Indian Criminal Justice System reform

[ramana]

This is related to tthe good governance thread and the Indian Police thread. I would like us to track this issue and discuss the Justice Malimath Report.

X-Posted..

I think the whole debate about bpj's is taking focus away from the main issue that is plaguing the Indian police.

Yes there is a need for changes in how police deal with crimes and that's the reason the malimath comittee was setup to suggest reforms in the criminal justice system by looking at the problems in totality.
The report can be downloaded from here.
Dr. Justice V.S. Malimath Report
It's less than 1 MB. I hope people interested in police and judicial reforms would go through it and particularly this one.
"7.9 Separation of investigation wing from law and order wing" on page no:100.

If this suggestion had been implemented by mah police they would be no reason for person like karkare involved in investigation of terrorist crimes to go and fight terrorists during the mumbai attack. crime investigation and crime fighting are specialized jobs and police personnel should not be called upon to do both the jobs at the same time which leads to less than optimum results, the mumbai attack is a case in point.

Thanks for unearthing this report.
ramana

[Nayak]

No arrest for offences with maximum penalty of 7 yrs or less
31 Dec 2008,
http://timesofindia.indiatimes.com/No_l ... 916035.cms

NEW DELHI: Ever since he flung his shoes at George Bush on December 14, Iraqi journalist Muntader al-Zaidi has been in custody. But if something like that were to happen here with the Indian president, the assailant might not even be arrested. For, assaulting the President is among a range of offences that are no more covered by the existing arrest regime thanks to amendments recently passed in Parliament.

The eight Bills passed by Lok Sabha on December 23 without a debate in 17 minutes included a radically revamped Criminal Procedure Code, which divests the police of the usual arrest powers in all cases where the maximum possible sentence is seven years or less. Since the CrPC amendment Bill had been cleared earlier by Rajya Sabha on December 18, it is all set to pass into law once President Pratibha Patil gives her assent.

Instead of arresting the accused, the police will now be obliged to issue him a "notice of appearance" for any offence punishable with imprisonment up to seven years, which — as it happens — is the maximum penalty prescribed under Section 124 of Indian Penal Code for assaulting a President.

Seven years or less is also the maximum penalty for a host of other offences, including attempt to commit culpable homicide (Section 308) or robbery (Section 393), voluntarily causing grievous hurt (Section 325), cheating (Section 420), outraging a woman's modesty (Section 354) and death caused by negligence (Section 304A).

The notice of appearance casts a duty on the accused person to appear before the police and "cooperate" with the investigation. It is only if he fails to comply with the terms of the notice that the question of arresting him will arise.

Under the new law if authorities are still particular about arresting somebody in the first instance, then the police will specially have to give reasons for that in writing in court.

This is how the new law liberalises the arrest provisions:
* Section 41A (1) says that in all cases punishable with imprisonment up to seven years, "the police officer may, instead of arresting the person concerned, issue to him a notice of appearance."

* Section 41A (3) conveys the import of this far-reaching devise by saying, "Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police are of the opinion that he ought to be arrested."

* Section 41A (4) explains the remedy that is available to the police whsen the accused does not honour his part of the deal: "Where such person, at any time, fails to comply with the notice, it shall be lawful for the police officer to arrest him..."

Since notice of appearance is now stipulated in the investigation of all offences punishable with imprisonment up to seven years, arrest will cease to be an inevitable fallout for accused persons in a wide variety of cognizable cases, including even those that were traditionally classified as "non-bailable."

On an offence such as kidnapping, for instance, the police cannot any longer use arrest as a first resort as the offence is punishable under Section 363 with imprisonment up to seven years. Similarly, if a public servant induces a woman in his custody to have sex with him, the police cannot straightaway arrest him as the offence is punishable under Section 376B with imprisonment up to five years.

The more serious IPC crimes on which the police is exempt from issuing notice of appearance to accused persons include murder, rape, dowry death, waging war on State, robbery or dacoity with deadly weapons and kidnapping.

The introduction of notice of appearance is part of a larger attempt to raise the bar for arrest. In case of offences punishable with imprisonment exceeding seven years, the police can arrest merely on "credible information" or "reasonable suspicion".

But in the case of offences punishable with imprisonment up to seven years, the police will also have the burden of recording the reasons for being satisfied that such arrest is "necessary."

The goons in uniform and the law establishement will lose mucho money from these amendments, already lawyers in Delhi circuit are on strike protesting the amendments as this will bite into a major chunk of their earnings.

Thankfully the (g)pandoos will think twice before going on a arrest binge of innocents.

[Nayak]

Some more good news..

CJI not exempt from RTI purview, CIC tells SC

http://timesofindia.indiatimes.com/Indi ... 944793.cms

7 Jan 2009, 0255 hrs IST, Manoj Mitta, TNN
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NEW DELHI: In a boost to judicial accountability, the Central Information Commission (CIC) on Tuesday rejected the Supreme Court’s claim that the
Chief Justice of India was beyond the purview of RTI. Accordingly, CIC directed SC to make public the information available with CJI as to whether its judges had been, in terms of a 1997 resolution, regularly filing declarations of their assets.

The decision taken by a three-member bench of CIC headed by Wajahat Habibullah contradicts CJI KG Balakrishnan’s public statement that being a Constitution office holder, he was exempt from RTI. This is also contrary to the file notings made by Justice Balakrishnan, reported first in TOI, approving SC’s evasive reply in November 2007 that the information relating to declaration of assets by judges was “not held by or under the control of” its registry and therefore could not be furnished by its information officer under RTI.

Upholding an appeal filed by RTI activist Subhash Chandra Agrawal, CIC rebuffed SC’s attempt to withhold information on the ground that the registry, which came under RTI, was distinct from the CJI’s office, which was the custodian of the declarations of assets made by SC judges.

Ruling that the institution and its head could not be two distinct public authorities, CIC said that the information available with the CJI must be “deemed” to be available with Supreme Court.

“If any information is available with one section of the department, it shall be deemed to available with the public authority as one single entity.”

Since the appellant did not seek copies of the declarations, CIC disallowed SC’s alternative contention that the information could not be disclosed as it attracted exemption under Section 8(1)(e) as the declarations had been received by CJI in a “fiduciary relationship” or Section 8(1)(j) as it was “personal information” which had “no relationship to any public activity or interest.” The bench consisting of Wajahat Habibullah, A N Tiwari and M M Ansari directed SC’s information officer to disclose within 10 days to Agrawal whether its judges had been filing declarations of assets in compliance with the resolution adopted by the entire bench of the apex court in 1997.

Though the judiciary had informally maintained that judges had been filing declarations of assets, it was reluctant to say anything on the subject under RTI lest it opened a floodgate of queries related to judicial probity. The tacit, if self-serving, suggestion was RTI could not be allowed to compromise judicial independence.
Click here to comment on this story.

[Katare]

No arrest for offences with maximum penalty of 7 yrs or less
31 Dec 2008,
http://timesofindia.indiatimes.com/No_l ... 916035.cms

NEW DELHI: Ever since he flung his shoes at George Bush on December 14, Iraqi journalist Muntader al-Zaidi has been in custody. But if something like that were to happen here with the Indian president, the assailant might not even be arrested. For, assaulting the President is among a range of offences that are no more covered by the existing arrest regime thanks to amendments recently passed in Parliament.

The eight Bills passed by Lok Sabha on December 23 without a debate in 17 minutes included a radically revamped Criminal Procedure Code, which divests the police of the usual arrest powers in all cases where the maximum possible sentence is seven years or less. Since the CrPC amendment Bill had been cleared earlier by Rajya Sabha on December 18, it is all set to pass into law once President Pratibha Patil gives her assent.

Instead of arresting the accused, the police will now be obliged to issue him a "notice of appearance" for any offence punishable with imprisonment up to seven years, which — as it happens — is the maximum penalty prescribed under Section 124 of Indian Penal Code for assaulting a President.

Seven years or less is also the maximum penalty for a host of other offences, including attempt to commit culpable homicide (Section 308) or robbery (Section 393), voluntarily causing grievous hurt (Section 325), cheating (Section 420), outraging a woman's modesty (Section 354) and death caused by negligence (Section 304A).

The notice of appearance casts a duty on the accused person to appear before the police and "cooperate" with the investigation. It is only if he fails to comply with the terms of the notice that the question of arresting him will arise.

Under the new law if authorities are still particular about arresting somebody in the first instance, then the police will specially have to give reasons for that in writing in court.

This is how the new law liberalises the arrest provisions:
* Section 41A (1) says that in all cases punishable with imprisonment up to seven years, "the police officer may, instead of arresting the person concerned, issue to him a notice of appearance."

* Section 41A (3) conveys the import of this far-reaching devise by saying, "Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police are of the opinion that he ought to be arrested."

* Section 41A (4) explains the remedy that is available to the police whsen the accused does not honour his part of the deal: "Where such person, at any time, fails to comply with the notice, it shall be lawful for the police officer to arrest him..."

Since notice of appearance is now stipulated in the investigation of all offences punishable with imprisonment up to seven years, arrest will cease to be an inevitable fallout for accused persons in a wide variety of cognizable cases, including even those that were traditionally classified as "non-bailable."

On an offence such as kidnapping, for instance, the police cannot any longer use arrest as a first resort as the offence is punishable under Section 363 with imprisonment up to seven years. Similarly, if a public servant induces a woman in his custody to have sex with him, the police cannot straightaway arrest him as the offence is punishable under Section 376B with imprisonment up to five years.

The more serious IPC crimes on which the police is exempt from issuing notice of appearance to accused persons include murder, rape, dowry death, waging war on State, robbery or dacoity with deadly weapons and kidnapping.

The introduction of notice of appearance is part of a larger attempt to raise the bar for arrest. In case of offences punishable with imprisonment exceeding seven years, the police can arrest merely on "credible information" or "reasonable suspicion".

But in the case of offences punishable with imprisonment up to seven years, the police will also have the burden of recording the reasons for being satisfied that such arrest is "necessary."

The goons in uniform and the law establishement will lose mucho money from these amendments, already lawyers in Delhi circuit are on strike protesting the amendments as this will bite into a major chunk of their earnings.

Thankfully the (g)pandoos will think twice before going on a arrest binge of innocents.

This will help in declogging jails and reduce a lot of work load/expenses of law enforcement/judicial agencies. On flip side it'll help influential folks who'll go on threatning witnesses and bribing police officers.

[ramana]

The PM's speech on Jan 6th, 2009 at the Chief Ministers conf had a lot of suggestions and timeline for reforms.

[Sachin]

The goons in uniform and the law establishement will lose mucho money from these amendments,

I feel the law only speaks about "arrests", and not about "illegal detention". And in my humble opinion "illegal detention" is what have to be sorted out first rather than arrest. Because a person is only legally "arrested" when the police prepare the arrest memo, makes entries in the General Diary etc. etc. And once an arrest is made the police are duty bound to produce the arrested person before a magistrate within 24 hours.

Where as in many cases a person is just put inside the lock-up and then questioned (or harassed/humiliated etc. etc.). Only when the police have a solid case is a case registered, the "arrest" made and documents prepared. Thanks to this practise in many states when news paper reports have sentences like - "the suspects are under police surveillance", or "the suspects would be in the police net soon" it pretty much means that "the suspect is already in the police lockup and singing like a canary" .

One of the police reforms committee recommendation was to remove the "lock up" from the local police stations, but have a central holding facility (a group of lockups) attached to a higher police official's (say Dy.SPs) office. But this is yet to be implemented, and the police officers have some concern here too.

[Nayak]

SC judge witness to cash-at-door?
9 Jan 2009, 0423 hrs IST, Manoj Mitta , TNN
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NEW DELHI: A judicial inquiry has conceded that a Supreme Court judge might have been present in the house of Punjab and Haryana High Court judge
Nirmaljit Kaur on the fateful evening when a bag containing Rs 15 lakh was delivered at her door on August 13, 2008.

This sensational disclosure was made in a three-page letter written by another high court judge, Nirmal Yadav, on Wednesday to Chief Justice of India K G Balakrishnan, responding to his notice of the inquiry finding that the money was actually meant for her.

The notice issued on December 25 was accompanied by the report of a three-judge committee appointed by the CJI to probe the August 13 delivery of cash at Justice Kaur’s residence. In her reply, which is in possession of TOI, Justice Yadav said, “The committee itself records that a judge of the SC and a senior judge of the high court may have been present in the house at the time of delivery of the cash.”

According to Justice Yadav, the committee’s finding on the presence of two other judges on the spot was borne out by call records related to them. Following the cash delivery, the SC judge’s son, for instance, made five calls to lawyer Sanjeev Bansal, who is alleged to have sent the money at the instance of businessman Ravinder Singh.

Justice Yadav is aggrieved that the panel, however, did not draw any adverse inference against Justice Kaur for denying their presence at her house. “In spite of clinching evidence which establishes the falsity of the statement of Justice Nirmaljit Kaur with respect to the absence of these judges at her residence at the time of receipt of cash, the committee considered it unnecessary to go into that question, assuming that the enquiry was solely directed against me.”

Justice Yadav went on to allege that “it is a patent case of travesty of justice that the judge from whose custody the cash is recovered should continue to sit on the bench and I should be made a scapegoat only because a judge of the SC and a senior judge of the high court are found to be interfering in the investigation and in creating a wrongful assumption by the committee that the enquiry is only required to be conducted against me.”

Without naming the SC judge, Justice Yadav added, “Almost two decades old liaison between the judge of SC and the judge at whose residence cash is delivered, has been a talk of the town for all these years. It is on this ground that the SC judge’s wife sought divorce.”

Listing what she called were “only some of the anomalies apparent on the face of the report,” Justice Yadav asked the CJI to supply her with the documents mentioned in it so that she could give her complete reply. “From the reading of the report without the documents,” she said, “all I can say is that I am shocked at the lopsided enquiry conducted by the committee.”

The committee, appointed under the in house procedure of enquiry, consisted of Allahabad high court chief justice H L Gokhale, Gujarat HC chief justice K S Radhakrishnan and Delhi HC judge Madan Lokur.
Click here to comment on this story.

[Raj Malhotra]

While I personally think that CrpC amendment will reduce the harrassment powers of police but the amendment is meant to save politicians and businessmen from arrest in corruption, cheating and tax evasion cases.

[ramana]

Pioneer, 13 jan 2009

Fight rape tooth and nail

Onkar Chopra

Just 24 hours before the gangrape of the young MBA student, there was an attempt to rape a minor girl who was abducted in Noida and later left at Ghaziabad. The fact that the two incidents took place in such a short span of time proves that sexual crimes against women have become routine in our society and need to be dealt with an iron hand.

The Delhi Police Commissioner’s report that the number of rape cases went down from 581 in 2007 to 453 in 2008 is no consolation as the low conviction rate, coupled with the social stigma attached to such cases, poses a great hindrance to the administration of justice to the victims.

Since many victims don’t even come forward to register an FIR of the crime committed against them, it is suggested that more and more woman police personnel be attached to various police stations. Also, a more vigorous deployment of police personnel at secluded and remote places would act as a deterrent against such heinous crimes. Plus, mass gender sensitisation programmes need to be carried out at the local level starting with schools and colleges and then further expanding to Government offices and other institutions.

On the legal side of things, the existing laws against rape need to be strictly enforced so that even influential people cannot get away with such crimes. Moreover, tougher laws against eve-teasing and molesting are needed to prevent evil minds from committing other serious crimes against women.

A report released by Swan Chetan, an NGO, has revealed that 18 per cent of rape cases reported are false and that in 25 per cent of the cases the allegation of rape is prompted by anger against the accused. Such studies do not serve as an excuse to go slow in our efforts to curb sexual harassment and abuse against women and as such should not be overplayed.

The recent decision of former Israeli Miss World Linor Abargil, a rape victim, to make a graphic documentary of her sexual assault to inspire other victims to pursue their attackers as tenaciously as she did to get justice needs to be appreciated. “The only way to overcome rape is to talk about it”, she had said. “I want victims to say, yes it happened to me and I want the guy to go to prison I want his family to know.”

Not blaming themselves for the crime, victims should muster the courage to make sure that their attackers do not go scot-free. The battle is not easy and it is here that the civil society needs to come forward and help rape victims.

[Nayak]

SC moves HC against CIC order on judges' assets

NEW DELHI: Worried over the fallout of a recent Central Information Commission (CIC) order on making the assets of judges public, the Supreme
Court registrar on Friday challenged it before the Delhi high court saying that this information, not being in public domain, could not be given to RTI applicants.

The high court is the appellate authority for challenging CIC's decisions — a fact that led to this unusual situation of the apex court moving a lower court over a dispute.

The apex court said information relating to declaration of assets by Supreme Court judges to the Chief Justice of India (CJI) was not a mandatory exercise under law, but driven by an informal resolution of May 7, 1997 — implying that information on judges' assets did not come under RTI's purview.

The petitioner added said the CIC had committed an error by equating the Supreme Court and the CJI as one and the same authority whereas the CJI's position was quite distinct from that of the Supreme Court in terms of the RTI Act.

"CJI is not a public authority, as defined under the RTI Act, and therefore, is not required to designate a central public information officer (central PIO) for it, or to supply information held or maintained by it," the appeal stated.

The CIC had on January 6 only directed the central PIO of the SC to furnish information as to whether any declaration of assets had been filed by SC judges or not.

But even this apparently innocuous order has led the Supreme Court to challenge the CIC order before the HC, saying that a public authority was bound to give information if these were available in public domain.

The SC registrar added that details of judges' assets was not information which was held by or under control of a public authority, since it was voluntarily furnished to the CJI, who himself could not be included in the definition of "public authority".

"There is nothing under the Constitution of India or under any other law which requires judges of the Supreme Court to declare their assets to the Chief Justice of India," said the petition, which was drafted by advocate Devdatt Kamath and settled by Solicitor General G E Vahanvati.

Quoting section 8(1)(j) of the RTI Act which imposed a ban on furnishing of personal information, the SC Registrar said any query relating to assets of judges voluntarily declared before the CJI squarely fell within the meaning of Section 8(1)(j).

Moreover, "the office of the Chief Justice of India is a distinct office. It performs certain constitutional functions and cannot be equated with or said to be part of the registry of the Supreme Court, which holds information relating to other matters of the Supreme Court under the RTI Act."

dhananjay.mahapatra@timesgroup.com

''

Panic in the judiciary establishement on the deluge of skeletons tumbling out of the termite-infested closets once they come under the public ambit of the law.

[ramana]

Nayak, Dont look at everything thru corruption prism. The Indian judiciary has been able to stave of political pressures for atleast two decades. This order will allow the politicians to harass current judges and appoint future 'committed' judiciary.

The success story in Indian governance is the judiciary. In Mrs G's term the judges had all sorts of humiliation.

BTW, young one aced the Criminal Law and Torts subject and topped the course.

[Avinash R]

Fine example of using technology to help in quick delivery of justice and solving cases which otherwise would have dragged for years and wasted money of the petitioners. I think if this project is implemented in other states it would reduce the backlog of cases in the courts very quickly. The only negative part of this wouldbe most small time lawyers will soon run out of cases.

Video-conferencing aids speedy justice delivery
Thursday, January 15, 2009
http://www.deccanherald.com/Content/Jan ... 112566.asp
By Subhashchandra N S

DH News Service, Bangalore: The actual functioning of the video-conferencing began on November 24, and within five days, 49,117 petty cases and 5,048 compoundable cases have been disposed in various parts of the State.

Video-conferencing has come as a big boon to the State Judiciary, which has disposed of a record number of 2.33 lakh cases within a stipulated time of 29 days.

For the State Judiciary, which has been emphasising on speedy disposal to deliver justice at the earliest, the recently launched service has made a big difference. The programme, a first of its kind in the country is the brainchild of Chief Justice P D Dinakaran, and was launched by Chief Justice of India, Dr K J Balakrishnan on November 22. Its original target was to clear 2,77,938 petty and compoundable cases within December 2008.

But the actual functioning of the video-conferencing began on November 24, and within five days, 49,117 petty cases and 5,048 compoundable cases have been disposed in various parts of the State.

Over 1.7 lakh cases were disposed from December 1 to December 6 of which 1,04,604 were petty cases and 2,437 were compoundable cases. Over 68,000 cases have been disposed since December 8, 2008. Of these, 61,168 were petty cases and 7,485 were compoundable cases.

Among the districts, Bangalore alone has a pendency of 1,62, 473 cases followed by Shimoga with 24,993. The border districts of Belgaum and Dakshina Kannada have 12,481 and 12,461 cases pending. Udupi, Chikmagalur, Bellary have a pendency of 5,611, 2,382 and 2,155 cases respectively, while the pendency of Gulbarga is just 366.

How it works?

Senior legal experts interact with district legal officers and ensure that the matter is disposed.

[Nayak]

President okays 7-year hitch for arrests

19 Jan 2009, 0048 hrs IST, Vishwa Mohan, TNN
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NEW DELHI: The recently-revamped Criminal Procedure Code, which divests police of arrest powers in cases where maximum sentence is upto seven
years, become law with President Pratibha Patil finally giving her assent last week.

The presidential assent, which came nearly three weeks after the bill was sent to her after getting it passed from Parliament, has now paved the way for the government to notify it.

Once the law, CrPC (Amendment) Act 2008, becomes effective, the police, instead of arresting the accused, will be obliged to issue him/her a "notice of appearance" for any offence punishable with imprisonment up to seven years. The person can be arrested only if he/she does not appear before the police in response to the notice.

Seven years or less is the maximum penalty for a host of offences, including attempt to commit culpable homicide, robbery, attempt to suicide, kidnapping, voluntarily causing grievous hurt, cheating, outraging a woman's modesty and death caused by negligence.

The radical change in the CrPC has, however, drawn flak from a number of Bar associations across the country. Lawyers -- who also observed strike in various courts after the bill was passed in Parliament -- argue that the amendment (in Section 41) doing away with mandatory arrest provisions would remove fear from the minds of criminals who would misuse the provisions under the garb of personal liberty.

Under Section 41, as it originally stood, a police officer may, without an order of a magistrate and without a warrant, arrest any person who has been concerned in any cognisabale offence.

Some chief ministers had also voiced concerns on the amendment during a conference on internal security here on January 6.

Allaying those concerns, home minister P Chidambaram wrote to all CMs a week later on January 13 and explained why it was necessary to bring such changes in the CrPC.

Referring to Section 41 of the Act, Chidambaram said in his letter, "This provision was severely criticised as capable of being misused and, in fact, was being misused." To substantiate his point, he advised CMs to refer to reports of the Law Commission and the Malimath Committee and also the judgment of the Supreme Court in D K Basu case which laid down guidelines for effecting arrest.

Advising CMs to see the amendments in the light of those suggestions and guidelines, Chidambaram, however, assured them that the government was ready to revisit the provisions, if it became necessary, in the next session of Parliament.

The amendment in CrPC, however, allows police to arrest without an order from a magistrate and without a warrant a person who commits a cognisable offence "in the presence of a police officer".

It also enables arrest of "a person who has committed a cognisable offence (punishable for a term which may be less than 7 years or extend upto 7 years) if there is a reasonable complaint or credible information or a reasonable suspicion and the police officer is satisfied that such arrest is necessary for proper investigation of the offence or for preventing tampering with the evidence". The only additional requirement in such cases is that the police officer will have "to record his reasons" for making the arrest.

The law further says that a police officer arresting a person will have to bear his identification badge or tag. Besides, a memorandum of arrest shall be prepared, witnessed and countersigned. The person arrested shall be told that he has the right to inform a relative or friend.

vishwa.mohan@timesgroup.com

Allah hu Akbar, the p/g andoos finally get the firm kick in the nuts. No more threatening common abduls with arrests. The Bar council can go to hell, they are in cahoots with the cops and ensure that poor people go through a lot of misery to get bail. This is ground-breaking and worth celebrating.

Thank you Mrs. President.

[Nayak]

Amendment may make dowry law toothless

19 Jan 2009, 0043 hrs IST, Abhinav Garg, TNN
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NEW DELHI: Buried under vociferous calls by bar associations for court boycott and strikes, a largely unnoticed fallout of the CrPC amendments
has begun to bother astute legal observers in the capital. Had lawyers agitating against the amendments highlighted this instead of issuing threats to shut courts, they would have better mobilized public opinion against these amendments.

For, once the amended law comes into force, Section 498A of IPC (dowry harassment) will become a toothless penal provision as errant husbands and in-laws will no longer face the possibility of being shunted to jail for harassment. The amendment empowers police to simply issue a ‘notice of appearance' to the accused instead of putting him behind bars in cases under Section 498A of IPC, which has a maximum punishment of three years.

It also means the deterrent effect behind Section 498A — fear of arrest by police — evaporates. Experience has shown that, at present, in-laws and husband fall in line as soon as they realize they might be whisked away to jail by cops, and more often than not, readily undertake to take care of the victim before courts hear their anticipatory bail pleas.

However, this might now change with the sting being taken out from the provision, says advocate Shipli Jain. She explains: "Almost half of the cases in criminal courts in Delhi are related to dowry-harassment bail pleas. We often notice that a husband and his parents become very forthcoming for a settlement when they realize a court might dismiss their bail applications. The amendment makes matters very easy and convenient for them. Most dowry cases get settled at the bail stage itself, something that won't happen now."

But isn't the provision of arrest under 498A a grossly misused one? Jain counters by saying: "Lots of divorces have been saved because men are scared of throwing women out of the house lest they be booked under 498A. In a way, it is the most effective provision despite the presence of the special laws like Domestic Violence Act."

Another noted women lawyer from Delhi, Minaxi Lekhi, also felt the CrPC changes will lead to problems: "At the end of the day, criminal laws mean threat of arrest."
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[Nayak]

Cops not ready for liberal CrPC

19 Jan 2009, 0041 hrs IST, Dwaipayan Ghosh, TNN
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NEW DELHI: The president's assent to the controversial CrPC amendment Bill is seen as a setback by certain senior police officials who readily
admit they are ill prepared to implement it.

One senior officer went to the extent of saying: "Delhi is not ready to usher in such liberal and revolutionary changes." However, the top brass put up a brave front saying the amendments would be implemented in "letter and spirit".

According to the amendment, instead of arresting an accused, the police will now be obliged to issue a "notice of appearance" for any offence punishable with imprisonment up to seven years. Seven years or less is also the maximum penalty for a host of offences, including attempt to commit culpable homicide (Section 308) or robbery (Section 393), voluntarily causing grievous hurt (Section 325) and death caused by negligence (Section 304A).

Under the new law, if the cops are still insistent upon arresting an accused in the first instance, then they will have to furnish reasons to the court, in writing.

According to the commissioner of Delhi Police, Y S Dadwal: "The amendments are not in black and white, which will prevent police from carry out its normal duty." Dadwal adds: "The force is studying the various clauses and discussing the best ways to implement the law."

Amuliya Patnaik, joint commissioner (crime) said the process of implementing the law has already begun. "We will soon be issuing specific instructions within our force for the effective implementation of the law in its letter and spirit," he said.

Senior officials in the force, though, claim there would be "practical problems" in implementing the law. "We are already facing a shortfall in the number of investigating officers. Now, with these amendments, our IOs will even have to contend with those appealing against their arrests. This will mean convictions will be further delayed," said a senior cop.

"The morale of the force might be affected negatively if the citizens begin questioning why we have stopped arresting the accused and instead handing out challans to them. They might even accuse us of favouring the guilty," he adds.
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As if these morons enjoy any credibility with the public. Actually the number of false cases will come down drastically. The cops are known to indiscriminately arrest people unrelated to the crimes, throw them into remand and then forget about it. The unfortunate abdul has to spend 4-7 years fighting through the corrupt courts to prove his innocence.

[Sachin]

Amendment may make dowry law toothless

Oho, I see that the report is from none other than ToI. Section 498A of IPC is one of the grossly misused laws in this country. ToI seems to give it a spin by saying that errant husbands and in-laws fall in line as soon as this charge is levelled against them. They take a line that every Indian woman is a Sati savitri and her parents and relatives are all Raja Harishchandras. This section has been misused because of its one-sided way of what is to be considered evidence. The girl (or her parents) with political/law enforcement clout can severly misuse this law. As per this the girl or any of her relatives can just march into a police station and say that she is being harassed for dowry. The people mentioned in the FIR can be picked up without any investigation and put in the lock-up. This is a non-bailable offence, and so the bail plea has to be put up at a higher court (not with the police or the judicial magistrate). In most cases the arrested set of people will not even find time to seek a lawyer. The current trend is for the Sati Savitri to give a complaint on Friday afternoon, the arrests made by friday evening. The parents, sister-in-laws and if lucky the hubby all land up in the police lockup. The courts are on holidays, and so the bail plea at best can be made only on the coming Monday.

Check up the web site http://www.498a to know more about this draconian section of IPC.

Aside. Was'nt it the current minister for Women's affair Renuka Chowdhary who went on record and said that the anti-dowry laws would be made more strict and it is time for the men to suffer (or words to that effect)?

[Nayak]

www.498a.org is the correct website. That law is draconian indeed. I have heard horror stories of cops arresting senior citizens, pregnant women and underage kids with scant respect towards their basic rights. The running rate of making a 498a arrest is around 50 K to 1 lac in Bangalore, don't know about other cities.

But with the job market slowdown and recession, the 498a complaints have also reduced by 80 %. AP has the highest incidence of 498a complaints and our dear south Indian tappangunchi biraders of TN have the highest rate of abuse, where lady cops of CAW are known to literally beat up husbands and their family, black and blue.

* Have an affair and need to get married to boyfriend lodge a false 498a
* Don't like the looks of in-laws lodge a false 498a
* Pappa wants daughter's salary, instigate her to lodge a false 498a

But the good things is the acquital rate is 98 % although it will take 3-4 years for the abdul to get acquited by the court.

Now sanity will return as the fear of arrest is gone.

[Sachin]

But the good things is the acquital rate is 98 % although it will take 3-4 years for the abdul to get acquited by the court.

3-4 years of bad treament, jail life, being a joker in public etc. is enough to make a person go insane. Plus the loss of job and regular income etc. And don't know whether in case of a 498A acquital the arrested have automatic rights for compensation. Other wise they may to file a counter case, and run around the courts again to get some fair compensation. In other words 498A is a very loosely worded/defined section of IPC.

Edited: Came back to say this...
The Hindu news report
As per The Hindu the amendment has only effect on non-cognizable offences. The amended section 41 (of Cr.PC) now reads "No person concernced in a non-cognizable offence or........".

Act 46 of 1983
Where as the draconian section of 498A is a cognizable offence. In other words the police are duty bound to act immediatly (without waiting for a magistrate's directive) to begin the investigation.

BTW, any clue as to why this section is used in large numbers in the state of Andhra Pradesh?

[ramana]

CrPC Amendement is pro-criminal

CrPC amendment is pro-criminal

MC Joshi

This refers to Mr Amit Jetley’s Second opinion, “CrPC amendment not unjust” (January 24) about the amendment introduced to the Criminal Procedure Code which provides that there will be no arrests in crimes that carry a prison term of up to seven years and the offender shall only be served with a ‘notice of appearance’ and may be arrested only when the reasons for doing so are recorded by the police or when the offender fails to respond to such notice.

It has been ridiculously presumed that the offenders would disclose their real identities and genuine addresses even when it is not mandatory for the people to carry any authentic proof of their identity and address with them. Hence, if caught, offenders can easily give fake identities and addresses to the police. How will the latter check the genuineness of the information provided by the offenders while serving the said ‘notice of appearance’?

Let it be further presumed that we have turned into a society of saints and so have criminals who will fully cooperate with the law and faithfully turn up in response to the ‘notice of appearance’. But what next? In the normal course of things, those responsible for petty crimes get bail after genuine sureties are provided. Hence, the problem of overcrowding of jails due to arrests or undertrials languishing in prisons has been grossly exaggerated.

The arrest of a person who has been caught red-handed or is suspected of committing a crime which is punishable under the IPC is the first, basic step of law enforcement. The police cannot keep criminals in custody without filing a case against them and complying with other statutory provisions. Hence, it is not as if the police can pick up anyone as and when they please. On the other hand, the new procedure makes it almost impossible to arrest those responsible for petty crimes. Hence, the society must brace itself for a spate of crimes that include attempt to commit culpable homicide, voluntarily causing grievous hurt, cheating, outraging a woman’s modesty, death caused by negligence, etc.

We should not forget that we have a system where outlaws become lawmakers and criminals get political patronage. As it is the police works under tremendous pressure. Therefore, shouldn’t those who are raking up the issue of police excesses and expressing concern for the human rights of criminals be instead concerned about the rights and the security of the law-abiding citizens who can fall victim to such crimes?

[MohanG]

As a person who knows a little about how the Police functions, let me offer my views on the latest CrPC admendment:


Here is the 2008 amendment

Here is the original section 41 of CrPC.


The relevant portion of the new provisions is given as below:

Code: Select all

41. When police may arrest without warrant.

    (1) Any police officer may without an order from a Magistrate and without a war rant, arrest any person-

    (a) who commits, in the presence of a police officer, a cognizable offence;

    (b) against whom a reasonable complaint has been made, or credible
         information has been received, or a reasonable suspicion exists that he has
         committed a cognizable offence punishable with imprisonment for a term which
         may be less than seven years or which may extend to seven years whether with
         or without fine, if the following conditions are satisfied, namely:—

               (i) the police officer has reason to believe on the basis of such
                   complaint, information, or suspicion that such person has committed the
                   said offence;

              (ii) the police officer is satisfied that such arrest is necessary—

                       (a) to prevent such person from committing any further
                           offence; or
                       (b) for proper investigation of the offence; or
                       (c) to prevent such person from causing the evidence of the
                           offence to disappear or tampering with such evidence in any
                           manner; or
                       (d) to prevent such person from making any inducement,
                            threat or promise to any person acquainted with the facts of the
                           case so as to dissuade him from disclosing such facts to the Court
                           or to the police officer; or
                       (e) as unless such person is arrested, his presence in the
                           Court whenever required cannot be ensured,
                           
                  and the police officer shall record while making such arrest, his reasons in
                  writing

        (c) ...

As can be seen, irrespective of whether the offence has a punishment of less than or more than seven years, a police officer can make an arrest if it is committed in his presence. In other cases also (where the imprisonment term is less than or equal to 7 years) the arrest can be made but then the police officer will have to record reasons in writing.

This will help in declogging jails and reduce a lot of work load/expenses of law enforcement/judicial agencies. On flip side it'll help influential folks who'll go on threatning witnesses and bribing police officers.

Irrespective of this amendment, influential folks can anyway try to influence witnesses and try to bribe officers. Doing so interferes with the administration of justice and can justifiably be quoted as reasons for making an arrest in a <=7 year offence. No problem here.

I feel the law only speaks about "arrests", and not about "illegal detention". And in my humble opinion "illegal detention" is what have to be sorted out first rather than arrest. Because a person is only legally "arrested" when the police prepare the arrest memo, makes entries in the General Diary etc. etc. And once an arrest is made the police are duty bound to produce the arrested person before a magistrate within 24 hours.

True. But arrests cannot be made that easily now. The police officer will have to justify it. So if the offence is of <=7 years variety the accused can justifiably exercise more leverage (and demand to be let off) if he knows he cannot be arrested in the normal course.

One of the police reforms committee recommendation was to remove the "lock up" from the local police stations, but have a central holding facility (a group of lockups) attached to a higher police official's (say Dy.SPs) office. But this is yet to be implemented, and the police officers have some concern here too.

That would be administratively difficult. There are remote police stations, and it will be difficult to bring the accused to the DySP headquarters immediately. Anyway the law provides that the arrested persons be produced before the magistrate within 24 hours. And if the policemen want to keep a person under illegal detention then even if there is no lockup they can do so.

While I personally think that CrpC amendment will reduce the harrassment powers of police but the amendment is meant to save politicians and businessmen from arrest in corruption, cheating and tax evasion cases.

About seven million people were arrested in 2007, a vast majority of them for offences with <=7 years imprisonment.

Of these seven million there weren't many businessmen or politicians. They could evade arrest very easily earlier too.

Allah hu Akbar, the p/g andoos finally get the firm kick in the nuts. No more threatening common abduls with arrests. The Bar council can go to hell, they are in cahoots with the cops and ensure that poor people go through a lot of misery to get bail. This is ground-breaking and worth celebrating.

AoA

On the other hand, the new procedure makes it almost impossible to arrest those responsible for petty crimes. Hence, the society must brace itself for a spate of crimes that include attempt to commit culpable homicide, voluntarily causing grievous hurt, cheating, outraging a woman’s modesty, death caused by negligence, etc.

Joshiji is wrong. The police officer can easily cite repeat offences (of petty nature) as a reason for arrest. By the way, I thought a better way to administer justice is to prove the case and let the offender go to jail as a convict, rather than just arrest on suspicion and let the fellow rot in jail. And only very poor petty criminals will not be able to arrange for bail. Any 'respectable criminal' (petty or otherwise) does not find it very hard to get bail. If the police case is strong, then under the new provisions also they can make an arrest and the court will deny bail.

We should not forget that we have a system where outlaws become lawmakers and criminals get political patronage. As it is the police works under tremendous pressure.

How would the new system aid outlaws from becoming lawmakers. Under the existing system, haven't we seen Raj Thackeray and others get bail easily.

My Take:

Indian Police, by and large, has a tendency to misuse the power of arrest. Often they will extort money from 'respectable' suspects for not arresting them. Power of arrest is the biggest nuisance power of the police. Otherwise, they will have to make a good case and prove it in court.

Arrest and bail have become the major dhandha for most Policemen and criminal Lawyers. That's why we hear howls of protests from the legal fraternity (mainly small-time lawyers - their roji-roti depends on these cases).

Police tends to satisfy the public in any sensational case by saying that they have arrested the suspects. Few people bother whether they have actually made a good investigation that will stand scrutiny in the court. Often they submit half-baked and on-the-face-of-the-record faulty charge sheets. If the accused is let off by the court, they plead helplessness. There is little accounting of the investigation lacunae.

This amendment should ideally make them focus more on proper investigation and followup to get a conviction, not just make a poor suspect spend months (sometimes years) in jail as an undertrial. The focus of policing needs to change from a public order maintenance agency to a crime detection, prevention, and investigation agency. Investigation is a hard skill, it takes time and effort, and the results are not obvious immediately (courts take years to decide), therefore the incentives are misaligned for a police officer. Many States have not yet separated the investigation and public-order-maintenance police wings, so the same guy does both jobs and usually the latter job takes precedence.

Having said that, the police can always misuse the new law also. One way is to get the accuser to allege that the accused is threatening him/her. So for those people who are accused in Sec 498a (for example), this new provision helps but not much. The wife/in-laws could always make another application to the police such that the requirements of Section 41(1)(b)(ii)(d) are met. And the policemen/lawyers can helpfully suggest that 'stronger' action is possible only if such an application is made.

The amendment is in the right direction. But lets wait and watch.

[Katare]

In the previous system when a person was arrested he was supposed to be presented in a court within 24 hours. Judges were supposed to grant bail to the accused if the offense was not of heinous nature.

The new system assumes that all those people are bailed out without system processing them. Some judges were putting people in jail on the name of being tough on crimes some were letting them go. So I think the new system would be little more effective as it eliminates a lot of procedural work and crowding. Also eliminates stigma of being arrested in front of family and friends.

Attorneys would be the biggest looser, in earlier system everyone who was accused needed to be arrested and brought in front of a judge for bail.

[Sachin]

In the previous system when a person was arrested he was supposed to be presented in a court within 24 hours. Judges were supposed to grant bail to the accused if the offense was not of heinous nature.

As lay men we do not know what are the offences which carry a sentence less than seven years. Only once this list comes out, will we know what all criminals can escape judicial remand using this means. If news paper reports are true, molestation attempts, causing grevious injury etc.,small scale rioting etc. carry sentences of less than 7 years. Now with people getting automatic bail, they would be only too happy to threaten witnesses/complainants as well.

Got this from ToI
Times of India

: Headlines such as "police arrest youth for sexual harassment," "robber caught by police," that often occupy print media space are expected
to become a thing of the past once the CrPC (Amendment) Act 2008 is implemented.

I am waiting for the day when the police men in India:-
1. picks up a robber (first time offender)
2. make note of his address and other where abouts (the thief gives the correct information, mind you ) and let him go.
3. and then hopes the robber to come politely to the police station later, when he knows that he has chances to goto jail for some time .

Women too would be extremely happy when they know that any one can grope them, and then if the policemen catches them later, can walk out of the police station easily. It is time for this gentleman to begin the groping again


Honestly, I don't know the people who make/draft these amendments know Cr.PC in its entire true form. I have noticed that the original Cr.PC drafted by the British had such well worded and well defined sections. Loop holes are tough to be found there. Where as each time we water down the Cr.PC (by our netas), some or the other loop hole exists. They just bring in a carpet change of rules (less than 7 years, none can be arrested) without knowing how many criminal offences are there, and what are the sentences they carry.

Have heard the following when having a casual talk with some army people. Don't know if it is true. It seems as per the Army rules an officer's journey (on warrant) cannot exceed more than 500 miles. Drafted by the British this was based on the funda that this was the maximum length of Britain from South of her to the Northern tip. And that as per Indian Army rules an officer still can take a horse (in a horse box) on a train when he is getting transferred. This is free of cost. No, but he cannot take his motor cycle in a similar fashion .

[MohanG]

^^^ I do not know why journalists do not apply their mind.

Indian Penal Code:

392. Punishment for robbery

Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.


509. Word, gesture or act intended to insult the modesty of a woman

Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.

---


Yes, outraging the modesty of a woman is deemed a lesser offence (maximum punishment 1 year). And this offence is a bailable offence. That means that the Police can give bail, there is no need to take the accused to the court. And police does give bail in a majority of such cases. {Actually, it is legally bound to give bail, subject to the normal conditions of bail being accepted by the accused}. And in practice where such cases do go to the court after arrest, it is because there is some other charge tagged on where the police cannot give bail on its own.

Here is what National Police Commission itself said a few years ago:

The law of arrest

By Rajeev Dhavan

INDIA'S LAW on arrest and pre-trial detention are in a mess. The harsh realities are worse. The National Police Commission's Third Report states that 60 per cent of the arrests were unnecessary or unjustified; 42 per cent of the expenditure in the jails was over such persons who ``in the ultimate analysis need not have been arrested at all''. Invaluable information provided by the National Human Rights Commission (NHRC) to the Law Commission in 1999-2000 from each State shows massive arrests for bailable offences (30-93 per cent) or for breaches of peace. Overall, Bihar boasts only 13.9 per cent of such cases. Could it be that one part of the rule of law is alive in Bihar? This is doubtful. Statistics are not enough. Each case tells its own human story.

Reckless and malicious arrests are a big problem. Policemen and Lawyers are the main beneficiaries.

[Sachin]

And in practice where such cases do go to the court after arrest, it is because there is some other charge tagged on where the police cannot give bail on its own

In that case, whats stops the police from doing the same even now? All it requires for them to once again revisit the IPC find out which sections can circumvent this "issuing the memo" rule and put them in the charge-sheet. May be some of the practises which exists now may have to get changed, but if the police really want it they can do it. Even for smaller offences, they can put in a couple of more stricter sections.

Reckless and malicious arrests are a big problem. Policemen and Lawyers are the main beneficiaries.

I understand what you mean to say. But for some criminal activities the arrest and sitting inside the police lockup is the only best medicine to deal with it. Or else (like in cases of eve-teasting and petty thefts etc), a crowd of people can just thrash those people to near death. The police can pick them up, issue a memo and tell them to come back to the police station (if they are fit enough for that) at a later date.

[MohanG]

^^^ Can the police add-on more stringent provisions? Yes they can. It will be more difficult to do so now because the add-on provision will need to have a maximum punishment of more than seven years. Earlier, it was easier because some add-on provisions with a maximum punishment of three year were non-bailable.

If the police really wants to detain someone, there are other ways to do so. A popular method is to use the 'preventive provisions' under Sections 107-116 CrPC. They can arrest under these provisions for preventing breach of peace and produce the guy before an executive magistrate next day. In some cases the executive magistrate (on the request of the police) can decide to send the arrested person to jail by asking such a prohibitively large amount as bail or surety that he cannot furnish - at least not immediately. In many metropolitan towns the powers of the executive magistrate are also with police officers. {This is another area where police sometimes misuses its powers. Now these 'preventive provisions' will be of great help in deterring the types of situations you describe.}

[Sachin]

If the police really wants to detain someone, there are other ways to do so. A popular method is to use the 'preventive provisions' under Sections 107-116 CrPC

Man, you do have a more than rudimentary knowledge of law .

Hmm... this brings to my memory another incident. We had an IPS officer in Cochin (now an IGP rank officer, and deputed to Central Govt) Rishiraj Singh. He was the first person to use this option very effectively.

Goons were having a field day in Kochi, and politicians were supporting them too. The courts too could not do much, because no one came up as witnesses against these goons. Rishiraj Singh brought out this legal point, and to his surprise the arrested person need not be produced before a Judicial Magistrate (Executive would be fine). To make Singh's life easy the Sub-Collector/RDO at Kochi was another chap from up North who was much happy to help out Singh.

Goons were picked up, taken before this Exec.Magistrate who sets a bond of nearly one lakh and two people as sureties. The money need not be paid upfront, but if the goon tries his tactics the people who stood by him will be picked up, and the money would be realised through them. One or two goons were dealt in this fashion just to prove that Singh meant business.

This is another area where police sometimes misuses its powers. Now these 'preventive provisions' will be of great help in deterring the types of situations you describe.

BTW, here is a link of a new Kerala Police Act drafted by the current DGP (then IGP) Jacob Punnoose IPS. If you feel that the Executive is slowly seizing the power and privilege of the judiciary, then this draft may be of interest to you. Please have a look at some of the sections which gives Executive Magistrates and above powers regarding curbing route marches, organisations, physical excercising clubs etc. This in Kerala clearly has political tones to it .

K.P Act (Draft)

[MohanG]

^^

Many states are bringing their own versions of Police Acts: the Supreme Court recently asked them to do so. I went through the draft of the proposed Kerala Act. There are some things I do not like, but let it pass.

I broadly agree that it is important to hand over the Police authorities/ executive magistrates more powers to deal with congregations, traffic, 'public nuisances' etc. These are primarily 'executive' functions (usually they don't involve adjudicatory aspects) with a component of urgency or time-limit. They cannot be entrusted to the regular judiciary. There may be some overlap between the powers of the police/executive magistrates and those of the local authority (Panchayat / Municipal Corporation) that will need to be sorted out, especially because, unlike (say) in US, the local authority does not exercise control over the police (it is responsible to state-level authorities).

[Sachin]

I broadly agree that it is important to hand over the Police authorities/ executive magistrates more powers to deal with congregations, traffic, 'public nuisances' etc.

What I found odd in the K.P Act (Draft) is that it can be easily used by the ruling party against its opponents. Bringing every "physical fitness" centre to police licensing is directly targetted at the BJP/RSS shakhas. Also the right to decide who can hold congregations, route marches etc. This is also primarily targetted against BJP/RSS (pathasanchalans etc.). And my understanding is that these are kind of "summary" powers. No one can challenge them in judicial courts etc.

The gent who drafted the act is a known communist sympathiser. He had made a big controversy by stating that "police men do not need to obey commands from superiors if they feel that it is unjust or illegal". This was after police shooting to death 5 DYFI workers who blocked the route of a minister of the state.

In a heavily politicised state like Kerala, these laws will be heavily misused. There have been cases where there were direct orders from the home minister to book political opponents under "Goonda Act" etc. This is when his own party folks who did the same offence (murder), were let off on bail.

[MohanG]

^^^ I think permission to hold congregations etc. are given routinely. And if there is some congregation that is held periodically (say every day, or every Sunday) then it can be given (say) annual permission.

And you would appreciate that Police might be a trifle unwilling to give such permissions to hold RSS shakhas near some mosques or during a communally sensitive time-period.

There is always a chance that powers can be misused. However, politically (or monetarily) powerful entities can easily fight the denial of permission in the High Court (under its writ jurisdiction).

There are some provisions to reduce politicization. First, a minimum tenure of two years for officers is prescribed. Second, in a case of gross misuse a complaint can be sent to the District Complaints Authority (headed by a retired District Judge) or to the State Complaints Authority (headed by a retired High Court Judge). Politicians do not like these provisions as they tend to reduce their influence.

[Sachin]

And you would appreciate that Police might be a trifle unwilling to give such permissions to hold RSS shakhas near some mosques or during a communally sensitive time-period.

I can understand the genuine concerns of the police men. But my main worry is the politicians arm-twisting them. Plus there are also lots of them in Kerala who have openly shown their political bias. Any ways.. let us leave it at that.

There are some provisions to reduce politicization. First, a minimum tenure of two years for officers is prescribed.

The Home Minister of Kerala was hollering like a 2 year old fat baby when this suggestion was put up. He openly said that transfer at a drop of a hat is the only way to bring policemen to toe the line. He said that belligerent/inefficient policemen can be transferred out, but it should be read as "policemen who don't toe the party line" would be transferred out. In the recommendations put up by the Supreme Court recently, Kerala did not accept this change. Some other states, I heard just ignored the whole thing.

[Nayak]

The bail and 'threat of arrest' business is worth 70-100 crores per annum. 30 % of a revenue of a lawyer is dependent on this cream. Cops and judiciary split the rest of the cream. No wonder lawyers are going bat$hit on losing such a major chunk of indian khwachas.

Tomorrow there is a Dharna by these idiots protesting the CRPC amendment.

The cops are not gonna feel the pinch because they will demand substantially more from the guys who want to get their complaints registered and arrest the 'accussed'.

[K Mehta]

I have a question to law gurus
Why isnt bail money related to your income?
I mean 1 lakh would be easy money for chaitanya nanda but for some common man it would mean most of his savings.

[Sachin]

Why isnt bail money related to your income?

I feel it would be very tough to find out what a person's real income is. Of course you can get it verified for a person working in IT/Vity or may be in government service, but there are lots of people whose income cannot be ascertained. We also have "humble farmer" kinds of people/leaders whose illegal money would run in crores.

I guess Finland is the only nation where the amount a person has to pay as fine etc. is based on one's last drawn income.

[Mohan G]

^^

Not a guru by any chance, but let me say what I think.

The bail amounts are largely upto the discretion of the judge/magistrate. They can ask for a higher bail amount from a wealthy person. More often, they will have some sort of a 'acceptable bail amounts' in mind for a particular type of offence. They will ask everyone for bail for the same amount. Then it is for the lawyers to argue. Prosecution lawyer can say that the bail be denied. Else he may argue for a large amount of bail. Defence lawyer can argue that the defendant is poor and the judge should be lenient etc. The judge then decides.

Unless the case is high profile, or somewhat unusual, the judges do not devote much time in deciding bail applications. It is by and large done mechanically.

As regards fine amounts, they are decided after the person has been convicted. In the trial of major offences, the judge hears both parties after the defendant has been convicted about an appropriate level of fine or imprisonment. And if the defendant is poor, the judge will usually fine less. Of course, the fines prescribed for various offences are very low (as they were decided long time back, and the lawmakers haven't revised them), so in most cases even the maximum fine is no deterrent. Imprisonment is a deterrent, so in some cases, judges will send a defendant to jail, where IMO a harsh fine (if it were permitted by law) (say Rs 20 crores from Salman Khan for killing the Black Buck deer) would have been better.

If there is any doubt about the financial status of a defendant, the judge may ask to see documentation - for example income tax returns or land holding details - to assess his net worth. However, as I said earlier, the bail process is largely mechanical, and no one goes into these details.

[Rahul Mehta]

From a different thread

pandyan: RM - wont the landlord find a cost effective way to win the court cases in the jury system? for ex..one of the jurors mysteriously disappears and others learn from the example....

Pandyan,

Consider a typical landlord who has 50 criminals under him to beat the landless. Now there will 100-200 Jury Trials against these criminals every year. Threatening 1200-2500 Jurors every year is far more expensive than bribing some 5-10 judges who are also the relatives of landlords. And making at attempt to kill 1-2 Jurors per Jury would amount to killing 50-100 Jurors a year and would surely cause poor vs rich civil war. The rich can manipulate poor using intellectuals on their payroll, but they resort to civil war, they are bound to bitterly. So killing 100s or even 10s of Jurors every year is NOT an option.

======

Assuming jury system is brought back tomorrow, what are the immediate issues to be taken care of to ensure the system functions as expected? I can think of at least few:

1a. For jury system to work, there has to be some sense of trust in the public machinery especially the law enforcement wing; only then people would come forward to be part of jury system and ..

1b. know that if the powerful enemies want to physically harm the jurors or their family, government would provide necessary protection (and not lip service).

2. how do you pick the jurors that can positively contribute to closure of the court case? who decides?

3. how do you protect the jurors from intellectual intimidation? especially jurors coming from economically backward part without necessary education/background. ex: jury mix consisting of itvity, mba types, farmer, steel company worker.

4. A more expensive but equally effective option to streamline would be to capture video of the proceedings
(like third umpire...) and make it available as a public record for the people and media to see. intense scrutiny and psychological effect alone would put so much pressure on the courts that the lethargy/bribing/perjury/bias would gradually take a backseat.

1a. There is no "coming forward" in JurySys. The 12-20 citizens are chosen at random and they better serve the Jury Duty or they will be fined. Jury Duty is a small scale Military Duty --- there is no choice. In the law I am proposing, if say 100 cases are registered in a District, then some 2000-3000 people will be summoned. Some may be dead, some may have left town etc and so out of 3000 say 2600 arrive. Then they will be randomly divided to 100 groups of 26 Jurors each, one Jury per case. The lawyers can interview them for 20 minutes each, and each lawyer will reject 4 candidates. SO we have a Jury of 18. They will be randomly divided into two groups of 12 main Jurors and 6 stand by. Thats it. There is no "coming forward". While JurySys varies from District to District, State to State and Country to Country - random selection is the most pious element of JurySys. Remove random selection, and JurySys is not JurySys, it is just another version of useless and corrupt judge system.

1b. In JurySys, the powerful ganglord will be confronting not one Jury, but 100s of Juries --- one per every complaint against him. eg a person like Shri Dawoodbhai who has 100-200 gangster in Mumbai would face about 100-200 Jury Trials a year against him or his gangsters. With due respect to Shri Dawoodbhai, he cant threaten 2500 Jurors every year. And law to enact JurySys should be has to be seen in conjuction with law I propose via which we commons can recall District Police Chiefs, judges, CM, HomeMin. The criminals like Sri Dawoodbhai and Sri Latifbhai thrive only because High Court judges, Supreme Court judges, Ministers and District Police Chiefs support them. With procedures of recall over SCjs, HCjs, CMs, PM, Ministers and DPC, none of them would dare to support such criminals. So with recallable judges, HomeMin and Police Chiefs, strength of Sri Dawoodbhai will decrease. So there is no way Sri Dawoodbhai can threaten 2000 Jurors a year.

2. [Aside : Nothing against you, but the very question shows you never got a chance to read about JurySys. That is because the budheejeevies you have been listening to in newspaper columns, textbooks etc are so hostile to JurySys never wrote about it lest some reader would become pro-Jury. So look at the tragedy --- even a well informed person like you does not know basics of JurySys.] There is no "selection" in JurySys. the Jurors are chosen at random. In the law I have proposed to enact JurySys in India, Jurors are selected at random from population between 25 years and 65 years.

3. Yes, the Jury will consists of all types from people. In JurySys, each Juror wants to convince other Jurors to agree with him. So if any Juror tries to intimidate another Juror, the second Juror will just stop listening to him. So as a result, you rarely see any Juror trying to intimidate other.

4. In the law I have proposed, recording of all court cases will be compulsory. And they will be aired on-line on internet. IOW, there will 100000 courts in India up from existing 17000, and each will have TV camera connected to internet so that anyone in India can see any courtroom live. The online viewing of Supreme Court benches and ALL High Court benches can start within 1 month, but online viewing of 16000-100000 lower courts will take 5 years. But public disclosure is NOT a solution to nepotism and corruption. Since we commons dont have recall procedures, the judges, IPS take bribe in public and dont give a damn. The public disclosure will only give us information on how defunct each judge is --- it will not solve the problem. So while I support public viewing of ALL courts over internet-TV, the solution is Recall-Jury and not Internet based Court-TV.

[Rahul Mehta]

I have a question to law gurus
Why isnt bail money related to your income?
I mean 1 lakh would be easy money for chaitanya nanda but for some common man it would mean most of his savings.

I supporting linking bail with person;s income and wealth. We should have a citizen-ID system where in wealth, income data of every citizen is there, and every court can have a DVD of that data or online link with that data. In addition, we should codify a Bail_Amount function based on Wealth, average income of past three years and seriousness of his crime. This would reduce discretion of the judges, who almost always misuse the discretion.

===

As of now, if a person jumps a bail, his wealth can be confiscated. So though indirectly, bail is attached with income and wealth.

.

[Rahul Mehta]

Rahul Mehta: Consider a typical landlord who has 50 criminals under him to beat the landless. Now there will 100-200 Jury Trials against these criminals every year. Threatening 1200-2500 Jurors every year is far more expensive than bribing some 5-10 judges who are also the relatives of landlords. And making at attempt to kill 1-2 Jurors per Jury would amount to killing 50-100 Jurors a year and would surely cause poor vs rich civil war. The rich can manipulate poor using intellectuals on their payroll, but they resort to civil war, they are bound to bitterly. So killing 100s or even 10s of Jurors every year is NOT an option.

1a. For jury system to work, there has to be some sense of trust in the public machinery especially the law enforcement wing; only then people would come forward to be part of jury system and ..

Pandyan: You haven't answered my primary question...which is...who will protect the jurors if there is an injustice against them just because they participated (either voluntarily or involuntarily) in the process. Would they trust police or the government to provide protection? who will they go to?

Lets confine the discussion to comparisonbetween the judge system and JurySys and not compare anyone with some uncoded ideals. And so a flaw which is present in both systems should not be used against either. Now participation in JurySys is involuntary like a small scale military draft. Now there is certainly some possibility that a criminal's associate will try to harm a Juror. The same applies to the judge system. The criminal can also try to harm the judge. Now your question is : who will protect the jurors against criminal's retaliatory action? The same question also applies on judge system : who will protect the judge? The govt can compensate the victim and govt/police can punish the criminal post facto, but cannot "protect" the Juror or judge or anyone for that matter. So govt can neither protect the judge nor the Juror nor anyone.

In fact, in judge system, protection is a bigger issue. Say a career criminal and his gang members operate in 10 areas. Say in one area, there are 50 complaints against them. Now in judge system, they will all go to one judge where in JurySys it will go to 600-1500 Jurors (In the JurySys I am proposing, the number of Jurors increase with repeated offense, prior conviction, wealth of criminal and severity of crime from 12 to 36). So in JurySys, he will have to threaten 600-1500 Jurors where in judge sys he needs to threaten only one judge. And even if the judge has bodyguards, there is no way to protect the judge or his family members all the time.

So on protection issue, the JurySys is better than judge sys, as number of individuals are 25000 times higher in JurySys. (One judge say handles 60 cases a year, so 1800 cases in his 30 year career. In JurySys it would handled 1800*15 = about 25,000 Jurors. So 1 judge = 25000 Jurors is rough estimate)

So protection issue is there in BOTH system. Equal-equal. All Govt can do is compensate if judge or Jurors is hurt by criminal. Equal-equal. In JurySys, harming Jurors is harder than number of Jurors are several times more. So JurySys is better.

=====

1. The theory of mass injustice against jurors would trigger civil war may be true;

2. ... why should some completely unrelated person pay the price and get dragged into a power struggle because of jury system? If this is the cost/sacrifice people need to make to put the system in place, lets call it that way or lets find a solution for it.

3. however, I am not sure how this can be applied in Indian context as the problems India faces are unique (especially deep TOT between police/neta/criminal nexus) and needs unique solutions.

4. ... how do you ensure quality of the jury to positively contribute to closure of the court case..

5. you can not simply do that by law/force...as they say you can lead a horse to water; but, you cannot make them drink.

1. This far fetched. Civil war happens when one community is against another. The judge sys or JurySys has nothing to do with this.

2. The citizens pay the price of the crimes anyway. The JurySys reduces the price citizens will pay compared to the judge sys. As in judge system, big criminals have nexuses with judges relatives and so they always get away.

3. The hafta culture has spread ONLY because we commons dont have Recall/Jury. No pain, no law. The neta, policemen, judges etc see that pain in breaking the law by taking hafta is almost zero, and so they take hafta everyday. Recall/Jury and other laws I have proposed (such as "Trial By Majority with Prior Consent of Accused") create methods by which citizens can inflict pain on neta, policemen, judges who have taken bribes and thus reduce bribes.

4. In the proposed laws I have drafted, the Jurors are chosen at random. If anyone has a better Jury selection procedure code, he is welcome to provide an draft of an alternate law. I will specify my YES/NO after reading that law.

5. Citizens have a natural Hatred against criminals, corrupt and tax-evaders. This Hatred against criminals, corrupt and tax-evaders is what makes the Jurors active in the case. Every Juror knows that if criminals gets away, the number of crimes will rise and he or his family member can be next victim. And so every Juror does want criminals behind bars and at the same time wants innocents stay unharmed. So till date, in almost all Juries since 1000 AD, Jurors have shown very minimal tendency to escape Jury Duty - far less that efforts people make to dodge Military drafts or witness summons. IOW, if horse is thirsty, and taken to water, he will drink. So given that Jurors have Hatred against criminals, corrupt and tax-evaders, the Jurors do serve their Jury Duty.

[ramana]

The jury system will add further delays to the already tardy justice system. "Delay is the worst form of denial" Parkinson.

So if you have ideas for speedy disposal of the cases they are always welcome. I think trying to bringback a system that was abandoned is a non-starter.

So within the existing system what changes can be brought about?

[Rahul Mehta]

The jury system will add further delays to the already tardy justice system. "Delay is the worst form of denial" Parkinson. So if you have ideas for speedy disposal of the cases they are always welcome. I think trying to bringback a system that was abandoned is a non-starter. So within the existing system what changes can be brought about?

Delay is related with number of courts. We have 3 crore pending cases. One court can dispose say at most 100 cases a year. So to dispose 3 crore in 3 years, we have to dispose 1 crore cases a year, which means we need 100,000 courts. How many do we have? Only 16000 of which 2000 are vacant. So solution to delay problem is in manufacturing 100,000 courts and is not related judge-Jury system.

The judge-Jury issue is about nepotism, nexuses and resulting corruption. The judge system all over world, through out past 5000 years has been known for nepotism and nexuses. Take Chief Justice of Hastinapur Honorable Justice Dhritarashtra or modern day judges --- all have proven to be nepotic and nexused. Where as JurySys has been known to immune to nexuses and nepotism from day one when it started in 950 AD in Britain.

So if 100,000 lakh or more Jury based courts are manufactured, the cases would get disposed within 1-2-3 months, and delay would be minimal. Ditto with judge system. If 100,000 judge based courts are manufactured, delay will be minimal. But the judge based courts will reek with nexus, nepotism. This will only enable elitemen and criminals who hire judges relative lawyers to fleece the commons en-masse. Where as Jury based courts will be free from nepotism, nexuses.

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1. Key difference is judge knows what he is getting into.....whereas jurors are dragged into this.

2. In countries like massaland, there is a lot of trust and respect for police and justice system (it is not perfect; but on the whole less corrupt than system in India) and jury system work quite effectively. If jury system acts as a mechanism for disciplining police force, then I am all for it.

3. What other options have you considered? What are the pros/cons? Since you are the one who took the pain (I appreciate the effort BTW), you probably have done your research and coming up with recommendations. pls. educate us...

1. The judge is serving willingly where as Jurors are unwilling, but not hostile. Now as of today in India, this goes against judge system because the judge is eager to be a judge because of bribes he gets via relative lawyers. So willingness and eagerness does not make him a better judge.

2. Americans have respect for police and courts, because police and courts are less corrupt and less unfair. And police is less corrupt ONLY because West has been using Coroner's Jury System and Jury System since 950 AD. We often wonder "why policemen in West are less corrupt and defunct than policemen in India". Well, lets ask the same question in different way. "When did policemen in West became better than policemen of India?". Back in 800 AD, you will see that policemen in Britain and India were equally corrupt and defunct - agents to serve the elitemen and beat the commons recklessly. The change in British police came only after 950 AD when Coroner's Jury System came in place where in 6-20 commons were chosen at random to decide if the accused policeman should be expelled. It was only after around 950 AD British police became better than Indian police. Out major 100 countries in the world, some 15 have JurySys and 85 dont. Every country with JurySys has very low corrupt police -- 100% success ratio unseen in sociology and politics. And in judge system, out of 85, only 4-5 countries have low corruption policemen. And some of this countries, like Japan and South Korea are now switching to JurySys.

3. I have considered many options, but JurySys outsmarts all of them when it comes to reducing nepotism and nexuses. It is proven, time tested and has been a winner since the day it first came in 950 AD. The judge system is a 5000 year old failure.

==========

And now importantest question

4. Since neta are the ones who are going to make this into a law, and given the documented drawbacks for them, how do you plan to take it to the next level....i.e. process of converting the proposal into a law?

I have drafted following executive notifications, which when PM and SC-Cj signs in India, we shall have the JurySys : http://rahulmehta.com/improve_courts.htm#a_0012

Now as long as MPs, PM, SCjs have their monopoly over law-making, we commons will never see JurySys in India. The commons of West managed to get JurySys because the commons there were armed to teeth, which is not a case in India as of now. So how do we force PM, SC-Cj to sign the executive notifications needed get JurySys and other laws? Well, I have started a political party named as MRCM-Recall Party aka 'Right to Recall Party' to start a mass movement to force PM to sign this executive notification rahulmehta.com/mrcm_demand_01.htm . I call this notification as First MRCM-Recall Demand. Once we commons succeed in forcing PM to sign this executive notification, we commons will get procedure to make laws, for all practical purpose. But then, how would I motivate commons and convince them to force PM to sign this proposed first notification? The money they can get from Third MRCM-Recall Demand rahulmehta.com/mrcm_demand_03.htm will serve as motivation.

So in a nut shell : rahulmehta.com/mrcm_demand_03.htm is what will motivate commons to force PM to sign rahulmehta.com/mrcm_demand_01.htm . And once rahulmehta.com/mrcm_demand_01.htm comes, we commons can enact JurySys without any help from PM, SC-Cj, MPs etc using the First MRCM-Recall Executive Notification.

[Rahul Mehta]

solutions to delay problem in courts

0. Imposing wealth tax of 1% and inheritance/gift tax of 10% dedicated to create funds for police/courts

1. JurySys : the judges have nexuses with criminals and delay the cases so that criminals get ample time to harass and frustrate the witnesses. JurySys ensures low level of nexuses and since one Jury has only one case, the case will get disposed in 5-10 days in most cases

2. Manufacturing 100,000 courts.

3. National-ID system and tagging all police records, land ownership, bank transactions, everything that exists with National-ID. Computerization of everything.

4. Posting summons on National Bulletin Board for the individuals who have pre-agreed that they will respond to summons posted on National Bulletin Board

5. Posting all judgments on internet with National-ID of all parties involved

6. Increasing number of policemen from 15,00,000 to 45,00,000.

7. Recruiting judges ONLY by written exams, no interviews

8. Increasing number of public prosecutors from 40,000 (?) to 400,000 . PPs will forma dedicated cadre like IAS. No private lawyers allowed in GoI prosecutorial bodies. PPs will be recruited by written exams ONLY.

9. Grand Juries to aid PPs

etc etc. Byw, point-0 is of paramount importance. Without wealth and inheritance tax, Indian Military, Police and Courts are beyond repair.