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Clear the jails first

There are 250,000 people languishing in jails waiting for the courts to hear their cases. But far from facilitating the release of those who have been detained for years, the amendment to the Criminal Procedure Act is a reversal of many Supreme Court decisions, writes Colin Gonsalves.

12 August 2007 - The Code of Criminal Procedure (Amendment) Act, 2005 has been welcomed in the national media as heralding the release of 50,000 undertrials many of whom have been languishing in jails for years without their trials even beginning. Nothing could be farther from the truth. The amendment is, in fact, a reversal of the Supreme Court decisions from 1996 onwards in the Common Cause and the Raj Deo Sharma cases.

In the Common Cause cases in 1996, the Supreme Court found that in many cases where the persons were accused of minor offences, proceedings were kept pending for years. The poor languished in jail for long periods because there was no one to bail them out. The criminal justice system operated as an engine of "oppression". The Supreme Court then directed that, depending on the seriousness of the alleged crime, those in jail for a period of six months to one year would be released either on bail or personal bond, provided their trials were pending for one to two years.

The Supreme Court then issued directions for the closure of cases and the discharge of the accused. Cases where trials had not commenced for specific periods of time were to be closed. Cases relating to corruption, smuggling, terrorism and the like were exempted. It was clarified that the accused would not be permitted to deliberately delay the criminal proceedings and then take advantage of the time limits fixed.

In the Raj Deo Sharma cases in 1998 the Supreme Court referred to its 1980 decision in the Hussainara Khatoon case where the Supreme Court held that "financial constraints and priorities in expenditure would not enable the government to avoid its duty to ensure speedy trial to the accused". The Court thereafter proceeded to issue guidelines for the closure of prosecution evidence and the release of the accused on bail after a certain period of time. It was clarified that "no trial could be allowed to prolong indefinitely due to the lethargy of the prosecuting agency".

Despite these directions given by the Supreme Court ten years ago, the criminal courts failed to release persons on bail and close trials.

The law was reviewed by a Constitutional Bench of the Supreme Court in P Ramachandra Rao's case in 2004 where the directions relating to the closure of cases and the fixing of time limits for trials were set aside saying that it was "neither advisable nor practicable" to do so. As a result, the rot in the criminal justice system deepened and from time to time pathetic stories emerged in the national media on undertrials languishing in jails for decades, but nothing was done.

The present criminal amendment is a reversal of the guidelines laid down in the Common Cause and the Raj Deo Sharma cases, first of all because they do not lay down any time limit for a criminal trial to end. Secondly, whereas in the earlier decision an accused was entitled to be released on bail or personal bond after being in jail for six months to a year depending upon the seriousness of the crime alleged, now that has been enhanced to half the period of possible incarceration i.e. one-and-a-half to three-and-a-half years. If under the earlier decisions of the Supreme Court undertrials were not released there is no reason for us to believe that under a more stringent regime, justice will be done.

There are over 250,000 undertrials languishing in jails even though the law presumes them innocent unless convicted. In many cases despite years going by the trials have not begun. Seven out of every ten persons in jail are in this situation. Overcrowding in jails is routine, in some jails as high as 300 percent. Inmates sleep in shifts. Possibly no country in the democratic world keeps its people behind bars in the manner India does. The overwhelming majority of those incarcerated are poor, Dalits, Adivasis and Muslims. That the system operates harshly against these sections is an understatement. It operates only against these people.

The reluctance of the State to clear the jails of the poor is more by design rather than accident. The arbitrary powers to keep a person confined without a guilty verdict is necessary for a State and its police that rules by terror. The Criminal justice system is not really interested in the determination of truth ensconced in the final verdict, rather it is a massive arbitrary system of preventive detention where the ultimate verdict is of no concern as long as the accused picked up by the police languish many years in jail prior to acquittal. Those who criticise the State for the low rate of conviction miss this point; that conviction was never the intention of the police in the first place. This accounts for the sloppy state of forensic investigation and the reliance placed on the lathi over the law.

The other changes brought about by the criminal amendment are also equally vague or dangerous. The amendment in 50-A of the CrPC introduces the Supreme Court's guidelines in DK Basu's case but leaves out the crucial element of giving notice to the family of the person being arrested in writing. This was important because the police routinely lie about giving notice verbally. The amendment to Section 53 is positively dangerous because it seeks to introduce in a sly manner lie detector and narco-analysis tests as admissible in evidence.

In most democratic countries these tests are deemed to be of dubious merit and are not admissible. The amendment to Section 122 seeks to strengthen police power in chapter cases by incarcerating people purely on the basis of suspicion. As the law stands today such persons are to be released on them signing a bond for good behaviour. Now the magistrate will be empowered to ask for sureties which is complicated and difficult for the accused to obtain.

Thousands of poor people are languishing in jail under this Section. Section 291-A is designed to prevent the magistrate who supervises the test identification parade, the cornerstone of a criminal trial, from being summoned to give evidence in court. These are the negative changes sought to be introduced by the criminal amendment. A better way out for the State is to declare an amnesty and to clear the jails of 100,000 poor prisoners on Independence Day. ⊕

Colin Gonsalves
12 Aug 2007

This article is reproduced from Volume 6, Issue 4 of Combat Law, through Space Share, our collaborative program for other publishers. The entire set of articles in this issue can be found on this page.

http://www.indiatogether.com/2007/aug/hrt-jails.htm

Develop Your India
Open Source Movement India (OSMI)

Justice served after 29 years

By HT, Tuesday, August 14, 2007, 01:06 AM

Twenty-nine years after a private bus ran over a man in East Delhi, the Delhi High Court on Monday sentenced its driver to an year's rigorous imprisonment for rash and negligent driving causing death.

The case is unique in the sense that the accused Desh Raj in a way "helped" the prosecution to secure his conviction after a lower court acquitted him in March 1985 for "want of evidence". The state moved the High Court against the acquittal, but the police, during the long drawn trial had lost all its records of the case. Raj, according to Justice J. M. Malik "was kind enough to provide the copy of the case documents he had. Ironically, he was punished on the basis of that. It was the manner in which he left the victim to die and fled the accident scene that earned him the punishment. Otherwise the court was inclined to take a lenient view".

"Although the case is pending since 1979 and as such, the accused deserves a lenient view, yet on the other hand, the court cannot wink at the fact that the accused ran away from the spot without caring for the deceased," Justice Malik said. The trial court had acquitted Raj after three witnesses had given the wrong registration number.

http://in.news.yahoo.com/070813/32/6jehw.html

Court makes woman pay for harassing hubby

KS Tomar, Hindustan Times, Email Author, Jaipur, August 10, 2007

IN A rare case of its kind, a woman was punished by a Jaipur court for trying to spoil her husband’s career.

Computer engineer Namrata Bangra was ordered to pay a fine of Rs 25,000 for making life difficult for her husband Ankur Bangra, who is also a computer engineer.

Additional district judge, Prithvi Raj imposed the fine on Namrata under the Domestic Violence Act, 2006.

The judge also dismissed an appeal filed by Namrata, now unemployed, to enhance the maintenance allowance being given to her by her husband from Rs 4,000 to Rs 23,000 per month.

The judge ruled that complainant used to work in a multinational company and earned big salary hence she could get a job again.

The judge said that Ankur produced two e-mails in the court to prove that his wife had illicit relations with another person. The court recognised the authenticity of the mails and dismissed her appeal.

The judgment said Namrata had tried to involve her husband in litigations and intended to spoil his career.

The appeal filed by Namrata alleged that her husband Ankur had demanded a Honda City car prior to their marriage and used to beat her regularly after they began living together.

She alleged that Ankur used to pressurise her to withdraw money from her bank and forced her to sign on blank sheets of papers.

She told the court that she had to leave her job and that the lower court had granted her a maintenance allowance of Rs 4,000 per month, which was too little. She appealed to the additional district judge to raise her allowance to Rs 23,000. In his defence, Ankur said his wife had lodged a false FIR at a local mahila police station, which found the charges baseless.

He said he had returned all the belongings and items she had brought with her when they married. Ankur alleged his wife was having extra-marital relations with her boss during her stint with a multinational company in Pune.

He produced e-mails to buttress his charge in court.

“When I came to know about the e-mails, my wife lodged a false FIR in a mahila police station to cover up her crime,” he said.

Sampat Singh, in-charge of the mahila police station, said “I had investigated this case and found that an FIR filed by Namrata was baseless. This has been conveyed to the court.”

http://www.hindustantimes.com/StoryPage/StoryPage.aspx?id=5be953a7-44b3-49b0-a3c5-27b27fd97137&MatchID1=4502&TeamID1=2&TeamID2=6&MatchType1=1&SeriesID1=1122&PrimaryID=4502&Headline=Court+makes+woman+pay+for+harassing+hubby

Brides dumping NRI grooms in a hurry

Friday, August 10, 2007, 11:19 IST New Delhi

Men are suffering! Surprised? Read on.

• Within a week of marriage in 2002, Toronto-based electronics engineer Raghu Modi was told by his wife (a New Delhi resident) that she had married him for visa and had no intention of terminating her relationship with her paramour.

After Modi refused to process the immigration formalities for his wife, she filed a “dowry” case against him and demanded Rs 26 lakh to “settle” the case. Unable to bear the harassment, Modi paid Rs 7 lakh to settle the case. Within a month, his wife married her paramour.

• New York-based Jaspreet’s wife — a registered medical practitioner — filed a “dowry” case against her husband and his entire family shortly after their marriage in 1998. Later, her family came up with a compensation demand of Rs one crore. Unable to bear the stress, Jaspreet’s father passed away in India, but neither Jaspreet nor his brothers were able to perform the last rites – as Interpol Red Corner Notices were pending against them. Jaspreet has been engaged in a labyrinthine process of litigation in Indian courts for the last eight years. Meanwhile, his wife has remarried in the US.

• Riyadh-based Iliyas Ahmed has a dowry case pending for his refusal to concede his wife Husna’s demand for bearing the entire expenses of her family. Husna’s family members in Bangalore have attacked his family home on several occasions and Illiyas has been unable to visit India.

• Shortly after Mandeep arrived back in Canada after his marriage, his wife Jasvinder deserted him after admitting that she had married him only for a visa. In accordance with the Canadian immigration laws, he provides financial support to his “vanished wife.”

These are samples of case studies collected with aims of presenting the converse side of the story of NRI marriages by ‘Rakshak’— an international organisation dedicated to elder abuse. ‘Rakshak’ works in close conjunction with 498a.org — a leading international forum engaged in researching the impact of misuse of gender biased laws such as Section 498 A of the IPC.

The phenomenon of abandoned brides is one that has received huge media attention, but a new trend of “vanishing brides and abandoned grooms” has somehow escaped attention, said Dr Anupama Singh of ‘Rakshak.’

At a teleconferencing session on Thursday, several NRI men recounted stories of having been dumped by unscrupulous wives — who take advantage of gender-biased laws by filing false cases of domestic violence and dowry abuse to harass and extort money.

Statistics, Dr Singh said, speak for themselves: Against the number of 152 cases registered of “abandoned wives”, the number of cases of “abandoned grooms” is around 700.

Also, the courts have declared 80 per cent men charged under Section 498-A innocent, she pointed out.

Section 498-A of the IPC is a criminal law in which the wife and her family can charge any or all of the husband’s family for physical and mental cruelty.

http://content.msn.co.in/News/National/NationalHT_100807_1119.htm

'Corrupt' sub-inspector in CBI custody for four days

By HT, Friday, August 10, 2007, 01:08 AM

A city court on Thursday remanded Delhi Police Sub-Inspector Vipin Kumar, who was caught accepting bribe, in four days' CBI custody. The investigating agency produced Kumar before Special Judge S.K. Kaushik for seeking his remand. Kumar was caught by a CBI team accepting a bribe of Rs 25,000 from a person accused of vehicle theft at the Paschim Vihar police station on Wednesday. He had allegedly demanded Rs 2 lakh in bribe, which was brought down to Rs 50,000.

CBI officials said on searching Kumar's cabinet, the raid team found six locally made fire arms, 200 gm charas and Rs 60,000 cash, indicating his involvement in some illegal activities. Curiously, when the CBI team landed at the police station, Kumar's seniors beat a hasty retreat. "As soon as the CBI squad reached there, the station house officer and the ACP ran away. They came back only after the area deputy commissioner of police was contacted by the CBI. The DCP advised them to return and cooperate in the investigation," said a CBI source.

CBI officials said while the other officers may not be involved in this particular case, there was a possibility that some kind of illegal activity was on at the police station. Kumar had allegedly demanded Rs 2 lakh in bribe, which was brought down to Rs 50,000.

http://in.news.yahoo.com/070809/32/6j99f.html