LAW RESOURCE INDIA

Review of Rape Law

Posted in CRIME AGAINST WOMEN, RIGHT TO LIFE, VIOLENCE AGAINST WOMEN by NNLRJ INDIA on July 21, 2012
Dignity is her birthright

Dignity is her birthright

NATIONAL LAW RESEARCH DESK

The Union Cabinet today approved the proposal for introduction of the Criminal Law (Amendment ) Bill, 2012 in the Parliament.

The Law Commission of India in its 172nd Report on `Review of Rape Laws` as well the National Commission for Women have recommended for stringent punishment for the offence of rape. The High Powered Committee (HPC) constituted under the Chairmanship of Union Home Secretary examined the recommendations of Law Commission, NCW and suggestions various quarters on the subject submitted its Report along with the draft Criminal Law (Amendment) Bill, 2011 and recommended to the Government for its enactment. The draft was further examined in consultation with the Ministry of Women and Child Development and the Ministry of Law & Justice and the draft Criminal Law (Amendment) Bill, 2012 was prepared.

The highlights of the Bill include substituting sections 375, 376, 376A and 376B by replacing the existing sections 375, 376, 376A, 376B, 376C and 376D of the Indian Penal Code,1860, replacing the word `rape’ wherever it occurs by the words `sexual assault`, to make the offence of sexual assault gender neutral, and also widening the scope of the offence sexual assault.

The punishment for sexual assault will be for a minimum of seven years which may extend to imprisonment for life and also fine for aggravated sexual assault, i.e., by a police officer within his jurisdiction or a public servant / manager or person talking advantage of his position of authority etc. The punishment will be rigorous imprisonment which shall not be less than ten years which may extend to life imprisonment and also fine.

The age of consent has been raised from 16 years to 18 years in sexual assault. However, it is proposed that the sexual intercourse by a man with own wife being under sixteen years of age is not sexual assault. Provision for enhancement of punishment under sections 354 and 509 of IPC and insertion of sections 326A and 326B in the IPC for making acid attack a specific offence have been made.

RAPE LAWS RECOMMENDATION NCW

172LAW COMMISSION REPORT ON REVIEW OF RAPE LAW

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Justice barred

Posted in JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on March 15, 2012
SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

RD SHARMA IN THE TRIBUNE

Our judiciary creaking under the seemingly impossible load of cases awaiting disposal needs urgent attention if we have to avoid collapse of the system, which could put in jeopardy the whole state of orderly society.

Law courts no longer inspire public confidence, as litigants only get increasingly distant dates for their next hearings each time they approach them. The proverb “justice delayed is justice denied” too seems inadequate to describe the prevailing circumstances. Judgments come after endless wait, which ensures there is rarely any sense of satisfaction or justice. As pending cases pile up, the judicial system is not in a position to meet the challenge of arrears that have swamped courts from top to bottom.

According to the latest statistics available from the Supreme Court’s report on vacancies and pending cases, the apex court has now run up a backlog of 56,383 cases — the highest figure in a decade. The situation is similar in the country’s 21 high courts, where 42,17,903 cases are awaiting disposal. In lower judiciary, which constitutes the base of the entire judicial pyramid, the total number of such cases stood at 2,79,53,070 at the end of March 2011. And these figures do not include the cases pending in various tribunals and other quasi-judicial bodies. If those were also added to the grand total, the arrears in lower courts would well cross the figure of 3 crore, which is alarming, to say the least.

The right to fair and speedy trial holds little promise for the aggrieved who knock at the door of courts as a last resort for justice or relief. Invoking the law seems to mean only wasted years, heavy financial burden, besides emotional and physical trauma. Prolonged delays also mean high rate of acquittal in criminal cases — it is as high as 93.02 per cent in India. Unable to get justice from courts, victims often take the law into their own hands to settle scores with culprits. This only multiplies the problem of law and order, and in turn the load on courts. It has also encouraged kangaroo courts in the form of khap panchayats or lynch mobs in many parts of the country, which mete out rough-and-ready justice on the spot. The painfully slow justice delivery system also leads to corruption and lack of investment in vital economic spheres owing to uncertain contract enforcement, higher transaction costs and general inflationary bias, which the finance minister has also acknowledged.

TOO FEW JUDGES

Among other issues, inadequate judge strength at all levels is the main factor behind the delay and the resultant backlog. In proportion to its population, India has the lowest number of judges among the major democracies of the world. There are 13.05 judges per 1 million people, as against Australia’s 58 per million, Canada’s 75, the UK 100, and the USA 130 per million. In 2002, the Supreme Court had directed the Centre to raise the judge-population ratio to 50 per million in a phased manner, as recommended by the Law Commission in its 120th report. The suggestion has had little effect.

Even the existing judge strength is reduced further when judicial vacancies are not filled promptly. For instance, the Supreme Court had only 26 judges in October last year, including the Chief Justice of India, against the sanctioned strength of 31. The vacancy level in the 21 high courts of the country, if put together, is 32 per cent, with 291 posts of judge — against the sanctioned strength of 895 — lying vacant for a long time.

In subordinate courts, where we have the maximum backlog of cases, there are 3,170 posts vacant. The sanctioned strength of district judges has gone up to 17,151, according to the Supreme Court’s report on vacancies and pending cases. Filling these vacancies will have a direct impact on India’s governance indicators, improving investor sentiment and advancing economic growth.

If we look into the World Bank Institute‘s Governance Matters set of indicators specifically for rule of law, India had a percentile rank of 54.5 in 2010 (coming down from 60.3 in 2000), which compares ill to 97.2 for the Netherlands, 91.5 for the US, and 81 for South Korea. Other World Bank documents, quoting market analysts, say that it is not unusual for the first hearing in Indian courts to take six years, and the final decision up to 20 years.

SPEED UP SELECTION

The power of appointment to top judicial posts is vested in a collegium of senior judges, with the executive virtually playing second fiddle. Apart from being opaque, the system has simply failed to deliver. It is not uncommon for higher courts to remain without their full strength for months, or even more. The selection process, therefore, ought to be speeded up. Whenever a vacancy is expected to arise, steps should be initiated well in advance and the process of appointment completed beforehand. In the case of resignation or death, the selection process should come into play without delay to ensure that the Benches work with full strength. And, if the wholesome principle of merit, enunciated by the Law Commission, is accepted in principle, there is no reason why there should be any delay in determining appointments or filling vacancies.

Also, unless the judiciary is given full financial autonomy, the problem of pendency of cases or non-appointment of judges will persist. Funds are required for creating new posts of judge, increasing the number of courts and providing infrastructure. The judiciary has to petition the Law Ministry each time it needs finances, which are forever hard to come by. Less than 0.3 per cent of the Gross National Product (GNP) — or 0.78 per cent of the total revenue — is spent on the judiciary in India. This, when more than half of the amount is being generated by the judiciary itself through court fees and fines. In the UK, USA and Japan, the expenses on judiciary are between 12 and 15 per cent of the total expenditure.

Together with adequate manpower, it is imperative to simplify and reform the current procedural laws which provide ample scope to obstruct and stultify the legal process. Though of colonial antiquity and Kafkaesque obscurity and cumbersomeness, these laws have somehow survived despite their comicality in today’s eco-friendly and “paperwork unfriendly” times, a sure way to delay disposal of cases. In addition, there are myriad laws and other specious requirements, which have no relevance today, yet are frequently invoked. These must be repealed to expedite the judicial process. “Court procedure is not to be a tyrant but a servant, not an obstruction but an aid to justice, a lubricant and not a resistant in the administration of justice,” the Supreme Court has observed. After all, procedures are meant to help the law, not defeat it.

UNSCRUPULOUS LITIGATION

Impelled by the motivation of pecuniary gains, lawyers often indulge in unethical practices of stalling court proceedings deliberately. At every stage, a number of interlocutory applications are filed and adjournments on flimsy grounds sought to defeat the purpose of speedy dispensation of justice. Such is the situation that even expansion of the judicial machinery will not achieve much until rules about stay orders and adjournments are also changed to prevent lawyers from prolonging litigation. In addition, punitive fines should be imposed on unscrupulous litigants found to be abusing the process of law to discourage unnecessary or frivolous litigation and to make the judiciary self-supporting.

Instead of arguing their cases endlessly, it would be better for lawyers to present their submissions in writing to the judge so that cases could be decided on merit on the basis of documents and written submissions filed by both the parties before the judge, without the fanfare of formal court sessions and personal attendance of petitioners, respondents and lawyers. Direct written representation by the parties, rather than oral arguments spoken in the din and bustle of crowded courtrooms, would also lower the risk of miscarriage of justice. This practice, followed in the US Supreme Court (where oral arguments serve as additions to the obligatory written brief), can be easily adopted in Indian courts. Constitutional and corporate matters have little scope for courtroom histrionics.

Judges also ought to exercise restraint against the temptation of writing lengthy judgments running into several hundred pages, incorporating their social, political, economic and philosophical beliefs. The judge’s time is most precious and is paid for from the taxpayers’ money, and should not be wasted in expounding one’s personal ideologies. Justice, equity and fair play demand that judges are more crisp and precise while writing their judgments rather than rely on lengthy quotes and superfluous observations. They should deliver judgments as early as possible, instead of keeping them reserved for long durations.

AIM FOR CONCILIATION

The legal strategy for modern India should aim at conciliation and not confrontation, in keeping with our tradition of tolerance and mutual accommodation. The focus should be on “conciliatory legal realism”. A judge should not merely sit like an umpire, but participate in the efforts to iron out differences and encourage the parties to arrive at a settlement. This would help reduce the backlog of cases, avoid the multi-tier process and also lead to reconciliation of legal disputes without causing much enmity and bitterness.

However, any attempt at judicial reform, including raising the number and strength of courts, improving the selection process of judges or setting up evening and fast-track courts throughout the country to dispose of cases quickly will fail unless high courts succeed in establishing that they are reliable and just, and instil such confidence in litigants that they forgo the last resort of the apex court, except in rare cases. At the same time, if the trial courts at the grassroots level are also properly strengthened and made effective instruments of justice in the real sense, the cycle of appeal and counter-appeal could be broken and delay reduced. The litigation backlog would then melt like an iceberg in a tropical sea.

The writer is a legal consultant, and advocate at the Delhi High Court and the Supreme Court

SOURCE : http://www.tribuneindia.com/2012/20120313/edit.htm#6

Separate Investigation & Prosecution Cadre Proposed for Speedy Justice

Posted in CRIMINAL JUSTICE SYSTEM by NNLRJ INDIA on February 29, 2012

Expeditious trial of cases has to be ensured by making necessary changes in procedure. States must create a separate investigation cadre. Separate prosecution cadre is also required. This was stated by the Union Home Minister Sh. P. Chidambaram at the Consultative Committee meeting of the Ministry of Home Affairs which discussed the topic: Investigation, Prosecution & Trial – the need for revamping. He informed members that Law Commission of India has been requested to give a report on the amendments required immediately. He said the Department- related Parliamentary Standing Committee on Home Affairs while examining the Code of Criminal Procedure (Amendment) Bill, 2010 in its 146th Report has recommended that there should be comprehensive review of the Criminal Justice System and introduction of composite draft legislation for revamping of the Criminal Justice System in the country. Accordingly, Ministry of Law & Justice have been requested to request the Law Commission of India to examine and give a comprehensive report covering all aspects of criminal law, so that comprehensive amendments could be made in the various laws viz. IPC, Cr.P.C., Evidence Act, etc. It was also suggested that the Law Commission of India may also, inter-alia, take into account the recommendations made by Malimath Committee & other Committee/Commission in this regard. The recommendations of the Law Commission of India in this regard are awaited.

While initiating the discussion, the Union Home Minister said, the investigation has moved to technology based evidence, new forensic tools are used by other countries. We also need to move towards it. He said the Committee on Reforms of the Criminal Justice System, constituted on 24.11.2000 under the Chairmanship of Justice V. Malimath, former Chief Justice of Karnataka and Kerala High Courts, considered measures for revamping the criminal justice system and gave recommendations on various aspects of the criminal justice system including investigation, prosecution and the trial procedure in its Report submitted in March, 2003. Since the Criminal Law and Criminal Procedure are on the Concurrent List of Seventh Schedule to the Constitution of India and the same are administered by the State Governments, any amendment to them requires consultation with the State Governments. In view of this, the report was forwarded to the State Governments and Union Territories Administrations to obtain their views/comments.

The Law Commission of India also reviewed the Code of Criminal Procedure, 1973 in its 154th Report. The 197th Report of the Law Commission of India examined the issues relating to appointment of Public Prosecutor. The view of the State Governments/Union Territory administration on recommendation of Law Commission have been sought. Some of the issues relating to investigation, prosecution and trial procedure highlighted in these reports are:

The Investigation Wing should be separated from the Law and Order Wing. A separate wing of the investigation with clear mandate and it is accountable only to Rule of Law is the needed. The Law Commission of India specifically discussed this issue threadbare in its 154th Report and categorically recommended for separating the investigating agency from the law and order police. Placement policy of investigating staff, inadequate training, Comprehensive use of Forensic Science from the inception and problems related to Medico Legal Services were highlighted.

Several measures have been suggested to improve the quality of investigation. Interrogation centres should be set up at district headquarters in each district where they do not exist and strengthened where they exist. A mechanism for coordination amongst investigators, forensic experts and prosecutors at the State at district level for effective investigations and prosecutions should be devised. A suitable provision be made to exclude the period during which the accused is not available for investigation on grounds of health etc. for computing the permissible period of police custody. Refusal to entertain complaints regarding commission of any offence should be made punishable. Stringent punishment for false registration of cases & false complaints.

Members highlighted that the common man suffers as the manner in which police investigation is conducted is of critical importance to the functioning of the criminal justice system. A prompt and quality investigation is the foundation of an effective criminal justice system. They also raised the issue of non-registration of cases by police in some cases. On this, Sh. P. Chidambaram informed Members that in Delhi all but sensitive FIRs are on website. The members also called for separate cadres for investigation work and prosecution.

Campaign Mode Approach to Reduce Pendency in Courts

Posted in COURTS, CRIMINAL JUSTICE SYSTEM, GOVERNANCE, JUDICIAL REFORMS, JUSTICE by NNLRJ INDIA on July 1, 2011

Following is the text of the speech of Dr. M. Veerappa Moily, Minister of Law & Justice  IN Calcutta on the campaign mode approach to reduce pendency in couts:

Jawaharlal Nehru, on the afternoon of March 19, 1955, while addressing the members of the Punjab High Court at the inauguration of its new building in Chandigarh, said, “Justice in India should be simple, speedy and cheap.”  He remarked that litigation was a disease and it could not be a good thing to allow any disease to spread an then go out in search of doctors.

At a Joint Conference  of Chief Ministers and Chief Justices held on August 16, 2009, the Hon’ble Prime Minister observed :

Judicial review has breached unprecedented frontiers.  Yet, amidst such strengths, brilliance and dynamism, India has to suffer the scourge of the world’s largest backlog of cases and timelines, which generate surprise globally and concern at home.  The expeditious elimination of this scourge is the biggest challenge for such conferences and should constitute the highest priority for all of us.

The judiciary realised that one of the drawbacks of the justice delivery system was denial to the common man, of access to justice.  This truism was recognised by the judiciary and concern of the Courts in that behalf was reflected in Bihar Legal Support Society vs Chief Justice of India (1986 (4) SCC 767) where the Court said:

….that the weaker section of Indian Humanity have been deprived of justice for long, long years: they have had no access to justice on account of their poverty, ignorance and illiteracy.  They are not aware of the rights and benefits conferred upon them by the Constitution and the law.  On account o their socially and economically disadvantageous position they lack the capacity to assert their rights and they do not have the material resources with which to enforce their social and economic entitlements and combat exploitation and injustice.

To quote from the figures compiled by the Supreme court, a total of 42,17,903 number of cases were pending in the High Courts as on 30th September, 2010 comprising of 33,36,256 Civil Cases and 8,81,647 Criminal cases.   In the Subordinate Courts, this figure was 2,79,53,070 comprising 78,56,456 Civil Cases and 2,00,96,614 Criminal cases.  It is estimated that in some of the subordinate courts over 30-40 percent of arrears relate to petty cases and out of the total pending cases, 9% of the cases were pending for 10 years and above and 24% cases were pending for 5-10 years in both, High Court and Subordinate Courts.  Alarmed with the increasing number of pending cases, a Vision Statement was adopted in the National Consultation on Strengthening Judicary towards Reducing Pendency and Delays held on October 24-25, 2009.  The Statement contained a roadmap for improving justice delivery and legal reforms and steps to reduce pendency in Courts from the present 15 years to 3 years by 2012.  In the backdrop of this, a campaign mode approach is being launched from today the 1st July, 2011 till 31st December, 2011 to reduce pendency.    It is also the endeavour to dispose of long pending cases pertaining to senior citizens, minors, disabled and other marginalized group.

Though the target may not be reached in 2012, ongoing efforts to reduce pendency need to be given greater momentum, in view of the various measures initiated by the Government in recent times and the substantial funding made available.

Government had, in 2007 envisaged a programme under    e-Courts Project for computerization of 12000 Courts with a cost of         Rs. 441.8 Crores.  However, with the pace of time, the Project cost has also increased and the Government has now approved a revised cost of Rs. 935 Crores for the computerization of 12000 Courts by March, 2012 and another 2249 Courts by March, 2014.  West Bengal is one of the high performing States wherein we are aiming to complete the connectivity by July-August this year, ahead of the targeted time.  Citizen centric services will be available through this project and a national arrears grid will come into being.

The Law Commission of India in their 230th Report have taken a serious note of the ever mounting arrears in the Courts and have suggested the following measures to reverse the trend:

(i)   Grant of adjournments must be guided strictly by the provisions of Order 17 of the Civil Procedure Code;

(ii)   Many cases are filed on similar points and one judgment can decide a large number of cases.  Such cases should be clubbed with the help of technology and used to dispose other such cases on a priority basis;  this will substantially reduce the arrears;

 (iii)  Judges must deliver judgments within a reasonable time and in that matter, the guidelines given by the apex court in the case of Anil Rai v. State of Bihar, (2001) 7 SCC 318 must be scrupulously observed, both in civil and criminal cases;

 (iv) Considering the staggering arrears, vacations in the higher judiciary must be curtailed by at least 10 to 15 days and the court working hours should be extended by at least half-an-hour;

 (v)  Lawyers must curtail prolix and repetitive arguments and should supplement it by written notes.  The length of the oral argument in any case should not exceed one hour and thirty minutes, unless the case involved complicated questions of law or interpretation of Constitution;

 (vi)  Judgments must be clear and decisive and free from ambiguity and should not generate further litigation.  Lord Macaulay’s following statement made 150 years ago must be a guiding factor:

 “Our principle is simply this –

Uniformity when you can have it,

Diversity when you must have it,

In all cases, Certainty

 (vii)  Lawyers must not resort to strike under any circumstances and must follow the decision of the Constitution Bench of the Supreme Court in the case of Harish Uppal (Ex-Capt.) v. Union of India reported in (2003) 2 SCC 45;

 (viii)    Judges and Lawyers, both have to change their mindsets.  Unles the mental barriers to reforms are mellowed, all doses of external remedies are bound to fail.

One must remember Gandhiji’s words “If you want to change anything, you be the change.

 During the campaign for disposal of cases, following steps need to be taken:

(a)  All Session Trials are required to be dealt with by Fast Track Courts;

(b)  All cases where the offences are compoundable are required to be disposed of on priority basis;

(c)  All Magistrates need to be directed to dispose of the cases under Motor Vehicles Act on priority basis;

(d)  A special time-bound drive to be donducted to sispose of Summary Trials under Chapter XXI of Cr.PC by the District Judges and Judicial Magistrates;

(e)  District Judges and Chief Judicial Magistrates to take up applications for withdrawal of prosecution u/s 321 of Cr.PC on priority basis;

(f)  In Courts where criminal appeals have also been given in the cases of criminal revisions pending in any court in excess of twenty five in number to be withdrawn and transferred to courts where such appeals are below twenty five in numbers.

(g) Frame Case Flow Management Rules for the Subordinate Courts.  The Rules also provide to put the cases into three different tracks, specifying time limit for each track;

Some of the High Courts have already drawn up their plans for taking up the mission mode approach for reduction in the pendency.   Their plan consists of the following measures:

(a)   Instructed Magistrates to hold Courts in Jails for disposal of petty cases involving undertrial prisoners;

(b)   Constitute Committees at District level involving District Judge, Collector, Superintendents of Police and Jails etc. for discussing the issues relating to criminal justice system;

(c)   Notify case flow management rules;

(d)   Presiding Officers of Magisterial Courts are ordered to hold Courts on Saturdays, alternatively to dispose of petty cases under the Motor Vehicle Act, NI Act, Municipal laws and other such acts.;

(e)   District & Sessions Judges have been directed to rationalize the work load in different Courts;

 (f)     Set up Morning/Evening/Shift/Holiday Courts;

 (g)   Organise Mega Lok Adalats in each District and in the High Court during the financial year 2011-12;

 (h)   Incorporate new Rules for providing faster service of process, hearing on day to day basis, automatic termination of stay after the expiry of two months in cases seeking challenge/stay/transfer the lower court proceedings.

To facilitate the momentum for reduction in pendency, Government of India has made substantial funding.  Rs. 5000 Crores have been awarded by the 13th Finance Commission for utilisation during the next 5 years for improving the justice delivery system through setting up of morning/evening/shift courts, Lok Adalats, Mediation, etc.   Funds for infrastructural development have increased five fold in the current Budget to Rs. 500 Crores.

The Gram Nyayalayas Act, 2008 was enacted by the Government on 2nd October, 2009 to provide for establishment of Gram Nyayalayas at the grass root level to provide access to justice at the doorsteps of the citizens with a view to ensure that opportunities for securing justice are not denied to any citizen by reason of social, economic or other disabilities.  A sum of Rs. 150 Crores has been provided in the current financial year for starting the Gram Nyayalayas.  States like Madhya Pradesh, Maharashtra, Rajasthan and Orissa have already notified and operationalised them.  The Gram Nyayalayas have been envisages to grant relief to the litigants within six months of the registration of cases.

While Government of India is providing sufficient funds for speedy disposal of cases and reduction in the pendency, unless the vacancies are filled up, both in the Higher and Subordinate Judiciary, all efforts being made would not be able to bring about desired fruits.  I would, therefore, urge the Chief Justices to embark upon a plan to fill up as many vacancies in the High Court and the Subordinate Courts during this campaign mode approach for reduction in pendency.

I would like this opportunity to thank the Chief Justices and the State Governments in their approach for the Mis sion Mode Programme for Delivery of Justice and Legal Reforms which commenced on 26th January, 2010 with a view to reduce congestion in jails.   The leadership rendered by all the Chief Justices for realizing the goal and to take further steps in this regard, resulted in deciding cases of over 7.10 lakhs undertrials till 31.5.2011.  This must have brought cheers to as many families also.  I hope that the interest and the leadership shown for the cases of the undertrials by the Chief Justices and the State Governments would be carried forward during this campaign for reduction of overall pendency in the Courts which would help in mitigating the miseries of the litigants and their families.”

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

Posted in JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on December 14, 2010
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

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

Posted in CONTEMPT OF COURT, JUDICIARY, LAWYERS by NNLRJ INDIA on December 8, 2010
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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

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