Archive for the '498A misuse' Category

CrPC Sec 41 Amendment Maybe The Law Someday

====================UPDATE=====================

Jun/14/09

The amendments are on hold due to sustained opposition by some of the beneficiaries of arbitrary arrests, the lawyers. They consider this “anti-lawyer” as they will lose a huge revenue stream due to the cut back in bail applications, once the gazette notification is issued.

Regardless, please remember that the CrPC amendment to Section 41, is the codification of Joginder Kumar Vs State of UP, 1994. This judgment clearly states that an arrest is an exception and that an arrest should only be made in heinous crimes and that too only after an investigation and must be justified. Please download this judgment and keep a copy with you if you fear an arrest by the police for any reason:

Joginder Kumar Vs State Of UP – 1994

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The amendment to Section 41 of the CrPC has been signed into law by the President Of India.

As soon as the gazette notification is issued, no person can be arrested under 498A by the police without an investigation.

This is what the new Home Minister had to say:

“Referring to Section 41 of the Act, Chidambaram said in his letter, “This provision was severely criticised as capable of being misused and, in fact, was being misused.” To substantiate his point, he advised CMs to refer to reports of the Law Commission and the Malimath Committee and also the judgment of the Supreme Court in D K Basu case which laid down guidelines for effecting arrest. “

It is not just DK Basu Vs State Of WB, Joginder Kumar Vs State of UP has what has been codified into the CrPC amendment. This is an action that has been long overdue.

Bar associations across the country have been protesting under the pretext that these CrPC amendment (Section 41, CrPC), doing away with mandatory arrest provisions, would remove fear from the minds of criminals who would misuse the provisions under the garb of personal liberty.

What the bar associations will never tell you is that the police never had the power to make such arrests and that arrest is an exception and not the norm.

The fact is that by law,  it is the seminal  judgment of the Supreme Court, Joginder Kumar Vs State Of UP,  that governs arrests in India.

The reasons the bar associations are giving for protesting against the CrPC amendments, such  as criminals not fearing the law and other such excuses is just plain bullshit.

They are giving their game away by saying with the same breath that these amendments are anti-lawyer and will reduce their income. Really !

How low can you get?

For a measly few thousand Rupees, these lawyers want to have entire families entangled in the corrupt criminal justice system for years !! Talk about ethics!

“Among the grouses of the lawyers is that the law if enacted will eat into their work substantially reducing their income. A sizeable income of the lawyers is generated by Bail related works.”

Now you know why these lawyers are protesting so that they can get bail related gravy. How about doing an honest days work for a change?

In reality, this amendment does away with the need to get bails and anticipatory bails,  a rich source of revenue for the lawyers, the dirty Indian cops, some filthy lower court magistrates and public prosecutors.

To see what I mean, take a look at the NCRB stats about the women arrested under 498A. If the SC guidelines had been judiciously followed, do you think so many men, women or children would have been arrested? Click here to look at the stats.

The CrPC amendments effectively signals the end of using 498A for extortion as the cops can no longer use arrests for extortion. Also remember this, the cops never had the power to arrest without cause or justification.  Hence, almost all 498A arrests have been illegal detentions.

This is a significant win for all who are fighting against the tyranny on men and their families imposed by this law, IPC 498A.

The Indian Feminazis are so stupid that they did not foresee the immediate consequence of this law or they would have been up in arms. I saw this coming and kept my mouth shut in order to not draw any attention to this beneficial side effect in the fight against 498A. The stupidity of the Feminazis can be guaged by the fact that they are ignoring the basic tenet of the Constitution, Habeas Corpus or the right against arbitrary detention, which this amendment codifies into the CrPC. They can try to change the Constitution Of India if they are unhappy about these amendments.

PS:

Should the govt decide to reverse course and allow arrests under 498A, I would be very happy. Why ?

The reason being that more Swarup Sarkars will emerge to bash the Feminazis and roll back the gains they made.

So Indian Feminazis, please do your best to roll back these amendments !

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How Fair Is 498A? TOI Reporter Radhika Oberoi Answers The Question

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CIC Berates NCW And Fines PIO Yogesh Mehta

Folks,

just a few days ago a blogger highlighted the blatant attempt at a power grab by the corrupt Girija Vyas.

And today, it has come to my notice that these morons are incapable or unwilling to maintain and furnish information as per the RTI act.

In the present case, this RTI was filed by Cmdr Batra, who wanted to know what the fatties of the NCW did when girls and children were disappearing in Nithari. Read the Tehelka expose to understand more:

Tehelka NCW Nithari Expose

Fortunately, not adhering to the RTI Act had repercussions. The Hon’ble CIC, has berated the NCW for sloppy record keeping and fined their legal officer Yogesh Mehta.

Here’s the picture of this jackass:

Here’s another picture below where Girija Vyas and Mr Mehta look like they ate something nasty:

Here are two excerpts from the ruling of the CIC:

  • Having heard the arguments and examined the files we are constrained to observe withy deep regret the lack of a functional system in the National Commission for Women in dealing with so important a case that was brought before the NCW by Commander Lokesh K. Batra. It is strongly recommended under the authority vested in us by Sec 19 (8) sub-section (a) to the Ministry of Women & Child Development that the Ministry institute a regular administrative structure for the Commission, which will then bring its functioning into conformity with the RTI Act, 2005 by instituting a system of maintenance of records in keeping with Sec 4(1), particularly sub-section (a). This exercise may be completed within thirty days of the issue of this decision notice under intimation to Sh PKP Shreyaskar, Jt Registrar, Central Information Commission.
  • In this file the answers which can be deemed inadequate by the complainant are the answers to question No. 1 & 3. Simply because the web page contains a title RTI Act, informing appellant as much does not amount to an adequate response to an RTI request where under information u/s 7 (9) is excepted to be provided in the form in which it is sought. Besides, leave and tour records on Government account are excepted to be kept by any respectable govt. office. The plea taken by the CPIO that the information sought is cumbersome which cannot be provided is, therefore, specious. If the NCW has been so lackadaisical hitherto as to neglect its duty to conform to the Sec 4 (1) sub-section (b) (iv)of the RTI Act,2005 it will do so now, by publishing the norms set by it for the discharge of its functions, in consonance with our decision on File CIC/WB/C/2008/00426. The information sought under both heads will be provided to the appellant, Cdr Lokesh Batra within 15 working days of the date of issue of the decision notice. Because the information sought was not provided in the time mandated under law, it will be provided free of cost as per Sec 7(6) of the RTI Act Moreover, we find a failure to respond within the mandated time limit to the application of 20.12.2007. PIO Shri Yogesh Mehta will, therefore Show-cause as to why he should not be held liable for a penalty of Rs. 25,000/- for the delay between 20.1.2008 when the response became due up to 9.5.2008 when it was actually provided, a delay of 110 days @ Rs. 250/- per day not exceeding Rs. 25,000/-. He can do this either in writing by 10th September, 2008 or by personal appearance before us on 29th September, 2008 at 12.30 p.m. On the basis of this explanation we will also take a decision on compensation payable, if any, as prayed by appellant Cmdr Batra.

By the way folks, if you are wondering who Yogesh Mehta is, he is the PIO and legal officer stupid enough to say the following, “489a is one of the most important tools in the hands of Indian women who have suffered abuse” in an article published by Indian Express.

“one of the most important tools in the hands of Indian women” Really !!

What this nitwit means is that 498A is “one of the most important tools for extortion in the hands of unscrupulous Indian women”

Mr Legal Officer and PIO, what about the more than 100,000 women who were arrested under this law since 2004, illegally and in contravention of Joginder Kumar Vs State of UP-1994? Would you care to comment about that please ?

I am very happy that was fined. They have gone around strutting aroubd with arrogance. The days of reckoning are here!

Here is the judgment of the Hon’ble CIC: CIC Berates NCW and Fines NCWs PIO

Local copy of the same is here:  NCW PIO Yogesh Mehta Fined By CIC

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Maharashtra Home And Police Depts Joginder Kumar Compliance Orders

The last order in issued by former CJI, Justice MN VENKATACHALLIAH, in joginder Kumar Vs State Of UP directed the DGPs of all states to issue the necessary orders for compliance.

The Protect India Family Foundation filed a bunch of RTIs and were able to get the Maharashtra Govt to produce the orders issued by the then DGP and Dpty Home Secy (Home) to comply with the orders issued by the most hon’ble former CJI.

Here they are:

This is yet another circular uncovered by PIFF.

In this circular, the police pretty much come up with their own rules, in defiance of the directives of the Supreme Court on the arrest of women.  Using the justification outlined in this circular, corrupt cops can categorize grandmothers, mothers and innocent sibling as “unscrupulous females” and arrest them. Justice AN Mulla* was so right about the nature of the Indian police force !

Here is the circular: Mumbai Police Circular On Arresting Women – 2004

Inspite of these orders, the Maharashtra police have been arresting innocents and subjecting them to threats, intimidation, illegal detention and extortion in 498A cases.

They are prima facie guilty of contempt of court.

*Justice A N Mulla had once commented, ” I say it with all sense of responsibility that there is not a single lawless group in the whole country whose record of crime is anywhere near the record of that organized unit which is known as the Indian Police Force.”

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Justice R Regupathi (Chennai HC) Ends The Abuse Of 498A

This year has been significant for those of us fighting to end this extortion racket known as IPC 498A.

The four most significant events that have occurred this year and that will lead to the eventual end of 498A are the following:

The fourth of these events are orders issued by Justice Regupathi of the Chennai HC. You can read about the news coverage from the Indian Express:

Women Police Resorting To 3rd Degree Restrained By HC

To understand one of the reasons why these orders were issued, we need to look no further than at this news clipping of this sack of shit, caught accepting a bribe:

I don’t have his original orders from July/2008, but I got my hands on the acknowledgment filed by the DGP’s office, Chennai, from a SIF volunteer. The gist of the orders were the following as per news reports:

The Honorable High Court has issued the following observation in M.P. No.1/2008 in Criminal Original Petition No.10896/2008 filed by Tr.Romaiah.

i) Except in cases of Dowry Death/suicide and offences of serious nature, the Station House Officers of the All Women Police Stations are to register F.I.R. only on approval of the Dowry Prohibition Officer concerned.
ii) Social workers/mediators with experience may be nominated and housed in the same premises of All Women Police Stations along with Dowry Prohibition Officers.
iii) Arrest in matrimonial disputes, in particular arrest of aged, infirm, sick persons and minors, shall not be made by the Station House Officers of the All Women Police Stations.
iv) If arrest is necessary during investigation, sanction must be obtained from the Superintendent of Police concerned by forwarding the reasons recorded in writing.
v) Arrest can be made after filing of the final report before the Magistrate concerned if there is non-cooperation and abscondance of accused persons, and after receipt of appropriate order (Non-Bailable Warrant).
vi) Charge sheet must be filed within a period of 30 days from the date of registration of the F.I.R. and in case of failure, extension of time shall be sought for from the jurisdiction Magistrate indicating the reasons for the failure.
vii) No weapon including Lathis/physical force be used while handling cases at the All Women Police Stations.
viii) Complainants/victims should be provided with adequate security/accommodation at Government Home and interest of the children must be taken care of.
ix) Sridana properties/movables and immovable to be restored at the earliest to the victims/complainants and legal aid may be arranged for them through Legal Services Authority for immediate redressal of their grievances.

Here are some excerpts from the acknowledgment of the above orders of Justice Regupathi that will go a long way in ending the extortion racket called 498A in Chennai/TN:

  • Arrest in matrimonial disputes, in particular arrest of aged, infirm, sick persons and minors, shall not be made by the Station House Officers of the All Women Police Stations.
  • If arrest is necessary during investigation, sanction must be obtained from the Superintendent of Police concerned by forwarding the reasons recorded in writing.
  • Commissioners of Police and the Superintendents of Police in the State have been instructed to scrupulously follow the suggestions.
  • When the investigating officers seek for remand of the accused, the Magistrates must examine the necessity for the same and only where there are valid grounds for believing that the accusation or information is well- founded and it appears that the investigation cannot be completed within a period of 24 hours, remand may be ordered. Violation of human rights and infringement of personal liberties must be viewed seriously. Except in cases of grave nature viz., dowry death, murder, suicide, hurt, etc., in other matters like matrimonial disputes between spouses where it may not take much time for the police officer to interrogate/investigate, remand should not be ordered mechanically, for, remand of an accused by a Magistrate is not automatic one on the mere request of the investigating officer and sufficient grounds must exist for the Magistrate to exercise the power of remand.
  • Of course, it is provided in the Code that remand should not exceed 15 days at a time, but, it does not mean that in all cases, remand for 15 days should be ordered invariably.
  • Though the law is manifestly clear, plain and patent, in many cases, it is witnessed that, on the mere request of the investigating officers, remand is ordered mechanically without application of mind and such illegal practice must be avoided.
  • The preliminary job of an Investigating Officer including that of the Officers posted at the All Women Police Stations is only to collect the materials in respect of the dispute they are investigating and place the same before the court/Magistrate. For adjudicating any issue, the dispute must be forwarded only to the learned Magistrate or the Family court. In this type of fragile matters, in the name of ‘petition enquiry’ or investigation after registration of F.I.R., the police should not be allowed to conduct lengthy panchayats in police stations.

Here is the acknowledgment of the police compliance of Justice Regupathi’s earlier orders:

Justice Regupathi 498A Orders Compliance Aknowledgement-2008

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Judgments To Fight Accusations Under Domestic Violence Act

Here are a few citations that will allow you to win DV Act cases.

Before you get into that, read the FAQ compiled by the mother of the flawed DV Act, Indira Jaising and her crooked cohorts of the Lawyers Collective:

Lawyer’s Collective FAQ On PWDVA – 2007

The DV Act is touted as a civil law and a “second chance” by the likes of Indira Jaising. But the fine print says that the proceedings are to be conducted as in criminal cases.

In effect, like all the other things touted by these Feminazis, this is a pernicious law designed to bypass the higher requirements of proof needed for criminal cases like 498A. It is designed to be a wolf in a sheep’s clothing. If you don’t adhere to the orders of a magistrate who is required to pass protection orders for immediate relief, this civil case turns into a criminal case for contempt and then you are really screwed. What makes this law so pernicious is that unlike 498A, which hinges on the sheer terror unleashed by corrupt Indian Police officers to cow the victims, this case can deprive you of the sanctuary offered by your home and can have the entire family tossed out on the street.

I will compile all the judgment related to the DV act here.  If anyone has new judgments, please leave a comment or paste the judgment below in the comments section.

Please start by reading this judgment of Justice Dhingra given below. He interprets Batra Vs Batra and also explains the meaning and rights of shared household and matrimonial home:

Justice Dhingra Explains The Meaning Of Shared Household

If you face the false and fabricated Domestic Violence act, you must know the following:

Crl.P 3714 of 2007 delivered by the Hon’ble High Court of Andhra Pradesh where in it was held

“It is a fundamental principle of law that any penal provision has no retrospective operation but only prospective. There is no allegation either in the report or in the statement or in the complaint on the 1st Respondent with regards to the acts of domestic violence that took place on or after 26-10-2006.Therefore continuation of proceedings against the petitioners is nothing but abuse of process of court”.

I finally got my hands on this judgment thanks to Aejaz_legal, a reader who posted this judgment:

To understand this principle, read this article:

Here is the judgment:

https://ipc498a.files.wordpress.com/2007/10/mp-hc-women-cant-be-respondents-in-dv-act-2007.pdf

Here is another judgment from the Chennai HC stating the same:

https://ipc498a.files.wordpress.com/2008/10/chennai-hc-dv-act-to-be-filed-only-against-male.pdf

Here is the Kapil Rastogi Judgment – Jan/2009, stating the same:

Kapil Rastogi Vs Urvashi: DV Case – 2009

  • 2007(2) ALT (Crl.) 504(A.P) delivered by the Hon’ble High Court of Andhra Pradesh where in it was held “as there is no claim made against the other respondents, continuing process against them is a clear abuse of law”.  I am missing the judgment:
  • I (2007) DMC 1 (SC) = 2007(3) ALT (Crl.) 1(SC) delivered by the Hon’ble Supreme Court of India where in it was held”claim for alternative accommodation can only be made against the husband but not to the In-laws”.

Here is the judgment:  SC judgment, Batra Vs Batra, 2007.

  • Shaleen Kabra DV Act Judgment:  You can read about this story here: A Delhi additional sessions court has ruled that allegations of domestic violence need to be proved and victims need to face cross-examination and provide evidence in support of their charges to be liable for relief. This ruling was upheld by the Delhi High Court. This is marked in red as this blows a hole in the DV Act. The judgments are given below:

PMO Official Accused Of Domestic Violence By Wife

  • Suraj Prakash Vs Sushila. Can anyone translate this and post this as a comment? You’ll be doing the rest of the victims of this filthy act a huge favor.

Here is the judgment (Hindi): Suraj Prakash Vs Sushil DV Act – 2007

Here is the very interesting judgment: Swarup Sarkar DV Act Judgment 2007

  • Sonia Vs Vinod: “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

Also, check out Vinayaks blog, link is given below. He has some tips to fight the DV Act:

General Suggestions for victims of DV act

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Justice Kailash Gambhir (Delhi HC) Guidelines On 498A Cases

Here are the orders of Justice Gambhir. You can read about him here and I very well consider him to be the next Justice Dhingra.

These guidelines follow the Commissioner YS Dadwal order prohibiting 498A arrests in Delhi.

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

There won’t be hordes of radical feminists attacking Justice Gambhir for these guidelines, as they risk being exposed and ridiculed by Indian bloggers affected by 498A.

More later. I’ve been working many hours in my new job and I have been sick since yesterday. Trying to wrap up as many pending posts as possible.

Here is the judgment: Justice Kailash Gambhir (Delhi HC) Guidelines On 498A Cases

The guidelines are given below:

Guidelines:
1. Social workers/NGO
There is no iota of doubt that most of the complaints are filed in the heat of the moment over trifling fights and ego clashes. It is also a matter of common knowledge that in their tussle and ongoing hostility the hapless children are the worst victims. Before a wife moves to file a complaint with the Women Cell, a lot of persuasion and conciliation is required.
(a) The Delhi Legal Service Authority, National Commission for Women, NGOs and social workers working for upliftment of women should set up a desk in crime against women cell to provide them with conciliation services, so that before the State machinery is set in motion, the matter is amicably settled at that very stage. But, if ultimately even after efforts put by the social workers reconciliation seems not possible then the matter should be undertaken by the police officials of Crime against Women cell and there also, serious efforts should be made to settle the matter amicably.
2. Police Authorities:
(a) Pursuant to directions given by the Apex Court, the Commissioner of Police, Delhi vide Standing Order No. 330/2007 had already issued guidelines for arrest in the dowry cases registered under Sections 498-A/406 IPC and the said guidelines should be followed by the Delhi Police strictly and scrupulously.
(i) No case under Section 498-A/406 IPC should be registered without the prior approval of DCP/Addl. DCP.
(ii) Arrest of main accused should be made only after thorough investigation has been conducted and with the prior approval of the ACP/DCP.
(iii) Arrest of the collateral accused such as father-in-law, mother- in-law, brother-in-law or sister-in-law etc should only be made after prior approval of DCP on file.
(b) Police should also depute a well trained and a well behaved staff in all the crime against women cells especially the lady officers, all well equipped with the abilities of perseverance, persuasion, patience and forbearance.
(c) FIR in such cases should not be registered in a routine manner.
(d) The endeavor of the Police should be to scrutinize complaints very carefully and then register FIR.
(e) The FIR should be registered only against those persons against whom there are strong allegations of causing any kind of physical or mental cruelty as well as breach of trust.
(f) All possible efforts should be made, before recommending registration of any FIR, for reconciliation and in case it is found that there is no possibility of settlement, then necessary steps in the first instance be taken to ensure return of stridhan and dowry articles etc. by the accused party to the complainant.
3. Lawyers:
Lawyers also have a great responsibility in this regard.
(a) While drafting pleadings/complaints, the lawyers should not unnecessarily suggest incorporation of wild allegations, or in character assassination of any of the parties or their family members whatever the case may be.
(b) Lawyers are also to endeavor to bring about amicable settlement between the parties as they are expected to discharge sacred duty as social engineers in such cases instead of making them target for monetary considerations by multiplying their cases.
4. Courts:
Subordinate courts, be it trying civil or criminal cases concerning bail, maintenance, custody, divorce or other related matters shall in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about reconciliation between the parties.
a) The first endeavor should be for possible reunion and restitution of the parties and as a last endeavor to bring about peaceful separation.
b) If possible extra time should be devoted to such matters to restore peace in the lives of rival parties be it by re-uniting them or even in case of their parting ways.
c) Conciliatory proceedings by the court should preferably be held in camera to avoid embarrassment.
d) Wherever, the courts are overburdened with the work, necessary assistance of Mediation and Conciliation cells should be sought.
Apart from above directions it would not be out of place to ask parties also to themselves adopt a conciliatory approach without intervention of any outside agency and unless there are very compelling reasons, steps for launching prosecution against any spouse or his/her in-laws be not initiated just in a huff, anger, desperation or frustration.

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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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