Archive for September, 2007

7 Year Old Faces RI

Here is the link to the article:  7 Year Old Faces RI.

Old news again.

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Bitterness Of Wives Leads To Abuse Of India’s Anti-Dowry Laws

Old news again, this time from 2003. I can’t believe that nothing has been done since 2003..

Here is the link: Bitterness Of Wives Leads To Abuse Of India’s Anti-Dowry Laws

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False 498A Amounts To Cruelty: Bombay HC

This is an old judgment, but here it is:

http://bombayhighcourt.nic.in/data/judgements/2005/CFCA431301.pdf

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SC Explains Article 136 While Denying An SLP On Quashed 498A

This is a case from early 2007. Just came to my notice.

Here is the judgment: SC Explains Article 136 – SLP On Quashed 498A Denied

Here is an excerpt: “The appellant has also filed a maintenance petition against her husband. What can she possibly get by prosecuting him as well as his family members? The appellant filed the criminal case under Section 498A etc. not only against her husband but also against her husband’s father, mother, brother, sister, etc. In exercise of our discretionary jurisdiction under Article 136, we are not inclined to interfere with the impugned Judgment of the High Court quashing the criminal case filed by the appellant. After all, the appellant will not get any benefit by sending her husband or his family members to jail. “

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A Word On Civil Service Reform

I pulled this from an article from the Indian Express.  I quote:

“Actually, some of the harshest criticism of the civil service comes from within the ranks. N.C. Saxena, one time director of the LBSNAA, has this to say about civil servants, “Bright men and women join the civil services, but adverse work environment, constant political interference, meaningless transfers, and corruption below and above them all leads to the death of idealism, and encourages them too to misuse of authority… An important factor which contributes to the surrender of senior officers before political masters is the total lack of any market value and lack of alternative employment potential. Beyond government they have no future, because their talents are so few. Most IAS officers thus end up as dead wood within a few years of joining the service and their genius lies only in manipulation and jockeying for positions within government.””.

Here is the link to the article from the Indian Express: Bringing Up Babus

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Sonia Vs Vinod: Domestic Violence Case

Folks,

Here is the judgment on the Sonia Vs Vinod domestic violence case. This case is from the Delhi Rohini court. Here is the write up:

“A CITY court has dismissed a petition of a woman against her family members on finding she was harassing them, misusing the Domestic Violence Act in the process. Dismissing the complaint, Metropolitan Magistrate Shahabuddin said, “I am prima facie of the considered opinion that the complainant is not cooperating with her in-laws. She prima facie appears to be harassing them on trivial matters”. Complainant Sonia had approached the court in August, alleging her husband Vinod and his mother and sisters used to physically harass her for bringing insufficient dowry The court, however, declined to allow her complaint, asking a number of relief s, including right to residence. “The woman failed to satisfy this court that her husband or any of his other family members had really committed any domestic violence against her”. “

Here is the judgment: Sonia Vs Vinod: Domestic Violence Case

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Nithari And The Fashionable Feministas

Folks,

Old news again, but you can guess why Nithari happened after reading this article:

http://www.financialexpress.com/news/story/193755/ 

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Cat Fight With The NCW

This is old news, but just came to my attention. This time it is the Karnataka Womens Commission chairperson in a cat fight with the NCW.

Here is the link:

http://www.deccanherald.com/Content/Aug12007/state2007080116440.asp

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Rights Activists On Wrong Foot

Here is a collection of dirt from around the country and they all deal with the Womens Commission of the different states.

  1. http://www.telegraphindia.com/1070927/asp/northeast/story_8364332.asp
  2. http://www.e-pao.net/GP.asp?src=10..270907.sep07
  3. AP Womens Commission Chief Asked To Step Down
  4. http://www.deccanherald.com/Content/Aug12007/state2007080116440.asp
  5. Cat Fight In AP

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SC: Don’t Convict A Person On Dying Declaration Only

Here is the link to the article: Don’t Convict A Person On Dying Declaration Only

I’ll have the judgment up as soon as I find it.

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Consultation Paper On Law Relating To Arrest: Law Commission Of India

I don’t recall where I came across this document, but it is a very insightful document on the Law Of Arrest. I think it is authored by Justice Jeevan Reddy, but I cannot be sure.

Anyway, here is the document: Consultation Paper On Law Relating To Arrest

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Magna Carta, Habeas Corpus And Joginder Kumar Vs State Of UP

This symbolizes everything that’s wrong with the Indian criminal justice system.

The celebrated writ of habeas corpus has been described as `a great constitutional privilege of the citizen’ or `the first security of civil liberty’. The writ provides a prompt and effective remedy against illegal detention and its purpose is to safeguard the liberty of the citizen, which is a precious right not to be lightly transgressed by anyone. The imperative necessity to protect those precious rights is a lesson taught by all history and all human experience. Our founding fathers have lived through bitter years of the freedom struggle and seen an alien government trample upon the human rights of our citizens. It is for this reason that they introduced Article 21 in the Constitution and provided for the writs of habeas corpus, etc.

Habeas Corpus (Latin:”We command that you have the body”) is the name of a legal action, or writ, through which a person can seek relief from unlawful detention of themselves or another person. The writ of habeas corpus has been an important instrument for the safeguarding of individual freedom against arbitrary state action. In order to truly understand this judgment and the meaning of Habeas Corpus, we need a short lesson in history.

The Magna Carta was originally issued in 1215, and was written because of disagreements among Pope Innocent III, King John and the English barons about the rights of the King. Magna Carta required the king to renounce certain rights, respect certain legal procedures and accept that his will could be bound by the law. It explicitly protected certain rights of the king’s subjects, whether free or fettered – most notably the right of Habeas Corpus, meaning that they had rights against unlawful imprisonment. The link between the Magna Carta and this landmark judgment of the Supreme Court are the magic words: Habeas Corpus. Albert Venn Dicey wrote that the Habeas Corpus Acts “declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty”.

This is what former Chief Justice Of India, M.N. Venkatachalliah says (JOGINDER KUMAR Vs. STATE OF U.P.25/04/1994) in this landmark judgment that defined the powers of the police to arrest a person. This judgment is especially applicable in the case of a cognizable offense such as 498A:

“No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter.

There are significant other requirements that need to be fulfilled for an arrest. These are:

1. The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror stricken victims.

2. The accused is likely to abscond and evade the processes of law.

3. The accused is given to violent behavior and is likely to commit further offences unless his movements are brought under restraint.

4. The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again. It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines.

Justice JD Kapoor, in this judgment (Delhi High Court CRLMM 3875/2003 28.01.2004 Court on its own motion Versus Central Bureau of Investigation), says:

“For instance it is the experience of this court that in offences under Sections 498A/406 IPC which are much abused provisions and exploited by the police and the victims to the level of absurdity and are of such nature which can be investigated without arrest and do not fall under the aforesaid category viz. being of highest magnitude and prescribing severest punishment or minimum punishment, every relative of husband, close or distant, old or minor is arrested by the police. By arresting such relatives whose arrest may not be necessary for completing the investigation as it can be completed by recording the statement of victim, her parents and other witnesses, police assumes the role of breaker of homes and not the maker as once any relative of he husband is sent to jail, the marriage ends for all practical purposes and divorce and other miseries are bound to follow. Unless the allegations are of very serious nature and highest magnitude arrest should always be avoided.”

In yet another judgment dated 22.8.2004 (Criminal Misc.Writ Petition No.4861 of 2000, Ajeet Singh alias Muraha Vs. State of U.P. and others), Justice Markandeya Katju, while serving as a judge on the Allahahabad High Court, had the following to say:

“157. Procedure for investigation –

(1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officer not being below such rank as the State Government may, by general or special order, prescribe in this behalf to proceed, to the spot to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender.”

The above provision clearly shows that it is not necessary to arrest in every case wherever a FIR of cognizable offence has been registered. No doubt investigation has to be made in every case where a cognizable offence is disclosed but in our opinion investigation does not necessarily include arrest. Often the investigation can be done without arresting a person, and this legal position becomes clear from section 157(1) of the Cr.P.C. because that provision states that the Police Officer has to investigate the case, and, if necessary, to take measures for the arrest of the offender. The use of words ‘ if necessary’ clearly indicates that the Police Officer does not have to arrest in every case wherever FIR has been lodged and this position has been clarified in Joginder Kumar’s case (supra).

In our country unfortunately whenever an FIR of a cognizable offence is lodged the police immediately goes to arrest the accused. This practice in our opinion is illegal as it is against the decision of the Supreme Court in Joginder Kumar’s case, and it is also in violation of Article 21 of the Constitution as well as section 157 (1) Cr.P.C. No doubt section 157(1) Cr.P.C. gives a police officer discretion to arrest or not, but this discretion cannot be exercised arbitrarily and it must be exercised in accordance with the principles laid down in Joginder Kumar’s case (supra).”

Keeping the following judgments in mind, I am really interested in seeing how a grandma or a granddad, kids,  aging parents and young siblings can fall into any of the categories described by Justice M.N. Venkatachalliah. The police cannot arrest a citizen without an investigation and without justification. The police will say that 498A is a cognizable offence. By cognizable, it means they have to register an FIR and INVESTIGATE not effect an immediate arrest. Think about it. If a king has been stripped of his power to arrest without cause, way back in 1215, how can the police still claim to have that power, especially since Habeas Corpus is incorporated in The Constitution Of India under Article 32?

To summarize, the police have the discretionary power to arrest you, but they need to justify the arrest and the Supreme Court has established that some investigation must be done before an arrest is made and only if necessary.

Given below are the orders of the Delhi Commissioner of Police which complies with the order of the Supreme Court under this  judgment:

Delhi Police: No 498A Arrests Without DCP’s Permission

Here is the pdf of Joginder Kumar Vs State Of UP:

Joginder Kumar Vs State Of UP-Apr/25/1994

Here is the link to the judgment of the Allahabad HC, reiterating Joginder Kumar Vs State Of UP:

Allahabad HC On Joginder Kumar Vs State Of UP

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Delhi HC Bail Orders

Here are some of the old 498A bail orders of the Delhi HC. You can see how frivolous some of these 498A complaints are. The reason for collecting these bail orders is primarily to show the stupidity of the prevailing situation in our country. This is a tiny fraction of some of the old bail orders from just one High Court of our country. Can you imagine the scale of the abuse of this law happening across the rest of the country?

Think of the local courts, district courts, High Courts and the cases that reach the Supreme Court. Think of the court time wasted in processing these frivolous cases. Think of the lives destroyed of ordinary citizens entangled in the slow Indian criminal justice system, due to badly framed and implemented laws such as 498A.

Do you think a real victim of dowry harassment can get justice if her complaint lands among this pile of frivolous complaints? Who would have the time to investigate her complaint and bring the culprits to justice? The cops won’t. The courts are choking with frivolous complaints that it will take ages before her case concludes.

Under these circumstances, Justice will be delayed and in such circumstances, justice is denied.

The four factors, which are relevant for considering the application for
grant of anticipatory bail, are
:

  1. The nature and gravity or seriousness of accusation as apprehended by the applicant;
  2. The antecedents of the applicant including the fact as to whether he has, on conviction by a Court, previously undergone imprisonment for a term in respect of any cognizable offence;
  3. The likely object of the accusation to humiliate or malign the reputation of the applicant by having him so arrested; and
  4. The possibility of the appellant, if granted anticipatory bail, fleeing from justice.

Most of the following bail orders are by Justice Pradeep Nand Rajog.

You can read about him here: http://delhihighcourt.nic.in/pra_rajog.htm

All the bail orders are in pdf format:

  1. Bail Denied To 498A Accused. Trend Noted
  2. Bail For In-Laws Of Deceased
  3. Bail For Mother In Law Of Deceased
  4. Bail For Sister In Law Of Deceased
  5. Bail Granted Airline Baggage Case
  6. Bail Granted General Complaints
  7. Bail Granted Hubby Disappears
  8. Bail Granted-Hubby Gives Maintenance
  9. Bail Granted-Saudi Arabia
  10. Bail Granted-Wishy Washy Complaint
  11. Bail Granted-Blue Films
  12. Bail Granted-Kerosene-Hubby-Ready-To-Reconcile

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Role Of The Public Prosecutor

The public prosecutor in my case turned out to be another moron who hired his position out. Initially the jackass  refused to show up in court by taking off on leave and caused unnecessary delays in obtaining bail and then offered not to oppose the bail application for a “consideration”.

This is the reason for this post, the role of the public prosecutor.

I came across this article at this site: http://www.amanpanchayat.org/

The link to the article is here: The Role Of The Public Prosecutor

Here is a link to another article by Vikram Jeet Batra in Indiatogether.
Here is an excerpt:

“Given that prosecution of crimes in conducted by the state on behalf of victims, it is astonishing that the justice system provides little space for the victim. At present the victim’s role is recognised only to the extent that s/he is a prosecution witness. Even here the large number of victim-witnesses turning hostile is testament to the harassment and intimidation they face within the system. Another space where victims can form part of the prosecution process is by appointing a lawyer to assist the prosecution. While the victim’s lawyer has a wider role in the Magistrate’s Courts, this is far reduced in the Sessions Courts where s/he must act under the direction of the public prosecutor.”

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Delhi HC Settles Issue Of Jurisdiction In A Bail Application

This is a bail order by Justice Pradeep Nandrajog of the Delhi High Court. In the 2nd paragragh, he clearly explains the issue of jurisdiction settled in the Ajith Abraham case by the SC.

This bail order is a good example to use by those who are having to fight a 498A in a different city than their own. In some cases, the 498A FIR will have statements claiming that harassment and cruelty took place in another location than the place of residence of the hubby and in-laws in order to establish jurisdiction in an area/location favorable to the 498A wife and/or to harass the family of the hubby by making them travel for 5-6 hours to rural areas for court appearances.

Here is the Ajith Abraham jurisdiction judgment by the Supreme Court:

SC Judgment On Jurisdiction-Ajith Abraham (Chennai)

 Here is the bail order by Justice Pradeep Nandrajog:

Delhi HC Jurisdiction Bail Order-2007
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Delhi HC: 2nd Wife Has Right To Maintenance ? Maybe Not !

I’ll have the judgment as soon as I find it.

“In a significant ruling, the Delhi High Court has held that a man’s second wife has the right to claim maintenance in the event of a divorce if he had misrepresented himself as a bachelor to trick her into a marriage.
The court said though a bigamous marriage is illegal under the Hindu Law, the woman whose life has been ruined on account of the deceitful act, is entitled to a lump sum amount in the form of damages.
A Bench of Justices AK Sikri and Aruna Suresh said this while setting aside a trial court order dismissing a petition filed by Narinder Kaur seeking maintenance.”

The SC has something different to say. Here is the link:

http://www.hindu.com/2005/03/25/stories/2005032503361200.htm

Here is the judgment:

SC Judgment On Maintenance – Legally Married Wife

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Can Indian Court Be Moved After Divorce Decree In The US?

This is the question that Justice Dhingra answered in his landmark judgment just a few weeks ago. The Supreme Court will now decide the answer to this question in a an NRI custody case.

Here is the link to the article by TimesOfIndia

Here is an NRI case that sort of provides an answer: Delhi HC: Beniwal Vs Beniwal 1989

Here is the order from the AP HC:  AP HC Temp Child Custody

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Wedded To Greed In India

An article on dowry in the Latimes.com. Here  is the link

The writer needs to be educated on the current scenario.

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Anti Dowry Laws Are Biased Against Men: TOI Netizen Survey

Here is the link to the TOI article.

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Domestic Violence Is Not A Gender Issue

I wonder what the Indian radical feminists have to say about this. Respected fighters for womens rights like Madhu Kishwar have already come out against coercive legislation. So have people like Erin Pizzey.

Here is an excerpt:

“The tragedy for me is that I had a vision whereby people who were infected by dysfunctional and violent parenting could find a place that would give them a chance to learn how to live in peace and harmony. This dream was destroyed, along with all my evidence and projects. The feminist movement resolutely refuted any argument that women should be allowed to take responsibility for their choice of relationships. The image of women as victims, as helpless childish dependents upon brutal men world-wide has damaged relationships between the sexes. The idea that the family is a danger to women and children has destroyed much of our traditional concepts of marriage. The feminisation of the family and Western society has caused men to become outcasts and a source of ridicule in their children’s eyes.”

Here is the article by Errin Pizzey: DOMESTIC VIOLENCE IS NOT A GENDER ISSUE

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Some Interesting Stats On Arrests Of Women

In 1930, the British govt arrested 17,000 women for their involvement in the Dandi Yatra (Salt March). During 1937 to 1947 (10 Years), they arrested 5,000 women involved in the freedom struggle. From 2004 to 2006, the govt of India arrested 90,000 women of all ages under 498A. On the average, 27,000 women per year are being arrested under this flawed law. These are stats from the NCRB.

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Disclaimer:

The family of the writer was tortured by the Indian Police in an attempt to extort over a $100,000 by holding them in custody for over a week. The police, in cahoots with the magistrate and the PP, did this due to the ridiculous allegations made in a 498A case by his embittered ex-wife. She filed the case years after he and his family had last seen her. Thousands of 498A cases are filed each year in India by women seeking to wreak vengeance on their husbands and in-laws. Enormous sums are extorted from intimidated families implicated in these cases by corrupt Indian police officers and elements of the Indian judiciary. The author and his family haven't bribed any public official nor have they given in to the extortion. This blog aims to raise awareness of due process in India. The content of this blog constitutes, opinions, observations, and publicly available documents. The intent is not to slander or defame anyone or any institution and is the manifestation of the author's right to freedom of expression – with all the protections this right guarantees.

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