October 31, 2014

Can Trial Courts in India give Judgements in 10 Lines as they do in other country? Need for brevity?

Last week a client showed me a Divorce Judgement granted by an Australian trial court.

Judgement appeared to be in a format running into one and a half page and then signature of Judge.

Judgement mentioned facts ACTUALLY ESSENTIAL for judgement only. There appeared a prescribed form in which judgement was given.

If Indian Courts can introduce such short formats much time of courts can be saved.

The initiative has to be taken by Supreme Court or High Court for prescribing a format of judgement to trial courts in India.

Haresh Raichura
31/10/14



Copyright : Haresh Raichura 2014

October 30, 2014

Learning Logic with a Smile -> Judge: Common sense is very uncommon. Lawyer : Yes, Sir. Judge: What did you...

This happened in the court of Justice Dipak Misra, Justice R. F. Nariman and Justice U.U.Lalit.

Justice Dipak Misra said to arguing lawyer, smilingly ,"Common sense is very uncommon".

Lawyer replied smilingly, "Yes, Sir."

Justice Dipak Misra quickly asked back smilingly, "What did you understand by this ?"

Everyone laughed and the lawyer replied, "Nothing."

Justice Nariman quickly came to rescue of lawyer by saying, "I too have understood nothing."

Again everyone laughed.

The arguments then once again resumed.

LOGIC

To say that "Common Sense is uncommon"  looks like saying "X is Not X"

But here the word "Common" has two different meanings in same sentence.

Another point is since "Common" and "Sense", two words are used, the logical format can be :

Xy is not X

Think over this.

I too have yet not understood.

Haresh Raichura
30/10/14

October 27, 2014

Myth buster : Know that Filing of FIR is not final step. Police has still powers to close a false case.

In family cases of 498A, 376, or such other cases, the parties against whom a false complaint is filed, often feels and behaves as if sky has fallen on him. This belief and fear is a myth.

FIR is just first step giving power to police to investigate. If police, after investigation, if finds that :-

1) No offence is made out, it can close FIR and report to Magistrate by way of "closure report."

2) If Police finds that Complainant had filed false complaint in order to harass accused, it can give report to Magistrate that the Complaint is false and Complainant should be prosecuted and punished for filing such false complaint. Such reports are often called "C Summary."

I think people should be more aware about this.

And if someone feels that a False FIR is filed against him, he should give such evidences to police officer and should request him to give "C Summary" to court.

Haresh Raichura
27/10/14


October 26, 2014

"Good Evening, Sir", a small worm came out of Earth and said to bird. Next minute it was eaten up by the bird. Moral is....

"Good Evening, Sir", a small worm came out of Earth and said to a bird. Next minute it was eaten up by the bird. Moral of story is....

Moral of story is if you are among small people, be weary of the Big and the Famous.

They are usually very rich, very influential and very smiling.

But many tales of sins are hidden in their past.

These tales sometimes come out after hundred years of their deaths.

I have read Nikola Telsa's autobiography. It says how the great inventor called Edison cheated him.

I have read about Benjamin Franklin. He had favoured government's big contracts to one rich man. His name is good, but many scams of corruption are there in background.

India today has a very famous and great female singer. Thousands of songs are sung by her. So melodious voice!

But if you look into her past, you may discover how she conspired with music directors to see that careers of many other equally talented singers were nipped in bud. She literally forced them to boycott some best new female singers.

The point of this blog post is to caution you, that if you belong to class of small people, do keep a safe distance from the Big and the famous. Always remember this story of this small worm who said "Good Evening" to a bird.

Haresh Raichura
26/10/2014

October 25, 2014

How an NRI, apprehending arrest for 498a, can avoid his "surprised arrest" when visiting in India - 5 steps

1) If you are an NRI, against whom some Indian woman has filed complaint under Sec.498A, or if anyone has filed case of 138 Negotiable Instrument Act, or such other cases, it is possible that police may have given a look-out notice to airports and you may get arrested when you land at any airport in India.

2) It is also possible that police may not have issued any look out notice, but you may get suddenly arrested by police when you may be touring in India or when you may be about to leave India.

SAFEGUARDS

3) Supreme Court has now changed law of arrest and police is directed to not to arrest a person accused of 498a or any such case were maximum punishment is less than SEVEN years.

4) But Supreme Court still permits Police to arrest if police has REASONS TO BELIEVE that the accused may abscond, may disappear or may not be available in India at time of trial.

Police has to record such reasons in writing while making arrest, otherwise, the Police commits contempt of Supreme Court direction. Police may have to face departmental inquiry. A High Court can issue show cause notice to policeman to ask him why he should not be punished for violating guidelines of Supreme Court.

5) What an NRI can do to avoid surprise arrest?

Before coming to India, he can ask a lawyer to move an anticipatory bail for him in Indian court.

In such application, he should assure court that when he will come to India, he will apply for regular bail, and at all time, whenever court will need him for trial of case, he will come from abroad and will attend court.

If court is satisfied, it will pass an anticipatory bail or interim protection order and he will not have to face any Surprise Arrest when visiting India.

SECOND STAGE

He must however, when he comes to India, should appear before Judge and should ask for regular bail till the whole case is finally over.

If he fails to give proper bonds and his proper addresses abroad, the court may decline regular bail.

You can expect bail order only if you are ready to respect court and to abide by orders of court.

Normally, as per Supreme Court directions, even Magistrates are directed to grant bail unless they have reasons to believe that accused may abscond, disappear or not likely to come at time of trial.

They too have to record such reasons if they want to refuse bail in cases were maximum punishment is less than 7 years.


Haresh Raichura
25/10/14


Copyright : Haresh Raichura 2014

Science says, every 3 year, every cell of our body is changed. GITA says, from birth to death we continue....

Science says, every 3 year, every cell of our body is changed.

The cells in body continue to die and are remade.

GITA says similar thing, from birth to death we continue to change our physical body.

We give up our childhood-body, when we become adult.

We give up our adult-body when we become aged.

When the body is too old to work, we die and change into a new body by way of a new birth.

The "Life inside us" is in a continuation.

It is a form of Energy.

According to science, nothing is destroyed.

Things just transform into other shapes.

For example, ice can become water and water can become steam and steam can become water etc.

Variations in heats transforms physical shapes of being.

Point as said inspired form GITA :-

The life inside us was here before our birth.

It is here in us when we are passing through this body.

It will remain here even after our death,

and and will find itself a new body after our death.

Haresh Raichura
25/10/2014



October 22, 2014

Property Law: Within a year of death of parents, disputes go to courts among brothers and sisters- some basics

1) Where parents have left this world without leaving a Will, the disputes arises between brothers about properties.

2) Where they have left will, but distribution of wealth is not fair in the Will, the disputes arise and even the Will is also challenged.

3) In most cases, for a few month after death of parents, the disputes are expressed as whispers, then mummers, then angry exchanges of words, then exchanges of legal notices, and then in a year, court cases are seen.


4) Courts normally grant stay orders in such cases and say that no heir shall sell any property till case is finally decided.


5) After some years, in most cases parties settle their cases.

6) One reason of dispute is : One brother says that "I kept parents in their old age. I borne all medical expanses. I borne expanses of marriages of all sisters, so I should get a larger share in properties".

This reason is not a valid reason.

The brother who is asking larger share in property because of such reasons, is on wrong side. Such reasons flare up disputes.

7) Sisters support such brother who has borne family expanses of their marriages and who has maintained parents till their last breaths. They like to give their shares to such brother.

8) Compromises are the right way. A compromise brings life time peace to all family members.

Haresh Raichura
22/10/14





October 21, 2014

"Crime Scene Investigation" in India : Every State has its own rules, CBI has its own rules. Police Reforms needed

"Crime Scene Investigation" in India : Every State has its own rules, CBI has its own rules. Police reform desired

1) Crime Investigation comes under powers of State. Therefore every State Police Department has its own rules or procedures.

2) CBI is under Central Government. It has a detailed manual about how a crime scene should be investigated.

3) Some State do not provide enough funds to police department to carry out scientific investigation of crime scene. Sometimes they do not have funds to lift fingerprints from crime scene.

4) Though digital technology has advanced, some police still follow old procedure of drawing map of crime scene etc..

5) Central Govt has no power to enforce police reform across India. Each State has powers to prescribe its own procedures.

6) Only Supreme Court has powers to lay down guidelines for Police reforms which all States are required to follow. A public interest writ is pending in Supreme Court on this subject.

Haresh Raichura
21/10/2014

October 20, 2014

Basic Property Law : Agreement to Sell - if seller refuses to sell, court can direct him to sell property as per agreement

This powers of Court are under Specific Performance Act.

If a seller has signed an agreement to sell with you, accepted part payment, and then changes his mind without just reason, then court can direct him to sell property to you as per terms of agreement and can also direct him to execute a sale deed in your favour.

This are discretionary powers. If court sees that there are some just reasons for not ordering sell in your favour, it can direct seller to refund your part payment with interest.

These type of cases are called Suits for Specific Performance of Agreements.

Haresh Raichura.
20/10/14



Basic Property Law : Police has no right to evict anyone from possession of any property without order of court

If you are in possession of property, police cannot come and throw you out from possession unless there is an order from court.

If someone forcefully throws you out of property, the Magistrate (Criminal Court) can pass immediate orders under Sec.145 to put you back in possession.

This provision is to ensure that no one takes law in their own hands to dispossess someone from property.

Civil disputes of property are different. Here, Civil Court decides such disputes.

Haresh Raichura
20/10/14


Basic Property Law : When you have no title deeds of your property - but you are in possession since 12 years..

This is called law of Adverse Possession

If you are in peaceful possession of property, but you do not have property title documents, then two situations may arise ;-

1) No one except true owner of property can evict you from possession of property.

2) Even true owner losses his rights if you are in peaceful possession since more than 12 years. You can say that "Since you did not disturb my possession for 12 years, I have now become owner of this property."

Here, you must prove that since 12 years, you were openly enjoying this property, but no one came to challenge your possession, even by giving a notice..

This Law of Adverse Possession.

Haresh Raichura
20/10/14



Basic Property Law : You cannot claim to be owner of any property only on basis that it in your name in municipal and revenue records.

This is a very settled and basic property law.

You can claim ownership of property on basis of some document by which some title or interest in property could have been given to you.

But simply because property is entered in municipal and revenue records, you cannot claim ownership rights.

Reference : Case of Smt. Sawarni v. Smt. Inder Kaur 1996 (6)SCC 223

Haresh Raichura
20/10/14


"Suicide Note" by itself, no ground to register a F.I.R.

"Suicide Note" has not been given any special status in Evidence Law. It by itself is no ground to register a F.I.R.

I had seen a case. A scheduled caste government officer had committed suicide. In his suicide note, he had named many superior officers as responsible for his death.

Police had registered F.I.R against those named in Suicide Note. High Court had quashed this F.I.R. Supreme Court also maintained this order.

Suicide note may be a map to guide police investigator. But it contains only allegations. Police has to collect some evidence before taking action against persons named in suicide note.

Suicide note also indicates psychological state through which disease may be passing through at time of committing suicide. Sometimes, deceased is wanting to take revenge by bringing disgrace to those who troubled him.

This is a complex piece of evidence. But by itself alone, it is not enough to register a F.I.R.

Haresh Raichura
20/10/14

October 16, 2014

Saved so far about FIVE families by advising wife to not to file any cases against husband in a hurry - a memoir

I was just reflecting over my past career as a lawyer.

I started practice in District Court Junagadh in 1982

There I saw a senior advocate who was tenaciously fighting husband-wife cases.

He used to always win.

When he fought for wife, wife used win. When he fought for husband, husband used to win.

But in Bar room we junior advocates used to discuss ethics of his practice.

It was said that once any wife or husband climbed stairs of his office, their marriage has to be destroyed. There was no chance of survival of marriage once any wife or any husband had climbed stairs of his office!

This was 32 years ago. Thereafter, I moved to Ahmedabad to practice in High Court in 1986 and then moved to Supreme Court in 1990.

During this time I mostly did appellate work sent through other advocates.

Very little touch directly with clients and lower district courts.

As I reflect on past, I saw that I have saved family lives of at least five couples who are today living happily.

I did this by advising wife and his family, to not to file any cases in hurry on husband and his family.

I used to advise them to first cool down for few days.

The wife was usually turned out from husband with children. She used to weep. Her relatives used to come flared up in anger. Revenge was used to be on their mind.

After cooling them, I used to point out various legal cases which wife could file on husband and his family.

Then I used to point out to them consequences of filing such cases.

Then I used to tell them how much time these cases will take.

Then I used to ask them to think about what may happen to wife and her children when cases may keep going on in court for years.

They used to come with money. They were eager that I should file their cases. They wanted to pay me my fees.

But somehow, I did not want such fees. I was always reluctant to take their case.

I used to try to keep convincing them why they should not file any case and should let things cool down for some days.

I was advising them against my own financial interests.

Finally, they used to go away disheartened and disappointed.

And After few days, I used to learn that the couple and children have started living together and were happy.


Today same thing happened.

A wife reported that now her husband is all right. They are living together with four daughters. The husband has stopped drinking wine and is regularly going to work. They are all happy.

One year ago, this very wife had come to me to file case on her husband. At that time she was beaten. Her ornaments were not given. She escaped from matrimonial home to save herself from cruelty. Her life looked like hell to her.

I had consoled her and advised her to not to take any steps in hurry. I asked her to cool down for a couple of days. I asked her to stay cool for few days and let the husband realise how his life is when wife has gone!

She waited for a month then the husband had came. He had said sorry to wife and had taken her back to their home.

They are now living happy since a year.

This news came today, so it made me write this blog.

I think I have saved at least five such families so far by advising wife not to file case in a hurry.

Great satisfaction.

Haresh Raichura
16/10/14


SC: Speeds Up Procedures for deciding check dishonour cases.

1) When law says that certain cases should be tried in fix time limit, the court has to make all attempts to finish such case in that time limit.

2) Law says that in check cases, the judge need to record only substance of what witnesses say. This is summary procedure.

3) If case is such that evidence of witnesses should be recorded in full, then judge has to record an order describing why this case should be tried like a long - summons cases.

4) In every case, if judge is transferred, the new judge need not restart whole case de novo. Earlier case of Nitinbhai explained. If full evidence is recorded, the Nitinbhai case need not be applicable.

5) Duty of First Appellate court. It should not mechanically decide a first appeal. All factual evidence aspects need to be examined.

6) Retrial should be ordered only in rare cases.

Above summary is based on judgement of SC dated 16/10/14 in case of J. V & Co versus State of Gujarat.

Haresh Raichura
16/10/14


October 15, 2014

One Legal Reason why J. Jayalalithaa should be granted bail - a brief note.

1) Supreme Court is not a court of emotions.

Large number of people emotionally wishes bail.

Much larger number also emotionally wish that bail should not be granted.

Supreme Court is not concerned with this. 

2) One legal consideration for grant or refusal of bail pending appeal is length of sentence. 

If sentence is short, bail is granted till hearing of appeal.

3) Here, there is question mark on length of sentence

Law provides for 24 hours cooling period after conviction is pronounced. 

Only after 24 hours, judge can decide on length of sentence after hearing both sides on quantum of sentence.

4) In this case, this statutory requirement is not followed. Advocates of accused are not given enough time to prepare argument on what length of sentence should be imposed by court.

The conviction and judgement here, is passed on same day. Here, there is a legal flaw. This flow may not affect conviction. But it has bearing on length of sentence.

If cooling period of 24 hours was observed, the judge might have given one year sentence and then bail could have been natural course. It is A possibility.

5) State counsel said in high court that he had no objection to conditional if bail granted. He cannot now change his this stand in Supreme Court. 

So the balance tilts in favour of granting bail pending final hearing of appeal.

----

This is of course a technical view. My personal view. I am not concerned with case in any way. 

Ultimately, Supreme Court is Supreme.

Haresh Raichura
15/10/14





October 13, 2014

Some safeguards which can be directed in Sec.498a to prevent wife from dragging parents & relatives in case.

When a husband wife dispute arises, often, wife files various criminal cases against husband, his parents, relatives, alleging dowery demand, cruelty etc.

Now all these laws are enacted because it was seen that in large number of cases, women are subject to cruelty because of dowery, sometimes because not giving birth to a son and for many other reasons.

The problem arises when instead of filing case against husband, the wife chooses to file case against parents, sisters of husband living in same house also.

This inflames disputes. Passions and anger flare up on all sides. Compromise becomes difficult.

SPECIFICS OF PROBLEM

1) The Laws cannot be amended to say that such cases can be filed only against husband and cannot be filed against other relatives living in same house.

2) During evidence in court, there is a problem.

Wife often gives only her evidence. She has no other witnesses.

She says that no one from family of husband or neighbours of Husband will come to support her case.

3) The court has now difficulty. How to believer only wife's word against all in laws?

And on what basis court can refuse to believe her evidence when she is not in position to bring independent witness?

4) The problem with Husband's relatives is also genuine.

How do they disprove evidence of simple words of wife?

5) The Judge has to find what is probable on basis of words of parties. Independant witness are not available to assist court. Sometimes they give right Judgement. Sometimes they err because of lack of evidence.

What Safeguard can be imposed to prevent misuse of such provisions?

1) Role of Neighbours : Neighbours do not want to get involved in husband wife disupute. But law casts a duty on them to inform truth to police. One Supreme Court Judgement says that a neighbour has also right to lodge a FIR of 498a if wife in next house is being treated cruely.

Thus law casts a duty on neighbours.

2) Duty of Police

There is duty on police. Police cannot simply record statement of wife and file charge sheet against husband and his family.

Police has duty to issue summons to few neighbours in locality of husband and should record their statement. Police should tell neighbour that punishment for giving a false statement to police is six month jail. This will compel neighbours to speak truth.


3) If neighbours also say that other family members were also treating wife with cruelty, then only police need to file Chargesheet against relatives.

This does not prejudice wife. Because in court room, if she can later produce evidence in courtroom against relatives, then court can issue summons to relatives and can make them accused.

This is a safeguard. That only if there neighbours or some independent evidence or some letters written by such relatives demanding dowery come in the hand of police, then only police should file charge sheet against relations.


4) Now who can issue such safeguards ?

All State Governments Home Ministry can issue directions which will be valid in that state. High Courts and Supreme Court can issue such guidelines if such case is made out before them.

5) What husband can do till such guidelines are issued?

As soon FIR against relatives is filed, husband should send a list of at least 10 neighbours to police. He should ask police to take statements of any of these independant witnesses before registering FIR.

Here it is not necessary to obtain consent of neighbour. Even if they are unwilling, the police can call them.

If police does not take statement of any of these witnesses, then husband can complain to Judge when police files chargesheet. Police may have difficulty in explaining court why he did not any of 10 suggested witnesses.

Police or Court can then summons witnesses in court also.

CONCLUSION

5) The Court will now have independent witnesses also to the truth. The court now will not have to rely only on one sides evidence of wife.

Neighbours will probably say that husband and wife both are equally guilty and parents have no faults.

Haresh Raichura
13/10/2014

Are trial court judges permitted to decide whether witness is lying or not on basis of his/her body language?

The answer is yes.

In legal language, this is called demeanour of witnesses.

On basis of demeanour (Body Language ) of witnesses, the trial court can write whether the witness is reliable or not.

The power of trial court judge to take into account demeanour of witnesses is recognised by Supreme Court in many judgements.

Haresh Raichura
13/10/14

Blind Civil Judge - The Justice is supposed to be blind. Judge is not supposed to be blind.

Blind people also do law courses and pass with flying marks.

Once a blind persons becomes a Law Graduate, he is also entitled to participate in examination of a judge.

One such blind law graduate passed examination of for Civil Judges with flying marks.

As an experiment, he was appointed as civil judge by High Court.

After some months, High Court received complaints against the blind judge.

The blind judge used to ask his wife to sit near him in court and to tell him how witnesses were behaving while giving deposition in court!

This the experiment was not very successful.

So far as blind lawyers are concerned, they can practice law easily. Because someone can always sit by him to assist.

But, a blind judge, is difficult to be appointed.

The Point

The Justice is supposed to be blind. Judge is not supposed to be blind.

Haresh Raichura
13/10/114

Blind Civil Judge - The Justice is supposed to be blind. Judge is not supposed to be blind.

Blind people also do law courses and pass with flying marks.

Once a blind persons becomes a Law Graduate, he is also entitled to participate in examination of a judge.

One such blind law graduate passed examination of for Civil Judges with flying marks.

As an experiment, he was appointed as civil judge by High Court.

After some months, High Court received complaints against the blind judge.

The blind judge used to ask his wife to sit near him in court and to tell him how witnesses were behaving while giving deposition in court!

This the experiment was not very successful.

So far as blind lawyers are concerned, they can practice law easily. Because someone can always sit by him to assist.

But, a blind judge, is difficult to be appointed.

The Point

The Justice is supposed to be blind. Judge is not supposed to be blind.

Haresh Raichura
13/10/114

October 11, 2014

Reasons : Why Sec.498A is very difficult to be amended by Law Makers or by Courts- A brief note

1) First Ask Why This Law Was Passed.

When studying any law, first question should be asked, why this law was passed in the first place? What was the social mischief which the Law wanted to cure?

In legal language, this is called "Mischief Rule of Interpretention".

Regarding 498A, the law makers saw a social problem. After marriage, a girl goes to her husband's house. The house may be far away from her maternal house.

In Husband's house, she is alone surrounded by family members of husband.

If husband turns hostile, she is helpless. No one in house is there to help her.

Sometimes she is beaten by husband and his family members.

Sometimes she is treated cruelly, for not giving birth to a son, for not bringing dowery, for not behaving properly, etc etc. Reasons could be many others also.

So the law called Sec. 498A was passed to remove this mischief in society.

Has this mischief gone? If yes, then law can be revoked. But if there are still thousands of families were wife is sufferering, then the law has to remain. It cannot be cancelled.

2) Why so much cry about abuse of Sec.498a? How the law is abused or misused? Why family of husband say that wife has filed absolutely fake cases on them?

A) In one case, a husband may say, yes, I did treated her cruely. There were just reasons. But then instead of filing complaint only against me, she has filed false complaint against my aged father, mother and innocent sisters also. My father died due to shock. ... Etc. The stories of pain are endless.

But Think For A Moment

Here, Law cannot be so changed that Police will register case only against Husband.. And Not again other family members.... Such amendments in law cannot be made.

If complaint is not proved against parents and sisters, the court can acquit them after trial.

But then, the Law cannot be also changed to say that if case against parents and sister is not proved, the wife will be jailed and heavy cost will be imposed on wife.

Because law is made to protect wife. To make a such provision will be against the object of law.

Secondly, Judges will say, from where can she bring witness to what happened to her in husband's house? No family member of husband or neighbour will come forward to support wife.

So no law can be made that if wife fails to prove case of 498a, she will be automatically made liable.


3) Earlier, A complaint under 498a used to be followed with arrest of family members of Husband. Sometimes aged parents used to die with shock of arrest.

Supreme Court has not STOPPED this. Now police is prevented from making automatic arrest.

But it is still not in power of even Supreme Court to say that no complaint can be filed against parents or sisters of husband who may be also living with husband.


4) It must be remembered that if anything happens to a wife in the house of husband, the court can sent entire family, including aged parents to jail... Here is how the judges may say .....

An actual example.

In a small village, in one house three male members and four females were living on that fateful day. Husband had gone to another town.

Three male members who were in house, burnt wife in kitchen and reported to police that she had committed suicide at 1 PM in kitchen during day time.

Police recorded statements of family members.

After one month, police discovered that it was murder.

Entire family of Three Male Members and Remaining Three females were sent to Life Imprisionment. Husband was acquitted.

Murder was clearly found and proved by scientific evidences.

But Which of the six members in house were responsible for murder was not proved... It cannot be proved as no one else could have seen what was happening in that house.

Lawyers argued that female members, aged mother etc were innocent.

Judge rejected these arguemnt.

Judge said, if they were truly innocent, they should have told truth to court. They were in the house when incident happened. They were knowing what was happening. They could have told truth if they were truly innocent.

The conviction by trial court was upheld upto Supreme Court.

5) The Problem is genuine.

In home, only one person may have inflicted cruelty on wife.

Wife may have filed complaint against one person who actually hurt her, and also against three other innocent members living in same house.

The Burden is on these three innocent persons to tell truth to court. They must tell whole truth to court. They must explain who was truly hurting the wife and why she was driven to file complaint.

If they do not say whole truth to the court, the judge may convict them all even if complaint against them was true regarding one and false against other three.

The law is truly very harsh.

But I see no way any amendment possible.

In 498a, so far it's Non Bailable part is concerned, Supreme Court has already said "No Automatic Arrest."

The bail can now easily be obtained in trial court. Hardship is reduced to this extent.


Haresh Raichura
11/10/14

PS. 
1) Supreme Court has already directed all police and state authorities in India not to unnecessary arrest or trouble any 498a victim. Guidelines given. If any police officers violate these guidelines, Supreme Court has directed that person should approach High Court for contempt and for departmental proceedings against such erring officers.

2) If someone files a totally false case and tries to extort money or to blackmail with threats of any cases, then there are separate provisions in Law under which a person can file complaint in court or can lodge an FIR. A lawyer need to examine whether there is some evidence to sustain such allegations. 

(But if a woman asks for high amount of alimony for compromise or for granting divorce, it cannot be said that she is blackmailing or extorting alimony. She may be just placing a too high price for compromise. This is a relevant evidence against wife in a case filed by her , but this may not be a crime.)

October 10, 2014

"Suspension of Sentence" and "Bail Pending Hearing of Appeal" are two different and separate things #Knowhow

After a person is convicted by trial court,

- He files an Appeal to Superior Court ( High Court or District Court depending on nature of conviction)

At time of filing appeal, he can file two more Applications with Appeal :-

1) Application for Bail, saying, "please release me on bail since regular hearing of my appeal can take several months or years."

2) Application for Suspension of Sentence, saying "Please suspend my sentence regarding conviction, during hearing of appeal so that in the meantime I can continue in my job as government servant, and I do not have to deposit fine, and that the conviction do not come in my way in other areas of my occupation."

In these way two things are different.

If only prayer (1) bail, is granted, he is released on bail but he loses govt job etc in meantime and he has to deposit fine.

If prayer (2) is also granted, then conviction judgement itself is suspended and the person can move along with his govt job etc...
He also do not have to deposit fine, or can deposit amounts as may be directed.

Since 2002, generally, sentence is not suspended in corruption cases.

But this all depends on discretion of Court. Each case have different facts.

Haresh Raichura
10/10/14



October 9, 2014

Young Lawyers in India are doing great job in Supreme Court- A compliment to young generation of lawyers

Till yesterday, I held prejudice against young generation of lawyers. I saw them arguing irrelevantly and immaturely.

I saw that they were busy playing video games and snap chats on mobiles even in court rooms.

I saw that they had short spans of attention and they were hardly paying attention to arguments going on in Supreme Court.

Supreme Court is a great court of India, presided by best judges.

It is a rare privilege to hear how they were weighing each word spoken in court.

I saw that they were missing in court manners and court craft.

Since yesterday, my these views are changing.

Probably, 5 years ago, some great judges and senior advocates, made several attempts to improve legal education in India. Bar Council of India did a great job by taking several pull up measures.

Perhaps all this is now paying dividends.

I noticed following good points which are required to be highly appreciated.

1) They are hard working when they are really working. They focus totally on what they are doing.

2) They have good command on vocabulary. They address judges with right legal vocabulary.

3) They are computer savvy. Here, they beat old generation of Senior Advocates.

Judges all over world have a weakness. If you show them a similar judgement where facts were similar, and law was exactly laid down as you argue, then they are highly impressed.

The young generation had edge in these  computer skills.

They search out and come up with latest precedent matching exact facts and law.

This is due to their computer skills which old generation of lawyers in India lack.

Here, they prove better than even Senior Advocates.

4) What they lack is, perhaps, experience of knowing which argument is to be made first and which last.

But this is not so much important. When you are armed with a right kind of law and judgement, the judge will certainly go by law, and not by your standing at Bar. 

Age of an advocate makes no difference to a judge.

THE POINT

What follows is this.

If you have legal case, you do not need to go to most expensive and most senior lawyers.

Do not get impressed by wooden walls and air conditioned offices of famous lawyers.

First, try and discuss your case with some fresh Young Generation Advocate. The legal education has improved a lot in last 5 years in India.

You may be impressed by new talents.

Haresh Raichura
9/10/2014

October 3, 2014

Three Sins Of A Judge - Which sit on his head like coils of a snake

A judge commits three sins, when , he classifies lawyers in three lists:

1) Lawyers in his Good Book

2) Lawyers in his Bad Book

3) Lawyers whom he does not see at all.

Like coils of a snake, these three sins sit on his head once he has committed these three sins.


Haresh Raichura
3/10/14


Three Reasons/ Safeguards on why you should not fear discussing your perceptions about courts / Judiciary: #Knowhow

Three Reasons/ Safeguards on why you should not fear discussing your court perceptions:

1) If you are

a) not discussing your own case to take an indirect shot at judge who decided your case or who is deciding your case,

b) if you are not attributing any motive of bribe or impartiality to any judge, then you need not fear fair discussion about judicial system.

2) If the overall impression of your discussion is not for weakening judicial system, but it is truly intended to strengthen or improve judicial system, then you do not fear fair discussion about judicial system.

3) If what you have discussed is offensive to judicial system, only two type of persons can start contempt proceeding

a) The Court which may have been feeling hurt by what you have discussed

b) All other persons who may be feeling hurt, may have to first Apply to Advocate General or Attorney General for permission to file contempt proceedings.

They will grant permission only if the matter is very serious. They will ignore trivial issues and will refuse permission. This protects fair criticism.

CAUTION : This is, as per my understanding, my view. Discuss Judicial system but do it like a responsible citizen. Do not do to Judges what you do not want them to do to you. If you hurt them, then expect to be hurt.

Otherwise, fair criticism and informed (do not judge system on basis of gossips) of general system is not discouraged by judges.


A former CJI said, Sun light is the best disinfectant for judiciary.


Haresh Raichura
3/10/14


#Knowhow What you need to prove if "Rape by Husband" is made punishable (11 points)

Judges of that court (Some Court Abroad) may have been disturbed to see so many cases were wives were complaining about rape by husbands.

The Learned Judges must have therefore made observation that some law to punish such rapes by husband may be made... as it is has been reported in Times of India.

But how will you conduct trial? Who will be eye witness? What will be reliable evidence? How a husband can be protected if false allegation is made by wife?

1) Perhaps, there may not be any need for such new law.

2). Physical Assault on Wife by Husband is already punishable.

3) Judge can give punishment under these provisions without bothering himself about details of whether wife was raped or not etc.. etc.. 

4) In bedrooms, there may not be any eyewitnesses. It will be an oral word of a woman versus an word of a man. How will Judge decide?

5) Injuries on body? Well, there may be injuries or there may not be injuries. Rape can still be committed without injuries also. Doubts will remain.

6) A Doctor will have to come in witness box to say that injuries were not self inflicted by woman.. How can he be so sure? He can never be sure. Medical science is not so perfect.

7) How judge will decide if husband files a counter complaint that it was the wife who raped him? He may also show injuries on his body like nail bites.

8) Judge may look at strained relations in immediate past between wife and husband.. Yes, this can indicate possibility of rape by husband....But it is also a possibility that wife may have filed complaint to take revenge or to extort money from husband or for share in his property... 

How judge will decide such allegations and counter allegations?

9) Do we want all husband to live in constant fear that they all are subject to complaint of rape by wife?


10) To me, this idea of making "Rape by Husband an offence" does NOT appeal as practical idea.

11) And last horrible thing. If such law is made, all husbands may have to undergo a Potency Test.... As first step in investigation....

Haresh Raichura
3/10/14


October 2, 2014

Before Issuing Law for E-Rickshaws, Total Consumption of Electricity has to provided/Budgeted by Govt...The Problem

Delhi High Court put a stay on plying on E- Rickshaws.. But I have seen auto-rickshaw and goods auto rickshaw plying in other states of India. This is perhaps unfair.

Such vehicles have impact on total electricity available with nation.

Unless proper Electricity Budget is made, the laws cannot be made for such E-Rickshaws...

This all will have impact on Electricity Bill you and I pay.

Haresh Raichura
2/10/14