Marital Rape: Do we really need a fresh law?

By Sumit Nagpal

Nonsense! This was the response I got from a Supreme Court lawyer when I was tweeting against the demand for having a law to deal with what is called marital rape in India. I was a bit amused to see the other responses. Someone said that I am a chauvinist who supports marital rape and someone even responded by saying I am ignorant to the fact that it does exist. But if I am against the idea of a separate law to deal with marital rape, it doesn't automatically means that I condone it or I am supporting what is termed as marital rape, neither I am a person who is ignorant to the fact that marital rapes is a reality around the world. I am of the firm opinion that it should not be called marital rape but it should be termed as cruelty and NOT rape.

Marriage under Hindu law is a sacred where conjugal relations are the very essence of the relationship. If a spouse leaves the other the spouse has a right to file a case for restitution of the conjugal rights. And what are normal conjugal rights? It means having normal mental and physical relationship, procreation and living a happy married life. A happy married life means mental and physical bonding between both the spouses and each spouse can have a reasonable expectation from the other that he or she will get both physical and mental pleasure. Now if a wife is saying no to have sex with the husband, she is exercising her right to have sex on her own will on the one hand, she is also denying to her husband what may be considered as a normal expectation from his side. So in case the husband forces his way on her, does it mean he should be sent to jail for getting what he is otherwise legally entitled to get? Certainly no is the answer. (When I say "legally entitled to get", it means a man's entitlement to conjugal rights and not entitlement to rape. Have been forced to add this line because of a willful misinterpretation by someone who wanted to play mischief.)

Nobody on this earth can deny that desire to have sex a natural desire and men have every right to fulfill it in a happy married life. Imagine a lady denies sex to the husband or rarely allows him to have sex. What should a man do? He can’t go out to have sex with any other woman because to have sex outside the marriage is the first ground for divorce under Hindu Law. So you deny him sex at home, law doesn’t permit sex out of marriage and a man has no recourse available to satisfy his natural urge. 

Indian law is heavily tilted in favour of women. Even I have seen gross misuse of section 498A of the Indian Penal Code, I have still never written for removal of this law. I know how this law comes to the rescues of many women who genuinely suffer on the hands of her husband and in laws. The question here is whether 498A can only deal with cases of dowry related issues? The answer is No. Over the years, Supreme Court has expanded the definition of cruelty. Now it includes cases where the husband doesn’t have sex with wife for a long time. This extended definition makes me wonder that when not having sex with the wife can be covered under the definition of cruelty, why it can’t cover cases where the husband is trying to have forcible sex. Problem with applying 498A in what is called a marital rape case is that there is a general perception that 498A applies only to dowry related issues. But I will not be surprised if tomorrow some judge of the Supreme Court or the High Court gives an interpretation that 498A includes marital rape by husbands.

In any rape case, consent is the criteria for deciding the guilt and the protection to husbands under Section 375 of the IPC is silent on the issue of consent. But can’t it be reasonably presumed that marriage is itself means that a man and a woman are consenting to conjugal relationship? I don’t, even for a second, mean that men have a license to force themselves on wives the moment they get married but it is true that a man can have a reasonable expectation from his wife when it comes to sex. And when there is consent for conjugal relationship, it cannot be termed as rape but at the most one can say that it is an act of cruelty which should be dealt with under Section 498A of the IPC.

When I say Indian Law is heavily tilted in favour of women, I say it because I have seen numerous cases of abuse of law. The recent statistics show that Indian men are committing suicide because of the harassment meted out to them because of false dowry and rape cases. Do men get compensation if they are acquitted of false rape/dowry cases? No. Then how can we think that we will be doing justice if we create one more law to deal with marital rape? As explained above, Section 498A of the IPC can deal with these cases on the criminal side and Domestic Violence Act can deal with the situation on the civil side. A women can have shared household under Domestic Violence Act, can go for legal separation if she wishes, get maintenance if she is unable to maintain herself financially. Existing laws can deal with all the situations which may arise due to the cruelty. 

I have no hesitation in saying that the demand for having a separate law is creation of feminist minds who want to see husbands in jail for having a reasonable expectation from his wife. As there is a famous saying “marriage is the price men pay for sex, sex is the price women pay for marriage” one should accept the hard reality and should not attempt to create a law which will be misused 100 times more than the legendary Section 498A of IPC. If a wife is being subjected to forcible sex, let her file a case under 498A or seek protection under Domestic violence law or file for divorce. Merely creating more misery for men will not help the institution of marriage, rather it will be a great injustice to women as the gross misuse of the law will trivialize the entire issue and genuine victims will rarely get relief. 

Full text: 2G trial court order on plea of Swamy against Home Minister P.Chidambaram

Please click on the following link
Full text: 2G trial court order on plea of Swamy against Home Minister P.Chidambaram

Online content, law and challenges before big websites

By : Sumit Nagpal When the internet was in its infancy, no one would have thought about the enormity this medium of communication would gain once it gains momentum.  The governments did not take it much seriously and after the burst of dot com bubble, people thought that Internet shall remain confined to emails only. Reason behind such a thought was the failure of most of the websites which thought they will become millionaires once they start a dot com project. I still remember the days, when I used internet for chatting on Yahoo. And I must confess, just like any other youngster, my aim also was to make girlfriend through Yahoo messenger. 

But then saw how internet gradually started invading in our daily lives. Email was a thing of the past, everyone was busy in chatting, then we saw blogs, then came Orkut and gradually Google and Facebook changed our lives forever. Most of us know that to start a website is one of the easiest tasks in this world. You just need Rs.99 to register a domain and any developer shall make a basic website for ten thousand rupees.

The government never understood the potency and reach of this medium. In traditional style, if a person needed to start a publication, he was required to get his magazine or paper registered in Registrar of News Papers in India. The Government would do some background check, will also put some conditions and only then a person would be allowed to become a publisher. But internet changed it all. Everyone could become a publisher just by clicking few buttons. No one was required to take any permission for registering a domain, no one was required to have any journalistic qualification but everyone was a publishers.

And here the problem started. People who were not qualified became publishers and most of them did not even understand the legal implications. Some people started writing things they could not prove and internet became a tool to write whatever one felt about another. I am a witness to a tweet in which a popular TV Journalist was called a sl#t. As a law student, I was shocked to see such things. Not that I was shocked to see what people wrote about her but I was shocked to see that practically no remedy was available to her in law.

Problem with online content

The plus point or the minus point of the online content is that it remains and exists forever. If there is something derogatory/objectionable is published in a newspaper or a TV channel, the time shall heal the wounds and the damage to a person can be controlled. But in case of online content, it shall keep coming before your eyes. First when it is published and then when the search engines would again show that content in search results. So online content has much more shelf value as compared to Newspapers or TV

Delhi High Court threat to websites like Yahoo, Google and Facebook

I know Delhi High Court judges are not so immature that they will censor content the way China has done. But what I understand from the observation is that people, especially websites, need to think and device ways to deal with the menace of online objectionable content. The judges know that it is practically impossible to filter millions of web pages every day. But should be simply turn a blind eye to this menace or should we, to start with, atleast start looking at this issue in an objective way? Not that I am a great supporter of online censorship. But I am of the considered opinion that there must be some kind of regulation if not censorship.

Way forward

As I wrote, I am not a great supporter of censoring; I support some kind of regulation. Be it by way of an ombudsman or self regulation by the websites. If the websites are serious about not letting their platforms for violation of law of the country, they must think about it. If they fail to do it, not websites but their lawyers shall end up making money because of the potential litigation this issue will generate. I am of the opinion that two-way strategy needs to be used to handle this issue

• In your user agreements, put a clause that the content submitted by the user shall not be violative of any law of the land. 
• In the WebPages too, there should be a link that if some content is violating some law, the same material should be reported to legal department of the website.
• The ombudsman, on receipt of a complaint, must track down the user by tracking the IP address and after doing so, a notice should be issued to the person publishing such content. 
• In case, the person is not in India, the government/police must report it to the website concerned and the said website should be asked to remove the content.
• The court must punish the publishers of derogatory/offensive content who use WebPages as a tool to abuse others

Conclusion

I understand that many of you would disagree with me on this issue. At the same time, as a law student I also know that we have freedom of expression but it’s not an absolute right. When we write something one the web, we must also think that the person against whom we are writing also has certain rights like right to fair trial and right to privacy. I remember what Uncle Ben told Peter Parker in the movie Spider Man “With great power, comes great responsibility.” So when use the power of internet to communicate things, we must use it with utmost responsibility. And this applies to each one of us clicking on the Publish button after writing something. 

Important matters coming up for hearing in the Supreme Court on 16.01.2012

Dear All,

As I informed all of you that our website Spread Law is undergoing some changes, I am putting this information on my blog.

Thanks,

Sumit Nagpal


Court1/29 (PIL) Safai Karamachari Andolan.
Court 3/52 ( PIL) Sarla Parekh v/s Union of India
Court 3/71 196/2001 PUCL v/s Union of India (Night shelter issue)
Court 3/73 ( PIL) Wasim Ahmad Saeed v/s  Union of India 
Court 5/5 Sukhram v/s CBI.(Telecom Scam)
Court 5/6 ( PIL) Bharat Jhunjhunwala v/s Central Electricity Authority
Court 6/31 (SLP fresh) Surat Singh v/s Union of India
Court 6/63. ( PIL fresh) Manjit singh v/s  Union of India 
Court 7/50 ( PIL fresh) Manohar Lal sharma v/s CBI
Court 9/15 ( PIL Fresh) L.k. Venkat v/s  Union of India
Court 10/26 (SLP fresh) M. K. Azhagiri v/s A.Lazar.
Court 10/204 CBI v/s Afzal Ansari.
Court 10/67. (pil) Anil Gupta v/s Union of India
Court 13/301. (2 pm) Ramlila Maidan issue.

Spread Law is now a website. Please visit www.spreadlaw.in

Here we come

It gives me immense pleasure to announce the launch of www.spreadlaw.in . The journey of Spread Law started on 16.09.2011 when I started a blog to spread legal awareness in India. The blog was an instant hit as people wanted to know more and more about legal news and legal issues. Someone wanted to know the happenings in the court and someone was looking for legal guidance.

I started to write blogs on law, just to make it simpler for a layman to understand what is going on in the courts and what are the legal implications of a particular step of the government? Gradually I started getting more queries. Some of my online friends were looking for legal guidance. I wrote an article on Law on FIR. I also wrote an article on Law on bail. I realized that the more I wrote, the more my friends wanted to know. And within two months of the launch, Spread Law got twenty thousand hits worldwide.

My friends were quite impressed with the performance of the blog and many of them suggested that I should start a full fledged website on legal awareness. When I thought about the idea seriously, I realized that there is not a single website in India which bridges the gap between law and a layman. Most of the websites promised legal aid but not a single one has tried to put an effort to make people understand about legal issues.
And finally I decided to convert my blog into a website. When you have a first look on the site, you may notice certain deficiencies but friends just have some patience as the site has just started, there are many issues which we are working on. Many features have to be added, design has to be improved and many things have to be done. Still if you feel there is something which needs immediate attention, feel free to write to me.

What do I intend to do?

One of the main objectives of this website is to spread legal awareness in India. Me and my friends will try our best to make it simple for each one of you to understand the complex legal issues. We shall also write articles on various subjects so if you ever get into a legal issue, you get a full understanding of the subject before you visit a lawyer.

How can you contribute?

Right now I look forward to support from each one of you. I am not looking for any funds at this point of time and I am funding www.spreadlaw.in on my own. The only support I look from you is to spread a word about this website. I would also request you to make this website your homepage so we get more and more hits in the days to come. I promise to each one of you that if this website becomes a hit, I would be able to help thousands of people who are suffering just because they are ignorant about their legal rights. I would try to help as many people as I can.
With these words, I seek the blessings of my seniors and good wishes of my friends and juniors to make www.spreadlaw.in a great success.
Sumit Nagpal,
Founder, www.spreadlaw.in

Initiate contempt proceedings against CBI : Gujarat to SC

In a hearing relating to the fake encounter of Sohrabuddin, the Gujarat government today told the Supreme Court that CBI is giving communal twist to the case.

The state went on to say that it was wrong on the part of CBI to cast aspersions on lower Judiciary in Gujarat. The CBI officers had alleged that prosecuters and magistrate in the trial court trying Sohrabuddin encounter case were relatives of Amit Shah, who is one of the accused in the case.

The bench of Justice Aftab Alam and Justice Ranjana Desai slammed the CBI for making allegations against the judiciary in Gujarat just for ensuring the transfer of trial of Shorabuddin fake encounter case outside Gujarat

The bench observed, "...to suggest that judiciary even at the lower level is trying to favour politicians is complete non- sense. To systematise the judiciary and say it is toeing the political line, we disapprove it. We will protect the judiciary, though one or two individual may commit mistakea..."

The Gujarat government objected to CBI affidavit asking the apex court to initiate contempt proceedings against the CBI

Delhi HC notice to SC, AG and SG on a petition asking that all the advocates be allowed to practice before the apex court

The Delhi High Court has issued notice to Supreme Court, Attorney General, Solicitor General, Supreme Court bar association and Advocate on Record association on a petition filed by Balraj Singh Malik asking for abolishing Supreme Court rules which provided that a petition can only be filed through an Advocate on Record.

A bench of Acting Chief Justice A K Sikri and Justice R S Endlaw issued the notice after the petition prayed that in the light of the notification of Section 30 of the Advocates Act on 15th June 2011. The notification provides that each and every advocate enrolled in any state bar council shall be entitled to practice before any court throughout India including the apex court.

The petition also prayed before the court to declare Rule 2,4 and 6B of order IV Supreme Court rules. These rules provide that only an Advocate on Record can practice before the Supreme Court.

Bail granted to 5 corporates accused in 2G scam

The Supreme Court today granted bail to the five corporates accused in 2G scam. A bench headed by Justice H L Dattu granted bail to all the corporated on a surety of Rs. 5 lakh.

The accused who will be released on bail are Surendra Pipara, Gautan Doshi, Hari Nair, Sanjay Chandra and Vinod Goenka
The court has granted liberty to CBI to apply for modification of the order if any of the accused abuses the bail granted to them.
Details later

Arguments of Ram Jethmalani in SC in Amit Shah bail cancellation case on 23.11.2011

Bench of Justice Aftab Alam and Justice Ranjana Desai

Ram Jethmalani appearing on behalf of former Gujarat Home Minister Amit Shah resumed his arguments in Supreme Court.

During his arguments Jethmalani touched various point like background of Sohrabuddin Sheikh, Law on bail, Supreme Court's judgment on bail, Evidence of Patel Brothers, Allegations against Amit Shah in Chargesheet, Fact that Tulsiram Prajapati was not an eyewitness of abduction of Sohrabuddin and Kausar Bi and Evidence of Azam Khan

Background of Sohrabuddin Sheikh

Starting his arguments before the bench Jethmalani, told the apex court that Sohrabuddin was a terrorist and was convicted under TADA. According to Jethmalani Sohrabuddin received arms regularly from Pakistan for local distribution. Sohrabuddin was on bail when he was involved in the popular builder shoot out case and alleged murder of Rauf Lala in udaipur. Jethmalani went on to argue that Gujarat was getting a bad name because of Sohrabuddin killing. According to Jethmalani, Sohrabuddin was made a posterboy during last election ..

Jethmalani also put forward an alibi for Amit shah's contact with Narendra Amin at a time when Sohrabuddin was killed. Shah was in contact wit Amin over a kidnapping case in Gandhinagar.
While judges observed that there appears to be much of a coincidence and there are glaring circumstances that suggest Amit Shah's involvement. The bench also observed that Judges after Sohrabuddin case was given to CID for investigation, a day later Amin was transferred to CID for investigating the case.

Moreover days after police officer Solanki sought permission to interrogate Prajapati, Vanzara was transferred as DIG border range and within two weeks Prajapati was killed.
Law on Bail

Starting his arguments on Law on Bail Jethmalani informed the court that it is a settled law that bail is the rule and jail is the exception. He tried to convince the court that a decision to grant or refuse bail depends on many things like justice, liberty, public safety etc. Referring to the judgments of Justice V R Krishna Iyer, Jethmalani argued  “...the personal liberty of a person is too precious. while deciding the bail application, a judge needs to follow the basic principles of law rather than what he thinks personally. Bail should not be withheld as a matter of punishment to an accused. While conisdering bail a judge needs to see that the evidence before him puts such a dark picture of the accused that if he is given bail, he will flee for the rest of his life rather than spending rest of his life in jail...”

Jethmalani also informed the court that while considering bail, the court needs to consider three factors which are 1st Charge on the accused, 2nd Nature of the evidence against the accused and 3rd Punishments prescribed in law. Accordingly a bail can not be denied for punitive purposes.


While citing the judgments of the Constitution bench 1978/1/SCC/579 , Ram Jethmalani referred to the Golden Rule that GRANT OF BAIL IS A RULE AND JAIL IS AN EXCEPTION

Justice Aftab Alam was quick to react by saying that when he was a lawyer, no judge would listen to this rule. “...there are always some judgments which are difficult to follow...” observed Justice Alam. Ram Jethmalani was quick to answer by saying “...I hope you should not condone this kind of judicial indiscipline...”

At this point of time, Ram Jethmalani referred to few judgments of the Supreme Court on Law on Bail. According to Jethmalani, the restriction under section 437 of the CrPC is not applicable on High Court and the Sessions Courts. “Object of the bail is to secure the attendance of the accused and even British Judges while deciding the cases relied on this rule.Grant of bail is a rule and refusal is a exception as a presumably innocent person must have the liberty to prove his innocence...” argued Jethmalani.

At this point Jethmalani also cited a recent judgment of Dalbir Bhandari and Justice Radhakrishnan which listed out all the per incuriam judgments on the subject. (per incuriam means a decision of the court that is wrongly decided because a judge was misinformed of law. A judgment per incuriam is not binding and has no authority)

Jethmalani also argued that most of the judgments cited by the CBI could not have been cited as they were not applicable to this case.
Evidence of Patel Brothers

Advancing his arguments on the role of Patel brothers Jethmalani accused them of concealing the information from Gujarat Police. Jethmalani alleged that both the Patel brothers knew that it was Sohrabuddin who was behind the firing incident at Popular Builders office and in the FIR they didnt give any clue t hat Sohrabuddin was known to the Patel brothers. They concealed his identity. As a result this case remained undetected because there was no cooperation but there was an attempt to conceal the facts.
Allegations against Amit Shah in Chargesheet

At this point, Jethmalani also mentioned the allegations against Amit Shah made in the chargehseet.One, in the chargesheet there is an absurd allegation that this firing incident was done for extortion. There is no evidence to show any extortion was practiced upon Patel brothers at any time and two, another absurd allegation was there the false shooting was engineered for justifying Sohrabuddin arrest later on.

Role of Kalimuddin

At this point of time Jethmalani informed the court about the circumstances which led Sohrabudding to come out of the hiding. According to Jethmalani Sohrabuddin went underground from 8.12.2004 and he emerged in Rajasthan. Jethmalani also alleged that Sohrabuddin murdered Rauf Lala.  Jethmalani also said that Sohrabuddin was hiding in a village in MP and he did not come out unless he got the services of kalimuddin.

At this point Jethmalani informed the court about who was Kalimuddin. Jethmalani alleged that Kalimuddin was a murderer of a DIG in Andhra Pradesh and was under the protection of the state government.He had good links with IB. Jethmalani also informed the court that Kalimuddin had arranged for two tickets of the bus trying to make a point that in reality Sohrabuddin was not accompanied by Prajapati.

(Here Ram Jethmalani is also trying to convey that Kalimuddin got to know about Sohrabuddin from IB)
Fact that Tulsiram Prajapati was not an eyewitness of abduction of Sohrabuddin and Kausar Bi

(At this point Ram Jethmalani blasted CBI for fabricating evidence. He argued to prove that how the story that Tulsiram Prajapati was an eyewitness to Sohrabuddin abduction is totally false. Jethmalani told the court that the bench will be surprised to know a new fact )

Ram Jethmalani informed the court about the conduct of Sohrabuddin Sheikh during his stay with Kalimuddin. “…What did he do during the time when he stayed with Kalimuddin? During those days, he threatened the marble lobby in Rajasthan and he terrified them so much that the marble lobby agreed to pay 25 crore rupees. And who goes to collect that mony? It was Tulsiram Prajapati who was his long time accomplice. When Sohrabuddin left Hyderabad, Prajapati was no where in Hyderabad. He was sent to Bhilwada to collect the extortion money. These fabricators of evidence don’t realize what they have done to their case…” shouted Jethmalani.

Hearing this fact, Justice Alam expressed surprised that why this fact had not been mentioned earlier? To this, Jethmalani said that he came across this fact just a day before. Justice Alam said that this fact was very important

“…They have been misleading the court all along. Prajapati was not with Sohrabuddin otherwise, Kalimuddin would have arranged for three tickets but he had only got two tickets. There are witnesses in Bhilwada to prove that Prajapati was there. It was there duty to tell the court about this. They have been trying to defeat the judicial duty and commit a fraud on the court…” argued Jethmalani.

Evidence of Azam Khan

(At this point of time, Ram Jethmalani informed the court how the evidence of Azam Khan was created)

Jethmalani informed the court that Prajapati was arrested in Bhilwada and was sent to Udaipur Jail. In that jail another criminal Azam Khan was there. Azam was promised that they will be helped in criminal cases against them if he deposed against Amit Shah.

(Azam Khan had told in his statement that Tulsiram Prajapati had told him that he, Prajapati, felt guilty and thinks that Sohrabuddin died because of him.)

Jethmalani questioned the testimony of Azam Khan saying where did Prajapati told Khan that he was travelling with Sohrabuddin and he was an eye witness to the abduction of Sohrabuddin and Kausar Bi. Jethmalani also brought it to the notice of the court that Prajapati wrote letters to NHRC and the Collector fearing for his life.

“...Even in those letters, Prajapati has mentioned nowhere that he was a witness to the abduction of Sohrabuddin and Kausar Bi. He was asking for protection but nowhere has he mentioned my name. This gentleman never claimed to be an eyewitness and to link him to the encounter is totally wrong. This excludes the possibility of he being an eyewitness...” said Jethmalani.

What Azam Khan says about the encounter? Azam says that Tulsiram Prajapati was feeling guilty. Azam Khan should have a defense witness rather than a witness for the prosecution. Azam Khan says that it was Sohrabuddin who arranged for the shooting at Popular Builders and Sohrabuddin is not the person who is unknown to Patel brothers. Why did they file a false FIR? The real fact is Sohrabuddin wanted to recover some money from Patel Brothers and he only wanted to terrify them rather than killing them.

Azam Khan proves that FIR filed by Patel brothers was false and intended to conceal Sohrabuddin’s reasons for doing so. In fact the Gujarat Police has filed a case under section 179 for filing a false FIR.

Arguments Concluded for the day.

Important matters coming up for hearing in Supreme Court on 23.11.2011

Court 1/5 CPIL vs Union of India (PIL)

Court 1/ 8 People's rights and Social resp Center vs Union of India (PIL)


Court 2/2 Soni Sori vs State of Chattisgarh (Soni who is alleged to have links with Naxals has alleged torture in the hands of Chattisgarh police)

Court 5/101 Bombay Blasts of 1993

Court 6/1 Ratan Tata vs UOI (Matter asking that Radia tapes should not be made public)

Court 7/1 CBI vs Amit Shah (CBI praying to SC that bail granted to Amit Shah should be cancelled)

Court 11/1A Judgment on the bail applications of corporates accused in 2G scam (Hari Nair, Surender Pipara, Vinod Goenka, Sanjay Chandra and Gautam Doshi)

Note : For quick reference to the arguments on behalf of all these corporates you can refer to the following link http://spreadlaw.blogspot.com/2011/10/arguments-in-sc-on-bail-applications-of.html

Jethmalani demolishes CBI claim that Prajapati was eyewithness of Sohrabuddin encounter

Amit Shah's lawyer Ram Jethmalani today demolished the CBI claim that Tulsiram Prajapati was an eyewitness to the fake encounter of Sohrabuddin Sheikh. While advancing his arguments before a bench of Justice Aftab Alam and Justice Ranjana Desai accused the CBI of fabricating evidebce to implicate former Gujarat Home Minister Amit Shah.

Continuing his arguments through out the day, Jethmalani ridiculed CBI by saying ''...These fabricators of evidence do not know what they have done to their case. They have been misleading the court all along. Tulsiram Prajapati was not with Sohrabuddin but he was in a jail in Rajasthan...''.

While citing the letters written by Prajapati to NHRC, Jethmalani claimed that there is no evidence to suggest that Prajapati was an eyewitness to the encounter. He also referred that the statement of Azam Khan, on which the CBI is relying heavily, saying that Azam Khan should have been a defence withness. Azam Khan in his statement had told the CBI that Prajapati felt guily and responsible for the death of Sohrabudding. And according to Jethmalani this statement of Azam Khan does not indicate that Prajapati was an eyewitness.

Defending his client Amit Shah, Jethmalani also accused Patel Brothers of misleading Gujarat Police. ''...There was an incident of firing at the office of Patel brothers and they know Sohrabuddin was behind it but they never informed the police about it. Sohrabuddin wanted to recover some money and he wanted to terrify Patel Brother rather than killing them. This is an absurd argument that Amit Shah arranged that firing so that can be used as a justification for encountering Sohrabuddin...'' argued Jethmalani.

During the arguments, Jethmalani also placed before the court various judgments of the apex court. According to these judgments bail and no the jail is the golden rule for Criminal Jurisprudence in India.

Hearing in the matter shall continue on Wednesday.

Arguments of Ram Jethmalani in SC in Ramlila Maidan incident case on 21.11.2011

Bench of Justice B S Chauhan and Justice Swatantra Kumar

Ram Jethmalani resumed his arguments in the case of Delhi Police crackdown on Ramlila Maidan on 4^th June this year. Starting his arguments before a bench of Justice B S Chauhan and Justice Swatantra Kumar, Jethmalani argued on use of Section 144, whether Delhi Police could withdraw the permission granted to Baba Ramdev, background of Ramdev’s movement against corruption, MCD’s power to cancel permission, affidavit of Delhi Police and role of Home Minister P Chidambaram.

Section 144 of Criminal Procedure Code

Jethmalani resumed his arguments of power of the police to use Article 144 of the Criminal Procedure Code.  Jethmalani pointed out the conditions under which this section can be used by the police. According to Jethmalani, section 144 can only be used in cases where there is a need for immediate prevention and there is a need for speedy remedy.  Jethmalani reiterate that section 144 can not be used for dangers which are foreseen in future but only in cases of imminent dangers. Jethmalani went on to say that the order issued under section 144 must prescribe the material facts.

Jethmalani went on to say that order under section 144 can only be used for two things; first is to direct any person to abstain from any particular act and second is to ask a person to take certain orders regarding certain property under his management.“…In this case, the only act people were doing was breathing. Section 144 can only be used if a person is interfering with the rights of any other person. In this case, there is nothing like this. Usually politicians attract section 144 and not the teachers of Yoga. This order is perverse and dishonest.” argued Jethmalani.

At this point Jethmalani also cited a Supreme Court judgment on this issue. 1970/3/SCC/746. According to the said judgment section 144 can be used in cases where emergency must be sudden and the consequences are grave. Without this there is no justification to use power under section 144.

Whether Delhi Police could withdraw permission given to Baba Ramdev

Taking his arguments forward, Jethmalani pointed towards the act of police to withdraw permission from Baba Ramdev to hold his protest at Ramlila Maidan. Jethmalani enumerated few points before the bench. According to Jethmalani, it was the MCD which is the owner of Ramlila maidan and MCD as a matter of routine and not law, asked the Bharat Swabhiman Trust to get a NOC from Delhi police. According to Jethmalani , Delhi police promptly gave the NOC but with the some conditions. Accordingly,

1.       They were instructed not to obstruct the flow of traffic

2.       They were to get the permission from the owner that is MCD

3.       They were asked to deploy sufficient number of volunteers to manage the crowds at the venue

4.       And they were asked to follow conditions imposed from time to time otherwise the NOC would be revoked

Jethmalani pointed out that even MCD objected to the fact that Delhi Police had claimed that they shall be at liberty to cancel the permission if any of the conditions were not met.

At this point, Justice B S Chauhan inquired from Ram Jethmalani if police had the power to revoke the permission granted under any statute? Jethmalani informed the court that police had no power to revoke the permission as it was MCD which could have done it.

Background of Baba Ramdev’s movement against corruption

At this stage, Ram Jethmalani took the court to the background of the movement against corruption. According to Jethmalani Swami Ramdev had been working tirelessly to bring back black money stashed abroad.

“…This is not the first time Ramdev organized a fast. He travelled length and breadth of the country. Even the Prime Minister had written back to Ramdev regarding the government’s efforts to bring back black money stashed abroad…” informed Jethmalani. Jethmalani also brought to the notice of the court how Ramdev was persuaded by the police not to hold his fast at Jantar Mantar. Jethmalani informed the court that Ramdev had the permission to hold Satyagraha at Jantar Mantar also.

According to Jethmalani government was not serious about efforts to bring back black money and the idea was to crush the movement. Jethmalani also mentioned that government had filed a SLP in the Supreme Court against the order to appoint a SIT to monitor government’s efforts to bring back black money. “…They knew names of these dacoits will manifest and they will join the wonderful inmates who have assembled in the Tihar Jain right now…” said Jethmalani.

At this point of time, Jethmalani mentioned failure of the then Home Secretary to file an affidavit on the entire incident. According to him “…The home secretary is too honest to file an affidavit. He has retired, if he was in service, he might have succumbed to the pressure…” Jethmalani also referred to a secret report of the Delhi Police filed in a sealed cover before the Supreme Court. Surprisingly, Jethmalani had the copy of it. While trying to demolish the contents of the said report he said in a lighter vein that a stolen evidence is also a good evidence. He also mentioned about that report which stated that as per reliable inputs, Sadhus will come and the total number of people gathering might be more than one lakh. According to the said report, the Satyagraha will shift from Ramlila Maidan to Jantar Mantar and Ramlila Maidan would be used for mobilization.

Procedure for cancellation of permission by MCD

At this point of time, Ram Jethmalani informed the court about the procedure by which MCD can revoke the permission granted to anyone. Accordingly, the MCD can only cancel the permission on the recommendations of District Commissioner who will decide after a proper hearing. “…Even the MCD could not have done it at middle of the night and the police officers did it. Actually it was police who constituted illegal assembly that night. I don’t know if the sleeping people could constitute assembly ….” argued Jethmalani.

Affidavit of Delhi Police

At this point of time, Ram Jethmalani tore apart averments made in the affidavit filed by Delhi Police. Jethmalani argued that in the affidavit, there are references to the effect that the local people living in the vicinity of Ramlila Maidan are terrorists.  Jethmalani slammed the apprehensions of Delhi Police that someone might smuggle a bag of explosives at the venue and there might be a loss of life and limb. Jethmalani also blasted Delhi Police for mentioning Gujarat riots. “…they are now talking of 2002 riots in 2011, all for the purpose of elections. Earlier we used to have a saying that power corrupts and absolute power corrupts absolutely but now we have a saying that power corrupts and fear of losing power corrupts absolutely…” argued Jethmalani.

Order Passed under Section 144

Jethmalani also attacked Delhi Police for poorly drafting order under Section 144. “…If they were apprehensive of a terrorist attack then this is a material fact. Where has this been stated in order under Section 144? This order doesn’t comply with the sections requirements. It is an assault on our common sense and fraud on law. We were not doing anything unlawful…” argued Jethmalani.

Role of home minister P Chidambaram

Attacking Chidambaram in the very beginning of his arugments on this point, Jethmalani said “…Home Minister is responsible for all this and the government as a whole…” Jethmalani drew the attention of the court to the press release issued by the Home Ministry on 8^th of June. According to the said release, a decision was taken that Ramdev shall not be allowed to carry on any fast or protest and shall not be allowed to stay in Delhi. “…Are we living in dictatorship or a Nazi rule that Ramdev shall not be allowed to stay in Delhi?” roared Jethmalani

Referring to an interview of Chidambaram, Jethmalani said that Home Minister said the decision in this regard was taken earlier. “…when was this decision taken? The Home Secretary was to file and affidavit but nothing has been filed. The enforcement of the order was deferred as the government was engaged in a dialogue with Ramdev, this means that the decision was taken earlier…” said Jethmalani.

At this point Jethmalani concluded his arguments and said that the people of this country shall express gratitude to the judiciary if they get what has been prayed for.

Questions raised by Judges

At this point of time, the bench asked few questions from U U Lalit who started his arguments on behalf of Delhi Police. Justice Swatantra Kumar asked Lalit to address the court on few issues like whether the use of force was justified? What were the circumstance which led to the action and why the police could not wait till the morning to ask the people to leave the venue? The bench also wanted to know when was the decision to revoke the permission granted to Ramdev was taken by Delhi Police and whether the order issued under section 144 confirms to the conditions laid down under the section.

Arguments of U U Lalit for Delhi Police

At this point of time, U U Lalit started to address the court on the circumstances which led to the Delhi Police action at Ramlila Maidan. Lalit informed the court that no violence was used and only the tear gas shells were used by the police to disburse the crowd. Lalit referred to the fact that Bharat Swabiman Trust had sought permission for not more than five thousand people and that too for holding a Yoga Shivir and not for any protest for fast unto death.

Lalit also informed about various published material of the trust which announced that Ramdev shall be sitting on indefinite fast from 4^th of June.

(Proceedings over, matter adjourned to Friday that is 25^th November 2011)

SC poses tough questions to Delhi Police in Ramlila Maidan incident case

The Supreme Court has asked Delhi Police to explain whether the use of force was justified? What were the circumstance which led to the action and why the police could not wait till the morning to ask the people to leave the venue?

The court also wanted to know when was the decision to revoke the permission granted to Baba Ramdev was taken by Delhi Police and whether the order issued under section 144 confirms to the conditions laid down under the section.

Earlier in the day, Ram Jethmalani blamed Home Minister P Chidambaram for trying to crush the rights of the ordinery people to protest peacefully. ''...Are we living under dictatorship or a Nazi rule that Baba Ramdev shall not be allowed to carry out his protest and will not be allowed to stay in Delhi?..'' roared Jethmalani.

After Jethmalani concluded his arguments, Senior Advocate U U Lalit started the arguments on behalf of Delhi police. Matter has been adjourned to coming Friday.

Important matters coming up for hearing in Supreme Court on 21.11.2011

Court 1/34 Democratic Youth Federation vs Union of India
Court 2/6 Webb construction vs UOI (fresh)
Court 3/12 Manjeet Singh Bhatia vs UOI (fresh)
Court 4/205 S D Bandi vs div traffic commissioner (illegal occupation of govt bunglows)
Court 6/50 Ghodawat Pan Masala vs UOI (might be related to Gutkha packaging case)
Court 7/201 KG Dhananjay Chauhan vs UOI (Kargil procurement scam)
Court 8/40 Delhi Wakf Board vs UOI
Court 10/9 BR Lall & ors vs UOI (fresh)
Court 11/3 Sanjeev Awasthi vs UOI Court 11/206 -- Delhi Industries Confederation vs UOI

(Note : Issues in fresh PILs will be known after the hearing)

No relief for Gujarat IPS officer Sanjiv Bhatt from Supreme Court

The apex court dismissed as withdrawn the petition filed by controversial Gujarat's IPS officer Sanjiv Bhatt. Bhatt was asking for removal of certain observation against him from the High Court's order in a matter relating to alleged custodial death 21 years ago.

The apex court refused to interfere with the High Court's order giving him liberty to challange the withdrawal of revision petition by the State of Gujarat.

In a matter of alleged custodial death in a riot case, Bhatt was made an accused but the State Government had filed the revision petition against the order of magistrate taking cognizance. But after the recent developments, the state had withdrawn the revision application. This action of the state government gave way to criminal proceedings to go on agiainst Bhatt.

A bench headed by Justice B S Chauhan refused to give any relief to Bhatt sayong he can move himself challenge the decision of the state government to withdraw the revision application.

Bhatt also wanted the protection that the observations made against him in the High Court order should not be used against him while the sessions court considers his application againt the move of the state government.

According to Bhatt, the Gujarat High court wrongly mentioned the death as custodial death. Bhatt also argued that the High Court presumed that the issue of taking Cognizance has been adjudicated upto the level of Supreme Court.

Criminal Trial in Indian Law

(Note: This is an article written for layman having no knowledge of law. If you are a lawyer or a legal expert, please feel free to point out if there is any mistake in the article. If you want to give your inputs to make this better, please leave a comment at the bottom.)

Many a times we come across the term called criminal trial. In general parlance, we understand trial means that a person is facing a case in court of law. But generally people are not aware of the process of criminal trial in India. So here is the procedure for criminal trial that generally takes place in India.

Types of Criminal Trials

Before we proceed further, we must note that according to Criminal Procedure Code, criminal trial can be of tree types namely Trial in Warrant cases, Trial in Summon Cases and Summery Trial

Trial in Warrant Cases

Warrant cases are those cases in which an offence attracts a penalty of imprisonment for more than seven years and it includes offences punishable with death and life imprisonment. In such cases, the trial starts either by filing of FIR or by filing a complaint before a magistrate. And if the magistrate finds that the case relates to an offence carrying a punishment for more than two years, the case is sent to the sessions court for trial.

Section 193 of the Criminal Procedure Code clearly states that the session court can not take cognizance of any offence unless the case has been sent to it by a magistrate. The process of sending it to sessions court is generally called committing it to sessions court.

Trial in Summon Cases

A summon case is a case which is not a warrant case. So in simple words, those cases in which an offence is punishable with an imprisonment of less than two years is a summon case. In this case, one must understand that if a magistrate, after looking into the case, thinks that a case is not a summon case, he may convert it into a warrant case. In respect of summons cases, there is no need to frame a charge. The court gives substance of the accusation, which is called “notice”, to the accused when the person appears in pursuance to the summons.

Summary Trial

Case of offenses punishable with an imprisonment of not more than six months can be tried in a summary way. It is also to be noted that if the case has been tried in a summary way, a person can not be awarded a punishment of imprisonment for more than three months.

Pretrial stages

Registration of FIR

FIR stands for first information report which is lodged under section 154 of the Criminal Procedure Code. The FIR is only the basis information which is made available to the police when a cognizable offence takes place. FIR is the first stage from which a criminal case takes the birth.

Investigation

FIR in a criminal case leads to investigation in the case. Investigation leads an investigating officer to reach to a conclusion whether a chargesheet has to be filed or a closure report has to be filed in the case. If the investigation result in discovery of an offence, a chargesheet is filed, otherwise a closure report is filed before the concerned court.

Trial

If the investigating officer finds out that a case is fit for trial then he files a chargesheet in the case.

Filing of the charge sheet

The charge sheet is the brief summary of how an offence had been committed? What was the role of each person who was involved in the crime and the sections under which the investigating officer had charged all the accused. The charge sheet also contains the names of the person who were investigated but could not be charged due to lack of evidence in the eyes of the investigating agency. Filing of the charge sheet generally means that the investigation in the case is over and now the court has to consider the evidence collected by the investigating agency. It is to be noted, that if during the course of trial, some new facts come to the light, the agency may file additional charge sheets.

Framing of charges/Serving the Notice

if it’s a summon case, a simple notice is given and a response is sought from the accused. But in warrant cases, the court frames the charges.

Framing of charges mean that the court looks into the evidence collected by the investigating agency and applies its mind so as to what are the charges under which an accused has to be booked. For example, the police has filed a chargesheet accusing a person of murder under section 302, but the court deems it proper to charge the person for culpable homicide not amounting to murder under section 304. At this stage, if an accused pleads guilty then the court will apply its judicial mind and decide the punishment accordingly. And if the accused pleads not guilty, he is informed the charges under which he would be required to face the trial.

On the other hand, if the judge finds that no offence against an accused is made out, the accused is discharged from the case. The court has to apply its mind and record the reasons for discharging an accused.

Recording of the Prosecution Evidence

After the charges have been framed against an accused, the prosecution is required to produce  before the court, all the evidence collected by the investigating agency. It is to be noted that when the investigating agency produces the evidence before the court, the evidence has to be supplemented with the statement of the prosecution witnesses (PWs). The process of recording the statement of PWs is called Examination-in-Chief. The evidence which is brought before the court and which the court considers is called “Exhibit” .  The witnesses brought by the prosecution are expected to support the case presented by the prosecution and if they fail to do so, they are declared hostile and the prosecution may request the court not to rely on the statement of such a witness.

In case the witness supports the case of the prosecution, the defense is entitled to cross examine the witness so that they could find out the discrepancies in the statement of the witness concerned. If the defense succeeds in finding the discrepancies in the statement of the witnesses, they may ask the court not to rely on the statement of the said witness.

Statement of the accused

Section 313 of the Criminal Procedure code empowers the court to ask for an explanation from the accused if any. The basic idea is to give an opportunity of being heard to an accused an explain the facts and circumstances appearing in the evidence against him. Under this section, an accused shall not be administered an oath and the accused may refuse to answer the questions so asked. The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him.

Evidence of Defense

After the statement of the accused is over, the court applies its mind and tries to find out if the accused has committed any offence or not. If the court reaches the conclusion that no offence has been committed by the accused, he is acquitted. It must be noted that while acquitting an accused, the judge is expected to give reasons for acquitting the accused.

In cases of accused not being acquitted by the court, the defense is given an opportunity to present any defense evidence in support of the accused. The defense can also produce its witnesses and the said witnesses are cross examined by the prosecution. In India, generally the defense does not provide defense evidence as the criminal justice system in India puts burden of proof on the prosecution to prove that a person is guilty of an offence beyond the reasonable doubt.

Final Arguments of both the sides

Once the defense evidence of the accused is over, the prosecution presents its final arguments. In final arguments, the prosecution generally sum up its case against the accused. After the final arguments of the prosecution are over, the defense also present its final arguments. After the final arguments of both the sides are over, the court generally reserve its judgment.

Delivery of Judgment

After application of mind, the judge delivers a final judgment holding an accused guilty of offence or acquitting him of the particular offence. If a person is acquitted, the prosecution is given time to file an appeal and if a person is convicted of a particular offence, then date is fixed for arguments on sentence.

Arguments on sentence

Once a person is convicted of an offence, both the sides present their arguments on what punishment should be awarded to an accused. This is generally done in cases which are punished with death or life imprisonment.

Judgment with punishment

After the arguments on sentence, the court finally decides what should be the punishment for the accused. While punishing a person, the courts consider various theories of punishment like reformative theory of punishment and deterrent theory of punishment. Court also considers the age, background and history of an accused and the judgment is pronounced accordingly.

Important matter coming up for hearing in Supreme Court on 16.11.2011

Court 2/301 Prashant Bhushan contempt case(3pm)
Court 5/101 Bombay Blast-93
Court 7/1 CBI v/s Amit shah , D.G.Banzara & Rubabbuddin sheikh (Sohrabuddin fake encounter case)

Important matters coming up for hearing in Supreme Court on 15.11.2011

Court 2/2. Soni Sori v/s State of Chhatisgarh (Issue of a tribal girl who alleged torture in the hands of Chattisgarh police)
Court 4/6 Taj Mahal Issue
Court 5/101 Bombay Blast-93.
Court 6/1. Devender pal singh bhullar v/s NCT Delhi
Court 7/102. Death of 25 chained inmates in Tamilnadu

Arguments of Ram Jethmalani in Supreme Court on 14.11.2011 in Ramlila Maidan incident case

By Sumit Nagpal

The case relating to Delhi Police crackdown on Baba Ramdev at Ramlila Maidan was listed in Supreme Court before a bench of Justice B S Chauhan and Justice Swatantra Kumar and Ram Jethmalani continued his arguments in the matter

Rajbala 

Ram Jethmalani focused on the injuries caused to Rajbala who lost her life because of Delhi Police crackdown at Ramlila Maidan. Jethmalani slammed Delhi Police for filing an affidavit in the apex court claiming that Raj Bala was suffering from Osteoporosis but the same Delhi Police failed to submit before the court any documents in support of their claim. Jethmalani also informed the court that Rajbala's death summery stated that a surgery was performed to repair the fracture in her spine. Jethmalani also brought to the notice the fact that her death summery mentioned the same story of Delhi Police that she may have suffered the injuries because of the stampede.

At this point, Justice Swatantra Kumar inquired from Ram Jethmalani so as to what was the cause of injury according to him? Justice Swatantra Kumar also wanted to know if any statement of Rajbala was recorded by anyone as her statement could have put some light so as to how she suffered the injuries. To this query, Jethmalani informed the court that no statement of Rajbala was recorded by the police. Jethmalani also told the court that she suffered injuries at the Ramlila ground and she was taken to hospital by the police. Injury caused in the spinal chord which led to paralysis in all the limbs. "...She died of injuries which are not self inflicted and the person who inflicted those injuries is guilty of her murder. She received injuries from lathicharge or a stone.." Jethmalani said.

Terming the police story as total concoction, Jethmalani slammed Delhi Police commissioner for writing the word "suspected" in his affidavit. "...it was the duty of the police commissioner to find out the truth and tell to the court if there was an eyewitness. How did he say this? In the death summery, Osteoporosis was introduced and in the postmortem report, there is no mention of the same.The postmortem report puts an end to the story of Osteoporosis..." (During the arguments it came out t hat Delhi Police Commissioner in his affidavit had written that he suspected that the cause of death of Rajbala was fall from the stage and stampede.)

Use of Ramlila Maidan

Starting his arguments on this point, Jethmalani informed the court that the Bharat Swabhiman Trust had paid the licence fee to the MCD and it was completely illegal for the Delhi Police to have entered Ramlila Maidan. Jethmalani informed the court that the police had made security arrangements in the area and one could not enter the premises with any weapon, firearm or a lathi in his hand. He also brought to the attention of the court to some unused bricks lying near the stage. "...It is a most ridiculous suggestion that those bricks were kept ready to attack the police..." said Jethmalani.

He also tore apart the arguments of Delhi Police which took refuge of the 2009 judgment of the Supreme Court judgment which stated that the organizers or the demonstration have to inform the police about the procession/dharna/meeting and they have to give an undertaking that there would be no weapons in the gathering.The Supreme Court judgment also stated that if the demonstrations turn violent, the police shall immediately inform the state government."...Nobody could stop us from doing what we were doing there just by citing the authority of the Supreme Court judgment of 2009. It did not fall in the category of the protests and we were not required to take permission from the police..." Jethmalani said.

Law on use of streets for demonstrations

At this point, Ram Jethmalani put light on various principles of law relating to use of streets and parks for holding public meetings, demonstrations and taking out processions.

"...You have a right to used the streets for processions. The right to use the streets for such purposes existed even before the Constitution came into existence. The state has a power to regulate with reasonable restrictions. State can not put unreasonable restrictions and can not say no to such things. The power to regulate doesn't mean power to prohibit.The public procession is prima facie legal and even if it creates temporary obstructions, it is not prohibited..." argued Jethmalani. He also said that public streets are natural places of expression of public opinion and it is a part of Indian tradition.

Section 144 of Criminal Procedure Code

Terming it as totally malafide and irresponsible use of power, Ram Jethmalani slammed the Delhi Police for invoking Section 144 of Criminal Procedure Code. Jethmalani ridiculed the language of order under Section 144 saying the order did not even stated material facts so as to from where police got the information that there is likelihood of disruption of peace and tranquility. He went on to say  "...If you fail to state the material facts, the order under section 144 is void..."

Jethmalani also informed the court that under section 144 of CrPC, the police can only direct a person from abstaining from doing a certain act. "...Does this order ask the people don't sleep? Were they causing any annoyance to anyone?.." asked Jethmalani.

Explaining section 144 of CrPC, Jethmalani said three things have to be remembered

• This section is used if there is immediate provocation and if there is a need for speedy remedy. 
• Police also have to state material facts in the order passed under section 144. and
• You can only prohibit certain acts

"...But in this case, the people were sleeping. The were neither acting, nor they intended to act in any manner, then how can you use section 144 on sleeping people. Yoga is an integral part of Indian culture and you wish to treat this activity which has to be prohibited under section 144?.." questioned Jethmalani

At this point of time, the bench rose and the matter was adjourned

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