New CrPC amendments tabled for police arrest procedures

Newly suggested CrPC amendments seem to be doing some things right but also muddling up things in the sense that there is too much reliance being placed that efficiency of police and public justice will be served by forever tinkering with rules and procedures.  On face of it, the rules seem to be good but in absence of copy of the proposed amendments, we are not too sure of the real matter based on news below. 

Also there is lurking suspicion that law ministry and other stakeholders are forever trying to tinker with procedures and rules to placate public and powerful lawyer community.  Actually it is powerful lawyer community which seems to be the main stakeholder who no one wants to alienate, going by the whole drama so far ever since CrPC 2008 amendments were proposed!  Many of Lok Sabha MPs are lawyers and Home Minister P Chidambaram himself is a lawyer.

http://beta.thehindu.com/news/national/article245953.ece

Home Minister P. Chidambaram on Monday introduced in the Lok Sabha the Criminal Procedure Code (Amendment) Bill, 2010, that seeks to restrain the police from arresting a person for criminal offences for which the maximum sentence is seven-year imprisonment and mandates the police officer to record in writing the reasons for not making the arrest.

In 2008, the government introduced amendments to Section 41 Cr.PC which says: “No person concerned in a non-cognisable offence or against whom a complaint has been made or credible information received or reasonable suspicion exists of his having been so concerned shall be arrested except under a warrant or order of a magistrate.”

However, arrest can be made without a warrant, after recording the reasons in writing if the police officer is satisfied that it is necessary for proper probe, or to prevent the person from committing any further offence or making any inducement, threat or promise to anyone acquainted with the facts of the case.

Soon after the amendment, lawyers were up in arms and urged the government not to notify the amended law.

The new amendment incorporates a clause in Section 41 which says: “A police officer shall, in all cases where the arrest of a person is not required, record the reasons in writing for not making the arrest.”

Further, as per Section 41 A, the police, instead of arresting the accused, will be obliged to issue him/her a “notice of appearance” for any offence punishable with imprisonment up to seven years. The person can be arrested only if he/she does not appear before the police in response to the notice.

This provision is now amended to the effect that “where such person fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to orders as may have been passed by a competent court, arrest him for the offence mentioned in the notice.”

Statement of objects

According to the Statement of objects and reasons, in the light of objections from certain quarters to certain provisions of the Cr.PC amendment Act 2008, the Act could not be brought into force. The Law Commission discussed the issue with all concerned, including the Chairperson(s) of the Bar Councils and the Bar Council of India. After consultations, it recommended a further amendment of Section 41 to make it compulsory for the police to record the reasons for making as well not making an arrest for a cognisable offence for which the maximum punishment is seven years. The Commission also suggested that unwillingness of a person who has not been arrested to identify himself and to whom a notice has been issued could be a ground for arrest. The Bill seeks to achieve these objectives.

Condoning Rape by marriage is bad idea

Recent news of chief justice of India Mr Balakrishnan supporting choice of rape victim to marry the accused has shocked several among public.

http://news.in.msn.com/national/article.aspx?cp-documentid=3687586

"Due regard must be given to their personal autonomy since in some cases the victim may choose to marry the perpetrator or choose to give birth to a child conceived through forced intercourse," Balakrishnan said.

It seems the CJI has in mind those cases where a rape is alleged after the woman was promised marriage but the man turned on his word.  The choice of someone to allege the crime of rape and then be able to change their mind should not be allowed.  Any rape allegation should proceed to its end with either acquittal or conviction of accused, or prosecution of alleged victim in case accusation was found to be patently false.

The freedom to accuse someone of crime and then do some kind of settlement with the accused is not allowed on most criminal justice systems.  If that was allowed, following absurd and perverse situations could arise:

1. Rob or defraud a person or company of property and money, and then invite them to a joint partnership with the allegedly stolen/fraud money.
2. Murder someone, and then allow family members of murdered person to accept compensation in turn for withdrawing murder allegations.  Needless to say, law does not allow condoning such offences as murder.

The problem seems to be that judiciary and reportedly some NGOs are trying to fix what arises from a social issue of consensual sex before marriage using legal and judicial means.  To avoid the issues arising from rehabilitating the rape victim, they are proposing a quick formula which has no guarantee to work.  From news below:

http://newsblaze.com/story/20090624083208iwfs.nb/topstory.html

However, in a recent case in Cuttack district, the Orissa High Court asked a rape accused to either languish in jail without bail or marry the victim. The accused had sexually abused the girl on the pretext of marrying her and later deserted her after she became pregnant. The victim subsequently lodged a complaint against him. "Permanent bail would be allowed only if the accused tied the knot with the victim within this two-month period and allow his name to be the baby's father," the Bench specified.

"The practice of rapists marrying their victims may be condoned in some instances. But it should also be remembered that several such cases are based on the false promise of marriage and result in desertion," says Sneha Mishra, Orissa State Coordinator of the "We Can" Campaign to end violence against women. She also observes that many of these cases involve couples who are already in a relationship and the man usually deserts the women or refuses to marry her upon discovering that she is pregnant. This, she believes, is also a serious offence.

So in this case, the HC judge took it upon himself to ensure welfare of the pregnant woman.   The only problem is what will happen if the accused got the bail, and later still deserted the woman, say after 2 years.  What offence will be be charged with then?  Who will take care of rehabilitating the woman and child at the time?

The most important thing is for judiciary to function effectively and in time bound manner, so people have some faith in approaching the judiciary.  All the other suggestions are like putting fresh paint on a building which is crumbling down.

Delhi High Court exposes how lawyers do ‘business’ in India

The following recent judgment of Justice Dhingra of Delhi HC exposes how lawyers make flimsy excuses to delay cases and put both litigants and witnesses to hardship.  But the larger question is that if the lawyers are doing it, then why are not the judges putting exemplary costs to discourage such behaviour, as done in this case by having petitioner pay the respondent Rs 25,000.

The important parts are made bold in judgment below:

--------------------------------------------------------------------------------------------

http://lobis.nic.in/dhc/SND/judgement/10-03-2010/SND09032010CMM4962009.pdf

CM (M) No. 496/2009    Smt. Rampyari & Ors.v. Ms. Kamlesh

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 2nd
February, 2010
Date of Order: 9th
March, 2010
CM (M) No. 496/2009 & CM No. 7663/2009
%                     09.03.2010
  Smt. Rampyari & Ors.        ... Petitioners
        Through: Mr. Rakesh Prabhakar, Advocate
Versus
  Ms. Kamlesh            ... Respondent
        Through: Respondent-in-person
JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?  Yes.
2. To be referred to the reporter or not?            Yes.
3. Whether judgment should be reported in Digest?        Yes.
JUDGMENT
     By this petition, the petitioner has assailed an order dated 25th
March, 2009 whereby an application of the petitioner for recalling witness PW-2 for cross examination, whose cross examination was closed on 29th
September, 2008 by the trial Court, was dismissed.  The application for recalling was made on 6th  December,2008.  The trial Court after observing the history and manner in which the petitioners
impeded the trial, found no force in the application and dismissed the application. 

2.    This case represents a typical example how the trial goes on in Indian
Courts and how the Courts are taken for granted. Issues in this case were framed on
3rd August, 2006 and thereafter plaintiff’s witnesses appeared for their testimony on
21st  February, 2007,  when  the  cross examination of the witnesses  was to be
conducted.  An application was made on behalf of the petitioner stating that  their
Counsel had suddenly fallen ill and adjournment was sought, which was allowed.
Next date for cross examination was fixed as 16th
April, 2007.  On 16th  April, 2007
when witness appeared for cross examination an application was made on behalf of
defendant no.8 stating that there was a death in the family of the petitioners’ Counsel
case be adjourned.  The case was then adjourned for 17th
  July, 2007 for cross examination of the plaintiff.  On 17th
July, 2007 a proxy Counsel appeared and stated
that the petitioners’ Counsel was down with fever and adjournment was sought which
CM (M) No. 496/2009    Smt. Rampyari & Ors.v. Ms. Kamlesh    was  granted and case was listed for 17th   September, 2007.  On 17th  September,
2007 again  a  prayer was made to the  Court stated that  the  Counsel for the
petitioners  was down with fever and adjournment was sought.  The  trial  Court
observed that there was no written request made on behalf of the Counsel for the
petitioners.  The same excuse was being taken again and again so, the Court closed
the cross examination of PW-1.  Again  an  application was made on  behalf of the
petitioners  for recalling PW-1 for cross examination.  The application was allowed
vide order dated 25th  April, 2008 subject to cost of Rs.500/- and the case was listed
for remaining cross examination of PW-1 on 3rd
July, 2008. On 3rd  July, 2008 again,
Counsel for the petitioner made a prayer for adjournment on the ground that he had
not gone through the relevant record and could not prepare the cross examination.
This adjournment was allowed subject to cost of Rs.1,000/-  and a last opportunity
was given. The matter was now listed on 18th  August, 2008, and the Counsel for the
petitioners  again  did not appear and it was told that he was busy in High Court.
Since it was the last opportunity and the matter had already been passed over twice,
the Court refused to give further pass over or adjournment.  The other Counsel Mr.
B.N.Sharma who had appeared for the petitioners, cross examined the witness and
this is how PW-1 was treated and cross examined in the Court.  The matter was then
listed for cross examination of other witnesses on 29th  September, 2008.  The
witnesses appeared and were present in the Court since morning.  The counsel for
the petitioners again did not turn up and the case was passed over twice and at the
third call still when the counsel for the petitioner was not available,  the Court closed
the cross examination of this witnesses.  The application for recalling them was made
after 2 ½ months and was dismissed by the trial Court by a speaking order noting the
history of the case.  The present petition has been filed by the petitioner for recalling
the order. 

3.    I consider that the manner in which petitioners had  impeded  the trial
and the manner in which  the treatment  was  given to the witnesses,  the petition
deserves to be dismissed with heavy costs.  It only seems that the petitioners had
taken the Courts for granted.  It is considered as if Courts exist for providing business
to the advocates and if advocates are busy in High Court or in other Courts and
choose not to appear for false and lame excuses, the witnesses are to suffer and the
system has to suffer,  the party has to suffer but the advocates’ business should not
suffer.  I consider this attitude towards the litigation and courts must be brought to an
end it must be made clear that the Courts do not exist for providing business to the
advocates.  They exist for adjudicating the disputes between the parties and the
CM (M) No. 496/2009    Smt. Rampyari & Ors.v. Ms. Kamlesh witnesses or litigants cannot be given shabby treatment by taking adjournment after
adjournment  in the Courts as if they had done something wrong by bringing suit to
the court and they are made to appear in the Court 20 times when the evidence can
be over in one hearing. 

    This petition is hereby dismissed with cost of Rs.25,000/- to be paid to
the respondent. 
March 09, 2010         SHIV NARAYAN DHINGRA, J.

PM Manmohan Singh will lose respect at this rate

Recent news of PM wanting to cut citizens’ rights under RTI act is highly deplorable.   This is the same PM who has reportedly vouched for aam-aadmi in his speeches, and at one instance chided Indian business houses on dangers of crony capitalism.  Well, now he has to answer who will benefit by following actions:

1. Chief justice of India will be outside purview of RTI act.  Isn’t it some kind of cronyism developing between Executive and Judiciary?

2. No frivolous queries will be allowed.  The courts in India have 3 crore pending cases.  No body checks how many are frivolous.  In elections, 100s of candidates can stand for an election seat.  Inspite of huge cost incurred due to so many candidates, no body condemns that some of the candidates are ‘frivolous’.  But when it comes to RTI, the frivolous ones must be disallowed.  And of course, it goes without saying, the information behind decision to decide what is frivolous will not be disclosed so that the bureaucrats are safe.  So it is some kind of crony bureaucratism.

http://ibnlive.in.com/news/pm-says-no-to-sonia-wants-rti-act-amended/111065-37.html?from=tn

New Delhi: Prime Minister Manmohan Singh and Congress President Sonia Gandhi are reportedly split over amending the Right to Information Act.

In a rare instance, the Prime Minister has said a firm no to Sonia's suggestions and has decided to go ahead with amendments in the RTI Act.

Singh has reportedly written a letter to Sonia saying that changes are needed in the RTI Act after the Congress President expressed her doubts and made it clear that she does not want it to be amended.

The proposed changes in RTI by the Prime Minister will keep the Chief Justice of India out of purview of the Act.

Some of the amendments proposed to the RTI Act are:

• Chief Justice of India would be outside the purview of the Act.

• Discussions on policy decisions cannot be made public.

• No frivolous queries would be allowed and necessary changes in the Act would have to be made.

The Congress President, who is also the Chairperson of the United Progressive Alliance, had written to the Prime Minister about two months ago explaining her why she does not want any amendment to the Act, which was a landmark legislation of UPA 1 and seen as her baby.

Her views on not amending the RTI have been endorsed by NGOs and the Left parties.

But with the Prime Minister himself stepping in and saying no to her, changes in the Act seem inevitable.

Decongesting prisons: 42 undertrials freed

It was not easy to believe but it may have started!  The earlier news about release of undertrials from prisons seems to have started with a somewhat substantial number of 42 undertrials being released in a day in Delhi.

http://sify.com/news/decongesting-prisons-42-undertrials-freed-news-national-kb1t4dhgffc.html

A city court released 42 undertrial prisoners Wednesday in a start to a project to put the criminal justice system on a fast track. The plan is to reduce the number of undertrial prisoners by two-third in the next six months. About 170,000 prisoners will be released countrywide by July.

The process, an initiative of Law and Justice Minister M. Veerappa Moily who was present at the Patiala House court along with Delhi High Court Justice Madan B.Lokur here to witness the first such release Wednesday, was started in view of the overcrowding in Indian jails, the huge pendency of cases and long delays in the justice delivery system.

'It's a reformative process and should be encouraged,' Moily said on the occasion.

Forty six cases were listed Wednesday in the special court of Additional Chief Metropolitan Magistrate Ajay Pandey, all dealing with petty offences. The list included prisoners who are still in jail just because they cannot raise their bail bond money.

Among 42, 12 prisoners were released after they furnished their personal bonds and the remaining 30 prisoners pleaded guilty and were acquitted.

Hello? Prisoners pleaded guilty and then were acquitted? I know there is a process of law that a judge can order trial to continue for a person even if he/she pleads guilty; but for someone to be acquitted after pleading guilty cannot be possible.

Those prisoners who were released or granted bail are offenders involved in petty offences like theft, pick-pocketing, snatching and robberies.

Four prisoners could not be freed as they are involved in other cases as well.

'Need of the hour is to release prisoners who are lodged in jails for years together and are involved in petty offences so that they don't become hard core criminals when they come out,' Moliy said.

Ok. So the law minister has admitted publicly at least that being in jail for long time can make one into hardcore criminal.  It is like a university of crime, right?

'We are planning to release 1.7 lakh prisoners till July 31 around India. To begin this, we have informed all the courts and the various legal services authorities to prepare the list of prisoners who can be released,' Moily said.

The government has asked all state high courts to identify undertrials who are not involved in heinous crimes and whose cases can be expedited.

Moily said the union cabinet has 'in principle' agreed to operationalise and implement the national legal mission - 'a step towards guaranteeing access to justice for every citizen, including those in jails'.

The minister said chief justices of state high courts have been asked to prepare a report 'as fast as possible' about the people in jails, their offences, the nature of cases, and the maximum punishment they can invite so these trials can be completed by July 31.

Indians wanna be safe? – then become hard targets

Home minister P Chidambaram has conveniently explained away the blasts in Pune saying that the blast was done on a soft target, and hence could not be avoided!

http://www.indianexpress.com/news/No-intelligence-failure-in-Pune-blast--Chidambaram/579572/

The Pune blast was not the result of any intelligence failure but an 'insidious' planting of a bomb in a 'soft' target establishment, Union Home Minister P Chidambaram said.

So terrorists should inform you in advance and be gentlemanly rather than insidious! India is sometimes said to be soft state, but at this rate we will come to be known as a fool state.

Again he rants about the ‘insidious’ nature of the attack:

"There is no intelligence failure, but please remember this is not an overt attack by gunmen. This is an insidious bomb that had been planted in what appears to be a backpack," the Home Minister said.

Further he explains the government’s definition of hard vs soft targets.

Terming Osho Ashram and the Chabad House as "hard targets", he said, "But apart from hard targets, there are soft targets...All these (the German bakery and an Italian restaurant nearby) are soft targets where foreigners and Indians congregate especially during the peak hours."

Now any Indian who wants to stay alive and safe, should attempt to become into a hard target. Hard targets are ministers, MPs, MLAs who are provided high security cover and do not need to bother about bombs blasting around them while having a cup of tea. Soft targets is everyone else.

Delhi High Court chief justice who allowed RTI on Supreme court is not elevated to SC

Chief justice Ajit Prakash Shah of Delhi High court retired recently, and there is news that he did not get elevation to Supreme Court even though the file was sent by government to collegium for a second time.

http://www.dnaindia.com/india/report_judge-who-legalised-homosexuality-hurt-at-not-being-elevated-to-sc_1346438

New Delhi: Chief justice Ajit Prakash Shah of the Delhi high court, who scripted landmark judgments legalising homosexuality and bringing the office of the chief justice of India within the ambit of the Right to Information Act, today said he was "hurt" at being bypassed for elevation to the Supreme Court.

"I cannot pretend that I am not hurt," justice Shah said during an interaction with reporters on his last working day. "A sense of hurt is always there. These things happen in life."

It will be good if now some progress can be made on bringing transparency in appointment of judges.  Although judges do not speak a lot to the media, the very fact that a retiring judge expresses his personal disappointment means that all is not well in judicial appointments.

The Supreme Court collegium bypassed justice Shah, one of the most senior high court chief justices, for elevation while recommending to the Centre names of other judges who were junior to him in October 2008.

The government refused to accept the collegium's decision and returned the file. But it had to accept the recommendation when the collegium refused to give in.

It is high time that this football mechanism of appointments file being going back and forth between collegium and government is replaced by something more transparent.

Further, justice Shah does not think too much about corruption in higher judiciary.  We disagree!  Read here about Prashant Bhushan of CJAR stating about corrupt justices in SC.

With regard to the charge of corruption in the judiciary, justice Shah said there is corruption but it is minimal at the higher level. "I will not be telling you the truth if I say no corruption is there in the judiciary. It is a reality, corruption does exist, but minimal corruption is there in the higher judiciary."