9/2012

You are NRI. You have properties in Punjab. Tenant neither paying rent nor vacating. What can you do?

A tweeter friend from abroad posed this problem.

In legal world, we call such disputes as "Absentee Landlord" dispute.

Property is in one city. Landlord is in other city. Tenant will try to misappropriate or misuse property. Disputes bound to happen.

I can think up following options.

1) First, NRI LandLord should give a power of attorney to his some friend or relative in India for purpose of filing legal suits to get premises vacated.

2) Then legal notice to be given to tenant to vacate premises stating that land lord wants to come back to India and requires property. Many other legally permissible grounds should be taken.

3) An advertisement in local newspaper can be given warning public.

4) Suit for eviction should be filed.

5) Process may take time. But Landlord will get back possession.

Haresh Raichura
4/9/2012

SC: If police is not investigating complaint properly, application 173(8) can be made for investigation by Higher Police Officers

Every citizen has right to see that his complaint is properly investigated.

If he has reasons to suspect that police has joined hands with other side and is not properly investigating complaint, then an application under Cr. P.C. sec 173(8) can be made to trial court. Trial Court will then direct investigation by Higher Police officials.

For exact or more detail look at website of Supreme Court for judgement dated 12.01.12 Azija Vs State of Maharashtra also reported in 2012(1)SCALE page 328
in Criminal appeal No. 126 of 2012

Haresh Raichura
4/9/2012

If husband is beating wife, even neighbor can ask Police to register 498A Case- Landmark SC Judgement.

Though SC did not say so in open words, this is the meaning of this judgement.

This is a landmark judgement by Supreme Court.

Now even a neighbor can file complaint to police that Husband living in next house is beating his wife.

Common perception is such that only "Wife" can file complaint of 498A IPC.

But no.

Supreme Court says that if any police officer finds that you are ill treating your wife, then without permission of your wife, even police officer can file complaint under 498A of IPC and can punish you through court.

Moral: Don't ill-treat wife. Adjust with her. Respect and fear her.

If you want to read more details, it is in Supreme Court judgement dated 23/3/2012 Ushaben versus Kishorbhai. It is also reported in 2012 (3) Scale page 594

If you are in possession of property, no one can remove you without DUE PROCEDURE of law

This point has been argued again and again in many courts.

On 12 March, 2012, three judges of Supreme Court restated law in case of Maria Versus Erasmo

"Possession of past is one thing, and the right to remain or continue to remain in possession in future is another thing"

The three judges have tried to lay down that No one can take law in his own hand. Even a trespasser cannot be dispossessed without recourse to procedure of law.

If you are in possession of property but you have no documents to prove your title, then what?

The Judges said, Two things are separate. Title is one thing. And Right to Continue in possession is different thing.

Judges explained, how even without title of property, you can establish your Right to Remain in Possession in present and in future also.

Those who need more detail can find this judgement dated 21/3/2012 on website of Supreme Court or in 2012(3) Scale page 550

Haresh Raichura
4/9/2012

Auto Ricksaw case- Art 14 Requirement to prove violation

N.K.Bajpai case para 23 2012(3)Scale 452

Advocate's Right to practice is fundamental right under Art 19(g)

An advocate derives his power to practice law from two sources.

1) Advocate Act, gives power to practice before any court and Tribunal.

2) This right is fundamental right under Art 19 (g) of the Constitution of India. This right cannot be curtailed by putting unreasonable restrictions on advocates.

3) This right cannot be taken away without Due Procedure of Law

Vide N. K. Bajpai Case, 2012(3)Scale 452

Haresh Raichura
4/9/2012

Urban Land Ceiling Land..Land declared surplus but possession not taken. Now you can keep the land.

Urban Land Ceiling Act is repealed before 15 years.

In many cases, Govt. Passed declarations of surplus land and became Owner of the Land.

But due to certain reasons, Govt did nothing except taking possession on paper. Now it is held that the Govt can no more get possession of this land.

The proceedings have abated. Govt has lost ownership of this land also by not taking steps in time.

Merely vesting of land not enough. The Govt must have taken actual possession before the ceiling Act was abolished.

Vinayak KashinathvShilkar case 2012 (3) Scale 385

Haresh Raichura
4/9/2013

SC: Car Loan companies or their agents cannot forcibly take away your car for non payment of installments- Case Law

In Car Loan papers you may have been forced to sign many conditions.

But Law is Clear.

Car Loan Companies or their agents cannot forcibly take away your car for non payment of installments.

They have to follow procedures of law for taking back possession of car. They have to follow RBI Circular dated 24th April, 2009 and many other laws.

You can get detailed knowledge from following cases. You may find these cases on Google or in your lawyer's office.

Citicorp Maruti Finance Ltd Versus S. vijyalaxmi reported in 2011 (12) Scale page 537 on page 543 in para 21

ICICI Bank Ltd versus Prakash Kaur 2007 Vol. 2 SCC page 711

Haresh Raichura
2/9/2012

How to file complaint against a sitting judge of High Court? #LawForLawman

You will not find any law books on this subject. A friend on twitter tweeted about serious complaint against a sitting judge of a High Court, hence I write this.

Following are tips:

1) Make no allegations of partiality or bias against judge.

2) Do not use harsh words in your complaint.

3) Just state exact words spoken by judge or exact action taken by judge which is wrong according to you. The details should be so specific that concerned judge can reply to it.

4) State clearly in your complaint that you are not making this complaint to make pressure on judge to give some favorable judgement in any case.

5) State clearly that you have no case pending in his court or in any other court. If you have any case, disclose full details.

6) State that you have utmost respect to judiciary.

7) Post it to Chief Justice of High Court and to Chief Justice of India. They have some powers to take action if they think fit.

8) Do not leak details of your complaints to press. It will amount to contempt.

9) Then give time to the Judiciary to correct itself.

10) Do not use contemptuous words.

11) After sending complaint, do not wait for reply. No one will reply you. These complaints are handled discreetly to maintain high image of Judiciary. Do not send reminders.

12) Treat your complaint as "Closed and forgotten".


Haresh Raichura
1/9/2012

When Courts can rely on TAPE RECORDED on mobile as Evidence in Court- some hints

Almost every mobile phone has voice recording functions. Technology has armed us with weapons of Voice Recording and Video Recording.


But can court convict someone by relying on such recorded evidence?


There are cases and cases where courts have convicted criminals on basis of tape recording.


Court usually wants to know following things before relying on such evidence.


1) Was recording done under controlled conditions? Has anyone come in witness box to say that he himself has recorded or that he was a witness to recording?


2) Are the content of recording same as they were when it was recorded? Is there any possibility that the recording could have been tempered with or doctored with after it was recorded?


3) Has any one come in witness box to say that "After recording was made, recording was kept in his safe custody till it was produced in court" ?


If Court satisfies, it can rely on recording.


(Some mobile phone may have "Non editable Recording Software". If there is such an application, court can rely on it without any hesitation.)


Haresh Raichura

28/8/2012

'Ek tha Tiger and Ek thi Cow" - A story to explain why people file false cases.

Once upon a time in India there was rule of law. All citizens and animals were law abiding.


One day a cow crossed path of a Tiger. The Cow said to Tiger, "Hi, Good Morning".


The tiger gave no reply. He went straight to police station and gave complaint that The Cow has assaulted on him with her horns.


Police called the cow to police station but took no action against Cow for one month.


Tiger went to Court, engaged a lawyer and filed complaint against cow. The Magistrate recorded statement of Tiger on oath. Two more tigers came as witnesses who claimed to have seen the incident. They gave statements in support of tiger.


Magistrate issued non bailable warrant against Cow.


Cow engaged a lawyer and filed Sec. 482 petition in High Court to quash the complaint as abuse of criminal law.


High Court dismissed petition of Cow. High Court asked cow to appear before trial court and to prove her innocence in trial.

The Cow went to appeal in Supreme Court under Art.136. There also her petition was dismissed by Supreme Court. Supreme Court gave same advice to cow.


The Cow appeared before Magistrate and obtained bail pending trial.


Then case was adjourned many times for three years. On each day Cow had to come to court. She was always very frightened because in Courts she saw that lots of tigers and criminals were crowding around her.


One day she agreed to pay few lakhs rupees to Tiger. Tiger agreed and case was withdrawn.


The Cow become free for a price.


MORALS OF STORY


1) Most of the evidence in Indian courts are words of mouth. Witnesses and complainants can easily tell lies in court.


2) Courts have power to punish those who tell lies in court. But for many reasons they cannot do so.


3) The Cow should not have said 'Good Morning' to Tiger.


4) Aggression is best defense.


The cow should have also immediately filed (1) Complaint for malicious prosecution against Tiger and Two other tigers who gave false statement in Court. (2) Cow should also have filed Civil Suit for damages against three tigers. Then all three cases would have proceeded in Court side by side.


Warning: Do not treat this story as advice. Consult your advocate for correct advice.


IN MY VIEW, 40% Criminal Cases in courts in India are cases where, The Tigers have filed false cases against Cows. (Shocking Truth)


If you think that this story can help people to fight better against false cases, please tweet this to spread awareness.


Haresh Raichura


23/8/2012

Why some judgements of Supreme Court and High Courts confuse me- A brief view

I have utmost respect to judges of Supreme Court and High Courts. But I am also of firm view that we should criticize and give feedback to judges about their judgements.

Some judgements confuse me.

What is argued is different, and what is being decided is different.

Sometimes I feel that real issues are sidestepped.

Judges are more knowledgeable than me and are more experienced than me. They must be doing right thing.

In Courts, normally, a point is raised by one advocate, it is denied or explained by other side advocate, and then judge decides THAT issue.

However, in one judgement, a very senior judge wrote like this:

1. Petitioner's advocate argued point A,B and C.

2. Respondent's advocate contended point E,F and G. (Pause here and understand mistake. Respondent's advocate has to reply to A,B and C points raised by petitioner's advocate. But he does not reply A,B or C. Instead he spills out his own different issues E,F and G)

3. After recording arguments of both sides, Judge says, "The Following Points H and I are arising for our consideration."

And Then he answers and decides points H and I which were never argued by any advocate!

There may be some very good reasons why some judges are doing like this. Sometimes pleadings are vague. Sometimes arguments by advocates are vague. Then a judge has to cull out issue from the real controversy.

But for my parts, I always become confused by reading such judgements.

Sometimes I feel that A, B and C were the REAL ISSUES which have been sidestepped by judges and judgement is weak on issues A, B and C.

If you also think that this point needs to be replied or addressed by some eminent judges or more experienced lawyers, please TWEET this post on social media for more awareness.

Haresh Raichura
21/8/2012

Why Dr. Swamy's legal fight against use of EVM machines in Elections is 100% justified?

The more and more people are convinced that Electronic Voting Machines are "Calculators which can be manipulated by computer softwares".

For example a Chip can be inserted that "Party A" should get +1 more vote than "Party B" no matter what may be the actual voting.


These are called "Overwriting Commands". Computers are computers. They can be programmed and re-programmed.

Ruling Party and Election Commission of India disregards truth and insist on use of EVM machines in Elections.

What can we do about it?


Dr. Swamy has filed petitions in Superior Courts and has demonstrated how these computers can be manipulated and how it can be pre-programmed to make sure victory to one candidate during election. The EVM machines have killed Democracy and have all the potentials to do so.

What is LAW here?

Possibility of MISUSE is no ground for courts to prohibit Government and EC from using EVMs


This is law. Court can issue prohibitory directions only if we can show to courts that:


A) Something is being done in violation of certain express law.


B) People and Other Election Cadidates have some Constitutional Rights which are being violated by use of EVM machines.


C) The Courts have to be further convinced that they have jurisdiction to pass orders which are being asked, and it is practicable and desirable to issue such prohibitory orders.


D) The Courts have to be further convinced that it is DUTY of Court to uphold Constitution by passing such required prohibitory orders.


Following are some of the answers to A to D points.


1) It is Duty of Court to protect Basic Structure of Constitution. If Fair Elections are replaced with Manipulatable Elections, the Basic Structure of Constitution is DESTROYED. So it is Duty of Court to ban EVM machines. The Superior Courts of Most democratic countries have already banned such use.


2) People have right under Art 21 to live a life of Dignity. You cannot live a life of Dignity without free and fair elections.


3) Election Commission is a Govt body and hence if it acts arbitrarily it violates Art.14.


If Election Commission does not ADMIT that machines are capable of manipulation, it acts arbitrarily and its Decision Process is vitiated. The Decision is Liable to be struck down on ground that the important components are kept out from decision making process.


The Court can strike down such arbitrary policy and decisions of EC.

EC must first of all ADMIT that EVMs can be manipulated... Only thereafter it should further satisfy courts about what steps are taken by it to prevent manipulations.


4) New Machines are ordered by EC, where a paper slip will come out with EVM voting which will be then deposited in a box. This is being done to meet an argument in court that in present machines, voters only see a red light and are not able to see to whom his vote has gone. When this new paper slip will machine will come, a voter will get a slip. But if he is allowed to walk away with slip, he can sell slip for Rs. 1000/-. So slip will be taken away from him before he leaves polling booth!


What is the use? Paper Slip will show that voter has casted vote for "Party A", but calculator software will add vote to "Party B"!


The Computers are programmable. No use for such meaningless paper slips.


5)Apart from Rights of People, there are Rights of Other Contesting Candidates to be considered. Where will they appeal for a re-count? How can it be done on same manipulated EVM machines?


CONCLUSION


Original method of ballot paper voting and counting in presence of representatives of Candidates, is still the best method as recognized by US, UK, Germany etc countries.

Will our Courts take call and ban EVM machines which are already banned in other countries?


We have to see. Laws of other countries not applicable to India.


Our courts and our democracy are passing through a process.


I hope Dr. Swamy and his supporters succeed in their efforts to liberate country from Manipulative EVM machines.


Haresh Raichura

20/8/2012