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LAW RESOURCE INDIA

In a blow to every corrupt politician or bureaucrat shielded by the executive’s unwillingness to let them stand trial, the Supreme Court on Tuesday set a three-month deadline for governments to decide whether or not to grant sanction for prosecution under Section 19 of the Prevention of Corruption Act.

A Bench of Justices G.S. Singhvi and A.K. Ganguly was allowing a petition filed by Janata Party president Subramanian Swamy, who questioned the delay on the part of Prime Minister Manmohan Singh, the sanctioning authority, in granting sanction for prosecution of the former Telecom Minister, A. Raja, in the 2G spectrum allocation case.

The Bench gave two concurring judgments and held that Dr. Swamy had the locus standi to file a private complaint and seek sanction for prosecution. Justice Singhvi said: “Keeping in view the fact that the Special Judge, CBI, has already taken cognisance of the offences…

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LAW RESOURCE INDIA

Reproduced here are excerpts from the concluding paragraphs of the Supreme Court’s verdict cancelling 122 2G licences issued during A. Raja’s term as Minister of Communications and Information Technology.

69. …There is a fundamental flaw in the principle of first-come-first-served inasmuch as it involves an element of pure chance or accident. In matters involving award of contracts or grant of licence or permission to use public property, the invocation of first-come-first-served principle has inherently dangerous implications. Any person who has access to power corridor at the highest or the lowest level may be able to obtain information from the Government files or the files of the agency/instrumentality of the State that a particular public property or asset is likely to be disposed of or a contract is likely to be awarded or a licence or permission would be given. He would immediately make an application and would become…

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The Code of Criminal Procedure 1973 has been  amended for reforms in the Criminal Justice System. The Bill received the presidential assent on 08.01.2009.

Many of the Provision go in to strengthen the SAARC PROTOCOL and is a welcome step by the Government of India.

One of the Key work of the National Network of Lawyers for Rights and Justice will be to get the new amendment implemented.

THE CODE OF CRIMINAL PROCEDURE (AMENDMENT) ACT, 2008

Definition of a Victim:

In section 2 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the principal Act), after clause (w), the following clause shall be inserted, namely:—‘(wa) “victim” means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir;’

Victim Can engage Advocate to support and help the Prosecution

In section 24 of the principal Act, in sub-section (8), the following proviso shall be inserted, namely:— “Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section.”

Statement of the Victim to be done in a safe place or a place of her choice and by a women police officer

In section 157 of the principal Act, in sub-section (1), after the proviso, the following proviso shall be inserted, namely:—

“Provided further that in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality.’’.

Use of Audio Video for Statements

In section 161 of the principal Act, in sub-section (3), the following provisos shall be inserted, namely:—

‘‘Provided that statement made under this sub-section may also be recorded by audiovideo electronic means.’’.

Use of Audio Video for Confession/Statement

In section 164 of the principal Act, in sub-section (1), for the proviso, the

following provisos shall be substituted, namely:—

“Provided that any confession or statement made under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence:

Provided further that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.”

Investigations of Child Sex Abuse to be done in time bound

In section 173 of the principal Act,—

(a) after sub-section (1), the following sub-section shall be inserted, namely:—

“(1A) The investigation in relation to rape of a child may be completed

within three months from the date on which the information was recorded by the officer in charge of the police station.”;

b) in sub-section (2), after clause (g), the following clause shall be inserted, namely:—

“(h) whether the report of medical examination of the woman has been

attached where investigation relates to an offence under sections 376, 376A, 376B, 376C or 376D of the Indian Penal Code.”.

Witness Can Be Done By Using Electronic Means

In section 275 of the principal Act, in sub-section (1), the following proviso shall be inserted, namely:—

“Provided that evidence of a witness under this sub-section may also be

recorded by audio-video electronic means in the presence of the advocate of the person accused of the offence.”.

In  Camera Trials and identity protection

In section 327 of the principle Act,—

(a) in sub-section (2), after the proviso, the following proviso shall be inserted, namely:—

“Provided further that in camera trial shall be conducted as far as

practicable by a woman Judge or Magistrate.”;

(b) in sub-section (3), the following proviso shall be inserted, namely:—

“Provided that the ban on printing or publication of trial proceedings in

relation to an offence of rape may be lifted, subject to maintaining confidentiality of name and address of the parties.”.

Victim Compensation

After section 357 of the principal Act, the following section shall be inserted, namely:—

“357A.

(1) Every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation.

(2) Whenever a recommendation is made by the Court for compensation,

the District Legal Service Authority or the State Legal Service Authority, as the case may be, shall decide the quantum of compensation to be awarded under the scheme referred to in sub-section (1).

(3) If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may make recommendation for compensation.

(4) Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation.

(5) On receipt of such recommendations or on the application under sub-section

(4), the State or the District Legal Services Authority shall, after due enquiry award adequate compensation by completing the enquiry within two months.

(6) The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of the victim, may order for immediate first-aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer in charge of the police station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit.”

Right to appeal for the Victim against the verdict of the Trial Court

In section 372 of the principal Act, the following proviso shall be inserted, namely:—

“Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.”.

The Researcher is a Practsing Advocate in The Supreme Court of India

ravikantsv@gmail.com

Victims of any crime and of human rights violations (regardless of their legal status) have a right to be compensated for the losses sustained due to the crime committed on her/him. Compensation can be sought through criminal, civil or administrative procedures, and can be awarded for material (including unpaid wages and medical expenses) and non-material (such as for pain, suffering and trauma) damages). The victim of a criminal act can claim for compensation from the offender as part of a criminal case. Compensation has to be ordered by the court and is part of a guilty verdict. In criminal cases victims can directly apply for compensation and thus, it is important that prosecutors are aware of the existence of this right to request the judge to make such order. Trafficked persons, as with all victims of human rights violations have a right to a remedy. This means they have a right to access criminal, civil and/or administrative procedures for seeking financial redress – compensation for material and non-material damages resulting from the crime committed to them, unpaid wages, restitution from the offender and other forms. The Legal Professionals should lobby with their governments for such compensation which is. Once such compensations become mandatory there will be reverse pressure on the Law enforcement to break the criminal networks which

In India the National Commission for Women has proposed a Criminal Injuries Compensation Board for the payment of compensation to victims of Rape . This proposal has been done on the Directives issued by the Supreme Court of India in the case Delhi Domestic Working Women’s Forum Vs. Union of India and others writ petition (CRL) No.362/93 had directed the National Commission for Women to evolve a “scheme so as to wipe out the tears of unfortunate victims of rape’’ The Supreme Court observed that having regard to the Directive principles contained in the Article 38(1) of the Constitution, it was necessary to set up criminal Injuries compensation Board, as rape victims besides the mental anguish, frequently incur substantial financial loss and in some cases are too traumatized to continue in employment. The Court further directed that compensation for victims shall be awarded by the Court on conviction of the offender and by the Criminal Injuries compensation board whether or not a conviction has taken place. The Board shall take into account the pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of child birth if this occurs as a result of rape.

Salient features of the Scheme of Rehabilitation of Trafficked Victims is as follows:

(Source http://www.ncw.nic.in/schemeforrehabilation.pdf)

DISTRICT MONITORING COMMITTEE –

The State Government shall establish in every District, a Monitoring Committee, which shall be headed by the Superintendent of Police of the District. The committee shall comprise of the following other members, whom the District Collector/District Magistrate would nominate:

(i) A police officer, preferably a woman

(ii) A woman social activist or a counsellor;

(iii) A Lawyer

(v) A Medical doctor;

(vi) A representative of the Panchayati Raj Institution or Municipality

The District Monitoring committee shall perform the following functions;

(a) To arrange for psychological and medical aid and counseling to the victim.

(b) To arrange for legal aid to the victim in filing the FIR till the conclusion of the trial;

(c) To initiate suitable measures to ensure the protection of the victim and witnesses till the conclusion of the trial.

(d) Monitor and expedite the progress of the investigation.

(e) To aid and assist in opposing bails, filing appeals and making

application for protection of the victim.

(f) In cases of young victims, to see that they receive education or

professional training or training for self-employment.

(g) To assist them in securing employment.

(h) To provide the required psychiatric treatment/counseling

(i). To facilitate the victims’ rehabilitation.

(j) Initiate action so as to ensure Anonymity of the victims.

(k) Ensure that Interrogations of the victim be conducted by female police

officers. During all stages of interrogation and examination of the victim or the applicant, at least one member of the DMC is present.

(l) To arrange shelter to the victim, for such period as the circumstances warrant.

(m) And such other functions as may be deemed expedient and necessary by the committee given the peculiar facts and circumstances of each case;

PROCEDURE FOR TRANSACTION OF BUSINESS BY THE DISTRICT BOARD (CIRRB):

(a) A victim, or her legal heir or any person/voluntary organization espousing the cause of women, or DMC may apply to the District Board for financial relief and rehabilitation in accordance with the provisions of this Scheme.

(b) Where the legal heir is:—

(i) A child, the application may be made on his behalf by a parent or guardian or by any voluntary organization.

(ii) A mentally ill person within the meaning of the Mental Health Act, the Application may be made by the person with whom the victim normally resides or a duly authorized medical officer or a voluntary organization; or by a parent/guardian.

(c) An applicant shall submit the following documents, as applicable, with the application:

(i) Medical certificate, where the application is being made by or on behalf of the victim; or

(ii) The death certificate of the victim, where the application is being made by a legal heir.

(iii) Copy of FIR/Complaint.

(d) On receiving the application and after having been prima facie satisfied that a case of rape has been made out, the Board shall order an interim financial relief of Rs.20, 000/-.

(e) The Board shall as far as possible grant the interim relief within a period of three weeks from the date of receipt of the application;

(f) Before awarding the interim and other relief’s, the Board shall satisfy itself about the claim, make a preliminary assessment about the nature of the claim as well as take into account the medical report and other evidences;

(g) The Board shall take the assistance of the District Monitoring Committee before arriving at any decision

(h) The Board may take other measures for the purposes of the rehabilitation or any special needs of the victim in addition to the financial relief

(i) In case of victims who belong to schedule caste / schedule tribes, the provisions of the scheme shall be in addition to the provisions prescribed for grant of relief under the scheduled caste and the scheduled tribes (prevention of atrocities) Act 1989. However, the District Monitoring Committee while deciding the relief under this scheme shall take into account the compensation payable to the SC/ST victim under that Act.

(j) The Board shall dispose the application for relief and rehabilitation within one month from the date on which the complainant gives her evidence or within one year from the date of receipt of the application whichever is earlier; In deciding the application for financial relief, the Board shall be guided by, but not completely controlled by, the stand of the applicant in the trial.

(ja) the Board shall release balance amount of RS 1.30 Lakh and any amount unspent towards relief and rehabilitation measures to the victim subject to the fixed limit as prescribed

(k) The Board shall as far as possible, award financial and other relief’s, as per the heads specified in the scheme.

(l) Award the compensation to the victim in lump sum subject to a maximum of Rs.2, 00,000/-. While awarding the final relief, the Board shall take into account the interim and other reliefs granted.

(m) The Board shall be guided by the peculiar needs of the victim in deciding the amount of compensation to be granted in each case;

(n) The financial relief that is awarded by the Board is in addition to rehabilitation measures that the Board may suggest/ administer in each case.

(o) In cases where the victim is a minor, the amount shall be paid to her guardian or next friend after satisfying itself about the legitimacy of the person for relief and rehabilitation of the victim;

(p) The Board shall keep the Best interests of the victim in mind at all times;

(q) The Board May reject any application where it is of the considered opinion that:-

(i) The applicant failed to take, without delay, all reasonable steps to inform the police, or other body or person considered by the Board to be appropriate for the purpose, of the circumstances giving rise to the injury; or

(ii) The applicant failed to co-operate with the police or other authority in attempting to bring the accused/assailant to justice; or

(iii) The applicant has failed to give all reasonable assistance to the authority or other body or person in connection with the application;

Recent Update:

The Code of Criminal Procedure 1973 as amended by  The Code of Criminal Procedure (Amendment) Act 2008 ( 5 of 2009) has now an added provision in the form of the section 357-A on victim compensation.

Section 357- A

(1)   Every State Government in coordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependants who have suffered loss or injury as a result of the crime and require rehabilitation.

This added provision will now be an important tool in the hand of activist to push forward for victim compensation. This is strengthens the provision of Victim Protection in SAARC Protocol.

The author is practising Advocate in The Supreme Court of India

ravikantsv@gmail.com

Lawyers take Maya statues to court

New Delhi: The Mayawati government’s gigantic project to glorify her as the greatest ever dalit leader by installing her statues in prime cities of Uttar Pradesh is coming under the Supreme Court’s hammer.

Concerned at the gross wastage of public money, two lawyers on Thursday moved Supreme Court, seeking a direction to the overzealous state government to stop wasting public money in this fashion.

Petitioners Ravi Kant and Sukumar also sought a direction to CBI to probe the multi-million-rupee statues’ scam.

According to the UP government, it has spent Rs3.49 crore on Mayawati’s eight statues at five memorials coming up in Lucknow. It spent another Rs3.37 crore on seven statues of her mentor, Kanshi Ram. Another Rs52.20 crore is being spent on 60 statues of elephants — the BSP’s election symbol — at these memorials. Each elephant statue, complete with a granite pedestal, costs Rs87 lakh.

The petitioners said installing the elephant statues violates the election code that prohibits any ruling party from glorifying its election symbol at tax-payers’ money. In response to lawyer Ravi Kant’s query under RTI, the state government said the largest statues of Mayawati and Kanshi Ram were installed at Pratibimb in Bhimrao Ambedkar Samajaik Parivartan Stahl, Gomti Nagar. The two 24-ft high bronze statues cost Rs1.55 crore each.

The petitioner regretted that the state that is in dire need of funds for social emancipation, public health and education is indulging in wasteful expenditure. UP is among the five states having highest neo-natal mortality. As per the 2001 census, the state has the highest no of child labourers and maximum number of poor, with 59 million below the poverty line.

Of its 97,122 villages, only 56,977 have power. “In this scenario, construction of statues and memorials is a complete misuse of funds,” the PIL says.

http://www.dnaindia.com/india/report_lawyers-take-maya-statues-to-court_1266341

PIL challenges UP govt’s love for statues of Maya and elephant

19 Jun 2009, 0328 hrs IST, TNN

NEW DELHI: A public interest petition in the Supreme Court has questioned the Uttar Pradesh government’s decision to misuse public funds to erect statues of chief minister Mayawati and instal replicas of elephants, which is the symbol of the ruling BSP, at prominent places in the state.

The PIL filed by two advocates Ravi Kant and Sukumar accused the Mayawati regime of being obsessed with self-glorification at the cost of the exchequer and termed this as a misuse of state funds for no public cause.

Seeking an inquiry into the manner in which the funds have been utilised to erect her statues and the replicas of elephant at important places and parks all over the state costing the exchequer hundreds of crores of rupees, the petitioners said any policy of the state that involved spending tax-payers’ money for such a wasteful purpose should not be allowed to be continued.

“Petitioner challenges the policy of the state government to construct large number of statues of chief minister Mayawati and spending of hundreds of crores of rupees for self-glorification of Mayawati,” the PIL said.

“It also challenges installation of 60 replicas of elephants at a cost of Rs 52.5 crore, which is the election symbol of the ruling Bahujan Samaj Party,” it said.

http://timesofindia.indiatimes.com/India/PIL-challenges-UP-govts-love-for-statues-of-Maya-and-elephant-/articleshow/4672898.cms

The Serial Blast in Delhi on September13, 2008 and then the subsequent shoot out in Batala House has become very controversial Issues for Delhi Police. Media Reports are afloat about the very truthfulness of the encounter. Frustrated Lawyers like Shanti Bhushan and Prashant Bhushan have raised fingers on the incident. While International Activist who have made no contribution to India like Arundhati Roy have lined up at Tis Hazari to make a hero out of misguided youth.

The fact that Inspector Moolchand Sharma was killed in the encounter has certainly silenced many critics but still the rumour on the encounter continues.

These people who are coming out in favour of the misguided youth who had indulged in Hard core criminal activity which killed more than 200 plus people, injured thousands and put the fear of bombs on the psyche of billion Indians are themselves of perverted mind who have no contribution for the nation.

So the question comes – What should the Police do to combat such act of terror. The terrorist are armed and out there to kill. They have no emotions. For them killing is celebration. So how do you tackle people of such mentality? If the Police do not do anything it is made the beating boy by the press and our political class .If they carry out any action it is said that they are indulging in false encounter. So what should the Police do? Will frustrated activist like Prashant Bhushan, Arundhati Roy and some politicians come forward to tackle terror? If there own had died in terror they would have never made such statements.

The police have a tough task cut out. They have to arrest and prosecute the perpetrators of these heinous crimes. If the encounter is false then who killed Mool Chand Sharma. What about the constable who was injured. What about the information’s on the lap top which will be court evidence? What about the corroborating evidence. What about the many circumstantial evidences. What about the various recoveries on the statements of the people arrested. What about the travel documents of the arrested persons. How where these youth in touch with terrorists? How did they go to Bangalore to bring the bombs? And how could the police engineer so many people together from Azamgarh. The people who are making tall claims of false encounter need to answer these questions. It is good that the NHRC will be conducting a enquiry.

Our Criminal Justice system is time tested. An accused who is not proved guilty is merely an accused and not a criminal. These frustrated activists should let the Justice system decide rather to give out populists statements. Of course the youth who have been accused are youth but they are matured adults also. They should have understood what they are doing. Even our Juvenile Justice Act which goes all out for the welfare of the Children does have reformatory provisions for delinquent children.

The Indian Penal Code on Children who commit crime states that:

Section 82. Act of a child under seven years of age

Nothing is an offence which is done by a child under seven years of age.

Section 83. Act of a child above seven and under twelve of immature understanding

Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.

When we examine these provisions it is amply clear that the law stresses a lot on maturity or understanding.

In the present case these youth were all mature and had reasoning as most of them were educated. Also they were adults and not juvenile. Therefore they should fight there case as per the law and get themselves acquitted if they are innocent. People like Prashant Bhushan should defend these youth and let the law take its own course. If innocent they will certainly be acquitted.

I pray to God that the youth turn out to be innocent. It really pains to see such young people falling to the nefarious designs of the Terrorists. It pains to see the broken homes of these young people. Also if they are innocent at least we will not have to fight our own blood and brothers. I say this because I am not a muslim , I say this because I am not a Hindu beating secularists but I say this because I am an Indian and I will always be pained to see my brothers in the present condition.

Questions raised by frustrated activist lower the morale of the Police rank and file. No one will be ready to sacrifice their life when they know that questions will be raised. What do these frustrated activists like the police to do in combating terrorism? Call them and tell them to give a clearance before any operation is done.

Professor Mushirul Hasan has reacted in a breach of discipline. He was not pained by the campaign against his university but he wanted to appease certain sections of the Society and some politicians who run there business on secularism. Let the Vice Chancellor of Jamia Millia Islamia give a list of students who have been provided legal aid in the last ten years to students who have been booked for crime. Not a single might have been supported, so why to day they are trying to offer legal aid.

In India right to representation in court and legal aid is mandatory and if any one is not able to hire a lawyer he can approach the court for it.

Concern:

The immediate concern for all nation loving people is the dangerous trends which have been reported. How young educated students are being roped into this. How the terrorists are recruiting are youth and training them to kill our own citizen. If we are made to fight against our own people we will never win the war against terror. This is a matter for grave concern for our people. Remember a state will never be at peace it is fighting against its own people. We need to reach out to all and stop this dangerous trend. This is a new weapon to weaken our country by spoiling our youth. Our Politicians need to think over these issues. All parties should ponder over this and refrain from giving any remarks. We have to become united to fight to terror.

Senior Leaders like LK Advani of BJP should not indulge in rhetoric’s but think over how they are going to fight our own brothers and sons.

The terrorists earlier used to be rest assured that one blasts will trigger a riot .We Indians have understood there designs and today bombs and terror acts will never trigger a riot. So they have designed new ideas and put our own brothers and children against us.

I dare to warn these politicians that today however strong law you make you will never win the war on terror. The war against terror in India today will be won only when we think why our brothers sons and children are so susceptible to the design of the terrorists. Why instead of fighting the intruder we are forced to fight our own blood. That is the real question and that is the key to fight terror. When we will be united no one can dare to touch us.

My hats of Jamia Students who took out a Peace March. They demonstrated there resentment against the bad image being portrayed about there university. The Peace march had student of all Religions and was unanimous against terror. This Peace march might have really sent jitters to the terrorists.

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