Monday, March 31, 2014
The Service Tax and Income Tax Advertisements stating 31-Mar-2014 as the “last date” are MISLEADING w.r.t Karnataka, Tamil Nadu, Andhra Pradesh, Maharashtra, Goa and Jammu and Kashmir.
The Service Tax and Income Tax Advertisements stating 31-Mar-2014 as the “last date” are MISLEADING w.r.t Karnataka, Tamil Nadu, Andhra Pradesh, Maharashtra, Goa and Jammu and Kashmir.
If you happen to read newspapers or watch any TV, you are likely to be bombarded with advertisements that state that 31-Mar-2014 is the last date for payment of your service tax and failing to do so, you could be prosecuted. Similarly, advertisements by the Income Tax Department say that 31-Mar-2014 is the last date for filing of returns by certain class of assesses.
After an interesting query from a person on how 31-Mar-2014 which is a ‘public holiday’ in Karnataka could become the last date for payment of any tax, my legal team set out to work and has come out with the following stupendous information. I have carefully verified it all and state with legal certainty that:
The following six States in India have declared 31-Mar-2014 as a ‘public holiday’ in their respective territories:
Sl.No.
State
Circular No.
Public Holiday Description
1
Karnataka
No.DPAR 25 HHL 2013
Chandramana Ugadi
2
Tamil Nadu
G.O.Ms.No.1310
Telugu New Year’s Day
3.
Andhra Pradesh
G.O. Rt.No.5237
Ugadi
4
Maharashtra
No.PHD.1113/ C.R.299/2013/XXIX
Gudi Padwa
5
Goa
No.2/1/2013-GAD-H
Gudi Padava
6
Jammu And Kashmir
No.GAD(Adm) 231/2009-I
1st Navratra
So, the query becomes, if a central law states that a certain thing should be done by a certain date and that date happens to be one on which the concerned office remains closed, then that thing may be done on the next day when the office would open. This is what Section 10 of the General Clauses Act, 1897 states in a detailed form. Interestingly, the Income Tax Department as well as the Service Tax Department have themselves come out with circulars that effectively say that when the due date for payment of tax or filing of return falls on a public holiday, then the due date gets extended to the next working day.
The Service Tax Department (actually, the service tax law in this country is administered by Central Excise Department) has itself issued a circular (No.63/12/2003 dated 14-Oct-2003) which goes on to say:
“3. Adequate precautions should be taken by the service providers to deposit the tax in time. In case of genuine hardship on account of public holiday on (date omitted)… which a service provider has to pay the service tax or file the returns, he may pay the service tax in Government account on next working day immediately following the holiday. Same thing applies with regard to the filing of return.”
So, the Service Tax Advertisements proclaiming that 31-Mar-2014 is the last date for payment of service tax are misleading in so far as the States of Karnataka, Tamil Nadu, Andhra Pradesh, Maharashtra and Goa are concerned as 31-Mar-2014 is a ‘public holiday’ in these five States in view of ‘Ugadi’ or ‘Gudi Paduva’. The last date for this purpose, therefore, gets legally pushed to the next working day in these five States. Note that the service tax law is not applicable to Jammu and Kashmir.
What about Income Tax Returns? Many advertisements similarly proclaim that 31-Mar-2014 is the last date for filing of returns by certain class of assesses. The Income Tax Department (technically called as the Central Board of Direct Taxes) too has come out with a circular (CBDT No.639 dated 31-Nov-1992) that says in very clear terms:
1. Representations have been received by the Board seeking clarifications as to whether, the assessee could file a return of income/loss under the Income-tax Act, 1961 on the next working day following a holiday and claim it to have been filed within the statutory time limit.
2. The matter has been examined in consultation with the Ministry of Law and the Board are advised that, in such cases, section 10 of the General Clauses Act, 1897 will be applicable. According to this section, where any act or proceeding is directed or allowed to be done or taken in any court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the court or office is open.
3. In view of the above, it is hereby clarified that where the last day for filing return of income/loss is a day on which the office is closed, the assessee can file the return on the next day afterwards on which the office is open and, in such cases, the return will be considered to have been filed within the specified time limit.
So, the Income Tax Department’s circular itself states that when the last date for filing of return falls on a holiday, the same may be done on the next working day and the filing on such later day shall be treated as if it was done within time.
Also, the Income Tax Department has come out with a recent circular stating that its receipt counters will remain open between 29-Mar and 31-Mar despite 31-Mar being Ugadi or Gudi Padava (F.No.225/138/2014/ITA.II). Similarly, the Service Tax Department too may have come out with a like circular stating that its receipt counters will remain open on 31-Mar which is a public holiday in six States.
Well, Section 10 of the General Clauses Act, 1897 merely says about ‘office’ and not a ‘Government office’. So, where a State declares a certain day as a ‘public holiday’, it also would mandate a wide variety of private establishments to remain closed on that day. For instance, THE KARNATAKA INDUSTRIAL ESTABLISHMENTS (NATIONAL AND FESTIVAL HOLIDAYS) ACT, 1963 which applies to a wide variety of private establishments in the State of Karnataka mandates that all such establishments shall remain closed on seven different festivals in a year that are chosen by the employees from a list of 52 festivals. As Chandramana Ugadi is amongst the popular festivals of Karnataka, most private establishments in Karnataka choose to declare the day of Chandramana Ugadi as a public holiday and would remain closed for that day. Therefore, if a tax payer is a business and is mandated by a State law to close down on a certain public holiday, that tax payer would be excused from filing his return or paying his tax on that day and should do so on the next working day. It is immaterial whether the Government offices are open on a day which is a ‘public holiday’ in a certain State as the Supreme Court has clearly held that Section 10 of the General Clauses Act should be given a liberal interpretation.
On a day that is considered to be a ‘public holiday’ in a State, the expectation amongst the public would be that the Government offices too would remain closed. When a special law would force private establishments to close down on a given public holiday, even if the Government would decide to keep open its own offices on such a ‘public holiday’, there would be no occasion for the mandatorily closed down business to pay its taxes or file returns as its employees who are expected to aid in filing returns or paying taxes would not attend to work on such ‘public holiday’. As such, the advertisements issued by the Service Tax Department and the Income Tax Department declaring 31-Mar-2014 as the last date for payment of taxes or submission of returns are misleading in so far as the States of Karnataka, Tamil Nadu, Andhra Pradesh, Maharashtra, Goa and Jammu and Kashmir are concerned as the last date in these States is a ‘public holiday’ on account of Ugadi or Gudi Paduva and therefore, this last date is legally pushed to the next working day, that is, 01-Apr-2014. Note however that the service tax law is not applicable to the territory of Jammu and Kashmir.
Interestingly, commercial banks that are regulated by the Reserve Bank of India do not physically entertain customers on 01-Apr-2014 as they dedicate this day to close their yearly accounts. Where electronic banking is available to the tax payer on 01-Apr-2014, the fact that the physical bank is closed would be quite immaterial and the tax payer should consider 01-Apr-2014 as the last date in these six States for paying his service tax or income tax or filing his income tax returns.
K.V.DHANANJAY
Advocate
Supreme Court
+91 9902909390
+91 9910577765
Sunday, April 10, 2011
With Great Power Comes Great Responsibility
Dear Prashantji
I write here to sincerely appreciate and to congratulate you and your stellar team headed by Annaji for all that has been accomplished for this country. You are all patriots of the greatest Order.
Further, Facebook and the internet certainly played a pivotal role in bringing together, unprecedented number of people to support your movement. I think, at some level, the world that we were quite used to is changing rapidly and Facebook and the internet are hastening such change – for the better.
We now look forward to a law of your liking shortly.
Having said so much, I just wish to share here, my thoughts on where we might be headed:
It is said that the uprising of the masses tends to have a life of its own. The learned and the wise men say that gifted leaders have always harnessed such energy for the benefit of their country. Now, I would like to remind you that you have the responsibility to channelize all of the energy that has been generated over the past week by the people of this country in a desirable direction.
You certainly know that the making of a law is only an incremental step in curbing corruption. The most critical step in reducing corruption is also the hardest – to ensure that citizens elect individuals with integrity, intellect and honesty to political offices.
I know that you and your team shun politics. It was encouraging to see that politicians were heckled and chased away from Jantar Mantar in the past week. It was enchanting to see the masses in India develop an intense public dislike for the politicians over the past week. But you certainly are aware that so long as we elect underserving men to our political offices, your task of reducing corruption in this
country is going to remain ever elusive.
So, what am I suggesting really? It is simple. I remember what the famed Spiderman said to himself in his film – ‘With great power comes great responsibility’.
You and your team now enjoy enormous power – deservedly. You could use up all of this power in merely giving to this country, a grand law which could eventually head in the same direction as many of our other ambitious laws – to languish amidst exotic wrangling in Courts while criminals walk away scot-free. Or, you and your team could use up this newfound power to ensure that deserving men are elected to political office - by endorsing worthy candidates in future elections and by supporting the candidature of individuals who appeal to the conscience of you and your team comprising of yourself, your father, Sri Shanti Bhushan, Sri Anna Hazare, Sri Arvind Kejriwal, Smt.Kiran Bedi, Sri J.S.Verma and Sri Santosh Hegde.
By the way, it is so heartening to note that nobody in this country seemed to ask for ‘the caste of Anna Hazare’ to determine whether to fast with him. But our politicians tell us that the people of this country primarily consider ‘caste’ to decide on who they will vote for in elections that matter. Most of the youth that came out in support of Anna Hazare might have a vote to cast in an election in the near future. What are they going to weigh while casting their vote? In the absence of somebody to direct them on what factors to consider and weigh, they will end up assuming that they must simply vote for the person of their caste or for the one who talks the most in their neighbourhood. Would it not help if the millions who stood up for Anna Hazare and his team were offered some guidance on whether there is a contesting candidate whose credentials elicit the endorsement of Anna Hazare and his team? I am assuming that the individuals comprising your team have labouriously and painstakingly acquired the skills to sniff a corrupt candidate from a distance. With such an assumption, I would be justified in saying that the voters of this country would immensely benefit should they be offered a choice to vote for a candidate who has been intensely scrutinised by Anna and his team.
I could write some more. And I would, in the days to come.
In the meanwhile, let me tell you this much – I would like to vote for a candidate who could show that he has merited the endorsement of Anna Hazare and his team of men.
Regards
K.V.Dhananjay
Advocate
Supreme Court of India
+91 9902909390
I write here to sincerely appreciate and to congratulate you and your stellar team headed by Annaji for all that has been accomplished for this country. You are all patriots of the greatest Order.
Further, Facebook and the internet certainly played a pivotal role in bringing together, unprecedented number of people to support your movement. I think, at some level, the world that we were quite used to is changing rapidly and Facebook and the internet are hastening such change – for the better.
We now look forward to a law of your liking shortly.
Having said so much, I just wish to share here, my thoughts on where we might be headed:
It is said that the uprising of the masses tends to have a life of its own. The learned and the wise men say that gifted leaders have always harnessed such energy for the benefit of their country. Now, I would like to remind you that you have the responsibility to channelize all of the energy that has been generated over the past week by the people of this country in a desirable direction.
You certainly know that the making of a law is only an incremental step in curbing corruption. The most critical step in reducing corruption is also the hardest – to ensure that citizens elect individuals with integrity, intellect and honesty to political offices.
I know that you and your team shun politics. It was encouraging to see that politicians were heckled and chased away from Jantar Mantar in the past week. It was enchanting to see the masses in India develop an intense public dislike for the politicians over the past week. But you certainly are aware that so long as we elect underserving men to our political offices, your task of reducing corruption in this
country is going to remain ever elusive.
So, what am I suggesting really? It is simple. I remember what the famed Spiderman said to himself in his film – ‘With great power comes great responsibility’.
You and your team now enjoy enormous power – deservedly. You could use up all of this power in merely giving to this country, a grand law which could eventually head in the same direction as many of our other ambitious laws – to languish amidst exotic wrangling in Courts while criminals walk away scot-free. Or, you and your team could use up this newfound power to ensure that deserving men are elected to political office - by endorsing worthy candidates in future elections and by supporting the candidature of individuals who appeal to the conscience of you and your team comprising of yourself, your father, Sri Shanti Bhushan, Sri Anna Hazare, Sri Arvind Kejriwal, Smt.Kiran Bedi, Sri J.S.Verma and Sri Santosh Hegde.
By the way, it is so heartening to note that nobody in this country seemed to ask for ‘the caste of Anna Hazare’ to determine whether to fast with him. But our politicians tell us that the people of this country primarily consider ‘caste’ to decide on who they will vote for in elections that matter. Most of the youth that came out in support of Anna Hazare might have a vote to cast in an election in the near future. What are they going to weigh while casting their vote? In the absence of somebody to direct them on what factors to consider and weigh, they will end up assuming that they must simply vote for the person of their caste or for the one who talks the most in their neighbourhood. Would it not help if the millions who stood up for Anna Hazare and his team were offered some guidance on whether there is a contesting candidate whose credentials elicit the endorsement of Anna Hazare and his team? I am assuming that the individuals comprising your team have labouriously and painstakingly acquired the skills to sniff a corrupt candidate from a distance. With such an assumption, I would be justified in saying that the voters of this country would immensely benefit should they be offered a choice to vote for a candidate who has been intensely scrutinised by Anna and his team.
I could write some more. And I would, in the days to come.
In the meanwhile, let me tell you this much – I would like to vote for a candidate who could show that he has merited the endorsement of Anna Hazare and his team of men.
Regards
K.V.Dhananjay
Advocate
Supreme Court of India
+91 9902909390
Tuesday, February 15, 2011
Either the CBI is very incompetent or the Special Judge is ferociously independent – in the Aarushi case:
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
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
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
Sunday, November 7, 2010
President Obama and Bhopal Gas Leak Disaster
Date: 06-Nov-2010
To
Respected, Barack Hussein Obama
Hon'ble President
United States of America
White House
Washington D.C.
Sub: Request for your intervention to secure additional compensation to the survivors and victims of the Bhopal Gas Leak Disaster, the worst industrial accident in human history.
With Respects, Sir:
1. My name is K.V.Dhananjay. I am a citizen of India. I am 36 years old. I am an advocate in practice at the Supreme Court of India and at several High Courts across India.
2. I take this opportunity to extend a warm welcome to you, your family and to your entourage while on a visit to India beginning 06-Nov-2010.
3. I wish to request you for your time and reflection upon the consequences from Bhopal Gas Leak Disaster that occurred on 2-3,Dec 1984 in Bhopal, the capital city of a northern State in India, Madhya Pradesh.
4. An unexpected, accidental or negligent release of methyl isocyanite in an industrial unit in Bhopal led to unprecedented loss of human life and limb - to an extent that the said event is characterised, universally, as the 'worst industrial accident in the history of mankind' (a view also endorsed by numerous decisions of Courts in the United States). In relation to the human toll from this catastrophe, Affidavits by the Government put the number of deaths in excess of 15,000 and severe injuries at 5,58,125.
5. On 14-Feb-1989, the Supreme Court of India set the monetary compensation and settlement in relation to the said disaster at a sum of 470 Million US Dollars . The said sum of 470 Million US Dollars was stated to "finally dispose of all past, present and future claims, causes of action and civil and criminal proceedings ...with respect to all past, present and future deaths, personal injuries, health effects, compensation, losses, damages and civil and criminal complaints of any nature whatsoever ...arising out of, relating to or connected with the Bhopal Gas Leak Disaster, including past, present and future claims, causes of action and proceedings...
6. It may not be profitable now to enquire into what could have been bought with a sum of 470 Million US Dollars in the year 1989. However, in 2009 or 2010, a sum of 470 Million US Dollars will barely cover the cost of producing, marketing and releasing two big-budget Hollywood films.
7. Yes. 'Avatar' and '2012', two Hollywood releases in 2009 that fared better than domestic fare in India cost more than 470 Million US Dollars to produce, market and release. Similarly, 'Iron Man 2' and 'Toy Story 3', two Hollywood summer-2010 movies released in India and elsewhere cost much more than 470 Million US Dollars to produce, market and release.
8. Any person acutely aware of the inadequacy of 470 Million US Dollars to compensate for the ‘worst industrial accident in human history’ will always remember your overwhelming role in compelling BP to provide for a 20 Billion US Dollars reparation fund to account for and to compensate for the Deepwater Horizon Oil Spill that occurred on 20-Apr-2010 from a drilling rig explosion in the Gulf of Mexico - the responsibility for which accident has been fastened upon BP. In all, BP has set aside 32.2 Billion US Dollars in its financial statements to account for the said oil spill.
9. I write here to express my request to you, as the President of the United States, to consider a similar intervention and to persuade Dow Chemicals to provide for a greater sum of monetary compensation to account for the suffering and misery inflicted and forced by the Bhopal Gas Leak Disaster.
10. I thank you for your time for this letter. I hope that you will recognise that the people of this world will incur gratitude towards your office and will ever remain grateful for any personal intervention you may initiate to secure fuller justice to the victims of what has become the worst industrial accident in human history - the Bhopal Gas Leak Disaster.
Sincerely
K.V.DHANANJAY
Advocate
#127, Lawyers Chambers
Supreme Court of India
New Delhi 110 001
Also at:
No.296, Kamakshipalya
Magadi Main Road
Bangalore 560 079
Email: dhananjaylegal@gmail.com
Mob: +91 9902909390
To
Respected, Barack Hussein Obama
Hon'ble President
United States of America
White House
Washington D.C.
Sub: Request for your intervention to secure additional compensation to the survivors and victims of the Bhopal Gas Leak Disaster, the worst industrial accident in human history.
With Respects, Sir:
1. My name is K.V.Dhananjay. I am a citizen of India. I am 36 years old. I am an advocate in practice at the Supreme Court of India and at several High Courts across India.
2. I take this opportunity to extend a warm welcome to you, your family and to your entourage while on a visit to India beginning 06-Nov-2010.
3. I wish to request you for your time and reflection upon the consequences from Bhopal Gas Leak Disaster that occurred on 2-3,Dec 1984 in Bhopal, the capital city of a northern State in India, Madhya Pradesh.
4. An unexpected, accidental or negligent release of methyl isocyanite in an industrial unit in Bhopal led to unprecedented loss of human life and limb - to an extent that the said event is characterised, universally, as the 'worst industrial accident in the history of mankind' (a view also endorsed by numerous decisions of Courts in the United States). In relation to the human toll from this catastrophe, Affidavits by the Government put the number of deaths in excess of 15,000 and severe injuries at 5,58,125.
5. On 14-Feb-1989, the Supreme Court of India set the monetary compensation and settlement in relation to the said disaster at a sum of 470 Million US Dollars . The said sum of 470 Million US Dollars was stated to "finally dispose of all past, present and future claims, causes of action and civil and criminal proceedings ...with respect to all past, present and future deaths, personal injuries, health effects, compensation, losses, damages and civil and criminal complaints of any nature whatsoever ...arising out of, relating to or connected with the Bhopal Gas Leak Disaster, including past, present and future claims, causes of action and proceedings...
6. It may not be profitable now to enquire into what could have been bought with a sum of 470 Million US Dollars in the year 1989. However, in 2009 or 2010, a sum of 470 Million US Dollars will barely cover the cost of producing, marketing and releasing two big-budget Hollywood films.
7. Yes. 'Avatar' and '2012', two Hollywood releases in 2009 that fared better than domestic fare in India cost more than 470 Million US Dollars to produce, market and release. Similarly, 'Iron Man 2' and 'Toy Story 3', two Hollywood summer-2010 movies released in India and elsewhere cost much more than 470 Million US Dollars to produce, market and release.
8. Any person acutely aware of the inadequacy of 470 Million US Dollars to compensate for the ‘worst industrial accident in human history’ will always remember your overwhelming role in compelling BP to provide for a 20 Billion US Dollars reparation fund to account for and to compensate for the Deepwater Horizon Oil Spill that occurred on 20-Apr-2010 from a drilling rig explosion in the Gulf of Mexico - the responsibility for which accident has been fastened upon BP. In all, BP has set aside 32.2 Billion US Dollars in its financial statements to account for the said oil spill.
9. I write here to express my request to you, as the President of the United States, to consider a similar intervention and to persuade Dow Chemicals to provide for a greater sum of monetary compensation to account for the suffering and misery inflicted and forced by the Bhopal Gas Leak Disaster.
10. I thank you for your time for this letter. I hope that you will recognise that the people of this world will incur gratitude towards your office and will ever remain grateful for any personal intervention you may initiate to secure fuller justice to the victims of what has become the worst industrial accident in human history - the Bhopal Gas Leak Disaster.
Sincerely
K.V.DHANANJAY
Advocate
#127, Lawyers Chambers
Supreme Court of India
New Delhi 110 001
Also at:
No.296, Kamakshipalya
Magadi Main Road
Bangalore 560 079
Email: dhananjaylegal@gmail.com
Mob: +91 9902909390
Tuesday, August 24, 2010
Hysteria and Indian Television - inseparable
Dear Friends
For those still in doubt over the sanity of many people in the television media in India, the 'massive outrage' over Vishwanathan Anand's 'citizenship' query from the Government of India will most likely dissolve all such 'doubt'.
It is an established procedure in most countries of the world to reserve all or most categories of 'titles' to individuals who show or prove 'citizenship' to the satisfaction of their federal Government.
Vishwanathan Anand is undoubtedly, the most gifted and honoured of all Indian sportspersons. But, when the Government of India seeks to confer or endorse the conferment of any 'title' upon any person, it is not unreasonable or improper for it to ask the 'potential recipient' to prove his 'citizenship' of India. 'Citizenship' is always the 'legal status' of an individual and a number of intervening circumstances could deprive a person of his 'citizenship'.
Without seeking to defend the action of the Government of India in asking Vishwanathan Anand to prove his 'citizenship' of India, I would like to state that Vishwanathan Anand should simply ask his lawyer to guide him on whether the 'procedure' adopted by the Government of India was authorised for it. Most likely, his lawyer will, if queried, say 'yes'. That is all there is to this issue. What happened is not 'national outrage' but mere 'pursuit of procedure'. And, for quirky ministers already declaring their 'readiness' to apologise for the full viewing pleasure of the prime time audience, I have a suggestion - please visit your nearest therapist; you could be in need of help.
Regards
K.V.Dhananjay
Advocate
Supreme Court of India
+91 9902909390
For those still in doubt over the sanity of many people in the television media in India, the 'massive outrage' over Vishwanathan Anand's 'citizenship' query from the Government of India will most likely dissolve all such 'doubt'.
It is an established procedure in most countries of the world to reserve all or most categories of 'titles' to individuals who show or prove 'citizenship' to the satisfaction of their federal Government.
Vishwanathan Anand is undoubtedly, the most gifted and honoured of all Indian sportspersons. But, when the Government of India seeks to confer or endorse the conferment of any 'title' upon any person, it is not unreasonable or improper for it to ask the 'potential recipient' to prove his 'citizenship' of India. 'Citizenship' is always the 'legal status' of an individual and a number of intervening circumstances could deprive a person of his 'citizenship'.
Without seeking to defend the action of the Government of India in asking Vishwanathan Anand to prove his 'citizenship' of India, I would like to state that Vishwanathan Anand should simply ask his lawyer to guide him on whether the 'procedure' adopted by the Government of India was authorised for it. Most likely, his lawyer will, if queried, say 'yes'. That is all there is to this issue. What happened is not 'national outrage' but mere 'pursuit of procedure'. And, for quirky ministers already declaring their 'readiness' to apologise for the full viewing pleasure of the prime time audience, I have a suggestion - please visit your nearest therapist; you could be in need of help.
Regards
K.V.Dhananjay
Advocate
Supreme Court of India
+91 9902909390
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