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Editor: NAGARAJA.M.R… VOL.10 issue.36…… .07 / 09 / 2016

Police Complaint against Honourable Chief Justice of India ( CJI ) , SCI , New Delhi

To,

H.E. Honourable President of India ,

Rashtrapathi Bhawan ,

New Delhi.

Honourable Sir ,

Subject : Police Complaint against Honourable Chief Justice of India

I have sent numerous appeals to CJI , SCI through post , e mail , web since 1993 regarding crimes , specific crime cases , no action by CJI or SCI. In some criminal cases which has been brought to their earlier notice , CJI & SCI could have prevented it , prevented the crimes from happening , but they didn’t. They let the crime happen & let it continue till date. They might have received something in return for favoring the criminals. Let the almighty give dog’s death to such former CJIs and their family members who thrive like PARASITES on BRIBEs & Public Money without properly doing public duties. CJI is not answering our RTI questions properly nor admitting , acting on our PILs. He is not even replying to our show cause notices.

Please refer details of PILs and RTI Appeals at following website :

https://www.scribd.com/document/321266881/Indepedence-to-Dalits-Commoners ,

https://sites.google.com/site/eclarionofdalit/independence-to-dalits-commoners ,

https://sites.google.com/site/sosevoiceforjustice/independence-to-dalits-commoners ,

http://www.slideshare.net/NagarajaMysuruRaghup/independence-to-dalits-commoners ,

Thereby CJI is aiding criminals , anti nationals , terrorists and underworld mafia. Hereby , I do appeal to you take action against the erring CJI and accord legal sanction to criminally prosecute chief justice of india and to transfer the complaint to respective jurisdiction police for investigation & legal prosecution. Thank You.

Date : 30.08.2016……………………………………………………………………………… Your’s Sincerely,

Place : Mysuru………………………………………………………………………………………Nagaraja.M.R.

SHOW CAUSE NOTICE TO CJI

We the sufferers of Injustices , suffering public WISH DOG’S DEATH TO CORRUPT JUDGES , CORRUPT POLICE & THEIR FAMILY MEMBERS WHO THRIVE ON BRIBES. In the court of Almighty , God there is no match fixing , we pray to that almighty to give dog’s death , death , suffering due to accident , kidney problem , heart problem , etc to corrupt judges , corrupt police & their family members who shamelessly thrive on bribes , looted public money. They must not have sudden death , they must suffer for months before death. Then alone they will realize the pain of the public.

We whole heartedly salute honest few , honest judges , honest police & honest public servants who are tirelessly upholding rule of law inspite of many obstacles , threat to themselves. We pray to almighty to give strength , health , wealth , longevity to such honest persons.

One of the favors enjoyed by Judges for favoring criminal nexus of ruling politicians , tacitly aiding the crimes of ruling government is the discretionary allotment of sites to judges by the government.

I don’t know whether secretariat staff of CJI office & DARPG / DPG officials are forwarding my appeals for justice , e-mails to you or not. They will be held accountable for their lapses if any. This notice is against the repeated failure of constitutional duties & indirect collusion with criminals by previous CHIEF JUSTICEs OF INDIA. Notice is served against them , to the office of CJI , NOT personally against you. At the individual level I do whole heartedly respect Honourable Justice Shri T S Thakur .

Please refer details of PILs and RTI Appeals at following website :

https://www.scribd.com/document/321266881/Indepedence-to-Dalits-Commoners ,

https://sites.google.com/site/eclarionofdalit/independence-to-dalits-commoners ,

https://sites.google.com/site/sosevoiceforjustice/independence-to-dalits-commoners ,

http://www.slideshare.net/NagarajaMysuruRaghup/independence-to-dalits-commoners ,

Please refer two my appeals for justice through DARPG ;

DLGLA/E/2013/00292

DEPOJ/E/2013/00679

In india democracy is a farce , freedom a mirage. the most basic freedom RIGHT TO INFORMATION & EXPRESSION , is not honoured by the government,as the information opens up the crimes of V.V.I.Ps & leads to their ill-gotten wealth. The public servants are least bothered about the lives of people or justice to them. these type of fat cats , parasites are a drain on the public exchequer . these people want ,wish me to see dead , wish to see HUMAN RIGHTS WATCH closed . so that, a voice against injustices is silenced forever , the crimes of V.V.I.Ps closed , buried forever.

To my numerous appeals , HRW’s appeals to you ,you have not yet replied. It clearly shows that you are least bothered about the lives of people or justice to them .it proves that you are hell bent to protect the criminals at any cost. you are just pressurising the police to enquire me ,to take my statement, to repeatedly call me to police station all with a view to silence me.all of you enjoy “legal immunity privileges” ,why don’t you have given powers to the police / investigating officer to summon all of you for enquiry ?or else why don’t all of you are not appearing before the police voluntarily for enquiry ?at the least why don’t all of you are not sending your statement about the case to the police either through legal counsel or through post? you are aiding criminals ,by denying me job oppurtunities in R.B.I CURRENCY NOTE PRESS mysore , city civil court ,bangalore , distict court , mysore ,etc & by illegally closing my newspaper.
there is a gross, total mismatch between your actions and your oath of office. this amounts to public cheating & moral turpitude on your part.

1.you are making contempt of the very august office you hold.
2.you are making contempt of the constitution of india.
3.you are making contempt of citizens of india.
4.you are sponsoring & aiding terrorism & organized crime.
5.you are violating the fundamental & human rights of the citizens of india and of neighbouring countries.
6.you are violating & making contempt of the U.N HUMAN RIGHTS CHARTER to which india is a signatory.
7.you are obstructing me from performing my fundamental duties as a citizen of india.

8. As a result of your gross negligence of constitutional duties you have caused me damages / losses to the tune of RUPEES TWO CRORE ONLY.

Read full case details at :

https://sites.google.com/site/eclarionofdalit/chief-justice-terror-links

you are hereby called upon to Pay damages to me and SHOW-CAUSE within 30 days , why you cann’t be legally prosecuted for the above mentioned crimes .

If i am repeatedly called to police station or else where for the sake of investigations , the losses i do incurr as a result like loss of wages , transportation , job , etc must be borne by the government. prevoiusly the police / IB personnel repeatedly called me the complainant (sufferer of injustices) to police station for questioning , but never called the guilty culprits even once to police station for questioning , as the culprits are high & mighty . this type of one sided questioning must not be done by police or investigating agencies . if anything untoward happens to me or to my family members like loss of job , meeting with hit & run accidents , loss of lives , etc , the jurisdictional police together with above mentioned accussed public servants , Chief Justice of India & Jurisdictional District Magistrate will be responsible for it. Even if criminal nexus levels fake charges , police file fake cases against me or my dependents to silence me , this complaint is & will be effective.

if anything untoward happens to me or my dependents , the government of india is liable to pay Rs. TWO crore as compensation to survivors of my family. if my whole family is eliminated by the criminal nexus ,then that compensation money must be donated to Indian Army Welfare Fund. afterwards , the money must be recovered by GOI as land arrears from the salary , pension , property , etc of guilty judges , police officials , public servants & Constitutional fuctionaries. Thanking you. Jai Hind , Vande Mataram.

Date : 30.08.2016……………………………………………...your’s sincerely,
Place : Mysore , India………………………………………….Nagaraja M R

Constitution bench to decide whether SC comes under RTI Act

NEW DELHI: A constitution bench will examine whether the Supreme Court comes within the ambit of Right to Information Act, making it obligatory for the Chief Justice of India to make information pertaining to appointment of judges and his correspondence with the government public under the transparency law.

After injecting transparency and accountability in various institutions over the years, the SC on Wednesday decided to examine its own system which has been criticised of late for its opaque way of functioning. Almost all petitioners who had opposed the National Judicial Appointments Commission (NJAC) Act for "interfering" in judicial independence, however, were unanimous that the collegium system should be made transparent and brought under the RTI Act.

Holding that the issue involved interpretation of the Constitution and balance had to be maintained between independence of judiciary and fundamental right of people to know, a three-judge bench of Justices Ranjan Gogoi, Prafulla C Pant and A M Khanwilkar referred the matter to a constitution bench.

The bench was hearing an appeal filed by the SC itself through its central public information officer challenging the Delhi High Court's 2009 judgment which declared the CJI a public authority under the RTI Act and asked the top court to make assets of its judges public.

Pleading for an expeditious hearing, advocate Prashant Bhushan, appearing for RTI activist Subhash Agrawal, told the bench that the matter should be decided as soon as possible and an impression was gaining ground among people that the SC was not interested in addressing the crucial issue.

"People have started thinking that the Supreme Court is shying away on the issue because of undue delay in adjudicating the case. It is creating an impression in minds of people that Supreme Court does not come within the ambit of RTI Act. That impression has to be dispelled," he said.

Bhushan said a seven-judge bench of the apex court had in 1981 held that free flow of information to citizens was necessary for proper functioning of democracy and the same principle should be applied to appointment of judges and administrative decisions taken by the CJI.

But the bench said the 1981 judgment would not be entirely applicable in the present case and it must be heard by a constitution bench and asked Bhushan to approach the CJI for early hearing.

On Agrawal's plea, the Central Information Commission (CIC) had held that the CJI's office came under the ambit of the RTI Act. The SC challenged the order before the Delhi HC which dismissed its appeal and upheld the CIC order.

The Centre had brought the NJAC Act last year to infuse transparency in appointment of judges by scrapping the collegium system but a five-judge constitution bench by 4:1 had quashed the law. Justice J Chelameswar, in a strong dissent verdict, had termed the collegium system as non-transparent and said appointment of judges was one of the best guarded secrets of the country.

"Transparency is an aspect of rationality. The need for transparency is more in the case of appointment process. Proceedings of the collegium are absolutely opaque and inaccessible both to the public and history, barring occasional leaks," he had said.

"The records are absolutely beyond the reach of any person including the judges of this court who are not lucky enough to become CJI. Such a state of affairs does not either enhance the credibility of the institution nor is good for the people of this country," he had said.

Police Officers be punished on Acquittal of Accused : Supreme Court

SUPREME COURT OF INDIA

Before:- Chandramauli Kr. Prasad, Jagdish Singh Khehar
CRIMINAL APPEAL NO. 1485 OF 2008 D/d : 7 January, 2014

State of Gujarat … Appellant
Versus
Kishanbhai Etc. … Respondents

JUDGMENT

Jagdish Singh Khehar, J.
1. A complaint was lodged at Navrangpura Police Station, Ahmedabad, alleging the kidnapping/abduction of a six year old girl child Gomi daughter of Keshabhai Mathabhai Solanki and Laliben on 27.2.2003 at around 6:00 p.m. by the accused Kishanbhai son of Velabhai Vanabhai Marwadi.
It was alleged, that the accused had enticed Gomi with a “gola” (crushed ice, with sweet flavoured syrup), and thereupon had taken her to Jivi’s field, where he raped her. He had murdered her by inflicting injuries on her head and other parts of the body with bricks. In order to steal the “jhanjris” (anklets) worn by her, he had chopped off her feet just above her ankles. The aforesaid complaint was lodged, after the body of the deceased Gomi was found from Jivi’s field, at the instance of the accused Kishanbhai. On the receipt of the above complaint, the first information report came to be registered at Navrangpur Police Station, Ahmedabad.

2. The prosecution version which emerged consequent upon the completion of the investigation reveals, that the family of the deceased Gomi was distantly related to the family of the accused Kishanbhai. In this behalf it would be pertinent to mention that Baghabhai Naranbhai Solanki was a resident of Gulbai Tekra, in the Navrangpura area of Ahmedabad. He resided there, along with his family. For his livelihood, Baghabhai Naranbhai Solanki was running a shop in the name of Mahakali Pan Centre. The said shop was located near his residence. Baghabhai Naranbhai Solanki was running the business of selling “pan and bidi” in his shop. Naranbhai Manabhai Solanki, father of Baghabhai Naranbhai Solanki used to live in the peon’s quarters at Ambavadi in Ahmedabad. Modabhai Manabhai Solanki, uncle of Baghabhai Naranbhai Solanki, had expired. His son Devabhai’s daughter Laliben, was married to Keshabhai Mathabhai Solanki. Keshabhai Mathabhai Solanki and Laliben were residing at Shabamukhiwas, Gulbai Tekra in Ahmedabad. Keshabhai Mathabhai Solanki and Laliben had two children, a daughter Gomi aged six years, and a son Himat aged three years. Laliben’s sister-in-law (her husband’s, elder brother’s wife) Fuliben Valabhai was residing near the residence of Keshabhai Mathabhai Solanki and Laliben. Kishanbhai the accused, is the brother of Fuliben, and was residing with her. It is therefore, that the family of the deceased as also the accused, besides being distantly related, were acquainted with one another as they were residing close to one another.

3. Insofar as the occurrence is concerned, according to the prosecution, on 27.2.2003 Laliben, niece of Baghabhai, was confined to her residence, as she was expecting. At about 6:00 p.m. her daughter Gomi, then aged 6 years, had wandered out of her house. The accused Kishanbhai then aged 19 years, entice her by giving her a “gola”. Having enticed her he had carried Gomi to Jivi’s field. On the way to Jivi’s field, he stole a knife with an 8 inch blade from Dineshbhai Karsanbhai Thakore PW6, a “dabeli” (bread/bun, with spiced potato filling) seller. Having taken Gomi to Jivi’s field he had raped her. He had then killed her by causing injuries on her head and other parts of the body with bricks. In order to remove the “jhanjris” worn by her, he had amputated her legs with the knife stolen by him, from just above her ankles. He had then covered her body with his shirt, and had left Jivi’s field. Kishanbhai the accused, then took the anklets stolen by him to Mahavir Jewellers, a shop owned by Premchand Shankerlal. He pledged the anklets at the above shop, for a sum of Rs.1,000/-. The accused Kishanbhai was confronted by Baghabhai and others constituting the search party, whilst he was on his way back to his residence. Kishanbhai, despite stating that he had not taken her away, had informed those searching for Gomi, that she could be at Jivi’s field. On the suggestion of Kishanbhai, the search party had gone to Jivi’s farm, where they found the body of Gomi.

4. Based on the aforesaid fact situation, confirmed through the investigation carried on by the Police, a charge-sheet was framed against the accused Kishanbhai under Sections 363, 369, 376, 394, 302 and 201 of the Indian Penal Code, and Section 135(1) of the Bombay Police Act. The above charge-sheet was filed before the Metropolitan Magistrate, Ahmedabad. Since the offences involved could be tried only by a Court of Session, the Metropolitan Magistrate, committed the matter to the Court of Session. On 8.3.2004, the Sessions Court to which the matter came to be assigned, for trial, framed charges. Since the accused Kishanbhai denied his involvement in the matter, the court permitted the prosecution to lead evidence.

5. The prosecution examined 14 witnesses. The statement of the accused Kishanbhai was thereafter recorded under Section 313 of the Code of Criminal Procedure. In his above statement, the accused Kishanbhai denied his involvement. Even though an opportunity was afforded to Kishanbhai, he did not lead any evidence in his defence. After examining the evidence produced by the prosecution, the Trial Court vide its judgment dated 18.8.2004, arrived at the conclusion that prosecution had successfully proved its case beyond reasonable doubt. By a separate order dated 18.8.2004 the Trial Court sentenced Kishanbhai to death by hanging, subject to confirmation of the said sentence by the High Court of Gujarat at Ahmedabad (hereinafter referred to as the ‘High Court’) under Section 366 of the Code of Criminal Procedure.

6. In the above view of the matter, the proceedings conducted by the Court of Session, were placed before the High Court at the behest of the State of Gujarat, as Confirmation Case No. 7 of 2004. Independently of the confirmation proceedings, the accused Kishanbhai, aggrieved by the judgment and order of sentence dated 18.8.2004, in Sessions Case No. 346 of 2003, filed Criminal Appeal No. 1549 of 2004 before the High Court.

7. The criminal appeal filed by the accused Kishanbhai was accepted by the High Court. Kishanbhai was acquitted by giving him the benefit of doubt. The Confirmation Case No. 7 of 2004 was turned down in view of the judgment of acquittal rendered by the High Court while allowing Criminal Appeal no. 1549 of 2004.

8. Dissatisfied with the order passed by the High Court, the State of Gujarat approached this Court by filing Petition for Special Leave to Appeal (Crl.) No. 599 of 2006. On 11.9.2008 leave to appeal was granted. Thereupon, the matter came to be registered as Criminal Appeal No. 1485 of 2008.

9. Before this Court, learned counsel for the appellant, in order to substantiate the guilt of the accused-respondent Kishanbhai, has tried to project that the prosecution was successful in demonstrating an unbroken chain of circumstances, clearly establishing the culpability of the accused. In fact, the endeavour at the hands of the learned counsel for the appellant was to project an unbroken chain of circumstances to establish the guilt of the accused. Despite the defects in investigation and the prosecution of the case, as also, the inconsistencies highlighted by the High Court in the evidence produced by the prosecution, learned counsel for the State expressed confidence, to establish the guilt of the accused-respondent. In this behalf, it is essential to record the various heads under which submissions were advanced at the hands of the learned counsel for the appellant-State. We shall, therefore, briefly summarise all the contentions, and while doing so, refer to the evidence brought to our notice by the learned counsel for the appellant, to establish the guilt of the accused-respondent, Kishanbhai. The submissions advanced before us are accordingly being recorded hereunder :

(a) First and foremost, learned counsel for the appellant, in order to connect the accused with the crime under reference, extensively relied upon the evidence produced by the prosecution to show that the accused- respondent Kishanbhai was last seen with the victim. He was seen taking away the victim Gomi. For the above, reliance was placed on the statement of Naranbhai Manabhai Solanki PW5, who had deposed that he had seen the deceased Gomi with the accused-respondent Kishanbhai on 27.2.2003 at around 6:00 p.m. As per his deposition, he had seen Gomi eating a “gola” outside his (the witness’s) residence. At the same juncture, he had also seen the accused-respondent Kishanbhai coming from the side of Polytechnic. Kishanbhai, according to the deposition of PW5, had approached Gomi. Thereafter, as per the statement of PW5, the accused had carried away Gomi towards the side of the Polytechnic. In his testimony, Naranbhai Manabhai Solanki PW5, had also stated, that at about 9:00 pm, when he had again seen the accused-respondent Kishanbhai coming from the road leading to the Gulbai Tekra Police Chowki, he was asked, by those who were searching for Gomi, about her whereabouts. The accused was also asked about the whereabouts of Gomi, by Naranbhai Manabhai Solanki PW5 and by the son of PW 5 i.e., by Bababhai Naranbhai Solanki PW2. To the aforesaid queries, according to Naranbhai Manabhai Solanki PW5, the accused-respondent Kishanbhai had stated, that she might be sitting in Jivi’s field. In addition to the testimony of Naranbhai Manabhai Solanki PW5, reference was also made to the testimony of Dinesh Karshanbhai Thakore PW6. PW6, during his deposition, had asserted, that the accused-respondent Kishanbhai had come to his “lari” (handcart used by hawkers, to sell their products) for purchasing a “dabeli”. It was pointed out by Dinesh Karshanbhai Thakore PW6, that he had noticed the accused carrying a child aged about seven years, wearing a red frock. In his statement, he also affirmed that the accused-respondent Kishanbhai, had asked him for a knife but he had declined to give it to him. Thereupon, whilst leaving his “lari”, Kishanbhai had stolen a knife from his “lari”. It was also pointed out, that the knife recovered at the instance of the accused-respondent Kishanbhai, was identified by him as the one stolen from his “lari”. According to the learned counsel for the appellant, the last seen evidence referred to above stands duly corroborated by the deposition of Bababhai Naranbhai Solanki PW2, not only in his deposition before the Trial Court, but also in the complaint filed by him at the first instance at Navrangpur Police Station, Ahmedabad, immediately after the recovery of the dead body of Gomi from Jivi’s field.

(b) Learned counsel for the appellant also laid emphasis on the recovery of the weapon of offence, i.e., a blood stained knife, at the instance of none other than the accused-respondent Kishanbhai himself. In order to substantiate the instant aspect of the matter, learned counsel placed reliance on the testimony of Dinesh Karshanbhai Thakore PW6, who deposed that the accused had visited his “lari” on the evening of 27.2.2003 for the purchase of a “dabeli”. The accused respondent, as noticed earlier, as per the statement of Dinesh Karshanbhai Thakore PW6, was carrying a small girl aged about 7 years. He also deposed, that the accused-respondent had asked him for his knife, but upon his refusal, had stolen the same from his “lari”. Dinesh Karshanbhai Thakore PW6, had identified the knife which had been recovered at the instance of the accused, as the one stolen by the accused-respondent Kishanbhai from his “lari”. Additionally it was submitted, that the accused had led the police to Jivi’s field, from where he got recovered the murder weapon, i.e., the same knife which he had stolen from the “lari” of Dinesh Karshanbhai Thakore PW6. The above knife had a blade measuring eight inches, including a steel handle of four inches. At the time of recovery of the knife, the same had stains of blood. The above knife was recovered by the police on 1.3.2003, in the presence of an independent witness, namely, Rameshbhai Lakhabhai Bhati PW1, who in his deposition clearly narrated, that the knife in question was recovered from Jivi’s field, from under some stones at the instance of the accused-respondent Kishanbhai.

(c) Learned counsel for the appellant, then referred to the medical evidence produced by the prosecution, so as to contend that the wounds inflicted on the person of Gomi, were with the murder weapon, i.e., the knife recovered at the instance of the accused-respondent Kishanbhai. For this, learned counsel placed reliance on the statement of Dr. Saumil Premchandbhai Merchant PW8, who had conducted the post-mortem examination of the deceased Gomi on 28.2.2003. In the post-mortem report, according to learned counsel, mention was made about several incised injuries which could have been inflicted with the knife stolen by the accused-respondent Kishanbhai. In this respect, reference was made to serial No.14 of the post-mortem notes (Exhibit 29) proved by Dr. Saumil Premchandbhai Merchant PW8, clearly indicating, that the injuries caused to the victim which have been referred to at serial No.7, could have been caused with the knife (muddamal Article No.19), i.e., the same knife, which had been recovered at the instance of the accused. Even in the inquest panchnama (Exhibit 14), it was recorded that both legs of the victim Gomi were mutated from just above the ankle with a sharp weapon, with the object of removing the anklets in the feet of the victim Gomi. This document, according to the learned counsel, also indicates the use of a knife in the occurrence under reference.

(d) It was also the submission of the learned counsel for the appellant, that at the time of recovery of the body of the victim from Jivi’s field, the same was found to be covered with a shirt with stripes. It was submitted, that the aforesaid shirt was identified as the shirt worn by the accused-respondent Kishanbhai, when he was seen carrying away the victim Gomi, on 27.2.2003. In this behalf, reliance was placed by the learned counsel for the appellant, on the testimony of Naranbhai Manabhai Solanki PW5. The above witnesses had identified the shirt as a white shirt with lines. To give credence to the testimony of Naranbhai Manabhai Solanki PW5, learned counsel also pointed out, that when the accused was found coming from the direction of the police station after the commission of the crime, he was seen wearing a black T-shirt. The statement of Naranbhai Manabhai Solanki PW5, was sought to be corroborated with the statement of Dinesh Karshanbhai Thakore PW6. The accused respondent is stated to have approached the “lari” of Dinesh Karshanbhai Thakore PW6 for purchasing a “dabeli”, and at that juncture, the accused-respondent is stated to have been wearing a white lined shirt, and a green trouser. On the recovery of the shirt and trouser, they were marked as Mudammal Articles 8 and 14 respectively. Dinesh Karshanbhai Thakore PW6 had identified the shirt, as also, the trouser during the course of his deposition before the Trial Court. The green trouser worn by the accused-respondent was also identified by Bababhai Naranbhai Solanki PW2. Additionally, Bababhai Naranbhai Solanki PW2 deposed that a black colour T-shirt was worn by the accused-respondent when he was apprehended and brought to the police station. The above articles were also identified by Angha Lalabhai Marwadi PW12 and Naranbhai Lalbhai Desai PW13 who were the panch witnesses at the time of seizure of the abovementioned clothing.

(e) It was also the submission of the learned counsel for the appellant, that the report of the forensic science laboratory was sufficient to confirm, that the accused respondent was the one who was involved in the commission of the crime under reference. In this behalf, it was pointed out that the victim Gomi was shown to have blood group “B+ve”. According to the report of the Forensic Science Laboratory, the bricks recovered from the place of occurrence (which had been used in causing injuries on the head and other body parts of the victim), the panties worn by the deceased victim Gomi, the white shirt which was found on the body of the victim at the time of its recovery from Jivi’s field, the T-shirt and the green trouser worn by the accused respondent Kishanbhai (at the time he was apprehended), and even the weapon of the crime, namely, the knife recovered at the instance of the accused-respondent, were all found with blood stains. The forensic report reveals that the blood stains on all the above articles were of blood group “B+ve”. It was, therefore, the submission of the learned counsel for the appellant, that the accused-respondent was unmistakably shown to be connected with the crime under reference.

(f) In order to substantiate the motive of the accused-respondent, learned counsel for the appellant relied upon the statement of the investigating officer Ranchhodji Bhojrajji Chauhan PW14, who had stated in his deposition that the owner of Mahavir Jewellers, i.e., Premchand Shankarlal Mehta had presented himself at the police station. The abovementioned jeweler is stated to have informed the police, that the accused respondent Kishanbhai had pawned the anklets belonging to the victim Gomi with him for a sum of Rs.1,000/-. Insofar as the identification of the anklets is concerned, reference was made to the statement of Keshobhai Madanbhai Solanki PW7, i.e., father of the victim who had identified the anklets marked as Muddamal Article No.18, as belonging to his daughter Gomi, which she was wearing when she had gone missing. Reference was also made to the statement of Jagdishbhai Bhagabhai Marwadi PW11, as also, the panchnama of recovery of the silver anklets which also, according to learned counsel, connects the accused to the crime.

(g) Last but not the least, learned counsel for the appellant invited this Court’s attention to the statement tendered by the accused under Section 313 of the Code of Criminal Procedure. During the course of his above testimony, he was confronted with the evidence of the relevant witnesses depicting, that the victim Gomi was last seen in his company at 6:00 p.m. on 27.2.2003. He was also confronted with the fact, that he himself had informed the search party, that Gomi may be found at Jivi’s field. It is submitted, that the accused-respondent Kishanbhai, who had special knowledge about the whereabouts of the deceased, was bound to explain and prove when and where he had parted from the company of the victim Gomi. It was submitted that during the course of his deposition under Section 313 of the Code of Criminal Procedure, the accused could not tender any satisfactory explanation.

Based on the above evidence, it was the submission of the learned counsel for the appellant, that even in the absence of any eye witness account, the prosecution should be held to have been successful in establishing the guilt of the accused-respondent Kishanbhai through circumstantial evidence. The claim of circumstantial evidence emerging from different witnesses summarized above, according to the learned counsel, leads to one and only one conclusion, namely, that the accused-respondent Kishanbhai alone had committed the criminal acts under reference. It was submitted, that the chain of circumstantial evidence, was sufficient to establish, that none other than the accused-respondent could have committed the alleged criminal actions. It was also contended, that no link in the chain of circumstantial evidence was missing, so as to render any ambiguity in the matter.

10. We have heard the learned counsels for the parties. To determine the controversy arising out of the instant criminal appeal, we shall first endeavour to summarise the conclusions drawn by the High Court under different heads. We have decided to adopt the above procedure to understand the implications of various aspects of the evidence produced by the prosecution before the Trial Court. This procedure has been adopted by us (even though the same was neither adopted by the Trial Court, or by the High Court) so as to effectively understand, and thereupon, to adequately deal with the contentions advanced at the hands of the appellant, before this Court.

11. We would first of all, like to deal with the lapses committed by the investigating and prosecuting agencies in the process of establishing the guilt of the accused before the Trial Court. It will be relevant to mention that all these lacunae/deficiencies, during the course of investigation and prosecution, were pointed out by the High Court, in the impugned judgment. These constitute relevant aspects, which are liable to be taken into consideration while examining the evidence relied upon by the prosecution. We have summarised the aforesaid lapses, pointedly to enable us to correctly deal with the submissions advanced at the behest of the State. Since the guilt of the accused in the instant case is to be based on circumstantial evidence, it is essential for us to determine whether or not a complete chain of events stand established from the evidence produced by the prosecution. The above deficiencies and shortcomings are being summarised below:

(a) According to the prosecution story after having removed the anklets from Gomi’s feet, the accused Kishanbai had taken the anklets to Mahavir Jewellers, a shop owned by Premchand Shankerlal. He pledged aforesaid anklets with Premchand Shankerlal, for a sum of Rs. 1,000/-. The anklets under reference, were handed over by Premchand Shankerlal to the investing officer on 1.3.2003, in the presence of two panch witnesses. According to the prosecution case, the jeweller had gone to the police station with the anklets on his own, after having read newspaper reports to the effect, that a girl had been raped and murdered and her anklets had been taken away. He had approached the police station under the suspicion, that the anklets pledged with him, might have belonged to the girl mentioned in the newspaper reports. One of the panch witnesses, namely, Jagdishbhai Marwari PW15 had deposed, that above Premchand Shankerlal had identified the accused Kishanbhai, as the very person who had pledged the anklets with him. In this behalf it is relevant to mention, that Premchand Shankerlal was not produced as a prosecution witness. It is important to notice, that the anklets handed over to the Police, were successfully established by the prosecution as the ones worn by the deceased Gomi. The lapse of the prosecution on account of not producing Premchand Shankerlal as prosecution witness, according to the High Court, resulted in a missing link in the chain of events which would have established the link of the accused Kishanbhai, with the anklets, and thereby convulsively connecting him with the crime.

(b) The prosecution story further discloses, that Premchand Shankerlal the owner of Mahavir Jewellers, had executed a receipt with the accused Kishanbhai, depicting the pledging of the anklets for a sum of Rs.1,000/-. The aforesaid receipt was placed on record of the Trial Court as exhibit

52. The above receipt according to Premchand Shankerlal, was thumb marked by the accused Kishanbhai. Even though the receipt indicates the name of the person who had pledged the anklets as Rajubhai, the same could clearly be a false name given by the person who pledged the anklets. Certainly, there could be no mistake in the identity of the thumb mark affixed on the said receipt. The prosecution could have easily established the identity of the pledger, by comparing the thumb impression on the receipt (exhibit

52), with the thumb impression of the accused-respondent Kishanbhai. This was however not done. The lapse committed by the prosecution in not producing Premchand Shankerlal as a witness, could have easily been overcome by proving the identity of the person who had pledged the anklets, by identifying the thumb impression on the receipt (exhibit 52), in accordance with law. In case the thumb impression turned out to be that of the accused Kishanbhai, he would be unmistakably linked with the crime. In case it was found not to be the thumb impression of the accused Kishanbhai, his innocence could also have been inferred. According to the High Court this important lapse in proving the prosecution case before the Trial Court, had resulted in a major obstacle in establishing the guilt/innocence of the accused.

(c) It is also the case of the prosecution, that when the accused Kishanbhai was apprehended, a sum of Rs.940/- was recovered from his possession. According to the prosecution story the accused Kishanbhai had pledged the anklets at Mahavir Jewellers with Premchand Shankerlal for a sum of Rs. 1,000/-. In order to link the money recovered from his possession at the time of his detention, it was imperative for the prosecution to establish how and why a sum of Rs.940/- only, was recovered from the possession of the accused Kishanbhai. He ought to have been in possession of at least Rs.1,000/- i.e., the amount given to him by Premchand Shankerlal when he pledged the anklets at his shop, even if it is assumed that he had no money with him when he had pawned the anklets. This important link having not been established by the prosecution, breaks the chain of events necessary to establish the guilt of the accused Kishanbhai, and constitutes a serious lapse in the prosecution evidence.

(d) It is apparent from the prosecution story, that the victim Gomi was raped. In establishing the factum of the rape the prosecution had relied upon the note prepared at the time of conducting the post-mortem examination of the deceased Gomi. The same inter alia reveals, that dry blood was present over the labia, and deep laceration of subcutaneous tissues was present on the left margin of the vaginal opening, just above the posterior commission. The hymen was also found ruptured at 3 and 6,O’ clock. It is therefore, that the accused was deputed for being subjected to medical examination, during the course of investigation. For the above purpose he was examined by Dr. P.D. Shah. In fact Dr. P.D. Shah was a cited witness before the Trial Court. Despite the above Dr. P.D. Shah was not examined as a prosecution witness. Clearly a vital link in a chain of events, to establish the rape of the victim Gomi came to be broken consequent upon by the non-examination of Dr. P.D. Shah as a prosecution witness.

(e) The High Court has also noticed, that even the report/certificate given by the medical officer relating to the medical examination of the accused Kishanbhai was not produced by the prosecution before the Trial Court. It is apparent, that the lapse in not producing Dr. P.D. Shah as a prosecution witness, may have been overcome if the report prepared by him (after examining the accused Kishanbhai) was placed on the record of the Trial Court, after being proved in accordance with law. The action of prosecution in not producing the aforesaid report before the Trial Court, was another serious lapse in proving the case before the Trial Court. This had also resulted a missing vital link, in the chain of events which could have established, whether or not accused Kishanbhai had committed rape on victim Gomi.

(f) The High Court having noticed the injuries suffered by Gomi, a six year old girl child on her genitals, had expressed the view, that the same would have resulted in reciprocal injuries to the male organ of the person who had committed rape on her. It was pointed out, that if the accused Kishanbhai had been sent for medical examination the testimony or the report of the medical officer would have revealed the presence of smegma around the corona-glandis, which would have either established innocence or guilt of the accused, specially if the accused had been medically examined within 24 hours. In the instant case the sequence of the events reveal, that the occurrence had been committed between 6:00 p.m. to 8:00 p.m. on 27.2.2003. At the time of recovery of the body of deceased Gomi from Jivi’s field, at about 9:00 pm, it came to be believed that she had been subjected to rape. The accused Kishanbhai was shown to have been formerly arrested at 6:40 a.m. on 28.2.2003 (even if the inference drawn by the High Court, that the accused Kishanbhai was in police custody since 9:00 p.m. on 27.2.2003 itself, is ignored). The accused could have been medically examined within a period of 24 hours of the occurrence. The prosecution case does not show whether or not such action was taken. This lapse in the investigation of the case, had also resulted the omission of a vital link in the chain of events which would have unquestionably established the guilt of the accused Kishanbhai of having committed rape (or possibly his innocence).

(g) It needs to be noticed, that when the accused Kishanbhai was arrested, there were several injuries on his person. The said injuries were also depicted in his arrest panchnama. At 7:15 am on 28.2.2003, the accused Kishanbhai filed a first information report alleging, that he was beaten by some of the relatives of the victim Gomi, as also, by some unknown persons accompanying the search party, under the suspicion/belief, that he was responsible for the occurrence. In the above first information report, the accused Kishanbhai had also depicted the nature of injuries suffered by him. The statement of the investigating officer Ranchodji Bhojrajji Chauhan PW14 reveals, that the accused Kishanbhai had been sent to Civil Hospital, Ahmedabad, for his medical examination. Neither the doctor who had examined the accused was produced as a prosecution witness, nor the report/certificate given by the medical officer disclosing the details of his observations/findings was placed on record. This evidence was vital for the success of the prosecution case. According to the High Court, blood of group “B +ve” was found on the clothes of the accused Kishanbhai. The important question to be determined thereupon was, whether it was his own blood or blood of the victim Gomi. The statement of the medical officer who had examined the accused Kishabhai, when he was sent for medical examination to Civil Hospital, Ahmedabad, would have disclose whether or not accused Kishanbhai had any bleeding injuries. The importance of nature of the injuries suffered by the accused Kishanbhai emerges from the fact, that both the accused Kishanbhai and the victim Gomi had the same blood group “B +ve”. An inference could have only been drawn that the blood on his clothes was that of the victim, in case it was established that the accused-respondent Kishanbhai had not suffered any bleeding injuries, and therefore, the possibility of his own blood being on his clothes was ruled out. This important link in the chain of events is also missing from the evidence produced by the prosecution, and constitutes a serious lapse in the investigation/prosecution of the case.

In view of the above factual position, the High Court made the following observations “Looking to the advancement in the field of medical science, the investigating agency should not have stopped at this stage. Though ABO system of blood grouping is one of the most important system, which is being normally used for distinguishing blood of different persons, there are about 19 genetically determined blood grouping systems known to the present day science, and it is also known that there are about 200 different blood groups, which have been identified by the modern scientific methods (Source: Mc-Graw-Hill Encyclopedia of Science and Technology, Vol.2). Had such an effort been made by the prosecution, the outcome of the said effort would have helped a lot to the trial Court in ascertaining whether the accused had in fact visited the scene of offence.” This also constitutes a glaring lapse in the investigation of the crime under reference.

There has now been a great advancement in scientific investigation on the instant aspect of the matter. The investigating agency ought to have sought DNA profiling of the blood samples, which would have given a clear picture whether or not the blood of the victim Gomi was, in fact on the clothes of the accused-respondent Kishanbhai. This scientific investigation would have unquestionably determined whether or not the accused-respondent was linked with the crime. Additionally, DNA profiling of the blood found on the knife used in the commission of the crime (which the accused-respondent, Kishanbhai had allegedly stolen from Dinesh Karshanbhai Thakore PW6), would have uncontrovertibly determined, whether or not the said knife had been used for severing the legs of the victim Gomi, to remove her anklets. In spite of so much advancement in the field of forensic science, the investigating agency seriously erred in carrying out an effective investigation to genuinely determine the culpability of the accused-respondent Kishanbhai.

(h) It is also apparent from the complaint submitted by Bababhai Naranbhai Solanki PW 2, that he had been informed by one Kalabhai Ganeshbhai, that he had seen the accused Kishanbhai taking away Gomi. In such an event, the proof of the fact of the accused-respondent having abducted Gomi could have only been substantiated, through the statement of Kalabhai Ganeshbhai who had allegedly actually seen the accused Kishanbhai taking her away. According to the High Court, for the reasons best known to it, the prosecution did not produce Kalabhai Ganeshbhai as a witness. Even though according to the High Court the above-mentioned Kalabhai Ganeshbhai was a resident in one of the peon quarters, and was also a government servant, the absence of the evidence of the above factual position, results in a deficiency in the confirmation of a factual position of substantial importance, from the chain of events necessary for establishing the last seen evidence.

(i) It is also apparent, that there is no dispute about the recovery of a green blood stained “dupatta”, from the person of the victim. The green blood stained “dupatta” (veil) was found by the medical officer while conducting the post-mortem examination on Gomi. The existence of the green “dupatta” was also duly mentioned in the post-mortem report. According to the High Court, none of the prosecution witnesses had referred to the factum of the victim having worn a green “dupatta”. According to the prosecution evidence, the deceased was wearing a red frock and panties, whereas, the accused was wearing a full sleeve white shirt and green trousers. According to the High Court, if neither the victim nor the accused had a green “dupatta”, a question would arise, as to how the green blood stained “dupatta” was found on the dead body of the victim. Even leading to the inference of the presence of a third party at the time of occurrence. The above omission in not explaining the presence of the green “dupatta”, has also been taken by the High Court, as a glaring omission at the hands of the prosecution in the process of investigation/prosecution of the charges levelled against the accused Kishanbhai.

(j) While deposing before the Trial Court, Dinesh Karshanbhai Thakore PW6, affirmed that the accused-respondent Kishanbhai had approached his “lari” for the first time to purchase a “dabeli” on 27.2.2003. It is, therefore, apparent that Dinesh Karshanbhai Thakore PW6 had not known the accused-respondent before 27.2.2003. In the above view of the matter, it was imperative for the investigating agency to hold a test identification parade in order to determine whether Dinesh Karshanbhai Thakore PW6, had correctly identified the accused-respondent, as the person who had come to his “lari” to purchase a “dabeli” on 27.2.2003. And also whether he was the same person, who had stolen a knife from his “lari” on 27.2.2003. This is also a serious deficiency in the investigation/prosecution of the case.

(k) Bababhai Naranbhai Solanki PW2, the complainant in the present case, during the course of his examination-in-chief, observed as under :

“This incident was occurred on 27/2/2003, on that day Lilaben came to my house for pregnancy. On the day of the incident at 6.00 o clock in the evening I came to know that Gomiben the daughter of Lilaben is not found. Therefore, all our relatives have started searching her. We went to the quarter of my father, and inquired about the Gomiben, my father told that I saw Gomiben with Lalis Sister in law brother Kisan, he gave ice cream to Gomi. Therefore, we have searched in the quarters and other places. At around 8.00 o clock in the night kishan was coming from police Station, we have started asking him, at that time along with me Shri Jagabhai Molabhai, Mohanbhai Molabhai, Hirabhai were present. This police Chawky means Gulbai Tekra Police Chawky. He told me that I have left her at Jivivala Field. Therefore, we went at the Jivivala Field, at around 8.00 or 9.00 o clock, we went there and we found Gomiben in dead conditions, she had a several injuries on her head and other parts of the body. She was being raped.” From the above statement, it is apparent that Gomi was found missing for the first time at 6:00 pm. The search for her began immediately thereafter. The search party met the accused-respondent Kishanbhai coming from the side of the police station at 8:00 p.m. All the prosecution witnesses have been equivocal about the fact that Gomi went missing at about 6:00 p.m., i.e., the time when she was last seen in the company of the accused-respondent Kishanbhai, and thereafter, the search party met Kishanbhai at 8:00 pm. In order to give credence to the prosecution version, it was imperative to establish that it was possible for the accused-respondent Kishanbhai, after having taken Gomi at 6:00 p.m., to have stopped at the “lari” of Dinesh Karshanbhai Thakore PW6, purchased a “dabeli” from him. Thereupon, to have had time to steal his knife, the accused-respondent proceeded on with Gomi to Jivi’s field. There ought to have been enough time for him thereafter to have raped her, then assaulted her with bricks on her head and other parts of the body leading to her death, and finally to cut her legs just above her ankles, to remove her anklets. He should thereupon have also had time to hide the knife used in the commission of the crime, under the stones. And thereafter further time, to have taken the anklets to Mahavir Jewellers so as to pawn the same with Premchand Shankarlal Mehta, as also, time to execute a receipt in token thereof. Over and above the above, he ought have had time, to visit his residence so as to able to wear a fresh shirt i.e., the shirt which he was wearing when he was detained. After all that, he should have had time to cover the area from Jivi’s field to Premchand Shankarlal Mehta’s shop and further on from the above shop to his residence and finally from his residence till the place where he was detained. It is difficult to appreciate how all the activities depicted in the prosecution story, could have been carried out from 6:00 p.m. on 27.2.2003 to 8:00 p.m. on the same day, i.e., all in all within a period of two hours. It is in the above context that the cross-examination of Naranbhai Manabhai Solanki PW5, assume significance. Relevant extract from his cross-examination is being reproduced hereunder :
“It is true that the accused was coming from police Chawky at around 8.00 or 8.30 p.m. as I was not wearing the watch I cannot say the exact time. It is true that it takes 15 to 20 minutes to go to Panjrapole from my quarters, and it will take 30 to 35 minutes to go to the field of JIVI. It is true that it will taken half an hour to come to the Office of BSNL through Jivi’s Field and C.N. Vidhayalaya. It is true that from the Jivis field towards Panjrapole and through Panjrapole main road towards BSNL office, by walking it will take 40 minutes. It is true that both the roads are public roads, and many people are passing through this road.” (emphasis is ours) Whether or not the above sequence of events could have taken place in the time referred to above, would have been easily overcome if the prosecution had placed on record a sketch map providing details with regard to the distance between different places. In that event, it would have become possible to determine whether the activities at different places, projected through the prosecution version of the incident were possible. In the absence of any knowledge about the distance between the residence of the victim Gomi as well as that of the accused from the Polytechnic or from Jivi’s field; it would be impossible to ascertain the questions which emerge from the cross-examination of Naranbhai Manabhai Solanki PW5. Had a sketch map been prepared or details with regard to the distance been given, the courts concerned would have been able to determine all that was alleged in the prosecution version of the incident. This deficiency in the prosecution evidence, must be construed as a serious infirmity in the matter.
12. We would now like to deal with the discrepancies found in the evidence produced by the prosecution before the Trial Court. We would also simultaneously summarise the effect of defences adopted on behalf of the accused-respondent Kishanbhai. These aspects of the matter are also being summerised hereunder, so as to enable us to effectively deal with the submissions advanced at the behest of the State. These aspects of the matter are liable to be taken into consideration, to determine whether or not, a complete chain of events stands proved to establish the guilt of the accused-respondent. The above considerations are summarized hereunder:
(a) The post mortem report relied upon by the prosecution leaves no room for any doubt that injuries on the genitals of Gomi were post mortem in nature. The question which arises for consideration is whether the injuries under reference had been inflicted on the victim first, and thereupon, rape was committed on the victim. It is natural to assume, that the first act of aggression by the person who had committed assault on Gomi, was by inflicting injuries on her head and other parts of the body, only thereafter the legs just above the ankles, would have been cut (with the object of removing her anklets). It is not possible for us to contemplate that the legs of the deceased were cut whilst she was in her senses, is incomprehensible and therefore, most unlikely. Now, the question to be considered is, whether it was humanly possible for even the most perverted person, to have committed rape on a child, who had been killed by causing injuries on head and other parts of body, and after her feet had been severed from her legs. We would have no hesitation by responding in the negative. The prosecution in the instant case apparently projected a version including an act of rape, which is impossible to accept on the touchstone of logic and common sense.

(b) The evidence produced by the prosecution also reveals, that pubic hair of the accused-respondent Kishanbhai, had been examined by the scientific officer of the Forensic Science Laboratory. The report submitted by the Forensic Science Laboratory (Exhibit 48) reveals, that there was neither any semen nor any blood on the pubic hair of the accused. Reference to the possibility of there being blood on the public hair of the accused-respondent Kishanbhai emerges from the fact, that the post mortem report of the deceased revealed, that there was blood on the vagina of the deceased. Whilst accusing the respondent-Kishanbhai of the offence under Section 376 of the Indian Penal Code, it was imperative for the prosecution to have kept in its mind the aforesaid aspects of the matter. Absence of semen or blood from the pubic hair of the accused-respondent, would prima facie exculpate him from the offence of rape.

(c) According to the testimony of the complainant Bababhai Naranbhai Solanki PW2, the accused-respondent Kishanbhai was wearing a white shirt at the time of occurrence. It is, therefore, when a white shirt was found covering the dead body of the victim Gomi, he had identified the same as the shirt which the accused-respondent Kishanbhai was wearing, before the offence was committed. From the prosecution story, as it emerged from the statements of different witnesses, it is apparent that Bababhai Naranbhai Solanki PW2, had had no occasion to have seen the accused-respondent Kishanbhai, wearing the said white shirt. When Bababhai Naranbhai Solanki PW2, was questioned as to how he knew that the accused-respondent was wearing a white shirt, when he first saw the shirt covering the dead body of the victim, his response was, that he had been told about that by his father Naranbhai Manabhai Solanki PW5. In the above view of the matter, the question arises whether the testimony of Bababhai, Naranbhai Solanki PW2 about the shirt referred to above was truthful. And whether his testimony can be described as fair and honest.

(d) Additionally when the accused–respondent Kishanbhai was arrested, the T-shirt worn by him, was taken from him by recording a panchnama. The said T-shirt is available on the record of the Trial Court as Exhibit-39. It is not a matter of dispute that the T-shirt (Exhibit 39), worn by the accused- respondent, Kishanbhai at the time of his arrest, is actually a white T- shirt with a trident design on it. But, as per the narration recorded by Bababhai Naranbhai PW2, contained in the complaint which constituted the basis of registering the first information, it is mentioned that the accused-respondent Kishanbhai was wearing a black T-shirt at the time of his detention. It is apparent from the factual position noticed hereinabove, that the factual position expressed by the complainant Bababhai Naranbhai Solanki PW2 was absolutely incorrect, and contrary to the factual position. In the above view of the matter, a question would arise, whether the deposition of Bababhai Naranbhai Solanki PW2 was fair and honest.

(e) According to the prosecution version of the incident, the search party met the accused-respondent Kishanbhai at about 8:00 p.m. The said party had thereupon proceeded to Jivi’s field, from where the dead body of the victim was recovered. According to Naranbhai Manabhai Solanki PW5, after finding the dead body, he had proceeded to the police station. At the police station, he had requested the police personnel to visit the site of occurrence. Simultaneously, Naranbhai Manabhai Solanki PW5 had stated, that when enquiries were being made from Kishanbhai, police personnel had taken away the accused-respondent. According to the testimony of Naranbhai Manabhai Solanki PW5, therefore, at the most, the accused-respondent must be deemed to have been taken into police custody from about 9:00 p.m. on 27.2.2003. It is apparent, that the occurrence had come to the knowledge of a large number of persons constituting the search party, when the victim’s body was found on Jivi’s field. Even before that, the accused- respondent was already in police custody. As if, the police had already concluded on the guilt of Kishanbhai, even before the recovery of Gomi’s body from Jivi’s farm. Despite the above, the arrest of the accused- respondent Kishanbhai was shown at 6.40 a.m. on 28.3.2003. The detention of the accused-respondent Kishanbhai from 9:00 pm on 27.2.2003 to 6.40 a.m. on 28.2.2003, shows that the prosecution has not presented the case in the manner the events unfolded to the investigating agencies.

(f) It also needs to be noticed, that the inquest panchnama besides mentioning the amputation of the legs of the victim above her ankles, also records, that the silver anklets worn by Gomi were missing. In this behalf, it would also be relevant to mention, that even though the inquest panchnama was drawn at 0030 a.m. on 28.2.2003, the complaint resulting in the registration of the first information report was lodged by Bababhai Naranbhai Solanki PW2 at 3:05 a.m. on 28.02.2003. It is strange, that the inquest panchnama should be drawn before the registration of the first information report. It is also strange as to how, while drawing the inquest panchnama, the panchas of the same could have recorded, that after amputation of the victim’s legs, her silver anklets had been taken away by the offender. There was no occasion for the panchas to have known, that Gomi used to wear silver anklets. Accordingly, there was no occasion for them to have recorded that the silver anklets usually worn by Gomi had been taken away by the offender.

(g) From the prosecution version (emerging from the evidence recorded before the Trial Court), it is apparent, that the search party, as also, the relatives of the victim were aware at about 8:00 p.m. on 27.2.2003 that Gomi had been murdered, with a possibility of her having been raped also, and her silver anklets had been stolen. Despite the above, no complaint whatsoever came to be filed in connection with the above occurrence at the police station on 27.2.2003, despite the close coordination between the search party and the police from 8:00 pm onwards no 27.2.2003 itself. The complaint leading to the filing of the first information was made at about 3:05 a.m. on 28.2.2003. Not only is the delay of seven hours in the registration of the complaint ununderstandable, but the same is also rendered extremely suspicious, on the account of the fact that the accused- respondent Kishanbhai is acknowledged to be in police detention since 9:00 p.m. on 27.2.2003 itself. This may be the result of fudging the time and date at which the victim Gomi went missing, as also, the time and date on which the body of the victim was discovered resulting in the discovery of the occurrence itself. The question which arises for consideration is, whether the investigation agency adopted the usual practice of padding so as to depict the occurrence in a manner different from the actual occurrence. A question also arises as to why it was necessary for the investigating agency to adopt the above practice, despite the fact that it was depicted as an open and shut case.

(h) As noticed above, that from the statements of Bababhai Naranbhai Solanki PW2 and Naranbhai Manabhai Solanki PW5, it is apparent that the accused was detained by the police informally around 9:00 p.m. on 27.2.2003. It is also essential to notice, that an acknowledgement was made to the above effect even by Sub Inspector Naranbhai Lalbhai Desai PW13, who had commenced investigation of the crime under reference. It is apparent that when Bababhai Naranbhai Solanki PW2, had contacted him with details about the offence under reference, he had not recorded any entry in the station diary before leaving the police station. This constitutes a serious lapse in itself. In his cross-examination, he had affirmed that he was taken by Bababhai Naranbhai Solanki PW2, i.e., the complainant to the scene of occurrence. Having gone to the scene of occurrence, and having made on the spot investigation, he acknowledged having returned to the police station. In his statement, he accepted, that when he had returned to the police station after visiting the site of occurrence, the accused- respondent Kishanbhai was already present at the police station. When questioned, he could not tender any explanation, as to how the accused- respondent Kishanbhai had come to the police station. In his statement as a witness, he had expressed, that for the first time he had seen the accused-respondent Kishanbhai only on 28.2.2003 at around 5:30 a.m. Whereafter, the accused-respondent was formally arrested at 6.40 a.m. The inconsistency between the statements made by the complainant (Bababhai Naranbhai Solanki PW2) and his father (Naranbhai Manabhai Solanki PW5) on the one hand, and by Sub-Inspector Naranbhai Lalbhai Desai PW13 on the other, discloses a serious contradiction with respect to the time of the detention of the accused-respondent Kishanbhai. It needs to be noticed, that it was an aberration for Naranbhai Lalbhai Desai PW13, to have left the police station without making an entry in the station diary. Why should a police officer, investigating a crime of such a heinous nature, commit such a lapse? The fact that he did so, is not a matter of dispute. The truth of the matter is, that Naranbhai Lalbhai Desai PW13, did not make any note either in the station diary or in any other register; he did not take any informal complaint from the complainant, even though he had been apprised about the commission of an offence. It is therefore clear that Naranbhai Lalbhai Desai PW13, had left the police station without making an entry depicting the purpose of his departure. All this further adds to the suspicion of the manner in which investigation of the matter was conducted.

(i) So far as the statement of Dinesh Karshanbhai Thakore PW6 is concerned, he had supported the prosecution story by deposing, that the accused had visited his “lari” with a small child, about seven years old. He had further asserted, that the accused-respondent Kishanbhai had purchased a “dabeli” from him. He had also testified that the accused –respondent had asked for a knife but he had refused to give it to him because, at the time when the accused-respondent had visited the “lari”, there were several customers waiting for purchasing “dabelis”. He further confirmed, that the accused-respondent had stolen a knife, used by him for cutting vegetables from his “lari”. Another important aspect of the matter, out of the statement of Dinesh Karshanbhai Thakore PW6 is, that he identified the shirt that the accused-respondent Kishanbhai was wearing, at the time when he had visited his “lari” for purchasing a “dabeli” on 27.2.2003. He had also identified the red frock which the victim was wearing at the said juncture. Additionally, he identified the knife which the accused-respondent Kishanbhai had stolen from his “lari”. The statement of Dinesh Karshanbhai Thakore PW6 was considered to be untrustworthy by the High Court, primarily for the reason that he could identify the shirt worn by the accused-respondent, Kishanbhai when he had approached his “lari” for the purchase of a “dabeli”, at which juncture, the accused-respondent Kishanbhai may have remained at the “lari” at the most for 10 to 15 minutes, when there was a rush of customers. As against the above, he had remained with the accused-respondent Kishanbhai at Navrangpur Police Station, Ahmedabad, for approximately four hours. During the course of his cross-examination, he could not depose about the sort of shirt which the accused respondent was wearing, at the Navrangpur Police Station, Ahmedabad. It is, therefore, apparent that Dinesh Karshanbhai Thakore PW6 was deposing far in excess of what he remembered, and/or in excess of what was actually to his knowledge. He appears to be a tutored witness. This aspect of the matter also renders the testimony of Dinesh Karshanbhai Thakore PW6, suspicious.

(j) There is yet another aspect of the controversy relating to Dinesh Karshanbhai Thakore PW6. The investigating agency became aware from the disclosure statement of the accused-respondent Kishanbhai tendered on 1.3.2003, that he had procured the weapon of offence by way of theft from the “lari” of Dinesh Karshanbhai Thakore PW6. The above knife was recovered at the instance of the accused-respondent Kishanbhai on 1.3.2003, in the presence of panch witnesses. In the above view of the matter, in the ordinary course of investigation, it would have been imperative for the investigating agency to have immediately approached Dinesh Karshanbhai Thakore PW6, to record his statement. His statement was extremely important for the simple reason, that it would have connected the accused with the weapon with which the crime had been committed, as also with the victim. Despite the above, the investigating agency recorded the statement of Dinesh Karshanbhai Thakore PW6, for the first time on 4.3.2003. No reason is forthcoming why his statement was not recorded either on 1.3.2003, or on the intervening dates before 4.3.2003. The inordinate delay by the investigating agency, in confirming the version of the accused- respondent, in respect of the weapon of the crime, renders the prosecution version suspicious. Such delay would not have taken place in the ordinary course of investigation. If there were good reasons for the delay, they ought to have been made known to the Trial Court by way of reliable evidence. This fact too raises a doubt about the correctness of the prosecution version of the incident.

The above discrepancies in the prosecution version, were duly noticed by the High Court. These constitute some of the glaring instances recorded in the impugned order. Other instances of contradiction were also noticed in the impugned order. It is not necessary for us to record all of them, since the above instances themselves are sufficient to draw some vitally important inferences. Some of the inferences drawn from the above, are being noticed below. The prosecution’s case which mainly rests on the testimony of Bababhai Naranbhai Solanki PW2, Naranbhai Manabhai Solanki PW5 and Dinesh Karshanbhai Thakore PW6, is unreliable because of the glairing inconsistencies in their statements. The testimony of the investigating officer Naranbhai Lalbhai Desai PW13 shows fudging and padding, making his deposition untrustworthy. In the absence of direct oral evidence, the prosecution case almost wholly rested on the above mentioned witnesses. It is for the above reasons, that the High Court through the impugned order, considered it just and appropriate to grant the accused-respondent Kishanbhai, the benefit of doubt.

13. Learned counsel for the appellant, in order to support the submissions advanced before this Court in the present criminal appeal (which have been recorded in paragraph 9 hereinabove), with judicial precedent, placed reliance on a number of judgments rendered by this Court. We shall now summarise hereunder, the judgment relied upon, as also, the submissions of the learned counsel on the basis thereof:

(a) Referring to the judgment rendered by this Court in Ram Prasad & Ors. v. State of UP, (1974) 1 SCR 650, it was asserted at the hands of the learned counsel for the appellant, that non-examination of some of the eye- witnesses would not introduce a fatal infirmity to the prosecution case, specially when conviction could be based on evidence produced by the prosecution.

(b) Reference was also made to Takhaji Hiraji v. Thakore Kubersing Camansing & Ors., (2001) 6 SCC 145, and it was pointed out, that this Court has ruled that in cases where witnesses already examined were reliable, and the testimony coming from the mouth was unimpeachable, a court could safely act upon the same uninfluenced by the factum of non-examination of other witnesses. Yet again the conclusion was, that reliable evidence should be available, to determine the culpability of an accused, and in the above view of the matter it would be irrelevant whether some others who could have deposed on the facts in issue had not been examined.

(c) Based on the judgment rendered in Laxman Naik v. State of Orissa, (1994) 3 SCC 381, it was submitted, that in a case relating to a seven year old child, who had been raped and murdered by her own uncle, relying upon incriminating evidence and testimony of witnesses, it came to be held that when circumstances form a complete chain of incidents, then the same is sufficient to establish, that the accused is the perpetrator of the crime and conviction can be based on the complete chain of circumstantial evidence.

(d) Based on the judgment in State of Maharashtra v. Suresh, (2000) 1 SCC 471, where four years’ girl child was a victim of rape and murder, it was contended, that this Court had held that it was open to a court to presume that the accused knew about the incriminating material or dead body due to his involvement in the alleged offence. When he discloses the location of such incriminating material without disclosing the manner in which he came to know of the same, the Court would presume that the accused knew about the incriminating material.

(e) Relying on the judgment in Amar Singh v. Balwinder Singh, 2003 (2) SCC 518, it was contended, that where the prosecution case is fully established by the testimony of witnesses which stood corroborated by medical evidence, any failure or omission of the investigating officer could not be treated as sufficient to render the prosecution case doubtful or unworthy of belief. This determination leads to the same inference, namely, when reliable evidence to prove the guilt of an accused is available, lapses in investigation would not result in grant of the benefit of doubt to an accused.

(f) Referring to State Government of NCT Delhi v. Sunil, (2001) 1 SCC 652, it was asserted, that in a case where a child of four years was brutally raped and murdered and incriminating articles were recovered on the basis of the statement of the accused, the same could not be discarded on the technical ground that no independent witness was examined.

(g) Referring to the judgment in Joseph v. State of Kerala, (2005) 5 SCC 197, wherein, according to the learned counsel, it was held that where the circumstances proved form themselves into a complete chain unerringly pointing to the guilt of the appellant, then the same can be the basis of the conviction of the accused. This, according to learned counsel, represents the manner of proving the guilt of an accused based on circumstantial evidence.

(h) Based on the judgment in State of UP v. Satish (2005) 3 SCC 114, it was contended that it could not be laid down as a rule of universal application that if there is any delay in examination of a particular witness, the prosecution version becomes suspect. Therefore, the facts surrounding the delay ought to be considered in every case to determine whether or not the testimony is rendered suspicious.

(i) Relying on the judgment in Bishnu Prasad Sinha v State of Assam, (2007) 11 SCC 467, it was submitted, that in the above case where a child of 7-8 years was a victim of rape and murder, the grounds that the investigation was done in an improper manner did not render the entire prosecution case to be false. Namely, where reliable evidence is available, the same would determine the guilt of an accused.

(j) Referring to the judgment in Aftab Ahmad Anasari v. State of Uttaranchal, (2010) 2 SCC 583, it was asserted, that where a child of five years was a victim of rape and murder and the accused disclosed the location of the crime as also of the incriminating articles, the said disclosure was admissible and would constitute a complete chain in the circumstances. Further, according to the learned counsel, it was held that the inquest panchnama may not contain every detail and the absence of some details would not affect the veracity of the deposition made by witnesses. Needless to mention, that absence of vital links in the claim of circumstantial evidence would result in the exoneration of the accused.

(k) Reliance was placed on Sambhu Das v. State of Assam, (2010) 10 SCC 374, so as to contend, that any discrepancy occurring in the inquest report or the post mortem report could neither be fatal nor be termed as a suspicious circumstance as would warrant a benefit to the accused and the resultant dismissal of the prosecution case. Needless to add, that there should be sufficient independent evidence to establish the guilt of the accused.

(l) Based on the judgment in Haresh Mohandas Rajput v. State of Maharashtra, (2011) 12 SCC 56, it was contended, that in a case of murder and rape of a ten year old child, it was found that where the circumstances taken cumulatively led to the conclusion of guilt and no alternative explanation is given by the accused, the conviction ought to be upheld. This case reiterates that in a case based on circumstantial evidence the evidence should be such as would point to the inference of guilt of the accused alone and none others.

(m) Relying on Rajendra PrahladraoWasnik v. State of Maharashtra, (2012) 4 SCC 37, it was submitted that where a three years old child was a victim of rape and murder by the accused who lured her under the pretext of buying biscuits, circumstances showed the manner in which the trust/belief/relationship was violated resulting in affirming the death penalty imposed on the accused.

14. We have given our thoughtful consideration to the submissions advanced at the hands of the learned counsel for the appellant, which have been duly noticed in paragraph 9 hereinabove. It is also relevant for us to record, that the learned counsel for the appellant did not advance a single submission in addition to the contentions we have noticed in paragraph 9 above. The submissions advanced at the hands of the learned counsel for the appellant, were sought to be supported by judgments rendered by this Court, all of which have been referred to in paragraph 13 above. The submissions advanced at the hands of the learned counsel for the appellant, based on each of the judgments cited, have also been recorded by us in the said paragraph. Having considered the totality of the facts and circumstances of this case, specially the glaring lapses committed in the investigation and prosecution of the case (recorded in paragraph 11 of the instant judgment), as also the inconsistencies in the evidence produced by the prosecution (summarized in paragraph 12 hereinabove), we are of the considered view, that each one of the submissions advanced at the hands of the learned counsel for the appellant is meritless. For the circumstantial evidence produced by the prosecution, primary reliance has been placed on the statements of Bababhai Naranbhai Solanki PW2, Naranbhai Manabhai Solanki PW5, and Dinesh Karshanbhai Thakore PW6. By demonstrating inconsistencies and infirmities in the statements of the above witnesses, their statements have also been rendered suspicious and accordingly unreliable. There is also a serious impression of fudging and padding at the hands of the agencies involved. As a matter of fact, the lack of truthfulness of the statements of witnesses has been demonstrated by means of simple logic emerging from the factual position expressed through different prosecution witnesses (summarized in paragraphs 11 and 12 above). The evidence produced to prove the charges, has been systematically shattered, thereby demolishing the prosecution version. More than all that, is the non production of evidence which the prosecution has unjustifiably withheld, resulting in dashing all the States efforts to the ground. It is not necessary for us to record our detailed determination on the submissions advanced at the hands of the learned counsel for the appellant, for such reasons clearly emerge from the factual position noticed in paragraphs 11 and 12 hereinabove. Recording of reasons all over again, would just be a matter of repetition. In view of the above, we find no merit in this appeal and the same is accordingly dismissed.

15. The investigating officials and the prosecutors involved in presenting this case, have miserably failed in discharging their duties. They have been instrumental in denying to serve the cause of justice. The misery of the family of the victim Gomi has remained unredressed. The perpetrators of a horrendous crime, involving extremely ruthless and savage treatment to the victim, have remained unpunished. A heartless and merciless criminal, who has committed an extremely heinous crime, has gone scot-free. He must be walking around in Ahmedabad, or some other city/town in India, with his head held high. A criminal on the move. Fearless and fearsome. Fearless now, because he could not be administered the punishment, he ought to have suffered. And fearsome, on account of his having remained unaffected by the brutal crime committed by him. His actions now, know of no barriers. He could be expected to act in an unfathomable savage manner, uncomprehendable to a sane mind.

16. As we discharge our responsibility in deciding the instant criminal appeal, we proceed to apply principles of law, and draw inferences. For, that is our job. We are trained, not to be swayed by mercy or compassion. We are trained to adjudicate without taking sides, and without being mindful of the consequences. We are required to adjudicate on the basis of well drawn parameters. We have done all that. Despite thereof, we feel crestfallen, heartbroken and sorrowful. We could not serve the cause of justice, to an innocent child. We could not even serve the cause of justice, to her immediate family. The members of the family of Gomi must never have stopped cursing themselves, for not adequately protecting their child from a prowler, who had snatched an opportunity to brutalise her, during their lapse in attentiveness. And if the prosecution version about motive is correct, the crime was committed for a mere consideration of Rs.1,000/-.

17. Every time there is an acquittal, the consequences are just the same, as have been noticed hereinabove. The purpose of justice has not been achieved. There is also another side to be taken into consideration. We have declared the accused-respondent innocent, by upholding the order of the High Court, giving him the benefit of doubt. He may be truly innocent, or he may have succeeded because of the lapses committed by the investigating/prosecuting teams. If he has escaped, despite being guilty, the investigating and the prosecution agencies must be deemed to have seriously messed it all up. And if the accused was wrongfully prosecuted, his suffering is unfathomable. Here also, the investigating and prosecuting agencies are blameworthy. It is therefore necessary, not to overlook even the hardship suffered by the accused, first during the trial of the case, and then at the appellate stages. An innocent person does not deserve to suffer the turmoil of a long drawn litigation, spanning over a decade, or more. The expenses incurred by an accused in his defence can dry up all his financial resources – ancestral or personal. Criminal litigation could also ordinarily involve financial borrowings. An accused can be expected to be under a financial debt, by the time his ordeal is over.

18. Numerous petitions are filed before this Court, praying for anticipatory bail (under Section 438 of the Code of Criminal Procedure) at the behest of persons apprehending arrest, or for bail (under Section 439 of the Code of Criminal Procedure) at the behest of persons already under detention. In a large number of such petitions, the main contention is of false implication. Likewise, many petitions seeking quashing of criminal proceeding (filed under Section 482 of the Code of Criminal Procedure) come up for hearing day after day, wherein also, the main contention is of fraudulent entanglement/involvement. In matters where prayers for anticipatory bail or for bail made under Sections 438 and 439 are denied, or where a quashing petition filed under Section 482 of the Code of Criminal Procedure is declined, the person concerned may have to suffer periods of incarceration for different lengths of time. They suffer captivity and confinement most of the times (at least where they are accused of serious offences), till the culmination of their trial. In case of their conviction, they would continue in confinement during the appellate stages also, and in matters which reach the Supreme Court, till the disposal of their appeals by this Court. By the time they are acquitted at the appellate stage, they may have undergone long years of custody. When acquitted by this Court, they may have suffered imprisonment of 10 years, or more. When they are acquitted (by the trial or the appellate court), no one returns to them; what was wrongfully taken away from them. The system responsible for the administration of justice, is responsible for having deprived them of their lives, equivalent to the period of their detention. It is not untrue, that for all the wrong reasons, innocent persons are subjected to suffer the ignominy of criminal prosecution and to suffer shame and humiliation. Just like it is the bounden duty of a court to serve the cause of justice to the victim, so also, it is the bounden duty of a court to ensure that an innocent person is not subjected to the rigours of criminal prosecution.

19. The situation referred to above needs to be remedied. For the said purpose, adherence to a simple procedure could serve the objective. We accordingly direct, that on the completion of the investigation in a criminal case, the prosecuting agency should apply its independent mind, and require all shortcomings to be rectified, if necessary by requiring further investigation. It should also be ensured, that the evidence gathered during investigation is truly and faithfully utilized, by confirming that all relevant witnesses and materials for proving the charges are conscientiously presented during the trial of a case. This would achieve two purposes. Only persons against whom there is sufficient evidence, will have to suffer the rigors of criminal prosecution. By following the above procedure, in most criminal prosecutions, the concerned agencies will be able to successfully establish the guilt of the accused.

20. Every acquittal should be understood as a failure of the justice delivery system, in serving the cause of justice. Likewise, every acquittal should ordinarily lead to the inference, that an innocent person was wrongfully prosecuted. It is therefore, essential that every State should put in place a procedural mechanism, which would ensure that the cause of justice is served, which would simultaneously ensure the safeguard of interest of those who are innocent. In furtherance of the above purpose, it is considered essential to direct the Home Department of every State, to examine all orders of acquittal and to record reasons for the failure of each prosecution case. A standing committee of senior officers of the police and prosecution departments, should be vested with aforesaid responsibility. The consideration at the hands of the above committee, should be utilized for crystalizing mistakes committed during investigation, and/or prosecution, or both. The Home Department of every State Government will incorporate in its existing training programmes for junior investigation/prosecution officials course- content drawn from the above consideration. The same should also constitute course-content of refresher training programmes, for senior investigating/prosecuting officials. The above responsibility for preparing training programmes for officials, should be vested in the same committee of senior officers referred to above. Judgments like the one in hand (depicting more than 10 glaring lapses in the investigation/prosecution of the case), and similar other judgments, may also be added to the training programmes. The course content will be reviewed by the above committee annually, on the basis of fresh inputs, including emerging scientific tools of investigation, judgments of Courts, and on the basis of experiences gained by the standing committee while examining failures, in unsuccessful prosecution of cases. We further direct, that the above training programme be put in place within 6 months. This would ensure that those persons who handle sensitive matters concerning investigation/prosecution are fully trained to handle the same. Thereupon, if any lapses are committed by them, they would not be able to feign innocence, when they are made liable to suffer departmental action, for their lapses.

21. On the culmination of a criminal case in acquittal, the concerned investigating/prosecuting official(s) responsible for such acquittal must necessarily be identified. A finding needs to be recorded in each case, whether the lapse was innocent or blameworthy. Each erring officer must suffer the consequences of his lapse, by appropriate departmental action, whenever called for. Taking into consideration the seriousness of the matter, the concerned official may be withdrawn from investigative responsibilities, permanently or temporarily, depending purely on his culpability. We also feel compelled to require the adoption of some indispensable measures, which may reduce the malady suffered by parties on both sides of criminal litigation. Accordingly we direct, the Home Department of every State Government, to formulate a procedure for taking action against all erring investigating/prosecuting officials/officers. All such erring officials/officers identified, as responsible for failure of a prosecution case, on account of sheer negligence or because of culpable lapses, must suffer departmental action. The above mechanism formulated would infuse seriousness in the performance of investigating and prosecuting duties, and would ensure that investigation and prosecution are purposeful and decisive. The instant direction shall also be given effect to within 6 months.

22. A copy of the instant judgment shall be transmitted by the Registry of this Court, to the Home Secretaries of all State Governments and Union Territories, within one week. All the concerned Home Secretaries, shall ensure compliance of the directions recorded above. The records of consideration, in compliance with the above direction, shall be maintained.

23. We hope and trust the Home Department of the State of Gujarat, will identify the erring officers in the instant case, and will take appropriate departmental action against them, as may be considered appropriate, in accordance with law.

24. The instant criminal appeal is accordingly disposed of.

Editorial : Supreme Court curb wasteful expenditure by governments

The Government of India and various state governments are delaying appointment of judges and not giving proper financial , infrastructure support to judiciary to conduct it’s duty. Thereby , governments are violating the constitutional rights , human rights of millions of litigants. Also , due to delayed litigation project costs of many projects are shooting up by thousands of crores of rupees. It is a drain on public exchequer.

Government claims it does not have enough funds to provide to judiciary but has millions of rupees for wasteful expenditure of ministers , bureaucrats like foreign jaunt , bungalow decoration , new high end car purchases , etc.

Constitutional Rights of People & Preserving Precious Public Money is top priority than lavish life styles of ministers & bureaucrats. Hereby , we urge the Honourable Supreme Court of India , to curb wasteful expenditure by GOI & various state governments and to order the governments to come out with concrete plan to provide speedy justice to the public.

Jai Hind. Vande Mataram.

Your’s Sincerely ,

Nagaraja.M.R.

PIL – Justice Delayed & Justice Denied

IN THE SUPREME COURT OF INDIA ORIGINAL JURISDICTION

CRIMINAL WRIT PETITION NO. OF 2016

IN THE MATTER OF

NAGARAJA . M.R

editor SOS e Clarion of Dalit & SOS e Voice for Justice

# LIG 2 , No 761 ,, HUDCO First Stage , Laxmikantanagar ,

Hebbal , Mysore – 570017 , Karnataka State

....Petitioner

Versus

Honourable Chief Justice of India & Others

....Respondents

PETITION UNDER ARTICLE 12 to ARTICLE 35 & ARTICLE 51A OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF A WRIT IN THE NATURE OF MANDAMUS UNDER ARTICLE 32 & ARTICLE 226 OF THE CONSTITUTION OF INDIA.

To ,

Hon'ble The Chief Justice of India and His Lordship's Companion

Justices of the Supreme Court of India.

The Humble petition of the Petitioner above named.

MOST RESPECTFULLY SHOWETH :

1. Facts of the case:

a. Every human being , every Indian citizen are equal and guaranteed equitable justice as their human right and Constitutional right.

b. In india mafia of powers that be and government ensure that cases drag on for years , so that poor litigant either dies before judgement day or opts out in the middle. Due to this delaying tactics , many poor people rather suffer injustice instead of seeking justice in courts. Mafia indirectly forces them to keep away from litigation.

c. Due to occupation induced health problems my health is deteriorating day by day , some of the PILs concerning national security , public welfare I have filed are two decades old , still no justice in sight. Judges not even admitted the cases.

d. Actual working hours , working days for judges are less in india. Too many case adjournments , less number of judges , too many holidays for judges like summer vacation , winter vacation , working hours less than 8 hours per day , etc.

e. Judges work less but enjoy 5 star pay & perks at public expense.

f. Due to denial of justice common people suffer injustice for more time or till their death. Say some falsely implicated persons suffer in jail for years till their acquittal by courts , some petty criminals whose crime attracts one year imprisonment suffers in jail for ten years. Because they are not well connected , cann’t afford hi fi advocates , bail fees.

g. Due to lethargic judiciary , some land acquisition cases drag on for years land looser suffers also the project cost escalates by hundreds thousands of crores of rupees.

h. The lethargic Judiciary in India itself is the biggest violator of common man’s human rights , fundamental rights. It is the culprit responsible for loss of thousands of crores of rupees to public exchequer due to project cost escalations.

i. when a common man’s human rights , human rights is violated in the form of delaying tactics by court of law , judiciary , the presiding judge becomes a criminal and liable to pay damages to the aggrieved.

j. The central government and state government yearly spend thousands of crores of rupees unnecessarily like purchasing new cars for ministers , renovation , interior decorations of minister’s bungalows , foreign jaunts , etc. These are all not priority one spending. Out of these spending how many more judges could be appointed , paid salaries.

k. when compared to project cost escalations of thousands of crores of rupees caused due to case delays , is it not wise on the part of government to appoint requisite number of judges with additional budget burden of few crores of rupees.

l. Both central and state governments are the biggest litigants in the country.

m. Government is manipulating judicial process by denying finance to appoint more judges , to create more court infrastructures.

n. We common people are imposed with time limits to mandatorily comply with, in our interactions with other public , with government authorities , with courts itself. For our failures we common people are penalized.

0. Paradoxically , there is no mandatory time limits for judges , public servants to finish specific works concerning public. In most of the cases they adopt delaying tactics , deny justice still they are not penalized and don’t pay any compensation to the aggrieved public.

p. Due to delaying tactics of judges , many anti national crimes , terror attacks took place and still continuing which could have been well averted in time if judges took timely action. For helping mafia by the way of delayed justice , mafia rewards some of those judges with post retirement postings , promotions , site allotments , etc.

q. The Judiciary has the right , authority , power to order government to allocate finance for appointing judges , setting up court infrastructure. If the government gives ruse of no money in it’s account , courts can definitely monitor spending of government , cut down on waste , non-priority spending of government , divert such money for appointment of judges , court infrastructure development. No need for CJI to weep before prime minister. Judges themselves never consider the sufferings of weeping litigants. It shows the weakness of CJI and a shame to our nation.

We once again appeal to Honourable CJI , Supreme Court of India to take action on the following PILs , to answer the show cause notice and to order the concerned public servants to answer RTI questions. The officials of SCI don’t even have etiquette , decorum to reply to our letters. Some of my appeals are two decades old.

Remember the basic fact you are all enjoying 5 star pay , perks at the expense of public and owe your duty to public. Are not judges drawing huge salaries , 5 star pay , perks on time without fail , on 01st of every month? Have they forgotten to take salary in 25 years , but they keep cases pending for 20 - 25 years. CJI weeping before Prime Minister shows the weakness of the judiciary & a shame to the nation. Judges never consider sufferings of weeping litigants in cases. Judges themselves are responsible for long pending cases.

Don’t refer the case to police as they don’t have power , authority to enquire high & mighty people , judges & previously they have failed and the case is to subject some police officials , judges themselves to enquiry. Referring the case to police is nothing but attempt to bury the truth , only supreme court monitored transparent enquiry by CBI is right.

Delaying tactics of judges is only helping the criminals , anti nationals and terrorists. Please refer below mentioned sample cases of Justice delayed for years to innocents , sufferings of their family members. No judges , police are bothered. Are not the the respective judges , police guilty of defaming those innocent persons , spoiling their livelihood , gross violation of their civil rights ? why not those guilty judges , police are paying compensation to victims of their wrong actions ? But the very same guilty judges , police are SHAMELESSLY enjoying 5 star pay perks from public exchequer for decades.

Bail system , Parole system are in favour of rich crooks in india , cases of rich crooks move at faster pace wheeas the cases of poor which are although older still continues. Judiciary , it’s system are biased. Consider the sample cases of sanjay dutt , salman khan , jayalaita. Our judges , Police don’t have spine to enforce rule of law on rich crooks , while they put full force , might on poor innocents.

If anything untoward happens to me or to my dependents Chief Justice of India together with jurisdiction police & District Collector will be responsible for it.

Rot in judiciary is decades old. Honourable CJI sir , weeping is not right constitution of india has given you the authority , TAKE ACTION DO YOUR DUTY. People , History will remember you forever with respect. Anyway you are getting very good 5 star pay & perks , will also get decent pension after retirement from government. First forget about post retirement postings , discretionary allotment of sites , etc from government then you can work fearlessly. Both central & state governments are biggest litigants in the country , IAS babus make wrong application , interpretation of laws leading to litigations. Start by clearing the rotten eggs within the judiciary. When judiciary & police in a country strictly uphold law , work impartially that country surpasses even heaven.

Do remember on the D Day , in the Court of Almighty everybody CJI , Judges , prime ministers , common man alike has to bow his head. In who’s court there is no match fixing , no techinicalities , no vociferous hi fi advocates , no bias based on caste , religion , region , community , etc , only straight simple account of wrongs & rights. Guess his judgement in your case. GOD BLESS US ALL.

2. Question(s) of Law:

Is it right for judges to deny justice . is it right on the part of judges to delay justice under various ruses to common man , violate their human rights , fundamental rights.

3. Grounds:

Requests for equitable justice , Prosecution of judges , police , public servants responsible for case delays.

4. Averment:

Please read details at :

Honourable Chief Justice of India TAKE ACTION

https://sites.google.com/site/eclarionofdalit/honourable-cji-take-action ,

https://www.scribd.com/doc/312858947/Honourable-CJI-Take-Action

Hereby , I do request the honorable supreme court of India to consider this as a PIL for : “writ of Mandamus” and to issue instructions to the concerned public servants in the following cases to perform their duties & to answer the questions.

The Petitioner has sent many letters / appeals / petitions to supreme court of india & other courts through e-mail , DARPG website & through regular mail requesting them to consider those as PILs. But none ofthem were admitted , even acknowledgement for receipts were not given. See How duty conscious ,our judges are & see how our judges are sensitive towards life , liberty of citizens , common men & see how careless our judges are towards anti national crimes , crimes worth crores of rupees. That the present petitioner has not filed any other petition (which are admitted by courts) in any High Court or the Supreme Court of India on the subject matter of the present petition.

PRAYER:

In the above premises, it is prayed that this Hon'ble Court may be pleased:

a . Hereby , I do request the honorable supreme court of India to consider this as a PIL for : “writ of Mandamus” and to issue instructions to the concerned public servants , Tax Authorities , Law Enforcement Agencies , RBI authorities in the following cases to perform their duties & to answer the below RTI questions.

b . to pass such other orders and further orders as may be deemed necessary on the facts and in the circumstances of the case.

c. To legally prosecute responsible , concerned judges , police & public servants.

d. To cancel winter , summer vacation holidays for judges.

e. To bring down the holidays of courts per year to twelve on the lines of industrial establishments.

f. To make it mandatory for judges to conduct court hearings for 8 hours per day.

g. To bring down unnecessary court adjournments.

h. to reserve precious court timings only for arguments , cross examination of litigants , witnesses.

i. to use information technology , internet for issue of notices , summons and litigants submitting documents , applications instead of wasting court time.

j. to introduce working of courts on shift basis in the same infrastructure.

k. to appoint retired judges immediately to bring down gaps in judges requirement.

l. to order the biggest litigant government of india and all state governments to frame laws strictly in accordance with constitution.

m. to order governments to give proper training for public servants , IAS officers , KAS officers , others about law of the land.

o. to make specific public servants personally responsible for wrong applications of law while discharging their duties and to make them pay compensation from their personal pockets.

p. to order Chief Justice of India to pay compensation of Rupees TWO CRORES to Nagaraja Mysuru Raghupathi editor SOS e Clarion of Dalit & SOS e Voice for Justice , towards the damages he has suffered due to delayed justice.

q. to order the respective judges , police in all cases of case delays more specifically in the below mentioned cases to pay compensation to innocent victims. Make a guideline for compensation payment. Legally prosecute guilty judges , police.

r. to frame a guideline for bail & parole procedure. When it is violated by judges , police , jail authorities , other public servants order them to pay compensation and legally prosecute guilty judges , police , jail officials.

FOR WHICH ACT OF KINDNESS, THE PETITIONER SHALL BE DUTY BOUND, EVER PRAY.

Dated : 08.06.2016……… ………………….FILED BY: NAGARAJA.M.R.

Place : Mysuru , India……………………. PETITIONER-IN-PERSON

Judicial appointments delayed is justice delayed

On the eve of Independence Day, the outburst of Chief Justice of India T S Thakur in open court blaming the government for delay in accepting the recommendations of the collegium was unfortunate. The court asked the government to send back the names in case of a problem, but not to hold up the appointments. It observed, “If this logjam goes on, we’ll be forced to judicially interfere with the government and ask for every file sent to you by the collegium.” The anguish expressed by CJI was not theatrical. It was genuine and on account of delays in dispensation of justice, owing to non-appointment of judges. Having interacted closely with Law Minister Ravi Shankar Prasad and Finance Minister Arun Jaitley when I was the Attorney-General, I have reason to believe that it is not the intention of the NDA government to pack the judiciary with sarkari judges. The issue about causes of delayed appointments must be urgently sorted out without recourse to any blame game. Remember that ultimately it is the harassed litigants who suffer.

State to challenge Bombay high court acquittal of man after he seeks 200 crore for ‘wrongful rape prosecution’

MUMBAI: Six months after a Ghatkopar man sought Rs 200-crore compensation as he was "wrongly prosecuted" for rape and was acquitted after completing his jail term, the state government informed the Bombay high court that it's in the process of challenging his acquittal before the Supreme Court.

On Tuesday, additional public prosecutor Jayesh Yagnik informed a division bench of Justice Naresh Patil and Justice Prakash Naik that the government is approaching the SC to file a special leave petition. The bench directed the state to inform it within two weeks about the status of its plea.

The state's decision comes over a year after another HC bench acquitted Gopal Shetye of all charges. Shetye had served his sentence and was released before the HC gave its verdict. "This is clearly delay tactics on the part of the state government," said advocate Rajeshwar Panchal, counsel for Shetye. "The HC judgment was delivered in June 2015, and as per the norms, an appeal has to be filed within 90 days. The state seems to have decided to approach the Supreme Court now as a response to the petition for compensation."

Shetye's lawyers are confident that the HC verdict will be upheld. "The judgment clearly indicts the prosecution and the police machinery for falsely implicating an innocent person. There were many lapses on the part of the prosecution," Panchal added.

In his application claiming compensation, Shetye had said besides being in jail for a crime he did not commit, his life had been turned upside down—he could not perform his father's last rites, his wife left him and remarried, and his two daughters were sent to an orphanage.

Shetye, who used to work in a hotel in Ghatkopar, was arrested on July 29, 2009. He later found out that he was charged with raping a 28-year-old woman from Aurangabad sleeping on a railway bridge at Ghatkopar station 10 days ago. In 2010, a sessions court convicted him and sentenced him to seven years'jail. By the time, the HC decided his appeal, he had served his jail term.

In 2015, the HC had found no evidence to link Shetye to the murder. The victim had said that the man who raped her was "Gopi" and the court said that the police themselves had floated the theory that "Gopi" was Gopal Shetye.

The HC had also picked holes in the police case—Shetye was shown to the victim in the police station before the test identification parade and the investigation agency had not produced the CCTV footage. "This was a case where the identity of Shetye as the culprit had not been satisfactorily established," the HC had said. "The investigation had not been satisfactory. No serious efforts were taken to find out the truth or to collect evidence."

Honourable Judges Do Your Duty or Resign

- Judges , Police bound to pay for case delays

If anything untoward happens to me or to my dependents Chief Justice of India together with jurisdiction police & District Collector will be responsible for it.

Jai Hind. Vande Mataram.

Date : 08.06.2016………………..Your’s sincerely ,

Place : Mysuru…………………..Nagaraja.M.R.

After 29 years, man acquitted of stealing Rs 57

KANPUR: Some times justice delayed is not merely justice denied but downright cruel. Wrongly accused of pocketing Rs 57.60, postman Umakant Mishra remained suspended from his government job for nearly 30 years. He retired three years ago and was absolved of the charge in a court last month, but he remains a shattered man.

Umakant worked in a post-office in Harjinder Nagar area of Kanpur. Department authorities at the post office handed Mishra Rs 697.60 in cash to distribute as money-order. Of the total Rs 697.60, Umakant distributed Rs 300 and the rest he claimed to have returned to his senior colleagues. But they accused him of stealing Rs 57.60 and lodged an FIR against him.

That was on a case was registered against him for stealing Rs 57, and he was promptly suspended. The police booked him for criminal breach of trust. It took nearly 350 hearings and 29 years for Umakant to prove himself innocent, but the loss he suffered in this period was enormous. The judgment was delivered by a metropolitan magistrate on November 25. Umakant wept when he was approached for an interview. Struggling to find words, Umakant said, "I retired three years ago and remained suspended for nearly 26 years. I have no idea what to say or do."

His wife Geeta said, "I am relieved and happy with the verdict, but if we'd got justice at the right time, our children's career wouldn't have got ruined. We lived with the stigma and financial trouble for so long that our future is destroyed." "This is apathy at its worst. We lost everything, borrowed money for our livelihood, children's education and marriage," she said. "Without regular income, we had trouble arranging for the education and marriage of our children. We sought donation to marry off our two daughters. Since we could not educate our children, our son Ganga has an insecure job.

Maharashtra: After acquittal, man wants back 7 years lost in jail

Shetye is now sitting on hunger strike seeking to meet Devendra Fadnavis and demanding that seven years of his life be returned.

With the uproar over actor Salman Khan getting bail on the same day of his conviction still fresh in the mind, comes a heart-rending story that highlights how our justice system works.

40-year-old Gopal Shetye was acquitted by the Bombay High Court on Thursday. However, there was nothing to rejoice for this man except the consolation of being proved innocent. Shetye is now sitting on hunger strike at the Azad Maidan seeking to meet Chief MinisterDevendra Fadnavis and demanding that seven years of his life be returned during which his world turned upside down.

His release came three months after he had completed his seven year sentence in a rape case. Shetye of Nagpur's Narked had appealed in 2010 after he was convicted by the fast track court in Mumbai's Sewri.

Lawyer Ramesh Majgaonkar said Shetye had twice applied for bail before the Bombay High Court but these were rejected. It was his third bail application that bore fruit.

During the incarceration, Shetye lost his father, his wife remarried (with his consent) and his two little daughters were left in an orphanage. "I want seven years of my life back. I demand justice," said Shetye. The order overturning the conviction reveals how the police tried to frame an innocent.

"Since the whole accusation against the appellant was based on a solitary piece of evidence - his identification as the culprit not previously known to her - by an illiterate victim, who also came from a lower strata of the society and who could, therefore, be susceptible to the suggestions from the investigating agency, it was not safe to base the conviction of the appellant on such a piece of evidence," the high court observed.

Justice Abhay Thipsay concluded that the identity of Shetye has not been satisfactorily established and hence overturned the conviction.

Justice delayed is justice denied, President Pranab Mukherjee says on pendency of cases

Chief Justice of India Tirath Singh Thakur said if bar association cooperates, judges will be ready to work even on Saturdays to clear pending cases.

President Pranab Mukherjee on Sunday said justice delayed is justice denied, and pitched for speedy and affordable justice to all. He said there are over three crore cases pending in various courts across the country, reported IANS. "The government and the judiciary are collectively addressing this issue through an ongoing increase in the sanctioned strength of judges. These posts need to be filled quickly,” he said while addressing the 150th foundation day of the Allahabad High Court.

Chief Justice of India Tirath Singh Thakur, who was also present at the event, said bar association has "not been very very cooperative" in disposal of cases, reported PTI. He said he can assure the lawyers that if bar cooperates, judges will be ready to work even on Saturdays to clear old matters, especially related to people languishing in jail for years. He also said the country's judiciary, as an institution, is facing crisis of credibility, and asked judges to be conscientious of their duties.

During the Patna High Court centenary celebrations on Saturday, Prime Minister Narendra Modi had expressed concern over the large number of cases pending in courts for years. He had suggested that the courts should come out with an annual bulletin, mentioning the number of pending cases to help judges and lawyers tackle them in a time-bound manner.The CJI was also present at the event.

A Chief Justice of India says "I am sorry" but 30 years too late

By Shanmugham D Jayan and Raghul Sudheesh

When a former Chief Justice of India apologises for a judgement, that’s big news. And Justice P N Bhagwati was not just apologising for any judgement.

He was admitting his “mistake” about a case the New York Times called close to the Indian Supreme Court’s “utter surrender” to an absolutist government.

That case was ADM Jabalpur, popularly known as the Habeas Corpus case. On 28 April, 1976, during the Emergency, the Supreme Court had to decide if the Court could entertain a writ of habeas corpus filed by a person challenging his detention. The High Courts had already said yes. But the Supreme Court went against the unanimous decision of all the High Courts and upheld the right of Indira Gandhi’s government to suspend all fundamental rights during the Emergency. Four judges ruled for the government. One of them was Justice P N Bhagwati.

The lone dissenter was Justice H R Khanna. The New York Times wrote at that time:

If India ever finds its way back to freedom and democracy that were proud hallmarks of its first eighteen years as an independent nation, someone will surely erect a monument to Justice H R Khanna of the Supreme Court. It was Justice Khanna who spoke out fearlessly and eloquently for freedom this week.

http://s4.firstpost.in/wp-content/uploads/2011/09/Justice-Bhagwati.jpg

Justice Bhagwati was admitting his “mistake” about a case the NY Times called close to the Indian Supreme Court’s “utter surrender” to an absolutist government. Reuters

Now 30 years later Justice Bhagwati says in an interview withMyLaw.net his judgment was “an act of weakness.” He also says, “it was against my conscience...That judgment is not Justice Bhagwati’s.”

This might sound like a brave mea culpa on his part. But unfortunately it leaves a lot to be desired.

First of all there is Justice Bhagwati’s own track record of having his ear finely tuned to the prevailing political winds.

Justice Bhagwati has praised Indira Gandhi government during the Emergency and later criticized her during the tenure of Janata government. When Indira Gandhi came back to power, he wrote a letter congratulating her.

Here’s an excerpt from that letter:

“May I offer you my heartiest congratulations on your resounding victory in the elections and your triumphant return as the Prime Minister of India...I am sure that with your iron will and firm determination, uncanny insight and dynamic vision, great administrative capacity and vast experience, overwhelming love and affection of the people and above all, a heart which is identified with the misery of the poor and the weak, you will be able to steer the ship of the nation safely to its cherished goal.”

What this really shows is that CJI Bhagwati might have gone against his conscience but certainly not against his career trajectory. Justice H R Khanna, who dissented in that Jabalpur case should have become the CJI because of his seniority. But he paid the price for that dissent. He was superceded by Justice Beg. Justice Bhagwati would likely have met with the same fate of Justice H R Khanna had he dissented.

This is not the only issue where Justice Bhagwati has made a volte face.

Take the mysterious collegium system by which Supreme Court justices are appointed which has come under heavy criticism for being an unaccountable opaque cabal. It was Justice Verma who created the collegium system but in theFirst Judges Case (the SP Gupta case) Justice Bhagwati wrote about it: “There must be a collegium to make recommendation to the President in regard to appointment of a Supreme Court or High Court Judge”.

Justice Bhagwati’s mind has now changed about that as well and he says he is against the collegium system in toto.

His own track record as a judge has also raised legal eyebrows.

Noted constitutional law jurist HM Seervai has criticised Justice Bhagwati for merely copying justice Krishna Iyer’s judgment in the Som Prakash case and incorporating it into his judgment in the Ajay Hasia case.

In a landmark case of constitutional law, popularly referred to as the Minerva Mills judgment, Justice Bhagwati wrote: “Unfortunately we could not be ready with our judgment and hence 9 May,1980 being the last working day of the Court before the summer vacation we made an order expressing our conclusion but stating that we would give our reasons later.”

A judge of the Apex Court saying "I am not ready with my reasons but this is my conclusion" anyway sets a deplorable standard for the Indian judiciary.

Justice Bhagwati writes, that after the Emergency he realized the mistake of Jabalpur and he practically rewrote Part III and Part IV of the Constitution; particularly Articles 14, 19, 21 and 32. A judge claiming that he is “writing” the Constitution, as opposed to interpreting it is unorthodox to say the least.

These days Justice Bhagwati is more in the news because he is a trustee with the beleaguered Sathya Sai Trust. As financial scandals rock the Sai Baba’s spiritual empire, the trust relies on people of the eminence of a former CJI to give it some credibility. Immediately after the demise of Satya Sai Baba Justice Bhagwati was appointed as chancellor of the Sri Sathya Sai Institute of Higher Learning (Deemed to be University). Recently in an interview given to The Times of India Justice Bhagwati said: “Sai Baba, my god, dictated my every single judgment”.

People will make of that what they will. But the real question now is what does this apology mean for the Indian judiciary. Some will think its proof of the self-correcting mechanism of the Indian judiciary. But it’s also proof of something much more damning - that political equations play a crucial role in the appointment of judges and the judgments these judges deliver.

What happened in the Habeas Corpus case was not a momentary lapse in judgment. It was a disgrace to the Supreme Court, and more so because Justice Bhagwati says it went against his conscience, even then.

This belated apology does not restore the faith of people in judiciary. The only way to do that is to have an independent judicial commission appoint judges and bring in transparency in every stage of their appointment.

It may save us from a Bhagwati-style apology another 30 years later.

Bastar, India, where the innocent lose years in jail

In a tough stance against Maoists, police incarcerate people for years, only to release them for lack of evidence

by Raksha Kumar

BASTAR DISTRICT, India — Irpa Narayan limps as he walks the jungles around his village, Bellamnendra — an injury from the seven years he spent in jail for suspected anti-state activity before being acquitted. He was forced to sit six hours a day with his knees pressed to his chest in an overcrowded cell of the Jagdalpur Central Jail.

After being jailed for more than five years, he faced trial in 2013. In January 2014, he was finally granted bail. However, the bail required him to deposit 10,000 rupees ($150) in the courts as bond. Since he could not afford that sum, he remained locked up as his case dragged on.

He was acquitted in June 2015 after a judge found no reason for his incarceration.

“I was taken to jail for no reason and kept there for no reason,” said Narayan, 32. “And now I have to start building my life from scratch.”

Experts say his story is shockingly common: More than 96 percent of those arrested from 2005 to 2012 in the five districts of India’s central Bastar district were set free by the trial courts because of lack of evidence, and two-thirds of those arrested spent two to five years in jail before facing trial.

This is according to the Jagdalpur Legal Aid Group, a nonprofit group based in Bastar that filed right to information applications in 2013 to obtain relevant government records.

“In other parts of the country, the police work toward getting evidence so the accused can be convicted. Here the purpose of the arrests is not to get them convicted. Most of the cases are false anyway. It is just to intimidate the local populace,” said Shalini Gera, a lawyer with the group.

Because data from close to four dozen police stations in Bastar region are not digitized, the only way to arrive at the number of people who are arrested is by looking at the number of people who are incarcerated.

According to National Crime Records Bureau figures for 2013, while detention facilities in Chhattisgarh are designed to accommodate 5,850 people, there are 14,780 inmates. This figure includes convicts and people awaiting or under trial.

The facilities in Bastar are overcrowded, at 252 percent to 400 percent of capacity, compared with the national average of 112 percent, according to India’s National Crime Records Bureau.

False arrests

In Chhattisgarh, for more than three decades the government has been fighting a bloody battle with a leftist guerrilla group commonly referred to as Maoists. The mineral-rich areas of the state have attracted large corporations from all over India.

While the government quells all opposition to mining, some Maoists fight to keep industrialization out of the jungles. This battle drives a wedge between those who support the government and those who support the Maoists. These divisions are quiet, however, because if they took sides openly, they would risk the ire of the opposing party.

False arrests are just one tactic used to scare people from speaking out against government policies, according to Alok Shukla, the community organizer for Chhattisgarh Bachao Andolan, a cluster of nonprofit organizations working in the state. “The authorities are trying to ensure that the Maoists get as little support from the local population as possible,” he said.

Most of these cases need not be tried at all, said Gera. The courts reserve the right to dismiss them on the basis of inconsistencies in the first information report and the charge sheet filed by the police. In Narayan’s case, for example, the report, filed in February 2008, indicates he was arrested for possessing a bow and three arrows and being present in the jungles in the midst of a police gunbattle with Maoists. Al Jazeera America has seen the documents, which appear to be hastily handwritten notes.

But Narayan lives in those jungles. And it is common for Adivasis, India’s indigenous people, to use bows and arrows to hunt. Since the report does not say that he was wielding a gun or participating in the battle, the court could have dismissed the case or instructed the police to dig for more evidence before they booked a case.

But “courts won’t risk dismissing cases in these areas, for the fear of being termed pro-Maoist,” said a local lawyer who requested anonymity to avoid possible reprisals. “In other parts of the country, a case such as Narayan’s would hold no water, as it is weak in its details and evidence. In Bastar, such cases are abundant.”

Narayan’s account of that day differs significantly from the police version. He said he was sitting on a cane cot in his hut, sipping black tea when half a dozen paramilitary forces approached him. He said they shot two bullets in the air to scare his neighbors away and then informed him that he was being arrested for “anti-state activities” and being a Maoist supporter.

Indian Prime Minister Narendra Modi visited Bastar in May and witnessed the signing of multimillion-dollar agreements for Ultra Mega Steel Plants and railway lines to aid those plants. According to Shukla, there has been an escalation in such arrests since then, although official figures are not available.

Gera’s phone is constantly busy with calls from all over Bastar from people seeking her help for what they say are false arrests. “We can’t take on all the cases, even though they are equally important,” she said. “We are happy on the days when we get less than half a dozen distress phone calls.”

The local people have been forest dwellers, and the forest is their main source of livelihood. “Locals are with the Maoists in this. We do not want industry that would destroy our livelihoods and render us unemployed,” said a resident of Rowghat, in eastern Bastar, speaking on condition of anonymity because he fears he would be targeted by the government for speaking out.

Bastar’s inspector general has not responded to Al Jazeera America’s questions and interview requests.

Gang-raped by police in india's prisons

NGOs have been pushing for investigations into claims of sexual violence against incarcerated women in India.Jagadeesh NV / EPA / Corbis

In January 2008, a 17-year-old girl from Sukhma district was arrested by the police for allegedly being involved in the killing of 23 paramilitary personnel. She was kept in a police station for 10 days without being charged.

There, she said, she was repeatedly gang-raped by policemen before being taken to a judge. She said that she couldn't muster the courage to tell the judge what the police had done to her and that she was so weak, she could barely stand up.

The judge remanded her to the Jagdalpur Central Jail. For more than seven years, she was kept in a cell that held about 35 inmates. Most of the women there were detained on false charges of being Maoists, the woman, now 24, said.

She spoke to Al Jazeera on condition of anonymity because of the social stigma that rape carries.

She said the brutal rapes damaged her genitals and her intestine. “Yet I had to plead for medical care to be given to me,” she said. Whenever she did, she was taken to a doctor. But her health gradually worsened. She still experiences debilitating pain in her stomach and pelvic region.

“The problem with court proceedings of most of these cases is that the witnesses are all police personnel,” said Gera. In other parts of the country, police are allowed to be witnesses, but their testimonies are given less importance. They are expected to bring in other, objective witnesses to crimes.

Bastar, though, is India’s most militarized region. And in many cases, the only witnesses are the police. The courts are left with little choice.

Two policemen said they witnessed the girl’s criminal activities, according to official police documents. But they didn't show up in court for her case for more than a year, claiming they were busy with work in other areas of the state or were on leave.

When they finally appeared, they said they had little information regarding her involvement, and they did not have any evidence against her.

The girl was released — acquitted for lack of evidence — in March. Now 24, she said she has only two reasons to be sad: In a country where rape is stigmatized, she believes no one will ever marry her, and she has friends in the jail who are as innocent as she and remain incarcerated.

“I wish I could do something to ensure they return safely,” she said, with tears in her eyes.

Fifty-four Years In Jail Without Trial: The Plight Of Prison Inmates In India

By Parwini Zora

Machang Lalung, aged 77, was released from incarceration last month in the northeast Indian state of Assam after spending more than half a century behind bars awaiting trial.

Lalung had been arrested at his home village of Silsang in 1951 under section 326 of the Indian Penal Code for “causing grievous harm.” According to civil rights groups who have investigated Lalung’s case, there was no substantive evidence to support the charge against him. In any event, those found guilty of this offence typically receive sentences of no more than 10 years’ imprisonment.

Less than a year after he was taken into custody, Lalung was transferred to a psychiatric hospital in the Assamese town of Tezpur. Sixteen years later, in 1967, doctors confirmed that he was “fully fit” to be released, but instead he was transferred to Guwahati Central Jail, where he was imprisoned until this summer.

“It seems the police just forgot about him thereafter,” Assamese human rights activist Sanjay Borbora told the BBC. Borbora was among those who brought Machang’s case to the attention of the National Human Rights Commission (NHRC). As a result of the Commission’s intervention and other protests, Lalung’s case was finally heard and he was released after paying a token bond of one Indian rupee.

“He is a simple villager and his life has been destroyed by a cruel system. He should sue the authorities for millions of rupees, but I do not think he is even aware he could do it,” said Borbora.

According to a Scotsman.com news report, the NHRC has taken up the cases of four other men awaiting trial in Assam: Khalilur Rehman has been in custody for 35 years, Anil Kumar Burman for 33 years, and Sonamani Deb for 32 years, while Parbati Mallik has been detained in a psychiatric unit for 32 years.

Though these individual cases have now gained media attention, the phenomenon of accused persons having to endure unconscionable delays awaiting trial is the norm in the Indian justice system. In 2002, some three quarters of all persons held in Indian prisons had not been sentenced to jail, but were “under trial”—that is, awaiting trial.

The largest number of under-trial or remand prisoners is to be found in the jails of Uttar Pradesh, Manipur, and Meghalaya, where more than 90 percent of the prison population have reportedly not faced trial.

According to a National Crime Research Bureau (NCRB) study, Crime in India 2002, nearly 220,000 cases took more than 3 years to reach court, and about 25,600 exhausted 10 years before they were completed. A staggering number of prison inmates awaiting trial have already been imprisoned longer than the most rigorous sentence that they could ever be given for the offence they are alleged to have committed.

A long record of appalling conditions

Many of India’s prisons date back to the era of British colonial rule, with thousands of prisoners kept in crumbling facilities largely unchanged since the beginning of the last century. The only major all-Indian prison reform ever implemented dates back to the Indian Jails Committee of 1919-1920.

The Indian prison system perpetuates many of the injustices of the penal system set up by the British. For example, inmates of foreign origin or of high caste and social status are routinely imprisoned under relatively better conditions and segregated from those inmates who are poorer and of lower social position. Larger or less-crowded cells, access to books and newspapers, and more and better food are offered to those prisoners classified as “Status A” prisoners.

Meanwhile, the poor and especially tribal and Dalit (ex-untouchable) inmates are subject to various forms of abuse, ranging from the denial of visitors and refusal to provide medical care, to prolonged labor, sexual harassment, rape and “concealed” physical and mental torture.

“Our judicial and penal system in its actual working obviously discriminates between the rich and the poor.... If you are poor and have once landed in jail—for whatever reason or no reason—the probability of your being back in jail off and on is fairly high,” concluded Raman Nanda, who complied a prison investigation in 1981, one of the few sources of information available about the Indian prison population.

“Most of those who are nabbed by the police and are unable to have themselves bailed out are the poor. Those with resources, the big criminals, the smugglers, corrupt politicians, tax evaders are people who are rarely caught. Thus our institutions penalise not the violators of law but the poor,” stated Nanda’s study.

In the 1980s, the All India Commission for Jail Reforms (The “Mulla” Committee) found that the majority of the prison population was from a “rural and agricultural background” and that first offenders involved in “technical or minor violations of law” accounted for a large number of prisoners. Many inmates are imprisoned for non-payment of fines or an inability to afford good legal representation.

Among the worst-affected groups are women with children and the mentally ill. Female prisoners account for 3.12 percent of the total jail population and are allowed to keep their children until they reach the age of five. According to available statistics, 1,400 children younger than five are accompanying their mothers in jails.

Last year, the Pakistan-based Dawn news site quoted Zahira, a mother of two and woman prisoner in the Trihar prison, as saying, “Our fate depends on the mood of the wardens or medical officer. I didn’t have regular check-ups during my pregnancy, which is against the rules. Irfan (her infant son) was not weighed at birth. There are no cribs, baby food or warm milk.”

The absence of adequate psychiatric institutions and medical services in India contributes to the large prison population. Individuals with severe mental illnesses, branded as “non-criminal lunatics,” are often imprisoned. With many mentally vulnerable prisoners left to suffer without support in a brutal environment, it is not surprising that there is a high rate of suicides of prison inmates and police detainees. However, there is also evidence that authorities term as suicides deaths that were caused by police and jail guard abuse.

The National Human Rights Commission (NHRC) was created as a statutory body in 1993 and has since periodically issued directions about jail conditions. It suggested a prison reform bill in 1996, but this has been ignored by various governments, including those led by the Hindu-supremacist Bharatiya Janata Party (BJP) and Congress and supported by the Left Front.

In fact, there is evidence that the situation facing India’s prisoners is getting worse. At the end of 2002, there were 322,357 inmates in the jails of 26 States and 6 Union Territories, although their authorised capacity was just 219,880, meaning there was overcrowding, according to the government’s own norms, of 46.6 percent.

The maximum overcrowding was recorded in the jails of Mizoram (442 percent), followed by Jharkhand (260 percent), Delhi (211 percent), Haryana (165 percent), Andaman and Nicobar (139 percent) and Chhatisgarh (115 percent). As compared to the previous year, it was noted that jail overcrowding had increased in the states of Delhi, Madhya Pradesh, Goa, Uttar Pradesh, Andhra Pradesh and the Andaman and Nicobar Islands.

New Delhi’s Tihar Prison, also known as the “Central Jail,” is said to be the world’s largest prison facility. Although built to house 4,000 inmates, it currently holds 12,000, 80 percent of whom are awaiting trial.

Starting with the 1991 reforms, the Indian bourgeoisie has been imposing rigorous cuts in education, health care, social services and agricultural subsidies. The unprecedented social devastation and growth of inequality that has resulted from the policies of successive Indian governments have found partial expression in the country’s growing crime rate. The police have responded to this social crisis with frequent arbitrary round-ups in poor areas and discrimination against socially vulnerable sections of the working masses.

Rising number of custodial deaths and abuse

The police repression that has accompanied the past 14 years of free-market economic reforms has caused India’s already antiquated and overstretched prison system to descend into an even greater state of chaos and human misery. According to Indian Home Ministry records, deaths while in remand or custody increased from 1,340 in 2002 to 1,462 by the end of 2003. According to an NHRC report, a large proportion of the deaths in custody were from natural and easily curable causes aggravated by poor prison conditions. Tuberculosis caused many deaths, and HIV/AIDS remained a serious health threat among prison inmates.

Non-governmental organisations that deal with prisoner abuse allege that deaths in police custody, which occurred within hours or days of initial detention, often implied violent abuse and torture. The Home Ministry reported that there were 28,765 complaints lodged against police for April 2003 for abuse including deaths. In May of last year in Ambedkarnagar, Uttar Pradesh, police arrested a daily labourer and tortured him when he failed to pay a Rs. 50,000 (US$1000) bribe. According to media reports, police admitted the victim to the hospital under a false name after injecting him in the rectum with petrol.

Police also threatened to harm his family if he reported the incident. In July 2004, the NHRC requested a report from Punjab’s Inspector General of Prisons after a man incarcerated in Amritsar’s Central Jail claimed the Deputy Superintendent and other prison officials branded him on his back when he demanded water and better treatment. Doctors found fresh scars on his back that had been inflicted with hot iron rods. By year’s end, no action had been taken.

The rape of persons in custody is also part of the broader pattern of custodial abuse. Prisoner charities argue that rape by police, including custodial rape, was more common than NHRC figures indicate, since many rape incidents go unreported due to the victims’ shame and fear of retribution.

A statement from the Asian Legal Resource Centre, on custodial deaths and torture in India, handed to the National Human Rights Commission and to the Sixty-first Session of the UN Commission on Human Rights in Geneva, notes: “Any person, who dares to complain about police officers in India, faces the wrath of the law enforcement agency.

Abhijnan Basu, who was serving his prison sentence at the Presidency Jail, West Bengal, was one such person who was not so lucky. Officers at the prison murdered him because he dared to complain about the inhuman conditions and the poor quality of food. Three prison wardens set him ablaze on November 12, 2004.

“Torture in India is widespread, unaccounted for and rarely prosecuted. It contributes to the state of anarchy and lawlessness in many parts of the country. Torture is used as a cheap and easy method of investigation and also as a tool for oppression. In the hands of the wealthy and influential, Indian law enforcement agencies have also strengthened links with criminal elements. Even the judiciary in India cannot sever this nexus, between police and criminals.”

The state of India’s penal and justice systems speaks volumes about the true nature of human rights and social equality in a country routinely held up by the Western media as the “world’s largest democracy.”

8 People Who Were Executed and Later Found Innocent

It’d be nice to think our judicial system is totally infallible, but unfortunately, that’s just not the case. Innocent people are convicted of crimes they didn’t commit more often than anyone would like to admit, and in some cases, people who were later found to be innocent have actually been put to death.

Here are 8 people who were executed and innocent.

1. Cameron Todd Willingham—In 1992, Willingham was convicted of arson murder in Texas. He was believed to have intentionally set a fire that killed his three kids. In 2004, he was put to death. Unfortunately, the Texas Forensic Science Commission later found that the evidence was misinterpreted, and they concluded that none of the evidence used against Willingham was valid. As it turns out, the fire really was accidental.

2. Ruben Cantu—Cantu was 17 at the time the crime he was alleged of committing took place. Cantu was convicted of capital murder, and in 1993, the Texas teen was executed. About 12 years after his death, investigations show that Cantu likely didn’t commit the murder. The lone eyewitness recanted his testimony, and Cantu’s co-defendant later admitted he allowed his friend to be falsely accused. He says Cantu wasn’t even there the night of the murder.

3. Larry Griffin—Griffin was put to death in 1995 for the 1981 murder of Quintin Moss, a Missouri drug dealer. Griffin always maintained his innocence, and now, evidence seems to indicate he was telling the truth. The first police officer on the scene now says the eyewitness account was false, even though the officer supported the claims during the trial. Another eyewitness who was wounded during the attack was never contacted during the trial, and he says Griffin wasn’t present at the crime scene that night.

4. Carlos DeLuna—In 1989, DeLuna was executed for the stabbing of a Texas convenience store clerk. Almost 20 years later, Chicago Tribune uncovered evidence that shows DeLuna was likely innocent. The evidence showed that Carlos Hernandez, a man who even confessed to the murder many times, actually did the crime.

5. David Wayne Spence—Spence was put to death in 1997 for the murder of three teenagers in Texas. He was supposedly hired by a convenience store clerk to kill someone else, but he allegedly killed the wrong people by mistake. The supervising police lieutenant said “I do not think David Spence committed this crime.” The lead homicide detective agreed, saying “My opinion is that David Spence was innocent. Nothing from the investigation ever led us to any evidence that he was involved.”

6. Jesse Tafero—In 1976, Tafero was convicted of murdering a state trooper. He and Sonia Jacobs were both sentenced to death for the crime. The main evidence used to convict them was testimony by someone else who was involved in the crime, ex-convict Walter Rhodes. Rhodes gave this testimony in exchange for a life sentence. In 1990, Tafero was put to death. Two years later, his companion Jacobs was released due to a lack of evidence…the same evidence used to put Tafero to death.

7 & 8. Thomas Griffin and Meeks Griffin— The oldest case on this list dates back to 1915. The Griffin brothers, two black men, were convicted of the murder of a white man. The reason they were convicted is because Monk Stevenson, another black man suspected of committing the murder, pointed to the brothers as having been responsible. He later admitted the reason he blamed them is because they were wealthy, and he assumed they had the money to beat the charges. The Griffin brothers were completely innocent, but they were put to death nonetheless.

Presumed Guilty: After 14 wasted years in prison, life begins anew

On the night of 20 February 1998, in the Sadr Bazaar area of Delhi, a young man walked to the neighbourhood hakeemseeking treatment for a persistent kidney stone problem. The 18-year-old had just said his namaaz at the Madrasahwaali Masjid and, in pain, decided to walk across the desolate marketplace — by day this is one of the busiest spots in the city, but at night it empties like a sieve — even more so in the '90s, when Indian retail did not shriek with the vehemence of today.

As the boy walked he noticed an unmarked white Maruti Gypsy sidle up along the kerb behind him. It moved slowly, prompting him to quicken his pace, though he continued to walk, staring ahead. The Gypsy overtook him and then, without warning, a pair of hands shoved him in the back. He raised his hands to protect himself from falling, but before he knew it he'd been hauled into the Gypsy. Blindfolded, hands tied and mouth gagged in a matter of seconds, trapped in a mélange of elbows, insults and accents, he was driven to a destination 40 minutes away and deposited in a room. Here he was routinely beaten, tortured, fed at the rarest possible intervals, and made to sign blank papers and disclosure agreements. There was no question of providing access to legal representation.

The boy left that room seven days later, when he was taken to Delhi's Tees Hazari Court to be charged with 17 cases of murder, terrorism and waging war against the nation. By the time he was acquitted of the charges brought against him — the High Court ruled that any evidence connecting the accused to the bombings was "woefully absent" — Mohammed Aamir was 32 years old. He spent 14 years "ground in the mortar and pestle" of the Indian justice system (main kanoon ke chaal mein pis kar aa raha hoon). In the years before he could once again walk into the modest room in Azad Market where he was born, his father had died, his mother left mute and paralysed by a stroke.

Mohammad Aamir gives this account of the events of that night and the following years. The version presented by the investigative authorities to the courts is remarkably different, starting with the date Aamir was purportedly taken into custody (seven days of detainment without being presented to a judge is a violation of one of the foundational writs of the Indian Constitution, Habeas corpus; it is regularly argued in cases like this that security agencies misrepresent the date they picked up a prisoner so they are not in violation of this writ).

28 February 1998, when Aamir was produced before the Tees Hazari Court, the investigative authorities said they picked him up with an array of incriminating evidence on his person. One wonders why an 18-year-old terrorist mastermind would carry to a rendezvous — amidst a Webley & Scott revolver, live cartridges, American currency and diaries with details of explosive materials — his ration card, birth certificate, school character certificate, school identity card, and even marksheets from Class 5 and 7 from his school in Farashkhaana.

As has been reported in Two Circles (the website that broke the story) and The Hindu, the police version is pocked with allegations that only throw up more questions — the reason the cases were summarily dismissed by almost every judge they came before. The police claim that they came upon Aamir and the youth he planned the 17 bombings with, Shakeel, via two Bangladeshis they had been tracking. This version holds that they saw these two Bangladeshis leave Aamir's house in Sadr Bazaar and so followed them to Old Delhi Railway Station, where they rendezvoused with Aamir and Shakeel (Shakeel, the other alleged "mastermind", was found in 2009 hanging from the ceiling in his cell in Dasna Jail; later, Jail Superintendent V.K. Singh was charged with his murder). The prosecution did not make clear why Aamir and Shakeel would choose to rendezvous in a crowded railway station if the Bangladeshis were already staying with them.

Aamir was driven to a destination and deposited in a room, where he was routinely beaten, tortured, fed at the rarest possible intervals, and made to sign blank papers and disclosure agreements.

In 1996 and '97, a rash of "low-intensity" terrorist attacks in the National Capital Region had security agencies worried by their failure to find conclusive leads in any of the cases. There is some indication that the attacks were part of a concerted campaign; each explosive device had similar constituent ingredients. The investigators alleged that Shakeel and Aamir admitted in their respective disclosure statements to making these bombs in a small factory in Pilakhua. Yet, as the courts have now recorded, the public witnesses present during the raid on the factory in Pilakhua flatly refused to support the prosecution. Chandra Bhan, the prosecution's "star witness", told the court that he was taken to Chanakyapuri police station and made to sign blank papers.

Of the 17 cases brought against Mohammed Aamir, he was found Not Guilty at the Sessions Court level in 12. He was found Guilty in three cases, for which he was given life imprisonment in one (FIR 631) and 10 years in the two others. These immediately went on appeal to the High Court. On 4 August 2006, Justices Sodhi and Bhasin of the Delhi High Court, pronouncing on the case for which Aamir was given life imprisonment, said: "The prosecution has failed miserably to adduce any evidence to connect the accused-appellant with the charges framed, much less prove them. Accordingly, the appeal is allowed and the judgment of conviction...set aside."

This, sadly, was not the end of Aamir's legal trouble. In 2007, when he was close to completing the 10 years mandated (notwithstanding that both cases remained on appeal), two more cases were brought to trial, this time for bombings in Rohtak and Ghaziabad. Proper procedure suggests these cases should have been initiated when Aamir was first incarcerated, in 1998. Holding off until 2007 meant he was forced to remain in police custody even after he completed his ten years inside, something his lawyer, N.D. Pancholi, terms "customary mischief-making". It was only in January 2012, when those cases were completed — he was found Not Guilty again — that he was allowed to return home.

By coincidence, the same week Aamir was released, The New Yorker published Adam Gopnik's remarkable report on patterns of incarceration in the United States ("The Caging of America", 30 January 2012). From the introduction: "A prison is a trap for catching time. It isn't the horror of the time at hand but the unimaginable sameness of the time ahead that makes prisons unendurable for their inmate. What prisoners try to convey to the free is how the presence of time as something being done to you, instead of something you do things with, alters the mind at every moment." Aamir's 14 years in prison, on charges refuted adamantly from the outset, devastated his life and ambitions in ways hard for us to comprehend.

Sitting in the same small room with cracking walls in Sadr Bazaar that the authorities called a terrorist hideout and he calls home, Aamir tells the tale of his incarceration: "After my first appearance, at the Tees Hazari court in '98, I was put on remand for 10 days, so I was taken to a police station. After they had elicited 'admissions' that I was involved in all the blasts in the NCR between '96 and '98, I was moved from station to station, still on remand, because they wanted to file FIRs in each of the cases. This went on for two and half months. When finally in April or May I was sent to Tihar Jail it came as a huge relief. To be in police remand is the worst — first they do their 'questioning', where I'm sure you know what all takes place. In jail it is better. In the police station, even at night, the guys guarding your cell will come and abuse you, kick you around a bit, call you 'katua'.

"I then spent almost nine years in Tihar Jail, where I managed to do some reading about my legal circumstances." He pulls out two tattered books, the Constitution of India and a book of legal norms, both in Hindi, and a purple folder of see-through plastic filled with carefully highlighted and annotated legal papers. Picking up the Constitution, Aamir says: "The thing is, I still have a lot of faith in this document. I have not been to college, but I have read this book from cover to cover and I know it can protect those who need it. It is people who ruin what this book stands for. Actually, even that is too harsh. During my 14 years inside the system I met all kinds of people — some people were very good to me. Some were terrible. There are all kinds of people on earth, that is something I have learned.

"Then I was sent to Ghaziabad's Dasna Jail, which was even tougher. I spent more than three years there, and perhaps 90% of the time was spent in high-security, normal procedure for people booked in terrorism cases. You have to spend 22 out of 24 hours in absolute isolation. For months on end you barely communicate with anyone at all."

Gopnik quotes in his article an essay Charles Dickens wrote in 1842 upon visiting a solitary confinement wing in an American prison: "I hold this slow and daily tampering with the mysteries of the brain, to be immeasurably worse than any torture of the body: and because its ghastly signs and tokens are not so palpable to the eye and sense of touch as scars upon the flesh; because its wounds are not upon the surface, and it extorts few cries that human ears can hear; therefore I the more denounce it, as a secret punishment which slumbering humanity is not roused up to stay."

The effects of this prolonged — and, the courts now agree, unjust — detainment on Aamir are discernible during longer conversations. He has a stilted way of talking, and his face will periodically break into a nervous smile. If making a long point, he sometimes loses the thread as he speaks. "I've noticed these since I got out. The doctor tells me I have high blood pressure now, and that I should try and get psychiatric counselling. I lose my temper from time to time" — this is harder to imagine, as he is exceedingly polite with us — "and shout at my nephew. It's been hard not to be able to talk to my mother. I would like to hear from her lips that she is happy I am out. But, bechaari, she cannot say anything."

This past Wednesday, in the sylvan quiet of the Gandhi Peace Foundation, I meet N.D. Pancholi, the High Court lawyer arguing Aamir's two pending appeals. It is perhaps an appropriate venue — J.P. Narayan was arrested from this spot in 1975, at the outset of the Emergency.

"It doesn't matter who is in power," he says. "The government very rarely exercises the control they should. They heed the security agencies, with their ears and eyes shut to anyone else — instead of directing them, the government is directed."

"I have been working on cases like this for 20 or so years now. Aamir's case is sad, but one of many." Ferozekhan Ghazi, Aamir's lawyer at the Sessions Court level, agrees: "After '95, these cases began to proliferate. I've worked on somewhere between 30 and 40 cases of this nature and have won acquittals in most. Remarkably, every Kashmiri whose case I've worked on has been acquitted — boys who came to the capital as businessmen and carpet sellers, picked up by the authorities and left to languish in jail for years."

So is the situation as bad as ever? Pancholi says things have become better since POTA [the draconian Prevention of Terrorism Act, 2002] was repealed. "Now most cases will be charged under the Unlawful Activities Act, or what Aamir was charged of, waging war against the nation. The number of cases might have reduced, but it is still a prevalent practice."

Mohammed Aamir was also lodged in Delhi’s Tihar jail.

On a national level, the most deleterious consequence of such mala fide practices is their undercutting of resources, manpower and intelligence that should be used to prevent acts of terrorism in India. One tactic is to paint certain communities in a threatening light; Azamgarh was first pointed to as a hotbed of terrorist activity. Then, just after the High Court blasts in September, reports in all the leading newspapers, citing unnamed security sources, said Madhubani (in Bihar) was India's new "breeding ground of terror". Within weeks, Delhi Police arrested seven young Muslim migrants from Madhubani and charged them with involvement in the blasts. All seven, including the alleged "mastermind" were released in January, after the National Investigative Agency demanded the right to question them and exonerated them of all charges.

Muslim activists argue that such wanton arrests do little to curtail terrorist activity, and investigators ignore more dangerous threats to the integrity of the country. One activist, who asked for anonymity, said: "Can someone tell me why the Hizb-ut-Tahrir, an organisation that has been responsible for deaths over the world, is allowed to hold meetings in the heart of Delhi, on Lodhi Road? This organisation demands an Islamic kingdom uniting all Muslim countries. Indian Muslims have never espoused such politics — this is a genuinely worrying development. And our security agencies know all about them, yet don't stop them from meeting. Why is that?"

All the while, the Congress party continues to play its insidious double game with the Muslims of India, on the one hand sending stooges in skullcaps to places like Azamgarh to talk of tears shed and sorrows appropriated, on the other allowing the varied wings of its security forces to freely indulge in a deadly regime of religious profiling.

From the same purple folder containing his legal documents Mohammed Aamir pulls out a sheet of paper and hands it to me. "While I was in Ghaziabad prison, I won a competition for essay writing. I wrote on Mahatma Gandhi — I had just finished reading Experiments with Truth — and I beat every other prisoner in UP who took part. They took me to the Central Jail in Lucknow, where the Superintendent gave me Rs 200 and a T-shirt. I know these do not seem big things, but when you are in prison, the Superintendent is the badshaah, and we are all his ghulaam. If the badshaah says one good word to you, you feel great. Here, on that day, he talked to me with respect, even treated me as an equal."

It is haunting, this eagerness Aamir has to impress upon me his patriotism and respect for government authority. This system proscribed an extended and systematic reversal of his most basic human rights, yet Aamir speaks with the fervour of one who has tasted its bitterest truths. It is clear he cannot countenance another encounter. Perhaps this is one way to birth patriotism. I feel a sudden urge to throw his words in the face of every stalwart who can casually question the fidelity of 150 million citizens of India.

"I tried to spend my time in prison constructively," he says. "There are so many bad influences, but I tried to read and learn as much as I could. I kept faith that once I was out of this mess I would get a good job. That my country would once again treat me as its own."

Justice Delayed- Justice Denied

- Bhaskar De

"Without Justice, life would not be possible and even if it were it would not be worth living" ......Giorgio Del Vecchio (Justice)

Notion as theory of law can be defined as a study based on presupposes or ideal which a men seek for its realization through law, called as Theory of Justice. The word justice has been derived from the actual concept of justness which acts as the primordial factor for any state to provide for its populace. The concept of justice was vitiated with various welfare, moral and psychological factors. Harmonious surveillance of these three features acts as a social tool, which makes justice accessible to all.

Justice is a generic term, which includes both procedural (Natural) and substantive (Social) justice. In India, justice has been adorned as the very embodiment of God, whose sole mission is to uphold justice, truth and righteousness. Under our Indian constitution Justice sets the ultimate goal for all of us to serve our nation. It is a mixture of natural and social justice as evident from Preamble and Part IV of our constitution. The concept of Justice being so important is used only twice in our Indian Constitution, i.e. in Preamble and in Art 39 A.

In Preamble it sets out as- to secure to all its citizens- Justice- Social, economic and political and Article 39 A states that the state to secure equal justice and free legal aid for the citizens.

Our current stress on justice itself is a reminder of the fact that justice is not available to us.

II. Democracy And Indian Judiciary

In a democratic country like India, judiciary plays a vital role in establishing a state of justice. Therefore being the watchdog, they are not allowed to shift their burden to others for their failure to establish an actual State of Justice. It is judiciary on which millions of people have struck their faith of getting justice. It has the capability of imparting justice to the aggrieved. It is that part of our constitution which acts as its Messiah. It is that structure of our society, which cemented its place next to the God and if not properly dispensed will shatter down the entire trinity of democratic instrumentalists with checks balances, parliamentary structure and the judicial facets of our constitution. Generally, aggrieved with lots of pain anguish and hope in their heart approaches the court of law for their grievances to be clarified but at the end of the day the procedural lacuna left them with bare hands. They are denied of their most important right of Justice.

In India, Justice is beyond the reach of most and the right of access to it is not communicated to the citizens properly. In many a circumstances it was found that the litigant who has had access to the court failed to obtain quick relief and for some never have the opportunity even to knock the doors of the court due to ignorance and poverty. If we want justice to be accessible to all, then it must be relieved from the Laissez faire pattern, where justice like other commodity can be purchased and initiative must be taken to educate the populace.

Quest for justice has nothing to do with procedure or jurisdictional aspect rather it cares for its speedy disposal. Delay in disposal of cases is considered as one of the most vexed and worrying problem. It is the code of procedures, which makes it so worse. However personality like Nani Phalkiwala opined that Justice in common parlance is considered as blind but in India it is lame too and hobbles on crutches. It is on the verge of collapse with more than 30 million cases clogging the system. There are cases that take so much of time that even a generation is too short to get any type of redressal.

Procedures must be utilized to advance the cause of justice but in India it is used to thwart it. Justice is something which should be dispensed as early as possible otherwise it will be too late for a critic to add a common adage to that Justice Delayed is Justice Denied. Current situation shows that it will take more than 300 years to clear the backlog of cases in Indian courts. In Anil Rai vs. State of Bihar case, Sethi J stated that Delay in disposal of the cases facilitates the people to raise eyebrows, sometime genuinely, which if not checked, may shake the confidence of the people in this judicial system. Thereafter this problem of delay in justice delivery system had engaged attention of our law commission for a quite a long time. To cope up with this situation they have proposed several amendments. But the position retains unchanged.

III. Reasons For Delay In Disposal Of Cases

Firstly, Increase in litigation-people now days are in a habit of dragging their point of grievances to the court of law, which rather can be solved outside the purview of the court. Secondly, non-adherence with the code properly by the judges and the lawyers both add to same cause in a greater extent. Thirdly, the judicial system is not equipped with actual number of judges required so. Fourthly, Government can be termed for contributing maximum to the backlog.

While it can be understood that delay may occur in the civil cases but the same is not expected in the criminal proceedings. If we compare these two on the basis of its disposal then it is very much advent that criminal justice system is at its worst and this position leads to a situation where the common man had lost its complete trust on the efficacy of the criminal redressal system.

While B.P.Singh J gave an approx statistics showing an average disposal and pendency of cases which would rather reveal the actual state of justice in India today:

On average 50 lakh crimes are registered every year, which are sought to be investigated by the police. The pendency of criminal cases in subordinate courts is 1.32 crore and the effective strength of judges is 12,177. Pending cases of the under trials in criminal cases are 1.44 crores. In an average 19 percent of the pending cases, disposed every year.

Delayed decisions, piled up files and indefinitely extending projects, never serve their purpose. They are the real roadblocks to development of any state or nation. Generally, delayed decisions take its maximum toll from the under privileged section as Poor section of our society, who were always treated as animals. They are often denied of their bare amenities of life.

Consider the condition of the poor victims of Bhopal gas Leak disaster, which took a toll of 15000 people. Twenty years had passed to that ghastly incident; still now victims were fighting for its compensation, which fails to measure up the damage caused to them. Consider the terrible situation occurred in August 1991 as massacre of Dalits at Tsundur in Andhra Pradesh. 13 years had passed to that incident, the families of the victims of Tsundur, still await justice for those who died. They say, they will not find any peace until the guilty are punished for their crime. Consider the condition of those girls who were brutally gang raped during the Godhra riots in front of their helpless family members. Consider the case of Jessica lal, where Delhi police yet to grab Manu Sharma, key accused, still able to safeguard himself from the clutches of the judicial administration. Still her family members await justice to be delivered. Consider the victims of Best Bakery case who still awaits justice to be dispensed in their favour but the climax starts with the key witness in the case turned hostile and the entire fate of the Bakery case is in turmoil. Today the victims of the all the above-enumerated cases know full well that the price of truth is extremely high.

Still they are waiting…

But for what?

Whether all these amounts to justice?

IV. Conclusion

Social justice will be possible only if the entire concept of egalitarian politico-social order is followed, where no one is exploited, where every one is liberated and where every one is equal and free from Hunger and poverty. The proverb ‘Justice Delayed is Justice Denied’ is proved as it is denied to the poorest of the poor. Providing basic necessities to them will amount to Justice because the definition of justice varies from individuals to individuals on the basis of its economic conditions. According to B.P.Singh J the situation today is so grim that if a poor is able to reach to the stage of a high court, it should be considered as an achievement.

At this juncture the author is of the opinion that judiciary obviously owes an obligation to deliver quick and inexpensive justice irrespective of the complicated procedures but it cannot be hurried to be buried. Cases should be decided for imparting justice not for the sake of its disposal. Secondly, Arbitration procedure must be utilized as a better option for quick disposal of cases. Finally, to conclude with the words of Lord Hewet as it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.

Delayed justice: When judgement day arrives too late

It is high time the SC adopts a system to keep track of reserved judgements in the interest of the public

The heavy backlog of cases and delays in the Indian judicial system are once again the topic of much discussion, with everything from government callousness to over-litigiousness to judicial activism being blamed for the 35 million cases pending in the courts at all levels.

There are actually two separate but related problems being spoken about: the problem of delay and the problem of high pendency.

Various factors are responsible for the problems, and in order to address them, it is essential to study the data in depth to try and identify what are their causes.

A recent survey of litigants conducted by Daksh, a civil society organization that undertakes research and activities to promote accountability and better governance in India, showed that more than 60% of the respondents believed that the delay in their own cases was due to the judge not passing orders quickly enough.

While this relates to ongoing cases, it is a reflection of the perception among a large section of the population. It may not be entirely correct on the part of the litigant to attribute all the delay to the judge since the lawyer and the other party are also part of the proceedings.

However, there is one stage where the responsibility for delay (if any) can be placed solely on the judge—delivery of judgement after arguments are complete. When a case is heard in depth and arguments are advanced by both parties, more often than not, the judge “reserves judgement”—to examine the arguments, do research and write the judgement before delivering it in an open court.

While the Code of Civil Procedure, 1908, applicable to civil courts, states that judgements should be delivered within 30 days of arguments being closed, no such time restriction is found in the context of Section 353 of the Code of Criminal Procedure, 1974, which prescribes the manner in which a judgement is to be delivered in a criminal case.

No provisions exist for the time to be taken in delivering judgements by the high courts and the Supreme Court.

The need for a time limit for delivering the judgement is not just to avoid delay, but also to prevent a miscarriage of justice.

A judge who takes too long to deliver judgements after hearing arguments may have forgotten some of the arguments or remembered them incorrectly to the detriment of the parties.

The slow moving wheels of Indian judiciary

For this reason, even though no procedural law prescribes so, the Supreme Court has held in Anil Rai vs State of Bihar case that parties can file an application in the high court seeking an early judgement if it’s not delivered within three months of it being reserved. If it’s not delivered more than six months after being reserved, parties have a right to have it re-heard before a different bench of the high court.

Does the Supreme Court itself adhere to this timeline?

I looked at the judgements delivered by the Supreme Court in 2015, of which 487 contained details of the date on which the order was reserved and the date on which the judgement was delivered.

While some of the remaining judgements were dictated in open court, the others had no details of when the judgement was reserved and so haven’t been included in this study. The time taken to deliver the judgement in these 487 cases is shown in the chart above.

While judgements were delivered within 30 days in 62% of the cases, in at least 85 cases (17%), the Supreme Court failed to adhere to the informal timeline it had laid down for the high courts. In 12% of the cases, the court took more than 120 days to deliver its judgement after having reserved it. The average time taken to deliver judgements in 2015 was 55 days and the median time was 21 days.

While the median time would suggest that the Supreme Court by and large delivers judgements within a month of arguments concluding, the number of cases where the delay is long and unexplained are not insubstantial. In nine cases, the judgement was delivered more than one year after being reserved, with the maximum time taken being 566 days.

Although all the cases in which it took more than one year to deliver the judgement were civil appeals, a broader picture suggests that there is no substantial difference between civil and criminal appeals when it came to the time taken to deliver the judgements.

The difference in the average length of time taken to deliver judgements in civil appeals cases as compared to criminal appeals cases can possibly be attributed to the fact that of the 20 judgements which took the most time to be delivered, only two are criminal appeals. In a criminal appeal, the maximum time taken to deliver a judgement after having reserved it was 325 days.

What the numbers show is that while a judgement is delivered within time in a bulk of the cases, there are a significant number that are slipping through the cracks and taking up much longer than they should.

In the recent past, judgements in two cases that involved highly important questions of law were delivered more than a year after the judgement was reserved.

When Subramanian Swamy sought a direction from the court to the then prime minister, Manmohan Singh, to grant sanction to prosecute telecom minister A. Raja for corruption in the 2G spectrum case, the court took 433 days to deliver its judgement after having reserved it.

In the Naz Foundation case concerning the validity of Section 377 of the Indian Penal Code, the judgement was delivered 624 days later, or more than 20 months after being reserved.

The relatively large number of cases where the judgement is delivered more than 90 days after being reserved by the bench suggest the absence of a system to keep track of how long a case has been reserved for judgement.

From the information available on the Supreme Court website, it is not possible to determine with any accuracy how many judgements have been reserved and for how long.

A recent Right to Information application seeking details of cases that have been reserved for judgement was denied by the Supreme Court.

Ironically enough, the Supreme Court has prescribed precisely such a monitoring mechanism for high courts in the Anil Rai vs State of Bihar case to ensure that too much time doesn’t elapse before a judgement is delivered.

Given that the Supreme Court itself has slipped in ensuring the timely delivery of judgement to litigants, it is high time perhaps that the apex court adopts a system to keep track of reserved judgements in the interests of transparency and accountability to the litigating public.

In search of lost time

By Uzma Falak

https://indiapoliticalprisoners.wordpress.com/2015/09/13/a-chronicle-of-a-kashmiri-man-acquitted-after-more-than-18-years-of-incarceration/

Indian System of Bail - Anti Poor

- Urvashi Saikumar

Justice as we know was a right fundamental to all, but it's fallacy is evident, as money now results in its fall

Objectively analyzed the criminal jurisprudence adopted by India is a mere reflection of the Victorian legacy left behind by the Britishers. The passage of time has only seen a few amendments once in a while to satisfy pressure groups and vote banks. Probably no thought has been given whether these legislations, which have existed for almost seven decades, have taken into account the plight and the socio-economic conditions of 70% of the population of this country which lives in utter poverty. India being a poverty stricken developing country needed anything but a blind copy of the legislations prevalent indeveloped

western countries.

The concept of bail, which is an integral part of the criminal jurisprudence, also suffers from the above stated drawbacks. Bail is broadly used to refer to the release of a person charged with an offence, on his providing a security that will ensure his presence before the court or any other authority whenever required.

Meaning of Bail

Bail, in law, means procurement of release from prison of a person awaiting trial or an appeal, by the deposit of security to ensure his submission at the required time to legal authority. The monetary value of the security, known also as the bail, or, more accurately, the bail bond, is set by the court having jurisdiction over the prisoner. The security may be cash, the papers giving title to property, or the bond of private persons of means or of a professional bondsman or bonding company. Failure of the person released on bail to surrender himself at the appointed time results in forfeiture of the security. The law lexicon[1] defines bail as the security for the appearance of the accused person on which he is released pending trial or investigation.

Courts have greater discretion to grant or deny bail in the case of persons under criminal arrest, e.g., it is usually refused when the accused is charged with homicide.

What is contemplated by bail is to "procure the release of a person from legal custody, by undertaking that he/she shall appear at the time and place designated and submit him/herself to the jurisdiction and judgment of the court." [2]

A reading of the above definition make it evident that money need not be a concomitant of the bail system. As already discussed above, the majority of the population in rural India, lives in the thrall of poverty and destitution, and don't even have the money to earn one square meal a day. Yet, they are still expected to serve a surety even though they have been charged with a bailable offence where the accused is entitled to secure bail as a matter of right. As a result, a poor man languishes behind bars, subject to the atrocities of the jail authorities rubbing shoulders with hardened criminals and effectively being treated as a convict.

History of Bail

The concept of bail can traced back to 399 BC, when Plato tried to create a bond for the release of Socrates. The modern bail system evolved from a series of laws originating in the middle ages in England.

Evolution in England

There existed a concept of circuit courts during the medieval times in Britain. Judges used to periodically go ?on circuit? to various parts of the country to decide cases. The terms Sessions and Quarter Sessions are thus derived from the intervals at which such courts were held. In the meanwhile, the under trials were kept in prison awaiting their trials. These prisoners were kept in very unhygienic and inhumane conditions this was caused the spread of a lot of diseases. This agitated the undertrials, who were hence separated from the accused. This led to their release on their securing a surety, so that it was ensured that the person would appear on the appointed date for hearing. If he did not appear then his surety was held liable and was made to face trial. Slowly the concept of monetary bail came into existence and the said undertrials was asked to give a monetary bond, which was liable to get forfeited on non-appearance.

In The Magna Carta, in 1215, the first step was taken in granting rights to citizens. It said that no man could be taken or imprisoned without being judged by his peers or the law of the land.

Then in 1275, the Statute of Westminster was enacted which divided crimes as bailable and non bailable. It also determined which judges and officials could make decisions on bail.

In 1677, the Habeas Corpus Act was added to the Right Of Petition of 1628, which gave the right to the defendant the right to be told of the charges against him, the right to know if the charges against him were bailable or not. The Habeas Corpus Act, 1679 states, "A Magistrate shall discharge prisoners from their Imprisonment taking their Recognizance, with one or more Surety or Sureties, in any Sum according to the Magistrate's discretion, unless it shall appear that the Party is committed for such Matter offenses for which by law the Prisoner is not bailable."

In 1689 came The English Bill Of Rights, which provided safeguards against judges setting bail too high. It stated that "excessive bail hath been required of persons committed in criminal cases, to elude the benefit of the laws made for the liberty of the subjects. Excessive bail ought not to be required."

Current Practice

In 1976 the Bail Act 1976 came into force. It sets out the current and the basic legal position of bail prevailing in England. It lays out that there is a general right to bail, except as provided for under the First Schedule of the Act. While there are different grounds for refusing the right to bail depending on the type of offence, for all imprison able offences the two basic grounds are as set out by the O'Callaghan decision. But there is also the additional ground that if the court is satisfied that there are "substantial grounds for believing" that the defendant if released on bail will commit an offence while on bail, bail may be refuse.

Under section 5(3) of the Bail Act 1976 the court which withholds bail is required to give reasons, so that the defendant can consider making an application.[3] In practice, however, the reasons given by English courts on a variety of standard forms are frequently short and not explicitly based upon particular facts and factors. Stone's Justices' Manual suggests that magistrates announce any decision to refuse bail merely by relating the grounds and statutory reasons in short form.[4]

English administrative law also requires that, where there is an existing obligation to give reasons for a decision, the reasons given be clear and adequate, and deal with the substantial issues in the case.[5]

The English courts use tick boxes for recording the grounds and the reasons for not granting bail. There is a use of a standard pattern that which lists out the various reasons for not granting the bail. These forms vary in their precise configuration, but in substance they are all the same as all of them set out the grounds for refusing bail in one column, and a number of possible reasons for the findings those grounds established in another column. The decision is recorded by ticking the relevant box in each column. But the decisions recorded on standard forms might be at risk of being characterised as "abstract" or "stereotyped", and therefore inadequate. The quality of the reasons given directly reflects the quality of the decision-making process.

Evolution in America

According to the San Francisco News and the SF Chronicle, the first modern Bail Bonds business in the United States, the system by which a person pays a percentage to a professional bondsman who puts up the cash as a guarantee that the person will appear in court, was established by Tom and Peter P. McDonough in San Francisco in 1898. Infact, this was the same year that the Bill of Rights was introduced in England, and the Congress passed the Judiciary Act. This specified which types of crimes were bailable and set bounds on a judge's discretion in setting bail. The Act states that all non-capital crimes are bailable and that in capital cases the decision to detain a suspect, prior to trial, was to be left to the judge. In 1791 The Bill Of Rights was incorporated into Constitution of the United States, through the 5th, 6th and 8th Amendments, guaranteeing citizens the right to due process of law, a fair and speedy trial and protection against excessive bail. The Eighth Amendment to the Constitution of the United States provides that "excessive bail shall not be required," but it does not provide any absolute right to bail.

Current Practice

Under current law, a defendant has the right to bail unless there is sufficient reason not to grant it. The main reasons for refusing bail according to the Bail Act 1976 are that there are substantial grounds for believing that the defendant (1) will abscond; (2) will commit further offences whilst on bail; or (3) will interfere with witnesses. Conditions may be applied to the grant of bail, such as living at a particular address or, rarely, paying an amount into court or having someone act as surety. Release on bail is sometimes referred to as police bail, where the release was by the police rather than by a court.

The alternative to being granted bail is being remanded into custody (also called being held on remand).

In America, every accused person is entitled to a hearing at which evidence relevant to his individual case is considered to determine the amount of bail necessary. No precise rule can be laid down that will determine the amount of bail required in any particular instance. Bail is to be fixed according to the circumstances of each case. The matter is generally one for the sound discretion of the trial court. Although the determination of the trial court is subject to the review in the appellate courts for abuse of discretion, ordinarily the appellate courts will not interfere if the amount set by the trial court is reasonable and not excessive.

The amount of a bond should, of course, be sufficient to assure the attendance of the defendant upon the court when it is required. The bond should be fixed in such amount that will exact vigilance on the part of the sureties to see that the defendant appears in court when called.[6]

Both the Federal Constitution and state constitutions contain provisions against excessive bail. Bail set at an amount higher than reasonably calculated to insure that the accused will appear to stand trial and submit to sentence if convicted is excessive, and falls within the proscription of the Federal Constitution if set by a federal court, or of the particular state's constitution if set by a state court. But no hard-and-fast rules for determining what is reasonable bail and what is excessive bail have been laid down. That the bail is reasonable which, in view of the nature of the offense, the penalty attached to the offense, and the probability of guilt of defendant, seems no more than sufficient to secure attendance of the defendant.[7]

The amount of bail, in and of itself, is not finally determinative of excessiveness. What would be reasonable bail in the case of one defendant may be excessive in the case of another.[8] As indicated below, such matters as the past criminal record of the defendant, and the nature of the crime committed and the punishment therefore, are material factors in determining whether bail is excessive.

Where two or more cased are pending against a defendant, the fact that bail in one case, considered by itself, is reasonable, does not prevent the collective amount required in the several cases from being excessive.

The gist of the problem confronting a court in setting the amount of bail is to place the amount high enough to reasonably assure the presence of defendant when it is required, and at the same time to avoid a figure higher than that reasonably calculated to fulfill this purpose, and therefore excessive. The general rule in federal courts is to try to strike a balance between the need for a tie to the jurisdiction and the right to freedom from unnecessary restraint before conviction, under the circumstances surrounding each particular accused.[9] In other words, in determining the amount of bail, the good of the public as well as the rights of the accused should be kept in mind.

The Bail Reform Act of 1966 provides for the release of defendant on his personal recognizance or upon execution of an unsecured appearance bond in an amount specified by the judicial officer before whom he appears, unless the officer determines, in the exercise of his discretion, that such release will not reasonably assure the appearance of defendant as required, in which event specified conditions of release which will reasonably assure defendant's appearance for trial may be imposed. The Bail Reforms Act, 1966 was initiated by President Johnson who felt that under the Federal Rules, bail in an amount higher than reasonably calculated to be necessary to assure the presence of the accused is excessive.

It has been stated that the factors to be taken into consideration in determining the amount of bail are:

(1) ability of the accused to give bail,

(2) nature of offense,

(3) penalty for the offense charged,

(4) character and reputation of the accused,

(5) health of the accused,

(6) character and strength of the evidence,

(7) probability of the accused appearing at trial,

(8) forfeiture of other bonds, and

(9) whether the accused was a fugitive from justice when arrested. [10]

That the accused is under bond for appearance at trial in other cases should also be considered.

A major factor in determining the amount of bail in a current matter is the character and former criminal record of the defendant. It has been held, however, that the criminal activities and tendencies of a person applying for bail on a charge of vagrancy do not justify the fixing of bail at an excessive amount for the purpose of keeping him in jail.

In determining the amount of bail, voluntary surrender may be considered as an indication that the defendant has no intention of absconding from justice. On the other hand, it is also proper, in setting a higher bail figure, to take into consideration the fact that at the time of arrest the accused was a fugitive from justice, or the fact that the defendant has previously absconded while under indictment.

Even where bail is a matter of right, the fact that a person has previously forfeited bail is a factor to be considered in determining the amount of bail; in such a case bail may be set in such amount as will reasonably assure the presence of the defendant at court, although bail may not be refused altogether.[11] In setting the bail, the court may also consider the behavior or misbehavior of the defendant during parole from prison on a previous criminal conviction.

The probability of the establishment of guilt at the trial, or the existence of doubt as to the guilt of the accused, is a proper consideration in determining the amount of bail. Hence a court, in determining the amount of bail, may consider the character and strength of the evidence by which the crime charged is supported.

A court should give some regard to the prisoner's pecuniary circumstances, since what is reasonable bail to a man of wealth may be equivalent to a denial of the right to bail if exacted of a poor man charged with a like offense.[12] An accused cannot be denied release from detention because of indigence, but is constitutionally entitled to be released on his personal recognizance where other relevant factors make it reasonable to believe that he will comply with the orders of the court.[13]

However, bail is not rendered excessive by the mere inability of the accused to procure bail in the amount required. In other words, the extent of the pecuniary ability of the accused to furnish bail in not controlling, if it were, the fixing of any amount, no matter how small, where the accused had no means of his own and no friends who were able or willing to become sureties for him, would constitute a case of excessive bail, and would entitle him to got at large on his own recognizance. It is the incarceration of those individuals who cannot meet established money bail requirements, without meaningful consideration of other possible alternatives, which infringes on both due process and equal protection requirements.

The current American position is stated as follows in a standard treatise "There is power in the court to release the defendant without bail or on his own recognition."

The Legal Position in India

The Criminal Procedure Code, 1973 (Cr.P.C. hereinafter), does not define bail, although the terms bailable offence and non-bailable offence have been defined in section 2(a) Cr.P.C. as follows: " Bailable offence means an offence which is shown as bailable in the First Schedule or which is made bailable by any other law for the time being enforce, and non-bailable offence means any other offence". Further, ss. 436 to 450 set out the provisions for the grant of bail and bonds in criminal cases. The amount of security that is to be paid by the accused to secure his release has not been mentioned in the Cr.P.C.. Thus, it is the discretion of the court to put a monetary cap on the bond. Unfortunately, it has been seen that courts have not been sensitive to the economic plight of the weaker sections of society. The unreasonable and exorbitant amounts demanded by the courts as bail bonds clearly show their callous attitude towards the poor.

According to the 78th report of the Law Commission as on April 1, 1977, of a total prison population of 1,84,169, as many as 1,01,083 (roughly 55%) were under-trials. For specific jails, some other reports show: Secunderabad Central Jail- 80 per cent under-trials; Surat-78 per cent under-trials; Assam, Tripura and Meghalaya-66 per cent under-trials.

One of the reasons for this is, as already mentioned above, is the large scale poverty amongst the majority of the population in our country. Fragmentation of land holdings is a common phenomenon in rural India. A family consisting of around 8 ? 10 members depends on a small piece of land for their subsistence, which also is a reason for disguised unemployment. When one of the members of such a family gets charged with an offence, the only way they can secure his release and paying the bail is by either selling off the land or giving it on mortgage. This would further push them more into the jaws of poverty. This is the precise reason why most of the under trials languish in jail instead of being out on bail.

Judicial Trend

An overview of the following cases highlight the adverse condition of the poor with regard to the unjust bail system in India. In State of Rajasthan v Balchand[14], the accused was convicted by the trial court. When he went on appeal the High Court, it acquitted him. The State went on appeal to the Hon'ble Supreme Court under Art. 136 of the Constitution through a special leave petition. The accused was directed to surrender by the court. He then filed for bail. It was then for the first time that Justice Krishna Iyer raised his voice against this unfair system of bail administration. He said that though while the system of pecuniary bail has a tradition behind it, a time for rethinking has come. It may well be that in most cases an undertaking would serve the purpose.

In Moti Ram and Ors. v State of M.P [15], the accused who was a poor mason was convicted. The apex court had passed a sketchy order, referring it to the Chief Judicial Magistrate to enlarge him on bail, without making any specifications as to sureties, bonds etc. The CJM assumed full authority on the matter and fixed Rs. 10,000 as surety and bond and further refused to allow his brother to become a surety as his property was in the adjoining village. MR went on appeal once more to the apex court and Justice Krishna Iyer condemned the act of the CJM, and said that the judges should be more inclined towards bail and not jail.

In Maneka Gandhi v Union of India [16], Justice Krishna Iyer once again spoke against the unfair system of bail that was prevailing in India. No definition of bail has been given in the code, although the offences are classified as bailable and non-bailable. Further Justice P.N.Bhagwati also spoke about how unfair and discriminatory the bail system is when looked at from the economic criteria of a person this discrimination arises even if the amount of bail fixed by the magistrates isn't high for some, but a large majority of those who are brought before the courts in criminal cases are so poor that they would

find it difficult to furnish bail even if it's a small amount.

Further in Hussainara Khatoon and others v. Home Sec,State of Bihar [17] , the Court laid down the ratio that when the man is in jail for a period longer than the sentence he is liable for then he should be released.

Conclusion

A perusal of the above cases highlights the strong anti-poor bias of the Indian criminal justice system. Even though the courts in some cases have tried to intervene and also have laid down certain guidelines to be followed but unfortunately nothing has been done about it. There is also a strong need felt for a complete review of the bail system keeping in mind the socio-economic condition of the majority of our population. While granting bail the court must also look at the socio-economic plight of the accused and must also have a compassionate attitude towards them. A proper scrutiny may be done to determine whether the accused has his roots in the community which would deter him from fleeing from the court. The court can take into account the following facts concerning the accused before granting him bail:

(1) The nature of the offence committed by the accused.

(2) The length of his residence in the community.

(3) His employment status history and his financial condition.

(4) His family ties and relationships.

(5) His reputation character and monetary conditions.

(6) His prior criminal records, including any record or prior release on recognizance or on bail.

(7) Identity of responsible members of the community who would vouch for his reliability.

(8) The nature of the offence charged and the apparent probability of conviction and the likely sentence in so far as these factors are relevant to the risk of non-appearance.

(9) Any other factors indicating the ties of the accused to the community or barring on the risk of willful failure to appear.

The Way Forward

It is thought that from the various schemes the government operates for rural employment, loans to farmers etc, a portion of the funds which it transfers to the panchayat for developmental work of the same should be set aside and kept to meet the bail amount for undertrials belonging to the particular panchayat / block. The utilization of this fund would be in the hands of the elected leaders of the society with the representative of district collector / district magistrate being a part of the system. This would, go a long way in securing freedom for scores of undertrials who would then be able to contribute to society thereby

playing an important role and forming part of the national mainstream. Such a scenario will have the effect of reducing the burden of over-crowding in jail.

The setting up of separate jails, or at any rate isolating undertrials from convicts, would prevent hardened criminals from exercising their deleterious influence over undertrials. Such segregation would also change the attitude of jail authorities and society at large towards under trials.

The under trials who have been charged with petty crimes can further be put in reformative homes instead and asked to do community service till the time they are released on bail. Elementary education facilities must be granted to those under trials who are uneducated and illiterate. Thus, I feel that the benefit of bail should not only be in the hands of a few, but, should be available to the masses including those who do not have the financial capacity to afford it.

15 judicial officers compulsorily retired by Allahabad HC in UP

In a major action, 15 judicial officers in Uttar Pradesh have been punished with compulsory retirement by theAllahabad High Court for “doubtful integrity”, “negligence” and “poor performance”.

The decision was taken at a “Full Court” meeting presided by Chief Justice of the High Court D Y Chandrachud held in Lucknow on April 14, S K Singh, the Registrar General of the High Court, said.

12 Additional District Judges (ADJs) and three Additional Chief Judicial Magistrates (ACJMs) were “divested of their charges and stopped from functioning on their respective posts” with immediate effect while a communique to this effect was sent to the state government, he said.

A 10 per cent curtailment in the pension of a retired officer Ashok Kumar Saxena, against whom there were serious complaints, has also been announced, the registrar said.

The ADJs – who were posted in different districts of the state and have been given compulsory retirement are – Shaileshwar Nath Singh, Bans Raj, Ram Murti Yadav, Dhruv Raj, Jagdish, Naresh, V P Kandpal, A K Ganesh, Arvind Kumar, Avinash Chandra, A K Dwivedi and M M Khan while the three ACJMs are Kishore Kumar, S S Singh and Shyam Shankar.

SHOW-CAUSE NOTICE TO GOVERNOR RESERVE BANK OF INDIA ( RBI ) , UNION FINANCE MINISTER , GOI and CHIEF JUSTICE OF INDIA , SCI

I don’t know whether secretariat staff of RBI office & DARPG / DPG officials are forwarding my appeals for justice , e-mails to you or not. They will be held accountable for their lapses if any. This notice is against the repeated failure of constitutional duties & indirect collusion with criminals (mya be out of fear or favor or both ) by previous RBI Governors , CJIs , Union Finace Ministers. Notice is served against them , to the office of RBI GOVERNOR , office of CJI & office of Union Finace Minister , NOT personally against you. At the individual level I do whole heartedly respect your honourableselves.

Below mentioned huge financial frauds , scams , swindling , cheating like MALLYA fraud , Satyam Fraud , NPA fraud cann’t go unnoticed by your offices. They cann’t happen without covert or overt , direct or indirect support from your offices. When these frauds were brought to your notice & information sought under RTI Act , your offices failed to answer properly. Lest the truth come out. Thereby , they are shielding the criminals. When the issue was brought to the notice of SCI & CJI and appealed to them for justice , safety of public money they too failed to do their duties. Thereby , CJI too supported criminals by shielding them.

In india democracy is a farce , freedom a mirage. the most basic freedom RIGHT TO INFORMATION & EXPRESSION , is not honoured by the government,as the information opens up the crimes of V.V.I.Ps & leads to their ill-gotten wealth. The public servants are least bothered about the lives of people or justice to them. these type of fat cats , parasites are a drain on the public exchequer . these people want ,wish me to see dead , wish to see HUMAN RIGHTS WATCH closed . so that, a voice against injustices is silenced forever , the crimes of V.V.I.Ps closed , buried forever.

To my numerous appeals , HRW’s appeals to you ,you have not yet replied. It clearly shows that you are least bothered about the lives of people or justice to them .it proves that you are hell bent to protect the criminals at any cost. you are just pressurising the police to enquire me ,to take my statement, to repeatedly call me to police station all with a view to silence me.all of you enjoy “legal immunity privileges” ,why don’t you have given powers to the police / investigating officer to summon all of you for enquiry ?or else why don’t all of you are not appearing before the police voluntarily for enquiry ?at the least why don’t all of you are not sending your statement about the case to the police either through legal counsel or through post? you are aiding criminals ,by denying me job oppurtunities in R.B.I CURRENCY NOTE PRESS mysore , city civil court ,bangalore , distict court , mysore ,etc & by illegally closing my newspaper.
there is a gross, total mismatch between your actions and your oath of office. this amounts to public cheating & moral turpitude on your part.

1.you are making contempt of the very august office you hold.
2.you are making contempt of the constitution of india.
3.you are making contempt of citizens of india.
4.you are sponsoring & aiding terorrism & organized crime by allowing the swindled money to fund terrorist outfits , mafia and underworld.
5.you are violating the fundamental & human rights of the citizens of  india and of neighbouring countries.
6.you are violating & making contempt of the U.N HUMAN RIGHTS CHARTER  to which india is a signatory.
7.you are obstructing me from performing my fundamental duties as a  citizen of india.

8. As a result of your gross negligence of constitutional duties you have caused enormous financial loss to the public exchequer , caused damages to our national security , economic security.

9. You have cheated the public by saying some thing on oath and doing different thing.

10. You are shielding criminals who are funding criminal activities.

Read full details at :

https://sites.google.com/site/sosevoiceforjustice/mallya---notice-to-rbi-governor

Hereby , we call upon you to show cause within 30 days of this notice why cann’t you be legally prosecuted for above mentioned charges.

Date : 12.03.2016……………………………………………..your’s sincerely,
Place : Mysuru , India………………………………………….Nagaraja M R

DEATH befall on Corrupt Judges & Corrupt Police

We the sufferers of Injustices , suffering public on new year day WISH DOG’S DEATH TO CORRUPT JUDGES , CORRUPT POLICE & THEIR FAMILY MEMBERS WHO THRIVE ON BRIBES. In the court of Almighty , God there is no match fixing , we pray to that almighty to give dog’s death , death , suffering due to accident , kidney problem , heart problem , etc to corrupt judges , corrupt police & their family members who shamelessly thrive on bribes , looted public money. They must not have sudden death , they must suffer for months before death. Then alone they will realize the pain of the public.

When a Judge Himself Commits Crime , When a POLICE Himself robs , Murders ….

The public servants & the government must be role models in law abiding acts , for others to emulate & follow. if a student makes a mistake it is excusable & can be corrected by the teacher. if the teacher himself makes a mistake , all his students will do the same mistake. if a thief steals , he can be caught , legally punished & reformed . if a police himself commits crime , many thieves go scot-free under his patronage. even if a police , public servant commits a crime , he can be legally prosecuted & justice can be sought by the aggrieved.

Just think , if a judge himself, that too of apex court of the land himself commits crime - violations of RTI Act , constitutional rights & human rights of public and obstructs the public from performing their constitutional fundamental duties , what happens ?

It gives a booster dose to the rich & mighty , those in power , criminals in public service to commit more crimes.

Chief Justice of India , Supreme Court of India is the last savior for public who are suffering injustices at the hands of powers that be , whose fundamental rights & human rights are violated. But inspite of repeated appeal for justice CJI & SUPREME COURT OF INDIA turned their blind eye , became deaf , mute spectator. CJI , SCI let down the suffering masses.

CJI & SCI are hand in league with criminals and are operating cunningly without leaving a trace of evidence. So they cann’t be legally prosecuted. Due to intentional negligence , failure of duties , TACIT SUPPORT by CJI & SCI judges many criminals have escaped , sample of which :

1. Master minds of Late PM Rajiv Gandhi Assassination case.

2. God fathers of Forest brigand Veerappan.

3. Huge robbery took place within RBI.

4. Many Police who are themselves Criminals in Khaki , are not prosecuted for the murders , torture they committed , for the bribes they received. BUT ARE POLICING , PROSECUTING OTHERS.

5. Many Judges who are themselves CRIMINALS are not legally prosecuted for the crimes they committed. BUT ARE JUDGING OTHERS.

6. Big Industrialists of Reliance Industries , RPG Enterprises , others have committed huge crimes involving crores of rupees and still continuing crimes.

7. Top executives of MNC Union Carbide & DOW Chemicals escaped from law after committing man slaughter.

8. Land grabbing worth Billions of rupees took place with TACIT SUPPORT of Judges , Police.

9. Loot of natural resources worth Billions of rupees took place with TACIT SUPPORT of Judges , Police.

10. The crusader , human rights activist , web journalist who raised his voice seeking justice was assaulted , facing life threat , his livelihood destroyed , his news paper closed down , accreditation to journalist & his web news paper denied , he is followed , monitored by criminals that be. The persecutors are not yet prosecuted.

DECLARATION

Name : ...........................NAGARAJA.M.R.

Address : ...................LIG-2 / 761 , HUDCO FIRST STAGE , OPP
WATER WORKS OFFICE , LAKSHMIKANTANAGAR , HEBBAL , MYSORE - 570017 INDIA

Professional / Trade Title : S.O.S - e – Clarion Of Dalit

Periodicity : WEEKLY

Circulation : FOR FREE DISTRIBUTION ON WEB

Donations : NOT ACCEPTED. Self financing . Never accepted any donations , subscriptions either for ourselves or on behalf of other organizations / individuals .

Monetary Gains : nil , never made any monetary gain by way of advertisements on my websites or web news paper or otherwise.

Owner/Editor/Printer/Publisher : NAGARAJA.M.R.

Nationality : INDIAN

Body Donation : Physical Body of Nagaraja M R , Editor , S.O.S- e – clarion of Dalit & S.O.S-e-Voice for Justice is donated to JSS Medical College , Mysore ( Donation No. 167 dated 22 / 10 / 2003 ) , In case of either Unnatural death or Natural Death at the hands of criminal nexus , my body must be handed over to JSS Medical College , Mysore for the study purposes of medical students.

Eye Donation : Both EYES of Nagaraja M R , Editor , S.O.S- e – clarion of Dalit & S.O.S-e-Voice for Justice are donated to Mysore Eye Bank , Mysore , In case of either Unnatural death or Natural Death at the hands of criminal nexus , my eyes must be handed over to Mysore Eye Bank , Mysore WITHIN 6 Hours for immediate eye transplantation to the needy.

Home page :
http://sites.google.com/site/eclarionofdalit/Home ,
http://groups.google.co.in/group/e-clarion-of-dalit ,
http://e-clarionofdalit.blogspot.com/ ,
http://in.groups.yahoo.com/group/e-clarionofdalit/

Contact : naghrw@yahoo.com , nagarajhrw@hotmail.com ,

UID Aadhaar No : 5703 5339 3479

Cell : 91 8970318202

I ,NAGARAJA.M.R. hereby do declare that information given above are true to the best of my knowledge & belief. If i am repeatedly called to police station or else where for the sake of investigations , the losses i do incurr as a result like loss of wages , transportation , job , etc must be borne by the government. prevoiusly the police / IB personnel repeatedly called me the complainant (sufferer of injustices) to police station for questioning , but never called the guilty culprits , rich crooks , criminals even once to police station for questioning , as the culprits are high & mighty . this type of one sided questioning must not be done by police or investigating agencies . if anything untoward happens to me or to my family members like loss of job , meeting with hit & run accidents , loss of lives , death due to improper medical care , etc , the jurisdictional police together with above mentioned accussed public servants will be responsible for it. Even if criminal nexus levels fake charges , police file fake cases against me or my dependents to silence me , this complaint is & will be effective.

If I or my family members or my dependents are denied our fundamental rights , human rights , denied proper medical care for ourselves , If anything untoward happens to me or to my dependents or to my family members - In such case Chief Justice of India together with the jurisdictional revenue & police officials will be responsible for it , in such case the government of india is liable to pay Rs. TWO crore as compensation to survivors of my family. if my whole family is eliminated by the criminal nexus ,then that compensation money must be donated to Indian Army Welfare Fund. Afterwards , the money must be recovered by GOI as land arrears from the salary , pension , property , etc of guilty police officials , Judges , public servants & Constitutional fuctionaries.

date : 30.08.2016…………………………..Your's sincerely,

place : India…………………………………...Nagaraja.M.R.

DECLARATION
Name : ...........................NAGARAJA.M.R.
Address : ...................LIG-2 / 761 , HUDCO FIRST STAGE , OPP WATER WORKS OFFICE , LAKSHMIKANTANAGAR , HEBBAL , MYSORE - 570017 INDIA
Professional / Trade Title : S.O.S - e – Voice For Justice
Periodicity : WEEKLY
Circulation : FOR FREE DISTRIBUTION ON WEB
Donations : NOT ACCEPTED. Self financing . Never accepted any donations , subscriptions either for ourselves or on behalf of other organizations / individuals .
Monetary gains : nil , never made any monetary gain by way of advertisements on my websites or web news paper or otherwise.
Owner/editor/printer/publisher : NAGARAJA.M.R.
Nationality : INDIAN
Body Donation : Physical Body of Nagaraja M R , Editor , S.O.S- e – clarion of Dalit & S.O.S-e-Voice for Justice is donated to JSS Medical College , Mysore ( Donation No. 167 dated 22 / 10 / 2003 ) , In case of either Unnatural death or Natural Death at the hands of criminal nexus , my body must be handed over to JSS Medical College , Mysore for the study purposes of medical students.
Eye Donation : Both EYES of Nagaraja M R , Editor , S.O.S- e – clarion of Dalit & S.O.S-e-Voice for Justice are donated to Mysore Eye Bank , Mysore , In case of either Unnatural death or Natural Death at the hands of criminal nexus , my eyes must be handed over to Mysore Eye Bank , Mysore WITHIN 6 Hours for immediate eye transplantation to the needy.
Home page :
http://in.groups.yahoo.com/group/sosevoiceforjustice/ ,

http://groups.google.co.in/group/hrwepaper / ,

http://sites.google.com/site/sosevoiceforjustice / ,

http://evoiceofhumanrightswatch.wordpress.com/ ,

http://naghrw.tripod.com/evoice/ ,
http://e-voiceofhumanrightswatch.blogspot.com ,

http://paper.li/f-1368369249

Contact : naghrw@yahoo.com , nagarajhrw@hotmail.com ,
UID Aadhaar No : 5703 5339 3479
Cell : 91 8970318202

I ,NAGARAJA.M.R. hereby do declare that information given above are true to the best of my knowledge & belief. If i am repeatedly called to police station or else where for the sake of investigations , the losses i do incurr as a result like loss of wages , transportation , job , etc must be borne by the government. prevoiusly the police / IB personnel repeatedly called me the complainant (sufferer of injustices) to police station for questioning , but never called the guilty culprits even once to police station for questioning , as the culprits are high & mighty . this type of one sided questioning must not be done by police or investigating agencies . if anything untoward happens to me or to my family members like loss of job , meeting with hit & run accidents , loss of lives , death due to improper medical care , etc , the jurisdictional police , revenue officials , District Magistrate & Chief Justice of India together with above mentioned accused public servants will be responsible for it. Even if criminal nexus levels fake charges , police file fake cases against me or my dependents to silence me , this complaint is & will be effective.

If I or my family members or my dependents are denied our fundamental rights , human rights , denied proper medical care for ourselves , If anything untoward like hit & run cases , murder attempts , unnatural deaths , etc happens to me or to my dependents or to my family members - In such case Chief Justice of India together with the jurisdictional revenue & police officials will be responsible for it , in such case the government of india is liable to pay Rs. TWO crore as compensation to survivors of my family. if my whole family is eliminated by the criminal nexus ,then that compensation money must be donated to Indian Army Welfare Fund. Afterwards , the money must be recovered by GOI as land arrears from the salary , pension , property , etc of guilty police officials , guilty Judges , guilty public servants & guilty Constitutional fuctionaries.

Date : 30.08.2016 ……………………Your’s sincerely ,
Place : Mysuru , India ……………………………Nagaraja M R

edited , printed , published & owned by NAGARAJA.M.R. @ : LIG-2 / 761 , HUDCO FIRST STAGE , OPP WATER WORKS OFFICE , LAKSHMIKANTANAGAR ,HEBBAL ,MYSORE -570017 INDIA

cell : 91 8970318202

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