Either the CBI is very incompetent or the Special Judge is ferociously independent – in the Aarushi case:
by Kv Dhananjay on Wednesday, February 9, 2011 at 3:24pm
97% of the time, Magistrates in India are content to accept the recommendation of the Police and to take Cognizance and summon the accused. Often, Magistrates in India are hard pressed for time and are content to agree with the recommendation of the Police – who’s got the time to run through tens or hundreds of pages for each case?
Remember this: once a FIR is registered and investigation begins by the Police, the Police are duty bound to issue a ‘Final Report’ of their investigation to the Magistrate (who generally oversees the investigation though not directing it). In such a ‘Final Report’, the Police will state their recommendation: whether the accused should be charged and tried with the commission of the offences registered and accumulated against him OR whether the evidence collected in the course of the investigation is not enough to proceed against the accused.
In this case, the CBI (which is nothing but a Police agency) submitted their report on what evidence came to be collected by them. Having turned over their findings, they had recommended in their ‘Final Report’ that the case against accused be closed as the CBI is of the view that the evidence is not enough to prosecute the accused. However, the Magistrate (called the Special Judge) chose to disagree with the Police and has ordered that, based on his own reading of the ‘Final Report’ (that is, considering the evidence already gathered by the CBI), there is enough material to charge and proceed against the accused. So, the Judge appears to have taken cognizance and has further summoned the accused to stand trial.
So, I would say that the Judge here is certainly a minority– he belongs to the 3% Magistrates who don’t necessarily adopt the recommendation of the Police.
So, what next? Here are the steps:
On whatever date the Judge has summoned the accused to appear, the Judge will provide the accused with a copy of the ‘Charge Sheet’ (a condensed form of ‘Final Report’) and the accused will risk arrest and custody and will be forced to ask for bail (as the law presumes that an accused standing trial for certain kinds of offences will remain in custody unless he secures bail).
It is fun to see wild interpretation in the media for now. Enjoying it.
K.V.Dhananjay
Tuesday, February 15, 2011
Corruption And Creativity
Corruption and Creativity
by Kv Dhananjay on Thursday, February 10, 2011 at 2:47pm
Corruption is eating away India. And the Order of the Hon’ble Supreme Court directing all High Courts to monitor progress in corruption cases is a welcome development. I hope the media in this country will devote time to highlighting convictions in corruption cases. Just this morning, some minister from Kerala appears to have been convicted. And, one thing I can tell here is this:
Those who are corrupt will generally hire advocates to manufacture extravagant arguments and there is only one way to overcome this – complete corruption trials within 6 months.
Without even remotely suggesting that the Hon’ble CM of Karnataka is ‘corrupt’ or that his lawyers have gotten overly creative, let me merely narrate here, how much creative an ‘accused’ can get in a corruption case – btw, I hold the CMs lawyers in great affection and consider them to be the pillars of legal practice at Bangalore. I personally like them.
Welcome to the proceeding before the Special CBI Judge who is hearing the private complaint filed against Hon’ble CM, BSY. The Special Judge is yet to take ‘Cognizance’ and summon the ‘accused’ to stand trial. Yet, the ‘accused’ are already before that Judge asking him to add others as ‘co-accused’ and to do many more things. In particular, the ‘accused’ have already come in to court without being ‘summoned’ and want the proceedings against them ‘stayed’. Of course, the Special Judge's attention has been distracted from examining the original corruption complaint before him - he is required to now absorb elaborate arguments on the 'rights of an accused' and of 'subtlety in criminal procedure' from highly skilled lawyers; even before he could consider whether the complaint should lead to the taking of 'cognizance' by the Court.
I would only request the popular media to spend some time highlighting convictions in ‘corruption’ cases. Or at least, please devote five minutes or five lines each day to bring to your audience, information on who got convicted for being corrupt by which court and for how long. Your generous coverage will go a long way in making life better for the masses who subscribe to you.
K.V.Dhananjay
Advocate
by Kv Dhananjay on Thursday, February 10, 2011 at 2:47pm
Corruption is eating away India. And the Order of the Hon’ble Supreme Court directing all High Courts to monitor progress in corruption cases is a welcome development. I hope the media in this country will devote time to highlighting convictions in corruption cases. Just this morning, some minister from Kerala appears to have been convicted. And, one thing I can tell here is this:
Those who are corrupt will generally hire advocates to manufacture extravagant arguments and there is only one way to overcome this – complete corruption trials within 6 months.
Without even remotely suggesting that the Hon’ble CM of Karnataka is ‘corrupt’ or that his lawyers have gotten overly creative, let me merely narrate here, how much creative an ‘accused’ can get in a corruption case – btw, I hold the CMs lawyers in great affection and consider them to be the pillars of legal practice at Bangalore. I personally like them.
Welcome to the proceeding before the Special CBI Judge who is hearing the private complaint filed against Hon’ble CM, BSY. The Special Judge is yet to take ‘Cognizance’ and summon the ‘accused’ to stand trial. Yet, the ‘accused’ are already before that Judge asking him to add others as ‘co-accused’ and to do many more things. In particular, the ‘accused’ have already come in to court without being ‘summoned’ and want the proceedings against them ‘stayed’. Of course, the Special Judge's attention has been distracted from examining the original corruption complaint before him - he is required to now absorb elaborate arguments on the 'rights of an accused' and of 'subtlety in criminal procedure' from highly skilled lawyers; even before he could consider whether the complaint should lead to the taking of 'cognizance' by the Court.
I would only request the popular media to spend some time highlighting convictions in ‘corruption’ cases. Or at least, please devote five minutes or five lines each day to bring to your audience, information on who got convicted for being corrupt by which court and for how long. Your generous coverage will go a long way in making life better for the masses who subscribe to you.
K.V.Dhananjay
Advocate
Prosecution/Police's sudden Nightmare - Case Diary is covered by RTI and accused on trial is entitled to it.
Prosecution/Police's sudden Nightmare - Case Diary is covered by RTI and accused on trial is entitled to it.
by Kv Dhananjay on Sunday, February 13, 2011 at 11:18pm
In a case of extra ordinary ramification to the criminal law and, of course, to criminals of this country, the Central Information Commission had on 25-Sep-2009 ruled that an accused in a criminal case had the right to demand certified copy of the Case Diary maintained by the Police in relation to the Crime that was registered against the accused.
Now, what is a ‘Case Diary’? Well, a ‘Case Diary’ is a file maintained by the Police to inform themselves on the progress in every FIR registered by them. It will contain information on most of the steps undertaken by the Police in the course of their investigation, the people and witnesses it has interviewed or encountered, their statements or other leads, the evidence it has collected and nearly every other information it comes across in relation to the case before it. The Code of Criminal Procedure, 1973 specifically provides that the accused shall not be entitled to access the case diary at all. A minor exemption is provided which is practically insignificant.
Now, one might ask, what happens if the accused could ask for a copy of the ‘Case Diary’?
Well, the Prosecution will probably tell you, ‘all hell will break loose’.
You see, the prosecution is never perfect. They will often lie, even when they are sure that they are dealing with a ‘true criminal’. They might tell you that unless they deviate here and there, they will never be able to catch up with the ‘criminals’. They will make up stories, tutor witnesses, fabricate evidence and do many other things – quite often, these deeds do get reflected in the entries in the case diary.
Of course, nobody is going to record in their case diary to say “we have obtained a false witness who can be nicely tutored”. Still, the diary could read, say, “Met with M. M says that she has no information at all about the crime with which Z has been charged. But M says that there always were rumours about Z doing such a thing.” After few days, another entry could read, “M says that she was asked by Z to come into his room after 11 pm on a certain day and when she went inside, she was death-shocked to see Z with another person X hacking L to death. Both Z and X asked M to bring in a gunny bag quickly to dispose off the body of L. Terrified, M left that house that very night never to return again”.
Now, in their chargesheet against Z, the Police will merely submit to the Court and to Z (accused), the latter statement of ‘M’ and will call M as the “Prosecution Witness”. The first statement of M recorded by the Police will never be provided to the Court or to the accused – if it were, the accused’s lawyers are bound to simply exploit M’s indecision and cross M to such an extant that M will be told ‘ON STAND’ that she is the “true killer” and “that is why, she was quiet in the beginning” and “later on, she realised that, unless she implicated Z, the Police would eventually discover her as the true killer”. M’s bad or distressed performance ‘ON STAND’ could cast grave doubt on her testimony and, if the Police were largely dependent on M’s testimony, the case could go out of the Police’s hand and result in Z’s acquittal.
So, the Prosecution will simply tell you that it would be a nightmare for them to give away, their ‘case diary’ to the accused. In short, for them, ‘all hell will break loose’.
Now, the CIC had on 25-Sep-2009, ruled in favour of one D.K.Sharma, who was accused of corruption and was facing trial for the same. D.K.Sharma had asked for, among others, certified copy of the case diary maintained by the police for his case. The CIC held that the RTI Act requires the Police to turn over the ‘case diary’ because, the trial was already in progress and this means that, ‘the investigation is not pending’. (The RTI Act would prevent the disclosure of information in relation to any investigation). The Order of the CIC dated 25-Sep-2009 is here: https://docs0.google.com/document/d/17HvQp7lhHHhJksRysxZPRsSgtbi76gBDg7u1lUueX7Y/edit?hl=en#
The Deputy Commissioner of Police filed thereafter, a Writ Petition in the Delhi High Court – Writ Petition (Civil) No.12428 of 2009. On 15-Jan-2010, Hon’ble Justice J Murlidhar issued a stay upon the Order of the CIC. However, by 15-Dec-2010, when this case came for judgment, the Respondent (in Writ Petition), D.K.Sharma stood convicted in the trial that was in progress while the CIC had ruled in his favour. By an Order and Judgment dated 15-Dec-2010, Hon’ble Justice J.Murlidhar has agreed with the CIC and has dismissed the Writ Petition filed by the Deputy Commissioner of Police. The Order and Judgment of the Delhi High Court in Writ Petition No.12428 of 2009 is here: https://docs.google.com/document/d/12Kq2UXwjIJ-P-w6WC-4Ex2nU14LXJIlvFjyZQ1k6DuE/edit?hl=en#
In effect, an accused on trial may now seek a copy of the case diary maintained by the Police in relation to the FIR against the accused, at least, in the territory of the National Capital Territory of Delhi. I can clearly sense ‘panic’ in the police in Delhi. And, souls already convicted may now ask for their ‘case diary’ and possibly get busy with challenge to their conviction on grounds of ‘fraud’, ‘fabrication’ or ‘dishonesty’ on the part of the police.
K.V.Dhananjay
Advocate
by Kv Dhananjay on Sunday, February 13, 2011 at 11:18pm
In a case of extra ordinary ramification to the criminal law and, of course, to criminals of this country, the Central Information Commission had on 25-Sep-2009 ruled that an accused in a criminal case had the right to demand certified copy of the Case Diary maintained by the Police in relation to the Crime that was registered against the accused.
Now, what is a ‘Case Diary’? Well, a ‘Case Diary’ is a file maintained by the Police to inform themselves on the progress in every FIR registered by them. It will contain information on most of the steps undertaken by the Police in the course of their investigation, the people and witnesses it has interviewed or encountered, their statements or other leads, the evidence it has collected and nearly every other information it comes across in relation to the case before it. The Code of Criminal Procedure, 1973 specifically provides that the accused shall not be entitled to access the case diary at all. A minor exemption is provided which is practically insignificant.
Now, one might ask, what happens if the accused could ask for a copy of the ‘Case Diary’?
Well, the Prosecution will probably tell you, ‘all hell will break loose’.
You see, the prosecution is never perfect. They will often lie, even when they are sure that they are dealing with a ‘true criminal’. They might tell you that unless they deviate here and there, they will never be able to catch up with the ‘criminals’. They will make up stories, tutor witnesses, fabricate evidence and do many other things – quite often, these deeds do get reflected in the entries in the case diary.
Of course, nobody is going to record in their case diary to say “we have obtained a false witness who can be nicely tutored”. Still, the diary could read, say, “Met with M. M says that she has no information at all about the crime with which Z has been charged. But M says that there always were rumours about Z doing such a thing.” After few days, another entry could read, “M says that she was asked by Z to come into his room after 11 pm on a certain day and when she went inside, she was death-shocked to see Z with another person X hacking L to death. Both Z and X asked M to bring in a gunny bag quickly to dispose off the body of L. Terrified, M left that house that very night never to return again”.
Now, in their chargesheet against Z, the Police will merely submit to the Court and to Z (accused), the latter statement of ‘M’ and will call M as the “Prosecution Witness”. The first statement of M recorded by the Police will never be provided to the Court or to the accused – if it were, the accused’s lawyers are bound to simply exploit M’s indecision and cross M to such an extant that M will be told ‘ON STAND’ that she is the “true killer” and “that is why, she was quiet in the beginning” and “later on, she realised that, unless she implicated Z, the Police would eventually discover her as the true killer”. M’s bad or distressed performance ‘ON STAND’ could cast grave doubt on her testimony and, if the Police were largely dependent on M’s testimony, the case could go out of the Police’s hand and result in Z’s acquittal.
So, the Prosecution will simply tell you that it would be a nightmare for them to give away, their ‘case diary’ to the accused. In short, for them, ‘all hell will break loose’.
Now, the CIC had on 25-Sep-2009, ruled in favour of one D.K.Sharma, who was accused of corruption and was facing trial for the same. D.K.Sharma had asked for, among others, certified copy of the case diary maintained by the police for his case. The CIC held that the RTI Act requires the Police to turn over the ‘case diary’ because, the trial was already in progress and this means that, ‘the investigation is not pending’. (The RTI Act would prevent the disclosure of information in relation to any investigation). The Order of the CIC dated 25-Sep-2009 is here: https://docs0.google.com/document/d/17HvQp7lhHHhJksRysxZPRsSgtbi76gBDg7u1lUueX7Y/edit?hl=en#
The Deputy Commissioner of Police filed thereafter, a Writ Petition in the Delhi High Court – Writ Petition (Civil) No.12428 of 2009. On 15-Jan-2010, Hon’ble Justice J Murlidhar issued a stay upon the Order of the CIC. However, by 15-Dec-2010, when this case came for judgment, the Respondent (in Writ Petition), D.K.Sharma stood convicted in the trial that was in progress while the CIC had ruled in his favour. By an Order and Judgment dated 15-Dec-2010, Hon’ble Justice J.Murlidhar has agreed with the CIC and has dismissed the Writ Petition filed by the Deputy Commissioner of Police. The Order and Judgment of the Delhi High Court in Writ Petition No.12428 of 2009 is here: https://docs.google.com/document/d/12Kq2UXwjIJ-P-w6WC-4Ex2nU14LXJIlvFjyZQ1k6DuE/edit?hl=en#
In effect, an accused on trial may now seek a copy of the case diary maintained by the Police in relation to the FIR against the accused, at least, in the territory of the National Capital Territory of Delhi. I can clearly sense ‘panic’ in the police in Delhi. And, souls already convicted may now ask for their ‘case diary’ and possibly get busy with challenge to their conviction on grounds of ‘fraud’, ‘fabrication’ or ‘dishonesty’ on the part of the police.
K.V.Dhananjay
Advocate
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