SC Judgment On Custodial Deaths

Here is a judgment on Custodial Deaths.

The Supreme Court has consistently reiterated the importance of Article 21 Of our cherished Constitution.

“Fundamental rights occupy a place of pride in the India Constitution. Article 21 provides “no person shall be deprived of his life or personal liberty expect according to procedure established by law”. Personal liberty, thus, is a sacred and cherished right under the Constitution. The expression “life of personal liberty” has been held to include the right to live with human dignity and thus it would also include within itself a guarantee against torture and assault by the State or its functionaries. ”

Each time a person is arrested under 498A without any investigation, the arresting officer is breaking the law of the land.

Here is the judgment: SC Judgement On Custodial Death

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Supreme Court Judgments On Bail

Here is an editorial in the Hindu. I’ve found one judgment mentioned in this article.

Here is the link :
http://www.hinduonnet.com/2003/10/23/stories/2003102300411200.htm

This one of the judgments. I strongly recommend reading it as contains a lot of info.

Here is the link: SC Judgement on Bail 2002

Here is the SC landmark judgment on bail:

• SC Judgement On AB (Full)
• Supreme Court Landmark Judgment On Anticipatory Bail (Summary)

These are important judgments. I recommend reading them.

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AP High Court Sets Aside A 498A Conviction

Folks,

This appeal was filed in ’98 and the case disposed on 02-01-2006 !!

This is the case of a man who repeatedly subjected his wife to domestic violence, following which she committed suicide. He was convicted under 498A by the lower court, but the High Court of AP held that he was not guilty under 498A, overturning the conviction of the lower court.

I am posting this judgment as the intent is to fight the abuse of 498A and nothing more.

Here is the file: AP High Court Sets Aside A 498A Conviction

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Rape “Victim” Faces Criminal Case For Turning Hostile

Here is the link to the HT article

Here is the judgement from the Delhi Court: Rape “victim” faces criminal case

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What Is An Interpol Red Corner Notice?

Folks,

There is not a lot of clarity about what a Red Corner Notice means. Here is an explanation from the Interpol Press Office. Also, if you are facing an Red Corner Notice, most western countries will not just put you on a flight and deport you. There are quite a few formalities that need to be completed and a local judge needs to be convinced that you have done something terribly bad to deserve to be deported. And if you choose to fight the extradition, the other side will need to spend a LOT of $$$$ to really get you out. So, if some one is threatening you with a Red Corner Alert, then wish them the best and go about your life. The only drawback is that you may not be able to go back to India. One last thing, you may be able to get a stay on the NBW so the Red Corner Alert is moot. Again, cross check with lawyers who are well versed in all this.

Here is a link that contains information about the different notices: Interpol Notices

DIG Vinay Ranjan Ray Explains The Process Of Having An RCN Issued

You can read about NRIs and Interpol’s most wanted here:

Interpol’s Most Wanted – NRI Grooms Not Amongst Them

For those of you in the US, don’t worry about extradition or what ever. The US is one country in the world where due process is still given primary importance. Here is an an entry from the Dept Of Justice Handbook for prosecutors.

Here is the link to the US DOJ procedures on extradition.

For those of you in the US, here is an interesting link to a Bloomberg.com News article on US extradition.

More Information: http://www.interpol.int/Public/ICPO/LegalMaterials/FactSheets/FS13.asp#1

Here is a link to the CBI website if you want to check if your handsome face is posted on the wanted list.

Technically, what is an Interpol Red Corner Alert ?

• It is one of the ways in which Interpol informs its 186 member countries that an arrest warrant has been issued for an individual by a judicial authority.
• It is not an international arrest warrant.
• The individuals concerned are wanted by national jurisdictions and Interpol’s role is to assist national police forces in identifying or locating those individuals with a view to their arrest and extradition.
• Red Notices are only issued to Interpol member countries if the requesting National Central Bureau (NCB) has provided all the information required by the General Secretariat, including details of a valid arrest warrant for the country in question.
• Interpol’s General Secretariat does not send officers to arrest individuals who are the subject of a Red Notice.
• Many of Interpol’s member countries however, consider a Red Notice a valid request for provisional arrest, especially if they are linked to the requesting country via a bilateral extradition treaty. In cases where arrests are made based on a Red Notice, these are made by national police officials in Interpol member countries
• Interpol cannot demand that any member country arrest the subject of a Red Notice..

In reality, if you are an Indian national, what would a Red Corner Notice mean to you? (The answers are given by a couple of guys who commented on this blog)

A red corner notice is actually “a spot out device on the immigration computer”. When a passenger checks in or checks out of India at the international immigration counter, the moment the passengers passport number is fed in ”a red flag appears” beside it to alert the immigration officer that this person is wanted by the police of any police station in India.The passenger is detained irrespective of nationality and the airport police take that passenger away to the nearest police station, for the sole reason of extorting money by any means. The highest rate is an American national, second comes a brutish national, because the conversion rate of the dollar and the pound is the best to bargain so the passengers of these nationalities are supposed to be gold nuggets for the immigration officers who are always on the prowl to make a buck. A criminal nexus is then arranged between the immigration officers and the police and the passenger is harassed in every possible way!

“Look-Out-Circulars” by Indian police are posted at every airport in India to catch innocent people who are entering India through any international airport while getting their passport checked. These stations are at Raja- Sansi -Amritsar, IGI Airport Delhi. Bombay, Calcutta and Madras. The moment your passport number is entered a red flag appears beside your name and your case details come up on the screen after which being detained for hours you are taken to a police station where your passport will be detained and given back to you only after you pay a hefty bribe to the concerned officials beware!!!!

Read the comments on this post to understand more.

News Articles:

• Here is an article from The Hindu on lookout circulars.
• Interpol RCN Against NRIs For Dowry Allegations

Also, read this to understand and survive this mess, if you are a non resident Indian national facing a 498A: A Guide To Surviving IPC 498A

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Justice Dhingra Quashes A 498A FIR

Folks,

I came across this judgment by Justice Dhingra quashing a 498A . This was a case of compromise between the hubby and wife. Nothing special about this judgment.

You can read it here: Justice Dhingra Quashes A 498A FIR

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What Is Habeas Corpus ?

Folks,

This term has come up pretty often, so I thought of posting a clarification on this. Applies to NRIs.

Again, this is not legal advice. This is a non binding FYI only.

Here is the file: What Is Habeas Corpus ?

Here is a SC Judgment on Habeas Corpus:

Habeas Corpus-Thokchom Lokendra-SC-Judgment

Here are some SC judgments on Habeas Corpus:

• Supreme Court On Powers Of Police To Arrest
• SC allows DNA Test in Habeas Corpus Case

Here is an example of the use of Habeas Corpus: ”

Habeas Corpus filed to produce arrested Maoists

A Habeas Corpus petition was filed before the Madras High Court to produce three Maoists who were arrested by Special Task Force police in Tirupur on July 9.
In his petition, Centre for Protection of Civil Liberties General Secretary G Haribabu contended that the three Maoists- Sundarmurthy(30), Karthik(25) and Easwaran(23) were arrested by the special police team actually on July eight and not on July nine.
Mr Haribabu submitted that the three were not produced before any court or remanded in judicial custody so far and the relatives of the arrested fear that the three were in illegal custody.
He prayed the High Court to issue a writ of Habeas Corpus to produce the arrested persons before the court as per Article 226 of the Constitution.
For the Government of Tamil Nadu, the respondent in the case, Home Department Secretary, “Q” Branch CID Superintendent of Police and the Special Task Force Additional Director General of Police were present when the petition was taken up for hearing.”

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SC Broadens Definition Of Mental Cruelty For Divorce

This is the Samar Ghosh (IAS) judgment by the Supreme Court broadening the definition of Mental Cruelty.

Here is a detailed analysis

Here is a summary:
“The Supreme Court instructed lower courts dealing with divorce petitions on the ground of mental cruelty “to review married life as a whole” and “that a few isolated incidents over a period of years will not amount to cruelty”.

The bench focused on what it called “sustained behaviour”. It said that “mere coldness or lack of affection cannot amount to cruelty” but made allowance for the fact that “frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable”.

The judges observed: “The concept of mental cruelty cannot remain static; it is bound to change with the passage of time, the impact of modern culture through the print and electronic media and value system, etc. What might be mental cruelty now might not be so with the passage of time and vice versa. There can never be any straitjacket formula in matrimonial matters.”

Mental cruelty, they said, “was a state of mind”; “the feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of the other for a long time might constitute mental cruelty. So would a sustained course of abusive and humiliating treatment calculated to torture or render miserable the life of the spouse, and sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other”

““Unilateral decision of refusal to have intercourse for a considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.” Writing the judgment, Justice Bhandari said if a man underwent sterilisation without medical reasons and without the consent or knowledge of his wife and similarly if a woman underwent tubectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act might lead to mental cruelty.”

Here it is:SC Samar Ghosh (IAS) Judgment

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Maintenance and Divorce Laws In India

This is an article by Sumanth in Desicritics.org.

Here is the link: Maintenance and Divorce Laws In India

Text is given below:

Disclaimer: This article is not from an expert in Judicial matters. So, the author or Desicritics takes no responsibility whatsoever for any consequences arising out of following the procedures explained here.
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As I keep talking with many of my friends on the issue of divorce, child custody and alimony, I was shocked to find that most of them have absolutely no knowledge about the laws related to marriage and the court procedures. Many think divorce is just a cake walk and others think the woman gets 50% of the guy’s salary or even property if the couple have a divorce.

In India, family courts can pass an interim order on maintenance to a spouse when s/he is separated from the other spouse with minor marital conflict, with a decree of judicial separation or if one of the spouses has applied for divorce. So, a lawsuit for divorce or judicial separation is not mandatory to apply for monthly maintenance.

Interim maintenance order remains valid till the permanent maintenance order is given by the court during the divorce.

The maintenance amount is calculated (approximately) by taking into account the total monthly take home income (ie. without tax) of both the spouses. The educational background of the spouses, the number of years of marriage, number of children and child custody are also major factors, which govern the maintenance amount. Maintenance amount can also depend on who well the lawsuit has been fought by the advocates of both parties. The spouse with lesser income or no income can get a maintenance amount, which will make his/her complete earnings (plus maintenance) to be equal to 20% to 30% of the above total monthly income.

For example, if the husband has a take home income of one lac per month and the wife has a take home income of twenty thousand and they have no children in a marriage of 2 years, then the wife can theoretically get Rs.4000 as maintenance. How? The total take home income is one lac and twenty thousand and twenty percent of it comes to Rs.24,000. So, the woman gets Rs.4000 per month, so that her total income (her income+maintenance) becomes Rs.24,000.

If the couple have a child and the woman has the child custody, then she may get a maintenance amount of Rs.10,000 to Rs.16,000 per month so that her total income becomes Rs.30,000 to Rs.36,000 per month. Apart from that there can also be a judicial order defining the details on how the expenses for high studies of the child are shared. If the child decides to stay with the father after the age of 5, then the maintenance amount to the woman gets reduced accordingly.

If a woman’s income is at least half of her husband’s income, then most often she may not get any maintenance.

Similarly in a marriage of six months, if the wife is not working, but she has a masters degree and the husband has a monthly take home income of rupees one lac, then she may get a maintenance amount between Rs.8,000 to Rs.12,000 per month. Why? Because the argument would be that she has the capability to work and support herself.

Sometimes, the wife is also ordered to pay maintenace to the husband when the husband has a very small or no income compared to his wife’s income. In recent past, such orders are passed by high courts in Cuttack and Lucknow much to the annoyance of some feminists and media. But, laws have to be the same irrespective of gender. Is not it?

So, economically empowered women do not get maintenance or they may even have to pay maintenace to their husbands in case of divorce.

The maintance amount can get higher if its a long marriage. The parents can also claim maintenace from their grown up earning children. Even though, it is not clear, if they can claim maintenance from their earning daughters as today daughters have equal property inheritance rights.

It must be noted that neither the husband nor the wife can make claims on the property(residential or otherwise) of the other during divorce. So, some intelligent men make sure to get residential property registered only in their name, when they apply it through a bank loan. But, most other foolish men (being misguided by the builders) register the property in joint names, while its the man who pays fully for the bank EMIs. In case of marital conflict and divorce, the condition of such men becomes extremely miserable as they are already under a debt of rupees 20 lacs to 30 lacs and the wives make a claim on it apart from the maintenace they may get in the court. I know, some other men asking their working wives to pay for half of the property and loan so that the property can be registered in both names. These wives sometimes start complaining that he is asking dowry as they feel its only a man’s duty to provide for the family and the common expenses.

A woman or man stops getting maintenance from his/her spouse once s/he gets remarried unless they have a child. So, often women ask for a one time out of court settlement (or alimony) in stead of divorce. The man may agree to it or he can decline to it saying that he would prefer to give monthly maintenace.

For young guys (say techies within age group of 25 to 30) in marital conflicts, the maintenance amount given to their non working wives can be between Rs.2000. to Rs.7,000 (if they earn a salary between Rs.18,000 to Rs.50,000) provided they have no children.

So, often lawyers advise the women to file false dowry cases, so that the woman can force the guy to pay up a huge settlement/alimony (out of the court) in stead of going for a monthly maintenance. A monthly maintenance of Rs.3000 is in no way comparable to an one time alimony of Rs.10 lacs. But, the guy becomes bankrupt in such a situation as he ends up not only losing all his savings, but also takes loan from family and friends. He not only pays the alimony, but also ends up spending time in jail with his family, loses reputation, may be even the job, pays bribes to the police to stop harassing his family and the huge legal expense for bails and fighting the multiple cases. There is no way he can think of marrying again as he simply has no money to pay for even the marriage expenses. Of course, the painful experience can also keep him miles away from the very word marriage. On the otherhand, the woman’s dowry case is fought by the public prosecutor(ie. the lawyer from the State paided by the taxpayer’s money).

Its is alleged by some that the lawyers of both sides may also profit from this kind of a settlement. Its not at all surprising, if a husband finds himself cornered by his own lawyer, who keeps on pestering to go for a settlement, pay alimony, marry another girl (immediately) and live happily ever after.

The child is an important factor in a marital conflict, especially when the child is below the age of five. Fathers have natural right to child visitation. But, women can often evade the instructions/law and deny child visitation rights to the fathers. I have seen such fathers being allowed to meet their children once in a week or two just for an hour in the family court complex in Bangalore as in the police keeps dragging chained criminals into the vehicles in the background.

Today, as fathers get sensitive towards their children, it can lead to misery in case of a marital conflict, as there are no shared parenting laws in India and the child visitation rights may not get strictly enforced. This can mean, men may not prefer to have a child for many years in a marriage, if they have doubts on whether the marriage will sustain. They can also think of furthering their professional career in stead of spending time on bringing up the child. If the wife wants to have a child, then it can further escalate the conflict into a vicious circle, finally leading to a situation where the woman starts accusing the guy as being impotent. In year 2002, Media (especially the ToI-Let Tabloid) picked up such situations and presented it as “a lot of male Software Engineers are impotent”. God knows, why they are not with that story now-a-days and are in stead focusing on stories of casual sex in parking lots, bathrooms of IT and BPO companies.

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Justice Dhingra Has Been Reassigned

I heard that Justice Dhingra has been reassigned to deal with civil issues.

I really hope that this is a rumor. Thanks to him, a lot of us are now able to fight back.

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Approaching The Supreme Court Of India

I always believed that approaching the Supreme Court was a Herculean task. That I would need to hire an expensive lawyer and other misconceptions. The reality is different. It is with a view to providing easy and inexpensive access to the Supreme Court and giving legal advice that the Supreme Court Legal Services Committee (SCLSC) has been constituted under the Legal Services Authorities Act, 1987.

When can you approach the SCLSC?

You can approach the SCLSC in two situations:

1.You need to file or defend a case in the Supreme Court. This would include:

• • Appeals/Special Leave Petitions, Civil or Criminal, against an order of the High Court.
  • Petition for violation or enforcement of your fundamental right. This includes:
    • Habeas Corpus petitions- where a close friend or relative is missing or illegally taken away and whose whereabouts you do not know
    • Petitions challenging the legality of government action or inaction
    • Petitions challenging the legality of a legislation or order of government that violates your fundamental right.
  • Petition for transferring a case, civil or criminal, pending in one State to another State within India.

2. You need legal advice regarding your problem.

To file a case you need to fulfill certain eligible criteria. One of them is that you need to be a woman. If the Fundamental Rights of your family are violated by an officer of the law, be it a police officer or a magistrate, then get the women of your family to bring this to the attention of this committee.

Your mom will be the best bet for being eligible for aid as most of our moms are home makers with no sources of income. They’ve raised you to be a decent human being and have sacrificed a lot for us. Tell them that it just another battle as the laws have tied your hands and have deprived you of your ability to fight back.

Like all things in India, don’t expect this to be an easy process. All the same, from what I’ve seen of the Judicial system in India, the higher echelons of the Judiciary are untainted and disciplined. I expect that you’ll get a decent shot at justice.

For obtaining legal advice, you can call at the office of the SCLSC on any working day between 10.30 a.m. and 5 p.m.. Or you could send in a query by post, for which you should receive a reply within fifteen days. If the query is sent by e-mail, you could expect a reply sooner. Again, there are no charges for legal advice.

If you have any queries, you may contact :

The Secretary

Supreme Court Legal Services Committee
109, Lawyers’ Chambers,
Supreme Court Compound,
New Delhi-110 001

Ph. Nos. 23388313, 23073970, 23381257
e-mail : sclsc@nic.in

Here is the link to the site with the FAQ: http://sclsc.nic.in/faq.htm

Here is the link to the site index: http://sclsc.nic.in/

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What Is IPC 498A ?

What Is IPC 498A ?

You can get a good idea from here: http://en.wikipedia.org/wiki/498a

Here is some more info compiled by Maksim Gorky. Some links may be inactive.

You can get a good idea about the law here:

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A Possible Reprieve For NRIs On The Run

Folks,

Here is a judgment from Justice Dr. Pasayat. I haven’t been able to find the stay order yet, but here is the article from HT: Reprieve For NRI

There is a strong possibility that you may get the NBWs stayed by applying for a reprieve from the Supreme Court. I am sure that you can pull this off with a 498A as well.

I will post the orders as soon as I find them.

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The Police Should Always Avoid Arresting A Person: Justice JD Kapoor

Folks,

A news item.

Here is the definitive Judgment by Justice JD Kapoor of the Delhi High Court: The Police Should Avoid Arrest

You cannot be arrested on the basis of a mere allegation under IPC Sec 498A.

This is the law of the land and each time the cops arrest you, they are breaking the law and are in contempt of Court. Please have these judments with you if you anticipate a 498A against you. Atleast shield your parents and siblings. I didn’t know and I failed to do so.

Here is what Justice JD Kapoor says.

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19. It appears that the learned Special Judge was labouring under a misconception that in every non-bailable and cognizable offence the police is required to invariably arrest a person, even if it is not essential for the purpose of investigation.

20. Rather the law is otherwise. In normal and ordinary course the police should always avoid arresting a person and sending him to jail, if it is possible for the police to complete the investigation without his arrest and if every kind of co-operation i s provided by the accused to the Investigating Officer in completing the investigation. It is only in cases of utmost necessity, where the investigation cannot be completed without arresting the person, for instance, a person may be required for recover of incriminating articles or weapon of offence or for eliciting some information or clue as to his accomplices or any circumstantial evidence, that his arrest may be necessary. Such an arrest may also be necessary if the concerned Investigating Officer or Officer-in-Charge of the Police Station thinks that presence of accused will be difficult to procure because of grave and serious nature of crime as the possibility of his absconding or disobeying the process or fleeing from justice cannot be ruled out.

21. The liberty of a citizen is of paramount importance and a constitutional guarantee and cannot be incised and therefore the police or Investigating Agencies should not remain under the impression that in every cognizable and ”non-bailable” offence the y should invariably arrest the offender. Power to arrest is altogether different than the need for arrest. Unless a person is required for custodial interrogation and investigation cannot be completed without his arrest, arrest may be necessary. In c se investigation can be completed without his arrest and he extends all kind of co-operation, he should not be arrested. No authority howsoever powerful or mighty can be allowed to deny a person his liberty as it hits at the very foundation of democratic structure. In this regard, I cannot resist the temptation of reproducing the observations made by the Supreme Court in Joginder Kumar vs. State of UP and ors. (1994) 4 SCC 260 which are very pithy and have force in law. These are as under:- ”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 fro his power to do so. Arrest and detention in police lock-up of a person can 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 o 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.”

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Delhi HC: Go Beyond Prosecutions Case For Truth

Folks,

A new judgment from Justice Dhingra.

Here is the article from HT. I do hope they don’t file charges against me for copyright issues. The idea is to disseminate only: Go Beyond Prosecutions Case For Truth

Here is the judgment: Surender Kumar Acquitted 498A

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The Sexual Harassment Bill

I’ve been hearing rumblings about a sexual harassment bill. I decided to check it out from the NCW website. I was appalled. Who are these morons drafting these laws? What are they after ?

Here is a draft of the bill: Draft Sexual Harassment Bill

Here is the judgement of the Supreme Court: Visakha Vs State Of Rajasthan

I have strong opinions about this bill for the following reasons.

Is sexual harassment an issue for the working women of India ? The answer is a resounding yes.

Can this be trusted to be drafted intelligently and with safeguards built in to prevent abuse? No, not if drafted by the same set of morons who drafted the DV Act and who oppose the amendment of 498A.

Here is a link to a doc from the NCW  on BPO guidelines.

More on this later. In the meantime, here is the SC judgment on sexual harassment: Visakha Vs State Of Rajasthan

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Supreme Court Judgments On Human Rights

The Supreme Court has clearly established that primary importance will be given to due process when a citizen is the accused in any offence.

Here are a some judgments compiled by CHRI: HUMAN RIGHTS AND POLICING

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Delhi HC: Do Not Entertain Frivolous Dowry Cases

Justice Dhingra has come out with another landmark judgement. Here is the newspaper article:

Here is the judgment: Sangeetha Kalra Judgment-Mar-02-2006

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The Indian Passport Act

Folks,

You may get a copy of the Indian Passport Act From Here

SC-Police Or Courts Cannot Impound Passport (Jan 2008)

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A Survivor’s Guide To IPC 498A

The Survivor’s Guide To IPC498A has been consolidated into The 498A Survival Kit. Click on the link below:

The 498A Survival Kit

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