Indian Criminal Justice System reform

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Pranay
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Re: Indian Criminal Justice System reform

Post by Pranay »

http://www.nytimes.com/2012/12/23/world ... world&_r=0
But India’s criminal justice system, which is riddled with incompetence, corruption and political meddling, seems unable to respond effectively. Police officers often buy their posts, and they are given minimal training and rely on bribes for much of their income. Indeed, one of India’s abiding mysteries is why it has yet to suffer the kind of explosion of violence seen in other emerging countries like South Africa, Brazil and Venezuela.
Rishirishi
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Re: Indian Criminal Justice System reform

Post by Rishirishi »

Sallu bhai is out making movies........ anyone remember.
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Re: Indian Criminal Justice System reform

Post by chaanakya »

Yes, some changes are suggested in Motor Vehicles Act but as you know only High and Mighty have such privileges so it would take time to amend fully. It might get treated as Culpable Homicide and if under influence of liquor then culpable murder with Life Sentence RI.
chaanakya
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Re: Indian Criminal Justice System reform

Post by chaanakya »

Here is the piece of CrPC which needs serious reconsideration and amendment and power of the Court to reduce sentencing need to be curtailed.

The Code of Criminal Procedure, 1973 (CrPc)

31. Sentence in cases of conviction of several offences at one trial.


(1) When a person is convicted at one trial of two or more offences, the court may, subject to the provisions of section 71 of the Indian Penal Code (45 of 1860), sentence him for such offences, to the several punishments, prescribed therefor which such court is competent to inflict; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the court may direct, unless the court directs that such punishments shall run concurrently.

(2) In the case of consecutive sentences, it shall not be necessary for the Court by reason only of the aggregate punishment for the several offences being in excess of the punishment, which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher court:

Provided that-

(a) in no case shall such person be sentenced to imprisonment for a longer period than fourteen years;

(b) the aggregate punishment shall not exceed twice the amount of punishment, which the court is competent to inflict for a single offence.

(3) For the purpose of 'appeal by a convicted person, the aggregate of the consecutive sentences passed against him under this section shall be deemed to be a single sentence.




Indian Penal Code (IPC)
Section 71. Limit of punishment of offence made up of several offences


Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such his of­fences, unless it be so expressly provided.

1[Where anything is an offence falling within two or more sepa­rate definitions of any law in force for the time being by which offences are defined or punished, or

where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence,

the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences.]

Illustrations

(a) A gives Z fifty strokes with a stick. Here A may have commit­ted the offence of voluntarily causing hurt to Z by the whole beating, and also by each of the blows which make up the whole beating. If A were liable to punishment for every blow, he might be imprisoned for fifty years, one for each blow. But he is liable only to one punishment for the whole beating.



(b) But if, while A is beating Z, Y interferes, and A intention­ally strikes Y, here, as the blow given to Y is no part of the act whereby A voluntarily causes hurt to Z, A is liable to one punishment for voluntarily causing hurt to Z, and to another for the blow given to Y.
This needs to be seriously modified. The Criminals could come out of Jail after 14 years and with remission and premature release they would be out in even less than that. If a person commits crime at the age of 20 years and within 34 years of age he would be out of Jail and in the prime of his life. He would have, by this time , learned all trick of his trade ( Jail is often termed as University of Crime) and such a person would prove to be more menace to the society.
For remission and premature release , opinion of Victim family should be mandatory. Without their consent no remission/release be granted.( separate discussion needed for Jail Laws which are in executive domain). In Tamilnadu Murder convicts are released after 10 years except in certain cases.

The limit of 14 years should be removed. The proviso (b) should also be removed or reworded. The power of the court to direct the sentences to run concurrently should be taken away.

The whole sentencing provision is very criminal friendly. Needs to change and change fast.
chaanakya
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Re: Indian Criminal Justice System reform

Post by chaanakya »

Here is one citation in which SC , upon appeal by the Convicts accused of Kidnapping of two young boys who subsequently died, reduced the sentence invoking section 31 of CrPC.

Chatar Singh Vs. State of M.P [2006] Insc 863 (24 November 2006)

S.B. Sinha & Markandey Katju S.B. Sinha, J.

Interpretation and application of Section 31 of the Criminal Procedure Code, 1973 is involved in this appeal, which arises out of a judgment and order dated 3rd February, 2004 passed by a learned Single Judge of the Madhya Pradesh High Court at Jabalpur in Criminal Appeal No.2665 of 1998.


In view of the question involved herein, we need not dilate on the factual matrix of the matter in great details. Suffice it say that the appellant herein was proceeded against in a case involving kidnapping of two boys Sudhir Kumar and Sushil Kumar, aged about 10 to 12 years. They were sons of Ramakant Katiyar (P.W.6). They had gone to attend school at about 7.30 in the morning of 29th December, 1994. They were to return at about 1.30 p.m., but, when they did not return till 5.30 p.m., a search for them was made. After the informant came back home, he was informed by his wife that one of the classmate of the boys, namely, Gulabchandra Gour (P.W.7), had delivered his school bag informing that Satyendra (P.W.10) had asked him to do the same. P.W.6 went to the house of Satyendra to make inquiries about his son and came to learn that victim Sudhir Kumar had come to his house and handed over the bag stating that he was proceeding towards the farm. A First Information Report was lodged. Allegedly, the Chowkidar of the school, namely, Ramesh Kumar (P.W.8) discovered certain wearing apparels as also a letter demanding ransom of Rs.2,000/-. He handed over the trouser and the letter to the police. On the next day, one Prakash Chandra Sharma came to the house of Ramakant and stated that he had found a letter in which it was stated that P.W.6 had committed a grave error in intimating the police. Therein it was, allegedly, mentioned that dead body of Sunil Kumar was thrown in the 'nallah' behind the 'durgha'. A search was made, but the dead body was not found. Allegedly, a demand of Rs.10,000/- towards ransom was made by a letter, which was marked as Exhibit P/10. On 6.1.1995, a dead body was recovered, which was ultimately found to be that of Sushil Kumar. P.W.6 received another letter on 17.1.1995, whereby he was asked to pay a sum of Rs.20,000/-. In that letter it was said to have written that if the said amount was not paid, Sudhir Kumar would be similarly dealt with. The dead body of Sudhir Kumar was thereafter found. During investigation, appellant was apprehended and ultimately, he was prosecuted for alleged commission of offences under Section 302, 201, 364, 365 and 120-B of the Indian Penal Code, 1860 ('IPC', for short). The learned Trial Judge opined that there was no material on record to show that the victims were killed by the appellant. It was further not found that they were kidnapped for obtaining ransom or for murdering them. However, two letters were found to have been written by the appellant. He, therefore, convicted the appellant for commission of offences punishable under Sections 364 and 365 read with Sections 120-B and 201 of the Indian Penal Code and passed the following sentences :

"U/S. 364 IPC R.I. for 10 years, U/S. 364 IPC R.I. for 10 years, U/S. 365 IPC R.I. for 4 years, U/S. 365 IPC R.I. for 4 years, U/S. 120-B IPC R.I. for 5 years, U/S. 120-B IPC R.I. for 5 years, U/S. 201 IPC R.I. for 2 years." On appeal, the High Court accepted that the prosecution could not establish that the boys were murdered by the appellant, but the finding of the learned Sessions Judge as regards involvement of the appellant for alleged commission of an offence under Section 364 was upheld, stating :

"...In the present case the accused was responsible for abducting to young children. The learned trial Judge might have acquitted him of the offence punishable under Section 302 of the IPC but the fact remains because of such abduction the young boys lost their lives. If they would not have been abduction (sic) their life-sparks would not have been extinguished and they would have in ordinary course of nature blossomed into young men and their parents would not have suffered agony and anguished for the loss of their lives. When there is such act by the accused, it not only projects ruthlessness and totally insensitive proclivity but also creates a fear in the mind of the society. A person who creates phobia in the mind of collective, cannot be leniently dealt with.

Keeping in view the totality of circumstances and regard being had to basic conception of victimology, I am inclined to hold that the sentences which have been directed to run consecutively in respect of the offence under Section 364 of the IPC, should be maintained and accordingly it is so directed. As far as sentence in respect of other offences is concerned, the same would be concurrent. Thus, the total period of the rigorous imprisonment would be 20 years." Mr. T.N. Singh, learned counsel appearing on behalf of the appellant would submit that the learned Trial Judge as also the High Court committed an error in sentencing the appellant to undergo 20 years' Rigorous Imprisonment in view of Section 31 of the Criminal Procedure Code. It was pointed out that the appellant had already been in jail for a period of more than 12 years. The appellant, as noticed hereinbefore, was charged both under Section 364A IPC as also 102B IPC. He was not found guilty of any of the said charges. He was charged only under Sections 364 and 365 of the Indian Penal Code. The maximum sentence which could be imposed under Section 364 was 10 years and under Section 365 was 7 years. Fine could also be imposed, but the same has not been done.

We, although, appreciate the anxiety on the part of the learned Sessions Judge as also the learned Judge of the High Court not to deal with such a matter leniently, but, unfortunately, it appears that the attention of the learned Judges was not drawn to the provision contained in Section 31 of the Criminal Procedure Code. The said provision reads thus :

"31. Sentence in cases of conviction of several offences at one trial.

(1) When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of section 71 of the Indian Penal Code (45 of 1860), sentence him for such offences, to the several punishments prescribed therefor which such Court is competent to inflict; such punishments, when consisting of imprisonment to commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently.

(2) In the case of consecutive sentences, it shall not be necessary for the Court by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher Court:" Provisos appended the said Section clearly mandate that the accused could not have been sentenced to imprisonment for a period longer than fourteen years.

Learned Sessions Judge as also the High Court, in our opinion, thus, committed a serious illegality in passing the impugned judgment.

In Kamalanantha & Ors. vs. State of T.N. [(2005) 5 SCC 194], this Court, although, held that even the life imprisonment can be subject to consecutive sentence, but it was observed :

"Regarding the sentence, the trial court resorted to Section 31 CrPC and ordered the sentence to run consecutively, subject to proviso (a) of the said section." Although, the power of the Court to impose consecutive sentence under Section 31 of the Criminal Procedure Code was also noticed by a Constitution Bench of this Court in K. Prabhakaran vs. P. Jayarajan [(2005) 1 SCC 754], but, therein the question of construing proviso appended thereto did not and could not have fallen for consideration.

The question, however, came up for consideration in Zulfiwar Ali & Anr. vs. State of U.P. [1986 All.L.J. 1177], wherein it was held :


"The opening words "In the case of consecutive sentences" in sub-s. 31(2) make it clear that this sub- section refers to a case in which "consecutive sentences" are ordered. After providing that in such a case if an aggregate of punishment for several offences is found to be in excess of punishment which the court is competent to inflict on a conviction of single offence, it shall not be necessary for the court to send the offender for trial before a higher court. After making such a provision, proviso (a) is added to this sub-section to limit the aggregate of sentences which such a court pass while making the sentences consecutive. That is this proviso has provided that in no case the aggregate of consecutive sentences passed against an accused shall exceed 14 years. In the instant case the aggregate of the two sentences passed against the appellant being 28 years clearly infringes the above proviso. It is accordingly not liable to be sustained." In view of the proviso appended to Section 31 of the Criminal Procedure Code, we are of the opinion that the High Court committed a manifest error in sentencing the appellant for 20 years' Rigorous Imprisonment. The maximum sentence imposable being 14 years and having regard to the fact that the appellant is in custody for more than 12 years. Now, we are of the opinion that interest of justice would be sub- served if the appellant is directed to be sentenced to the period already undergone.

The appeal is allowed to the aforementioned extent. The appellant shall be released forthwith if not wanted in connection with any other case.
And thanks to the above Provisio , we have accomplished Kidnappers amidst ourselves threatening young children.In India , when general level or ethics and morality is suspect, it makes sense for harder/tougher laws.
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Re: Indian Criminal Justice System reform

Post by Sachin »

Looks like there may be some changes in the law, due to the sad case of Delhi Gang Rape. But hope the changes are not made in haste without due thought process. Or else we may have another Sec 498A in our law books. The law would get grossly misused by the smarter ones, while the not-so-smart and powerful may still be in the same sad situation.
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Re: Indian Criminal Justice System reform

Post by Rishirishi »

Jury or not jury.

Firstly the government must fund the courts so that they actually can try and deliver verdicts. Secondly they have to address the corruption.
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Re: Indian Criminal Justice System reform

Post by Pranay »

http://www.bbc.co.uk/news/business-20907359

This is what can happen when a nation has determination to go after tax evaders... compare this to the circus in India and the Political ring masters conducting it. And to top it all - It's Preet Bharara (http://en.wikipedia.org/wiki/Preet_Bharara) leading the charge for the US....
Switzerland's oldest bank is to close permanently after pleading guilty in a New York court to helping Americans evade their taxes.

Wegelin, which was established in 1741, has also agreed to pay $57.8m (£36m; 44m euros) in fines to US authorities.

It said that once this was completed, it "will cease to operate as a bank".

The bank had admitted to allowing more than 100 American citizens to hide $1.2bn from the Internal Revenue Service for almost 10 years.

Wegelin, based in the small Swiss town of St Gallen, started in business 35 years before the US declaration of independence.

It becomes the first foreign bank to plead guilty to tax evasion charges in the US.

Other Swiss banks have in recent years moved to prevent US citizens from opening offshore accounts.

US Attorney Preet Bharara said: "The bank wilfully and aggressively jumped in to fill a void that was left when other Swiss banks abandoned the practice due to pressure from US law enforcement."

He added that it was a "watershed moment in our efforts to hold to account both the individuals and the banks - wherever they may be in the world - who are engaging in unlawful conduct that deprives the US Treasury of billions of dollars of tax revenue".

Otto Bruderer, a managing partner at the bank, admitted that Wegelin had sheltered US clients from tax between 2002 and 2010, and said it was aware that its conduct had been "wrong".

Mr Burderer's further admission that assisting tax evasion was common practice in Switzerland has caused huge concern among the Swiss banking community, according to the BBC's Switzerland correspondent, Imogen Foulkes.

"Some Swiss financial analysts are already speculating that Wegelin's $58m fine, which many had expected to be higher, was kept low by the US authorities in return for Wegelin clearly implicating the rest of the Swiss banking community in tax evasion," she said.
The Wegelin case comes four years after a far larger Swiss bank, UBS, agreed to pay a $780m fine to US authorities related to tax evasion charges. UBS also agreed to reveal the details of US account holders.

However, UBS neither pleaded nor was found guilty. Instead it and US prosecutors came to what is called a deferred prosecution agreement, with the fine being paid in exchange for the charges being dropped.

Switzerland's other major bank, Credit Suisse - with over a trillion dollars in total assets and another trillion in clients' money - remains under investigation by the US authorities, as does another high profile bank, Julius Baer, which is about a fifth of the size of Credit Suisse, as well as 11 other mainly local, cantonal banks.
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Re: Indian Criminal Justice System reform

Post by Pranay »

http://timesofindia.indiatimes.com/indi ... 895457.cms

... and here is the echo of the above case in India.
AAP convener Arvind Kejriwal tweeted, "The Swiss bank, which allowed 100 American citizens to hide $1.2bn for 10 years, forced to close operations in US and pay heavy penalties. In contrast, India protects both the guilty Swiss bank and those who stashed their money abroad."

His colleague and AAP member Manish Sisodia added: "Oldest Swiss bank is to close permanently for allowing US black money, also fined $57.8m. Do we have any courageous leadership to Act?"
Pranay
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Re: Indian Criminal Justice System reform

Post by Pranay »

http://www.ndtv.com/article/cheat-sheet ... home-india

Congratulations to the court for sentencing the crooks... but what's with this "Chest Pain syndrome" that all the high and mighty have!!! Why can't they be provided medical services in the Jail - where they belong - rather then being shifted to "Private Hospitals"???
Former Haryana chief minister Om Prakash Chautala has been sentenced to ten years in prison along with his son, Ajay, for corruption. This means they cannot contest next year's elections in Haryana.
:D
The Chautalas were convicted last week, along with 53 others, of hiring thousands of junior teachers for government schools in exchange for bribes.
Mr Chautala, who has served five terms as chief minister of Haryana, was moved from jail to a Delhi hospital two days ago after he complained of chest pains. He was not brought from the hospital to court today. The defence lawyer had asked the court to factor in Mr Chautala's age - he is 78 - and his poor health, while deciding on the jail term.
:evil:

Compare this nonsense to the treatment that "Nirbhay?" and her male friend were subjected to in Delhi even after eventually being brought to a hospital. :(
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Re: Indian Criminal Justice System reform

Post by Pranay »

http://news.outlookindia.com/items.aspx?artid=787631

A landmark decision indeed... :D
In a verdict that can change electoral equations in Haryana, former Chief Minister Om Prakash Chautala and his son Ajay Chautala were today awarded 10 years' jail term for corruption in a teachers' recruitment scam case.

Brushing aside the violence outside the Rohini court complex by hundreds of supporters who threw petrol bombs and stones, Special CBI Judge Vinod Kumar refused to show leniency in the sentencing saying the "enormity" of the offences committed by the convicts was "enhanced" by the "brazenness" with which constitutional rights were violated. :)

The court sentenced 78-year-old Chautala, his son 51-year-old Ajay Chautala and 53 others, including two IAS officers, for various offences.

The conviction came under sections 120B (criminal conspiracy), 418 (cheating), 467(forgery), 471 (using forged documents as genuine) of the IPC and sections 13(1)(d) and 13(2) of the Prevention of Corruption Act in the case relating to illegal recruitment of 3,206 junior basic trained (JBT) teachers.

The senior Chautala was not present in the court because of his hospitalisation after being taken into custody last week, his son and all the other convicts were present in the court.

The five-time former Chief Minister, and his son Ajay are both sitting MLAs and could stand disqualified from contesting the assembly elections next year if their conviction is not stayed by a higher court.

Under the Representation of the People Act, a person convicted of any offence and sentenced to more than two years imprisonment shall be disqualified from the date of conviction and for a further period of six years after his release.

Chautala's party Indian National Lok Dal (INLD) is the largest opposition in the Haryana assembly with 30 MLAs in a House of 90 members. Today's sentencing of the Chautalas could come as a serious setback in the 2014 elections if they are not able to contest. In an essentially three-way race among Congress, INLD and BJP-Haryana Janhit Congress combination.

Apart from the Chautalas, the court awarded 10 years jail term to eight others which includes Sanjiv Kumar, the then Director of Primary Education, Chautala's former Officer on Special Duty Vidya Dhar, both IAS officers, and Sher Singh Badshami, earlier Chautala's political advisor and currently a sitting MLA.

The remaining five, including a woman, who have been awarded 10 years jail term are Madan Lal Kalra, Durga Dutt Pradhan, Bani Singh, Ram Singh and Daya Saini.

Apart from them, one convict has been handed five years and the rest 45 were given four years imprisonment.
:D

The judge in his 34-page judgement said, "The enormity of the offences under consideration today can be appreciated from the fact that the conspiracy in question took in its sweep almost all the districts of Haryana...

"The gravity of the offence further enhances in view of the reason that the brazenness with which the sacrosanct constitutional guarantee of equal opportunity in the matters of public employment to each citizen has been violated."

"Considering the enormity of the offences and the manner in which politician-bureaucrats nexus has resulted in depriving such a large number of candidates of their constitutional rights, I do not find any reason for leniency in sentencing those convicts who were masterminding the entire conspiracy or assisting them in execution of the same," the court also said.


During arguments on sentencing Chautala had pleaded for leniency on the ground of failing health as he is a diabetic patient, has 70 per cent disability in his right leg and is also suffering from various other ailments.

Chautala's counsel had also said he has clean antecedents as he has been the chief minister of Haryana for five times and "if he would have committed anything wrong, public would not have voted for him."

Citing Chautala's submission and medical records and his grounds for leniency, the judge said, "I find no reason not to believe the aforesaid submissions of the counsel for the convicts. However, these aspects are not relevant to the question of the quantum of sentence. The releavant points for considering the sentence are the circumstances attending the offence." :D

Earlier in the morning, much before the court was to pronounce the sentence, hundreds of INLD supporters clashed with police which used batons and teargas to stop them outside the complex where barricades were set up to prevent them from entering.

The supporters hurled bottles of petrol bombs into the court complex but none was injured.

The court also imposed a fine of Rs 2,000 on Chautala senior and Sanjiv Kumar, Rs 1,000 on Ajay Chautala, Vidhya Dhar and Sher Singh, and Rs 1,200 on the other five sentenced to 10 years imprisonment. A fine of Rs 400 was imposed by the court on the remaining 45 convicts, including 16 women.

During the sentencing, Ajay Chautala's son had come to the court complex with a large number of supporters.

Meanwhile, the court rejected the plea for leniency advanced by convict Vidya Dhar, who has also been sentenced to ten year imprisonment, that he never benefitted from the scam and that even his relatives were not selected.

"Those who host a lunch will have to pay the bill, even if they themselves are on fast. Needless to say that they also serve, who stand and wait silently," the judge said.
:rotfl:

Others who were sentenced to ten years in jail -- M L Kalra, Durga Dutt, Bani Singh, Daya Saini and Ram Singh -- had also argued that their role is only in respect of their respective districts and therefore they cannot be compared with those who planned the conspiracy.

"I disagree with the submission. If you have jumped in a cesspool, you are in it. It does not matter whether you are in the centre or the corner of it," the judge said.
:rotfl:

The court also rejected the pleas for leniency put forth by convict Pushkar Mal Verma and Durga Dutt Pradhan who claimed that they never prepared the false list of candidates but later came with written submission as to how the incident took place and admitted that they were under no pressure to sign the list but the interview marks were filled later on.
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Re: Indian Criminal Justice System reform

Post by ramana »

When will Lalu Prasad get hsi due for the fodder scam or is justice only for anti-INC folks!
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Re: Indian Criminal Justice System reform

Post by nawabs »

Rarest of rare test needs society's approval: Supreme Court

http://post.jagran.com/rarest-of-rare-t ... 1360498507
The 'rarest of rare case' test is not 'judge centric' but depends on the perception of society and whether it would approve the award of death sentence to those convicted in certain types of crimes, the Supreme Court has held.

"Courts award death sentence, because situation demands, due to constitutional compulsion, reflected by the will of the people, and not judge-centric," a bench headed by Justice KS Radhakrishnan said.

"To award death sentence, the aggravating circumstances (crime test) have to be fully satisfied and there should be no mitigating circumstance (criminal test) favouring the accused. Even if both the tests are satisfied as against the accused, even then the court has to finally apply the rarest of rare cases test, which depends on the perception of the society and not judge-centric, that is whether the society will approve the awarding of death sentence to certain types of crime," the bench also comprising Justice Dipak Misra said.

The observations were made in a judgement by the apex court which commuted the death penalty awarded to two men for hacking to death four members of a family in August, 2000 over a property dispute, in Punjab. The apex court modified their punishment to life imprisonment of 30 years, saying "so far as this case is concerned the extreme sentence of capital punishment is not warranted".

SC in its judgement observed that while awarding death sentence, the court has to look into variety of factors like society's abhorrence, extreme indignation and antipathy to certain types of crimes.

Gurvail and Satnam Singh were awarded death penalty by a trial court in 2000. The punishment was upheld by the Punjab and Haryana High Court in 2005. The court while modifying their punishment said, "Some of the mitigating circumstances, as enunciated in Machhi Singh case, come to the rescue of the appellants. Age definitely is a factor which cannot be ignored, though not determinative factor in all fact situations. The probability that accused persons could be reformed and rehabilitated is also a factor to be borne in mind."

Gurvail was 34-years-old at that time of committing the crime, while Satnam was 22-years-old. The apex court in its 13-page judgement also observed that while awarding death sentence, the court has to look into variety of factors like "society's abhorrence, extreme indignation and antipathy to certain types of crimes like rape and murder of minor girls, especially intellectually challenged minor girls, minor girls with physical disability, old and infirm women etc.", and clarified that the examples are illustrative and not exhaustive.
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Re: Indian Criminal Justice System reform

Post by Pranay »

http://india.blogs.nytimes.com/2013/05/ ... ?ref=world
NEW DELHI —India’s premier federal investigation agency, the Central Bureau of Investigation, was reprimanded by the Supreme Court on Wednesday over the agency’s initial investigation into corruption allegations regarding the government’s allocation of coal blocks.

The agency, also known as C.B.I., admitted in court that it shared its reports with the law minister, senior officials of the Ministry of Coal and the office of the prime minister and incorporated changes suggested by them.

The C.B.I. is under the administrative control of the central government, which opens itself up to criticism that the agency often compromises its corruption investigations of government officials. During the last decade, at least four former directors of the agency were given high-level government positions, with ministerial perks. India Ink spoke to four former directors and joint directors on this issue, and what they think should change:

Vijay Shankar, former director of the C.B.I.:

The C.B.I. cannot be seen in isolation of the criminal justice system. There is a complete collapse of the criminal justice system, and the C.B.I. is the part of that system. More than 35 million cases are pending in different courts, and half of them are criminal cases. An investigation agency should be committed to an independent and fair investigation. It is not a question of the independence of the C.B.I. It is a question of whether you are committed to the rule of law. The F.B.I. works under the federal government, and the F.B.I. director remains in that position for 10 years, and they do a fairly independent job. The C.B.I. cannot be independent of government. It has to be under the government control because it is the government which is responsible for Parliament.

N. K. Singh, former joint director of the C.B.I.:

The institutional mechanism of the C.B.I. is not very sound. There is no independent act of the C.B.I. The C.B.I. still works under the Delhi Special Police Act of 1963. Several mechanisms introduced through court direction, like superintendence by Central Vigilance Commission, a committee to choose the C.B.I. director and a two-year fixed term. In the present arrangement, the C.B.I.’s power to take suo moto action is in a very limited number of cases. In many cases the C.B.I. needs the consent of the state and central government. In the process, many days, weeks are lapsed. In that process, the evidence is lapsed, the person concerned is alerted.

The bulk of the senior officers work with the state government. The C.B.I. needs state consent to prosecute them. Also, the C.B.I. works under the dual control of Chief Vigilance Commissioner and the government. The permission to prosecute shall be given to an independent body like Lokpal. An independent C.B.I. act shall be passed with much more sound legal powers.

R. K. Raghavan, former director of the C.B.I.:

Under present dispensation, the C.B.I. cannot be independent. It depends heavily on government for infrastructure. Also, it cannot even do a preliminary inquiry against higher echelons of government without permission. Government permission is required for first information reports, prosecution and appeal against court acquittals.

The C.B.I. needs major legal change such as a C.B.I. act to confer autonomy. Autonomy to C.B.I. is desirable if courts at all levels monitor investigations.

The C.B.I. image has certainly received a severe beating. The meeting of the C.B.I. director was not improper, but sharing the report and agreeing to changes suggested by him was a grievous impropriety. The government has bought the loyalties of some past C.B.I. directors through post-retirement jobs. I would suggest five-year tenure for the C.B.I. director, with a total ban on post-retirement government jobs.

Joginder Singh, former director of the C.B.I.:

The C.B.I. needs functional autonomy as it is given to F.B.I. and C.I.A. in U.S.A. If it is not given autonomy, all political parties will misuse the C.B.I.

The India’s election commission and comptroller and auditor general are independent. Heavens will not fall if the C.B.I. is also made an autonomous body. At present, the C.B.I. is under complete control of the central government, and no political party would like to lose that control.

At present the credibility of C.B.I. is as good as the credibility of the present day government.
Pranay
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Re: Indian Criminal Justice System reform

Post by Pranay »

http://movies.ndtv.com/bollywood/actor- ... herstories

Once again i wonder... what happens to the concept of Crime & Punishment?? This has become a circus and an eyewash for the "High & Mighty" ...
Actor Sanjay Dutt has been granted another month's leave from Pune's Yerwada Jail, after spending all of October at home in Mumbai.

Mr Dutt applied for parole on the grounds that his wife Maanyata was unwell. His parole application was sanctioned by Pune's Divisional Commissioner.

On October 1, Sanjay Dutt was granted two weeks leave on medical grounds, which was later extended by another two weeks.

He returned to jail on October 30 and told news agency PTI: "I still have a problem in my legs but it is a bit better than before. Pray for me so that I can come out soon. Happy Diwali to all."
:shock:

Jail authorities maintain that a prisoner has the right to claim leave in cases of emergency or as per their right according to the jail manual.

The 53-year-old actor is serving the remaining 42 months of his sentence for illegally possessing arms in a case related to the 1993 Bombay blasts. Earlier this year, he was convicted by the Supreme Court and sentenced to five years in prison. He has already served 18 months of his term.
... next thing you know, his poodle will catch a cold. :roll:
Pranay
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Re: Indian Criminal Justice System reform

Post by Pranay »

http://www.nytimes.com/2014/02/08/world ... ml?hp&_r=0

Posting in full - a thoroughly corrupt "system" - and what it takes to uncover the bitter truth. An object lesson for India... one shudders to think of what must be happening in the MOD...
So Many Bribes, a Greek Official Can’t Recall Them All
By SUZANNE DALEY FEB. 7, 2014

ATHENS — When Antonis Kantas, a deputy in the Defense Ministry here, spoke up against the purchase of expensive German-made tanks in 2001, a representative of the tank’s manufacturer stopped by his office to leave a satchel on his sofa. It contained 600,000 euros, about $814,000. Other arms manufacturers eager to make deals came by, too, some guiding him through the ins and outs of international banking and then paying him off with deposits to his overseas accounts.

At the time, Mr. Kantas, a wiry former military officer, did not actually have the authority to decide much of anything on his own. But corruption was so rampant inside the Greek equivalent of the Pentagon that even a man of his relatively modest rank, he testified recently, was able to amass nearly $19 million in just five years on the job.

Greeks are hardened to stories of corruption. But even they have been transfixed by Mr. Kantas’s confessions since he was arrested recently on a litany of charges including money laundering and behavior that was detrimental to the Greek state. Never before has an official opened such a wide window on the eye-popping system of payoffs at work inside a Greek government ministry. At various points, Mr. Kantas, who returned to testify again last week, told prosecutors he had taken so many bribes he could not possibly remember the details.

Mr. Kantas’s admissions, prompted by his hope that if he tells all he will be eligible for leniency under a new law, has left many Greeks hoping that they are finally witnessing the beginning of the end of the unchecked graft that helped plunge Greece into its current crisis. In the past, few officials have been convicted of corruption related charges and those who were went to jail without saying a word. There was no benefit in doing otherwise.

But as details of his back-room deals emerge, Mr. Kantas is also fueling a broader outrage here, particularly toward Germany, which has berated Greece for the financial mess it finds itself in. Mr. Kantas’s testimony, if accurate, illustrates how arms makers from Germany, France, Sweden and Russia passed out bribes liberally, often through Greek representatives, to sell the government weaponry that it could ill afford and that experts say was in many cases overpriced and subpar.

The €600,000, for instance, bought Mr. Kantas’s silence on the tanks, which were deemed of little value in any wars Greece might fight, according to Constantinos P. Fraggos, an expert on the Greek military who has written several books on the subject. Greece went ahead and bought 170 of the tanks for about $2.3 billion.

Adding to the absurdity of the purchase (almost all of it on credit), the ministry bought virtually no ammunition for them, Mr. Fraggos said. It also bought fighter planes without electronic guidance systems and paid more than $4 billion for troubled, noisy submarines that are not yet finished and sit today virtually abandoned in a shipyard outside Athens. At the height of the crisis, when it was unclear whether Greece would be thrown out of the euro zone and long before the submarines were finished, the Greek Parliament approved a final $407 million payment for the German submarines.

“First, you have to blame the rotten Greek system,” Mr. Fraggos said. “But the sellers bear a very big part. They were bribing officials and lending money to an almost bankrupt country so they could sell their products.”

The Defense Ministry is hardly the only ministry suspected of being a hotbed of corruption. But the Defense Ministry makes a particularly rich target for investigators because Greece went on a huge spending spree after 1996 when it got into a low-level skirmish with Turkey over the Imia islets in the Aegean Sea.

One former director general of the Defense Ministry, Evangelos Vasilakos, calculated that Greece spent as much as $68 billion on weaponry over the next 10 years, much of it borrowed money. To win these deals, which involved the approval of military and Defense Ministry officials, as well as Parliament, arms dealers probably spent more than $2.7 billion on bribes, according to Tasos Telloglou, an investigative reporter for the Greek daily newspaper Kathimerini, who has written extensively on the subject.

Mr. Kantas, he said, could not make deals, but had the power to disrupt deals because he was considered knowledgeable about weaponry. “He was basically a toll station,” Mr. Telloglou said.

Mr. Fraggos and other experts worry that the prosecution team behind Mr. Kantas’s arrests is being starved of the resources it needs to deal with an ever-widening pool of information. The four prosecutors work in a windowless converted storage room with their desks jammed together. The unit’s chief, Eleni Raikou, appointed last August, paid for the installation of new wall outlets and light switches herself.

But the team appears undeterred. In the wake of Mr. Kantas’s first testimony in December, they have made several more arrests, including the representatives of several German arms manufacturers and a subcontractor in the German submarine deal, who recently provided prosecutors with details of the bank accounts he used to transfer about $95 million worth of “useful” payments.

In an odd twist, Mr. Kantas, 72, was apparently tripped up by his own banker, according to his lawyer, Yannis Mantzouranis. Like many other Greeks, Mr. Mantzouranis said, Mr. Kantas would bring bundles of cash to his banker, who would fly to Switzerland to make the deposits when enough cash had accumulated to make the trip worthwhile.

At one point, however, Mr. Kantas’s banker lent €500,000, about $680,000, of Mr. Kantas’s cash to representatives of the German telecommunications giant Siemens. Then, the banker allowed Siemens, which is under investigation for bribing officials over various contracts in Greece, to wire a deposit directly into Mr. Kantas’s Swiss account with Dresdner Bank.

Investigators looking into Siemens found Mr. Kantas’s name on a list of people the company had sent money to, his lawyer said. Mr. Kantas was forced to explain where the €500,000 in his account came from. At first, he told investigators it was from the sale of some paintings. But they raided the home of the supposed buyer and found evidence that the paintings had been in his possession since the 1980s.

In his various depositions since his arrest, Mr. Kantas, who was a deputy in the Defense Ministry’s procurement department, has described a tangle of bank accounts and offshore companies used to store his bribes, one named Kourkoumpini, after a Greek sweet. When the so-called Lagarde list — a roster of Greeks with Swiss bank accounts — became news, Mr. Kantas quickly moved most of his money to Singapore.

At one point, he said, even he was astounded at the money offered. One dealer promised him “3 million dollars or euros,” to support the purchase of antitank missiles, a figure he could not believe. But the dealer came through, putting some of it into his Swiss accounts and giving him €700,000 in cash, which he hid in the basement till he could get to the bank.

Prosecutors say the 2010 leniency laws Mr. Kantas hopes to take advantage of are giving them new leverage. But, they said, a plea bargaining system would be even better.

In all, Mr. Kantas admitted to taking bribes over 12 contracts, six with German companies, and two each with French, Swedish and Russian arms dealers. Some companies Mr. Kantas named have been convicted in other cases of bribery in the past. But others maintain that they have done nothing wrong. The makers of the tanks Greece bought, Krauss-Maffei Wegmann, say they are looking into the matter.

When investigators tallied up all the bribes Mr. Kantas admitted taking, they found he had still not accounted for all the money in his accounts.

Asked about this, Mr. Kantas said he had €2 million in bribes from his time in the military. On top of that, he told investigators, he invested well. “I will prove it to you when the statements from the banks come,” he said.

Mr. Mantzouranis says that his client, who is in jail awaiting trial, has met the criteria for leniency.

Law enforcement officials believe Mr. Kantas knows more and may have more money stashed away. “He gave us nothing that we did not know,” one investigator said. “He has to tell us about the rest.”
Jarita
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Re: Indian Criminal Justice System reform

Post by Jarita »

I would really like to solicit advice and inputs from people on this forum. I will be posting this same question/ point elsewhere on other threads.

To date we keep talking about the demand side evil driving human trafficking in India - the traffickers, pimps and those who transact.
However on the supply side much of the supply is not through abduction but where families actually sell their children. It is not that these families do not know what may happen to the child. It is just that abject poverty and need has created apathy. Sometimes, the drinking father needs money for the booze. The children become another thing to sell.

I want to understand the feasibility of something like this -

Those parents who sell their children for any form of labour will be
- Sterilized since they have proven themselves incapable
- Have their children seized and put in the care of the state or a reliable NGO since they will likely try and sell them again and again


Both have to go together to be a sufficient deterence in some cases and in others actually take the kids out of harms way. This may remediate the supply side problem. In the long run we have to remove poverty etc etc etc but we need this in the interim.

So my question to BRFites is
- Is this feasible within the construct of the Indian law?
- What are the issues that you see coming up?
- What could be possible modifications to address these issues?
UlanBatori
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Re: Indian Criminal Justice System reform

Post by UlanBatori »

Finally some ppl are beginning to speak out on this T. Setalwad person making a mockery of TheirHonners. When will the courts wake up and let the police do their job? I respectfully suggest that a Special Prosecutor should be appointed to investigate T. Setalwad's relationships with the Supreme Court, past and present.
Fund embezzlement case: SC refers Teesta Setalvad's case to larger bench
By PTI | 19 Mar, 2015, 12.51PM IST
A bench of justices S J Mukhopadhya (since retired)and N V Ramana had asked some tough questions to Setalvad and her husband for seeking anticipatory bail. (Ooooo!!!! :roll: Why not ask the Mumbai/Ahmedabad pandoos as the questions, hain?)

NEW DELHI: The Supreme Court today referred to a larger bench the petition filed byTeesta Setalvad and her husband seeking anticipatory bail in the case of alleged embezzlement of funds for a museum at Ahmedabad's Gulbarg Society that was devastated in the 2002 riots. The apex court, however, said that the interim order providing protection from arrest to Setalvad and her husband Javed Anand shall be extended till the larger bench takes up the matter. While referring the matter to a larger bench, a bench comprising Justices Dipak Misra and Adarsh Kumar Goel said the matter in hand raises several issues pertaining to concept of liberty in view of the offences enumerated in the case. The bench also said that among the issues that needed to be discussed included supremacy of law, value of liberty, concept of regulated liberty, anticipatory bail and issue of non-cooperation during investigation by the accused.

The two-judge bench had on February 19 reserved its order in the anticipatory bail plea of Setalvad and her husband who had challenged the Gujarat High Court order denying them the relief. The High Court in its February 12 judgement had observed that Setalvad and her husband were not cooperating in the probe and that "they cannot be armoured with full-fledged anticipatory bail when applicants did not cooperate with the investigation".

Hours after the High Court had denied them the bail, they had moved the apex court and the bench headed by Chief Justice H L Dattu had granted stay of the order and posted the matter for next day. A bench of justices S J Mukhopadhya (since retired)and N V Ramana had asked some tough questions to Setalvad and her husband for seeking anticipatory bail. It had extended the protection from arrest till February 19 when a new bench of Justices Dipak Misra and Adarsh Kumar Goel further extended the stay and reserved the judgement.

Setalvad and her husband have been booked by the Crime Branch of Gujarat Police on charges of cheating, breach of trust and under the IT Act, in a matter relating to the construction of "Museum of Resistance" in the Gulbarg Society in Ahmedabad which was hit by communal riots in 2002. The bench headed by Justice Misra had clarified that non-cooperation by Teesta a social activist, and her husband into the investigation would give liberty to Gujarat police to move application for cancellation of bail.
It had also directed the accused to hand over the list of documents sought from them by the Gujarat police to carry forward its investigation into the case.


On February 28, 2002, in the aftermath of the Godhra train burning incident, armed rioters had swooped on the Gulbarg Society and killed 69 people, including former Congress MP Ehsan Jafri.

One of the riot victims from Gulbarg Housing Society, which was burnt during the 2002 post-Godhra riots, had lodged a complaint with the Ahmedabad Police against Setalvad, Anand and two NGOs run by them - Citizens for Justice and Peace and Sabrang Trust - alleging misappropriation of funds to the tune of Rs 1.51 crore.

According to the complaint, the accused persons had collected funds in the name of converting part of the Gulbarg Society into a museum and had allegedly misappropriated funds worth Rs 1.51 crore. The accused had contended that they have been implicated in the case and were victims of political vendetta. They claimed that they were being targeted by the perpetrators of the riots. In 2006, the social activists decided to build the 'Museum of Resistance' at the site of the Gulbarg Society. Accordingly in 2009, a part of the plot was sold to Sabrang Trust. However in 2012, the idea of the museum was dropped as the prices escalated. The same was communicated to the society.

But, according to the complaint filed against Setalvad, funds were collected by her despite the idea being dropped.


Experts question SC order on Teesta's anticipatory bail plea

New Delhi, Mar 19 (PTI)Terms such as "unusual", "blunder," "non-commentable,"
"surprise" and "unfair" were used by experts on the Supreme Court's decision to refer to a larger bench the anticipatory bail plea of Teesta Setalvad and her husband in the case of alleged embezzlement of funds. Teesta's lawyer Aparna Bhat herself was surprised why the "simple" matter of anticipatory bail has been referred to a large bench. Some experts opined there was no need to refer it to a larger bench as the law is already settled on the issue of anticipatory bail by the Constitution Bench of the apex court.

Senior advocate K K Venugopal felt that there was nothing to comment on it as judges have their discretion. "Though there was nothing to refer it to a three-judge bench but I cannot comment on it," he said. Justice S N Dhingra, retired judge of Delhi High Court, however, said the apex court "jumped" into the issue in view of the profile of the accused involved in the case.

He said he wished that "the apex court should have shown same concern to every poor of the country as their appeals and bails keep pending for years".

"Supreme Court exists only for rich and influential class. It does not exist for poor whose appeals and bail applications are pending for years.

"Why is SC so interested in bail matters. It should be left to high courts and trial courts. Why SC jumps in when it comes to any VIP or influential person. Many people rot in jails for years, where is their liberty? Does the rich class only has liberty," Justice Dhingra said.


Keeping herself away from the debate of rich and poor, Bhat, who has been the advocate in Teesta's cases in the apex court, said, "I am just surprised that the matter is referred to a larger bench". "This bench itself should have done (decided the anticipatory bail)," she said on the order of the bench comprising Justices Dipak Mishra and Adarsh Kumar Goel, which came out with the order after reserving it for a month.

"It is not easy to engage lawyers in the Supreme Court. It is too much for them (Teesta and her husband Javed Anand)," she said, adding "it is not fair". Senior woman advocate Rebecca John said, "its an unusual order but I do not know the circumstances so I cannot comment on it. I do not see where is the ambiquity to refer this issue to a larger bench. I would say its unusual that the matter has been referred to larger bench," she said.

She also said that the issue of anticipatory bail has already been settled by the Constitution Bench of the apex court. Advocate M S Khan, who has been representing several terrorists including co-founder of banned Indian Mujahideen Yasin Bhatkal, Abdul Karim Tunda and gangster Abu Salem, termed the order as a "blunder" and said there was nothing to refer it to the larger bench. "Is it because some senior advocates have appeared in the matter and a socialite was involved. Such order should not have been passed," Khan said. PTI


It is crystal-clear that there seems to be pressure on the lower court judges, real or imagined, from the SC when this person comes up before them. WHY? Remember her posting the map of 'south asia' showing much of Gujarat, all of Kashmir, most of Assam, as being NOT part of India, at a time when our Jawans were dying in the heights of Kargil and Dras? That was a NON-BAILABLE OFFENCE per the rules for everyone else, but she got off absolutely free. That young woman in the Best Bakery Case gave proof that Setalwad committed fraud and perjury, but the SC put HER (the young woman) in jail instead. Something stinks to Houristan here, and even the retired judges and top lawyers are saying it in a surprisingly outspoken manner.

Time for a Petition, anyone?
chandrasekhar.m
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Re: Indian Criminal Justice System reform

Post by chandrasekhar.m »

Juvenile Justice Bill likely to be tabled in Lok Sabha this week
http://economictimes.indiatimes.com/art ... aign=cppst

NEW DELHI: A bill which seeks to try juveniles in the age group of 16 to 18 years accused of heinous crimes under laws for adults is likely to be introduced in the Lok Sabha this week.

Overruling the recommendations of a parliamentary panel for its re-examination, the Cabinet cleared Juvenile Justice (Care and Protection of Children) Bill, 2014 on April 22.

Government sources said the bill is likely to be introduced this week.

The bill states that in case a heinous crime has been committed by a person in the age group of 16-18 years it will be examined by a Juvenile Justice Board to assess if the crime was committed as a 'child' or as an 'adult'.

The trial of the case will take place accordingly by the board which will consist of psychologists and social experts.

Even ignoring whether the determination was as 'child' or 'adult', how can a trial be done by psychologiststs and social experts :shock: rather than a judge?

The legislation, which would replace the existing Juvenile Justice Act, 2000, was proposed in view of increasing number of serious offences being committed by persons in the age group of 16-18 years.

According to data from National Crime Records Bureau, crimes by juveniles in the age group of 16-18 years have increased, especially in certain categories of heinous crimes.

The number of murder cases against juveniles rose from 531 in 2002 to 1,007 in 2013.
Similarly, cases of rape and assault with intent to outrage the modesty of women have gone up from 485 and 522 in 2002 to 1,884 and 1,424 in 2013 respectively.
In 2013, 933 cases of kidnapping and abduction were registered against juveniles, which was 704 in 2012.


The growth in these crimes is shocking. :(( Note that the rape/violence against women cases have increased the most in percentage compared to others. And juveniles are into kidnapping and abduction too even though such crimes require more resources and logistics. Learning new horrible things everyday.

According to Women and Child Development Ministry, more than 250 civil society organisations, individuals and experts had given their comments on the draft Bill which were taken into consideration before giving it a final shape.

New offences, including illegal adoption, corporal punishment in child care institutions, use of children by militant groups and offences against disabled children have also been incorporated in the proposed legislation.

The amended bill also proposes to streamline adoption procedures for orphaned, abandoned and surrendered children by making mandatory registration of all institutions engaged in providing child care.
Does this also cover day care centres? If so, wondering what happens to mom and pop creches? I am sure those are not registered anywhere

The legislation proposes several rehabilitation and social integration measures for institutional and non- institutional children. It provides for sponsorship and foster care as completely new measures.
What is meant by institutional and non-institutional children here?
svenkat
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Re: Indian Criminal Justice System reform

Post by svenkat »

chaanakya ji,Yagnasri ji,legal gurus,

Why was Alistair Pereira given only 3 years imprisonment when he killed 7 people and injured 8 others?

Whats the reason behind that judgement?
svenkat
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Re: Indian Criminal Justice System reform

Post by svenkat »

http://www.thenewsminute.com/article/story-bodyguard-who-died-alone-saying-it-was-salman-behind-wheel
Actor Salman Khan’s conviction is perhaps a posthumous vindication for Ravindra Patil, the former’s bodyguard who consistently maintained until his death that it was Khan behind the wheel that night.

The Mumbai sessions court on Wednesday convicted the actor of killing one person and injuring four others in the 2002 hit-and-run case.

Patil was a Mumbai police constable who had been assigned as Khan’s bodyguard and was sitting beside the actor when he ran over five sleeping pedestrians, one of whom succumbed to his injuries.
he landmark judgement is not just a victory for the victims, but also in a way for Patil, who many feel had been let down by the judiciary and the state.

Patil, a 1998 batch constable, had been assigned as a bodyguard to the actor after he complained of threats from the underworld.

It was Patil who lodged an FIR against Khan, and in his statement to the earlier court which heard the case, said he had warned the actor to drive slowly since he was in an inebriated condition. However, Khan did not heed the warning, Patil had said.


Patil was reportedly under enormous pressure to change his statement against the actor and even went missing during the course of the trial. He had reportedly gone into hiding in order to avoid Khan's lawyers and also alleged harassment from within the police force.

Ironically, Patil was arrested in 2006 for failing to appear as a witness and in November that year he was sacked from the force.

Less than a year later, in August 2007, Patil was found on the streets near Sewri and admitted to hospital where he died in October. He had been suffering from tuberculosis for two years, and his family had abandoned him.
Mid-Day reported that Patil had told a friend two days before his death that he was saddened by the treatment he had been subjected to. “I stood by my statement till the end, but my department did not stand by me. I want my job back, I want to survive. I want to meet the police commissioner once.
chaanakya
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Re: Indian Criminal Justice System reform

Post by chaanakya »

svenkat wrote:chaanakya ji,Yagnasri ji,legal gurus,

Why was Alistair Pereira given only 3 years imprisonment when he killed 7 people and injured 8 others?

Whats the reason behind that judgement?
The sentencing within minimum and maximum punishment for a proven offence would depend on many factors during the trial which may weigh on the mind of judges.

Trail court had given sentencing to AP for the time already served in jail i.e. two months. HC enhanced to 3 yrs under section 304A.SC upheld it. AP was arguing that it was due to failure of brakes and engine etc that accident was caused and not drunken driving which may lead to charge of culpable homicide. But AP had driving license and he did not deny that he was driving the car . SC finally found that he was drunk and he lost control causing death and hence upheld three years given by HC. public outrage of trial court sentence could have weighed in.

In SK case , it was proved at the trial stage that he had no license to drive, he was drunk and that his body guard had warned him to drive slowly. Moreover his production of some person as the driver at the last moment in a ten years case might have not gone down well with the trial judge. So while he is convicted under the same section he was given higher punishment but not the maximum.

Anyway he has got interim bail due to five star lawyers arguing well in HC even before he got copy of judgement . It shows that things would sometimes turn out differently for people with money and influence as was the case with AP who was give two months by trial case initially.


I will quote some IPC sections pertinent to the drunken driving cases quoted by SC in AP case.
"S.-299. - Culpable homicide.--Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."

Section 300 deals with murder and also provides for exceptions. The culpable homicide is murder if the act by which the death is caused is done: (1) with the intention of causing death, (2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or (3) with the intention of causing such bodily injury as is sufficient in the ordinary course of nature to cause death, or (4) with the knowledge that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. The exceptions provide that the culpable homicide will not be murder if that act is done with the intention or knowledge in the circumstances and subject to the conditions specified therein. In other words, the culpable homicide is not murder if the act by which death is caused is done in extenuating circumstances and such act is covered by one of the five exceptions set out in the later part of Section 300.

"S.304A. - Causing death by negligence.-- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."

Section 336 IPC says that whoever does any act so rashly or negligently as to endanger human life or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to Rs. 250/-, or with both.

"S. 337. - Causing hurt by act endangering life or personal safety of others.--Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.

S. 338. - Causing grievous hurt by act endangering life or personal safety of others.

--Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both."
On sentencing SC observed
8. The object should be to protect society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.

9. Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result wise counterproductive in the long run and against societal interest which needs to be cared for and strengthened by a string of deterrence inbuilt in the sentencing system.

10. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong.

The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal"."
SC also observes that Traffic accident, drunken driving is major cause of death in accident case and Law makers must revisit it.
78. World Health Organisation in the Global Status Report on Road Safety has pointed out that speeding and drunk driving are the major contributing factors in road accidents. According to National Crime Records Bureau (NCRB), the total number of deaths due to road accidents in India every year is now over 1,35,000. NCRB Report also states drunken driving as a major factor for road accidents. Our country has a dubious distinction of registering maximum number of deaths in road accidents. It is high time that law makers revisit the sentencing policy reflected in Section 304A IPC.
And the role of the state that it asked no enhancement of sentence binds SC hand from enhancing it in AP case. Remember Justice RM lodha delivered the judgement. Congis were in charge of MH state. AP was a realtor family. Hence you would not find vituperative debates against his lenient sentencing . Whereas SK is perceived to be close to NaMo hence gets bail from HC and also there is scathing debates on TV.
Seven precious human lives were lost by the act of the accused. For an offence like this which has been proved against the appellant, sentence of three years awarded by the High Court is too meagre and not adequate but since no appeal has been preferred by the State, we refrain from considering the matter for enhancement.
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Re: Indian Criminal Justice System reform

Post by Karthik S »

Our judicial system is a joke. Many famous and guilty people have been let off or served negligible amount of time. Our system can only punish non-powerful, politically unaffiliated, and middle class and lower than that citizens.
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Re: Indian Criminal Justice System reform

Post by svenkat »

chaanakya ji,
thanks for the detailed and lucid post.

Basically there was a miscarriage of justice and AP got way easily perhaps because he was a member of 'mainority' and there was a Congress govt in MH and the media pimps made little noise when they should have brought attention to this gross deliquency by the prosecuting authorities.The SC, which pontificates on so many issues which is not in its legitimate domain, hid behind a technicality.
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Re: Indian Criminal Justice System reform

Post by chaanakya »

svenkat wrote:chaanakya ji,
thanks for the detailed and lucid post.

Basically there was a miscarriage of justice and AP got way easily perhaps because he was a member of 'mainority' and there was a Congress govt in MH and the media pimps made little noise when they should have brought attention to this gross deliquency by the prosecuting authorities.The SC, which pontificates on so many issues which is not in its legitimate domain, hid behind a technicality.
I am also more concerned about the hypocrisy and doublespeak practiced by Judicary. Salman Khan case is but one such example where Lawyer Harish Salve got interim bail in double quick time. You and I can not hope to get this treatment. Another case, recently, came to the notice is Teesta Seetalvad case wherein SC gave bail upon telephonic argument by Kapil Sibal. Amma was denied bail though she may not have caused death by amassing wealth. Compare these cases with the short shrift given to Prime Minister of the country when he requested SC to fast track court cases against MPs and MLAs.


MPs are not special, can't fast-track criminal cases against them: SC
NEW DELHI: The Supreme Court on Friday said that it cannot fast-track criminal cases against MPs alone, taking them to be a distinct category from other pending criminal cases.

PM Narendra Modi had asked MPs to get the pending criminal cases expedited in a bid to reduce criminality in politics.

The SC said there are several categories like women and senior citizens where criminal trial needs to be expedited.

The apex court said this fast-tracking of a few categories is not helping to speed up criminal justice system as the manpower in trial courts and infrastructure is woefully inadequate.

The SC asked the Modi government to come out with concrete proposal within four weeks, in consultation with states, on how to fast-track entire criminal justice system and not appointing a few special courts for some sensitive cases.

The SC said good governance means expeditious criminal justice delivery system. "Pendency of criminal cases for 10 years does not augur well for democracy," the SC bench said.

Declaring that there should be no space for criminals in Parliament, Prime Minister Narendra Modi had on June 11 sought the support of lawmakers to ask Supreme Court to complete trials of pending cases against MPs within a year.
SC did not look in the reasons why cases are pending for years after it is committed to trial.
--Frequent adjournments sought by lawyers and given by judiciary.
--There is no limit to how many cases one lawyer can handle effectively.
--He takes too many cases and ends up asking adjournments.
--There should be restriction on adjournments and strict timeline for completing cases.
--Attendance of witnesses are not enforced.
--There is system of oral arguments rather than written one.
--There is no system of plea bargains. There are lakhs of undertrials languishing in Jails.
-- in Most of the cases they would have served their period as undertrial more than the sentence they would get.
--Plea bargain reduces the burden .
--There is no system of compounding petty offenses except in specific laws.
--Courts take extended long vacations
--Judiciary has no system of monitoring output of a trial judges.if there is one it is not transparent.
--There are way too many levels of appeal and leave of court is granted easily.
--There should be separate apex court of appeals at Union level and state level in criminal and civil cases.
--Constitutional aspects and review functions as well as Writ/injunctions petitions of HC and SC should be handled by the present benches.
--tribunals should be abolished and instead more benches should be introduced in HC and SC to handle respective cases.
--This will lead to judges not giving favourable orders for seeking membership of chairmanship of such tribunals. for example SAT and TDSAT CAT NGT NHRC etc should become benches of respective HC/SC. They serve as post retirement sinecure for judges.
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Re: Indian Criminal Justice System reform

Post by chaanakya »

Kailash Wagh @kailashwg · May 7

@Abha_ypsingh Judge who gave interim bail to SK, used to work as Junior in @hsalve law firm! Massive conflict of interest! SC must intervene
160 retweets 49 favorites
chaanakya
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Re: Indian Criminal Justice System reform

Post by chaanakya »

Judge threatens Madras HC chief justice with contempt

Well Judges of Madras High Courts never ceases to amuse the Public with their antics. No wonder it is called Channa High Court.

NEW DELHI: Justice C S Karnan of Madras high court has plunged the HC into a huge crisis by threatening contempt of court proceedings against Chief Justice Sanjay K Kaul accusing him of interfering in his judicial work and seeking a CBI probe into alleged forged educational qualification of another Judge of the HC.

Apart from contempt of court action, Justice Karnan also threatened to direct National SC/ST Commission to initiate a detailed inquiry against the HC chief justice for harassing him, a member of the dalit community, and also slapping a case against the CJ under stringent provisions of SC/ST Attrocities (Prevention) Act.

A beleaguered high court through its registrar general has rushed to the Supreme Court accusing Justice Karnan of judicial indiscipline, challenging the authority of the HC Chief Justice, passing order without jurisdiction and lacking in self-restraint. A bench headed by Chief Justice of India H L Dattu on Monday will hear the petition seeking a stay of Justice Karnan's orders.

It all started with the CJ constituting the recruitment committee comprising Justices V Dhanapalan, R Sudhakar, D Hariparanthaman, N Kirubakaran and R Mala to interview candidates for selection as civil judges. The Tamil Nadu Public Service Commission chairman and other officers were to be part of the selection committee and it was scheduled to start oral interview of candidates form April 15 till April 21.

On April 16, Justice Karnan initiated suo motu proceedings and passed a judicial order questioning Justice Dhanapalan's inclusion in the committee. He alleged that latter had produced "bogus educational qualifications" about his bachelor and masters degree in law, he had no locus-standi to conduct interview.

He also alleged that inclusion of Justices Sudhakar and Hariparanthaman, who hailed from the same community besides being relatives, would send a wrong signal about the fairness of selection. He went on to stay the CJ's administrative order and restrained the public service commission chairman from conducting the interview of candidates for civil judge posts.

"In order to control the mal-administration of My Lord Chief Justice, I am passing this suo-motu judicial order in the interest of justice invoking Article 226 of the Constitution to restore the confidence in the Madras high court and confidence with the general public," he said and ordered that two judges must be from minorities communities - one from Muslim community and another from Christian community - to give a fair representation to all communities in the recruitment committee.

On April 17, Justice Karnana's suo motu order was placed before a division bench of Justices S Tamilvanan and C T Selvam, which stayed the April 16 order.

Despite the division bench order, Justice Karnan directed the Registry to place the matter before him on judicial side on April 30. On that day, he reiterated his earlier order and threatened the Chief Justice with contempt of court proceedings.

"This court requests My Lord the Chief Justice to extend his cooperation without any interference with my court's proceedings and its judicial power in order to maintain decorum of the court and avoid an unhealthy practice of judiciary in the interest of the general public. My deep request to the Chief Justice is to avoid ego and stop acting in an autocratic manner to protect democracy," Justice Karnan said in his order.

Ordering status quo on interviews to be conducted by the public service commission, Justice Karnan also threw in his dalit card.

He said: "My deep request to the Chief Justice is that you should not interfere in my judicial process in the instant case, failing which, this court will initiate contempt of court proceedings against you and also give direction to the chairman, National SC/ST Commission to initiate proceedings to conduct a detailed enquiry regarding your harassment of me being a dalit judge to make you perforce to book you under the SC/ST atrocities Act."
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Re: Indian Criminal Justice System reform

Post by svenkat »

I like Mr Karnan.

The Court has not replied,from what I see from the above post,to the substantive part.

1)Does Mr Dhanapalan have valid qualifications?
2)Are Mr Sudhakaran and Mr Hariparanthaman relatives? Is it OK to have relatives in the selection committee?If so,the CJ should defend it in the open.
3)Are they from the same community?Then that would not be 'fair' by the ideals of TN.
4)Again by tamizh nationalist-Periyaarist-sikularist-ambedkarist ideals of TN lawyers,why has no reservation been given to Xtians and mohammedans?

I find nothing strange in Neethiarasar Karnans questions by the accepted standards of TN.(Neethi=Neethi,arasan=tamizhised "Raja",thats how "Lordships" are addressed as "JusticeKings" in TN)

What is "channa" HC?
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Re: Indian Criminal Justice System reform

Post by chetak »

chaanakya wrote:Kailash Wagh @kailashwg · May 7

@Abha_ypsingh Judge who gave interim bail to SK, used to work as Junior in @hsalve law firm! Massive conflict of interest! SC must intervene
160 retweets 49 favorites
no wonder that salman chose, so quickly, this salve to fight his case. Must have cost a pretty packet to get salve to drop everything and hightail it pronto to bombay. justice is not only blind, it is also very rich.
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Re: Indian Criminal Justice System reform

Post by svenkat »

Harish Salve(former Solicitor General of India) is the son of Late Nirmal Kumar Peter Salve,former Union Minister belonging to Congress party.
chetak
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Re: Indian Criminal Justice System reform

Post by chetak »

svenkat wrote:chaanakya ji,Yagnasri ji,legal gurus,

Why was Alistair Pereira given only 3 years imprisonment when he killed 7 people and injured 8 others?

Whats the reason behind that judgement?
despite conclusive evidence already existing, salman lied in court when he said, through his lawyers, that his father's driver was actually driving the car, when the said driver was never involved in the case .

This lying and misfired testimony has resulted in the enhanced sentence. Very rightly.
chetak
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Re: Indian Criminal Justice System reform

Post by chetak »

This is the National Judicial Appointments Commission Bill fallout

The SC needs to be brought under control and very firmly at that. Enough of the paki chief justice type of maverick behavior. Strictly unacceptable in a democracy like India.
chetak
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Re: Indian Criminal Justice System reform

Post by chetak »

svenkat wrote:Harish Salve(former Solicitor General of India) is the son of Late Nirmal Kumar Peter Salve,former Union Minister belonging to Congress party.
another successful crypto. How many more are there ??

no wonder he is such a media darling onlee.
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Re: Indian Criminal Justice System reform

Post by chaanakya »

chetak wrote:
chaanakya wrote:Kailash Wagh @kailashwg · May 7

@Abha_ypsingh Judge who gave interim bail to SK, used to work as Junior in @hsalve law firm! Massive conflict of interest! SC must intervene
160 retweets 49 favorites
no wonder that salman chose, so quickly, this salve to fight his case. Must have cost a pretty packet to get salve to drop everything and hightail it pronto to bombay. justice is not only blind, it is also very rich.
http://www.dnaindia.com/india/report-li ... ay-2084196

I mean what kind of this legal argument is?? Sentence is also stayed without any hearing on the merits.
"He has been on bail for a long time and his liberty was not curtailed. Normally, in such cases, the appeal is admitted and an accused is granted bail," Justice Abhay Thipsay said, while staying his conviction and granting him bail.

The judge directed him to surrender before the trial court and furnish a fresh bail bond of Rs 30,000. The court will issue next directions on 15th June, and the hearing on actor's appeal will take place in the months of July
Image

A judge of the Bombay High Court on Monday recused from hearing the bail plea of Hasan Ali Khan, a Pune-based businessman who is facing charges of money laundering and stashing huge amount of black money in foreign banks. Justice Abhay Thipsay said he had granted bail to Ali on earlier application, which was set aside by the Supreme Court.

"The previous application for bail filed by the applicant was heard by me... On August 12, 2011, I granted Hasan Ali bail. The order was challenged in the apex court which quashed it," Justice Thipsay said.

"There is a likelihood of certain similar grounds cropping again during the hearing of the fresh bail plea. I think the matter should be dealt with by some other bench," the judge said, though senior advocate Amit Desai, appearing for Ali, said the present plea was on different grounds. After the apex court quashed the 2011 HC order granting bail, Ali filed another bail plea on fresh grounds; but Justice R C Chavan, in March, rejected it, so he moved the apex court. The SC, in June, directed the HC to hear his petition afresh. Justice Thipsay directed the registry to place the matter before another bench.

http://www.firstpost.com/fwire/hc-to-de ... 27683.html
Mumbai:The Bombay High Court said that it would first decide on its jurisdiction to hear the bail petition of Sadhvi Pragya Thakur, who is an accused in the Malegaon bomb blast case, before ruling on her bail plea.

Justice Abhay Thipsay asked public prosecutor Rohini Salian to submit arguments on whether a single judge or a division bench of two judges had the jurisdiction to hear such matters in view of a recent Supreme Court judgement in similar cases.

Adjourning the matter to 14 August, the judge said that he would first hear the arguments of prosecutor Salian and then Sadhvi's lawyer Mahesh Jethmalani about the jurisdiction issue.

http://www.mumbaimirror.com/mumbai/crim ... 469449.cms
The Bombay High Court on Monday granted bail to real estate agent and developer, Sumeet Bachewar, arrested for hatching the conspiracy to murder builder Sunil Loharia.

While Bachewar was granted bail on a surety of Rs 50,000 by Justice Abhay Thipsay, Justice R P Sondur-Baldota dismissed the anticipatory bail application filed by co-accused and builder Suryaprakash Agarwal.

http://www.thehindu.com/todays-paper/tp ... 859214.ece
The Bombay High Court on Thursday granted bail to Sheetal Sathe, an activist of radical music group Kabir Kala Manch (KKM) and an alleged Naxal sympathiser, on humanitarian grounds. Ms. Sathe is due to deliver her baby next month.

Ms. Sathe had moved the High Court for bail after the Sessions Court rejected her application two weeks ago. Justice Abhay Thipsay granted her bail on a personal bond of Rs. 30,000
He is well regarded within judicial fraternity and is winner of some awards. he has handled many sensitive high profile cases and is brother of Pravi Thipsay chess grandmaster.
An FIR has been registered against the handler of a Facebook account and some of its members for allegedly posting a photograph of a Bombay High Court judge and smearing his face with black ink and making offensive remarks against him for recently granting bail to crisis-hit NSEL's promoter and prime accused Jignesh Shah.

The Facebook account has also misused the national emblem on the page, police said quoting complainant Naveen Chomal, who is a senior advocate.
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Re: Indian Criminal Justice System reform

Post by Sachin »

chaanakya wrote:Abha_ypsingh Judge who gave interim bail to SK, used to work as Junior in @hsalve law firm! Massive conflict of interest! SC must intervene
svenkat wrote:I find nothing strange in Neethiarasar Karnans questions by the accepted standards of TN.(Neethi=Neethi,arasan=tamizhised "Raja",thats how "Lordships" are addressed as "JusticeKings" in TN)
I hope Mukul Rastogi picks up these points as well. I am getting a feeling that judiciary is very much on the radar of the legislature and executive. For quite some time these folks always flew below the radar, but now things may change. Through this various leaks and ridiculous proceedings people judicial appointments are going to be in the lime light for some time.
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Re: Indian Criminal Justice System reform

Post by Karthik S »

http://indiatoday.intoday.in/story/saty ... 37446.html

"Hyderabad court grants bail to Satyam Computers founder B Ramalinga Raju, 9 others in multi-crore rupee accounting."
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Re: Indian Criminal Justice System reform

Post by UlanBatori »

Y U Should Think Big in Corruption
On disproportionate assets, the judge held that "it is relatively small. In the instant case, the disproportionate asset is less than 10 per cent and it is within permissible limit." "Therefore, the accused are entitled to acquittal. When the principal accused (Jayalalithaa) has been acquitted, the other accused, who have played a lesser role, are also entitled to acquittal," the court said.
:mrgreen:
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Re: Indian Criminal Justice System reform

Post by svenkat »

Theres furore about Jaya acquital.The public prosecutor Mr Acharya was given just one day to make his submission after the earlier one was replaced.Also this 10% 'permissible limit' has become infructuous with newer laws,it is claimed.

Jaya might still get into trouble if KA Govt decides to appeal.She is not out of danger,yet.
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Re: Indian Criminal Justice System reform

Post by svenkat »

http://www.thehindu.com/news/national/jayalalithaas-assets-increased-income-by-76-percent-acharya/article7198990.ece?homepage=true
A “glaring arithmetical error” by the Karnataka High Court in computing the loans taken from banks by AIADMK general secretary Jayalalithaa, her aides and their firms resulted in their acquittal, Special Public Prosecutor B.V. Acharya said on Tuesday.

“We have to examine whether the High Court itself can correct this arithmetical error,” Mr. Acharya said. He believed correcting the error would boost the “disproportionate assets” component from a mere 8.12 per cent to a whopping 76.77 per cent.

The High Court had wrongly calculated the total amount of 10 loans taken by the accused and their firms from nationalised banks as Rs. 24.17 crore, though the actual sum was Rs. 10.67 crore. The court had included these loans in the income of the accused.
http://www.thehindu.com/multimedia/archive/02402/Jayalalithaa_verdi_2402548a.pdf
Page No 852
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Re: Indian Criminal Justice System reform

Post by A Deshmukh »

The 3 judgements - Salman, Amma and Satyam Raju... show how rotten our judiciary system has become.

If SK was found guilty, does not it automatically mean that
- SK
- his driver
- his lawyer
committed perjury by lying in court
Why is he and others not charged of perjury?
Is there any deterrent at all against lying under oath in court?

Can there be a deterrent against all the delaying tactics by lawyers?
13 years for a case where max punishment is 10yrs.
How can the lawyers using delay tactics be penalized?
Can the punishment be enhanced for causing delay in justice?

ex: for an offence like SK
1 yr if first offence. + 1yr each for repeat convictions
+ x% for each count of perjury
x multiplied by delay-in-justice factor.

Is the punishment of say 5 years even effective when you have someone like Sanjay Dutt - 15 days in jail, and 15 days out carrying on normal life including shooting films?
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