UP Govt can give relief to million families by permitting Anticipatory Bails in family disputes like 498A, Dowry
At present, except in UP, in all other states in India, there is provision for anticipatory bail in such cases.
These are called Sec. 438 Cr. PC proceedings. This gives instant relief to families who fear arrest in false cases by estranged wife and in laws.
In UP, no such provision. So people of UP have to rush to High Court at Allahabad or Lucknow, to seek 'not to arrest' orders in such cases.
This is causing lot of harassment to people.
If by an ordinance, anticipatory bail is made possible in family-related criminal cases in UP, it can give relief to million of families who will feel a little assured against false cases.
Until such ordinance or law is passed, administrative direction can be issued by UP Govt
In fact, govt can even issue an administrative direction that in such cases, parties of husband family need not be arrested but can be directed by police to appear in court on a date given, so that there they can get regular bail under Sec.439
Something really needs to be done in this direction.
Haresh Raichura
30/6/2013
June 30, 2013
Probably, there are no rules for granting long paroles to paralytic and bedridden prisoners. Waste of Govt money.
Probably, there are no rules for granting long paroles to paralytic and bedridden prisoners. Waste of Govt money.
Parole, means a prisoner is granted leave for few days to go home to attend some family event or for treatments. Such paroles are usually for 15 days to 30 days.
Laws are codifications of Reasons. If a law is controlling movement of any person, then there are supposed to be some reasons behind it.
But I see no reasons in keeping minor criminals in jail suffering from paralysis, parkinson disease, partial lung failures above 40%, or otherwise bedridden and constantly in need of medical support.
I have seen such clients. I have also come across orders where long parole are refused as there do not appear such rules.
Now science has produced foot-cuffs with GPS devices. Then such prisoners can be released on long paroles by jail authorities. This can reduce financial burden of State in keeping such prisoners in jail.
- Haresh Raichura
30/6/13
Parole, means a prisoner is granted leave for few days to go home to attend some family event or for treatments. Such paroles are usually for 15 days to 30 days.
Laws are codifications of Reasons. If a law is controlling movement of any person, then there are supposed to be some reasons behind it.
But I see no reasons in keeping minor criminals in jail suffering from paralysis, parkinson disease, partial lung failures above 40%, or otherwise bedridden and constantly in need of medical support.
I have seen such clients. I have also come across orders where long parole are refused as there do not appear such rules.
Now science has produced foot-cuffs with GPS devices. Then such prisoners can be released on long paroles by jail authorities. This can reduce financial burden of State in keeping such prisoners in jail.
- Haresh Raichura
30/6/13
June 29, 2013
100% Sure way to speed up Civil Cases in India: Adopt a US Rule of serving a Judgement on other side
100% Sure way to speed up Civil Cases in India: Adopt a US Rule of serving a Judgement on other side
Just today I read about a US Civil Court Rule:-
It says:
Ten days before starting of argument of a case, lawyer of one side will suggest a draft judgement of case and will serve its copy on lawyer of other side and his client.
If lawyer of other side and his client agree to this proposed Judgement, the court clerk will draw up judgement accordingly. Case will be over.
This is an excellent idea. Many cases may finish at this stage before arguments in court begins.
The drawing of a judgement, means analysis of evidence, and analysis of applicable laws and result.
This helps other side lawyer to convince his client whether they are likely to win case or not. They can also serve their suggested Judgement if they wish.
This will save lot of labour of Judge to analyse evidence on record and laws.
If this system works in other countries, why it cannot work here in India ?
If Parliament has no time to introduce this rule in Civil Code, no problem.
Supreme Court or High Court can lay down this practice direction.
Haresh Raichura
29/6/13
Just today I read about a US Civil Court Rule:-
It says:
Ten days before starting of argument of a case, lawyer of one side will suggest a draft judgement of case and will serve its copy on lawyer of other side and his client.
If lawyer of other side and his client agree to this proposed Judgement, the court clerk will draw up judgement accordingly. Case will be over.
This is an excellent idea. Many cases may finish at this stage before arguments in court begins.
The drawing of a judgement, means analysis of evidence, and analysis of applicable laws and result.
This helps other side lawyer to convince his client whether they are likely to win case or not. They can also serve their suggested Judgement if they wish.
This will save lot of labour of Judge to analyse evidence on record and laws.
If this system works in other countries, why it cannot work here in India ?
If Parliament has no time to introduce this rule in Civil Code, no problem.
Supreme Court or High Court can lay down this practice direction.
Haresh Raichura
29/6/13
When writ petition can be filed to "direct government authorities to make up their mind by saying YES or No"->
When writ petition can be filed to "direct government authorities to make up their mind by saying YES or No"
There are many laws under which government authorities are required to grant or reject application or representation of people.
Suppose if a person has made an application, but government authority gives no reply.
Then what a person will normally do?
Some persons keep sending reminders.
Cases have come where they keep writing letters to authorities and ministers for NINE years.
When nothing happens, they come to High Court for direction to authority to decide their application. High Court rejects such petitions on ground of delay.
If any Govt authorities are not deciding your application, you should approach High Court within reasonable time.
Reasonable time, here means about six months.
You cannot delay your case by keep writing letters to Chief Ministers and Authorities. Even RTI inquiries may not serve purpose.
But if you reach High Court in reasonable time, the High Court will first see, whether you have any right under law to make such application.
If it is satisfied, it can direct authority to take a Yes or No decision on your application within two months.
If within two months, they take a decision to refuse your application, then you have to again challenge that refusal order on grounds which may be available to you, again within reasonable time.
The Point is
If you have a right to make an application under law, and if your application is not being decided, either this way or that way, than to keep writing letters reminders may not serve any purpose and later, your case will be liable to be dismissed on ground of delay.
Haresh Raichura
29/6/13
There are many laws under which government authorities are required to grant or reject application or representation of people.
Suppose if a person has made an application, but government authority gives no reply.
Then what a person will normally do?
Some persons keep sending reminders.
Cases have come where they keep writing letters to authorities and ministers for NINE years.
When nothing happens, they come to High Court for direction to authority to decide their application. High Court rejects such petitions on ground of delay.
If any Govt authorities are not deciding your application, you should approach High Court within reasonable time.
Reasonable time, here means about six months.
You cannot delay your case by keep writing letters to Chief Ministers and Authorities. Even RTI inquiries may not serve purpose.
But if you reach High Court in reasonable time, the High Court will first see, whether you have any right under law to make such application.
If it is satisfied, it can direct authority to take a Yes or No decision on your application within two months.
If within two months, they take a decision to refuse your application, then you have to again challenge that refusal order on grounds which may be available to you, again within reasonable time.
The Point is
If you have a right to make an application under law, and if your application is not being decided, either this way or that way, than to keep writing letters reminders may not serve any purpose and later, your case will be liable to be dismissed on ground of delay.
Haresh Raichura
29/6/13
If you want to send PIL by post, where and how you can send it - A suggestion
If you want to send PIL by post, where and how you can send it - A suggestion. I am prompted to write this post, because today a morning a Doctor from Gujarat send me SMS making this query.
First Thing : People are not allowed to address letters to any Judge.
But in 1983, even a post card to a judge, was being treated as PIL.
In 1986, I asked a widow to drop an Inland letter to a Judge in Gujarat High Court. The inland letter was treated as writ petition and pension was released to her.
Thereafter, things have changed. There are Public Interest Litigation Cells in Supreme Court and in All High Courts.
They process letters from public.
They examine if the letter falls into criteria fixed by them.
If it does, then they place it before Court where it is treated as SUO MOTTO petitions.
If letter does not fall in criteria, and still there is something which need to be done, they forward such letter to High Court, Subordinate Court or to authority for looking up in grievance raised in letter. They are not bound to act or reply such letters. No RTI application can be possible status of such letter.
If the issue is of national interest, affecting two or more States, one can send public related grievance to The Hon'ble Chief Justice of India, PIL Cell, Supreme Court of India.
Such post should be sent by ordinary post. Because there is no obligation on courts to receive or to examine or to reply such posts.
If issue relates to a state matter, it can be addressed to : Hon'ble Chief Justice of the Concerned High Court.
District Judges also have such powers, but exercise of such power by them is not much seen.
If applicant is poor, he is given legal aid.
Normally, bonded labourers, child labourers are some such categorise which can be examined by court.
LEGAL BASE OF SUCH POWER
All judges are empowered to take action on 1) Basis of applications made to them and 2) Also on basis of their own information or on information came to their notice.
It is this second part, which gives judges power to take SUO MOTTO actions.
Haresh Raichura
29/6/14
First Thing : People are not allowed to address letters to any Judge.
But in 1983, even a post card to a judge, was being treated as PIL.
In 1986, I asked a widow to drop an Inland letter to a Judge in Gujarat High Court. The inland letter was treated as writ petition and pension was released to her.
Thereafter, things have changed. There are Public Interest Litigation Cells in Supreme Court and in All High Courts.
They process letters from public.
They examine if the letter falls into criteria fixed by them.
If it does, then they place it before Court where it is treated as SUO MOTTO petitions.
If letter does not fall in criteria, and still there is something which need to be done, they forward such letter to High Court, Subordinate Court or to authority for looking up in grievance raised in letter. They are not bound to act or reply such letters. No RTI application can be possible status of such letter.
If the issue is of national interest, affecting two or more States, one can send public related grievance to The Hon'ble Chief Justice of India, PIL Cell, Supreme Court of India.
Such post should be sent by ordinary post. Because there is no obligation on courts to receive or to examine or to reply such posts.
If issue relates to a state matter, it can be addressed to : Hon'ble Chief Justice of the Concerned High Court.
District Judges also have such powers, but exercise of such power by them is not much seen.
If applicant is poor, he is given legal aid.
Normally, bonded labourers, child labourers are some such categorise which can be examined by court.
Language should be mild and humble.
Facts should be brief and precise.
Address of authorities supposed to take action must be clearly set out.
While writing you should avoid giving any specifics about any antisocial elements. This can create direct enmity with you and you may have to suffer for writing letters. Do not write anything which may land you in trouble.
LEGAL BASE OF SUCH POWER
All judges are empowered to take action on 1) Basis of applications made to them and 2) Also on basis of their own information or on information came to their notice.
It is this second part, which gives judges power to take SUO MOTTO actions.
Haresh Raichura
29/6/14
Most litigants in Family Disputes, suffer from Arjun Vishad Yog - they avoid taking FIRST legal steps
Most litigants in Family Disputes, suffer from Arjun Vishad Yog - they avoid taking first legal steps
And then suffer protracted litigations.
In Husband wife disputes, after disputes arises, for first few months, husband and wife become separate and then suffer from dilemma, who should take first legal steps.... This is like Arjun Vishad Yoga - described in chapter 2 of GITA.
They hope that some miracle will happen, some wisdom will prevail.
Nothing actually happens. The relatives only worsen the situation.
Then wife, files first legal action. Then for husband side, things start going from bad to worse.
Here, as soon as the dispute arises, a wise decision should be taken. Preventive legal steps should be taken.
What preventive steps can be taken depends on facts of each case. For example, husband can file suit for restitution of conjugal rights or for judicial separation or for some other declaration. For this your lawyer can examine situation and can give you advice.
Waiting for bad things to happen is certainly a bad move.
Law, Luck and Judges help those litigants who are vigilantes about their rights.
Haresh Raichura
29/6/13
And then suffer protracted litigations.
In Husband wife disputes, after disputes arises, for first few months, husband and wife become separate and then suffer from dilemma, who should take first legal steps.... This is like Arjun Vishad Yoga - described in chapter 2 of GITA.
They hope that some miracle will happen, some wisdom will prevail.
Nothing actually happens. The relatives only worsen the situation.
Then wife, files first legal action. Then for husband side, things start going from bad to worse.
Here, as soon as the dispute arises, a wise decision should be taken. Preventive legal steps should be taken.
What preventive steps can be taken depends on facts of each case. For example, husband can file suit for restitution of conjugal rights or for judicial separation or for some other declaration. For this your lawyer can examine situation and can give you advice.
Waiting for bad things to happen is certainly a bad move.
Law, Luck and Judges help those litigants who are vigilantes about their rights.
Haresh Raichura
29/6/13
Can Judges be fined for granting adjournments?(Fake news) Neither legally possible. Nor practical.
Can Judges be fined for granting adjournments?(Fake news) Neither legally possible. Nor practical.
Headline in one today's national newspapers says judges may be fined for granting adjournment.
This is cheerful but fake news. During election time, painful veins of people are identified and fake news are circulated in mind of people even if the promised steps are illegal or not legally permissible.
Be careful while reading such news.
1) One reason for most of adjournments is "Court Time Over". The cause list, lists a 100 cases, but by the time judge has disposed of 40 cases, it is 5.00 PM. Court time is over.
2) Those who give lot of advice to judiciary, should first go and sit for few days in a trial court to see how judges and lawyer work under pressure. Non appointment of required judges has led to a crushing arrears of three crore cases. Govt discontinued fast track courts and it has not publish plan to deal with these arrears.
Why legally not permissible to fine judges
1) There are 1000 laws in which judge is asked to dispose certain application in 30 days. It is not done anywhere.
Because laws are passed without consulting judiciary and without considering logistic time involved in process.
The laws are passed on basis of wishful thinking.
2) Secondly, Each law protects judge from not being personally liable for any judicial act done in court. The question of making them personally liable does not arise.
3) In cases, where it is found that judges have given undue adjournment, departmental inquiry can be ordered. But that power is with High Courts. Not with Supreme Court.
4) Earlier, Supreme Court used to direct High Court to dispose of certain case in 6 months. Same way High Courts used to direct lower courts that certain case be disposed of finally in six months.
Today, neither Supreme Court, nor High Courts give such directions. They have learned realities. If necessary, they only "Request" lower court to dispose case "expeditiously" so far as possible within six month.. But no direction.
The point I wish to make is, the Arrears is real problem. Shortage of Judges is real problem. Unwillingness of Govt to allocate enough funds to judiciary is real problem. Not motivating lawyers for early disposal of case is real problem.
The real problems are not being addressed. Fake promises and populist statements are made.
Just ask "How?" and "Why this news now?" when reading such news. These question may lead you to hidden agendas of news makers.
Haresh Raichura
29/6/13
Headline in one today's national newspapers says judges may be fined for granting adjournment.
This is cheerful but fake news. During election time, painful veins of people are identified and fake news are circulated in mind of people even if the promised steps are illegal or not legally permissible.
Be careful while reading such news.
1) One reason for most of adjournments is "Court Time Over". The cause list, lists a 100 cases, but by the time judge has disposed of 40 cases, it is 5.00 PM. Court time is over.
2) Those who give lot of advice to judiciary, should first go and sit for few days in a trial court to see how judges and lawyer work under pressure. Non appointment of required judges has led to a crushing arrears of three crore cases. Govt discontinued fast track courts and it has not publish plan to deal with these arrears.
Why legally not permissible to fine judges
1) There are 1000 laws in which judge is asked to dispose certain application in 30 days. It is not done anywhere.
Because laws are passed without consulting judiciary and without considering logistic time involved in process.
The laws are passed on basis of wishful thinking.
2) Secondly, Each law protects judge from not being personally liable for any judicial act done in court. The question of making them personally liable does not arise.
3) In cases, where it is found that judges have given undue adjournment, departmental inquiry can be ordered. But that power is with High Courts. Not with Supreme Court.
4) Earlier, Supreme Court used to direct High Court to dispose of certain case in 6 months. Same way High Courts used to direct lower courts that certain case be disposed of finally in six months.
Today, neither Supreme Court, nor High Courts give such directions. They have learned realities. If necessary, they only "Request" lower court to dispose case "expeditiously" so far as possible within six month.. But no direction.
The point I wish to make is, the Arrears is real problem. Shortage of Judges is real problem. Unwillingness of Govt to allocate enough funds to judiciary is real problem. Not motivating lawyers for early disposal of case is real problem.
The real problems are not being addressed. Fake promises and populist statements are made.
Just ask "How?" and "Why this news now?" when reading such news. These question may lead you to hidden agendas of news makers.
Haresh Raichura
29/6/13
June 28, 2013
When a Judge of HC or SC is supposed to withdraw from a case? What is conflict of interest?
When a Judge of HC or SC is supposed to withdraw from a case? What is conflict of interest?
In Supreme Court, when case of Reliance - Brothers was going on, one judge suddenly, after one week of ongoing hearing, said he is withdrawing from hearing of case.
He said one of the party of case has engaged a law firm, where his daughter, who is a lawyer, is working.
He sensed conflict of interest and he withdrew from case.
One another SC Judge withdrew from a case, because one of the party of case sent a fax to him making allegations of bias against him.
One Judge, before starting a case between two companies, disclosed that he is holding shares of one company. He said he will hear the case only if both sides lawyers have no objection.
Judge also often withdraw from a case, if he notices that before some years, he was lawyer for one of the party.
In cases, where judges have any remote pecuniary interest in case, they are supposed to withdraw from a case. This is called conflict of Interest.
When some of the relative of Judge is associated with some of the party in case, then it is a conflict of Interest. There also judges are supposed to withdraw.
But in last, 60 years of history of India, no one has asked a Judge to withdraw from a case on ground that his or her father is from BJP or Congress. Such a demand is wholly inappropriate.
At the same time, if there is wide spread perception that a Judge should withdraw from case, the Judge can make his or her own decision to withdraw. Because he or she has no personal interest in case, he or she may have no objection in withdrawing.
But it can only delay hearing of a case, because if new judge is appointed, he or she may have to hear case from beginning.
But the point is, there is no convention, there is no precedent that a judge should withdraw from a case because of political affiliation of his or her father.
Haresh Raichura
28/6/13
In Supreme Court, when case of Reliance - Brothers was going on, one judge suddenly, after one week of ongoing hearing, said he is withdrawing from hearing of case.
He said one of the party of case has engaged a law firm, where his daughter, who is a lawyer, is working.
He sensed conflict of interest and he withdrew from case.
One another SC Judge withdrew from a case, because one of the party of case sent a fax to him making allegations of bias against him.
One Judge, before starting a case between two companies, disclosed that he is holding shares of one company. He said he will hear the case only if both sides lawyers have no objection.
Judge also often withdraw from a case, if he notices that before some years, he was lawyer for one of the party.
In cases, where judges have any remote pecuniary interest in case, they are supposed to withdraw from a case. This is called conflict of Interest.
When some of the relative of Judge is associated with some of the party in case, then it is a conflict of Interest. There also judges are supposed to withdraw.
But in last, 60 years of history of India, no one has asked a Judge to withdraw from a case on ground that his or her father is from BJP or Congress. Such a demand is wholly inappropriate.
At the same time, if there is wide spread perception that a Judge should withdraw from case, the Judge can make his or her own decision to withdraw. Because he or she has no personal interest in case, he or she may have no objection in withdrawing.
But it can only delay hearing of a case, because if new judge is appointed, he or she may have to hear case from beginning.
But the point is, there is no convention, there is no precedent that a judge should withdraw from a case because of political affiliation of his or her father.
Haresh Raichura
28/6/13
In villages, accused often complain that false rape case is filed because of land dispute- An illustration
In villages, accused often complain that false rape case is filed because of land dispute- An illustration
Some years ago, I had heard a case where a person was convicted for rape.
At the end of his trial, when judge asked him what has he to say, he said there was land dispute between husband of woman and him. Husband has set up his wife into filing a false case on him.
Judge examined the case. The woman had filed complaint after 3 days. She was mother of two child. The medical examination could not bring out any evidence as the complaint was after 3 days.
She explained that for 3 days remained stunned and shocked. Thereafter she gathered courage to tell her husband. And then as per advice of husband, she filed complaint after 3 days.
There were no stains on clothes of woman. The woman told court that after rape, her clothes and legs were stained. So she came home and washed everything.
There was a slight injury on thigh of woman. She said this injury happened during rape.
Doctor was examined. Doctor said that injury was 3 days old. But in cross examination he admitted that it could be older than 3 days also. He cannot be sure.
When, accused was asked about all these evidence, he denied everything and said that there was land dispute between husband of woman and him and therefore, husband had set up his wife to file false case on him.
How Judges Think and Judge
The woman has told her story. It looked probable. Now to reject say of woman, judge has to have some reason to say that the woman is not telling truth.
No such reason was brought on record by accused. Accused merely said that there was some land dispute. But this was a bald statement, nothing concrete was produced. So there was no supporting evidence to support say of accused.
Judge convicted him. High Court confirmed conviction.
In Supreme Court, the lawyer of accused argued for three days to convince judges that this was a false case.
At his instance, Supreme Court judges again read each and every piece of evidence in case to find something that may make it probable that that woman may be lying.
(Normally, all evidence are not read in Supreme Court because it only has to see errors of law. But in some cases they go deeply in evidence to know truth)
The lawyer argued mainly on two counts 1) No stains on clothes of woman. 2) The Doctor's say that injury on thigh could have been older than 3 days.
Against the first point, the explanation given by woman that she washed away stains on leg and clothes after coming home, was probable.
The one wavering statement by Doctor that injury could have been older than 3 days, was not enough to disbelieve Evidence of woman.
No details of so called land dispute was shown to court.
The appeal was dismissed.
Point of The Case
To merely attack the evidence of woman is not enough. If accused says that case is false, he has to bring materials which can show that the woman is lying. Merely saying that woman is lying is not enough.
Haresh Raichura
28/6/13
Some years ago, I had heard a case where a person was convicted for rape.
At the end of his trial, when judge asked him what has he to say, he said there was land dispute between husband of woman and him. Husband has set up his wife into filing a false case on him.
Judge examined the case. The woman had filed complaint after 3 days. She was mother of two child. The medical examination could not bring out any evidence as the complaint was after 3 days.
She explained that for 3 days remained stunned and shocked. Thereafter she gathered courage to tell her husband. And then as per advice of husband, she filed complaint after 3 days.
There were no stains on clothes of woman. The woman told court that after rape, her clothes and legs were stained. So she came home and washed everything.
There was a slight injury on thigh of woman. She said this injury happened during rape.
Doctor was examined. Doctor said that injury was 3 days old. But in cross examination he admitted that it could be older than 3 days also. He cannot be sure.
When, accused was asked about all these evidence, he denied everything and said that there was land dispute between husband of woman and him and therefore, husband had set up his wife to file false case on him.
How Judges Think and Judge
The woman has told her story. It looked probable. Now to reject say of woman, judge has to have some reason to say that the woman is not telling truth.
No such reason was brought on record by accused. Accused merely said that there was some land dispute. But this was a bald statement, nothing concrete was produced. So there was no supporting evidence to support say of accused.
Judge convicted him. High Court confirmed conviction.
In Supreme Court, the lawyer of accused argued for three days to convince judges that this was a false case.
At his instance, Supreme Court judges again read each and every piece of evidence in case to find something that may make it probable that that woman may be lying.
(Normally, all evidence are not read in Supreme Court because it only has to see errors of law. But in some cases they go deeply in evidence to know truth)
The lawyer argued mainly on two counts 1) No stains on clothes of woman. 2) The Doctor's say that injury on thigh could have been older than 3 days.
Against the first point, the explanation given by woman that she washed away stains on leg and clothes after coming home, was probable.
The one wavering statement by Doctor that injury could have been older than 3 days, was not enough to disbelieve Evidence of woman.
No details of so called land dispute was shown to court.
The appeal was dismissed.
Point of The Case
To merely attack the evidence of woman is not enough. If accused says that case is false, he has to bring materials which can show that the woman is lying. Merely saying that woman is lying is not enough.
Haresh Raichura
28/6/13
June 27, 2013
Students Bank Loans - Are students bound to pay instalments even if they do not get job after completing course?
Students Bank Loans - Are students bound to pay instalments even if they do not get job after completing course?
Governments as well as banks promise huge loans to do expensive educational courses. This is good. Nothing bad about it. But bad part starts when student is unable to get any job even after successfully competing so called expensive course.
While granting loan, bank knew that the student has no assets and the student has no capacity to pay back loan if he does not get job.
Now can the Bank take duressive steps to force student or his guarantor to pay back loan?
Documents Which Bank Gets Signed from Student and his parents
1) Loan agreement: Which says that after course is over, within six months or as soon as student gets job, whichever is earlier, the student will start repaying loan.
2) Promissory notes are obtained from student and parents.
What happens when student gets no job after doing course?
Bank files Summary Suit for recovery of loan against student and parent who may have signed as guarantor.
If the student do not get job, from where will they be able to pay loan?
Can LAW give any relief? Are such summary suits maintainable?
In contract law, there is a principle of "Frustration of Contract".
While entering into contract, parties may have visualised certain future prospects. On that basis, they may have entered into a contract.. But subsequently, if some unforeseen circumstances happen because of which it is not possible for a party to perform his part of contract, then law can refuse to enforce this contract.
This concept is not much applied in real life cases.
1) But it is my view that once a plea of frustration of contract is raised, the summary suit may not be maintainable.
2) Because, the fact whether contract has become frustrated or not is a matter of evidence.
3) So long cause suit may be possible but Summary suit is not possible.
4) And Long causes suits take about 5 years, so by that time, student will get job and will settle the dues.
So, there is no doubt that student will have to pay. But the bank will have to go through LONG CAUSE SUIT , then it will have to obtain decree and then within 12 years, it will be open to bank to enforce decree against assets of student or his guarantor.
The Bank lawyers, will strongly oppose this argument and will say that Frustration of Contract principle applies only to Act of God or to Act of Some Law.. Yes... But the court will have to examine both side arguments and judges will probably find a way to help students against Banks... This is how I hope.
CAVEAT : As I said earlier, this concept of frustration of contract in such cases is not much used. It has to be first argued in court and then only we can say whether above argument made here is workable or not.
Haresh Raichura
27/6/13
- Haresh Raichura
Governments as well as banks promise huge loans to do expensive educational courses. This is good. Nothing bad about it. But bad part starts when student is unable to get any job even after successfully competing so called expensive course.
While granting loan, bank knew that the student has no assets and the student has no capacity to pay back loan if he does not get job.
Now can the Bank take duressive steps to force student or his guarantor to pay back loan?
Documents Which Bank Gets Signed from Student and his parents
1) Loan agreement: Which says that after course is over, within six months or as soon as student gets job, whichever is earlier, the student will start repaying loan.
2) Promissory notes are obtained from student and parents.
What happens when student gets no job after doing course?
Bank files Summary Suit for recovery of loan against student and parent who may have signed as guarantor.
If the student do not get job, from where will they be able to pay loan?
Can LAW give any relief? Are such summary suits maintainable?
In contract law, there is a principle of "Frustration of Contract".
While entering into contract, parties may have visualised certain future prospects. On that basis, they may have entered into a contract.. But subsequently, if some unforeseen circumstances happen because of which it is not possible for a party to perform his part of contract, then law can refuse to enforce this contract.
This concept is not much applied in real life cases.
1) But it is my view that once a plea of frustration of contract is raised, the summary suit may not be maintainable.
2) Because, the fact whether contract has become frustrated or not is a matter of evidence.
3) So long cause suit may be possible but Summary suit is not possible.
4) And Long causes suits take about 5 years, so by that time, student will get job and will settle the dues.
So, there is no doubt that student will have to pay. But the bank will have to go through LONG CAUSE SUIT , then it will have to obtain decree and then within 12 years, it will be open to bank to enforce decree against assets of student or his guarantor.
The Bank lawyers, will strongly oppose this argument and will say that Frustration of Contract principle applies only to Act of God or to Act of Some Law.. Yes... But the court will have to examine both side arguments and judges will probably find a way to help students against Banks... This is how I hope.
CAVEAT : As I said earlier, this concept of frustration of contract in such cases is not much used. It has to be first argued in court and then only we can say whether above argument made here is workable or not.
Haresh Raichura
27/6/13
- Haresh Raichura
Be slow in accepting bank loan on basis of stock - in case of default, criminal case by bank possible - An example
Be slow in accepting bank loan on basis of stock - in case of default, criminal case by bank possible - An example
A small business man from a small village of Gujarat had come to seek my advice.
He had good relations with Branch Manager of a Private Bank.
He needed some loan. He had already taken loan against his farm and property.
He needed some more loan. Manager suggested him a way.
"Show that there is stock of Rs. 10,00,000/- in your godown. And on basis of stock, I will give you loan"
"But I have really no stock in godown"- said the businessman.
"Do not worry. We will take care. Just sign on these loan papers". - Manager suggested.
Papers were signed and loan was given.
After sometime, Manger asked him to return the whole loan or face a criminal case.
Bank proposed to file a criminal case against businessman on the ground that he had cheated the bank by "Disposing of Rs. 10 Lakh stock from his godown without permission and knowledge of Bank"
IPC 420 etc sections were proposed to be applied against businessman. The businessman show imminent danger of being arrested and jailed.
The businessman come to Delhi to seek my advice.
I gave him some suggestions.
He went back to village and met with bank manager.
He explained to manager that if Bank will file criminal case against him, he will apply to court to make Bank Manager as Co-accused. He will tell the Court that even though there was no stock, the Bank Manager prepared forged documents to show stock in Godown. Therefore, the bank manager and his staff who certified non existent stock, should also go to jail with him.
..........
After some months, I learned that problem of business man was solved. Bank did not file any criminal case on him. They sat down together and amicably settled the loan.
Haresh Raichura
27/6/13
A small business man from a small village of Gujarat had come to seek my advice.
He had good relations with Branch Manager of a Private Bank.
He needed some loan. He had already taken loan against his farm and property.
He needed some more loan. Manager suggested him a way.
"Show that there is stock of Rs. 10,00,000/- in your godown. And on basis of stock, I will give you loan"
"But I have really no stock in godown"- said the businessman.
"Do not worry. We will take care. Just sign on these loan papers". - Manager suggested.
Papers were signed and loan was given.
After sometime, Manger asked him to return the whole loan or face a criminal case.
Bank proposed to file a criminal case against businessman on the ground that he had cheated the bank by "Disposing of Rs. 10 Lakh stock from his godown without permission and knowledge of Bank"
IPC 420 etc sections were proposed to be applied against businessman. The businessman show imminent danger of being arrested and jailed.
The businessman come to Delhi to seek my advice.
I gave him some suggestions.
He went back to village and met with bank manager.
He explained to manager that if Bank will file criminal case against him, he will apply to court to make Bank Manager as Co-accused. He will tell the Court that even though there was no stock, the Bank Manager prepared forged documents to show stock in Godown. Therefore, the bank manager and his staff who certified non existent stock, should also go to jail with him.
..........
After some months, I learned that problem of business man was solved. Bank did not file any criminal case on him. They sat down together and amicably settled the loan.
Haresh Raichura
27/6/13
June 25, 2013
To Enhance Punishment for Rapes - to whom college students should write? Some Suggestions
A medical college student from an Eastern State called me today to ask whether it will be helpful if they write to Law Commission of India to make law to enhance punishment for rapes?
I said it may not help to write to Law Commission of India. Because, it's mandate is only to examine questions referred to it by Government. Their staff is also insufficient. They cannot take up any issue on their own. Nor can they make any recommendation to Government, and even if they do, the recommendations are not binding on government.
So ultimately, it boils down to Political Will of the Government. I said that in my view, it will not serve any purpose to write to Law Commission of India.
Next Question is, then to whom should they write
First, we should find out who are the people who are not in favour of increasing punishments for rape.....Second, who are the persons who can influence Political Will of the Government so that it can take this issue seriously.
So far as the first question is concerned, I can say that Senior Lawyers and Experience Judges are not in favour of increasing punishment of rape to death penalty. They have years of experience and wisdom. They have their reasons.
But good thing about them is, they are mostly open minded. If you argue before them that time has come to increase punishment of rape,they will examine your argument with open mind and will change their views if necessary.
If you want to write to some famous or celebrity Senior Lawyer in Supreme Court, just write name and drop it at address of Supreme Court Bar Association, Supreme Court, Bhagwan Das Road, New Delhi 110001. The letter may reach to them in due course. Even if they may not reply, your letter will force them to think.
Same way, the students can write to Senior Lawyers in various High Courts, by looking up High Court addresses on websites,
Second Question
Second question is, who are the persons in India who can influence Political Will of Government about enhancing punishment for Rape.
There is a book called "Who's Who in India". It is annually published by some INFA Publications, Delhi. Every year, they compile list of people who are highly influential and active in different areas. The book gives their about-10-Line-biography and address for communication. The book lists about 5000 top people in India. We may not read their name in newspapers, because they work silently and they do not want publicity.
They also may not reply. And some may also reply. But my belief is such that if we write letters to 10 people, 6 may not read our letter at all. They may be too busy. But 4 of them may read. And 1 of them may forward it to someone who can do something.
It may help to write letters to them. But you should not be discouraged if none of them replies. They are influential because they do work without claiming credit for their work.
So these are my suggestions. How far they work or they may not work, cannot be said.
- Haresh Raichura
I said it may not help to write to Law Commission of India. Because, it's mandate is only to examine questions referred to it by Government. Their staff is also insufficient. They cannot take up any issue on their own. Nor can they make any recommendation to Government, and even if they do, the recommendations are not binding on government.
So ultimately, it boils down to Political Will of the Government. I said that in my view, it will not serve any purpose to write to Law Commission of India.
Next Question is, then to whom should they write
First, we should find out who are the people who are not in favour of increasing punishments for rape.....Second, who are the persons who can influence Political Will of the Government so that it can take this issue seriously.
So far as the first question is concerned, I can say that Senior Lawyers and Experience Judges are not in favour of increasing punishment of rape to death penalty. They have years of experience and wisdom. They have their reasons.
But good thing about them is, they are mostly open minded. If you argue before them that time has come to increase punishment of rape,they will examine your argument with open mind and will change their views if necessary.
If you want to write to some famous or celebrity Senior Lawyer in Supreme Court, just write name and drop it at address of Supreme Court Bar Association, Supreme Court, Bhagwan Das Road, New Delhi 110001. The letter may reach to them in due course. Even if they may not reply, your letter will force them to think.
Same way, the students can write to Senior Lawyers in various High Courts, by looking up High Court addresses on websites,
Second Question
Second question is, who are the persons in India who can influence Political Will of Government about enhancing punishment for Rape.
There is a book called "Who's Who in India". It is annually published by some INFA Publications, Delhi. Every year, they compile list of people who are highly influential and active in different areas. The book gives their about-10-Line-biography and address for communication. The book lists about 5000 top people in India. We may not read their name in newspapers, because they work silently and they do not want publicity.
They also may not reply. And some may also reply. But my belief is such that if we write letters to 10 people, 6 may not read our letter at all. They may be too busy. But 4 of them may read. And 1 of them may forward it to someone who can do something.
It may help to write letters to them. But you should not be discouraged if none of them replies. They are influential because they do work without claiming credit for their work.
So these are my suggestions. How far they work or they may not work, cannot be said.
- Haresh Raichura
June 24, 2013
Art.370 : What a layman should know - BriefExplanation
1) India is Federal Union of many States.
It cannot pass laws relating to matters pertaining to powers of ANY States.
2) Temporary Provision was made in Art. 369 that for 5 years (1950 to 1955), Central Govt shall have powers to make laws in State's related Matters also.
(This temporary article is no more relevant after 1955. It has lived its life.)
3) Regarding Jammu and Kashmir, a similar temporary provision was made which said that
A) Art. 238 will not apply to Jammu and Kashmir. ( This part of Art.370 has now become meaningless because Art. 238 itself was removed by Parliament in 1955)
B) Part (b) says power of Central Govt to pass laws relating to this State, will be subject to certain limitations, regarding matters in Accession Agreement etc etc
(C & D) Certain Limitation on power Central Govt to make laws regarding this State
2)...,,xxxx Not relevant here.
The Most Important Thing To Keep in Mind is this :- Art. 370 (3)
Art. 370(3) says Not withstanding anything contained in Any of the above provisions The President of India, can issue notification anytime that this Article 370 is no more operative
In other words, a simple notification by President can cancel Art.370. But, He can issue notification only on recommendation of State Assembly of Jammu and Kashmir only.
This apply to all the States in India in same way.
Central Govt or Parliament cannot pass any law which can take away powers of any states.
They cannot pass even laws to appoint Lokayukt or Lokpals in any State without permission of that State.
Haresh Raichura
23/10/13
What you can do if you are in trouble and you have no time to reach lawyer or police - A suggestion
What you can do if you are in trouble and you have no time to reach lawyer or police - A suggestion
Actually this happened today morning. I received a SMS distress message on my mobile.
Someone was in bus. He was going to attend general meeting of a company. The company had obtained last minute summons by filing some false case to get him arrested and to prevent him to attend company meeting and the company officials were searching for him with police!
What guidance can I offer him when I know nothing more?
I suggested him like this:
"If your mobile has email facility, then keep sending emails to Yourself about what is happening with you. You can email yourself photographs also of people who may try to restrict your movements. ... All these emails and photographs will be later useful as evidence, if any illegal force is used against you to prevent you from attending meeting. If you so feel you can also mark copies of each email to some press reporter friend or relative if you think it will help you."
The emails have records of time and date of dispatch. These are documentary evidences to show that something was being reported at certain point of time. This can support oral evidence in court.
And what is more, other side cannot say that emails are fabricated or forged. Because each email has digital footprints.
Haresh Raichura
24/6/2013
Actually this happened today morning. I received a SMS distress message on my mobile.
Someone was in bus. He was going to attend general meeting of a company. The company had obtained last minute summons by filing some false case to get him arrested and to prevent him to attend company meeting and the company officials were searching for him with police!
What guidance can I offer him when I know nothing more?
I suggested him like this:
"If your mobile has email facility, then keep sending emails to Yourself about what is happening with you. You can email yourself photographs also of people who may try to restrict your movements. ... All these emails and photographs will be later useful as evidence, if any illegal force is used against you to prevent you from attending meeting. If you so feel you can also mark copies of each email to some press reporter friend or relative if you think it will help you."
The emails have records of time and date of dispatch. These are documentary evidences to show that something was being reported at certain point of time. This can support oral evidence in court.
And what is more, other side cannot say that emails are fabricated or forged. Because each email has digital footprints.
Haresh Raichura
24/6/2013
June 22, 2013
Suicide of husband due to harassment of wife - case of IPC 306 possible
Law of abetment of suicide is equal for husband or wife. If wife commits suicide due to harassment and cruelty by husband, husband is liable to be prosecuted. If husband commits suicide due to harassment of wife, the wife is also liable to be prosecuted.
This is equal for husband and wife. But the difference is in Evidence Act Sec.113A.
It says that if wife's suicide happens, court will, at first instance, presume that husband abetted the suicide.
Burden will be on husband side to prove that he had inflicted no cruelty to wife or that the cruelty was not so grave that it could have lead wife to commit suicide.
In case of suicide of husband due to cruelty by wife and her relatives, there is no such presumption. So first, police will have to make preliminary investigation, then FIR, then bails, etc. Then charge sheet.
Here, the burden is on prosecution and its witnesses to prove that cruelty by wife was of such nature that it drove husband to commit suicide.
If it is proved, then punishment to wife is also same as it is on husband.
Haresh Raichura
This is equal for husband and wife. But the difference is in Evidence Act Sec.113A.
It says that if wife's suicide happens, court will, at first instance, presume that husband abetted the suicide.
Burden will be on husband side to prove that he had inflicted no cruelty to wife or that the cruelty was not so grave that it could have lead wife to commit suicide.
In case of suicide of husband due to cruelty by wife and her relatives, there is no such presumption. So first, police will have to make preliminary investigation, then FIR, then bails, etc. Then charge sheet.
Here, the burden is on prosecution and its witnesses to prove that cruelty by wife was of such nature that it drove husband to commit suicide.
If it is proved, then punishment to wife is also same as it is on husband.
Haresh Raichura
SC : Injured person entitled to more compensation than a dead person
The main reason is, an injured and handicapped person needs life long support which is more costly. Sometimes he needs to be helped by one permanent care taker or attendant. The judgement takes into consideration ground realities of life.
Supreme Court made following observation,
" At the same time we often find that a person injured in an accident leaves his family in greater distress vis- a-vis a family in a case of death. In the later case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on.
The cae of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, dispair and often destitution enures everyday.
The support that is needed by a severally handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity."
Vide Case of Nizam's Institute of Medical Science (2009) and Sanjay Batham's Case (2011)
Haresh Raichura
Supreme Court made following observation,
" At the same time we often find that a person injured in an accident leaves his family in greater distress vis- a-vis a family in a case of death. In the later case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on.
The cae of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, dispair and often destitution enures everyday.
The support that is needed by a severally handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity."
Vide Case of Nizam's Institute of Medical Science (2009) and Sanjay Batham's Case (2011)
Haresh Raichura
June 21, 2013
New Green Tribunal Courts - since 2010, grants compensation against damages to environment by anyone
New Green Tribunal Courts - since 2010, grants compensation against damages to environment by anyone
These green tribunals are set up under The National Green Tribunal Act, 2010.
1) No court fee if complaint is by a person below poverty lane.
2) 1% of Compensation claimed, minimum Rs.1000/- (Only if compensation is also claimed)
3) Court fee not required if other relief are claimed like restoration of property damaged, restitution of environment, compensation for damage done to public health etc.
For more details and rules regulations, please look up on website of Green Tribunal.
It has main Court in Delhi and it has benches (courts) in other cities also.
Haresh Raichura
These green tribunals are set up under The National Green Tribunal Act, 2010.
1) No court fee if complaint is by a person below poverty lane.
2) 1% of Compensation claimed, minimum Rs.1000/- (Only if compensation is also claimed)
3) Court fee not required if other relief are claimed like restoration of property damaged, restitution of environment, compensation for damage done to public health etc.
For more details and rules regulations, please look up on website of Green Tribunal.
It has main Court in Delhi and it has benches (courts) in other cities also.
Haresh Raichura
June 20, 2013
Gross misuse of criminal law - filing criminal case to settle civil disputes of business.
Gross misuse of criminal law - filing criminal case to settle civil disputes of business.
There two roads in law. It is expected that civil disputes will walk on the Civil Road and Criminal Disputes will walk on criminal Road.
But when business goes bad between two parties, instead of filing a Civil Case, one of them may file criminal case on other party to bring pressure on him,
So what can be done?
First, nature of dispute is required to be examined.
The disputes may fall in following categories:
1) Purely Civil Dispute.
2) Some part of dispute may be criminal, but by and large, dispute has overtone of civil nature. (Ref: 2002 SC Case regarding Dental Chair sale - Justice Rajendra Babu)
3) Dispute is partly civil and partly criminal.
4) Dispute is Civil and/ as well as Criminal, both.
5) Dispute is purely criminal.
There are very fine distinctions in above categories.
Facts have to be fully analysed.
Most probably, there will be lots of documents filed with the complaint. Some correspondence between parties will be there, some account entries may be there.
The all and each documents are crucial in deciding nature of disputes.
Then, if dispute falls in category No. 1 and 2, there are chances that Higher Court may quash the criminal case. In criminal law nothing is certain. But once case is properly analysed and presented properly to Higher Court, it is for judges to decide nature of dispute.
Haresh Raichura
There two roads in law. It is expected that civil disputes will walk on the Civil Road and Criminal Disputes will walk on criminal Road.
But when business goes bad between two parties, instead of filing a Civil Case, one of them may file criminal case on other party to bring pressure on him,
So what can be done?
First, nature of dispute is required to be examined.
The disputes may fall in following categories:
1) Purely Civil Dispute.
2) Some part of dispute may be criminal, but by and large, dispute has overtone of civil nature. (Ref: 2002 SC Case regarding Dental Chair sale - Justice Rajendra Babu)
3) Dispute is partly civil and partly criminal.
4) Dispute is Civil and/ as well as Criminal, both.
5) Dispute is purely criminal.
There are very fine distinctions in above categories.
Facts have to be fully analysed.
Most probably, there will be lots of documents filed with the complaint. Some correspondence between parties will be there, some account entries may be there.
The all and each documents are crucial in deciding nature of disputes.
Then, if dispute falls in category No. 1 and 2, there are chances that Higher Court may quash the criminal case. In criminal law nothing is certain. But once case is properly analysed and presented properly to Higher Court, it is for judges to decide nature of dispute.
Haresh Raichura
How false criminal case can be quashed by High Court in 482 powers?
How false criminal case can be quashed by High Court in 482 powers?
When a petition is filed in High Court to quash a criminal case pending in any lower court, such petition is popularly known as 482 petition, because it is filed under Sec 482 of Code of Criminal Procedure.
Sec. 482 gives power to High Court to quash any criminal proceedings in lower courts, which may be misuse of criminal justice system.
What is a false case?
1) Something never happened and yet complaint is filed stating that something has happened.
For example, A says the B slapped him.
At that time B was out of India in some other country. So this is a false case.
Before High Court, with passports and other documents it can be shown that B was not in India on that date.
If High Court is satisfied, it can quash the case. The Undisputable documentary evidence shown to High Court must be of clinching nature.
Catch in above example
The real cases are not as simple as mentioned in above example.
Suppose A is beaten by C,D.
At that time B was not there. Though he was in his home in same village at that time.
And yet, A files complaint against B, C, D. The complaint is false so far B is concerned.
If B will go to High Court to quash complaint, High Court may not be able to help him. There may not be any clinching documentary evidence to show that B was at his home at time of incident.
B may have witnesses to show that he was at home. But it is task of trial court to examine witnesses.
High Court will say to B that you better go and face trial and prove yourself innocent.
Exceptional Cases: When a very big personality is framed in a false case, the court may examine his/her case in detail. Because, public figures are exposed to so many enemies that possibility of false political cases cannot be ruled out easily.
Haresh Raichura
When a petition is filed in High Court to quash a criminal case pending in any lower court, such petition is popularly known as 482 petition, because it is filed under Sec 482 of Code of Criminal Procedure.
Sec. 482 gives power to High Court to quash any criminal proceedings in lower courts, which may be misuse of criminal justice system.
What is a false case?
1) Something never happened and yet complaint is filed stating that something has happened.
For example, A says the B slapped him.
At that time B was out of India in some other country. So this is a false case.
Before High Court, with passports and other documents it can be shown that B was not in India on that date.
If High Court is satisfied, it can quash the case. The Undisputable documentary evidence shown to High Court must be of clinching nature.
Catch in above example
The real cases are not as simple as mentioned in above example.
Suppose A is beaten by C,D.
At that time B was not there. Though he was in his home in same village at that time.
And yet, A files complaint against B, C, D. The complaint is false so far B is concerned.
If B will go to High Court to quash complaint, High Court may not be able to help him. There may not be any clinching documentary evidence to show that B was at his home at time of incident.
B may have witnesses to show that he was at home. But it is task of trial court to examine witnesses.
High Court will say to B that you better go and face trial and prove yourself innocent.
Exceptional Cases: When a very big personality is framed in a false case, the court may examine his/her case in detail. Because, public figures are exposed to so many enemies that possibility of false political cases cannot be ruled out easily.
Haresh Raichura
June 19, 2013
Understanding why Courts may be reluctant to help Husband even if wife has filed 498A Case at wrong place ->
Understanding why Courts may be reluctant to help Husband even if wife has filed 498A Case at wrong place.
My attempt is to (1) show some legal reasons because of which courts may be slow to dismiss a 498A Complaint filed by wife, even if wife has filed it in wrong police station or in wrong court. My attempt is also (2) to show that husband should show something more to persuade judge to dismiss a complaint on the ground that he has no Jurisdiction.
An Example Case:
A husband and wife lived in Delhi. A cruelty if any was committed in Delhi. But wife goes to Ahmedabad where her parents live.
Here she can take any of two steps:-
1) She can file a Complaint of 498A Case before Police at Ahmedabad against Husband and his parents.
2) She can file a complaint of 498A in Court against husband and parents.
Initial Reactions of Family of Husband and his family
They will probably tell their lawyer four things:-
1) Wife is lying.
2) If Any cruelty has happened, she was equally at fault.
3) If Any cruelty has happened it happened in Delhi only, and hence Ahmedabad Court has no jurisdiction.
4) Wife has abused 498A law.
Out of these four points, court can look into point 1,2 only after proper trial where all parties have led evidence.
But Court can look into Point No. 3 and 4 but Judges will be reluctant to dismiss complaint only on point 3 unless something on point 4 is also shown
1) When husband says that he never ill-treated his wife, judge will listen sympathetically.
2) But if husband says that whatever cruelty he did, he did at Delhi, and therefore Ahmedabad court has no power, he is raising a Technical Plea of Law. Judges have no sympathy for accused who raise technical obstacles.
Judge may think like this: "Suppose, if I dismiss this complaint, she will have to go and file complaint in Delhi.
"After filing complaint at Delhi, she will go to Supreme Court under Cr PC 406 that it is very difficult for her to travel to Delhi on each date, and she may request Supreme Court to transfer case from Delhi to Ahmedabad.
"Then Supreme Court may transfer case from Delhi to Ahmedabad. So again, case will be back to square one."
So judge will be reluctant to dismiss complaint.
To satisfy the judge, the Husband will have to further show that, wife really really had no grievance and she is spoiling her life as well as life of husband because of instigation of some money hungry relatives.
If the judge can see that wife is abusing 498A, then the judge is not powerless. He can dismiss wife's case and can let the wife go to High Court or Supreme Court wherever she may want to go. Judge will have confidence, that because of 'Abuse of Law', superior court will also upheld his order.
How these arguments can be developed and done, depends on facts and 'indisputable evidence' available in each case.
Haresh Raichura
My attempt is to (1) show some legal reasons because of which courts may be slow to dismiss a 498A Complaint filed by wife, even if wife has filed it in wrong police station or in wrong court. My attempt is also (2) to show that husband should show something more to persuade judge to dismiss a complaint on the ground that he has no Jurisdiction.
An Example Case:
A husband and wife lived in Delhi. A cruelty if any was committed in Delhi. But wife goes to Ahmedabad where her parents live.
Here she can take any of two steps:-
1) She can file a Complaint of 498A Case before Police at Ahmedabad against Husband and his parents.
2) She can file a complaint of 498A in Court against husband and parents.
Initial Reactions of Family of Husband and his family
They will probably tell their lawyer four things:-
1) Wife is lying.
2) If Any cruelty has happened, she was equally at fault.
3) If Any cruelty has happened it happened in Delhi only, and hence Ahmedabad Court has no jurisdiction.
4) Wife has abused 498A law.
Out of these four points, court can look into point 1,2 only after proper trial where all parties have led evidence.
But Court can look into Point No. 3 and 4 but Judges will be reluctant to dismiss complaint only on point 3 unless something on point 4 is also shown
1) When husband says that he never ill-treated his wife, judge will listen sympathetically.
2) But if husband says that whatever cruelty he did, he did at Delhi, and therefore Ahmedabad court has no power, he is raising a Technical Plea of Law. Judges have no sympathy for accused who raise technical obstacles.
Judge may think like this: "Suppose, if I dismiss this complaint, she will have to go and file complaint in Delhi.
"After filing complaint at Delhi, she will go to Supreme Court under Cr PC 406 that it is very difficult for her to travel to Delhi on each date, and she may request Supreme Court to transfer case from Delhi to Ahmedabad.
"Then Supreme Court may transfer case from Delhi to Ahmedabad. So again, case will be back to square one."
So judge will be reluctant to dismiss complaint.
To satisfy the judge, the Husband will have to further show that, wife really really had no grievance and she is spoiling her life as well as life of husband because of instigation of some money hungry relatives.
If the judge can see that wife is abusing 498A, then the judge is not powerless. He can dismiss wife's case and can let the wife go to High Court or Supreme Court wherever she may want to go. Judge will have confidence, that because of 'Abuse of Law', superior court will also upheld his order.
How these arguments can be developed and done, depends on facts and 'indisputable evidence' available in each case.
Haresh Raichura
June 18, 2013
A Woman asking maintenance from her ALLEGED HUSBAND need not produce strict proof of marriage-> Reasons
There have been many cases, where after marrying, husband destroys all photographs and all proofs of marriage. Then he turns out wife and children from the house.
Where will she go if she has no parents? No relatives.
Probably, some lawyer or some legal aid lawyer will be given to her.
An application under Sec.125 Cr.P.C will be moved in court. The Court will issue summons to Alleged Husband.
Judge will hear both parties. As per this law of maintenance, Judge is not required to find out whether marriage was valid or not and whether there are enough proof of marriage.
He has to tentatively see whether the woman and man were living like husband and wife?
An affirmative answer is enough for him to award maintenance against the Alleged Husband.
If husband wants declaration that there were no valid marriage, he will have to get such order from Civil Court.
Thereafter, order of Magistrate may be cancelled.
But so far as proceedings under Sec.125 is concerned, no need of strict proof of marriage.
I remember a case happened many years ago. A man gave a wedding ring to woman and took her to Mount Abu for honeymoon. They stayed for one night and one day. Then man said good bye to woman and walked away.
The Magistrate believed that man and woman lived as husband and wife in hotel at Abu.
The man was ordered to pay maintenance to wife till she remarries.
These are the powers of Magistrate under Sec.125.
There are also cases where Magistrate has refused case of wife.
But all these orders are summary and temporary till wife remarries or till husband goes to civil court and gets some order regarding alleged marriage.
Moral : These criminal laws are for protection of woman and children, legitimate or illegitimate. It is open to Man to get some civil court order declaring their status.
If Civil Court says, there is no valid marriage, then Criminal Courts will not insist on their orders.
Haresh Raichura
Where will she go if she has no parents? No relatives.
Probably, some lawyer or some legal aid lawyer will be given to her.
An application under Sec.125 Cr.P.C will be moved in court. The Court will issue summons to Alleged Husband.
Judge will hear both parties. As per this law of maintenance, Judge is not required to find out whether marriage was valid or not and whether there are enough proof of marriage.
He has to tentatively see whether the woman and man were living like husband and wife?
An affirmative answer is enough for him to award maintenance against the Alleged Husband.
If husband wants declaration that there were no valid marriage, he will have to get such order from Civil Court.
Thereafter, order of Magistrate may be cancelled.
But so far as proceedings under Sec.125 is concerned, no need of strict proof of marriage.
I remember a case happened many years ago. A man gave a wedding ring to woman and took her to Mount Abu for honeymoon. They stayed for one night and one day. Then man said good bye to woman and walked away.
The Magistrate believed that man and woman lived as husband and wife in hotel at Abu.
The man was ordered to pay maintenance to wife till she remarries.
These are the powers of Magistrate under Sec.125.
There are also cases where Magistrate has refused case of wife.
But all these orders are summary and temporary till wife remarries or till husband goes to civil court and gets some order regarding alleged marriage.
Moral : These criminal laws are for protection of woman and children, legitimate or illegitimate. It is open to Man to get some civil court order declaring their status.
If Civil Court says, there is no valid marriage, then Criminal Courts will not insist on their orders.
Haresh Raichura
June 17, 2013
How to make an RTI Application when you do not know address of RTI Officer ->
OK. It is very simple.
a) Write registered letter addressed to Officer-in-Charge under Right to Information Act at.....give address of Dept
b) Ask what u want to know.
c) Say that you are willing to pay fees prescribed under Right to Information Act...
Within few days, some one from Dept will reply you and will ask you to deposit certain fees
I think this should serve purpose. Many departments, give address of their RTI officer on website.
But when you have no information, above a) b) c) steps good enough.
If you want more accurate details and information, you can buy a book on Right to Information Act.
Haresh Raichura
Was Keshvanand Bharti Judgement influenced by a Law Minister and a Former CJI? - An insightful book
If you are a lawyer or a judge, you will be certainly interested in knowing answer of this question from reliable sources.
The name of book is :
"The Keshvanand Bharati Case - The untold story of struggle for Supremacy by the Supreme Court and Parliament" by T.R. Andhyarujina.
The author is a top senior advocate of Supreme Court. The review of this book is written by P.P. Rao, another top Senior Advocate of Supreme Court who had attended each hearing of this case.
So the sources are authentic.
The following is a quote from this review article:
"The next chapter is devoted to question : "Did Justice Chandrachud changed his judgement?"
This is answered on basis of Justice Chandrachud's own version in his Judgement in Keshvananda.
The author has observed that Justice Chandrachud admitted that he was differing from the other judges after being with some of them for a part of time.
As recorded by him, the Judge denied the rumour that he was prevailed upon to change his judgement by the Law Minister and a former CJI."
.... Then the reviewing author compares his judgement not only in Keshvanand Bharti Case but also in ADM Jabalpur Case and says that one could not jump to definite conclusion about his thinking from his interactions with the judges sitting next to him.
Those who are interested in understanding how judges mind work, may do well to read this book itself.
So far as the Review Article is concerned, it can be found in law report 2011(12)SCALE page J-1.
Haresh Raichura
16/7/2013
The name of book is :
"The Keshvanand Bharati Case - The untold story of struggle for Supremacy by the Supreme Court and Parliament" by T.R. Andhyarujina.
The author is a top senior advocate of Supreme Court. The review of this book is written by P.P. Rao, another top Senior Advocate of Supreme Court who had attended each hearing of this case.
So the sources are authentic.
The following is a quote from this review article:
"The next chapter is devoted to question : "Did Justice Chandrachud changed his judgement?"
This is answered on basis of Justice Chandrachud's own version in his Judgement in Keshvananda.
The author has observed that Justice Chandrachud admitted that he was differing from the other judges after being with some of them for a part of time.
As recorded by him, the Judge denied the rumour that he was prevailed upon to change his judgement by the Law Minister and a former CJI."
.... Then the reviewing author compares his judgement not only in Keshvanand Bharti Case but also in ADM Jabalpur Case and says that one could not jump to definite conclusion about his thinking from his interactions with the judges sitting next to him.
Those who are interested in understanding how judges mind work, may do well to read this book itself.
So far as the Review Article is concerned, it can be found in law report 2011(12)SCALE page J-1.
Haresh Raichura
16/7/2013
June 15, 2013
Landlord-Tenants : Benefit of giving copy of rent agreement in police station.
There are many laws under which if something illegal is stored or done in premises, owner of premises can be held liable.
The best protection for landlord who is giving premises on lease to an unknown tenant, is to file a copy of landlord tenant agreement in police station after getting it registered.
Police may just receive a copy of agreement for its information only. It may need to take no action at that time if found unnecessary.
But Later, if tenant disappears, if something illegal is found stored in rented premises, it may help landlord to say, that he had no idea of activity of tenant but he did filed a copy of lease agreement in police station when lease was given.
I know a landlord who had rented premises to a young couple. After some days, police found that the couple was engaged in auto thefts. When police came, the couple had fled.
Fortunately, the police did not trouble this landlord. But he could have troubled him about things lying in rented premises and other things.
Haresh Raichura
The best protection for landlord who is giving premises on lease to an unknown tenant, is to file a copy of landlord tenant agreement in police station after getting it registered.
Police may just receive a copy of agreement for its information only. It may need to take no action at that time if found unnecessary.
But Later, if tenant disappears, if something illegal is found stored in rented premises, it may help landlord to say, that he had no idea of activity of tenant but he did filed a copy of lease agreement in police station when lease was given.
I know a landlord who had rented premises to a young couple. After some days, police found that the couple was engaged in auto thefts. When police came, the couple had fled.
Fortunately, the police did not trouble this landlord. But he could have troubled him about things lying in rented premises and other things.
Haresh Raichura
How to draft a Will so as to avoid future disputes ->
However well a WILL may have been drafted, after death of will-maker, disputes are bound to arise.
The people will fight because of strong desire for succession. And the Courts will be forced decide the meanings of words in Will.
DISPUTES IN GENERALLY
There can be two types of dispute regarding Will.
1) Regarding Execution of will.
One party may say this is true will. Other party may say that the will is forged. One party may also say that maker of will had no right to make such will as he had no full rights on his property. Here, basically, validity of will is under challenge.
To avoid such disputes, it is good idea to get Will prepared under legal guidance and to get it registered in Registrar's Office.
Very few know, but will can be registered in Sealed Cover also so that no one can know contents of will.
One more GOOD idea is,:->
the will should appoint some trusted lawyer or his firm as executor of will.
So that after death of will-maker, it will be job of the nominated lawyer or his firm to distribute property as per will.
2) Another type of dispute arise where property are not properly described, names are not properly mentioned, some property is not mentioned in will etc. etc.
All these disputes can be minimised when will is drafted under expert legal guidance.
However, there is no guarantee that no dispute will arise.
Haresh Raichura
The people will fight because of strong desire for succession. And the Courts will be forced decide the meanings of words in Will.
DISPUTES IN GENERALLY
There can be two types of dispute regarding Will.
1) Regarding Execution of will.
One party may say this is true will. Other party may say that the will is forged. One party may also say that maker of will had no right to make such will as he had no full rights on his property. Here, basically, validity of will is under challenge.
To avoid such disputes, it is good idea to get Will prepared under legal guidance and to get it registered in Registrar's Office.
Very few know, but will can be registered in Sealed Cover also so that no one can know contents of will.
One more GOOD idea is,:->
the will should appoint some trusted lawyer or his firm as executor of will.
So that after death of will-maker, it will be job of the nominated lawyer or his firm to distribute property as per will.
2) Another type of dispute arise where property are not properly described, names are not properly mentioned, some property is not mentioned in will etc. etc.
All these disputes can be minimised when will is drafted under expert legal guidance.
However, there is no guarantee that no dispute will arise.
Haresh Raichura
June 14, 2013
To stop pesky calls of sellers, record calls and seek redress in consumer court- Suggestion
Privacy is lost. Aggressive marketing is on. You are busy in your work, your mobile phone keeps ringing from pesky phone calls of Insurance Companies, Mutual Funds, Banking Services etc. You are disturbed. You become angry. Your stress level increases.
Your SMS inbox becomes daily full of pesky messages. You wonder what you can do.
WHAT CAN YOU DO?
Immediate answer is, there is nothing which an individual can do. There are authorities who need to do their job.
SECOND ANSWER IS YES
If you have time and energy, you can certainly do something. Consumer Courts have already awarded exemplary damages against banks and against telephone service providers. The order has been upheld up to Supreme Court. (Elsewhere on this blog, I have given details)
WHAT YOU MAY NEED
If you want to invoke power of courts, you need to first collect evidence.
1) Start tape recording conversation. In fact in the beginning of pesky call, tell caller that you are recording conversation for legal purposes.
2) Take out a record showing time, date, duration and number of pesky calls and smses.
3) Seek advise of a consumer court lawyer.
You may find a way.
Haresh Raichura
14/6/13
Your SMS inbox becomes daily full of pesky messages. You wonder what you can do.
WHAT CAN YOU DO?
Immediate answer is, there is nothing which an individual can do. There are authorities who need to do their job.
SECOND ANSWER IS YES
If you have time and energy, you can certainly do something. Consumer Courts have already awarded exemplary damages against banks and against telephone service providers. The order has been upheld up to Supreme Court. (Elsewhere on this blog, I have given details)
WHAT YOU MAY NEED
If you want to invoke power of courts, you need to first collect evidence.
1) Start tape recording conversation. In fact in the beginning of pesky call, tell caller that you are recording conversation for legal purposes.
2) Take out a record showing time, date, duration and number of pesky calls and smses.
3) Seek advise of a consumer court lawyer.
You may find a way.
Haresh Raichura
14/6/13
Suicide of Girl within 7 years of Live-in-Relations can attract legal troubles ->
Those who avoid marrying in order to escape stiff marriage laws may not find it easy to do so.
There is law that if Suicide of wife takes place within 7 years of marriage, the law will presume that husband or relatives may have abetted suicide and burden will be on them to prove innocence.
The same rule may get applied to 'marriage like relationships' also.
If the girl commits suicide within 7 years of Live in Relationship, same legal trouble may arise.
The word 'Marriage' in these Laws have nothing to about validity of marriage. It also does not define marriage.
On the other hand there are cases where wife-protection related criminal laws are applied to marriage like relationships.
The Live-in-Relationship is only a one such 'marriage type relationship'.
The laws continue to expand in accordance with expanding genius of mankind.
Haresh Raichura
There is law that if Suicide of wife takes place within 7 years of marriage, the law will presume that husband or relatives may have abetted suicide and burden will be on them to prove innocence.
The same rule may get applied to 'marriage like relationships' also.
If the girl commits suicide within 7 years of Live in Relationship, same legal trouble may arise.
The word 'Marriage' in these Laws have nothing to about validity of marriage. It also does not define marriage.
On the other hand there are cases where wife-protection related criminal laws are applied to marriage like relationships.
The Live-in-Relationship is only a one such 'marriage type relationship'.
The laws continue to expand in accordance with expanding genius of mankind.
Haresh Raichura
June 13, 2013
What is BASIC STRUCTURE theory? Can Parliament change entire Constitution- >
The Parliament has power to amend the Constitution. There is procedure.
The question is to what extent Parliament can change Constitution?
Does Parliament has power to remove fundamental rights? Can Constitution be changed in such a way that Judges of Supreme Court and High Court can be transferred by order of Law Minister?
After much debate, it was decided that "There is some 'basic structure' in Constitution which cannot be changed. Other parts of Constitution can be changed by Parliament."
Now what is this "Basic Structure"? There is no clear answer. It is left open to Judges to decide on case to case basis as and when such question arises.
But some illustrations of Basic Structure are given.
1) Right to live is basic structure. Parliament cannot amend Constitution so as to take away this fundamental right.
2) The orders of even the Highest Authority, will be subject to scrutiny by Court. This is basic structure. This position cannot be altered by amending Constitution that no court will have power to examine orders passed by certain authority.
3) Independence of Judiciary is basic feature. No amendment in Constitution can be made which compromises independence of Judiciary..
4) And so on... Some more examples are given and it is left to wisdom of Judges to declare more features as Basic Feature as when debate or case arises before them...
5) Neither Constitution of India, Nor judgements of Supreme Courts are carved on stones. They can be changed as per demands of time.
6) Constitution of India is compared with a living organism. It changes with needs of time.
Haresh Raichura
13/6/13
The question is to what extent Parliament can change Constitution?
Does Parliament has power to remove fundamental rights? Can Constitution be changed in such a way that Judges of Supreme Court and High Court can be transferred by order of Law Minister?
After much debate, it was decided that "There is some 'basic structure' in Constitution which cannot be changed. Other parts of Constitution can be changed by Parliament."
Now what is this "Basic Structure"? There is no clear answer. It is left open to Judges to decide on case to case basis as and when such question arises.
But some illustrations of Basic Structure are given.
1) Right to live is basic structure. Parliament cannot amend Constitution so as to take away this fundamental right.
2) The orders of even the Highest Authority, will be subject to scrutiny by Court. This is basic structure. This position cannot be altered by amending Constitution that no court will have power to examine orders passed by certain authority.
3) Independence of Judiciary is basic feature. No amendment in Constitution can be made which compromises independence of Judiciary..
4) And so on... Some more examples are given and it is left to wisdom of Judges to declare more features as Basic Feature as when debate or case arises before them...
5) Neither Constitution of India, Nor judgements of Supreme Courts are carved on stones. They can be changed as per demands of time.
6) Constitution of India is compared with a living organism. It changes with needs of time.
Haresh Raichura
13/6/13
Dishonour of cheque by Company and Directors
When cheque issued by a company is dishonoured, it is essentially an offence committed by company.
Directors and others in charge of company are also liable.
But suppose if Company does not defend itself at all, then it does not prevent other persons to lead evidence that "The Company has not committed offence, and therefore neither company, nor they are liable to be punished"
So, if Company becomes, "Mauni Baba", others can lead evidence to prove that Mauni Baba is not guilty and therefore, they are also not guilty.
Anil Hada Vs Indian Acrylic Limited 1999(7)SCALE 209
Haresh Raichura
13/6/13 12:57
Directors and others in charge of company are also liable.
But suppose if Company does not defend itself at all, then it does not prevent other persons to lead evidence that "The Company has not committed offence, and therefore neither company, nor they are liable to be punished"
So, if Company becomes, "Mauni Baba", others can lead evidence to prove that Mauni Baba is not guilty and therefore, they are also not guilty.
Anil Hada Vs Indian Acrylic Limited 1999(7)SCALE 209
Haresh Raichura
13/6/13 12:57
How many Laws can be applied against a blog, a Facebook update or a Tweet Update ?
The simple law is : Do nothing to hurt others.
But if you do hurt someone by blog, Facebook update or tweet, there is bound to be some law to trouble you.
First, there are laws to prohibit transmission of offending words or pictures through electronic means.
Second, If someone is defamed, there are civil and criminal laws to punish and to award damages.
Third, If class of people is hurt, anyone from that class can put law into motion.
Fourth, if it hurts feelings of any religions, there are laws.
Fifth, if it excites people to fight against lawful authorities, there are laws.
Sixth, if it tries to influence or intimidate any court matter, there are contempt laws.
Seventh, there is Official Secret Act to deal with those who publish official secret matters. Like maps of sensitive places.
Eighth, laws against disclosing names or identity of rape victims or minors,
Ninth, the list can be long. But bottom-line is do not hurt others. Undo tweet, retweet, blog etc, if you feel that it could have hurt someone.
The laws on these areas not very clear. We are passing through new digital age. It may take some more time before laws can become more clear.
Haresh Raichura
13/6/13 07:26
But if you do hurt someone by blog, Facebook update or tweet, there is bound to be some law to trouble you.
First, there are laws to prohibit transmission of offending words or pictures through electronic means.
Second, If someone is defamed, there are civil and criminal laws to punish and to award damages.
Third, If class of people is hurt, anyone from that class can put law into motion.
Fourth, if it hurts feelings of any religions, there are laws.
Fifth, if it excites people to fight against lawful authorities, there are laws.
Sixth, if it tries to influence or intimidate any court matter, there are contempt laws.
Seventh, there is Official Secret Act to deal with those who publish official secret matters. Like maps of sensitive places.
Eighth, laws against disclosing names or identity of rape victims or minors,
Ninth, the list can be long. But bottom-line is do not hurt others. Undo tweet, retweet, blog etc, if you feel that it could have hurt someone.
The laws on these areas not very clear. We are passing through new digital age. It may take some more time before laws can become more clear.
Haresh Raichura
13/6/13 07:26
If any law is made applicable to Registered Office of Company, its branches in other state can also be covered by this law
When company has a registered office in one state and branches are in other states, if notification by State Govt where registered office is situated, is issued, can it automatically apply to branches in other states also?
Supreme Court said yes in case of Transport Corporation of India vs Employees State Insurance Corpn
Reported in 1997 (7) SCALE 63
Haresh Raichura
13/6/13
Supreme Court said yes in case of Transport Corporation of India vs Employees State Insurance Corpn
Reported in 1997 (7) SCALE 63
Haresh Raichura
13/6/13
June 12, 2013
Strange SC Case: If law makers forget to put "," a comma, it takes many years to Courts to read "," in law :-
It is job of Law makers to make laws. Courts cannot even put a "," comma, if there is no such comma in law.
But courts have power to ease out creases of provisions of law so that it makes sense.
A strange case came up before Supreme Court.
In certain octroi laws, there was no comma between words Gorg and Minerals.
The absence of comma, made difference of crores or Lakhs of rupees about the payable rate of octroi.
So company first went to High Court.
It said that it was liable to pay less octroi. There was nothing like "Gorg Mineral" as mentioned in law..
The words 'Gorg' and 'Minerals' should have been separated by a comma.
Due to printing mistake, the law makers have forgotten to print comma.
Matters was heard for days and years in High Court.
Then it was heard in Supreme Court. The Supreme Court allowed appeal and held that there was no such thing as "Gorg Minerals". The law makers appeared to have forgotten comma.
Since Appeal was allowed, Supreme Court directed Municipality to refund excess amount of octroi with 15% interest to company.
Gujarat Composites Ltd Vs Ranip Nagar Palika 1999 (7) SCALE 19
Haresh Raichura
12/6/13 21:26
Abetment of Suicide - A dangerously loose law. So many are trapped in vexatious cases ->
To be very frank, no one in India is clear about what is abetment to suicide.
There are judgements and judgements, but no judge, no lawyer, no one can explain you the real law in two minutes.
And yet, thousands are languishing in jail because law relating to abetment of suicide is not very clearly defined or applied.
ABETMENT:-
If you help someone in committing a crime, you have abetted crime. Suicide is a crime. Anyone who helps anyone in committing a suicide has abetted it.
It looks simple. But it has been made complicated.
FIRST WRONG TURN
There were suicides of newly married brides. No one knew how to solve this social problem. They thought that if law is passed, suicides will decrease.
So they passed law that if Suicide takes place, husband and his relatives will be presumed to have abetted suicide.
Burden will be on them to prove that they have not abetted suicide....
How can they prove what is negative... No one knows. Laws are silent.
I do not know whether suicides have decreased. But I see that lots of husband and relatives go to jail because they fail in court to prove that they DID NOT abet suicide.
The Legal Eagles
The legal eagles, who may read this, may say that I have over generalised issue. And the things are not as bad as I say. The Supreme Court has said .... Etc etc.
They may be right. And I may be wrong.
My view is simply this: This is a very loosely drafted law. Clarity is missing. Ingredients of crime which are capable of being proved or disproved are not clear.
What rebuttal evidence need to be led by husband and his relatives is not clear.
But let us say, this is my wrong view about law relating to abetment of Suicide.
Haresh Raichura
12/6/13 11:40
There are judgements and judgements, but no judge, no lawyer, no one can explain you the real law in two minutes.
And yet, thousands are languishing in jail because law relating to abetment of suicide is not very clearly defined or applied.
ABETMENT:-
If you help someone in committing a crime, you have abetted crime. Suicide is a crime. Anyone who helps anyone in committing a suicide has abetted it.
It looks simple. But it has been made complicated.
FIRST WRONG TURN
There were suicides of newly married brides. No one knew how to solve this social problem. They thought that if law is passed, suicides will decrease.
So they passed law that if Suicide takes place, husband and his relatives will be presumed to have abetted suicide.
Burden will be on them to prove that they have not abetted suicide....
How can they prove what is negative... No one knows. Laws are silent.
I do not know whether suicides have decreased. But I see that lots of husband and relatives go to jail because they fail in court to prove that they DID NOT abet suicide.
The Legal Eagles
The legal eagles, who may read this, may say that I have over generalised issue. And the things are not as bad as I say. The Supreme Court has said .... Etc etc.
They may be right. And I may be wrong.
My view is simply this: This is a very loosely drafted law. Clarity is missing. Ingredients of crime which are capable of being proved or disproved are not clear.
What rebuttal evidence need to be led by husband and his relatives is not clear.
But let us say, this is my wrong view about law relating to abetment of Suicide.
Haresh Raichura
12/6/13 11:40
June 11, 2013
Form window of his house, a Judge sees a murder. Can he convict murderer on basis of what he saw? No. ->
A Judge was standing at his window and looking at open ground where children were playing.
He saw a boy chasing a girl. In a moment, boy caught girl and stabbed her to death.
Judge called police. The boy was arrested. The girl was in love with some boy of other caste. His brother killed her to save family honour.
Now, the question is can judge convict this boy on basis of what he saw from the window.
The answer is No. The process will go like this:-
1) First Police will record statement of Judge. It will be treated complaint. Judge will be treated as an eye witness.
2) Police will arrest the boy and identification parade will be held. The boy will be mixed up in line of 10 other similar looking boys.
Then Judge will be asked to point out the boy whom he actually saw killing the girl.
This will be 'Evidence of Identification Parade'.
3) The trial of boy will go before some OTHER Judge.
There, this judge who saw incident will be called as Eye-Witness. He will be cross examined by lawyers.
Lawyer may ask like this," The day was cloudy. It was evening. His eyes have specs numbers for distance viewing. At that time he was not wearing any spec. And therefore he could not have clearly seen the face of boy... Etc."
After taking all evidence, if the OTHER JUDGE CONDUCTING TRIAL, comes to conclusion that the witness-judge has made no mistake in identifying boy, he will convict the boy.
So far as the Judge who actually saw the murder, has no power to convict murderer.
Haresh Raichura
11/6/2013
He saw a boy chasing a girl. In a moment, boy caught girl and stabbed her to death.
Judge called police. The boy was arrested. The girl was in love with some boy of other caste. His brother killed her to save family honour.
Now, the question is can judge convict this boy on basis of what he saw from the window.
The answer is No. The process will go like this:-
1) First Police will record statement of Judge. It will be treated complaint. Judge will be treated as an eye witness.
2) Police will arrest the boy and identification parade will be held. The boy will be mixed up in line of 10 other similar looking boys.
Then Judge will be asked to point out the boy whom he actually saw killing the girl.
This will be 'Evidence of Identification Parade'.
3) The trial of boy will go before some OTHER Judge.
There, this judge who saw incident will be called as Eye-Witness. He will be cross examined by lawyers.
Lawyer may ask like this," The day was cloudy. It was evening. His eyes have specs numbers for distance viewing. At that time he was not wearing any spec. And therefore he could not have clearly seen the face of boy... Etc."
After taking all evidence, if the OTHER JUDGE CONDUCTING TRIAL, comes to conclusion that the witness-judge has made no mistake in identifying boy, he will convict the boy.
So far as the Judge who actually saw the murder, has no power to convict murderer.
Haresh Raichura
11/6/2013
How FIR (First Information of Crime) should be given to police ->
The law does not prescribe in which FORM First Information of Report of Crime (FIR) should be given to police.
But the police is required to write down this information in a specific Form called FIR.
When you give information of any crime to police, the complaint will look good if it contains following:
1) Who are you who is giving this information? You should give your full name address mobile number etc in complaint.
2) What has happened? If a crime has happened, details should be described.
3) When this happened? Time.
4) Where this happened? How much kilometre away from Police Station, approximately?
This will help police to decide whether he has territorial jurisdiction to investigate crime.
5) Who did what to whom? How?
Here say who did what to whom. If you know names of accused, give name. If you do not know names, say unknown persons. Try to describe them if possible.
6) Names of Accused and their address: Give details if you know.
NOW MOST IMPORTANT: Write down time of giving this information, sign it and hand it over to police
If time of giving complaint is written, a sort of timer will start on police. If police delays registering complaint or delays taking action, later, he can be pulled up by court. Superior officer as well as court can ask explanation for delay in registering FIR. This is a check.
Ask for a copy of registered FIR. Once a FIR is registered, its copy can be obtained by paying prescribed fee.
Compare, whether everything you stated has been written down in FIR. If police has missed out some important point, seek advice of lawyer for further steps.
Haresh Raichura
11/6/13
But the police is required to write down this information in a specific Form called FIR.
When you give information of any crime to police, the complaint will look good if it contains following:
1) Who are you who is giving this information? You should give your full name address mobile number etc in complaint.
2) What has happened? If a crime has happened, details should be described.
3) When this happened? Time.
4) Where this happened? How much kilometre away from Police Station, approximately?
This will help police to decide whether he has territorial jurisdiction to investigate crime.
5) Who did what to whom? How?
Here say who did what to whom. If you know names of accused, give name. If you do not know names, say unknown persons. Try to describe them if possible.
6) Names of Accused and their address: Give details if you know.
NOW MOST IMPORTANT: Write down time of giving this information, sign it and hand it over to police
If time of giving complaint is written, a sort of timer will start on police. If police delays registering complaint or delays taking action, later, he can be pulled up by court. Superior officer as well as court can ask explanation for delay in registering FIR. This is a check.
Ask for a copy of registered FIR. Once a FIR is registered, its copy can be obtained by paying prescribed fee.
Compare, whether everything you stated has been written down in FIR. If police has missed out some important point, seek advice of lawyer for further steps.
Haresh Raichura
11/6/13
June 10, 2013
Visuals of E Courts can be made available to public through Internet - A suggestion
Now we have many E Courts in India. In E Courts, proceedings are captured on web cam and are displayed on LCD Screen. Video Conference is available. Criminals need not be brought in court because of facility of video conferencing. The witnesses can be examined on video chats.
But the most important thing is, people can see on video how witnesses are examined, how lawyers present their cases to judges, how judges pass orders. How government pleaders argue in courts, how police present their evidence etc.
This can be a great learning and education for people if Live Streams or even a month old video streams are uploaded on Internet and made available to public.
Law says that all court hearing should be in open in public unless secret hearing is ordered by court.
I see no legal bar in making judiciary more transparent and think...... how nice it would be if people can watch hearings of their cases while sitting in their home!
It will be a revolution. E Courts have come. Video recording of court proceedings have started.
Days are not far when we can see court case hearings on Internet.
Haresh Raichura
10/6/13 16:52
H
But the most important thing is, people can see on video how witnesses are examined, how lawyers present their cases to judges, how judges pass orders. How government pleaders argue in courts, how police present their evidence etc.
This can be a great learning and education for people if Live Streams or even a month old video streams are uploaded on Internet and made available to public.
Law says that all court hearing should be in open in public unless secret hearing is ordered by court.
I see no legal bar in making judiciary more transparent and think...... how nice it would be if people can watch hearings of their cases while sitting in their home!
It will be a revolution. E Courts have come. Video recording of court proceedings have started.
Days are not far when we can see court case hearings on Internet.
Haresh Raichura
10/6/13 16:52
H
June 9, 2013
Can a strained Husband-Wife relationship be save by "Registered Agreement of In House Behaviours of Spouses"
This is a real case. Wife and Husband quarrels had reached at peak. Wife could suffer no more. She left matrimonial home.
At parents home, she was about to file multiple cases on husband and his family.
At this point, family of wife sought my advice.
I said file no cases for one month. Let both sides cool. I asked wife to send an SMS to husband inquiring about his health as he was ill. She did send SMS.
Then husband and wife started talking. They both had tons of complaint against each other.
Finally, husband prepared a long draft of agreement. Prescribing various Do's and Don'ts for wife and her parents. It included term that she will not talk with her parents more than once a week. It also included condition that husband will not be responsible if wife commits suicide....
The wife added her own terms about what Husband and his relatives will do and will not do. Once in a year, she will be allowed to go to her parents and husband will pay one way fare. Husband will not beat wife. Husband will not force wife to do home work of their child. Husband will not beat wife if child scores poor in exam etc. etc.,
The question was should Husband and wife sign such an agreement?
If wife was ready to sign, then the husband and wife were willing to give one more chance to their marriage.
I told them that such agreement has no value in eye of law. If suicide or beating happens, the law will take its own course and judge will ignore such agreement.
But if it is satisfies to both parties and their parents, then there is no harm in signing such agreement.
They signed agreement.
Parents counter signed
agreement as witnesses.
The agreement was registered in Registrar office.
Well, they started living together.
Four years have gone by. No complaints. They are living happily.
Haresh Raichura
09/6/13 18:21
At parents home, she was about to file multiple cases on husband and his family.
At this point, family of wife sought my advice.
I said file no cases for one month. Let both sides cool. I asked wife to send an SMS to husband inquiring about his health as he was ill. She did send SMS.
Then husband and wife started talking. They both had tons of complaint against each other.
Finally, husband prepared a long draft of agreement. Prescribing various Do's and Don'ts for wife and her parents. It included term that she will not talk with her parents more than once a week. It also included condition that husband will not be responsible if wife commits suicide....
The wife added her own terms about what Husband and his relatives will do and will not do. Once in a year, she will be allowed to go to her parents and husband will pay one way fare. Husband will not beat wife. Husband will not force wife to do home work of their child. Husband will not beat wife if child scores poor in exam etc. etc.,
The question was should Husband and wife sign such an agreement?
If wife was ready to sign, then the husband and wife were willing to give one more chance to their marriage.
I told them that such agreement has no value in eye of law. If suicide or beating happens, the law will take its own course and judge will ignore such agreement.
But if it is satisfies to both parties and their parents, then there is no harm in signing such agreement.
They signed agreement.
Parents counter signed
agreement as witnesses.
The agreement was registered in Registrar office.
Well, they started living together.
Four years have gone by. No complaints. They are living happily.
Haresh Raichura
09/6/13 18:21
June 4, 2013
Something is wrong with definition of "Cruelty to Wife in Indian Law". Questionable Laws
If you check on Google, about definition of cruelty in domestic cases, the definition is usually "some kind of physical act which involves some kind of physically harmful act".
It does involve something like "Mental Cruelty".
Some acts may be cruel-looking to some person or judge. It may not be so cruel-looking to another person or another Judge. The word cruel here is subjective.
The subjective definitions-element cannot be allowed in criminal cases.
It will lead to arbitrary and unsure justice. Anarchy.
It each case, litigants will be at mercy of vagaries of law because no one will be sure about exact definition of cruelty.
In one case, I tried to argue and tried to persuade judges to look into how cruelty is understood by jurists of other countries.
But the Judges said, they have to look into definitions given under Indian laws only. They are bound by these laws.
The laws in India are certainly not well drafted.
They are prepared by few under some notions or pressures and passed without a public debate.
It requires legislatures years and years to correct a badly drafted law. By then millions suffer at hands of badly drafted laws.
Those who are concerned and awake in this area, must make concentrated efforts to bring about changes in law and to make laws fair and easy to administer.
Haresh Raichura
4/6/13 15:35
It does involve something like "Mental Cruelty".
Some acts may be cruel-looking to some person or judge. It may not be so cruel-looking to another person or another Judge. The word cruel here is subjective.
The subjective definitions-element cannot be allowed in criminal cases.
It will lead to arbitrary and unsure justice. Anarchy.
It each case, litigants will be at mercy of vagaries of law because no one will be sure about exact definition of cruelty.
In one case, I tried to argue and tried to persuade judges to look into how cruelty is understood by jurists of other countries.
But the Judges said, they have to look into definitions given under Indian laws only. They are bound by these laws.
The laws in India are certainly not well drafted.
They are prepared by few under some notions or pressures and passed without a public debate.
It requires legislatures years and years to correct a badly drafted law. By then millions suffer at hands of badly drafted laws.
Those who are concerned and awake in this area, must make concentrated efforts to bring about changes in law and to make laws fair and easy to administer.
Haresh Raichura
4/6/13 15:35
Can Police take DNA sample of an accused without his permission? Yes. Says a Foreign Court
This is a problem in all countries. There is basic right that no one can be forced to give evidence against himself.
Then can police force accused to give "Voice Samples", "Blood Samples" or "DNA Samples"?
Police has power to take blood samples. There are driving related crimes, drug and liquor related crimes. Blood sample convicts accused.
Regarding Voice Samples, recently Supreme Court has said No. Regarding Narco Tests, Supreme Court has said No. Accused cannot be forced give such sample or test against his will.
Regarding DNA samples, recently a US Supreme Court has held that police can force open mouth of an accused and can take DNA sample with cotton swab.
Let us wait good laws to approach India.
Haresh Raichura
4/6/13 13:37
Then can police force accused to give "Voice Samples", "Blood Samples" or "DNA Samples"?
Police has power to take blood samples. There are driving related crimes, drug and liquor related crimes. Blood sample convicts accused.
Regarding Voice Samples, recently Supreme Court has said No. Regarding Narco Tests, Supreme Court has said No. Accused cannot be forced give such sample or test against his will.
Regarding DNA samples, recently a US Supreme Court has held that police can force open mouth of an accused and can take DNA sample with cotton swab.
Let us wait good laws to approach India.
Haresh Raichura
4/6/13 13:37
June 2, 2013
Doctrine of Necessity: When allegations are against PM, Chairman or any Apex Person, he need not Resign
The issue has been debated at length in Supreme Court.
When there are allegation against a minister or powerful person, he can be forced to resign pending investigation.
But what to do when allegations are against the Apex person of a body i.e. Prime Minister, Chairman or some other top person of Institute.
To apply general law, can bring down the whole institute and stability will be destroyed.
Then whoever is on Top, will get a bunch of allegations in few months and will be forced to resign. No stability will prevail.
So Doctrine of Necessity is evolved. That in such case, top person need not be forced to resign, but he can be insulated in such a way that he gets no power to interfere in investigation or to destroy evidence.
Haresh Raichura
2/6/13 16:58
When there are allegation against a minister or powerful person, he can be forced to resign pending investigation.
But what to do when allegations are against the Apex person of a body i.e. Prime Minister, Chairman or some other top person of Institute.
To apply general law, can bring down the whole institute and stability will be destroyed.
Then whoever is on Top, will get a bunch of allegations in few months and will be forced to resign. No stability will prevail.
So Doctrine of Necessity is evolved. That in such case, top person need not be forced to resign, but he can be insulated in such a way that he gets no power to interfere in investigation or to destroy evidence.
Haresh Raichura
2/6/13 16:58
Are All Private Bodies (Like Cricket Bodies, Pvt Hospitals) subject to control of High Courts? Yes.
There is a wrong general impression that writ petition in High Court cannot be filed against private bodies like cricket associations, or private hospitals or private companies.
This impression is not correct. Writ petition does not lie against Private Bodies 1) To settle private disputes 2) To settle contractual dues.
But when such a private body is engaged in activity which affects large number of public and which is acting in arbitrary manner, writ petition can lie against such bodies to direct them to discharge their duties to public in proper and transparent manner.
The first case I read about this was against B M Institute of Mental Health where Justice M B Shah has delivered judgement.
Apart from these there are many judgements of Supreme Court on this issue.
Haresh Raichura
2/6/13 15:31
This impression is not correct. Writ petition does not lie against Private Bodies 1) To settle private disputes 2) To settle contractual dues.
But when such a private body is engaged in activity which affects large number of public and which is acting in arbitrary manner, writ petition can lie against such bodies to direct them to discharge their duties to public in proper and transparent manner.
The first case I read about this was against B M Institute of Mental Health where Justice M B Shah has delivered judgement.
Apart from these there are many judgements of Supreme Court on this issue.
Haresh Raichura
2/6/13 15:31
June 1, 2013
Tragedy of a poor husband - Cruelty of Maintenance laws
In a small village, a poor bike mechanic, is trapped in maintenance laws. His wife filed cases against him and his family.
His father died in jail.
In meantime, under maintenance laws, Court directed husband to pay Rs.5000/- per month.
He may be hardly earning Rs.3000/- by bike repairing in village.
Since he could not pay, he was also sent to jail.
High Court dismissed his appeal. If he does't pay, he will have to in jail and will not be able to pay for education fees of younger brother also.
What is wrong in Law
The Sec.125 of Cr.PC, have become cruel in some cases. The Court should sent to jail only those husbands to jail, who neglect to pay to wife, though having means to pay.
Where husband himself is struggling through poverty and when there are genuine reason for inability to pay, orders of jails should not be passed.
Haresh Raichura
1/6/13 12:07
His father died in jail.
In meantime, under maintenance laws, Court directed husband to pay Rs.5000/- per month.
He may be hardly earning Rs.3000/- by bike repairing in village.
Since he could not pay, he was also sent to jail.
High Court dismissed his appeal. If he does't pay, he will have to in jail and will not be able to pay for education fees of younger brother also.
What is wrong in Law
The Sec.125 of Cr.PC, have become cruel in some cases. The Court should sent to jail only those husbands to jail, who neglect to pay to wife, though having means to pay.
Where husband himself is struggling through poverty and when there are genuine reason for inability to pay, orders of jails should not be passed.
Haresh Raichura
1/6/13 12:07
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