Boon or bane? Kolkata can't agree on 498A

Boon or bane? Kolkata can't agree on 498A
As by TNN | Jul 5, 2014, 02.33AM IST

KOLKATA: The Supreme Court verdict on Section 498A that police have to investigate before arresting the accused has sparked a debate in Kolkata. While women's rights groups fear it might weaken battered wives' only remedy against abuse and torture, legal experts feel it will help prevent misuse of the law and make it more balanced.

Bengal is a lab case for Section 498A a whopping 29,800 cases were registered in the state 2013, but led to only 2.3% convictions. This has been the trend for the last few years.

These figures indicate that an alteration was necessary, lawyer Shekhar Bose says. "In 80% of the registered complaints, the charges are fabricated or exaggerated. There have been numerous instances where members of the husband's family, who live abroad or in other cities, have been arrested. Such a law cannot exist without an amendment," Bose said.

Lawyer Jayanta Chatterjee remarked that the vast majority of complainants were from urban areas, where many case were lodged by women "to teach their husbands and in-laws a lesson". "Thousands of women in rural interiors, who face genuine abuse, neither know about the law nor have access to police and lawyers," he pointed out, adding: "We need Section 498A for women who are abused and tortured. But we also need to make sure that it's not misused. False complaints are lodged too often, leading to family break-ups. Eventually, it's not just the husband who suffers in such cases, but also the wife. This provision for an enquiry will help stop that."

However, State Women's Commission chairperson Sunanda Mukherjee doesn't agree that misuse is reason enough to alter the law. The provision for enquiry shuts the door on women seeking justice, she argues. "Every law is liable to be misused. People are wrongly charged for murder under Section 302. So, do we stop punishing murderers?" she asked.

A law which is yet to be used by majority of victims can't be said to have been misused, she pointed out. "Section 498A is not yet accessible to thousands of women in marginalized sections who are abused, tortured and thrown out of their homes. Yes, it has been misused by some women in cities, but that can't justify this alteration which makes the law ineffective. We all know that left to them, police won't make any effort to arrest even a genuine offender. They could be bribed to scrap or fudge an enquiry. More importantly, how can you find evidence for psychological torture, which is very important in Section 498A?" she asks.

Former women's commission member Bharati Mutsuddi sees it as a major setback for women's rights. "Women are now at the mercy of police and administration, which were always insensitive to them. Section 498A was the only major weapon women had against marital abuse and it's now taken away. The law was the result of a long struggle for justice. All that effort and struggle now goes down the drain," she said.

Author Suchitra Bhattacharya felt it was better to make some investigation before arresting the accused. "I know many cases, particularly in urban areas, where the women take advantage of this law. They make false allegations and the in-laws have to suffer," she said.

Lawyer Sudipa Bhattacharya felt the alteration will make it a more balanced law, but the poor and marginalized could suffer. "It will be difficult for poor, illiterate women in our villages to get police to act," she said.

Bose argues that it is too early to conclude that the law has turned impotent and that police will be biased against women. "First, it remains a non-bailable section which means the law is strong enough. An offender, if found guilty, will face the same stringent penalties. It will be hasty to assume that police will allow offenders to go scot-free. Let us give the new law a fair run for it is a far more balanced and fair one," said Bose.

Mahua Bhattacharjee of Parash Pathar, an organization that fights for 498A "victims" across the country, said: "This is a great relief against misuse of the dowry law which has left as many victims as it has secured the fate of women against dowry atrocity." Many grey areas still exist, she remarked. "Since it is non-cognizable, non-bailable and non-compoundable, a 498A case cannot be withdrawn by the complainant. I know a couple, who are still fighting the 498A case years after their differences were resolved."

But why does Bengal top the list of 498A cases? "It is because of changing values of Bengali women. There is great deal of disharmony in families with saas-bahu relations. The daughter-in-law files a 498A complaint to teach her husband and mother-in-law a lesson, but eventually the complaint turns out to be too costly for both parties," said Bhattacharjee.

Sourav Ganguly, a lawyer with an expertise in handling 498A cases, said, It is a common practice by the prosecution specially in this part of the country that an accused is forwarded before a Magistrate along with a document commonly known as the ?Forwarding Report', while dealing with the question of detaining the accused for a period of more than 24 hours only deals with the forwarding report, the written complaint, the formal F.I.R prepared by the Police, the arrest memo, medical report of the accused and some times with the seizure list if supplied by the prosecution.

After this apex court judgment, the magistrate has to apply his judicial mind to determine whether the circumstance justify detention of the accused in police custody. Police custody being an infringement of liberty should not be ordered as a matter of course as the law has for his protection provided for the compulsory production of a person before a Magistrate either 24 hours of his arrest and this constitutional right has been given "to prevent arrest and detention with a view to extract confession" and "to afford an early recourse to a judicial officer independent of the police on all questions of bail or discharge [30 CWN 985]. Section 167 Cr.P.C. has given him full discretion to order detention in such custody as the Magistrate thinks fit but if detention in police custody is ordered, he must record his reasons U/s 167 (3) Cr.P.C.

It will also prevent marital splits on flimsy grounds, the latter argued.

Source-http://timesofindia.indiatimes.com/city/kolkata/Boon-or-bane-Kolkata-cant-agree-on-498A/articleshow/37800684.cms

Rampant Misuse and Abuse of Highly biased Women Centric laws - ALL MEN must watch - Rights of Arrested Person or In case of Arrest

In the wake of surge and rampant Misuse and Abuse of Highly biased Women Centric laws. 

A Must watch for ALL MEN !

Rights of Arrested Person or In case of Arrest 

Telecased on 09th June 2014 in an episode of Legal Point on Lok Sabha TV 

Eminent Panelist include - 

Retd Judge, Lawyer, Police Officer.

Part 1 of 3 

Part 2 of 3

Part 3 of 3

ALL THREE PARTS in PLAYLIST

Where judges save marriages

Where judges save marriages

Smriti Singh, TNN Oct 6, 2008, 03.01am IST

With an alarming increase in the number of couples heading for divorce in the Capital, judges have now stood up to save the sanctity of marriage. From advising the couple to give their marriage a second chance to making them understand the practicality of life, the judges are doing everything that can change the mind of the couple heading for separation.

The concept of mediation centres is rapidly gaining popularity, and with a success rate of 63%, this new role of the gravel-hammering judges has earned them accolades from everywhere. According to recent court figures, more than 1,36,000 marriages take place every year while some 8,000-9,000 divorce cases are filed each year. In fact, an average of 10 cases are filed per day in just one court.

However, the new Additional Dispute Resolution (ADR) method has given the judiciary a more humane approach in resolving the matter. Sample this: A couple which had filed for a divorce recently went back to give their marriage a second chance after attending sessions in the mediation centres. "The main problem with the couple was a communication gap as both were working. So, when they approached us, all we told them was to talk, be more expressive and resolve their issues over a cup of coffee. It worked for them and within 5 sittings, they decided to give it another shot," said a mediator judge who refused to be named.

Earlier, this wasn't the role of mediation centres. The case was generally forwarded to the civil courts if the couple was not ready to reconcile. However, the new ADR method involves an enhanced role of the judge. The centres have taken the help of ADJs to do the job of the mediators. In the mediation centre at Gole market, which comes under Delhi Legal Services Authority, there are five district and sessions judges, who meet couples everyday between 8am to 7pm. Similar mediation centres can be found in Tis Hazari and Karkardoma. "The role of the judge in these mediation centres is not only to mediate between the couples but also to understand the dispute between the two parties and come up with an amicable solution," Sanjay Sharma, the project officer of DLSA, told TOI.

"Mediation in the context of matrimonial disputes is different in form and content from commercial and property disputes. So we give advice on things like motivation, sentiments, social compulsions, personal liabilities, and responsibility to solve the matter," said a mediator judge on the condition of anonymity.

The latest figures at the Tis Hazari mediation centre are encouraging. The success rate of settled cases in Tis Hazari is as high as 63% while at Karkardoma it's close to 60%.

"Out of 7,473 cases handled by the mediation centre in the past three years, 7,264 have been disposed off by now. About 4,605 cases have been settled successfully," informed Kapoor, the judge in charge of the mediation centre in Tis Hazari courts.

"Our main job is not to tell them what to do, but to mediate between the two parties. We motivate these couples to sort out their differences and the judges here try to talk to them about issues like personal liabilities and responsibilities to solve the matter," Kapoor added.

The judges at the mediation centres believe that the mindsets of the people have changed over the years. While earlier getting a divorce was considered the last resort for a couple, now they consider it their first option.

Mediator to the rescue

Anita Dhingra (name changed) never thought that her marriage of six years would come crashing down after her husband got a job transfer to another city. Anita, a working professional, did not want to leave her job so both decided to work in different cities for a while, hoping to find a solution soon. "It never worked out. Instead, we grew apart and problems started arising. I was accused of not being mature and understanding. There was too much stress," she said. In November 2007, the couple decided to split and filed for a divorce.

Their counsels suggested sessions in the mediation centre. Both agreed and as they say the rest is history. "We both were pretty apprehensive about going for sessions in the mediation center but we went ahead. The first few sessions were a waste as we just blamed each other for every thing and refused to reconcile. But then, our mediator asked us to reason out the differences and suggested certain ways to mend our differences," she said.

The first suggestion was to interact. The mediator advised the couple to take a cool-off period and think about the positive side of the relationship. "Although, the mediator never enforced anything on us, her advice came in handy and our differences started to dissolve," Dhingra said.

After the 10th session, the couple decided to give their marriage another try. Cut to September 2008, and the couple is living happily in the capital with Anita's husband taking up another job here.

This is not the only case where the help of a mediation centre has come to the rescue. There have also been number of cases where the couple still head for a divorce but on "cordial terms". One of the mediators in Tis Hazari courts explains, "Most of the time the couple comes with a decision. So we try that no matter what the decision they take in the end, it has to be on cordial terms." The mediator added that many couples who still went ahead with the divorce are now good friends. "It's healthy for everyone. Especially, if they have kids," she said.

(smriti.singh@timesgroup.com)

http://articles.timesofindia.indiatimes.com/2008-10-06/delhi/27926178_1_mediation-centres-judges-divorce-cases

Misuse of IPC 498A Dowry Harassment Laws - The Bared Naked Truth  

Wasif Ali slams Feminists' web of lies on Gender Discourse programme of LOKSABHA TV on 28 Aug 2011

Part 1/4

Part 2/4






Part 3/4





Part 4/4

Is the Apex court legalising DOWRY giving !

 

A woman and her family members cannot be treated as accused under the Dowry Prohibition Act for giving dowry at the time of marriage, the Supreme Court has said. A bench of Justices HS Bedi and CK Prasad upheld the Delhi High Court verdict that quashed a criminal case against a girl stating a dowry harassment victim was protected under the law and, could not be charged under the Act.

Two separate benches of the Delhi HC had taken divergent views on the issue. While Justice SN Dhingra (since retd) held the woman and her family could be prosecuted for giving dowry, Justice Ajit Bharihoke had said it could not be done.

The latter judgment held that section 7 of the Dowry Prohibition Act provided protection to the person who was a complainant under the law. Section 3 of the Act makes giving, accepting or abetting dowry an offence.

The SC order clarifies the legal position regarding the culpability of an alleged dowry-giver bride. It dismissed the appeal against Justice Bharihoke’s verdict filed by the husband who claimed that the judge could not have delivered it as the law was settled by Justice Dhingra.

The bench, however, dismissed the petition and said, “The girl is a victim and you want her to be prosecuted also. Then 498A (dowry harassment section) would be rendered nugatory.”

Vijary Aggarwal counsel for the woman who faced the case for giving dowry, contended there should be harmonious construction of the Act.

Justice Bharihoke had in October 2010 quashed a metropolitan magistrate’s order that directed registration of a case under the Act against a woman. The case was registered following a complaint made before the court by the husband.

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Full text of SC order

ITEM NO.14 COURT NO.7 SECTION II
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl) No(s).1339-1340/2011
(From the judgement and order dated 20/10/2010 in WP No.
501/2010 & CRLMA No. 3921/2010 of The HIGH COURT OF DELHI AT N.
DELHI)
SAMEER SAXENA Petitioner(s)
VERSUS
STATE OF NCT OF DELHI & ANR Respondent(s)
(With appln(s) for exemption from filing c/c of the impugned
Judgment)
Date: 07/03/2011 These Petitions were called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE HARJIT SINGH BEDI
HON'BLE MR. JUSTICE CHANDRAMAULI KR. PRASAD
For Petitioner(s) Mr. Gagan Preet Singh, Adv.
Mr. Karan Bir singh, Adv.
Mr. Rameshwar Prasad Goyal, Adv.
For Respondent(s) Mr. Vijay Aggarwal, Adv.
Mr. Rajnish Kumar singh, Adv.
Mr. Tanmay Mehta, Adv.
Ms. Manjusha Wadhwa, Adv.
UPON hearing counsel the Court made the following
O R D E R

Heard the learned counsel for the parties.
We see no reason to interfere in the Special
Leave Petitions which are, accordingly,
dismissed.

(KALYANI GUPTA) (VINOD KULVI)
SR. P.A. COURT MASTER

-------

 

 

Cases against women

Delhi police issues circular in 2007 asking its officers to register cases under the Dowry Act against women who marry despite dowry demand

Mar 19, 2010: Delhi court orders case against a woman saying she had willfully given dowry

Dec 4, 2008: Noida court orders case against woman.

http://www.hindustantimes.com/Relief-for-women-in-dowry-cases/Article1-671472.aspx

'No personal interest in Afzal's execution'

'No personal interest in Afzal's execution'

New Delhi, March 03, 2011

A day after slamming the government for inordinate delays in arriving at a decision on Parliament attack case convict Afzal Guru's mercy plea, Justice SN Dhingra on Wednesday said he did not have any personal interest in the matter. "I cannot have any personal interest in Afzal Guru's hanging nor am

I personally aggrieved. My job, as a judge, was to decide the case on the basis of evidence and give the sentence. Now, it is for the Executive to take a decision on the hanging," Justice Dhingra told HT.

On the day of his retirement as a Delhi High Court judge, Justice Dhingra, who sentenced Guru to death, had on Tuesday said: "Ministers on various platforms criticise the judiciary for pendency and talk of speedy trial…they forget the Centre is unable to take a decision on his (Afzal's) mercy petition and on many others on death row for several years."

Dhingra, who pronounced judgment in the case, within a year, said mercy petitions did not require detailed examination, as there was no need to go into the specifics.

He added that the Centre needs only to look at the basis on which courts had come to such a conclusion.

"The Centre is unable to do even this much and at the same time, keeps blaming the judiciary for pendency," he said.

The Supreme Court had, in 2006, dismissed Guru's appeal against his death sentence, after which he had filed a mercy petition.

After shooting into the limelight with the order, Justice Dhingra, who became a Delhi High Court judge five years ago, has been widely acclaimed as a judge who boldly stood up for citizens rights in the capital and speedy trial.

Justice Dhingra has also been known to uphold the freedom of the press by ruling that journalists cannot be prosecuted for carrying out sting operations to expose corruption.

http://www.hindustantimes.com/No-personal-interest-in-Afzal-s-execution/Article1-668747.aspx

Misuse of dowry provisions is legal terrorism: Delhi Court

Misuse of dowry provisions is legal terrorism: Delhi Court

Smriti Singh, TNN, Mar 3, 2011, 01.39am IST

NEW DELHI: Terming the misuse of provisions of dowry harassment by women as "legal terrorism'', a trial court has slammed such women who, in a bid to settle scores, drag all family members into a dowry harassment case though they may be "totally unconnected" with the case.

"The provisions of Section 498A are not a law to take revenge, seek recovery of dowry or to force a divorce but a penal provision to punish the wrongdoers. The victims (women) are often misguided into exaggerating the facts by adding those persons as accused who are unconnected with the harassment under a mistaken belief that by doing so they are making a strong case," additional sessions judge Kamini Lau said.

The court's remarks came while discharging a man, who was chargesheeted by police for allegedly harassing his sister-in-law for dowry. A metropolitan magistrate had summoned the man on the basis of the complaint. The man had moved the sessions court challenging the magistrate's order saying there was no legal evidence against him.

Even as the complainant alleged that the man beat her up for dowry, the court was shocked to know that he was not even present in the house at the time of the incident. In her complaint, the woman alleged that her brother-in-law on October 23, 1998, asked her to bring more money for her husband and when she showed her helplessness, she was slapped and threatened by him.

The man, however, proved his innocence by producing the certificates which stated that he was living in Mumbai at the time of the incident. After going through the record, ASJ Lau said, "in any matrimonial dispute, it is the primary duty of every court to ensure that for any fault of the husband, his other relatives including married sisters and brothers who may be living jointly or separately and the aged parents are not involved either out of vengeance or to curl out appropriate settlement."

The court also expressed its displeasure over the misuse of the dowry harassment laws. "I am compelled to observe that provision in the recent years has become consummate embodiment of gross human rights violation, extortion and corruption and even the Apex Court of our country had acknowledged this abuse and termed it as legal terrorism," it said.

http://timesofindia.indiatimes.com/city/delhi/Misuse-of-dowry-provisions-is-legal-terrorism-Court/articleshow/7615680.cms#ixzz1FUGOhqQv

Supreme Court admits it erred, upholds commutation of death penalty

Supreme Court admits it erred, upholds commutation of death penalty

Supreme Court: a frank admission

New Delhi: In a rare instance, the Supreme Court has admitted that its earlier judgments, in one and the same case, upholding the death sentence awarded by the trial court and confirmed by the High Court were a mistake and violation of human rights of the accused. The court in a second review upheld the Assam Governor's order commuting the punishment to life sentence.

A Bench of Justices Aftab Alam and A.K. Ganguly in a recent order said: “Instances of this court's judgment violating the human rights of the citizens may be extremely rare but it cannot be said that such a situation can never happen. On a review of the reasoning in the petition, we find that the finding in the judgment is vitiated by errors apparent on the face of the record.”

Inalienable right

Writing the judgment, Justice Ganguly said: “Human rights are the basic, inherent, immutable and inalienable rights to which a person is entitled simply by virtue of his being born a human. They are such rights which are to be made available as a matter of right. The Constitution and legislation of a civilised country recognise them since they are so quintessentially part of every human being. That is why every democratic country committed to Rule of Law put into force mechanisms for their enforcement and protection.”

In the instant case, the Assam trial court held Ram Deo Chauhan alias Raj Nath Chauha guilty of murdering four members of a family in March 1992 and slapped the death penalty on him. This was confirmed by the Gauhati High Court and later by the Supreme Court in July 2000.

Review petition

In a review petition, the convict took the stand that he was a minor aged 16 at the time of the offence and the hence the death penalty could not have been awarded by the courts below.

A three-judge Bench by a majority of 2:1 rejected the review petition and again confirmed the death sentence. But Justice K.T. Thomas, in his minority judgment, felt that since there was a doubt whether Ram Deo was a minor or not when the offence was committed, it would be in the interest of justice to commute death to life imprisonment.

Later, acting on a an article written by Ved Kumari, Professor of the Faculty of Law, University of Delhi, the National Human Rights Commission headed by the former Chief Justice of India J.S. Verma felt that Justice Thomas' reasoning was the correct approach and recommended that the death sentence be commuted and the Governor accordingly did so.

However, on a writ petition, the Governor's order was set aside by the Supreme Court in 2009 holding that the NHRC had no jurisdiction to intervene in the matter.

Governor's order restored

Allowing the review petition against this order, the Bench said: “On a very careful consideration of this issue, this court thinks that in view of various questions of far-reaching importance having been raised in this second review, it may be a travesty of justice if this petition is dismissed. If a person has been guaranteed certain rights either under the Constitution or under an international covenant or under a law, and he is denied access to such a right, then it amounts to a clear violation of his human right and NHRC has the jurisdiction to intervene for protecting it. We are of the opinion that in doing so, NHRC acted within its jurisdiction.”

The Bench restored the Governor's order of commutation of the death sentence.

Eminent people dare SC to book them for contempt too

Eminent people dare SC to book them for contempt too

NEW DELHI: Twenty-five citizens, including eminent persons, on Tuesday moved the Supreme Court daring it to initiate contempt proceedings against them as they were expressing solidarity with advocates Prashant and Shanti Bhushan, who had alleged that eight of the 16 former Chief Justices of India (CJIs) were corrupt.

The applicants included RTI activist Arvind Kejriwal, social activist Aruna Roy, National Advisory Council (NAC) member Harsh Mander, former IIM Ahmedabad director-in-charge Prof Jagdeep S Chhokar, Magsaysay Award winner Rajendra Singh, former IFS officer and social activist Madhu Bhaduri, JNU's professor emeritus Amit Bhaduri, former West Bengal additional chief secretary Kalyani Chaudhuri and social activist Madhu Kishwar.

Others included professionals ranging from engineers, journalists, RTI activists, a major general and an educationist. Appearing for them, senior advocate Vikas Singh requested a Bench comprising Justices Altamas Kabir, Cyriac Joseph and H L Dattu that they be made parties in the contempt proceedings drawn against Prashant Bhushan for his views about corruption in judiciary published in a weekly magazine last year. With so many eminent persons seeking to be respondents in the case, the bench refused to take up the application.

http://timesofindia.indiatimes.com/india/Eminent-people-dare-SC-to-book-them-for-contempt-too/articleshow/7062743.cms#ixzz17T4nY8T8

Put all new FIRs online: Delhi HC

Put all new FIRs online: Delhi HC

7th Dec 2010

NEW DELHI: In a major move towards transparency in police functioning, the high court has directed the Delhi Police to start uploading all First Information Reports (FIRs) registered in the city onto its website within 24 hours of filing. The police are required to implement the order from February 1, 2011.

The landmark order, passed by a division bench comprising Chief Justice Dipak Misra and Justice Manmohan, said it's the duty of the police to provide information and the accused does not need to move court to get a copy of an FIR.

"Fair and impartial investigation is a facet of Article 21 of the Constitution and presumption as regards the innocence of an accused is a right. Therefore, a person booked under criminal law has a right to know the nature of allegations so that he can take necessary steps to safeguard his liberty," the bench said.

Earlier, additional solicitor general A S Chandiok and amicus curie Arvind Nigam submitted their suggestions on the matter.
The counsel had said that recording of an FIR was an official act of a public official in discharge of his or her official duties and, therefore, it was a public document within the meaning of Section 74 of the Evidence Act, 1872.

The court said an accused was entitled to get a copy of the FIR earlier than what's prescribed under Section 207 of the Criminal Procedure Code (which says the FIR would be supplied through a magistrate's order after the accused moves court).

http://timesofindia.indiatimes.com/city/delhi/Put-all-new-FIRs-online-Delhi-HC-/articleshow/7056292.cms#ixzz17Nmc2yYg

Justice Dhingra aquits Mother in law of dowry death, slamming the trial court and public prosecutor for callousness. 'Criminal Justice System in India Needs Overhauling'

Justice Dhingra aquits Mother in law of dowry death, slamming the trial court and  public prosecutor for callousness. 'Criminal Justice System in India Needs Overhauling'

The Delhi High Court has said the justice delivery system needs overhauling as the poor are not getting timely justice in higher courts which are are kept occupied with cases involving persons with money or power.

"The whole criminal justice system needs overhauling so that the constitutional mandate of equality before law is made meaningful and it should not be the case that higher courts are kept occupied by the persons with money or power, as is the case today," the court said.

The court made the remarks while setting aside the conviction of a poor vegetable vendor who had to spend seven years in jail due to delay in disposing his appeal in the High Court.

The trial court had awarded seven years jail term to the vendor for allegedly killing his wife in 2003 and he filed an appeal in 2004 on which the High Court took six years to pass the verdict.

In the verdict, Justice S N Dhingra found him innocent and acquitted him but he had already spent his jail term.
"In this case, the High Court did not find time to hear the appeals of other two appellants who continued to remain in jail during trial period as well as appeal period for no crime of theirs," the court said adding the High Court should fix a time limit for disposing of such appeals.

"Neither the criminal should be let off by default as the High Court has no time to hear appeals nor should the innocents rot in jail by default," the court said.

The High Court pulled up the trial court for convicting the accused even though there were not sufficient evidence against him and merely on the basis of a statement made by his brother-in-laws.

"The conviction seems to be the result of a callous criminal justice system where neither the defence counsel prepared the case nor the prosecutor discharged his duty in an impartial manner nor did the judge consider it as his duty to see what offence was made out and everyone acted in a mechanical manner," the court said.

The court found that there was no evidence that the accused was harassing his wife for dowry leading to her death."The most disturbing factor is that no evidence, whatsoever, was collected by the police about the real facts. No effort was made by the public prosecutor or by the trial judge to even go through the evidence and consider what charges were made out. Charges seemed to have been framed in a mechanical manner," the court said.

In this case, the accused had married Janki in December, 2000 and she died within five months of her marriage.The court said that in such cases husband and in-laws should come forward to tell what was the real cause of death.

"The criminal practice in India has been on the lines of old track that accused must not speak and he should not be examined as a witness. I do not know why this practice developed but in all matrimonial offences, this practice is shutting the doors of the court to the version of the other side by their advocates," the court said.

http://news.outlookindia.com/item.aspx?703620

Plea to recall ruling where woman was described as ‘keep' - look who's talking of Gender Neutrality

Plea to recall ruling where woman was described as ‘keep' - look  who's talking of Gender Neutrality

Contending that the use of the expression ‘keep' in a recent judgment to describe a woman was highly derogatory and a discrimination against women on grounds of marital status, Mahila Dakshta Samiti, a women's organisation has moved the Supreme Court for its recall.

On October 21, a Bench of Justice Markandey Katju and Justice Gyan Sudha Misra in a judgment had said, “not all live-in relationship will amount to a relationship in the nature of marriage to get the benefit of the Protection of Women from Domestic Violence Act of 2005. If a man has a “keep,” whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a “relationship in the nature of marriage. Merely spending weekends together or a one-night stand would not make it a ‘domestic relationship.”

Offended by the expressions used, the very next day, Additional Solicitor-General Indira Jaising voiced her protest before Justice Katju, who wrote the judgment, and indicated that women's organisations would be filing review petitions for recall of the ruling.

In its review petition, Mahila Dakshta Samiti said, “the expression such as ‘keep' which specifically refer to woman is based on social and cultural prejudices which need to be eliminated in order to prevent discrimination against woman. The expression would perpetuate social and cultural prejudices and is based on the idea of stereotyping woman.

It submitted that “Article 2(f) of the Convention for Elimination of Discrimination against Women calls for change in the traditional roles of men and women in bringing about gender equity. Article 2(F) provides that States should take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices, which constitute discrimination against women.”

It said, “in law only chattel can be “kept” and not human beings. Slaves could be “kept” as they are considered chattels in law and owned by the master. Hence the word ‘keep' is inappropriate in a constitutional regime such as ours which guarantees fundamental rights and the dignity of woman. The use of the expression ‘keep' violates Article 14 and 15 of the Constitution of India as it is not gender neutral and applies only to women. Further the expression ‘servants' is derogatory of the dignity of labour and they are now known as domestic help.”

The petitioner said, “while deciding the nature of the relationship, which meets the requirement of a relationship in the nature of marriage, the Supreme Court has also laid down certain relationship which do not qualify for being described as relationship in the nature of marriage.

It said the court had recorded its findings based on Wikipedia, which is an online encyclopaedia and information can be entered therein by any person and as such it may not be authentic and cannot be used for the purpose of determining the content of relationship. It was of the view that the Supreme Court was not called upon to give such observations in the facts and circumstances of the case as emerging from the judgment. The petitioner while seeking to recall the order in so far as the use of these expressions was concerned sought an oral hearing.

http://www.thehindu.com/news/national/article918011.ece

Honesty can’t be faked

Honesty can’t be faked

November 29, 2010   3:18:27 AM

Joginder Singh

The Government has grievously erred in the appointment of PJ Thomas as Central Vigilance Commissioner. It must make amends without delay

The Supreme Court of India, while hearing two separate though connected cases of public interest litigation, has raised a pertinent question by asking as to how the newly-appointed Central Vigilance Commissioner could fulfill his responsibilities since he is still an accused in a criminal case relating to irregularities in the import of palm oil. The Supreme Court has pointed out that the Central Vigilance Commissioner is supposed to order investigations into complaints of corruption received by the Commission he heads, the appellate anti-corruption body which supervises the functioning of the Central Bureau of Investigation. The accused in such complaints could well say: “You cannot deal with these as you are an accused in a criminal case yourself.”

According to the two PILs, the Union Government had ignored the Supreme Court’s guidelines for the appointment of the CVC. Under these guidelines, a three-member committee is supposed to select the CVC from a panel of civil servants with impeccable integrity and outstanding career records. The Supreme Court wanted to know whether this criterion had been followed. It also asked the Government whether the charge sheet against Mr PJ Thomas had been consistently ignored over the last 10 years during which time he was promoted several times — from being Food Secretary in Kerala he became Telecom Secretary and Secretary in the Ministry of Parliamentary Affairs before being appointed CVC. The Supreme Court said, “We are not against the person but we are on his office... We want to know if he, being an accused, is able to function at this sensitive post.” The Vigilance and Anti-Corruption Bureau of Kerala had filed the charge sheet in the palm oil import scam as per Section 19 of the Prevention of Corruption Act after securing proper sanction.

The Attorney-General later commented that if the criterion of ‘impeccable integrity’ were to be strictly applied then even the appointments of several judges and others holding constitutional office would be “subject to scrutiny and challenged”. The Attorney-General, perhaps, may not be aware that for every worthwhile appointment, including that of the judges, a vigilance clearance is required. The appointment of Chief Vigilance Officers of Government departments and public sector undertakings is cleared by the CVC after obtaining necessary reports from the CBI and other agencies. In fact, the Chief Justice of India rammed home the point by saying that under service rules, someone with a charge sheet pending against him would not even be considered for a promotion.

There is more than what meets the eye in all high profile appointments by the Government irrespective of the party in power. Rulers who abide by ethics do not need laws to tell them to act responsibly; those who are unscrupulous constantly seek a way around laws. The top bureaucrats — the Cabinet Secretary, the Home Secretary and the Principal Secretary — are all from Kerala. A phone call or an e-mail from any of them would have fetched them the latest information about the status of the case against Mr Thomas. The officer cannot be faulted for the munificence of the Government, but his colleagues who suppressed facts must share the blame. Fellow bureaucrats have got him a post-retirement job, that too with the status of a Supreme Court judge, that will keep him in comfort at taxpayers’ expense for another five years.

Indeed, the Union and the State Governments run an employment exchange for retired officers who have not only toed the line laid down by their political bosses but also, when asked to bend, have chosen to crawl. There are more than 400 committees and commissions which are practically reserved for retired officers. This is strange as most of the working officers in senior positions do not have even half-an-hour of work. Sometime back I ran into a Secretary to the Government and asked him was work. He said since he did not toe the line of his Minister the post of OSD was created for him. He defined OSD not as Officer on Special Duty but Officer in Search of Duty.

The only condition of post-retirement employment is that the bureaucrat should not only be flexible but also pliable. It is said in jest that civil servants lose a vertebra of their backbone for every one or two years of their service. By the time they retire, barring honourable exceptions, most of them become spineless wonders. They do so in the interest of their survival and occupying good posts till they kick the bucket. Nobody doubts the integrity of the Prime Minister, but he seems to have an incredible amount of faith in a corrupt bureaucracy which does not place all the facts before him. Why should the Government try to justify the unjustifiable? It has blundered in the appointment of the CVC.

Good governance requires hard work and the courage to take decisions. You do not need Solomon’s wisdom to realize that our actions produce reactions. When the Government has fixed the retirement age for bureaucrats at 60, why should some be favoured with extensions in service for five years by being appointed to various commissions or constitutional posts? The Government swears by the rule of law and fairplay but more often than not it treats some as more equal than others.

Thanks to the Supreme Court, the law of the land still remains alive and is periodically upheld as above all, no matter how powerful the individuals or institutions concerned may be. The Government must realize that there is no room for legal hair splitting on the pertinent questions raised by the Supreme Court in the case pertaining to the appointment of the CVC in violation of all norms and guidelines. There really should be no need to remind the Prime Minister, whose integrity is unimpeachable and who has a high sense of probity that governance is largely about being honest and speaking the truth, no matter how bitter it may be. Given the fact that the Prime Minister is widely seen as an honest individual, he should take the initiative in rectifying the blunder made by his Government in the appointment of Mr Thomas as the CVC. He is clearly not the right choice for the job; he should be removed and due diligence must be applied in finding an officer to replace him. There is no shortage of those who fit the bill and have an unblemished record. What Carlyle said for individuals is equally applicable to the Government: Make yourself an honest man, and then you may be sure there is one less rascal in the world.

http://www.dailypioneer.com/299756/Honesty-can%E2%80%99t-be-faked.html

Man fighting for harassed husbands fined 1L by Gujarat HC

Man fighting for harassed husbands fined 1L by Gujarat HC

TNN, Nov 26, 2010, 03.32am IST

AHMEDABAD: The Gujarat HC on Thursday slapped a penalty of Rs 1 lakh on Dashrath Devda, president of Akhil Bharatiya Patni Atyachar Virodhi Sangh for protesting against alleged misuse of domestic violence laws. A division bench fined him for filing frivolous PIL and for wasting court's time.

Devda had approached the HC by way of filing a PIL demanding judicial interference in the alleged misuse of protection laws for women. He was demanding a protection in legislation for men, who are according to him henpecked by their wives.

Devda has been claiming that women have abused the laws, which are in favour of them, but certain protection for men is also required against the misuse of the legislation. He filed this PIL, which came up for hearing before a division bench. When Devda began arguments as party-in-person, the court asked him to withdraw his PIL because his demand was to amend the legislation. Refusing to pay any attention to what the court was hinting at, Devda continued to argue how women in this country are worshipped, and no law is required for their protection. However, the chief justice repeatedly asked him to withdraw the PIL.

Ultimately, the court imposed a fine of Rs 1 lakh on Devda and asked him to pay the money to the Self Employed Women's Association — an NGO working for women empowerment. The court has directed Devda to pay the amount of penalty within two months.

Devda and members of his association often stage demonstrations and take out rallies in the city in protest against the domestic violence laws. They also help men in court proceedings, who face charges of domestic violence from their spouses. In this PIL also, Devda tried to assert their views that different pieces of legislation favouring women are misused, and ultimate sufferers are the family members. The association has been protesting against anti-dowry law of Section 498A of IPC, alimony related provisions in Section 125 of CrPC and the Protection of Women from Domestic Violence Act.

 http://timesofindia.indiatimes.com/city/ahmedabad/Man-fighting-for-harassed-husbands-fined-1L-by-HC/articleshow/6991947.cms#ixzz16KwY9gFj

Re-look at the dealings of Domestic Violence Act and Section 498a of the IPC-women's movement should focus more on protecting families than fighting against men

Re-look at the dealings of Domestic Violence Act and Section 498a of the IPC-women's movement should focus more on protecting families than fighting against men 

MYSORE: The Ashodaya Samithi, an organization helping sex workers and University of Mysore highlighted various forms of violence, harassment and exploitation faced by women in society, on Thursday. The event was held to observe international day for elimination of violence against women. It emphasized on the fact that decline in human values has led to various problems faced by women in society.

Southern police range departmental enquiry cell DySP Dharanidevi Malagatti said where there are no human values there will be more exploitation and harassment. Violence against women is always a violation of human rights and is still prevalent in society.

Demanding salary from women, restricting women's freedom, forcing women to go for work, etc., all amounts to crime under Domestic Violation Act. The fairer sex is still tolerating various kinds of harassment in their places of work and at home, said Dharanidevi and sought an end to violence against women.

Sociology department chairman Gururaj B felt the need to accelerate efforts to educate people, particularly those from the lower and middle classes, as they are usually the silent victims of harassment and exploitation.

Expressing concern over the misuse of laws, the chairman claimed that 75% of cases filed against men for harassment is false. Quoting a report of mid-1990s, he stated that over 1.25 lakh women had committed suicide over harassment in India, whereas the number of men who ended lives over similar charges had crossed 1.5 lakh. "We need to take a re-look at the dealings of Domestic Violence Act and Section 498a of the IPC. Also the women's movement should focus more on protecting families than fighting against men," he stated.


 Decline in values has led to violence against women - The Times of India http://timesofindia.indiatimes.com/city/mysore/Decline-in-values-has-led-to-violence-against-women/articleshow/6990667.cms#ixzz16K5oXxNM

Judicial accountability Bill, cure worse than disease and Without transparency, there could be no accountability: Justice Shah

Judicial accountability Bill, cure worse than disease: Justice Shah

November 14, 2010

Without transparency, there could be no accountability

Highlighting serious lacunae in the proposed Judicial Standards and Accountability Bill, 2010, the former Chief Justice of the Delhi and Madras High Courts Justice of Delhi and Madras High Courts Ajit Prakash Shah on Saturday cautioned that the measure was an example of cure being worse than the disease.

“There is a complete misalignment and a mismatch between the present system of judicial appointments and core values of judicial accountability.”

He was delivering the keynote address after inaugurating a two-day seminar on “Strengthening Democracy: Role of Judiciary” organised here by the International Centre Goa (ICG) in association with the Media Information and Communication Centre of India, the Friedrich Ebert foundation-India and the Goa High Court Bar Association.

Emphasising the need for accountability, Justice Shah said that without transparency, there could be no accountability; secrecy was only the preserve of a dictatorship.

Analysing judicial accountability and its nuances, Justice Shah said there must be a balance between the competing principles of judicial independence, on the one hand, and accountability and transparency, on the other.

Straightjacket definition

His primary objection is that the Bill seeks to provide a straightjacket definition of “misbehaviour” under Section 2(j), which tends to lose its elasticity and become both under-inclusive and over-inclusive. A minor, inadvertent breach of judicial standards could constitute misconduct, and in so far as the definition is exhaustive, it is incapable of catching within its fold any “misbehaviour” that might not be covered by this provision.

Secondly, he said, the Bill tended to render the Oversight Committee just a post office referring each complaint to the Scrutiny Panel. This was likely to lead to multiplicity of complaints against judges and also a colossal waste of time.

Justice Shah's major objection is to the composition of the Scrutiny Panel which consists of three members, two of whom would be judges sitting in the same court as the judge against whom a complaint has been made. It would be difficult for judges to dispassionately decide a case against one of their own colleagues and sitting with them day in, day out.

Also, the composition and tenure of the Investigation Committee was undefined. Theoretically, therefore, it was possible for a layperson without any knowledge, experience and standing to be part of an inquiry panel against a sitting judge of a superior court.

Justice Shah said the Bill would create an atmosphere of total secrecy, more regressive than the present system, and there did not appear to be any rational reason for the change.

The idea of “minor” punishment was unworkable and it had the potential to seriously undermine judicial status.

Only binary system will work

A situation where sitting judges were publicly censured but they were still sitting on the Bench and deciding cases would damage the credibility of the entire system.

“This is an area where only a binary system of punishment can work. Either the judge is guilty and must be impeached, or he is not, and no action must be taken against him,” Justice Shah said, observing that the challenge was to develop mechanisms of accountability that did not undermine judicial independence.

Later speaking on ‘Accountability vs. Independence of Judiciary', Supreme Court lawyer Prashant Bhushan described the Bill as a “cosmetic exercise designed to fool the people into believing that some kind of exercise was conducted by the government to clean up corruption in the judiciary.” The outcome of it would be absolutely “zero.”

“If the government was serious on judicial accountability, then why is it not opening out consultations with public,” asked Mr. Bhushan and dubbed any exercise of consultations with judges “bogus” because judges had a vested interest in the Bill.

Goa Speaker Pratapsingh Rane and ICG Director Nandini Sahai were present.

http://www.thehindu.com/news/national/article884475.ece

Family courts falling short of goals

Family courts falling short of goals

By: Imran Shah | Published: October 14, 2010

LAHORE - The unexpected alarming surge in the institution of cases for divorce on the basis of Khula has made it difficult for the family courts to follow the National Judicial Policy-Making Committee (NJMPC), a body supposed to chalk out various long and short-term measures for early disposal of the cases.
The filing of divorce suits has witnessed an unprecedented surge over the last few years due to various factors like ever-rising unemployment and price-hike and monetary issues, in addition to the bad impact of entertainment channels, especially of Indian ones, revealed a survey conducted by TheNation.
The process of getting minors custody is a separate issue but all that including the recovery of dowry-articles and custody of minors can be claimed through a single suit, which has a relief to the women.
Advocate Muhammad Akbar Khan and others pointed out that family courts were overburdened with swelling pile of divorce suits. “The courts are falling short of the goals, set by the National Judicial Policy according to which family cases including that of the custody of minors and recovery of dowry-articles should be decided within six months,” they elaborated.
A data collected from the courts showed horrible figures of suits, instituted for getting divorces. In the family court of Civil Judge Syed Naseer Abbas Naqvi, a total 1,116 cases for dissolution of marriage were instituted from January to August 2010, and 1,046 cases of separations were decided by the court during the said period. Similarly the family court of Civil Judge Tamsal Syed Naeem received 724 cases for the dissolution of marriage from January to July 2010. Some 141 cases of family matters were instituted in the court of Civil Judge Ayeshum Bint-e-Sadiq in the month of July 2010. Again 90 per cent of the cases were of the separations.

http://www.nation.com.pk/pakistan-news-newspaper-daily-english-online/Regional/Lahore/14-Oct-2010/Family-courts-falling-short-of-goals

11 HC judges transferred ‘in public interest’

The government on Wednesday transferred 11 judges of six high courts who were recommended for relocation "in public interest" by the Supreme Court collegium.  HT was the first to report about the initiative of the Chief Justice of India (CJI), Justice S.H. Kapadia to shift judges, the biggest single shake-up since 1993.   

According to a Law Ministry notification, two judges each from Delhi, Allahabad and Andhra Pradesh High Courts have been transferred while three have been moved out of the Punjab & Haryana High Court and one judge each has been shifted out of the Madras and Orissa High Courts.

Justices V.M. Sahai and Poonam Srivastava of the Allahabad High Court have been transferred to the Gujarat and Jharkhand High Courts respectively.

Justices T. Meena Kumari and D.S.R. Verma of the Andhra Pradesh HC have been transferred to the Patna and Allahabad High Courts respectively.

Three judges from the Punjab and Haryana High Court — Justices Ashutosh Mahunta, Vinod Kumar Sharma and H.S. Bhalla — have been transferred to the Allahabad, Madras and Orissa High Courts respectively.

Justices S.N. Agarwal and Aruna Suresh from the Delhi High Court have been sent to the Madhya Pradesh and the Orissa High Courts.

Justice M.Jeyapaul of the Madras High Court and Justice B.P. Ray of the Orissa High Courts have been sent to the Punjab & Haryana and the Karnataka High Courts.

The collegium also recommended the transfer of Justice R.S. Mohite of the Bombay High Court to the Patna High Court, but he resigned last month.

http://www.hindustantimes.com/11-HC-judges-transferred-in-public-interest/Article1-612562.aspx

Is the judiciary going soft on murderers and rapists

 

Judges are actually given too much discretion

The judgment given in any case depends on the proceedings of the court and the judge's discretion. The standards adopted in a particular case may differ in the high court and Supreme Court. There are certain guidelines for a death sentence and it must be a 'rarest of the rare' case. Thus, there is no question of whether a judgement is 'right' or 'wrong' . It all depends on how the bench of judges perceive the case based on the submitted proof. The outlook of judges of a bench may also differ. There is no standardisation in the verdict to be pronounced. However, I would like to point out that judges are given too much discretion. In the end, judges base their verdict on the proof put forth after investigations.
-PB Sawant, former judge, Supreme Court of India

Leniency on the part of the Supreme Court is not justified

In our country, a death sentence is pronounced only in the 'rarest of rare' cases. The court makes its decision on the basis of evidence and the investigation carried out, but the punishment should be awarded in such a way that justice actually prevails. The reason that the judges gave for reducing the death sentence of the convict in the Priyadarshini Mattoo case are dubious. There is no justification for such a dreadful crime. It is different in a case where the victim is alive and the accused offers to marry the victim.
While upholding that he was guilty of the crime, the judges cited mitigating circumstances, which included the young age of the accused at the time of the murder and his having married and become a father. These factors cannot reduce the gravity of a crime that was premeditated and executed in the most brutal manner.
This kind of leniency on the part of the Supreme Court is not justified. The verdict in such a case should act as a deterrent to others as well. Leniency would make people feel that anyone can get away with such a gruesome offence. Rape and murder of a victim is a very serious crime. The commutation of the verdict is not justified.
-Kiran Moghe, president, Janwadi Mahila Sanghatana

Has justice been served?

Priyadarshini Mattoo case

A former IPS officer's son, Santosh Kumar Singh, who was convicted of brutally raping and murdering 25-year-old Priyadarshini Mattoo 14 years ago, escaped the death sentence when the Supreme Court set aside the Delhi high court's order and gave him a life term.
The SC said the "horrendous crime" had happened because Santosh's parents were over-indulgent. The judges said many ghastly crimes happen when "an accused belongs to a category with unlimited power or pelf or even more dangerously, a volatile cocktail of the two".
The apex court added that Singh was young at the time of the incident, and after his acquittal by the trial court he got married and became a father, and there was nothing to suggest that he was not capable of reforming.

Pratibha Srikantamurthy

A fast track sessions court convicted cab driver Shiva Kumar to rigorous imprisonment for life for kidnapping, raping and murdering BPO employee Pratibha Srikantamurthy in December 2005.
Pratibha, who joined HP Globalsoft in 2005 after her marriage, went missing on December 13, 2005 after leaving home for her night shift. Her body was found on the outskirts of Bangalore a day later.
The 113-page judgement said, "There was no dominating control over the deceased. She was not a helpless woman," adding the crime was not enormous in nature and not in the "rarest of rare" bracket. The judge said Kumar, who was 22 then, is now 27. He was not a habitual offender and the prosecution had not shown that he had been convicted for crime earlier, he said.

Without harsh punishment, people will not fear the law
In rape-murder cases, the law is not as harsh as it should be. Thus, there is no fear in society when it comes to committing these crimes. Take any rape or criminal case; the time it takes to reach a verdict is very long. When the fast track courts take that much time (five years in Pratibha's case), why do we need them at all? In this way, people will lose faith in fast track courts. They will be dissatisfied with our judicial system if there is no change in the procedures, especially in cases involving atrocities against women. Such soft judgements will obviously have consequences, wherein people will not be afraid of committing crimes against women. Moreover, by commuting a death sentence, you give the accused time to find ways to get free.
Capital punishment is criticised vehemently on moral grounds, so we do not have an option but to replace it. However, if it is stopped, bad elements in society will continue committing such crimes.
-Lata Bhise, advisor, Yashada

The judgement cannot be made on the basis of public opinion
Life imprisonment until death is as bad or may be worse than a death sentence. Capital punishment is not required as long as the guilty is being punished for his crime. In fact, a life term is more severe as the convict has to live with his guilt in isolation.
People expected a death sentence in the Priyadarshini case, but the judgement cannot be based on public opinion. Mob mentality tends to be brutal, so the judiciary should not get influenced by what people think. Every murder is heinous, but the 'rarest of rare' case can be applied only to the most gruesome crimes.
-Ritu Lamba, law student

Such acts go against the norms of humanity and compassion
The Priyadarshini Mattoo case has revived the debate over whether capital punishment should be awarded and if it can deter others from committing such crimes. Our Constitution and statutes recognise capital punishment as a deterrent to heinous crimes. In case of a crime as gruesome and merciless as rape and murder, the convict should certainly be granted a death penalty. Such acts go against the norms of humanity and compassion. Anything less than life imprisonment until death should not be acceptable.
As far as the Supreme Court verdict in this case is concerned, the death sentence should not have been reduced to life imprisonment. Keeping in view the heinousness of the crime, the court should have upheld the previous decision and stood by it.
-Sameer Nargolkar, lawyer

Severity of punishment is not a deterrent to crime
Death penalty must be abolished in India because it is a cruel way of punishing someone. It is surprising that the lower courts are enthusiastic in awarding death sentences. A capital punishment with the noose does not go well in a civilised society. If we call ourselves civilised, we must stop this practice. The severity of punishment does not act as a deterrent to crime. The surety and speedy delivery of punishment is more important. People generally feel that life imprisonment is a soft way of punishing someone. Considering the severity of the crime, courts can prolong the period of imprisonment. In case of Priyadarshini, the accused got a life term till death, which is a severe punishment.
-Ramesh Awasthi, founder, MASUM

Flaws in investigation and filing of cases affect judgement
There are two issues in the trial of rape cases — the time required by the court and the quantum of punishment. Both these clauses must be revisited and given a rethink. Two judges can differ in their judgement because the circumstantial evidence may vary. That is how they may arrive at different conclusions. A judge has to decide on the basis of the evidence placed in front of him. If the investigation done by the police is shabby, it can affect the judgment.
I agree that the way rape-murder cases are handled needs to be debated, but it is wrong to criticise the judges and their judgement. Many issues have to be considered in every case. Moreover, if the judgement is based on the investigation, collection of evidence and the way the case is filed, the judge can only do so much. I would say that investigation agencies are the real culprits. One must be persistent in pointing out the flaws in the investigation process and filing of cases.
-Aroona Nafday, advocate

There is a rise in false rape cases, so a court has to be cautious
One cannot say the law has been soft in both cases. The judges have given their verdict based on circumstantial evidence and the investigation reports. The investigation into a case and collection of evidence are the reason for delayed judgements. A court cannot pronounce a verdict without proper facts and data. Cases get prolonged till judges receive the essential proof.

In a recent report, the Pune police said that 74% of rape cases in 2008-2009 were found to be instances of consensual sex. Moreover, there have been cases in which the accused has been falsely implicated. For example, in the case of the American student of Tata Institute of Social Sciences (TISS) in Mumbai last year, the medical report did not confirm rape and the DNA report was negative. The complainant told the doctor she was raped by three men whose names she did not know. However, in the FIR, she accused six men and named them. Then, she claimed that she may have been raped, but that she had fallen unconscious after 1 in the night. On the other hand, phone records show that she was texting and calling all night. Thus, in such a case, circumstances become confusing and the judicial process cannot be hurried. Due to the high number of false rape cases and women-centric laws, the court has to ensure that a person is not falsely implicated.

I am not denying that rapes do not happen and the real culprit has to be punished, however, the case has to follow the required process of investigation before a judgement is given.
-Atit Rajpora, activist, Save Indian Family Foundation

team speak up Rajesh Rao, Disha Kohli & Mallika Rale
GET IN TOUCH: Please email us your views at punespeakup@dnaindia.net,
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http://epaper.dnaindia.com/epapermain.aspx?queryed=40&querypage=4&eddate=10/13/2010&view=nw

Apex court cautions high courts on use of powers

Apex court cautions high courts on use of powers

Tuesday, October 12, 2010 7:24:14 PM by IANS

New Delhi, Oct 12 (IANS) The Supreme Court has said that though high courts enjoy vast powers for administration of criminal justice (under Section 482 of Code of Criminal Procedure) but the same was not unbridled and should be exercised cautiously and sparingly.

“It needs little emphasis that although the jurisdiction of the high court under the said provision (Section 482 of Cr.P.C.) is very wide but it is not unbridled,” said an apex court bench of Justice D.K. Jain and Justice H.L. Dattu in a judgment Oct 8.

The provision confers extra ordinary powers on high courts in relation to the administration of criminal justice.

Under the provision, the high court in order to meet the ends of justice can pass any order even in situations where there is no statutory backing for such an order in the Cr.P.C.

The court sounded its caution while setting aside the Bombay High Court order of Oct 9, 2007, by which it had declined to quash criminal complaint against the then chairman of the Maharashtra State Electricity Board (MSEB) by a company, Switchgear Limited. Asoke Basak was heading the board when the complaint was filed.

The company entered into various contracts for the installation of low tension load management system for the MSEB and deposited Rs.five lakh as security.

In the course of the time, some dispute arose between the two and the company withdrew from its deal with the MSEB.

It sought the refund of its security which was declined on the grounds that the same has been adjusted against the dues payable by the company. Against this a criminal complaint was a filed before a magistrate which the Bombay High Court declined to quash.

Pronouncing the judgment, Justice Jain said: “The high court is required to exercise its inherent powers under Section 482 of the code sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice to prevent the abuse of the process of court.”

“One of the situations when the high court would be justified in invoking its powers is where the allegations in the first information report or the complaint, as the case may be, taken at their face value and accepted in their entirety do not constitute the offence alleged,” the judgment said.

Referring to an earlier verdict of the apex court, the judgment said that the exercise of the said powers was a “serious matter” for the accused, thus, the high court should not superficially examine the matter under its consideration.

The high court should exercise the inherent powers under Section 482 of the Cr.P.C. in accordance with the guidelines laid down by the apex court, the judgment recorded.

http://www.thaindian.com/newsportal/uncategorized/apex-court-cautions-high-courts-on-use-of-powers_100443396.html