When right to private defence is wrong

BY GEETA RAMASESHAN PUBLISHED IN  THE HINDU

A police claim of self-defence to justify encounter killings must be held to higher standards of proof as the force is armed and trained for combat.

The “encounter” deaths of five persons suspected of having carried out two bank robberies in Chennai is reminiscent of the Batla house encounter. It has once again focused attention on the practice of extrajudicial killings in Tamil Nadu. Reports in The Hindu indicated that the police got a tip-off about where the perpetrators were, after the photograph of one suspect appeared in the media. As a follow-up, the official version goes, policemen visited the premises where the five men were and asked them to surrender. They in turn fired on the police, which resulted in the five being shot dead. Such a construction poses many uncomfortable questions.

How was the man in the photograph identified as one of the five men in the house? Again, why did the police not wait for the men to surrender? At the time of firing there was nothing to indicate that those killed were involved in the heist. They were purported to have been identified by eyewitnesses after they were killed.

The official claim that the police had to exercise their right of self-defence as they were shot at raises more questions than answers. It sweeps under the carpet disturbing aspects about the modus operandi of the police, in instances when they seem to conduct themselves more like vigilante groups rather than as protectors of the law.

In all cases of encounter deaths, the practice is to claim that the killings were done in self-defence. Under the penal code, the right of private defence is available to all, and no distinction is made between the police and layman. However the taking away of life can be done only under exceptional circumstances. The person seeking the right of private defence must have a reasonable apprehension that the person who is killed, would have killed him or her, or caused grievous hurt, could commit rape, kidnapping or abduction.

Private defence or murder

As a necessary corollary to such defence it is imperative that there is a registration of a First Information Report (FIR) considering such a death as murder or culpable homicide not amounting to murder. In order to claim a right of private defence to cause death, the person must show that there were circumstances giving to reasonable grounds for apprehension that death, or other acts described earlier would have resulted if the right was not exercised. Courts have held that if medical examination of the person reveals superficial or simple injuries, there can be no right to private defence. The violence used to defend oneself must not be unduly disproportionate to the injury that is sought to be averted and should not exceed its legitimate purpose.

But in order to prove that it was a legitimate exercise of the right, it is necessary to have an investigation with the burden of proof shifting to the person who claims this right. This right to private defence cannot be used to punish a suspect.

However FIRs, in most encounter cases, invariably state that on seeing the police the other party opened fire with a view to kill or threatened to kill. The issue of considering whether the death was a result of private defence or was one of murder is never factored in the FIR. Family members of the deceased or human rights activists who wish to reopen such cases find it an uphill task to get even a death certificate or post-mortem report and are thwarted at every stage, often facing threats to their life.

NHRC guidelines

In response to a complaint from the Andhra Pradesh Civil Liberties Committee (APCLC) relating to encounter killings of suspected members of the Peoples’ War Group (PWG), the National Human Rights Commission (NHRC) issued a series of guidelines that required all police stations to immediately record such deaths and hand over investigation to an independent agency such as the CID if the persons concerned were from the same police station. The NHRC guidelines also directed that in cases of specific complaints of fake encounters it was necessary to register and investigate the case by a special agency such as the CID. Family members of the deceased are required to be associated with the magisterial enquiry that must be conducted in encounter deaths and prompt disciplinary action must be taken against errant officers.

While these guidelines were issued in 2003, the commission now seems to be condoning such violence. Recently, the Chairperson expressed his view that extrajudicial executions could solve law and order issues and cited examples of “encounter” deaths of persons suspected of being members of the Mumbai underworld and Maoists.

The Madurai based human rights organisation, People’s Watch, has documented at least 23 such instances in the past four years in Tamil Nadu and filed a public interest litigation seeking the appointment of a retired High Court Judge to investigate “encounter deaths” in Tamil Nadu and to register a FIR in every such case. The writ is still pending.

A lay person faces a trial if claiming right to private defence if it results in death. But despite being trained in combat and armed with weapons, those who indulge in encounters do not even face an investigation. Hence, the test for “reasonable apprehension” of imminent danger cannot be the same for such persons and needs to be addressed with a categorical shift in burden of proof in cases of such custodial violence.

(Geeta Ramaseshan is an advocate at the Madras High Court. E-mail: geetaramaseshan@gmail.com)

http://www.thehindu.com/opinion/op-ed/article2943201.ece?homepage=true

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Letter sent to former CJI had mention of Raja: Supreme Court Judge

Konakuppakatil Gopinathan Balakrishnan, Chief ...

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In an embarrassment to former Chief Justice of India K. G. Balakrishnan, Supreme Court Judge H. L. Gokhale on Tuesday contradicted his claim that he was not aware that it was former Union Telecom Minister A. Raja, who had tried to influence a Madras High Court judge in a criminal case. In a statement, Justice Gokhale, who was the Chief Justice of the Madras High Court at that time, said that in his letter to Justice Balakrishnan, the then CJI, he had clearly referred to the name of Mr. Raja.

Justice Gokhale’s statement totally contradicts Justice Balakrishnan’s claim that there was no mention of any Union Minister in the report sent by Justice Gokhale, then High Court Chief Justice, on Justice S. Reghupathi episode. “I regret to say that the allegations are absolutely incorrect,” Mr. Balakrishan had said last week referring to news reports that he had suppressed a letter purportedly written by Justice Reghupathi to him when he was the Chief Justice of India.

In a statement on Tuesday, Justice Gokhale said, “The former CJI has stated in his press conference that in my letter I did not mention the name of any Union Minister having talked to Justice Reghupathi over phone to influence him. “With respect to this statement I may point out that Justice Reghupathi’s letter was already with him and in the second paragraph thereof justice Reghupathi had specifically mentioned the name of Raja.

“I had no personal knowledge about the incident and observations in my reply wherein are in conformity with the contents of Justice Reghupathi’s,” Justice Gokhale said.

News reports had alleged that Mr. Balakrishan had suppressed that letter which had purportedly alleged that Mr. Raja had tried to influence Justice Reghupathi which cast aspersion on him (CJI) that he had committed dereliction of duty. “When this incident was reported in the media, I sought for a report from the then Chief Justice of Madras High Court Justice Gokhale and he sent me a report wherein nothing was mentioned about any Union Minister having made a telephonic talk with Justice Reghupathi to influence him,” Mr. Balakrishan had said

The truth should come out. What did the Chief Justice of India do when a High Court Judge was threatened by a Minister?

Konakuppakatil Gopinathan Balakrishnan, Chief ...

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Balakrishnan: I did not receive any letter from Regupathi when I was CJI

FROM THE HINDU

“Such reports cast aspersions on me, that I had committed dereliction of duty”

NEW DELHI: National Human Rights Commission (NHRC) chairman K.G. Balakrishnan on Wednesday denied reports in a section of the media that the former Madras High Court Judge, Justice R. Reghupathi, had written to him when he was the Chief Justice of India (CJI) alleging that the former Union Telecom Minister, A. Raja, had tried to influence him. Justice Balakrishnan also denied that he had suppressed that letter.

“Incorrect”

“Such reports cast aspersions on me, that I had committed dereliction of duty… The allegations are absolutely incorrect,” he said in a statement here. Justice Balakrishnan made it clear that he had not received any such letter or communication directly from Justice Reghupathi while he was in office.

Gokhale’s report sought

When the media reported the incident, at that time Justice Balakrishnan sought a report from the then Chief Justice of the Madras High Court, H.L. Gokhale, and the latter sent him a report wherein nothing was mentioned about the name of any Union Minister having talked over phone with Justice Reghupathi to influence him. “Therefore, there was no occasion for me to talk to the Prime Minister or to take any further action.”

‘Facts disclosed’

Justice Balakrishnan said he had disclosed these facts at the relevant time. “Moreover, if anything happened like that, which amounted to interference in the judicial function of Justice Reghupathi, he himself could have exercised his powers of contempt of court for which no permission is required from the CJI.”

‘Facts can be verified’

“It appeared that Justice Reghupathi made a statement that he reported the matter to the Chief Justice and he certainly meant the [then] Chief Justice of the Madras High Court and not the CJI,” Justice Balakrishnan said, adding that these facts may be verified.

The letter, which was written to him by Justice Gokhale, might be available in the office of the present Chief Justice, Justice Balakrishnan said.

Regupathi says he did mark a copy to CJI

Mohamed Imranullah S.IN THE HINDU

MADURAI: The former Madras High Court judge, R. Regupathi, on Wednesday said that he had written a letter on July 2, 2009 to the then Chief Justice of the High Court, regarding the attempt to influence him in an anticipatory bail case, with a “specific endorsement to forward the copy to the [then] Chief Justice of India” (CJI) K.G. Balakrishnan.

Speaking to The Hindu on the phone, Justice Regupathi said he did not make sure whether the letter reached the CJI or not because “if I had followed it up closely, people would have attributed motives against me. In fact, I avoided meeting the CJI after that even though he had come to the judicial academy in Chennai and I too visited the Supreme Court to meet my lawyer friends.”

He gave two reasons for not initiating suo motu contempt proceedings against the individuals concerned. “Firstly, the issue was so big and the person involved was the Chairman of the Bar Council of Tamil Nadu. If I had initiated contempt, then I would have been holding my own brief. At times, judges may also commit mistakes. So I was careful in not dealing with the issue myself. Secondly, I thought it appropriate that some other judge should hear the matter. Therefore, I passed a judicial order requesting the Chief Justice of the High Court to transfer the case to another Bench. Coupled with it, I also addressed a letter to him on the administrative side. Being a sensitive issue, I was very careful and I am still sure I made the right decision,” he said.

“Once a judge delivers a judgment, he becomes ‘ functus officio’ [having performed his office]. Therefore, I made my decision that the matter should be handled my some other judge and put down everything in writing to the head of the institution and left the matter at that. “Having been a criminal lawyer for nearly 30 years, I know that this was the right way to deal with such issues,” he added.

http://www.hindu.com/2010/12/09/stories/2010120955981400.htm

Counsel cannot be allowed to succeed in snatching an order in his favour by advancing threat, says Judge

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LETTER PUBLISHED IN THE HINDU

CHENNAI: This is the letter dated July 2, 2009 written by R. Regupathi, the then Judge of the Madras High Court, to the Chief Justice of the Madras High Court containing the relevant part where there is a specific reference to R.K. Chandramohan.

“On 12.06.2009, at about 2 p.m. during Lunch Recess, while I was in the Chamber, High Court, Madras, my Office Assistant, Mr. Mujibur Ali, informed me that Mr. Chandramohan, Chairman, Bar Council of Tamil Nadu, is waiting and seeking for an appointment to meet me and, immediately, I allowed him to come in. To start with, he discussed about the general subject on Advocates and so proceeding, he said that two persons, who are father and son/accused in a criminal case, are family friends of a Union Minister by name Raja, and that the petition filed by them for anticipatory bail must be considered favourably. Simultaneously, he handed over his mobile phone by saying that the Union Minister is on the line to have a talk with me. Right away, I discouraged such conduct of Mr. Chandramohan and told him that the case would be disposed of in accordance with law, if listed before me.

“Subsequently, on 29.06.2009, second anticipatory bail petition came to be filed for the same accused and on behalf of Mr. Chandramohan (counsel on record for the petitioners/accused), who was present in the court, Mr. Masood, Advocate, argued by stating that some new points need to be submitted and, for such purpose, the Case Diary must be summoned. Adverting to the counter filed by the prosecution and referring to the view I had already taken during the previous occasion and pointing out that there was no change of circumstance to positively consider the case of the petitioners, it was conveyed that there was no valid reason or ground to grant the prayer in the 2 {+n} {+d} petition. It was also observed that the counsel may argue the case in detail, however, this time orders would be passed on merits and they would not be allowed to withdraw the petition.

“Again, the counsel insisted that the case diary must be called for and the case be heard in detail with reference to the materials collected during the course of investigation. I have impressed upon the representing counsel by explicating that a like direction could be given to the prosecution only in the event of the Judge satisfying that such course is inevitable and absolutely necessary in a given situation and that, on mere demands and as a matter of routine, such exercise cannot be undertaken. At that time, Mr. Chandramohan stood up and made a similar demand and when I emphatically declined to accede to his adamant demand, he vociferously remarked that the court is always taking sides with the prosecution and not accepting the submissions made by the counsel for the accused while giving importance to the Prosecutor.

“On such pointless remark, I said that the counsel engaged to argue on his behalf has made his submission and he is not supposed to pass such slanderous and derogatory remarks; for, all these days, the court has been passing orders after hearing the parties and assessing the cases on their own merits and in accordance with law. In spite of that, Mr. Chandramohan insisted that the Case Diary must be summoned and the matter be adjourned to some other day. Since Mr. Chandramohan highly raised his voice and his approach towards the court was quarrelsome, I told him that a person like him, an advocate holding position as Chairman of a State Bar Council, should not behave in such a fashion. Still the learned Advocate was outburst and uncontrollable, and I observed that a counsel, who made an attempt to exert influence on the court by using the name of a Cabinet Minister, cannot be allowed to succeed in snatching an order in his favour by advancing threat. Due to such odd experience, I had to direct the Registry to place the papers before Your Lordship for obtaining orders to post the case before some other learned Judge.

“The case concerned was taken up at the end in the afternoon and inside the court hall, there were about 4 to 5 Advocates present and no one from the Press was there. That being so, the oral observations actually made came to be translated by the Print and Electronic Media with their own interpretations and ideas …….

“I have written this letter/report to apprise Your Lordship the actual state of affairs Involved.”

http://www.hindu.com/2010/12/08/stories/2010120857401400.htm

Court orders suspension of Chairman of Tamil Nadu Bar Council

High Court Madras

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JUDGE THREAT CASE

K.T. Sangameswaran IN THE HINDU

CHENNAI: The Madras High Court on Tuesday ordered the suspension of the membership of R.K. Chandramohan and consequently his Chairmanship of the Bar Council of Tamil Nadu and Pondicherry (BCT) forthwith for an alleged attempt to influence a High Court Judge using the name of the then Union Minister A. Raja in a matter relating to an anticipatory bail plea.

In its 78-page common order on two public interest litigation petitions, a Division Bench comprising Justices F.M. Ibrahim Kalifulla and M.M. Sundresh said that apart from attempting to influence the Judge R. Regupathi (since retired), Mr. Chandramohan was stated to have behaved, in the words of the Judge, in a very unruly manner in the open court.

The Bench said the petitioner should file a formal complaint, along with the High Court order, to the BCT within two weeks. He should file a complaint copy with the Bar Council of India (BCI) simultaneously. Mr. Chandramohan should not be permitted by the State Bar Council to function as chairman pending disposal of the disciplinary action by the BCI.

In a petition, the petitioner, Elephant G. Rajendran, sought a writ against Mr. Chandramohan directing him to explain under what authority he held the office as Chairman of BCT. In the other petition, he sought a direction to the BCI to initiate appropriate action against the BCT Chairman.

The petitioner submitted that an anticipatory bail application filed by a medical practitioner came up before Justice Regupathi on June 29 last year and Mr. Chandramohan appeared on behalf of the accused. During the hearing, the Judge stated that “a Union Minister had called me to exert influence in favour of accused and to release the petitioner/accused on anticipatory bail. You yourself know everything.”

The petitioner contended that Mr. Chandramohan’s conduct in casting aspersions against the Judge was gross contempt and interfered with the administration of justice. He had used the name of a Union Minister for achieving an illegal action. Therefore, he should be disqualified from the post.

Following a direction from the Judge, the High Court Registry produced a letter dated July 2, 2009, written by the Judge to the Chief Justice of Madras High Court in which he had stated that on June 12, 2009 while he was in his chamber, Mr. Chandramohan met him and said that two persons who were family friends of the Union Minister had filed the petition for anticipatory bail in a criminal case and it must be considered favourably. He also handed over his mobile phone saying that the Union Minister was on the line to talk to the Judge.

Right away, the Judge said, he discouraged such conduct and told Mr. Chandramohan that the case would be disposed of in accordance with law. On June 29, in the open court the advocate vociferously remarked that the court was always taking sides with the prosecution and not accepting the submission made by the counsel for the accused in the case while giving importance to the prosecutor. Later, the Judge directed the Registry to place the papers before the Chief Justice for posting the case before some other Judge.

In its order, the Bench said there was no reason to doubt the veracity of the Judge’s statement in the absence of allegations of ill will or mala fides against the Judge. The conduct of the BCI Chairman in having maintained silence in his counter affidavit went to show to a very large extent that in effect he admitted the allegations. He neither repented nor displayed any conduct of remorse. If really such an incident had not taken place, the first person to have refuted the Judge’ s statement should have been Mr. Chandramohan.

The Bench observed that the Judge’s reaction was much more courteous than was expected. What had been alleged against Mr. Chandramohan by the Judge did call for stringent action at that point of time itself by handing him over to the appropriate authorities. Unfortunately, Mr. Chandramohan instead of realising the Judge’s magnanimous attitude displayed a much more disastrous attitude by behaving in an unruly manner in the court hall when the Judge had no other option except to reveal in the open court the monstrous and unpardonable behaviour of the advocate.

It said the magnitude of the behaviour of Mr. Chandramohan “was unprecedented and the same had to be dealt with an iron hand to ensure that such a behaviour was not even dreamt to be attempted by any other unscrupulous element under the garb of wearing the glorious robes of an advocate.”

Having regard to the order passed and directions issued, the Bench said it was not now inclined to take any proceedings for contempt.

http://www.hindu.com/2010/12/08/stories/2010120857391400.htm