C S Rex Sargunam
THE universal immunisation programme (UIP) has been a health shield for 2.6 crore children born in India every year. In the first year of life, children are given BCG, Oral Polio Vaccine (OPV), DPT (Diphtheria, Pertussis and Tetanus) and Measles vaccines. As a part of National Immunisation Schedule (NIS), pregnant mothers are given Tetanus Toxoid (TT) and children are given DPT and OPV at one and a half and four and a half years and TT at ten and fifteen years. Because of this our children are completely free from deadly infectious diseases like Polio, a crippler, Diphtheria, Whooping Cough and Tetanus. They have also been drastically reduced in mothers after delivery and in new borns. BCG has almost completely eliminated TB meningitis (Brain TB) and controlled TB in children.
BCG Vaccine Lab (BCGVL), Guindy, Pasteur Institute of India (PII), Coonoor and Central Research Institute (CRI), Kausali, are public sectors units that were meeting the immunisation needs of our children. The entire requirement of BCG in our country was supplied by BCGVL to government of India, free of cost. BCG is also being exported to developing countries. PII and CRI were supplying more than 60 per cent of requirement of DPT, TT and DT (Diphtheria and Tetanus Vaccine) to government of India at a very subsidised price.
Now the government of India is completely scuttling UIP and NIS. The Health minister, Anbumani Ramadoss’s reply in the parliament on February 18, 2009 and subsequent order dated March 12, 2009 has confirmed the Health ministry’s decision of January 15, 2008 to suspend the licenses of BCGVL, PII and CRI and stop the production of the essential vaccines. The ‘Save Children Movement’ consisting of an umbrella of organisations formed at the initiation of Tamilnadu Health Development Association (TNHDA) has been campaigning against this dangerous decision through pamphlets, posters, signature campaign, human chains and giving memorandum to the prime minister and the chief minister of Tamilnadu and so on. The Tamilnadu state committee of CPI(M) held a convention on this issue which was addressed by the Doctors from this movement apart from the leaders of the Party in 2008.
A special convention “Save UIP” was held on March 14, 2009 in Chennai that was attended by people from various walks of life and addressed by eminent doctors Professor Jacob John, virologist and vaccinologist, Professor R Prabhakar, former director, TRC, Dr P Chandra, social pediatrician, Viswanathan, FMRAI and members of parliament T K Rangarajan, CPI(M) and K Malaichamy (AIADMK).
A resolution was passed unanimously to restore the production of BCG, DPT, DT and TT in BCGVL, PII and CRI and upgrade them to comply with WHO’s good manufacturing practices and to also include production of Polio and Measles vaccines in the three public sector units.
The crux of the whole issue is that all our children were fully immunised by the government because of the contribution made by these three PSUs. Since the government has stopped this and privatised the vaccine production, there is a danger of a come back of vaccine preventable diseases as nearly 80 per cent of population’s per capita income is Rs 20 a day and they cannot afford immunisation through private sources. A PIL is under the consideration of apex court on this issue. A united and mighty struggle by the people would reverse this scenario and as Manmohan Singh’s government is inimical to our children, people should vote it out in the coming parliamentary general election to save our children and their future.
Subba is Assam’s richest poll candidate
April 6th, 2009 – 11:27 am ICT by IANS
Tezpur (Assam), April 6 (IANS) Moni Kumar Subba, controversial Congress party MP and nominee for the Tezpur parliamentary seat in Assam, is undoubtedly the richest candidate in the state with cash, assets and investments worth more than Rs.600 million (Rs.60 crore).Subba, fighting to retain the Tezpur seat in northern Assam for the fourth straight term, is also insured for a whopping Rs.1 billion.
In his affidavit accompanying his nomination paper, Subba declared investments, including bank balance and cash in hand at about Rs.560 million, more than 95 percent of which are investments in the share market.
Subba and his two wives, Jyoti Limboo and Tilmaya Chong, together possess gold and diamond jewellery worth about Rs.18.5 million.
The 51-year-old Subba also possesses land and flats in various parts of India worth about Rs.35 million.
“I am sure to win the polls as people of my constituency love me a lot for the work I did for the overall development of the area,” Subba told IANS. “I am the last person to buy votes with money.”
Subba, however, is mired in a blazing controversy with the Central Bureau Investigation (CBI) currently probing a case relating to the lawmaker’s citizenship.
The CBI was investigating the case following a public interest litigation (PIL) filed by Birendra Nath Singh, a resident of Noida (Uttar Pradesh), who alleged Subba was a Nepalese citizen and was a murder convict in Nepal.
During the 12th Lok Sabha elections, Subba in his nomination papers recorded his place of birth as Tezpur, Assam, his date of birth being March 16, 1951.
But his dossier during the 14th Lok Sabha Subba shows his place of birth as Dabgram (Darjeeling) in West Bengal, and the date of birth as March 16, 1958.
The discrepancies in his date of birth and place of birth while filing his nominations are issues that have created doubts over Subba’s antecedents.
“All these things are already corrected and there are no anomalies in my records. I am born at Dabgram in 1958 and have been staying in Assam since 1962 after my father shifted to the state,” Subba said.
There are reports in the media that alleged Subba alias Mani Raj Limbo was a murder convict in Nepal and he was imprisoned from 1971 to 1973 before he escaped to India.
“Mani Raj Limbo is still alive and in Nepal. The Supreme Court of Nepal in its verdict said Limbo was in jail in Nepal till 1982. So how can Limbo and Subba be the same person…these are all stories concocted by the media,” Subba said.
“If I am Limbo then the Nepal government would have easily arrested me by taking the help of the Indian government,” he added.
The Congress leader said the controversy over his nationality always resurfaces before general elections.
“I don’t want controversies but people inimical to me try and drag me into them although these things are indirectly helping me win election after election,” Subba said.
“If I am a Nepali citizen then why would have the people of Tezpur, who are culturally and intellectually rich, vote me to power for three consecutive terms already?” he asked.
Hafiz Saeed, three others challenge detention in High Court
Lahore, Apr 5 (PTI) LeT founder Hafiz Saeed, who was put under house arrest by Pakistan government after his outfit was blamed for the Mumbai attacks, has challenged his detention in the Lahore High Court, along with three of his associates.A petition filed by Saeed and his aides Amir Hamza, Col (retired) Nazir Ahmed and Mufti Abdur Rehman in the Lahore High Court said they should be produced before the court so that it could see that they had been detained unlawfully.On March 9, a judicial review board of the High Court had extended by two months the house arrest of Saeed and his three aides.Saeed is the chief of the banned Jamaat-ud-Dawaah, which is a front organisation for the Lashkar-e-Toiba.All four men had been detained by Pakistani authorities in the wake of last year’s terror attacks in Mumbai. The house arrest of the four men was extended on the request of the home department of Punjab province.A K Dogar, the counsel for the four JuD leaders, told the court last week that Saeed was earlier detained by the government of former President Pervez Musharraf but was released by the Lahore High Court, which observed that there was no allegation on record against him or his organisation.Dogar said High Court had also observed that the Jamaat-ud-Dawah had never been involved in terrorist activity in Pakistan and no FIR had been registered against it or any of the persons under house arrest. PTI
Disabled moves court for certificate
Posted: Apr 06, 2009 at 0319 hrs IST
Mumbai A physically-challenged person has moved the Bombay High Court, seeking directives for availing himself of a disability certificate.
Petitioner Rahul Girredy, who was born in 1990 with a deep cleft palate and bilateral lip, had undergone six surgeries at different stages of his life. In the light of the surgical procedures performed on him over the years, his medical status says he has an inherent deformity and a speech disability, leading to limitations in his capacity.
Girredy had approached the Commissioner of Disabilities in August 2008, for directing the appropriate authorities to provide him with a disability certificate. However, the Disability Commissioner, through a letter dated September 9, 2008, directed Girredy to approach the medical officer concerned with the required medical certificate for obtaining the disability certificate.
The petitioner’s father, accordingly, wrote to the Director and Chief Medical Officer of Sion Hospital, requesting him to issue the disability certificate.Girredy approached the High Court since there was no progress in the matter.
The papers issued by the head of ENT of Grant Medical College and JJ Hospital implicitly stated that the petitioner is suffering from a disability owing to inherent deformity and they put the disability in communication at 35 per cent.
Girredy also states that he cannot even perform preliminary functions like breathing, eating, consumption of liquids and speech properly owing to the disability.
He has now sought directives for availing himself of a certificate and also a temporary certificate till the pending of the petition.
“After the hearing, the state had sought time from a division bench headed by the Chief Justice to reply in the case. It will come up for hearing on Monday,” said assistant government pleader G W Mattos.
According to petitioner’s lawyer Jamshed Mistry, so many things like getting a job and other reservations and benefits for a handicapped person becomes easier with the possession of a disability certificate.
Lawyers to abstain from court on April 9
6 Apr 2009, 0440 hrs IST, TNN
CHENNAI: Advocates will stay away from courts in Tamil Nadu on April 9 to protest against the delay on the part of the state government in suspending two police officers held responsible by the Madras high court for police excesses in the court premises on February 19 last. The joint action committee of the lawyers’ bodies resolved on Sunday to abstain from work on April 9, as the state government had not suspended the officers concerned then joint commissioner (north) M Ramasubramani and assistant commissioner of police A K Viswanathan despite a high court order. The two officers concerned have approached the Supreme Court against the high court verdict, but have not obtained any interim stay. “No action has been initiated by the state government. The JAC met here today and resolved to abstain from courts all over the state and in Puducherry,” S Prabakaran, president, Tamil Nadu Advocates’ Association and R C Paul Kanagaraj, president, Madras High Court Advocates’ Association said. Both are members of the joint action committee. Dharnas would be held near all district courts and other court premises in the state. The lawyers also demanded that the CBI expedite its investigation into the February 19 incidents. They also requested the high court to initiate suo motu contempt against the erring police officers in connection with the incident.
HC rejects bail plea of rape accused
Monday, April 6, 2009 3:39 IST
Mumbai: Bombay High Court on Saturday rejected the bail application filed by Purshottam Borate, 26, the driver accused of raping and murdering a Wipro call centre employee in Pune on November 1, 2007.
On Saturday, additional public prosecutor Swapnil Pednekar submitted a chart of events that took place before and after the murder of 22-year-old Jyoti Chaudhry. Chaudhry was allegedly raped and then the accused slashed her veins, strangulated her with a dupatta and smashed her head with a stone.
Borate and another man working for a logistics company that supplied vehicles to Spectramind, the call centre, were arrested by the police on November 3, 2007. Borate had sought bail on the grounds that the post-mortem reports indicated that there was no rape and he was falsely implicated in the case.
Justice VM Kanade, however, concluded that there was enough evidence against Borate as Chaudhry’s belongings – gold ornaments, wrist watch and mobile phone – were recovered from him.
HC tells Mauritius firm to pay capital gains tax
ENS Economic Bureau Posted: Apr 06, 2009 at 0029 hrs IST
Mumbai: The Bombay High Court has disposed of a writ petition filed by E*Trade Mauritius Limited and directed that the tax amount deposited with it earlier should be released to the Tax Department. The capital gains tax of Rs 24.5 crore was paid on the consideration received by E*Trade Mauritius from another Mauritian company on sale of shares of an Indian company.
E*Trade Mauritius is a limited company formed under the laws of Mauritius and is a subsidiary of E*Trade Financial Corporation (E*Trade US). E*Trade Mauritius sold shares of IL&FS Investmart Limited (IL&FS) to HSBC Violet Investments (Mauritius) Limited (HSBC Mauritius). After the transaction, E*Trade Mauritius filed a writ petition before the Bombay High Court challenging a withholding tax certificate issued by the Tax Department to pay capital gain tax on the consideration.
The HC had directed the matter back to the Tax Department for revision proceedings. Further, until disposal of the matter by the Tax authorities, the High Court directed HSBC Mauritius to deposit an amount of Rs 24.5 crore, being the tax amount, with the HC.
The court held that the tax amount set aside under its earlier order be released to the Tax Department and the balance, of Rs 20 lakh should be released to E*Trade Mauritius. The court has directed HSBC Mauritius to issue a Tax Deducted at Source (TDS) Certificate to E*Trade Mauritius to the extent of tax amount released to the Tax Department.
“It appears that the Tax Department had concluded that E*Trade Mauritius was a shell company which acquired funds from E*Trade US for purchase of shares of IL&FS. Further the ownership of shares of IL&FS rested with E*Trade US and accordingly, the actual gains had accrued to E*Trade US,” KPMG said.
HC to rescue of ex-armyman
6 Apr 2009, 0327 hrs IST, TNN
NEW DELHI: Coming to the rescue of a former armyman who was left disabled after a road accident, the Delhi High Court enhanced his compensation to Rs 4,20,000 from Rs 31,000 awarded by a tribunal. Allowing a petition for enhancement of compensation filed by Sher Singh, a hawaldar in army at the time of the accident, Justice J R Midha said, “The award is enhanced from Rs 31,000 to Rs 4,20,000 along with interest at 7.5% per annum.” On February 28, 1999, Sher Singh and his son were going in a cycle rickshaw when a speeding jeep came from opposite direction and hit the rickshaw resulting in serious injuries to Singh. The court directed Naresh Kumar, owner of the vehicle, to deposit the enhanced amount with interest with the Motor Accident Claim Tribunal (MACT) within a month. Justice Midha directed the tribunal to release 30% of the total amount to the victim immediately and rest would remain as the fixed deposit for ten years. As per the medical records, Singh suffered permanent disability of 25% in the left limb. Singh claimed that due to the disability, he was denied promotion and had to retire from the service in army after he was found unfit for the job.
26/11 mastermind moves Lahore HC against detention
5 Apr 2009, 1505 hrs IST, IANS
ISLAMABAD: Chief of the banned Lashkar-e-Taiba (LeT) militant outfit Hafiz Mohammed Saeed, who is the alleged mastermind of the Mumbai terror attacks, has moved the Lahore High Court challenging his detention. Saeed, who now heads the outlawed Jamaat-ud-Dawa (JuD) which is the frontal charity organisation of the LeT, has said he was being detained unlawfully, according to The News. Three other JuD leaders, Col. (retd) Nazeer Ahmed, Mufti Abdul Rehman and Ameer Hamza, have also challenged their arrest. Saeed, Hamza, Ahmed and Rehman were placed under house arrest since Dec 12 last year. Saeed’s name figures in the list of terrorists India accuses of orchestrating the November 2008 terror attacks on Mumbai. At least 170 people were killed in the carnage. The petitioner’s counsel submitted that there was no allegation on record against Saeed or his organisation. The counsel said the JuD had never been involved in any terrorist activity in Pakistan and no FIR had ever been registered against it or any of the persons under arrest. He said the JuD was an independent organisation which had no connection with the LeT.
HC rejects bail plea of rape accused
By admin on April 5th, 2009
MUMBAI: The Bombay high court on Friday rejected the bail of a 17-year-old boy accused of raping his eight-year-old cousin at Hanuman Nagar inKandivli (E).
Earlier this week, TOI had reported that two of the boy’s relatives had thrashed the victim’s parents and aunt. The boy was out on interim bail then, which the victim’s family had opposed in court. After the attack, the victim’s father and aunt were hospitalised but the Samata Nagar police registered only a non-cognisable offence and not an FIR.
On Friday , the court took the incident into consideration and ordered that the boy be sent to an observation home for at least three months after which he could apply for bail.
The victim, Sujata Kadam, was severely traumatised after she was raped in December 2008 and had been undergoing counselling. On February 24 this year, the boy got interim bail from the HC and was back in the neighbourhood.
“When we opposed his interim bail, we were threatened with dire consequences by his relatives,” Sujata’s father, Somnath, said. On March 27, two of the boy’s relatives beat up Somnath near his residence. They also barged into his house and bashed up his wife and sister. “My sister’s hearing has been affected after the attack,” Somnath said.
While he was at the police station, a dozen men stormed into Somnath’s house the same day and threatened his family to keep mum. Somnath’s brother dialled the police control room and narrated the incident.
“Two non-cognisable complaints were lodged on March 27. We informed the court about both of them,” Somnath’s lawyer Dattatreya Mane said. “The court cancelled the interim bail and ordered that he be sent to an observation home. After three months, the court will decide whether he should be granted bail or not.” (Victims’ names have been changed to protect identities)
Muslims upset with SC over beard issue
5 Apr 2009, 2305 hrs IST, TNN
MANGALORE: The Students Islamic Organisation of India (SIOI) has termed the Supreme Court’s remark on beard as disappointing and against the secular fabric of the country. A press release from Suhail K K, president of SIOI, here stated Justice Markandeya Katju did not even bother to verify the fact that Muslims sporting a beard has nothing to do with the Taliban, but with practicing Islam. Stating that the right to sport a beard is one’s fundamental right according to Article 25 of Indian Constitution to freely profess, practice, and propagate his religion, it is as per this provision that the Sikhs in India are allowed to sport a beard, wear turban, and even carry a knife. The court is bound to explain how beards sported by Sikhs, and a Communist is different from that of a beard sported by a Muslim. The decision has raised the hackles of the Muslims, who are voicing their concern over the internet.
Sunil Jain: New-age yoga gurus at the TDSAT
TDSAT’s dual-technology judgement makes you want to do be a lawyer to challenge it in the Supreme Court
Sunil Jain / New Delhi April 6, 2009, 0:23 IST
It’s not too often that you want to change your profession, but the Telecom Dispute Settlement & Appellate Tribunal’s (TDSAT) latest judgement in the dual-technology case makes you want to do just that — to become a lawyer, to challenge this in the Supreme Court (unlike newspaper articles, the government has to take the Court seriously), to rip it to shreds. Not just because the judgement stands facts on their heads (sheershasan, in yoga parlance), or that it performs several other yogic-contortions, but because it’s full of contradictions.
Take a look at some of the main issues the judgement deals with/pronounces upon:
· The existing GSM-mobile players like Bharti/Vodafone, the TDSAT says, don’t have an automatic right to get more than 6.2 MHz of spectrum — many have got around 9-10Mhz.
· The decision to not put a cap on the number of telcos, it adds, was a bad idea given that existing mobile phone firms have less spectrum than their global counterparts — this contradicts the earlier one, but never mind.
· The TRAI’s decision to jack up the subscriber requirements for extra spectrum allotments was arbitrary.
· BSNL/MTNL were unfairly given extra spectrum that should be taken back.
Some of these decisions, like the second and the third one, it is true, were based on recommendations by the Telecom Regulatory Authority of India (TRAI) but not everything the TRAI recommends becomes law — indeed, one of the key issues in this case was that the Department of Telecommunications (DoT) accepted only those TRAI recommendations that suited it. So, the DoT is as much to blame; Decisions 1 and 4, in any case, have only to do with the DoT. Yet, the TDSAT is quick to criticise the TRAI but says precious little about the DoT. Perhaps the fact that two of the TDSAT members have served with the DoT ensured this?
Even more shocking, is the manner in which the DoT is let off the hook for its blatant favouritism. It set a deadline for receiving applications (October 1, 2007), but processed only those that came before September 25 (the date on which it announced the deadline!); it announced the policy of ‘dual-technology’ a day after it approved Reliance Communications’ application (made on 6/2/06 when there was no policy of ‘dual technology’!) and a few hours after Reliance paid the money (the date/time of payment determined who was first in the queue for scarce spectrum!). Yet, the TDSAT ignores all this; it ignores the DoT’s refusal to auction the spectrum which is what the law demands; that it chose to give the spectrum at the same price discovered through an auction way back in 2001 — this, the subsequent sale of part of their equity by some of the favoured few showed, caused a loss to the exchequer of at least $10 billion. The TDSAT disingenuously describes this as ‘early completion of formalities’ and says this ‘is not a matter that would require intervention at our level’!
There are then the contortions that would make any yoga guru feel envious. The crux of the case is whether dual-technology is old or new — ‘dual technology’ is what allows a CDMA-mobile phone firm like Reliance/Tata Teleservices to get, on its existing licence, GSM spectrum in addition to the CDMA-spectrum it already has; if it is new, Reliance’s application of 2006 is null and void. The TDSAT interpreted the licence and the New Telecom Policy of 1999 in a manner no one has so far, that ‘dual technology’ is the same as the ‘technology neutrality’ that is allowed — ‘technology neutrality’, on the other hand, just means a company is free to offer either CDMA- or GSM-based services. The TDSAT’s interpretation is gobbledegook, but if dual-technology was always allowed, why did the DoT ask the TRAI for recommendations on this on 13/4/07? According to the TDSAT, “It appears to us that there was avoidable confusion in this regard”. And what is the confusion? The TDSAT avers all the DoT ever wanted was a recommendation on the ‘need and timing’ for getting in new players. But “the confusion has been created by TRAI”. Even a perfunctory reading of the DoT’s letter makes it clear this is not correct, but even if it is, why did the DoT, on 19/10/07, notify that it was now coming up with a dual-technology policy? Surely this means the policy was a new one?
Finally, the TDSAT judgement changes the entire balance of power between the TRAI and the DoT. For one, it makes it clear the TRAI is irrelevant — each instance of the government ignoring the TRAI (on charging firms like Reliance and Tata more since they had extra spectrum, for instance) is dismissed by the TDSAT as being okay. Even more amazing is the TDSAT’s gratuitous comments on how it hopes the DoT will write up the merger and acquisition (M&A) rules keeping in mind the need for more spectrum — while the current guidelines prohibit M&A involving the new licencees till they meet their rollout obligations, the TDSAT hints the DoT relook these norms. This will allow the favoured few who got dirt-cheap licences, who have no intention of setting up networks, to sell their companies at a fancy price.
Ideally, the TRAI should contest the judgement since it has been singled out for punishment, and its powers whittled away to non-existence, but this won’t happen. The next TRAI chief will be chosen by the government and the last thing it wants is that its game be exposed. In which case, shavasan (lying like a corpse) is the TRAI’s best bet.
Legal aid and speedy justice: A step forward
by Justice Pritam Pal
05 April, 2009
THE Supreme Court has reminded us several times through landmark judgements that speedy trail and free legal aid to the needy are fundamental rights of an accused who cannot be subject to hardship by delay in proceedings. Most liberal democracies consider it necessary to provide legal aid to those unable to afford legal representation. Failure to do so would deprive them of access to the court system.This would also violate the principles of equality before the law and due process under the rule of law. The concept, however, finds its traces in Rig Veda and the social system of ancient India having operated along the principles of “Dharma”.The Legal Service Authorities Act, 1987, is aimed at ensuring equal opportunities for procuring justice irrespective of the weak or economic conditions and social deprivation of the litigants. The committee for implementing legal aid schemes is actively working to catalyse the efforts of the state schemes or statues, and to bring about the desirable uniformity in their programmes and provisions.Legal aid implies giving free legal services to those who cannot engage a lawyer in any court, tribunal or authority. It is the state’s duty to ensure that the legal system promotes justice on the basis of equal opportunity for all its citizens. It must, therefore, arrange to provide free legal paid to those who cannot access justice due to economic and other disabilities.Article 39A of the Constitution states that if the accused does not have sufficient means to engage a lawyer, the court must provide one for the defense of the accused at the state’s expense. Section 304 of the Criminal Procedure Code casts the constitutional duty to provide legal aid arises from the time the accused is produced before the magistrate for the first time and continues whenever he is produced for remand.In Suk Das vs Union Terrotory of Arunachal Pradesh (1986) 2 SCC 401, the Supreme Court held that the police must inform the nearest Legal Aid Committee about a person’s arrest. The magistrates and sessions judges must inform every accused who appears before them and who is not represented by a lawyer on account of his poverty that he is entitled to free legal services at the state’s cost. Failure to provide legal aid to an indigent accused, unless it was refused, would vitiate the trial. It might even result in setting aside a conviction and sentence.The trial should not be delayed so much as to cause grievance to the victim and add to his agony. The right to speedy trial has been implicitly read in Article 21. The Supreme Court in Hussainara Khatoon’s case held that any accused who has been denied this right, the state is under a constitutional mandate to take all necessary measures for securing this right to the accused.Thus, the letter of law recognises the right of an accused to speedy trial, but the problem is how to make it a reality. The test of a good law is that it must be able to achieve its goals, that is, the dispensation of justice to the individual and society.The apex court has decried administrative and judicial indolence in several of its decisions. Justice V.R. Krishna Iyer once remarked in a judgement: “Our justice system, even in grave cases, suffers from a low motion syndrome which is lethal to “fair trial” whatever the ultimate decision. Speedy justice is a component of social justice since the community, as a whole, is concerned in the criminal being condignly and finally punished within a reasonable time and the innocent being absolved from the inordinate ordeal of criminal proceedings”.The Supreme Court ruled that to put a man in prison and forget his personhood thereafter, to deprive a man of his personal liberty for an arbitrary period without monitoring by law, to keep a man in continued custody unmindful of just, fair and reasonable procedure would shake in the rule of law and is totally against the mandates of Part III of the Constitution. The trial should be disposed of expeditiously for which the government has taken adequate steps.Lok Adalats are result of one such initiative. Its objective, as enunciated in the statute, is to promote “a compromise or settlement between the parties” and deliver justice with “utmost expedition” treading on the path of legal principles and the principles of justice, equality and fair play.These are judicial bodies set up for the purpose of facilitating peaceful resolution of disputes between the litigating parties. They have the powers of an ordinary civil court, like summoning, examining evidence etc. Its orders are like those by the court, but the parties cannot appeal against them.Lok Adalats can resolve all matters except criminal cases that are non-compoundable. Either one or both parties to litigation can make an application to the court for transferring the case to a Lok Adalat. Where no compromise or settlement is made, the case is transferred to the court which deals with the litigation from the stage the Lok Adalat had reached.The Legal Services Authorities Act makes an effort for a countrywide legal aid movement. It broadens the ambit and umbrella of legal aid and seeks to encourage community participation in the legal aid services. This establishment is a signal to a bright future and a giant step forward in the march towards the rule of law.
The writer is Judge, Punjab and Haryana High Court, Chandigarh
Women counsel sought for rape cases http://www.tribuneindia.com/2009/20090406/punjab.htm#16
Attar SinghTribune News Service
Patiala, April 5The Punjab Academy of Forensic Medicine and Toxicology (PAFMAT), state body of forensic medicine doctors and medico-legal consultants, said like women judges, women police officers and women doctors, public prosecutors and defence lawyers must be women lawyers in trial of rape cases in courts must also be female advocates.
Dr Bhullar, PAFMAT, president, said the Union Cabinet recently approved some changes in the Criminal Procedure Code relating to sexual assault cases directing the police to complete probe in three months and file chargesheet and the trial of rape cases be supervised by a woman judge. If a woman judge is not available, the case be transferred to another court. Also rape victim will not be asked to come to the police station to record statement and the woman police officer will go to the victim’s s house. If the victim is a minor, the statement will be recorded in the presence of at least two women family members.
The Punjab and Haryana High Court had in 2002 directed the governments of Punjab, Haryana and the Chandigarh administration not assign men doctors to conduct medico-legal examination of rape victims. This was held by the Supreme Court in the state of Punjab versus Gurmit Singh case of 1976.
Following this, the Punjab State Women Commission directed the state Health Department when a victim was produced before for medico-legal examination that she be examined only by women doctors or under the supervision of women registered medical practioners.
Dr Bhullar said despite administrative and legal instructions mentioned above, there were no guidelines that the trial of rape cases should allow only women public prosecutors and women defence lawyers to try these cases. It was believed that women doctors in government hospitals hesitate to give candid medical opinion in rape fearing appearing as prosecution witness and then being subjected to embarrassing cross-examination in courts. Hence, there was an urgent need of guidelines in respect of women lawyers who were easily available in courts in the country.
Groundwater MisuseNotification delay defeats purpose of law http://www.tribuneindia.com/2009/20090406/himachal.htm#4
Rakesh LohumiTribune News Service
Shimla, April 5Groundwater resources in some highly stressed areas are being overexploited even after the enactment of the Himachal Pradesh Groundwater (Regulation and Control of Development and Management) Act because of the failure of the government to notify such areas.
Last year, a study was conducted to ascertain the existing status of groundwater availability. It revealed that percentage of groundwater utilisation exceeded 90 per cent in 15 out of total 55 micro-watersheds covered.
As per safe exploitation norms, the “drawl” of groundwater has to be less than 90 per cent. The stressed watersheds mostly comprised the industrial areas of Solan, Sirmaur, Una and Kangra districts.
The biggest industrial hub of the state in Baddi and adjoining areas of Majra-Lehi, Sandholi, Haripur, Chhoti Bhatoli, Gularwala, Narangpur and Kondhi, which fell under Ratta watershed, were among the severely stressed.
Similarly, Bhadarwala, Kala Amb, Khairi, Jattnwala, Ogli and Johron areas in Kala Amb watershed were also overexploited.
The maximum number (10) of overexploited watersheds is in Una district where a large number of tubewells have been installed for irrigation.
These included Garla, Amb, Busdehra, Tahliwal, Badhera, Bhadsali, Nagnoli, Badoh, Ambota and Una. In Kangra, excessive groundwater “drawl” was observed in Lodhwan and Chhounchh watersheds.
The first meeting of the state groundwater authority was held in August last year. The members were of the view that merely notifying overstressed 15 micro-watersheds would not serve any purpose as the other areas where excessive groundwater exploitation was being resorted to would remain unchecked.
Control measures to regulate extraction of groundwater should come into force as soon as the level of exploitation reaches around 70 per cent.
The authority advised that groundwater extraction should be regulated in thevalley areas of Una, Solan, Sirmaur and Kangra, where most of the industrialactivity was taking place.
Accordingly, it was proposed that civil subdivisions of Paonta, Nahan, Nalagarh, Solan, Una, Amb, Jwali and Nurpur be notified for the purpose of the said Act. However, no progress has been made in the matter.
Engineer-in-Chief of the Irrigation and Public Health Department RN Sharma said the proposal had been sent to the government.
Once the stressed areas are notified, the provisions of the Himachal PradeshGroundwater (Regulation and Control of Development and Management) Act willbecome applicable.
It will be mandatory to seek prior permission of the authority for extraction of groundwater. The authority will take a decision after examining each case on the basis of the status of groundwater exploitation in the area concerned and the use. Extraction of water for drinking purposes will get top priority in the matter.
Prez for alternatives to reduce burden on judiciary http://www.tribuneindia.com/2009/20090406/nation.htm#10
Bijay Sankar BoraTribune News Service
Guwahati, April 5President Pratibha Devisingh Patil yesterday highlighted the need for banking on suitable alternative dispute settlement mechanisms whenever feasible to reduce the pressure on the overburdened judiciary in the country.
Referring to the rich tradition of customary law and practice prevalent especially in the hill regions of Northeast, the President said: “In the hill regions here, a conciliatory rather than an adversarial approach is adopted in the settlement of disputes. Such successful models and experiences hold an example for the country.”
“They should inspire confidence in the alternate dispute mechanisms in the country, whether it is mediation or conciliation or arbitration. These options can be swift and cost-effective which, at the same time, reduce pressure on the already overburdened normal judiciary structure,” she said, addressing the celebratory function of the closing ceremony of the golden jubilee celebration of the Gauhati High Court here.
Addressing the concluding function of Diamond Jubilee celebrations of Gauhati High Court, which was attended by a host of dignitaries, Patil advocated for innovations for clearing backlog of cases and cooperative efforts at all levels of the judiciary.
The President stated that there was need for making justice more assessable for the weaker sections of society and urged lawyers to come forward to help the National Legal Services Authority, which along with civil society groups, has undertaken efforts to establish a national network of legal aid centers. She lauded the glorious contributions of the Gauhati High Court which faces an onerous task of addressing seven Northeastern states that are characterized by varied geography, culture, tradition and social practices besides diversity in population pattern.
Kasab’s trial put off by a week
Mumbai, April 5The trial of lone surviving gunman in the Mumbai terror attack case, Mohammed Amir Ajmal Kasab, scheduled to begin in the premises of Arthur Road central jail tomorrow, has been put off by a week as the construction of the special court is not yet over. “The construction of court’s slab is still on and the work is expected to be completed in six to seven days,” special public prosecutor Ujjwal Nikam told. The Public Works Department has informed the jail authorities that the work is going in full swing since last month and the construction would be completed soon. Only then will they be able to hand over the court premises to the jail authorities. According to prosecutor Nikam, Kasab and two others would be produced before the sessions court tomorrow through video conference facility.
This court is now in South Mumbai and would shift to Arthur Road jail after the construction of the new court is over. — PTI
Decriminalisation of politicsHow apex court directives help the cause
by Virendra Kumar
A three-judge Bench of the Supreme Court, led by Chief Justice K.G. Balakrishnan and comprising Justice P. Sathasivam and Justice R.M. Lodha, in its order of March 31, 2009, has once again shown its firm resolve to cleanse our electoral system by banishing persons with criminal proclivities. In a criminal appeal in the case of Sanjay Dutt vs. State of Maharashtra Tr. CBI, Bombay, before the apex court was the petitioner who was earlier found guilty in the Bombay blast case of offences punishable under the Arms Act for possessing an AK-56 rifle, a deadly weapon of mass destruction, and was sentenced to six years rigorous imprisonment. He filed appeal against his conviction and sentence and that appeal is still pending consideration before the Supreme Court.
Under Section 389 of the Code of Criminal Procedure, the petitioner pleaded before the apex court that the execution of the order of conviction and sentence be suspended, pending final hearing of the appeal. His principle plea on this count was that “he belongs to a family which has been in long public service in the country,” and that he is “now desirous of contesting election to the House of People.” Since the conviction and sentence pending the appeal constitute disqualification from contesting the election, the petitioner pleaded that the same may be suspended enabling him to contest the forthcoming Lok Sabha elections.
This plea was reinforced by pointing out “that the petitioner has got fair chance of appeal filed by him being allowed and, if the conviction and sentence is not suspended, he would be seriously prejudiced.” However, this reasoning can be counteracted with equal vehemence, or perhaps even more, by arguing that if the appeal failed or did not succeed eventually, any suspension of disqualification might cause an irreparable loss to the whole social order by making criminalisation of politics more entrenched.
Although the Supreme Court Bench has not said so specifically, and yet this argument is implicit in its order when it stated: “In view of the serious offence for which he (the petitioner/ appellant) has been convicted by the Special Judge, we are not inclined to suspend the conviction and sentence awarded by the Special Judge in the present case.” This clear and categorical denial of suspension, irrespective of the popular image of the petitioner, has been hailed as “an excellent order” by one of our most eminent jurists, Soli Sorabji (The Tribune, April 1, 2009), for it gives effect to Section 8(3) of the Representation of People Act, 1951, which expressly disqualifies a person sentenced to two or more years of imprisonment from contesting the election and that such disqualification will continue for a further period of six years since his release. “Any other order would have given a wrong signal,” said Mr Sorabji.
Realising the reluctance of the legislature to shun criminals owing to its own vested interests, the apex court has all along played a very critical role in the process of de-criminalisation of politics. We may recall, for instance, it was the Supreme Court that compelled the Central Government to make public its very damaging and revealing report, namely, the Vohra Committee Report, by observing in Dinesh Trivedi, M.P. case (1997) that “democracy expects openness and openness is concomitant of a free society, and the sunlight is a best disinfectant.” This report gives a shrieking account of how, in what manner, and to what extent our political system has been polluted by allowing persons with dubious distinctions to be elected.
Since there was no effective law for preventing the undesirable persons to become legislators, the apex court in Association for Democratic Reforms (2002) issued directions to the Election Commission to fill the void by requiring the prospective candidate to provide information while filing his nomination papers on certain specified counts. These counts were whether he is convicted/acquitted/ discharged of any criminal offence in the past, if any, whether he is punished with imprisonment or fine, whether prior to six months of filing of nomination, he is accused in any pending case, of any offence punishable with imprisonment for two years or more, and in which the charge is framed or cognisance is taken by the court of law and, if so, the details thereof; the details about his assets (immovable, movable, bank balance, etc.) and of his spouse and dependants, etc.
The government instantly reacted to this initiative of the Supreme Court by promulgating an Ordinance, which was soon repealed and replaced by an amending Act, introducing new Sections 33-A and 33-B into the Representation of the People Act, 1951. A bare perusal of these sections reveals that only some, and not all, of the directives of the Supreme Court have been incorporated by the legislature. In fact, the judicial directives relating to acquittal or discharge in criminal offences, or amassing of assets and incurring of liabilities, etc, are clearly excluded. It is specifically stated in Section 33-B that no candidate shall be liable to disclose or furnish any such information which is not required to be disclosed or furnished under the Act or the rules made thereunder despite the directions issued by the apex court on the contrary.
This circumventing approach of the legislature was challenged before a three-judge Bench of the Supreme Court under Article 32 of the Constitution in People’s Union for Civil Liberties (PUCL) v. Union of India (2003). Section 33-B of the Act was declared unconstitutional because it unduly restricted the rights of the voters to information, which is an aspect of fundamental right to speech and expression under Article 19(1)(a) read with Article 19(2) of the Constitution. The uncovered directives of the Supreme Court relating to assets and liabilities of the candidate and also in regard to criminal cases in which a person is acquitted or discharged, the directions issued by the Supreme Court in that case will stay put, for their non-inclusion causes violation of the fundamental right guaranteed under Article 19(1)(a).
The implication of the uncovered directives of the apex court in the context of Sanjay Dutt is subtle and profound. The supply of information relating to a candidate’s criminal record (and also his assets and liabilities) may not constitute disqualification under Section 8 of the Act of 1951, but the non-supply of the same would invalidate his nomination paper. Accordingly, the Election Commission would do well, nay obliged to do so, to issue directives compelling the candidates contesting the elections to reveal their criminal antecedents. Even such a simple step would help the electors to decipher the “true colour” of their candidates and thereby assist in the process of de-criminalisation of politics!n
The writer is a former Professor and Chairman, Department of Laws and UGC Emeritus Fellow, Panjab University, Chandigarh.
Court allows plea against tribunal order
CHENNAI: The Madras High Court has allowed a petition challenging an order of the Appellate Tribunal for Forfeited Property, New Delhi, confirming the forfeiture of a house property here and Rs.12,003 from the joint account of two brothers.
In his order, Justice K. Chandru said the tribunal and the Competent Authority, T.Nagar, had not utilised their power under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act (SAFEMA) in order to impeach the claim made by the petitioner by producing the contemporaneous evidence in the form of income tax returns for the relevant year. The Judge said he could not uphold the finding of the respondents that the properties sought to be forfeited were illegally acquired.
Hameed Abdul Kader of Keezhakarai challenged the tribunal’s order of March 1999 confirming the forfeiture of a house property on Vannier Street, George Town and Rs.12,003 from the joint account in his name and that of his brother T.S.A. Omar Farook, who was a COFEPOSA detenu. The petitioner challenged the tribunal’s order on the ground that the Competent Authority when recording reasons before issuing a show cause notice should have reasons to believe that the property in the hands of a relative of the detenu must have been acquired out of the tainted funds obtained from the smuggler. Otherwise, the application of the section defining the term “illegally acquired property” would not be satisfied.
Mr.Justice Chandru said the petitioner had produced the income tax assessment for the relevant year and in the return for 1969-70, the loan received for the purchase of the property had been mentioned. That had been scrutinised by the auditor and countersigned by the Income Tax Officer. To label such a transaction as unbelievable “as the Department of Income Tax had been utilised by the appellant for creating evidence in support of his claim” as quoted by the tribunal was uncalled for in the absence of any evidence to that effect. Had the competent authority and the tribunal utilised the services of the I.T. department, there would have been no necessity to come up with such sweeping conclusions thereby casting a slur on another wing of the Central government. The entries in the I.T. returns had been made long before the show cause notice was prepared, the Judge said.
Notary certificate essential for affidavits, says Passport Officer
MADURAI: All affidavits filed by applicants seeking fresh passport should be notorised and accompanied by a notary certificate in the prescribed form, which otherwise would be rejected, said Passport Officer Jose K. Mathew.
In a press release, he said that applicants have been submitting school T.C (transfer certificates) and record sheets as proof of birth along with applications.
As per relevant rules, these documents are not admissible as proof of date of birth. Instead, an applicant can submit birth certificate issued by competent authorities (for those born on or after 26.1.1989 birth certificate are compulsory), or a school leaving certificate issued by State/Central Board of Examinations. In the event of applicants who do not have any of the above two documents, they may submit a notorised affidavit in the prescribed format.
The release said that school TCs/record sheets would not be accepted as proof of date of birth filed along with the applications.
SC verdicts hold rape victims’ word as crucial
6 Apr 2009, 0340 hrs IST, Kartikeya , TNN
MUMBAI: Going by the views of the Supreme Court on the issue, the most crucial piece of evidence in the Mira Road rape case could be the testimony the two victims give in court. The elder daughter was allegedly raped by her own father, and an astrologer called Hasmukh Rathod, for nine years. The younger daughter was allegedly raped on one occasion by Rathod. Both girls have given their statements to the police and expressed a desire to get the guilty men punished. The SC has often said that in our socio-cultural milieu, it is rare for a woman to make false allegations of rape as it also involves the question of her honour and dignity in society. “In the Indian setting, refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as a rule is adding insult to injury,” the court had said. Thus, the testimony given by the victim is treated by trial courts as a strong piece of evidence against the accused. In a 1993 case, State of Himachal Pradesh versus Raghubir Singh, the apex court had said, “Conviction can be recorded on the sole testimony of prosecutrix (victim).” Then, in State of Punjab versus Gurmit Singh, a case decided in 1996, it said, “If the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars.” Various other circumstances that favour the accused in a criminal case-such as faulty investigation by the police, lack of corroborative medical evidence or absence of independent witnesses-have also been held by the Supreme Court to be not fatal to the prosecution’s case in a rape trial. It has said judges should not get bogged down by such technicalities and look at the totality of circumstances in light of the victim’s testimony. In Hirjibhai versus State of Gujarat, it said, “Corroboration may be essential to establish a sexual offence in (the) social ecology of the western world. It is wholly unnecessary to import the concept and transplant it on the Indian soil.” Legal experts agree that the victim’s word in court can go a long way in establishing the guilt of the accused. Only last month, a trial court in Mumbai sentenced a man, Sagar Kadam, to seven years in jail on the basis of evidence given by the victim and only three other witnesses. “If the girl can narrate the incident clearly, it helps a lot in inspiring the confidence of court to punish the accused,” a prosecutor said.
75-year-old ex-govt official wins Rs 5L
6 Apr 2009, 0337 hrs IST, Smriti Singh , TNN
NEW DELHI: The decade-long struggle of a 75-year-old retired government official to get his “lost reputation” back after his seniors at the Income Tax department tried to “harass, humiliate and defame” him to settle personal scores finally paid off with a trial court directing his superiors to pay him a compensation of Rs 5 lakh as damages. Holding two Income Tax commissioners, chairman of Central Board of Direct Taxes (CBDT) and the ministry of revenue liable for defamation, Additional District Judge Arun Kumar Arya directed them to pay Rs 5,29,234 collectively. The court’s order came after the parties failed to comply with a previous order dated June 4, 2008 passed by another court, which held the chairman of CBDT and the revenue ministry “liable for the act of their subordinates”. In a defamation suit filed against all the four parties, the former I-T officer, PR Toora, alleged that even after serving the department for 22 years, he had to undergo immense humiliation by his superiors. His fault being he married off his daughter to one of the seniors in the department. After a marital discord between the two, his daughter’s father-in-law complained against him in order to settle scores. According to Toora, he became an I-T officer in 1981 by qualifying the UPSC examination. He was subjected to harassment after DB Lal, then commissioner of I-T Delhi, and W Wassan, then inspecting assistant commissioner of I-T range II, in connivance ordered for a vigilance inquiry against him despite him having a clean record. When they could not find anything, his transfer was ordered in May 1986. In 1988, a showcause notice, based on false allegations, was also issued against him. The officers went to the Central Administrative Tribunal (CAT), which dismissed the disciplinary action report. To get him out of service, the accused officials also challenged the CAT order in the Supreme Court that dismissed it in 1997. For defaming him and maligning his career, Toora demanded Rs 9 lakh as damages. Even as the defendants pleaded for more time, ADJ Arya rejected the plea saying, “The man is a senior citizen. He has contested the case for almost eight years. Keeping in view the facts and circumstances, I do not find any ground to stay the proceedings…The plea of the judgment debtors (accused) is hereby dismissed.” The court also directed that failure of the payment this time would result in attachment of the property of the judgment debtors.
Juvenile offenders treated with insensitivity
5 Apr 2009, 2305 hrs IST, TNN
BANGALORE: What was on the mind of a 13-year-old when he raised his hand against another boy? Anger, frustration or retaliation? Growing violence, impatience and intolerance among children have resulted in crimes involving minors. In the Friday incident, the issue was as trivial as two cycles running into each other and a boy allegedly raising his voice against the other’s mother. A punch in the face was enough to snuff out a life. According to Child Welfare Committee (CWC) chairperson Vasudeva Sharma, involvement of children in violent acts like fights have always been there, but, of late, it is taking ugly colours. There is increasing exposure of young minds to violence glorified in movies coupled with lack of proper counselling and guidance from parents, but most of these children are not aware of the repercussions of their violent behaviour. Even the police seem to be unaware of the provisions under Juvenile Justice Act because of which these children in conflict with law are still treated with insensitivity. “Once the child involved in crime is taken into custody, he or she should be interrogated only by special juvenile police unit officer or child welfare officer. Unfortunately, this procedure has not been strictly followed,” said Vasudev Sharma. On the contrary, policemen question them and follow their regular regime of assaulting the accused to get them to spill the beans. Children kept in observation homes are produced before the Juvenile Justice Board comprising a team of magistrate and two social workers. And, as per JJB and CWC norms, cases of children should be cleared within three months from the date of child’s arrest, but most often cases are delayed due to lack of proper records and other factors. Psychiatrist Dr H Chandrashekar says several factors contribute to the violent behaviour among children — like alcoholic parents, marital discord or single parent-related problems, exposure to violence in media and also lack of interpersonal communication between children and parents. “In the taming process, these children should not be punished. But, if the children are not controlled or guided, it may lead to depression, substance abuse and involvement in anti-social activities or in conduct disorder,” he explains.
Use of RTI good but information should be under purview
6 Apr 2009, 0548 hrs IST, TNN
Ahmedabad : It is the golden era of right to information. Earlier even simple demands of citizens for information and accountability in functioning of government functionaries would fall on deaf ears. Now, thanks to the Right to Information (RTI) Act, citizens have started demanding things beyond its purview and public authorities are still being responsive in order to redress grievances. Earlier a demand such as remove unauthorised constructions and inform me about the details when it’s done’, made in this case by Saijpur Bogha’s Maheshchandra Waghela, would have simply been trashed by Ahmedabad Municipal Corporation (AMC). However, since Waghela had made his application under RTI, not only was his demand entertained to the extent to explaining to him why it could not be done by the public information officer (PIO) of AMC, even its appellate authority ordered a site inspection and report. The Gujarat Information Commission though is not amused. As it has ruled that that Waghela’s demand for removal of unauthorised construction is not within the purview of definition of information’ given in RTI. By stating to the effect that remove unauthorised construction and furnish information’, Waghela made a demand which neither the PIO, nor the appellate authority, nor the GIC has the competence and jurisdiction to do under RTI. While adding that there is no authority under any functionary in RTI to order for removal of any unauthorised construction or encroachment, GIC said that at best Waghela could seek a copy of the notice given for removal of unauthorised construction, copy of the proceedings, file notings on the matter. GIC noted that AMC’s PIO should have simply informed Waghela that his demand does not fall under the purview of RTI. But with a view to enable public authority to take a proper and correct decision which could be legally sustained, the PIO had given some information. It also noted that the appellate authority’s ordering the PIO to verify the site and submit a report also was not necessary for the proceedings under RTI. It was though clarified before GIC that it was done with a view of redressing Waghela’s grievances and at the same time for the requirements under other laws and rules.
PIL against unaccounted money in Swiss banks
6 Apr 2009, 2207 hrs IST, TNN
ALLAHABAD: A public interest litigation (PIL) has been filed in the Allahabad High Court, requesting the court to direct the Union government to take steps to ascertain the unaccounted money deposited in Swiss banks by Indians. The PIL also prayed to ascertain the persons of Indian origin, who have deposited the money and to get back the money for discharging the liability of foreign debt and spend it for economic development. The PIL also requested the court to direct the goverrnment to disclose and publish the correspondence between Prime Minister Manmohan Singh and LK Advani, leader of Opposition LK regarding steps to get back the unaccounted money in foreign banks by Indians. The PIL has been filed by Azadi Bachao Andolan and others.
LEGALLY SPEAKING: When top leaders face threat to life, where does a commoner stand?
6 Apr 2009, 0209 hrs IST, Dhananjay Mahapatra, TNN
Nobel laureate and Myanmar’s pro-democracy leader Aung San Suu Kyi had said `fear is not the natural state of civilised people’. It’s universally accepted that fear robs a human being of his prized rights — to life, liberty and freedom of expression. Our Constitution safeguards these rights. Does one inject a sense of fear into a person’s mind by warning him about the serious threat to his life from terrorists and insurgents? Would it amount to curtailing his fundamental right if he was asked not to travel as per his wishes and needs? These questions find context in the recent letters sent by the measured and legally sound P Chidambaram, who took over as home minister after the 26/11 terror attack on Mumbai. Apart from PM Manmohan Singh, those who faced threat to life were Sonia Gandhi, Rahul Gandhi, L K Advani, Ghulam Nabi Azad, Lalu Prasad, Mulayam Singh Yadav, J Jayalalithaa, Farooq Abdullah, Pranab Mukherjee, A K Antony, N Chandrababu Naidu and and chief ministers Omar Abdullah, Narendra Modi, Mayawati, Buddhadeb Bhattacharya and Tarun Gogoi. Together, their supporters form the majority of the entire population. Hence, a concerned Chidambaram, acting on intelligence inputs, advised them to take adequate precautions, especially during campaigning. But disturbingly, the threat to life is not confined to these leaders alone. Even scientists and engineers of ISRO are on the radar of terrorist outfit Lashkar-e-Taiba. Advocate Anjali Waghmare had to be given `Z’ category security as she faced threats for agreeing to defend Ajmal Kasab, the captured terrorist in 26/11 attack. The teens fear for their limbs from Shri Ram Sene like organisations if they dare to express their love and affection in public or indulge in fun and frolic. Biharis fear the threat of violence from leaders like Raj Thackeray and their hoodlums. Police fears to enter naxal infested areas. The fear of insurgents is real in many north-eastern states, where killing, kidnapping for ransom and payment of security money is a part of life. So, does not the home minister’s bona fide security advisory to so many leaders indirectly inject fear in the minds of already scarred masses? We are sure that Chidambaram does not agree with famous Soto Zen teacher Cheri Huber’s mystical statement — “everytime we choose safety we reinforce fear”. We will believe that the prevailing ground reality must have forced the home minister to adopt the `forewarned is forearmed’ principle. But when fear grips people at large, it has a very deleterious effect on the health of the nation and its social fabric. Celebrated British philosopher Bertrand Russel had said, “Collective fear stimulates herd instinct, and tends to produce ferocity towards those who are not regarded as members of the herd.” Russel’s erudition finds reflection in the views of Dorothy Thompson, the American journalist who was expelled by Nazi Germany for her articles and book `I Saw Hitler’. She had said, “The most destructive element in human mind is fear. Fear creates aggressiveness.” Was the recent venom filled speech of Varun Gandhi, having the potential of tearing down the peace in a communally sensitive society, an expression of this aggressiveness or herd mentality? He deserves to be punished if found guilty, but it need not de-focus the government from finding a cure to the root cause — Fear. Apart from robbing us of peace of mind and safe travel, security fears have robbed us of the popular IPL tournament this year. Citizens are ready to pay the price to overcome this fear factor, but it is primarily the government which should have the will and mechanism to fight those who swear by the cult of violence and perpetrate fear. firstname.lastname@example.org
Criminal contempt case filed against Rabri Devi
6 Apr 2009, 1720 hrs IST, PTI
PATNA: A petition was filed in the Patna High Court today seeking criminal contempt proceedings against Leader of the Opposition Rabri Devi for alleged remarks ‘scandalising and lowering’ the authority of judiciary. Senior advocate Ashutosh Ranjan Pandey filed the case seeking initiation of contempt proceedings against Rabri Devi, a former chief minister who ruled the state for over seven years. Pandey in his petition charged her with with having ‘scandalised and lowered’ the authority of the judiciary in her election speech at Chapra on April 4. Tie petition is likely to come up for hearing in a day or two, Pandey claimed. An FIR was registered against the RJD chief Lalu Prasad’s wife at the Bheldi police station in Chapra late last night for alleged ‘rude and insulting’ remarks against Chief Minister Nitish Kumar and state JD(U) President Rajiv Ranjan Singh Lalan.
Bal Thackeray hits out at Kasab’s lawyer
6 Apr 2009, 1645 hrs IST, PTI
PUNE: Shiv Sena chief Bal Thackeray on Monday criticised Anjali Waghmare, appointed by the government to defend Mumbai terror attack accused Ajmal Kasab, saying it was “shameful” on her part to appear on behalf of a terrorist. He recalled a recent incident in Kolkata where the legal community “stood united and refused” to defend a Pakistani national accused of duping girls. “In Mumbai, around 200 people and 16 policemen including three top officers were killed by terrorists. The lawyers in Mumbai too should have refused to defend Kasab to assert their patriotism,” Thackeray said in an interview given to party MP Sanjay Raut in the Sena mouthpiece ‘Saamana’. Referring to Anjali, Thackeray said: “The lady says she is not afraid of even dying. She need not be afraid of anything as she has been provided with Z-class security. Even the judge should apply his mind this time (about necessity to have a defence lawyer). Thackeray also described as a “joke” about the debate on human rights in the country. He lamented that despite Supreme Court awarding death sentence to Parliament attack case convict Afzal Guru, the President was not able to act in the case and the power to decide on the issue rested with the country’s home minister. “This is a murder of democracy. The attack on parliament house was an attack on India’s sovereignty. Are you not ashamed?” Thackeray asked.
Andhra CM’s son-in-law surrenders, released on bail
6 Apr 2009, 2003 hrs IST, PTI
HYDERABAD: Andhra Pradesh chief minister Y S Rajasekhara Reddy’s son-in-law and religious preacher Anil Kumar was arrested after he surrendered before Khammam district police in connection with violation of the model code of conduct. “A case was registered against Anil Kumar and three other pastors for violation of election code of conduct and defying police orders after they used the religious congregation at Karunagiri in Khammam for political canvassing on March 26,” Khammam District Superintendent of Police Mahesh Bhagwat said over phone. Following a complaint by Khammam Rural Mandal Tahsildar, the police had registered a case against Kumar and other pastors who were arrested on April 1, Bhagwat said. “Anil Kumar surrendered before me today after which he was arrested. He was later released on bail after production of sureties and fulfilling other criteria,” Bhagwat said. The charges under violation of model code of conduct besides political canvassing also included distribution of pamphlets (without printer’s name) and cash appealing to vote for Congress, the police officer said. The three other pastors — Shekhar Babu, Satyapal and Hanumanth Rao — were already out on bail following their arrest on April 1, he added.
3 more arrests in Satyam case
6 Apr 2009, 1205 hrs IST, PTI
HYDERABAD: The CBI, investigating the Satyam financial fraud, arrested three employees including a top executive of the IT firm last night, said CBI DIG V V Lakshmi Narayana. “We arrested three employees last night who designed the mechanism for the fraud and they were involved in preparing fake monthly bank statements and other documents,” the CBI DIG said on Monday. The following Satyam employees were arrested: Vice-President (Finance) G Ramakrishna, and two others working in the finance department – D Venkatpati Raju and Srisailam. During the questioning by a two-member high-powered team of the ICAI, Satyam’s former CFO Vadlamani Srinivas yesterday mentioned the name of G Ramakrishna. With these three, nine persons in all have been arrested in connection with the fraud case.
Torture in custody:Don’t turn innocent suspects into hardcore criminals
by R.D. Sharma
06 April, 2009
IN a recent landmark judgment, the Supreme Court expressed its serious concern over the increasing number of custodial deaths and called upon the law enforcing agency to take remedial measures.A Bench sconsisting of Justice Arijit Pasayat and Justice A.K. Ganguly observed, “Torture in custody flouts the basic rights of the citizens recognised by the Indian Constitution and is an affront to human dignity. Police excesses and the maltreatment of detainees/ undertrial prisoners or suspects tarnish the image of any civilised nation and encourage the men in ‘khaki’ to consider themselves to be above the law and sometimes even to become law unto themselves”.Quite close on the heals of it, another apex court Bench directed all the state governments to file their status reports detailing the exact number of such incidents and steps taken to check them at their end.The use of brutal force and third-degree methods on suspects and undertrials remains one of the major and at times sole weapons of the Indian police. Reports of states/Union Territories reveal that the enforcers of the law are among the major perpetrators of crime against humanity. Extreme torture or assault in custody often results in grievous injuries including death. Police lock-ups and prison cells in the country are only mirrors reflecting a deeper malaise and telling a story that to be imprisoned in India can by itself amount to a death sentence.The number of custodial deaths is steadily increasing despite the National Human Rights Commission’s watchful role and repeated strictures from the judiciary against police brutality and repression. Worse, several such deaths are not factually reported and are brazenly dismissed as suicides or encounter killings.The police is notorious in its use of the third degree — a short-cut to investigation. Unable to cope with rising crime and hierarchical pressures from above, the police resort to it to produce quick results. Those subjected to such torture often breakdown and confess to crimes they may have never committed. Not hardcore criminals but first-time offenders and petty criminals from the poor and vulnerable sections of society are the easiest victims — be they children, women or members of marginalised communities.It is scandalous that there is no proper mechanism in place to check such brutality. Though India has signed the Convention Against Torture, it has refused to ratify it on the plea that there are enough laws and safeguards against police torture!The Supreme Court had made several suggestions to check police atrocities which include additional powers to the NHRC and the CBI so that they can take stern and immediate action on public complaints against the police. Yet, nothing has changed. The reasons are not far to seek why the menace still persists.Our jail manuals are outdated. Policemen are not trained in the methods of modern scientific investigation aimed at checking the use of force. Rules and laws are flouted with impunity in the belief that the men in uniform are accountable to none. There is no forum where the detainee can seek redress. Since there are no witnesses to contradict the police version in the event of a custodial death, the accused often goes scot-free. Rare indeed is the case in which the guilty is brought to book.In March last year, the Delhi High Court observed that courts must not overlook the fact that custodial death is the worst crime in a civilised society. It called for an amendment in the Evidence Act so that the policemen guilty of custodial torture do not escape for lack of evidence.The National Police Commission (NPC) long ago recommended surprise visits by senior officers to police stations to deter the use of excessive force in lockups. The Law Commission too recommended that custodial deaths should be deemed as murder unless proved otherwise, placing the onus of disproving it on the police. The Jiwan Commission, which had investigated cases of torture in Punjab some years ago, suggested payment of compensation to victims and its recovery from the guilty cops and jail personnel.Custodial crimes infringe upon human rights and the confessions so extracted often fail to stand the legal scrutiny. Violence at the hands of the police is counter-productive. It can turn innocent suspects into hardcore criminals. The grouse they have against a particular policeman motivates them to rebel against the country.The government may boast it has the Press and the judiciary as safeguards against human rights violation. But the lack of media scrutiny in remote areas, coupled with the failure to hand down exemplary punishment to the perpetrators of violence, has not made any difference to the steadily growing menace of custodial violence.Disciplinary action is seldom taken against the guilty cops. The inquiry proceedings are often shelved. Transfers and suspensions are just routine measures to buy time. Cases are swept under the carpet before long as public memory is short and media outcry short-lived. Such cases must be investigated expeditiously by an independent agency — perhaps the NHRC’s investigative wing — rather than the police who tend to go soft on crime committed by colleagues.After all, a policeman is a custodian of law and an offence on his part, as observed by the NPC, is inexcusable due to the power of suppression and repression he wields. In a civilised police set-up, people don’t get killed in fake encounters or lock-ups. Nor do enforcers of the law use third-degree methods to make the undertrials confess. A professional police force presupposes better methods to collect information. If the investigation is efficient and foolproof, there will be more convictions and fewer acquittals.Training and recruitment are the other important areas that need to be addressed promptly. The training programme should be reoriented to bring about a change in the police attitude and mindset in regard to investigations. They must recognise and respect human rights and adopt scientific investigation methods. Arguably, a dramatic improvement in the working conditions of the police could lessen brutality.Simultaneously, the recommendations on police reforms made by the NPC and the Soli J. Sorabjee Committee must urgently be implemented to impart greater accountability and transparency in the functioning of the force. There is a strong case for insulating the police from executive control and political influence. It should operate under an independent commission on the pattern that exists in Britain, with little or no scope for pulls and pressure from above.
The writer is Senior Advocate and Consultant, Delhi High Court
Source:- The Tribune 5 April 2009
State has to protect its police
05 April, 2009
The Andhra HC ruling has grave implications for national security, says C.B.S. Venkataramana
THE Supreme Court has rightly stayed the Andhra Pradesh High Court ruling, declaring that cases of murder under Section 302 of the Indian Penal Code should be filed against the police in cases where individuals are killed in firing either in law and order situations or extremist operations.Indeed, the High Court order has grave implications for the maintenance of public security in the country. If it is enforced, policemen bearing arms — from those escorting VVIPs to those on patrol duty — will be reluctant to open fire. Otherwise, they will face charges of murder and possible life imprisonment for discharging their duty.It is the state’s responsibility to protect the citizens. Police is the state’s coercive and enforcing arm. If individual police officers have to stand trial and defend themselves for their actions done as a part of their lawful duties, what is the protection and immunity that the society and state offer to them for having acted on their behalf in good faith? Who will come forward in future to act on behalf of the state in the fight against armed extremists, terrorists and anti-social elements and put themselves in risk for life imprisonment?In the criminal justice system, the entire burden of investigation and proof generally rests with the prosecution and the state. The police will have to prevent, detect, and investigate crimes and maintain public order. If the High Court ruling is implemented, the policeman would probably take the path of least resistance and simply duck the responsibility for such functions by filing innocuous reports.With over 110 districts in the country being under severe extremist threat and terrorist strikes in some state capitals, an overwhelming negative motivation will permeate the police officers in working in these areas of policing, if the state and society are unwilling to protect and indemnify their actions done in discharge of their official duties.Peculiar problems will crop up. When police officers involved in deaths due to ‘encounter’ shoot-outs or crowd-control firings are prosecuted for murder, as in other cases, the state has to take up the prosecution. However, if the police have acted on duty as part of their responsibilities on behalf of the state, they would also have to be defended by the state. Or, would they be left to their own?Moreover, if death in police firing is treated as prima facie murder and case initiated against the policeman involved, why should not the policemen also be charged for assault, etc. for injuries sustained by individuals in police action in crowd control operations? Secondly, there would be no merit in any policeman carrying firearms since a firearm’s purpose is to ‘shoot to kill’, if need be. By logical conclusion, it is pointless to provide armed escort to VVIPs.The police might even become averse to carrying firearms as being avoidably risky. Shy of using weapons, police will cease to be the state’s coercive and enforcing arm. If the state itself is not to disintegrate, such functions would then have to be necessarily entrusted to some other force, say the army. The whole question of trusting such a force with use of firearms and causing death if need be would again rise and go through the same full circle.When the trial court magistrate determines that the police shall stand trial for murder for deaths, the investigation has to be entrusted to other officers in the same police department, whose impartiality would naturally be suspect. Would a separate police force be then raised under the courts’ or some other authority’s control to investigate offences determined to have been committed by the police personnel prima facie?Another implication of the High Court ruling relates to the degree of trust and distrust that ought to be placed by society in the police force vis-à-vis other wings of the state. Considered together with an earlier Supreme Court order that no member of the judiciary, judge or magistrate, shall be arrested by the police for any offence whatsoever without the permission of the higher courts, the law of the land as laid by these two judgments is that, on one hand, absolute trust shall be placed by society in the judiciary, and judges not arrested or cases filed for any offence small or big, even murder committed by them in their private capacity, without prior permission from the higher judiciary.On the other, while police shall be trusted with the use of weapons that are used to kill, the police force itself shall be completely distrusted, and it be left to the judgment and discretion of a trial court magistrate whether the policeman’s version of facts and events should be believed or not.A better alternative to this total distrust of the police force could be to compulsorily arrange for a judicial magistrate and a press television crew team to accompany every posse of armed police force proceeding on mob control functions or extremist and terrorist control patrolling tasks. Only then would the judicial magistrate or judge be able to take the sum total of circumstances of the incident, together with the extreme agitation and terror of the moment and the scent of fear of life and death that the police personnel face, in determining whether or not the action taken by them, leading to causing of a death, did actually occur in bona fide discharge of their lawful functions.No individual or judge, sitting in the cool confines of his office or court, doing a legalistically clinical post mortem of events basing merely on reported descriptions of the event, do any justice in deciding whether the acts that were done by the police personnel under tension, facing the risk of death, were justified or otherwise. It has to be inferred, albeit sadly, that the High Court order shows an impractical and armchair approach to the matter.A further alternative could be that instead of a case of murder being automatically initiated in the appropriate trial court in every case of death in police firing (death in police lock-up being excluded), a permanent statutory commission could be constituted for each state to scrutinise and review all such cases. The commission could have a reputed retired member of the higher judiciary as chairperson, reputed retired administrators and police officers with experience of working in districts with extremist/terrorist violence, and one or two reputed dispassionate members of the civil society as members.The commission could scrutinise and review every case of death in police firing and give their finding to the government whether a prima facie case of abuse of powers is involved, and such finding could be binding on the government. This commission could be given statutory status through appropriate provisions to the Criminal Procedure Code.Also, where criminal cases of murder are initiated against police officers in instances of death in police firing, the onus of proof of self-defence might be shifted from the individual police officer to the prosecution to prove that the said acts were not done in self-defence. For, it would be grossly unfair and impractical to put a police officer in the same situation as that of a private individual, who, if had killed another in self-defence, has to prove the same, the prima facie assumption being that that act was not in self-defence.The issue in question is whether the state has the right and duty to protect itself and its very existence; and if so, what means are just in that process. A demoralised and psychologically disengaged police force can be the weakest link of the chain, however strong it may be, in its ability and resolve to defend the state.
The writer, a senior IAS officer, is Joint Director-General, Ministry of Shipping, Government of India, Mumbai
Source:- The Tribune 5 April 2009 http://www.tribuneindia.com/2009/20090405/edit.htm#1
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Phool Patti & Anr. vs. Ram Singh (Dead) through Lrs. & Anr. dated 2009-03-31
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1240 OF 2005
Phool Patti & Anr. .. Appellant
Ram Singh (Dead) through Lrs. & Anr. .. Respondent (s)
J U D G M E N T
MARKANDEY KATJU, J.
1. This appeal by special leave has been filed against the impugned judgment of the Punjab and Haryana High Court dated 22.10.2003 in Regular Second Appeal No.2176 of 1985.
2. Heard learned counsel for the parties and perused the record.
3. The appellants are the daughters of one Bhagwana. They along with one Shobha Ram filed Civil Suit No.234 of 1982 against the respondents challenging the decree in Civil Suit No.630 of 1980 regarding certain land and a house filed by Ram Singh against Bhagwana on the ground that the said suit was a collusive suit and hence the decree was illegal and void. Accordingly the prayer in Civil Suit No.234 of 1982 filed by the appellants was to set aside the decree in Civil Suit No.630 of 1980. The trial court on 31.5.1983 decreed Civil Suit No.234 of 1982 and set aside the judgment and decree dated 24.11.1980 in Civil Suit No.630 of 1980 on the ground that the same was collusive. However, in the first appeal under Section 96 C.P.C. the learned Additional District and Sessions Judge, Sonepat allowed the appeal and set aside the judgment of the trial court and dismissed the suit by his judgment dated 21.3.1985.
4. Aggrieved against the judgment of the learned Additional District and Sessions Judge dated 21.3.1985 the appellants filed a second appeal before the High Court which was dismissed by the impugned judgment dated 22.10.2003. Hence this appeal by special leave.
5. The finding of the First Appellate Court that the judgment and decree dated 24.11.1980 in Civil Suit No.630 of 1980 was not collusive is a finding of fact. It may be noted that Bhagwana who was the defendant in the said Civil Suit No.630 of 1980 was alive when the Suit No.18 of 1982 was filed and he had supported the judgment and decree dated 24.11.1980 in Civil Suit No.630 of 1980 by giving his evidence on oath as DW2.
6. On the other hand the appellants did not appear at any stage of the trial of the suit being No. 234 of 1982 before the trial court to stake or affirm or claim any right in the disputed land.
7. It has come in evidence that Bhagwana was residing with the respondents for the last several years and Bhagwana treated the respondent as his real son. As regards the appellants who are daughters of Bhagwana, they had been married long back, and had left for their maternal home, and hence Bhagwana was living with the respondent alone. Bhagwana is said to have had great love and affection for the respondent. There was a family arrangement in which the disputed property fell exclusively to the respondent.
9. Since the consent decree dated 24.11.1980 had been held by the First Appellate Court to be not collusive, the High Court in our opinion rightly refused to interfere with that findings of fact.
10. It was then urged by the learned counsel for the appellant that there was violation of the Section 17 of the Registration Act, 1908.
11. In this connection, it may be noted that Section 17(2)(vi) of the Registration Act states that “nothing in clauses (b) and (c) of sub-section(1) of Section 17 applies to :
“any decree or order of a Court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding.”
12. In our opinion the exception mentioned in Section 17(2)(vi) means that if a suit is filed by the plaintiff in respect of property A, then a decree in that suit in respect of immovable property B (which was not the subject- matter of the suit at all) will require registration. This is the view taken by this Court in K. Raghunandan & Ors. vs. Ali Hussain Sabir & Ors. 2008(9) Scale 215.
13. However, a different view was taken by this Court in Bhoop Singh
vs. Ram Singh Major 1995(5) SCC 709 in which it is stated that :
“……We would think that the exception engrafted is meant to cover that decree or order of a court, including a decree or order expressed to be made on a compromise, which declares the pre-existing right and does not by itself create new right, title or interest in praesenti in immovable property of the value of Rs.100 or upwards.…………….”
14. In our opinion there seems to be inconsistency between the decisions of this Court in Bhoop Singh’s case (supra) and K. Raghunandan’s case (supra) in so far as the interpretation to the exception in clause (vi) of Section 17(2) of the Registration Act is concerned. Prima facie it seems to us that the decision in Bhoop Singh’s case (supra) does not lay down the correct law since Section 17(2)(vi) on its plain reading has nothing to do with any pre existing right. All that seems to have been stated therein is that if a decree is passed regarding some immovable property which is not a subject-matter of the suit then it will require registration. As already explained above, if a suit is filed in respect of property A but the decree is in respect of immovable property B, then the decree so far as it relates to immovable property B will require registration. This seems to be the plain meaning of clause (vi) of Section 17(2) of the Registration Act.
15. It is a well settled principle of interpretation that the Court cannot add words to the statute or change its language, particularly when on a plain reading the meaning seems to be clear. Since there is no mention of any pre- existing right in the exception in clause (vi) we have found it difficult to accept the views in Bhoop Singh’s case (supra).
16. It seems that there is inconsistency in the decisions of this Court in Bhoop Singh’s case (supra) and K. Raghunandan’s case (supra), and since we are finding it difficult to agree with the decision of this Court in Bhoop Singh’s case (supra), the matter should be considered by a larger Bench of this Court.
17. Let the papers be laid before Hon’ble the Chief Justice of India for constituting a larger Bench for interpreting the exception in clause (vi) of Section 17(2) of the Registration Act.
…….. ………………… …..J.
(Asok Kumar Ganguly) New Delhi; 31st March, 2009
Chaman Lal & Ors. vs. State of Punjab & Anr dated 2009-03-31
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1174 OF 2003
Chaman Lal & Ors. ..Appellants
State of Punjab & Anr. ..Respondents
J U D G M E N T Dr. ARIJIT PASAYAT, J.
1. Challenge in this appeal is to the judgment of a learned Single judge of the Punjab and Haryana High Court dismissing the Criminal Revision i.e. Criminal Revision No.512 of 2000 filed by nine petitioners, who are the appellants in this Appeal. Before the High Court the challenge was to the order passed by learned Additional Chief Judicial Magistrate, Ludhiana framing charges for alleged commission of offences punishable under Section 409 read with Section 120B and Section 420 read with Section 120 B of the Indian Penal Code, 1860 (in short the ‘IPC’). The High Court dismissed the revision petition on the ground that there are sufficient grounds to presume that the unrebutted evidences of the complainant constitute triable offences.
2. Background facts as projected by appellants in a nutshell are as follows:
In February, 1987 the complainant and his five family members executed General Power of Attorney (in short the ‘GPA’) at Canada in favour of Manvinder Singh and subsequently the said GPA was registered with the Commissioner of Ferozepur, Punjab. The GPA stated that the GPA holder can do anything on behalf of the complainant which he can lawfully do. The GPA does not contain any condition or restriction.
In August, 1989 the GPA holder met the appellants with a proposal to sell a plot of land of the complainant admeasuring 4840 square yards comprised in Khasra No. 1085 situated at Village Barewal Awana, Ludhiana. The GPA holder demanded a price of Rs.5 lakhs for the said property.
On 4.10.1989 the appellants by an oral agreement-agreed to purchase the said property and paid Rs.1 lakh by way of four demand drafts to the GPA holder.
On 7.11.1989 the aforesaid oral agreement was reduced into writing and the balance sum of Rs.4 lakh was also paid (Rs.1 lakh in cash and Rs.3 lakhs by bank drafts). Upon receipt of entire consideration, the GPA holder executed four SPAs in favour of appellant Nos.1 (Chaman Lal) 2 (Daljander Kaur) 3 (Narinder Kaur) and 7 (Balwant Singh).
On 5.12.1989 by virtue of the aforesaid 5 SPAs dated 7.11.1989 appellant Nos.1, 2, 3 & 7 executed and registered 5 sale deeds in favour of appellant Nos.2 to 6.
In the middle of December, 1989 the appellants suddenly came to know that the complainant had filed a suit No.120/89 dated 28.11.1989 against Petitioner Nos.1, 2, 3 and 7 for declaration that the said GPA holder (Manvinder Singh) had no authority to sell the said property and/or to permanently alienate and dispose of the said property.
The appellants also came to know that in the said suit for declaration, an ex-parte injunction order/status quo was granted on 02.12.1989, though the appellants in the absence of knowledge- of such ex-parte injunction order had already executed the sale-deeds and got them registered on 05.12.1989.
On 14.06.1990 the learned Senior Subordinate Judge passed an order in the aforesaid suit, restraining the appellants from dispossessing the complainant from the said property and to maintain status quo with regard to ownership of the said property pending disposal of the suit, whereas in fact the appellants were already in possession of the said property since 07.11.1989.
On 20.8.1990 and 21.11.1990 the appellants preferred an Appeal No. 274/67 in the Court of the learned Additional District Judge, Ludhiana praying, inter alia, to maintain the status quo with regard to the ownership and possession of the said property and vide order dated 21.11.1990, the parties were ordered, during pendency of the main suit, to maintain status quo with regard to ownership and possession of the property.
On 30.6.1995 the complainant lodged a complaint with the Deputy Commissioner, Ludhiana – Shri S.S. Channi, I.A.S., who summoned the appellants at his residence and asked them to cancel the sale-deeds and concede to the claim of the complainant in the civil suit. The Commissioner also threatened the appellants with dire consequences by implicating them in false criminal cases. The said officer is related to the complainant.
On 31.08.1995 after a period of about 6 years, on a complaint lodged by the complainant, an FIR No. 183, Police Station Division No.5 District Ludhiana was registered only against Shri Sadhu Singh, Naib Tehsildar, Ludhiana and Shri Banta Singh, Patwari of Village Barewal Awana under Sections 420, 468,, 471, 120 B IPC.
On 13.3.1996 on application of the complainant, an inquiry was initiated and marked to the SP City, Ludhiana.
On 29.5.1996 the SP City, Ludhiana submitted his Report to the SSP, Ludhiana stating therein that the FIR was the handiwork to pressurize the appellants and further that no such offence had been committed by the appellants.
On 14.10.1996 despite the aforesaid report of the SP City, Ludhiana and in spite of the note of the A.D.A. (Legal) that no criminal case was made out against the appellants, a charge sheet under Section 173 Cr.P.C. was filed against the appellants for commission of alleged offences under Sections 420, 468, 467, 471,120B IPC.
On 11.12.1999 the Ld. ACJM, Ludhiana framed charges under Sections 120B read with Section 409 IPC and under Sections 120B/420 IPC against the appellants.
The appellants preferred a Criminal Revision No. 512 of 2000 in the Punjab & Haryana High Court challenging the maintainability of the charges framed against them and the learned Single Judge of the High Court dismissed the prayer of the appellants by the impugned order holding that there was sufficient ground to presume that the unrebutted evidence of the complainant constitute triable offences.
3. According to learned counsel for the appellant a sum of Rs.1,00,000/-was paid as earnest money. The power of attorney was drawn up at Canada and was registered on 19.3.1987 by accused No.1 at Firozepur, Punjab. The factual scenario described above goes to show that the complaint was nothing but the abuse of the process of court. The ingredients necessary for constituting offences punishable under Sections 409, 420 and 120B IPC are not made out. In any event the complaint was lodged after about six years and this itself is sufficient to show lack of bonafides.
4. Manvinder Singh at the relevant point of time had the authority to enter into the transaction.
5. Learned counsel for the respondents on the other hand supported the judgments of the courts below.
6. The High Court has found that the acts are not in dispute, the power of attorney is the central document in the case. The High Court noted that significantly, too many details of the property in respect of which it was executed were missing. The High Court observed that the power of attorney was embossed with the stamp of Commissioner, Firozepur on 19th March, 1987 prima facie on making it a valid document. But nevertheless a plain reading of the power of attorney leaves one with the uncertain feeling as regards its true import. The High Court observed that it is possible that the appellants were duped by the attorney who had known that his power has been revoked but concealed the fact. Thereafter having coming to this conclusion the High Court noted as follows:
“Such an argument could have been validly advanced by the petitioners to establish their bonafides if the power of attorney itself had mentioned the details of the property in dispute and had also mentioned specifically that the attorney had the power to alienate the property through sale, mortgage and lease etc. The petitioners must have examined the document because it was from the document that the power to enter into the agreement to sell had come to vest in Manvinder Singh. If even after examining the document the petitioners went ahead with the transaction they did so at their own peril. They lacked bonafides and were out to deprive the owner of his property by a series of transactions.”
7. It would be appropriate to deal with the question of conspiracy. Section 120-B IPC is the provision which provides for punishment for criminal conspiracy. Definition of “criminal conspiracy” given in Section 120-A reads as follows:
“120-A. When two or more persons agree to do, or cause to be done,—
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.”
The elements of a criminal conspiracy have been stated to be: (a) an object to be accomplished, (b) a plan or scheme embodying means to accomplish that object, (c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, and (d) in the jurisdiction where the statute required an overt act. The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. From this, it necessarily follows that unless the statute so requires, no overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished, in order to constitute an indictable offence. Law making conspiracy a crime, is designed to curb immoderate power to do mischief which is gained by a combination of the means. The encouragement and support which co-conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment. The conspiracy is held to be continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design. (See American Jurisprudence, Vol. II, Sec. 23, p. 559.) For an offence punishable under Section 120-B, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or caused to be done an illegal act; the agreement may be proved by necessary implication. The offence of criminal conspiracy has its foundation in an agreement to commit an offence. A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and an act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for use of criminal means.
8. No doubt in the case of conspiracy there cannot be any direct evidence. The ingredients of the offence are that there should be an agreement between persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing by illegal means an act which itself may not be illegal. Therefore, the essence of criminal
conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused.
9. In Halsbury’s Laws of England (vide 4th Edn., Vol. 11, p. 44, para 58), the English law as to conspiracy has been stated thus:
“58. Conspiracy consists in the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. It is an indictable offence at common law, the punishment for which is imprisonment or fine or both in the discretion of the court.
10. The essence of the offence of conspiracy is the fact of combination by agreement. The agreement may be express or implied, or in part express and in part implied. The conspiracy arises and the offence is committed as soon as the agreement is made; and the offence continues to be committed so long as the combination persists, that is until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration or however it may be. The actus reus in a conspiracy is the agreement to execute the illegal conduct, not the execution of it. It is not enough that two or more persons pursued the same unlawful object at the same time or in the same place; it is necessary to show a meeting of minds, a consensus to effect an unlawful purpose. It is not, however, necessary that each conspirator should have been in communication with every other.”
11. The High Court has rightly observed that the charges have to be established beyond reasonable doubt before the prosecution can succeed, but at that stage the challenge can be made. There was no scope for intereference. We are in agreement with the view expressed by the High Court. However, we make it clear that the observations made by the High Court while dismissing the petition before it shall not be considered to be conclusive and determined. It has been rightly noted that Manvinder accepted the factum of cancellation but thereafter executed the special power of attorney. Therefore, we find no infirmity in the order of the High Court to warrant interference. However, we request the trial court to explore the possibility of early disposal of the case. If any petition for exemption is filed, needless to say the same shall be considered keeping in view sub section 2 of Section 205 of the Code of Criminal Procedure, 1973 (in short the ‘Cr.PC.’).
12. The appeal is dismissed.
……………… (Dr. ARIJIT PASAYAT)
(LOKESHWAR SINGH PANTA)
New Delhi, March 31, 2009
Bhaskar Ramappa Madar and Ors. vs. State of Karnataka dated 2009-03-31
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 415 OF 2002
Bhaskar Ramappa Madar and Ors. …Appellants
State of Karnataka …Respondent
J U D G M E N T Dr. ARIJIT PASAYAT, J.
1. Challenge in this appeal is to the judgment of a Division Bench of the Karnataka High Court allowing the appeal filed by the respondent-State of Karnataka. Said Criminal appeal was filed under Section 378(1) and (3) of the Code of Criminal Procedure, 1973 (in short the ‘Code’). The learned 3rd Additional Sessions Judge, Dharwad, directed acquittal of the present appellants who faced trial for alleged commission of offences punishable under Sections 304-B, 306, 498-A read with Section 34 of the Indian Penal Code, 1860 (in short the ‘IPC’).
2. The prosecution version in a nutshell is as follows:
The accused No.1 is the husband of Ratnavva (hereinafter referred to as the ‘deceased’) who was given in marriage to the accused No.1 about 1½ years prior to her death and during their marriage, the accused No.1 was given 11 tolas of gold and a cash of Rs.10,000/- alongwith other utensils. In spite of all this, the accused were ill-treating and harassing the deceased Ratnavva coercing her to bring more dowry and accordingly a cheque of Rs.10,000/- was given to the accused No.1 by the mother of the deceased. But in spite of that the accused did not stop the ill-treatment, and harassment to the deceased Ratnavva. On account of constant harassment and ill treatment to the deceased, they made the life of the deceased a miserable one which abetted the deceased to commit suicide. The accused No.1 is the husband of the deceased, the accused Nos.2 and 3 are the parents in law, the accused Nos.4 and 5 are the sisters in law and the accused N0.6 is the brother in law of the deceased.
On the basis of information lodged, investigation was undertaken and on completion thereof chargesheet was filed. As accused persons pleaded innocence, trial was held.
In order to substantiate its case, the prosecution has examined at the trial PWs.1 to 18 and got marked in evidence Ex.P1 to P15 and Mos.1 to 12. Investigation was undertaken.
The trial Court held that the Investigating Officer should not have proceeded with the investigation as he was the complainant and on that ground held the prosecution version to be tainted. It also found that the evidence of the witnesses did not inspire confidence.
Acquittal was challenged before the High Court, which on the other hand held that the conclusions of the trial Court are erroneous.
3. Learned counsel for the appellants submitted that the High Court nowhere recorded a finding that the conclusions of the trial Court were either perverse or not supported by reasons.
4. Learned counsel for the respondent-State on the other hand supported the judgment of the High Court.
5. So far as the desirability of the complainant undertaking investigation is concerned there is no legal bar. The decisions of this Court in Bhagwan Singh v. The State of Rajasthan (1976 (1) SCC 15 at para 18) and Megha Singh v. State of Haryana (1996 (11) SCC 709 at para 4) have to be confined to the facts of the said cases. Merely because the complainant conducted the investigation, that would not be sufficient to cast doubt on the prosecution version to hold that the same makes the prosecution version vulnerable. The matter has to be decided on case to case basis without any universal generalization.
6. On the facts of the present case A-1 went to lodge the report. The S.I. (PW-17) registered the case and on completion of investigation charge sheet was filed by D.S.P.
7. So far as appeals against acquittals are concerned, Chapter XXIX (Sections 372-394) of the Code deals with appeals. Section 372 expressly declares that no appeal shall lie from any judgment or order of a criminal court except as provided by the Code or by any other law for the time being in force. Section 373 provides for filing of appeals in certain cases. Section 374 allows appeals from convictions. Section 375 bars appeals in cases where the accused pleads guilty. Likewise, no appeal is maintainable in petty cases (Section 376). Section 377 permits appeals by the State for enhancement of sentence. Section 378 confers power on the State to present an appeal to the High Court from an order of acquittal. The said section is material and may be quoted in extenso:
“378. Appeal in case of acquittal.—(1) Save as otherwise provided in sub-section (2) and subject to the provisions of sub-sections (3) and (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any court other than a High Court, or an order of acquittal passed by the Court of Session in revision.
(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal, subject to the provisions of sub-section (3), to the High Court from the order of acquittal.
(3) No appeal under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court.
(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.
(5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.
(6) If, in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub-section (2).
8. Whereas Sections 379-380 cover special cases of appeals, other sections lay down procedure to be followed by appellate courts.
9. It may be stated that more or less similar provisions were found in the Code of Criminal Procedure, 1898 (hereinafter referred to as “the old Code”) which came up for consideration before various High Courts, Judicial Committee of the Privy Council as also before this Court. Since in the present appeal, we have been called upon to decide the ambit and scope of the power of an appellate court in an appeal against an order of acquittal, we have confined ourselves to one aspect only i.e. an appeal against an order of acquittal.
10. Bare reading of Section 378 of the present Code (appeal in case of acquittal) quoted above, makes it clear that no restrictions have been imposed by the legislature on the powers of the appellate court in dealing with appeals against acquittal. When such an appeal is filed, the High Court has full power to re-appreciate, review and reconsider the evidence at large, the material on which the order of acquittal is founded and to reach its own conclusions on such evidence. Both questions of fact and of law are open to determination by the High Court in an appeal against an order of acquittal.
11. It cannot, however, be forgotten that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless he is proved to be guilty by a competent court of law. Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the trial court.
12. Though the above principles are well established, a different note was struck in several decisions by various High Courts and even by this Court. It is, therefore, appropriate if we consider some of the leading decisions on the point.
13. The first important decision was rendered by the Judicial Committee of the Privy Council in Sheo Swarup v. R. Emperor (1934) 61 IA 398). In Sheo Swarup the accused were acquitted by the trial court and the local Government directed the Public Prosecutor to present an appeal to the High Court from an order of acquittal under Section 417 of the old Code (similar to Section 378 of the present Code). At the time of hearing of appeal before the High Court, it was contended on behalf of the accused that in an appeal from an order of acquittal, it was not open to the appellate court to interfere with the findings of fact recorded by the trial Judge unless such findings could not have been reached by him had there not been some perversity or incompetence on his part. The High Court, however, declined to accept the said view. It held that no condition was imposed on the High Court in such appeal. It accordingly reviewed all the evidence in the case and having formed an opinion of its weight and reliability different from that of the trial Judge, recorded an order of conviction. A petition was presented to His Majesty in Council for leave to appeal on the ground that conflicting views had been expressed by the High Courts in different parts of India upon the question whether in an appeal from an order of acquittal, an appellate court had the power to interfere with the findings of fact recorded by the trial Judge. Their Lordships thought it fit to clarify the legal position and accordingly upon the “humble advice of their Lordships”, leave was granted by His Majesty. The case was, thereafter, argued. The Committee considered the scheme and interpreting Section 417 of the Code (old Code) observed that there was no indication in the Code of any limitation or restriction on the High Court in exercise of powers as an Appellate Tribunal. The Code also made no distinction as regards powers of the High Court in dealing with an appeal against acquittal and an appeal against conviction. Though several authorities were cited revealing different views by the High Courts dealing with an appeal from an order of acquittal, the Committee did not think it proper to discuss all the cases.
14. Lord Russel summed up the legal position thus:
“There is, in their opinion, no foundation for the view, apparently supported by the judgments of some courts in India, that the High Court has no power or jurisdiction to reverse an order of acquittal on a matter of fact, except in cases in which the lower court has ‘obstinately blundered’, or has ‘through incompetence, stupidity or perversity’ reached such ‘distorted conclusions as to produce a positive miscarriage of justice’, or has in some other way so conducted or misconducted itself as to produce a glaring miscarriage of justice, or has been tricked by the defence so as to produce a similar result.”
15. His Lordship, then proceeded to observe: (IA p.404)
“Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code.”
16. The Committee, however, cautioned appellate courts and stated: (IA p.404)
“But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognised in the administration of justice.”
17. In Nur Mohd. v. Emperor (AIR 1945 PC 151), the Committee reiterated the above view in Sheo Swarup (Supra) and held that in an appeal against acquittal, the High Court has full powers to review and to reverse acquittal.
18. So far as this Court is concerned, probably the first decision on the point was Prandas v. State (AIR 1954 SC 36) (though the case was decided on 14-3-1950, it was reported only in 1954). In that case, the accused was acquitted by the trial court. The Provincial Government preferred an appeal which was allowed and the accused was convicted for offences punishable under Sections 302 and 323 IPC. The High Court, for convicting the accused, placed reliance on certain eyewitnesses.
19. Upholding the decision of the High Court and following the proposition of law in Sheo Swarup (supra), a six-Judge Bench held as follows:
“6. It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under Section 417, Criminal Procedure Code, to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate court has in some way or other misdirected itself so as to produce a miscarriage of justice.”
20. In Surajpal Singh v. State (1952 SCR 193), a two-Judge Bench observed that it was well established that in an appeal under Section 417 of the (old) Code, the High Court had full power to review the evidence upon which the order of acquittal was founded. But it was equally well settled that the presumption of innocence of the accused was further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence could be reversed only for very substantial and compelling reasons.
21. In Ajmer Singh v. State of Punjab (1953 SCR 418) the accused was acquitted by the trial court but was convicted by the High Court in an appeal against acquittal filed by the State. The aggrieved accused approached this Court. It was contended by him that there were “no compelling reasons” for setting aside the order of acquittal and due and proper weight had not been given by the High Court to the opinion of the trial court as regards the credibility of witnesses seen and examined. It was also commented that the High Court committed an error of law in observing that “when a strong ‘prima facie’ case is made out against an accused person it is his duty to explain the circumstances appearing in evidence against him and he cannot take shelter behind the presumption of innocence and cannot state that the law entitles him to keep his lips sealed”.
22. Upholding the contention, this Court said:
“We think this criticism is well founded. After an order of acquittal has been made the presumption of innocence is further reinforced by that order, and that being so, the trial court’s decision can be reversed not on the ground that the accused had failed to explain the circumstances appearing against him but only for very substantial and compelling reasons.”
23. In Atley v. State of U.P. (AIR 1955 SC 807) this Court said:
“In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417, Criminal Procedure Code came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order.
It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well-established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence.
It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal.
If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated.”
24. In Aher Raja Khima v. State of Saurashtra (1955) 2 SCR 1285) the accused was prosecuted under Sections 302 and 447 IPC. He was acquitted by the trial court but convicted by the High Court. Dealing with the power of the High Court against an order of acquittal, Bose, J. speaking for the majority (2:1) stated: (AIR p. 220, para 1) “It is, in our opinion, well settled that it is not enough for the High Court to take a different view of the evidence; there must also be substantial and compelling reasons for holding that the trial court was wrong.”
25. In Sanwat Singh v. State of Rajasthan (1961) 3 SCR 120, a three-Judge Bench considered almost all leading decisions on the point and observed that there was no difficulty in applying the principles laid down by the Privy Council and accepted by the Supreme Court. The Court, however, noted that appellate courts found considerable difficulty in understanding the scope of the words “substantial and compelling reasons” used in certain decisions. It was observed inter-alia as follows:
“This Court obviously did not and could not add a condition to Section 417 of the Criminal Procedure Code. The words were intended to convey the idea that an appellate court not only shall bear in mind the principles laid down by the Privy Council but also must give its clear reasons for coming to the conclusion that the order of acquittal was wrong.”
The Court concluded as follows:
“9. The foregoing discussion yields the following results: (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup case afford a correct guide for the appellate court’s approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as, (i) ‘substantial and compelling reasons’, (ii) ‘good and sufficiently cogent reasons’, and (iii) ‘strong reasons’ are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified.”
26. Again, in M.G. Agarwal v. State of Maharashtra (1963) 2 SCR 405, the point was raised before a Constitution Bench of this Court. Taking note of earlier decisions, it was observed as follows:
“17. In some of the earlier decisions of this Court, however, in emphasising the importance of adopting a cautious approach in dealing with appeals against acquittals, it was observed that the presumption of innocence is reinforced by the order of acquittal and so, ‘the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons’: vide Surajpal Singh v. State (1952 SCR 193). Similarly in Ajmer Singh v. State of Punjab (1953 SCR 418), it was observed that the interference of the High Court in an appeal against the order of acquittal would be justified only if there are ‘very substantial and compelling reasons to do so’. In some other decisions, it has been stated that an order of acquittal can be reversed only for ‘good and sufficiently cogent reasons’ or for ‘strong reasons’. In appreciating the effect of these observations, it must be remembered that these observations were not intended to lay down a rigid or inflexible rule which should govern the decision of the High Court in appeals against acquittals. They were not intended, and should not be read to have intended to introduce an additional condition in clause (a) of Section 423(1) of the Code. All that the said observations are intended to emphasize is that the approach of the High Court in dealing with an appeal against acquittal ought to be cautious because as Lord Russell observed in Sheo Swarup the presumption of innocence in favour of the accused ‘is not certainly weakened by the fact that he has been acquitted at his trial’. Therefore, the test suggested by the expression ‘substantial and compelling reasons’ should not be construed as a formula which has to be rigidly applied in every case. That is the effect of the recent decisions of this Court, for instance, in Sanwat Singh v. State of Rajasthan and Harbans Singh v. State of Punjab (1962 Supp 1 SCR 104) and so, it is not necessary that before reversing a judgment of acquittal, the High Court must necessarily characterise the findings recorded therein as perverse.”
27. Yet in another leading decision in Shivaji Sahabrao Bobade v. State of Maharashtra (1973 (2) SCC 793) this Court held that in India, there is no jurisdictional limitation on the powers of appellate court. “In law there are no fetters on the plenary power of the appellate court to review the whole evidence on which the order of acquittal is founded and, indeed, it has a duty to scrutinise the probative material de novo, informed, however, by the weighty thought that the rebuttable innocence attributed to the accused having been converted into an acquittal the homage our jurisprudence owes to individual liberty constrains the higher court not to upset the holding without very convincing reasons and comprehensive consideration.”
28. Putting emphasis on balance between importance of individual liberty and evil of acquitting guilty persons, this Court observed as follows:
“6. Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs thro’ the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then breakdown and lose credibility with the community. The evil of acquitting a guilty person light-heartedly, as a learned author (Glanville Williams in Proof of Guilt) has saliently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted ‘persons’ and more severe punishment of those who are found guilty. Thus, too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that ‘a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent….’ In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents.”
29. In K. Gopal Reddy v. State of A.P (1979) 1 SCC 355, the Court was considering the power of the High Court against an order of acquittal under Section 378 of the present Code. After considering the relevant decisions on the point it was stated as follows:
“9. The principles are now well settled. At one time it was thought that an order of acquittal could be set aside for ‘substantial and compelling reasons’ only and courts used to launch on a search to discover those ‘substantial and compelling reasons’. However, the ‘formulae’ of ‘substantial and compelling reasons’, ‘good and sufficiently cogent reasons’ and ‘strong reasons’ and the search for them were abandoned as a result of the pronouncement of this Court in Sanwat Singh v. State of Rajasthan (1961) 3 SCR 120. In Sanwat Singh case this Court harked back to the principles enunciated by the Privy Council in Sheo Swarup v. R. Emperor and reaffirmed those principles. After Sanwat Singh v. State of Rajasthan this Court has consistently recognised the right of the appellate court to review the entire evidence and to come to its own conclusion bearing in mind the considerations mentioned by the Privy Council in Sheo Swarup case. Occasionally phrases like ‘manifestly illegal’, ‘grossly unjust’, have been used to describe the orders of acquittal which warrant interference. But, such expressions have been used more as flourishes of language, to emphasise the reluctance of the appellate court to interfere with an order of acquittal than to curtail the power of the appellate court to review the entire evidence and to come to its own conclusion. In some cases (Ramaphupala Reddy v. State of A.P., (AIR 1971 SC 460) Bhim Singh Rup Singh v. State of Maharashtra (AIR 1974 SC 286), it has been said that to the principles laid down in Sanwat Singh case may be added the further principle that ‘if two reasonable conclusions can be reached on the basis of the evidence on record, the appellate court should not disturb the finding of the trial court’. This, of course, is not a new principle. It stems out of the fundamental principle of our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt. If two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. But, fanciful and remote possibilities must be left out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt. It is, therefore, essential that any view of the evidence in favour of the accused must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable.”
30. In Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225, this Court said:
“While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then-and then only-reappraise the evidence to arrive at its own conclusions.”
31. In Allarakha K. Mansuri v. State of Gujarat (2002) 3 SCC 57, referring to earlier decisions, the Court stated:
“7. The paramount consideration of the court should be to avoid miscarriage of justice. A miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view based upon conjectures and hypothesis and not on the legal evidence, a duty is cast upon the High Court to reappreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether the accused has committed any offence or not. Probable view taken by the trial court which may not be disturbed in the appeal is such a view which is based upon legal and admissible evidence. Only because the accused has been acquitted by the trial court, cannot be made a basis to urge that the High Court under all circumstances should not disturb such a finding.”
32. In Bhagwan Singh v. State of M.P. (2002) 4 SCC 85, the trial court acquitted the accused but the High Court convicted them. Negativing the contention of the appellants that the High Court could not have disturbed the findings of fact of the trial court even if that view was not correct, this Court observed:
“7. We do not agree with the submissions of the learned counsel for the appellants that under Section 378 of the Code of Criminal Procedure the High Court could not disturb the finding of facts of the trial court even if it found that the view taken by the trial court was not proper. On the basis of the pronouncements of this Court, the settled position of law regarding the powers of the High Court in an appeal against an order of acquittal is that the Court has full powers to review the evidence upon which an order of acquittal is based and generally it will not interfere with the order of acquittal because by passing an order of acquittal the presumption of innocence in favour of the accused is reinforced. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Such is not a jurisdiction limitation on the appellate court but judge-made guidelines for circumspection. The paramount consideration of the court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of the guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view ignoring the admissible evidence, a duty is cast upon the High Court to reappreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether all or any of the accused has committed any offence or not”.
33. In Harijana Thirupala v. Public Prosecutor, High Court of A.P. (2002) 6 SCC 470, this Court said:
“12. Doubtless the High Court in appeal either against an order of acquittal or conviction as a court of first appeal has full power to review the evidence to reach its own independent conclusion. However, it will not interfere with an order of acquittal lightly or merely because one other view is possible, because with the passing of an order of acquittal presumption of innocence in favour of the accused gets reinforced and strengthened. The High Court would not be justified to interfere with order of acquittal merely because it feels that sitting as a trial court it would have proceeded to record a conviction; a duty is cast on the High Court while reversing an order of acquittal to examine and discuss the reasons given by the trial court to acquit the accused and then to dispel those reasons. If the High Court fails to make such an exercise the judgment will suffer from serious infirmity.”
34. In Ramanand Yadav v. Prabhu Nath Jha (2003) 12 SCC 606, this Court observed:
“21. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not”.
35. Again in Kallu v. State of M.P. (2006) 10 SCC 313, this Court stated:
“8. While deciding an appeal against acquittal, the power of the appellate court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court.”
36. From the above decisions, in Chandrappa and Ors. v. State of Karnataka (2007 (4) SCC 415), the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal were culled out:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation,
restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.
37. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to “proof” is an exercise particular to each case. Referring to the interdependence of evidence and the confirmation of one piece of evidence by another, a learned author says [see “The Mathematics of Proof II”: Glanville Williams, Criminal Law Review, 1979, by Sweet and Maxwell, p.340 (342)]:
“The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A junior may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than innocent people who make confessions, and guilty rather than innocent people who run away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other.”
38. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.
39. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the Judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice. This position was illuminatingly stated by Venkatachaliah, J. (as His Lordship then was) in State of U.P. v. Krishna Gopal (1988 (4) SCC 302).
40. The above position was highlighted in Krishnan and Anr. v. State represented by Inspector of Police (2003 (7) SCC 56) and Valson and Anr. V. State of Kerala (Criminal Appeal No.572 of 2001 disposed of on August 1, 2008)
41. In the instant case the trial Court categorically found that the so called ill treatment was for not bringing money and also for not willing to part with her child in favour of accused No.4. The High Court in the impugned judgment held that the appellants were guilty of offence punishable under Sections 306 and 498-A IPC.
42. The evidence of PW-2, the wife of PW-1 and the mother of the deceased is of great significance. She stated that accused persons were abusing, beating her daughter and pulling her hairs and they were not giving proper food to her. She advised her daughter to adjust as this witness has got five more daughters. She further stated that they had given Rs.10,000/-28 in cash out of the income of rent received by her and she gave it to accused No.l through cheque and still accused persons did not stop ill-treatment and again demanded money. They demanded Rs.15,000/- and this witness was unable to pay the same. So far the cheque is concerned, the cheque is marked at Ex. P-4, which is a Xerox copy and the Manager of the Bank is examined in support of the case as PW-12. The witness PW-12 deposed that the cheque has been encashed on 24.4.1989 at Syndicate Bank, Mundgor. The accused persons also admitted of having taken the cheque for Rs.10,000/- but their defence is that accused No.1 was plying a truck and the truck met with accident which required heavy repairs and so PW-2 has given a cheque for repairs of said truck and not as dowry. To show that A-1 was owning a truck for which he has produced the Xerox of R.C. Book which shows the name of A-1 as per the owner of the truck bearing No.MYE 5577. To show that the said truck met with an accident accused produced the copy of extract of Register No.III Criminal from the Court of J.M.F.C. Khanapur which shows that the truck met with accident on 26.12.1988 and as per the date of registration and F. I. R. and Register, the case was registered under Sections 279, 337 and 338 IPC, on the basis of which, the accused pleaded guilty for the said offences and the accused was convicted and sentenced to pay a fine of Rs.500/- and Rs.800/- respectively.
From the above said document prima facie it is clear that A-1 was having the truck bearing No.MYE 5577 which met with an accident on 26.12.1988 within the jurisdiction of Khanapur Court and defence of the accused persons appears to be more probable. At least it creates doubt regarding the case of prosecution that the cheque for Rs.10 000/- – was given towards the demand of dowry. PW-1 admitted in the cross-examination that accused No.2 is the native of Goshanatti in Khanapur Tal, and he has not got house and land at Goshanatti. But she denied that accused no.2 is cultivating lands personally. But she admitted that she does not know who is cultivating the land of accused No 1. She also denied that accused Nos.3 to 6 were residing at Goshanatti. She had admitted that accused No.l was running the truck. She admitted that her daughter had come for delivery to her house and she stayed for seven months with them and after delivery after about three months, she went to her husband’s house. She denied that they had paid the cheque for repairs of the said truck which met with an accident.
43. PW-1’s evidence is also significant. He stated his daughter and son-in-law-accused No. l came to his house and his daughter told that there is no ill-treatment by her husband but stated that there is ill-treatment by accused Nos. 4 to 6 and so, she does not want to go back and stayed there. From this evidence of PW- 1, it is clear that there was no ill-treatment by accused Nos. 1 to 3 to the deceased Ratnavva and ill-treatment if any, was only by accused Nos. 4 to 6. In spite of the same, PW-1 stated that on the next day, his daughter and accused No. l went to their house. Another version given by this witness is that accused No.4-Geeta had no issues and she was insisting the deceased Ratnavva to give her son in adoption to her, to which she refused and so accused No.4 started ill-treating her. This version is unbelievable, simply because, accused No.4 has no issues, it does not mean that she same will insist her brother or her brother’s wife to give their only son in adoption to her. Even assuming that she has demanded so, it does not mean that is demand of dowry so as to attract the provisions of Section 498 (A) IPC.
44. PWs 1, 2 and 5 i.e. father, mother and brother of the deceased do not speak of any dowry demand. The High Court’s reasoning that there was nothing to show that A-1 owned a truck is contrary to the evidence on record. PW-1 has accepted the position as noticed by the trial Court. There is no analysis of the conclusions of the trial Court by the High Court.
45. Above being the position, the interference by the High Court with the order of acquittal is not correct. The impugned order of the High Court is set aside. The bail bonds executed pursuant to this Court’s Court dated 22.3.2002 shall stand discharged. The appeal is allowed.
……………………………………J. (Dr. ARIJIT PASAYAT)
(ASOK KUMAR GANGULY) New Delhi, March 31, 2009