Hi,
Without prejudice, in my personal opinion Indian systems, like its vast country land itself, is full of contradictions in all ares whether be it field of legislature, executive / administration or juidiciary included.
We have host of extra-ordinarily brilliant brains commonly known as lawyers and solicitors, to twist the laws to their advantage, depending on which side they represent. This situation is called grey area, which is neither black nor white. Neither correct nor wrong. They stretch it, beyond one generation at times.
Apart from the now infamous Salman "Bhai" case, since time immemorial there have been several cases where the under trial convicts are rotting in jails for some unknown reasons not known neither to the police, nor to judicial system. But every hearing these under-trial convicts are still alive until the D day - no, not the judegment day but the day they leave the world due to natural death. On the contrary, there are several law breakers who ought to be even hanged till death are very much cozy in their homes and even dare to flash their ugly faces on the television and newsprint and even the country's "highly paid" and "well balanced" the so-called media feel proud to take their interviews and earn their bucks.
What is tought by the books of laws on "justice" are rarely followed and practised in courts, and whatever never tought in such law schools is practised everyday.
No doubt, Indian courts have millions of pending cases which will take decades to "complete" even if new cases stop being taken up on a given day (which will never come).
On Tue, Jul 14, 2015 at 5:59 AM, Dipak Shah djshah1944@yahoo.com [aaykarbhavan] <aaykarbhavan@yahoogroups.com> wrote:
13 years of big drama ends with a small note
By : Utsav Ghosh on 26 June 2015
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India is a country which expresses freedom of thought and expression and other human rights which has acquired unique identity of India all over the world. It is the respect for human values through which India has attracted global attention, but at the same time it has also let to inordinate delay in dispensation of justice which has been questioned.India is referred in the list of countries where no legal battle is decided in less than 10 years or perhaps more than that which itself has put question on the functions of the judicial system. This has been corroborated with the hit and rum case of actor Salman Khan who was involved. The Sessions Court in Mumbai held him guilty of culpable homicide on May, 6th 2015 and sentenced him to 5 years of imprisonment and fine of Rs. 25,000/- , 13 years after the incident which happened in the year 2002. In the case, a Toyata land Rover, owned by him ran over 5 people who were sleeping on the pavement in Bandra on September 28, 2002 which left one man dead and other four injured.On the same day the Hon'ble High Court of Bombay granted the actor interim bail until 8th May 2015. Newspaper editorial devoted at least a half column lauding equality before law as a lodestone of democracy. But at the same time, all lamented the tardiness of law. They wanted to know whether it takes 13 years to judge who was driving the car and whether or not Salman Khan was under the influence of alchol. This delay is not seen for the first time and it has become vogue for all the cases present and past particularly those concerning the rich and the influential. Those having amole cases are the examples of cases against sedition by politician and industrialists, cases related disproportionate assets, rioting and others. So far as Bollywood is concerned it is one of the high profile case after the Sanjay Dutt case who is supposed to be languishing behind bars.The case is not important because it involved Salman Khan but it showed the delay our judicial system is facing in giving justice. By the time a judgment comes out people forget what has actually happened. Salman Khan was charged with culpable homicide not amounting to murder and arrested and thereafter granted bail on October 2002. The Court on May 2003 rejected the plea to drop culpable homicide charges, but in June Hon'ble Bombay High Court dropped culpable homicide charges and tried Salman Khan was rash and negligent driving. In March 2015, Salman stated in the court that he was not drunk and his driver was behind the wheel. On May 6, 2015 he was found guilty by the court and awarded five years jail term. This time Court appeared to be convined by the evidence put forward by prosecution that Salman was driving the vehicle, the authenticity of the test showed that he had time the amount of alcohol in his blood stream at the time of the accident, and that the actor did not possess a valid driving license when the accident took place.In the lead up to the final verdict, the prosecution has demanded a maximum punishment of ten years and prayed to the Court that deterrence and correction were important factors in awarding sentence to the famous actor.
Published in Criminal Law
Views : 10689Principle of Interpretation of CPC and its one application
By : Anupam Lahiri on 06 July 2015
Procedural laws like Civil Procedure Code (CPC) are meant to aid and advance the furtherance of justice. In general, the procedural law is the handmaid of justice and it is not expected to create hindrance in the justice delivery system.In view of this age-old wisdom, the construction of any procedural law gains importance. Often, the pedantry of interpretational logic baffles the court as to the true sense of the procedural law. One such provision is Order 8, Rule 1 of the Civil Procedure Code, 1908.Problem at hand: Order 8 Rule 1 of CPC prescribes the period within which defendant has to submit his written statement. The Rule is reproduced below:"R.1 Written Statement.- The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence:Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons."The word "shall" in the Rule (shown in bold) has gained prominence when sub-ordinate judiciary interpreted the term as implying mandatory condition and in that process injustice crept into the civil judicial system. The matter in legal terms can be describes as a problem of interpretation of the word "shall"- whether the word makes the provision mandatory or directory.General Principle of construction of Procedural Law:Long back in 1955, the Hon'ble Supreme Court in Sangram Singh Vs Election Tribunal, Kota AIR 1955 SC 425 laid down the general principles for interpreting any procedural law. The case arose out of an Election Petition under Section 100 of the Representation of Peoples Act, 1951. However, the general principles are very much applicable to the construction of CPC. The principles laid down state:A Code of Procedure must be regarded as such. It is "procedure", something designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it;There must be ever present to the mind the fact that our laws of the procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them, of course, there must be exceptions and where they are clearly defined, they must be given effect to;No forms or procedure should ever be permitted to exclude the presentation of the litigants' defence unless there be an express provision to the contrary.The procedural law may contain a liberal as well as the stringent provisions. In the matter of interpretations, all pervasive purpose of advancing justice must be kept in view. In that logic, any provision which may appear to be worded like a mandatory one, in reality may be construed to be a merely directory one. In State of Punjab Vs Shamlal Murari 1976 (1) SCC 719 Hon'ble Supreme Court laid down:"Processual law is not to be a tyrant but a servant not an obstruction but an aid to justice. Processual prescriptions are the handmaid and not the mistress, a lubricant not a resistant in the administration of justice."The Case Law on the Interpretation of OR 8 Rule 1The present Rule has come into existence by the Civil Procedure (Amendment) Act, 2001. Before the Amendment, the Civil Court has wide discretion to extend the time to file written statement by the defendant. The legal loop whole was utilized by the dishonest defendants to harass the plaintiffs. The present Rule has put an outer limit on the time to file the written statement. As a result of the new law relating to filing of written statement, the following matters are clear:"Firstly, a careful reading of the language in which Order 8 Rule 1 has been drafted, shows that it casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of the court and also does not specifically take away the power of the court to take the written statement on record though filed beyond the time as provided for.Secondly, the nature of the provision contained in Order 8 Rule 1 is procedural. It is not a part of the substantive law.Thirdly, the object behind substituting Order 8 Rule 1 in the present shape is to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases much to the chagrin of the plaintiffs and petitioners approaching the court for quick relief and also to the serious inconvenience of the court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. The process of justice may be speeded up and hurried but the fairness which is a basic element of justice cannot be permitted to be buried." Vide Kailash Vs Nankhu (2005) 4 SCC 480.Again, in Salem Advocate Bar Association Vs Union of India (2005) 6 SCC 344 the Hon'ble Supreme Court has laid down that the inclusion of the word "Shall" is not a conclusive for determining the nature of the provision. The outer limit given in the provision may be extended by the Civil Court, but only in exceptional cases, giving reasons for such extension.ConclusionAs rightly observed by the Apex Court, the procedure is the handmaid of justice. It is the way by which the substantive provisions are got enforced in practice. In practically applying the procedural provisions, the civil courts should be extremely cautious in assigning the true import of the provisions. In the matter of Order 8 Rule 1, the well-settled position is that the provision is directory in nature though worded in a mandatory fashion. As principle of natural justice is embedded in any judicial process, the inherent power of the court, in exceptional circumstances, must intervene to do complete justice in a given case.
Published in Civil Law
Views : 778--Best Regards,
CA SUDHIR G AGRAWAL
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