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Manual-for-Training-Police-on-Anti-Human-Trafficking

Manual for Training Police on Anti Human Trafficking

PROTECT WITNESS AND THEIR INTERESTS SAYS SUPREME COURT

In Himanshu Singh Sabharwal vs. State of M.P. and others (2008) 4 SCR 783, where Supreme Court in paragraphs 14 and 15 has observed as under: - "Witnesses as Benthem said: are the eyes and ears of justice. Hence, the importance and primacy of the quality of trial process. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed, and it no longer can constitute a fair trial. The incapacitation may be due to several factors like the witness being not in a position for reasons beyond control to speak the truth in the Court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by Courts on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingenuously adopted to smoother and stifle truth and realities coming out to surface rendering truth and justice, to become ultimate casualties. Broader public and societal interests require that the victims of the crime who are not ordinarily parties to prosecution and the interests of State represented by their prosecuting agencies do not suffer even in slow process but irreversibly and irretrievably, which if allowed would undermine and destroy public confidence in the administration of justice, which may ultimately pave way for anarchy, oppression and injustice resulting in complete breakdown and collapse of the edifice of rule of law, enshrined and jealously guarded and protected by the Constitution. There comes the need for protecting the witness. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth is presented before the Court and justice triumphs and the trial is not reduced to mockery. The State has a definite role to play in protecting the witnesses, to start with at least in sensitive cases involving those in power, who has political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. As a protector of its citizens it has to ensure that during a trial in Court the witness could safely depose truth without any fear of being haunted by those against whom he has deposed. Some legislative enactments like the Terrorist and Disruptive Activities (Prevention) Act, 1987 (in short the 'TADA Act') have taken note of the reluctance shown by witnesses to depose against dangerous criminals-terrorists. In a milder form also the reluctance and the hesitation of witnesses to depose against people with muscle power, money power or political power has become the order of the day. If ultimately truth is to be arrived at, the eyes and ears of justice have to be protected so that the interests of justice do not get incapacitated in the sense of making the proceedings before Courts mere mock trials as are usually seen in movies. Legislative measures to emphasise prohibition against tampering with witness, victim or informant have become the imminent and inevitable need of the day. Conducts which illegitimately affect the presentation of evidence in proceedings before the Courts have to be seriously and sternly dealt with. There should not be any undue anxiety to only protect the interest of the accused. That would be unfair as noted above to the needs of the society. On the contrary, the efforts should be to ensure fair trial where the accused and the prosecution both get a fair deal. Public interest in the proper administration of justice must be given as much importance if not more, as the interests of the individual accused. In this courts have a vital role to play."

HOW PLEADING FALSELY IN THE COURT AMOUNTS TO CONTEMPT AND PERJURY EXPLAINED BY SUPREME COURT


R.S. Sujatha vs State Of Karnataka & Ors. Decided by Supreme Court on 29 November, 2010 Bench: Justice P Sathasivam, Justice B Chauhan

FACTS OF THE CASE:- State of Karnataka initiated disciplinary proceedings against the appellant, an Indian Administrative Service Officer of Karnataka cadre, on the allegation that she had committed certain irregularities in the allotment of wheat.  The said regular enquiry stood initiated on the basis of the preliminary enquiry report. The appellant filed O.A.   before the Tribunal on   for quashing the Articles of charge   and subsequent proceedings on diverse grounds. In the said Original Application,   the appellant had made a specific averment that the charge memo  was received by her only on 19.6.2002, as the copy of the same was furnished to her by the 3rd respondent i.e. the Enquiry Officer. Therefore, it had been contended by the appellant that she had approached the Tribunal within limitation. However, taking abundant caution, she had also filed an application for condonation of delay.   The reply to the said application was filed by the respondents therein, wherein it was contended that the order dated 30.11.1999 had been issued to the appellant on 2.12.1999 by Registered Post with AD.  The Tribunal instead of proceeding with the matter on merit or deciding the issue of limitation, passed an order  stating that the appellant had made a false statement in the O.A. regarding limitation which was intentional and deliberate. Therefore, prima facie, the Tribunal was of the view that the appellant had committed criminal contempt and a show cause notice   was issued to the appellant calling upon her "to appear in person before the Tribunal   to answer the said show cause notice on which day the matter would be listed for hearing. The appellant not only appeared in response to the said notice personally, but submitted a reply to the show cause notice contending that she had not made any false statement for the purpose of securing the order of condonation of delay and in fact the charge memo dated 30.11.1999 had been served upon her first time on 19.6.2002. She also made a request to summon certain government records to substantiate her case. The Tribunal directed the respondent authorities to produce the documents, i.e. Inward Register, Postal Acknowledge Due and original letter dated 23.12.1999 and other relevant documents, if any, which would have bearing on the matter by the next date,   though learned counsel for the respondent authorities did not produce any of the required documents, but he produced the photocopies of letter dated 23.12.1999 and the Inward Register. The Tribunal adjourned the case and passed the impugned order dated   holding that the appellant was guilty of perjury, as well as of criminal contempt of the Tribunal and imposed the punishment of imprisonment till rising of the court and a fine of Rs.2,000/-. 

BASIS OF HIGH COURT ORDER:- Being aggrieved, the appellant approached the High Court by filing a writ petition which was ultimately dismissed, observing that the High Court had no jurisdiction to entertain the matter placing reliance on the judgment of this Court in T. Sudhakar Prasad v. Govt. of A.P. &    Ors., (2001) 1 SCC 516, wherein it had been held that against the order under the Contempt of Court Act, 1971, passed by the Tribunal, the party aggrieved has to approach Supreme  Court. Hence, this appeal.

BASIS OF TRIBUNAL ORDER: - The learned Tribunal proceeded on the basis that Supreme Court in Chandra Shashi v. Anil Kumar Verma, (1995) 1 SCC 421, held that nobody should be permitted to indulge in immoral acts like perjury, prevarication and motivated falsehoods in the judicial proceedings and if someone does so, it must be dealt with appropriately. In case the recourse to a false plea is taken with an oblique motive, it would definitely hinder, hamper or impede the flow of justice and prevent the courts from performing their legal duties. 

COURT OBSERVES:- Before the Tribunal, the case had been at a preliminary stage, thus, the Tribunal ought not to have initiated the criminal contempt proceedings at such a pre-mature stage making reference to the provisions of Sections 191, 193 and 197 of the Indian Penal Code, 1860 (hereinafter called as the IPC). Section 191 IPC deals with giving false evidence; Section 193 provides for punishment for giving false evidence; and Section 197 deals with issuing or signing a false certificate.

QUOTED CITATIONS:- 
In Chajoo Ram v. Radhey Shyam &  Anr., AIR 1971 SC 1367, Supreme Court while dealing with a similar issue held as under: "............No doubt giving of false evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the Court should be satisfied that there is reasonable foundation for the charge....."

In Chandrapal Singh & Ors. v. Maharaj Singh & Anr., AIR 1982 SC 1238, Supreme Court while dealing with a case of a false statement for the purposes of Sections 193 and 199 IPC held as under: " ........ When it is alleged that a false statement has been made in a declaration which is receivable as evidence in any Court of Justice or before any public servant or other person, the statement alleged to be false has to be set out and its alleged falsity with reference to the truth found in some document has to be referred to pointing out that the two situations cannot co-exist, both being attributable to the same person and, therefore, one to his knowledge must be false. Rival contentions set out in affidavits accepted or rejected by courts with reference to onus probandi do not furnish foundation for a charge under Section 199 IPC. .........Acceptance or rejection of evidence by itself is not a sufficient yardstick to dub the one rejected as false. Falsity can be alleged when truth stands out glaringly and to the knowledge of the person who is making the false statement. Day in and day out in courts averments made by one set of witnesses are accepted and the counter-averments are rejected. If in all such cases complaints under Section 199 IPC are to be filed not only there will open up floodgates of litigation but it would unquestionably be an abuse of the process of the court....."

In Pritish v. State of Maharashtra & Ors., AIR 2002 SC 236, Supreme Court dealt with the provision of Section 340 of the Code of Criminal Procedure, 1973 extensively, in a case where admittedly forged document had been filed in a reference under Section 18 of the Land Acquisition Act, 1894 for getting a higher amount of compensation. The court observed as under :- "Reading of the sub-section makes it clear that the hub of this provision is formation of an opinion by the court (before which proceedings were to be held) that it is expedient in the interest of justice that an inquiry should be made into an offence which appears to have been committed............But once the court decides to do so, then the court should make a finding to the effect that on the fact situation it is expedient in the interest of justice that the offence should further be probed into......It should again be remembered that the preliminary inquiry contemplated in the sub-section is not for finding whether any particular person is guilty or not. Far from that, the purpose of preliminary inquiry, even if the court opts to conduct it, is only to decide whether it is expedient in the interest of justice to inquire into the offence which appears to have been committed."

REASONS:- Thus, from the above, it is evident that the inquiry/contempt proceedings should be initiated by the court in exceptional circumstances where the court is of the opinion that perjury has been committed by a party deliberately to have some beneficial order from the court. There must be grounds of a nature higher than mere surmise or suspicion for initiating such proceedings. There must be distinct evidence of the commission of an offence by such a person as mere suspicion cannot bring home the charge of perjury. More so, the court has also to determine as on facts, whether it is expedient in the interest of justice to inquire into the offence which appears to have been committed.

In the instant case, all the documents summoned by the Tribunal had not been produced before the Tribunal. More so, any document sent by Registered Post is presumed to have been received by the addressee in view of the provisions of Section 27 of the General Clauses Act, 1897 and Illustration (f) of Section 114 of the Indian Evidence Act, 1872, but every presumption is rebuttable.

In such a fact-situation, the appellant ought to have been given time to rebut this presumption and lead evidence to prove that she did not receive the said document as alleged by the opposite parties, and it was necessary to do so for the reasons we record later.

The Tribunal failed to appreciate that criminal contempt proceedings are quasi criminal in nature and any action on the part of a party by mistake, inadvertence or by misunderstanding does not amount to contempt. In contempt proceedings, the court is the accuser as well as judge of the accusation. Therefore, it behoves the Tribunal to act with great circumspection as far as possible, making all allowances for errors of judgment. Any action taken in unclear case is to make the law of contempt do duty for other measures and therefore is totally unwarranted and should not be encouraged. The proceedings being quasi criminal in nature, burden and standard of proof required is the same as required in criminal cases.

The charges have to be framed as per the statutory rules framed for the purpose and proved beyond reasonable doubt keeping in mind that the alleged contemnor is entitled to the benefit of doubt. Law does not permit imposing any punishment in contempt proceedings on mere probabilities. The court cannot punish the alleged contemnor without any foundation merely on conjectures and surmises.

HELD:-  The ratio laid down by Sahdeo alias Sahdeo Singh v. State of Uttar Pradesh & Ors., (2010) 3 SCC 705  applied "Every statutory provision requires strict adherence, for the reason that the Statute creates rights in favour of persons concerned. The impugned judgment suffered from non-observance of the principles of natural justice and not ensuring the compliance of Statutory Rules, 1952. Thus, the trial itself suffered from material procedural defect and stood vitiated. The impugned judgment and order, so far as the conviction of the appellants in Contempt proceedings are concerned, is liable to be set aside."





RELEVANCY OF PROOF OF AN AGE OF PERSON IN CRIMINAL PROCEEDINGS

In Ravinder Singh Gorkhi Vs. State of U.P. (2006) 5 SCC 584 Supreme court held as follows:- "The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of "determining the age of a party to the lis", having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted."

ATROCITY COURT CANNOT TAKE COGNIZANCE DIRECTLY - COMMITTAL PROCEEDINGS IS MUST - TRANSFER APPLICATION IS SOLUTION

KARNATAKA HIGH COURT ON DOMESTIC VIOLENCE CASES

Sri. Amruth Kumar Vs. Smt. Chithra Shetty, Citation: 2010 (1) KCCR 459, Hon’ble Justice: Subhash B. Adi, J. “Hence, word appearing in the proviso to definition of 'respondent' has to be understood to mean only male relative of the husband or male partner of the aggrieved person with whom she is in domestic relationship. The definition of the word 'respondent' under Section 2(q) of the Act does not include woman; The word relative appearing in the proviso to Section 2(q) of the Act only means other than woman relative of the husband or male partner of the aggrieved person; The definition of 'respondent' means only adult male member, who is or has been in domestic relationship with aggrieved person and not all adult male members.


R.Ramu Vs. Smt. Leelavathi, HON'BLE JUSTICE Ajit J. Gunjal, J. Date of Judgement: 07/12/2009 Writ Petition No. 2118 of 2009 2010 (1) KarLJ 376 Before awarding maintenance, the Courts are required to take note of the income of the husband and also the probable income of the wife. Indeed, in the case on hand, except for the assertion that the wife is receiving rents, no documents are forthcoming to show that the wife is receiving the rents. The Courts have proceeded on the premise that the wife is not earning anything. The said finding cannot be faulted, inasmuch as, the husband has failed to produce any documents in support of his contention.

KARNATAKA LAND LAWS

CASE LAW ON LAND LAWS