Wednesday, June 29, 2011

SIB's Gujarat riots records destroyed: Modi govt

The telephone call records, registers of officers' movement and vehicle log books of the State Intelligence Bureau (SIB) pertaining to the period of 2002 communal riots were destroyed in 2007, the Gujarat government said today.

S B Vakil, Government Counsel in the Nanavati Commission, probing the post-Godhra riots, told mediapersons after the questioning of IPS officer Sanjeev Bhatt that as per government rules the records are destroyed after five years.

"As per general government rules the telephone call records, vehicle log book and the officer's movement diary are destroyed after a certain period," Vakil said.
He said as far as the SIB records for 2002 (when Sabarmati Express train was set afire at Godhra and subsequent riots took place) were concerned, they were destroyed in 2007.

"Bhatt knows that the records are not available and despite that he is asking for them," Vakil noted.

Delhi HC stays CIC order to CBI

The Delhi High Court on Wednesday stayed the Central Information Commission (CIC) order directing CBI to make public reports of its Directors relating to discharge of US-based hotelier Sant Singh Chatwal from two cases of alleged bank fraud.

Granting stay on the CIC’s May 11 order, Justice M L Mehta issued a notice to Krishnanand Tripathi, a TV journalist, and sought a reply by July 28 on CBI’s plea against the order.

Seeking quashing of the order, CBI has filed the petition through its CPIO and said Section 8(1)(h) of the RTI Act exempts the agency from disclosing any information.

“Any disclosure would impede the process of the investigation, apprehension, or prosecution,” said the premier investigating agency in its petition.

“CBI cannot be compelled by any authority to supply any document or information relating to the cases,” the petition also stated.

To Mr. Tripathi’s application under the RTI Act, CBI had refused to share information about the closing of alleged bank fraud cases against Mr. Chatwal, a close aide of former US President Bill Clinton, saying two cases, “interconnected” with the closed cases, were still pending in court and disclosing these reports might adversely affect the prosecution.

Tuesday, June 28, 2011

SC stays return of Singur land

NEW DELHI: Providing temporary relief to Tata Motors, the Supreme Court on Wednesday stayed the return of Singur land to the farmers by the West Bengal government.

The apex court, in its interim order, said the state government will hold the land and maintain status quo till further orders from Calcutta high court.

The SC directed the parties to argue the merits of the case before the high court.

Tata Motors had filed two special leave petitions requesting the Supreme Court to stay the Singur Land Rehabilitation and Development Act passed by Bengal Assembly after Trinamool Congress came to power.

It had urged the court to stop the return of land to the farmers, a process initiated by the state government after the act was passed.

The lawyer representing the state government clarified before the court that no land had been returned to farmers till now.

Cases against netas seldom probed properly, says Supreme Court

The Supreme Court has moved to plug loopholes in the judicial administration system that are exploited to undermine probe into criminal cases involving important political figures and inordinately delay their trial.

Terming the problem a 'grave and serious' danger to justice delivery system, the apex court has sought a report from the Law Commission on the issue.

The initiative came in response to a PIL filed recently by V K Ohri which stated that criminal cases against influential persons seldom got properly investigated and tried fairly, expeditiously and in accordance with law.

"As a result, influential people/accused having committed heinous offences are not brought to book and are mostly able to escape. This results, on many occasions, into grave miscarriage of justice and erodes the credibility of the criminal justice system," Ohri's counsel Prashant Bhushan told the court.

A bench comprising Justices Aftab Alam and R M Lodha said, "The problem identified in the writ petition is indeed grave and requires serious consideration. However, the court finds it difficult to deal with the issue in a meaningful way in the absence of necessary data and all the facts and figures relevant to the issue."

It added, "In these circumstances, apart from expecting a serious assistance from the side of the Union of India, we would like the Law Commission of India to examine the matter and submit its report with a view to assist the court."

The court requested the commission to consider the issue and submit a detailed report by end of August, when Ohri's petition would be taken up for hearing afresh. The commission headed by Justice P V Reddy discussed the issue last week and kept it for further deliberation next month.

The petitioner had cited the case of Shibu Soren, alleging that despite being declared proclaimed offender in a case, he was able to avoid arrest allegedly in connivance with police, and attended Parliament, election meetings and became a minister at the Centre.

"Similar is the fate of thousands of cases against influential persons who have committed gruesome crimes against common man and have gone scot free due to delay in process manipulated by them because of their influence," the petitioner said.

The outcome of the case could affect the proceedings of the 2G scam trial in which former telecom minister A Raja, MP Kanimozhi and corporate biggies are made accused after the CBI filed a chargesheet alleging that the nation was cheated of Rs 22,000 crore because of irregular allotment of spectrum.

U.S. removes India from human trafficking ‘Watch List’

After a gap of six years, the United States has taken India off the human trafficking ‘Watch List’ for making significant efforts in combating the menace.

In its annual Trafficking in Persons report, the State Department has upgraded India to Tier 2 countries after keeping it on a ‘Watch List’ for six years.

The Watch List is for those countries where the number of victims of severe forms of trafficking is very significant or is significantly increasing and there is a failure to provide evidence of increasing efforts to combat it.

Tier 2 is for those countries whose governments do not fully comply with the minimum standards of the Trafficking Victims Protection Acts (TVPA) but are making significant efforts in this regard.

“The Government of India does not fully comply with the minimum standards for the elimination of trafficking; however, it is making significant efforts to do so,” the State Department said in its report justifying its decision to upgrade India’s position.

The report analysed conditions in 184 countries and ranked them in terms of their effectiveness in fighting the human trafficking.

It has identified 23 nations as failing to meet minimum international standards to curb the scourge, which claims mainly women and children as victims. That’s up from 13 in 2010. Another 41 countries were placed on the “watch list” that could lead to sanctions unless their records improve.

“All countries can and must do more,” Secretary of State Hillary Clinton said while releasing the report. “More human beings are being exploited today than ever before.”

Tatas move Supreme Court over Singur land

NEW DELHI: The Tatas moved Supreme Court on Tuesday challenging the Calcutta high court refusing to stay distribution of land to owners at Singur.

Tata Motors have requested the apex court to stay the Singur Land Rehabilitation and Development Act passed by the West Bengal Assembly by the Trinamool Congress government.

It has also sought to restrain state govt from taking possession of the land allotted to it at Singur.

The Tatas want the court to direct the govt to return the land already taken over after June 25.

The apex court will hear Tata Motor's petition on Wednesday.

The Calcutta high court had on Monday refused to pass an interim stay on the Tata Motors Limited plea expressing fears that the state government would start distributing their land in Singur to the farmers if the court refused to intervene.

Bitter 'lauki' juice can kill you, says panel

HYDERABAD: Do not drink your bottle gourd ('lauki' in Hindi, and 'sorakaya' in Telugu) juice if it tastes bitter, it could kill you. This recommendation comes after some investigation by an experts' committee.

The death of 59-year-old scientist, Sushil Kumar Saxena, a deputy secretary in the Council for Scientific and Industrial Research (CSIR) in New Delhi in June 2010, spurred an investigation into the effects of the consumption of bottle gourd juice that is bitter. A spate of other deaths relating to the same were also uncovered.

This led to the formation of an experts' committee on the 'Safety of consumption of vegetable juices with special reference to 'lauki.' The committee was constituted by the Indian Council of Medical Research (ICMR) and held its second meeting in New Delhi on Sunday after it was formed this year in April.

The scientist, Saxena, had reportedly followed the advice of a baba who had advocated the merits of 'lauki' juice on his television programmes, stating that it was good for curing diabetes, among other health benefits. Saxena consumed the bottle gourd juice, as a mixture with bitter gourd (Karela in Hindi, and Kakarakaya in Telugu). He was hospitalised soon after but died prior to any treatment there.

His death was followed by reports of other deaths by the same cause. "Deaths from different parts of the country have been reported after some individuals consumed bottle gourd juice which was bitter. The advice would now be not to consume bottle gourd juice which is bitter," an ICMR scientist said.

The expert committee that was formed by the ICMR will submit a report on their findings to the government next month. These results came after ICMR scientist G S Toteja called for information from clinicians who had treated lauki toxity cases, in a prescribed format. Members of the general public who had observed adverse effects after the consumption of the juice were also asked to submit their observations. Researchers with information on the benefits or toxic effects of lauki also submitted their work. After the committee submits its report, a campaign to create awareness on the harmful effects of consuming bottle gourd juice, if it is bitter, will be initiated, it is learnt.

According to an ICMR scientist, further research is also being initiated on bottle gourd. Some national laboratories and universities are being identified for the purpose of conducting further research at the insistence of the ICMR.

Several 'gurus' and ayurveda practitioners recommend the consumption of bottle gourd juice. This advice is followed by people who make the gourd juice at home, in a bid to control diabetes. It has however been found that gourds, cucumbers, squash, pumpkins and melon may contain the chemical compound Tetracyclic Triterpenoid Cucurbitacin, which causes bitterness. This can be toxic and could prove fatal, especially if consumed in large doses.

Monday, June 27, 2011

Man fakes dad's death for insurance

A Delhi resident was arrested here on Sunday for faking the death of his NRI father to claim Rs 50 lakh insurance money. To make the death look real, the son cremated a dog at the cremation ground in Pehowa in this district and also performed 'last rites'.

The accused, identified as Chetan Oberoi, a resident of Vikaspuri in Delhi, planned this disgraceful act at Pehowa in June last year, with the help of six other persons, police said. The matter came to light when investigating officer of an America-based insurance company Phool Singh approached Pehowa police for confirmation of details.

Subsequently, police investigated the matter and then the shocking incident came to the fore. A team of Pehowa police arrested Chetan from his apartment in the Capital on help of a priest, Ram Lal, at the Pehowa cremation ground. The last rites after the so-called death were performed by priests Hemant and Roshan Lal, who also helped perform the rituals of 'pind daan' of Janakraj. Pehowa-resident Satpal Singh signed as witness in this fake death episode, police said. Meanwhile, a case has been registered with Pehowa police station on January 23 against Chetan and six others for making a forged death certificate.

"We have already taken Chetan in police remand and the probe is on," said Yashwant Yadav, SHO of Pehowa police station. Sunday. His father Janakraj Oberoi is in the United States with his elder son Harsh Oberoi, police sources said. According to the statement given by Chetan, his father died of a heart attack at Saraswati Ghat in Pehowa on June 22, 2010, during a visit to Saraswati Ghat from Delhi, investigating police officers said.

To execute his plan successfully, Chetan took the help of a priest, Ram Lal, at the Pehowa cremation ground. The last rites after the so-called death were performed by priests Hemant and Roshan Lal, who also helped perform the rituals of 'pind daan' of Janakraj. Pehowa-resident Satpal Singh signed as witness in this fake death episode, police said. Meanwhile, a case has been registered with Pehowa police station on January 23 against Chetan and six others for making a forged death certificate. "We have already taken Chetan in police remand and the probe is on," said Yashwant Yadav, SHO of Pehowa police station.

Supreme Court strikes down California video game law

The Supreme Court today ruled 7-2 that a 2005 California law which would have banned selling violent video games to children went too far. It’s the latest - and most high-profile - defeat for politicians seeking to restrict the sale of violent video games, and sets an important precedent that puts video games along with books and movies as a form of protected free speech.

Created by California state Senator Leland Yee (D-San Francisco), the law sought to restrict the sale of certain kinds of violent video games to children without parental supervision. Retailers found in violation of the law would have been fined up to $1,000 per infraction. The law was enacted in 2005 but was never put into effect.

The majority of video game resellers in the United States - including major retailers like GameStop and Best Buy - support the use of the Entertainment Software Ratings Board’s (ESRB) classification system, which rates games based on content and applies an age rating, which is featured on the video game box. It’s a purely voluntary system modeled after the Motion Picture Association of America’s ratings for movies.

As the plaintiff in the case, ultimately known as Brown v. Entertainment Merchants Association, the Video Software Dealers Association - now the Electronic Merchants Association - argued successfully to lower courts that the law was too broad in its application and failed to pass muster with the First Amendment to the U.S. Constitution, and that an existing system was already in place which effectively restricted sales - the ESRB ratings system.

Other states have tried to put in place laws restricting the sales of violent video games to minors. In each case that’s made it to federal court, the laws have been overturned on First Amendment grounds. This is the first such case to be ruled on by the Supreme Court, however.

Writing for the majority, Justice Antonin Scalia called California’s law “seriously overinclusive because it abridges the First Amendment rights of young people whose parents…think violent video games are a harmless pastime.”

In a dissenting opinion, Justice Stephen Breyer wrote, “The First Amendment does not disable government from helping parents make such a choice here — a choice not to have their children buy extremely violent, interactive games.”

But more importantly, the court ruled in a precedent-setting decision that video games are entitled to the same protection as other forms of speech, such as books, plays and movies.

The Court also took a swipe at the argument that violent video games are harmful to children - a central argument of Senator Yee, the child psychologist turned politician who sponsored the law. In their ruling, the Supreme Court said studies showing studies linking violent video games and violent behavior in children “do not prove that such exposure causes minors to act aggressively.”

Speaking on behalf of the Entertainment Consumer Association (ECA), Jennifer Mercurio, VP & General Counsel, said, “We had hoped that we would see this decision, and it’s been a long time coming. That being said, there will probably be one or two legislators who attempt to test these new parameters, and the ECA will continue to fight for the rights of entertainment consumers.”

In a statement issued late Monday morning, Senator Leland Yee blasted the Supreme Court’s decision, saying it “put the interests of corporate America before the interests of our children.”

“As a result of their decision, Wal-Mart and the video game industry will continue to make billions of dollars at the expense of our kids’ mental health and the safety of our community,” said Yee, who takes credit with forcing “the video game industry to do a better job at appropriately rating these games.”

CBI to send LR to Switzerland to probe money-trail in 2G scam

The CBI will soon send a formal request to Switzerland to help the agency in tracking down the alleged money trail of Swan Telecom, a company chargesheeted in the allocation of 2G spectrum.
CBI sources said this was decided after documents received from Mauritius indicated flow of money to other European countries considered as tax havens.
They said Letters Rogatory (LR) will be sent to Switzerland authorities to share investigation details in the allotment of second generation spectrum in 2008.
If the Swiss authorities agreed, a joint team of CBI and Enforcement Directorate would be sent to the European country for carrying out investigations, the sources said.
“We have received ownership patterns and details of investments by a number of companies based in Mauritius. Prima facie it appears that funds have been routed to Switzerland through some channels. We are still examining all documents and will send our team to probe it,” said a CBI official.

Sunday, June 26, 2011

Mistress can't be booked under 498A

AHMEDABAD: A woman cannot charge her husband's mistress with domestic violence and torturing for not fulfilling dowry demands. Gujarat high court (HC) has observed this while quashing such complaints in two different cases recently.

In 2007, Neeta Makwana from Bhavnagar booked her husband Bhadresh Makwana, his relatives and Shweta Desai under section 498A of Indian Penal Code apart from leveling other accusations of beating and causing insult to provoke breach of peace. Shweta was roped in the complaint by Neeta because she was her husband's girlfriend and on account of their illicit relationship, Bhadresh was allegedly harassing and torturing her.

In a similar case from Bhavnagar only, Jaya Maru filed a complaint against her husband Devji, his three relatives and Roshni Makwana. The complainant claimed that Roshni was her husband's girlfriend and at her instigation, her husband ill-treated her and took away her property in the form of gold and silver ornaments.

Both the cases are being heard by local trial courts. Meanwhile, Shweta and Roshni approached the HC by way of filing petitions and requested the court to cancel the FIRs against them. Justice S R Brahmbhatt heard the case and ordered to drop charges against these women and observed that section 498A will naturally not be applied to these women because they do not happen to be in relation with the husbands of respective complainants. Therefore, they do not have to undergo the rigmarole of criminal trial so far as 498A is concerned.

In quashing other charges against the women, the HC noted that other offences mentioned in the FIR might have been influenced by the so-called illicit relationship. The complaints do not mention any specific incident in connection with other charges. Hence permitting trial against them will amount to unnecessarily subjecting them to rigors of criminal prosecution, which will be counter productive.

Why India Loves Gold Bullion ?

The love of gold in India goes far beyond a simple source of future profits. It is an expression of wealth, financial security and family stability. It also carries religious overtones.

Gold remains the wealth of the wife – men only inheriting assets. It represents her and her family's financial security. It is difficult to make a distinction between investment and jewelry demand because in India, these two ideas are inseparable. Gold jewelry is usually 24-carat.

Indian households hold 18,000 tonnes of Gold Bullion. Indian gold demand has grown 25% despite a 400% Rupee price rise in the last decade. Gold demand is strong and is expected to increase 30% by 2020 – by which time cumulative annual demand for gold in India should increase to in excess of 1,200 tonnes or approximately Rs. 2.5 trillion, at current price levels.

India's rapid growth, which will have significant impact on income and savings, will lead to more gold being purchased by almost 3% per annum over the next decade. Indian growth is expected to be around 10% GDP in the next decade, which will feed through into gold demand/savings.

Because gold is more than just money, its price is irrelevant in light of its demand. This demand is limited by an individual's access to money to purchase it. Indian demand for gold will be driven (like in the last decade) by savings and real income levels, not by price. In local currency terms, Indian jewelry demand more than doubled in 2010 to Rs.1,342 billion compared to Rs. 669 billion in 2009.

Indians are savers and save a steady 30% of GDP per annum. Of these savings, 45% is stored in what the developed world considers the usual avenues of savings, while 7% goes into Gold Bullion.

That's right, seven percent of India's $265 billion in total household savings is held in gold. These habits will not likely change.

Likewise, gold will continue to be purchased in the future Indian wedding seasons. It is all part of the social fabric of India. A wedding is the social highlight of the nation and can last for days. 50% of the population is under 25, and there will be 15 million weddings per annum over the next decade. At present Gold Prices and exchange rates, this will drive around 500 tonnes per annum with a further 500 tonnes of existing gold being gifted by one family to the next, which is not recorded in recycling.

The rural agricultural sector, which accounts for 70% of the population, has been the source of 2/3 of gold demand. This brought a sense of seasonality to the gold markets…

Indian gold buying starts its year there in mid-to-late August and carries on through until May of the next year. At the beginning of June, farmers must ensure crops are in the ground and ready for the annual monsoons, or tropical rains. Harvesting takes place through August, which is when the farmers get their annual paycheck.

At the end of May, there is a drop in demand, picking up again in the middle of August. Rural demand for gold is set to grow at 5% per annum, meaning jewelry buying is expected to grow faster than when growth was only 1% per annum.

India is now experiencing the rapid growth of the Middle class and urbanization. This movement has quickened its pace in the last ten years to the extent that the U.N. believes that 41% of India's total population will be living in towns and cities by 2030 — up from the current level of 30%. More importantly, a good proportion of these will join the middle classes.

Mckinsey reports that in 2010 there were 40 million consuming households in India with an annual income of more than US$7,000. This figure is set to more than double to 94 million by 2020. The impact will be significant for gold, which will lose its seasonality and become a feature all year round – though the peak period for gold demand will continue to be from end-August through to end May, as the rural sector joins the new middle classes in buying gold and boosting demand to record highs.

Consider the belief that 'gold brings good fortune'. The performance of gold over the last decade appears to have highlighted that belief in a remarkable way.

In 2000, the Gold Price was just under $300 per ounce. It is now around $1500. Imagine you are the mother of the bride and look at your gold holdings and at today's value. Wouldn't you feel this had served your family well and must surely serve your daughters family as well? This belief will continue for generations to come and Indian demand will continue growing.

Tracking equity markets and the path of other investments alongside gold over the same period confirmed the wisdom of gold investing. Indian gold investors are far more advanced than their developed world counterparts who have not yet appreciated gold's value to the same extent.

The Indian Reserve Bank purchased 200 tonnes of Gold Bullion from the IMF in 2009, reinforcing the perception among Indian investors that gold is reliable and safe as a monetary asset. Skeptical husbands saw their wives stare at them with eyebrows raised when the announcement was made.

India joined the growing ranks of central banks recently Buying Gold as an important reserves asset. With central bank demand growing alongside retail emerging market demand, there is little likelihood of the Gold Price falling back (as if this were merely a 'bull market').

Now add to this the slow but abrasive breakdown of the developed world's currencies. You will see a surge of developed world investors running to gold and silver, to find that there will be too little supply to satisfy the world's demand.

Buying Gold? Make it safer, easier and more cost-effective with BullionVault...

Julian D.W. Phillips, 24 Jun '11

Friday, June 24, 2011

Ishrat probe should not become a mockery: HC

AHMEDABAD: Newly-appointed chairman of the special investigation team probing the Ishrat Jahan encounter, Satyapal Singh, maintained before the Gujarat high court on Friday that he was not keen to take up the job.

Irked with this response, the court warned the Centre that the investigation process should not result into a 'mockery' , and directed in clear terms, "If you cannot command your officer, change him. It seems that your officers are not in your command".

However, the court asked the SIT to continue with the probe and book all those who are guilty. Singh, who is an additional DGP from Maharashtra , told the HC that he wanted to quit the job because his batchmate P P Pandey was being investigated in the case and that he did not know Gujarati.

The court took on Singh for bypassing the amicus curaie in this case and not providing papers to the Centre . The division bench of the HC refused to believe the superficial reasons put forth by the senior cop like language barrier, Pandey being a batchmate and friend and internal differences between SIT members — Mohan Jha and Satish Verma. The court expressed surprise as to how a Mumbai policeman could not follow Gujarati. The court suggested that Pandey could be interrogated by someone else.

Singh happens to be the fourth police officer to be heading this case. Lashing out at the Centre for its noncommittal approach, the court said, "If there is no zeal to work, it is better to relieve him (Singh)". The bench asked the Centre to submit a report on July 14 on whether it would command its officer to perform his duty or come up with another officer's name to head the SIT.

The court's ire was directed to the Centre for not living up to the "assurance " it gave last time that Singh was the best option. Assistant solicitor general P S Champaneri , representing the Centre, blamed the Maharashtra government for the fiasco. He sought a week's time to seek Singh's replacement . "There is no dearth of senior IPS officers... The same thing must not happen again," the court said. The next hearing is on July 15.

Ishrat case hits roadblock, as SIT chief wants to be relieved

The fresh investigation into the Ishrat Jahan encounter case has hit yet another roadblock. On Friday, the Maharashtra cadre IPS officer, Satyapal Singh, filed an application in the Gujarat High Court seeking permission to be relieved as Chairman of the Special Investigation Team it constituted to probe the alleged fake encounter. He cited “language problem” and other issues.

A Division Bench of Justices Jayant Patel and Abhilasha Kumari asked Mr. Singh to continue till July 15. It also asked the Centre to forward another panel of IPS officers from States other than Gujarat for appointment of a new SIT Chairman. Mr. Singh is the second Chairman who wants to be relieved from the post within six months of the constitution of the SIT. It was first formed under the chairmanship of the former Joint Police Commissioner of Delhi, Karnail Singh, and with Gujarat cadre IPS officers Satish Verma and Mohan Jha to assist him.

But even before the probe got under way, differences cropped up among the three over the manner of investigation and their powers of investigation. Soon after, Mr. Karnail Singh was transferred from Delhi to Mizoram and he sought court permission to be relieved as the Mizoram government was not prepared to spare his services for the Ishrat case investigation.

In the absence of a Chairman for the SIT, the court gave Mr. Verma full powers to continue with the investigation, asking Mr. Jha to look after only administrative matters concerning the SIT. Mr. Verma, however, failed to make much headway as a bunch of police officers filed a petition in the High Court and later in the Supreme Court expressing an apprehension that he would harass them “for personal reasons” if he was allowed to continue with unbridled powers to question or arrest any police officer. Then Mr. Satyapal Singh was appointed SIT Chairman, only about a fortnight ago, from a panel of names recommended by the Centre. But soon after, the Maharashtra government reportedly raised objections with the Centre and expressed reluctance to spare Mr. Satyapal Singh for the Ishrat investigation. After much confusion, he took over chairmanship only this week his first act was to summon senior police officers, G. L. Singhal and Tarun Barot, both members of the Ahmedabad Crime Branch, who were involved in the June 2004 encounter, in which 19-year-old Ishrat and three others were killed on the outskirts of Ahmedabad.

The two officers appeared before Mr. Satyapal Singh only on Thursday even as the SIT was preparing its progress report to be submitted to the High Court.

But during Friday's hearing on the progress report, Mr. Satyapal Singh, through his advocate Mihir Thakore, submitted an application stating that as there were differences between the two other members, Mr. Verma and Mr. Jha, he was “facing embarrassment.” Moreover, he said, as the statements were recorded in Gujarati, he was finding it difficult to function as SIT Chairman and wanted to be relieved.

Court pulls up Centre
At this, Justice Patel said such excuses were unbelievable. The court also pulled up the Centre for suggesting an officer who was “soft-pedalling” the probe. It took Assistant Solicitor-General P. S. Champaneri to task for recommending Mr. Satyapal Singh's name earlier and for his assertion then that the services of the Maharashtra cadre IPS officer would be spared by his home State and he would have ample time to devote to the Ishrat case investigation.

The court allowed the Centre time to resolve the issue and, if necessary, suggest the name of another officer. The next hearing in the case, as also a decision on Mr. Satyapal Singh's request to be relieved, has been posted for July 15.

Corruption sole factor arresting progress of society: Guj HC

AHMEDABAD: Corruption was undeniably the sole factor that has effectively arrested the progress of our society, Gujarat High Court observed while rejecting bail plea of IAS officer Pradeep Sharma, arrested in connection with irregularities in land allotment for 2001 earthquake affected persons in Kutch.

"It is the rampant corruption indulged in with impunity by highly placed persons that has led to economic unrest in this country," Justice J B Pardiwala observed while rejecting Sharma's bail plea on Thursday.

"If one is asked to name one sole factor that effectively arrested the progress of our society to prosperity, undeniably it is corruption," he said.

"If the society in a developing country faces a menace greater than even the one from the hired assassins to its law and order, then that is from the corrupt elements at higher echelons of the Government and of the political parties," Justice Pardiwala observed in his order.

"Corruption has, in it, very dangerous potentialities. Corruption, a word of wide connotation has, in respect of almost all the spheres of our day to day life, all the world over, the limited meaning of allowing decisions and actions to be influenced not by the rights or wrongs of a case but by the prospects of monetary gains or other selfish considerations," he said.

Dismissal of Assistant, Sheristadar upheld

The Madras High Court has upheld the dismissal from service of an Assistant and a Sheristadar in the subordinate courts for misconduct.

A Division Bench comprising Justices Elipe Dharma Rao and M.Venugopal passed the common order on petitions by N.Raghunathan, Assistant, court of the Additional Sub Court, Salem and R.Alageswaran, Sheristadar, Chief Judicial Magistrate Court, Chief Judicial Magistrate Court, Tirunelveli.

The petitions sought to quash the orders passed in September 2005 by the High Court and to order their reinstatement with all consequential benefits.

The Bench said the dismissal could not be said to be harsh or disproportionate or excessive considering the gravity of the charges levelled against the petitioners.

The enquiry authority had rested his findings purely based on evidence of witnesses and also on documentary evidence.


Kuldip Sharma moves high court to quash complaint

AHMEDABAD: Senior IPS officer Kuldip Sharma who recently got himself deputed to Delhi, approached the Gujarat high court requesting it to quash criminal proceedings against him initiated by an Anand court on the basis of a nine-year old complaint. He also sought cancellation of the state government's permission to prosecute him alleging that chief minister Narendra Modi and his government were biased against him.

Sharma raised objections to the criminal proceeding initiated by chief judicial magistrate on grounds of delay and jurisdiction. He argued that a retired policeman Kirit Brahmbhatt, filed the complaint out of personal vengeance, since the former had put him under suspension.

Brahmbhatt approached the court nine years ago complaining that Sharma as Ahmedabad range IG had illegally ordered his arrest on October 23, 2001 causing harassment to him and his family. According to Brahmbhatt, Sharma issued orders to arrest him in connection with a complaint which police had already filed and the court had accepted a 'C' summary report.

Sharma contended that the court took cognizance of the complaint of 2002 without the state government's mandatory sanction to initiate action against a public servant under section 197 of the CrPC. The sanction was given only on March 31, 2010. In a separate petition, Sharma challenged this sanction alleging that it was passed under the authority of chief minister Modi.

Sharma argued that the government did not grant sanction for prosecution against police inspector K K Patel, who was also present when the alleged offence took place. He also alleged that the sanction has been given while considering some of the statements recorded by the CJM during the court inquiry which itself was null and void because there was no sanction.

In his petitions, Sharma informed the court that he has already written to the governor about Modi's biased attitude and requested that no matter pertaining to him be placed before the CM or his ministers. Sharma has also twice written to the chief secretary in this regard.

He has mentioned how he had to put up a legal battle against Modi's downgrading his Annual Confidential Reports. Sharma has also cited how the state government tried to revive a 26-year-old encounter case in Kutch, in which the trial was also completed years ago.

Immigration numbers plunge by almost half in two years in Australia

MELBOURNE: Australia is not wooing foreigners, including Indians, as latest official data says that the country's net migration has plunged by almost half in the last two years.

Australia's Bureau of statistics report disclosed that net migration was just 171,000 in 2010, down sharply from 316,000 in 2008 and the lowest since the bureau changed its measuring system in late 2006, according to media reports.

The report said that country's population growth fell to 325,500 in 2010, down from 467,300 in 2008.

However, in the six months to December, net migration slumped 37% year on year, from 121,500 to 77,000.

In the state of Victoria, net migration fell even more sharply.

Since 2003, Indians had been the main source of permanent settlers in Victoria. But in 2009-10, their numbers slumped 14%, and China became the state's main source of settlers.

In 2010, migration of Indians to Victoria slumped 37%, from 76,000 to 48,000, partly reflecting the impact of Indian media coverage of violence against Indian students.

Chinese (8151) and Indians (7739) easily outnumbered settlers from Britain (4282) and New Zealand (3696) in Victoria.

They were followed by Sri Lankans (2484), Filipinos (2112), Malaysians (1638), South Africans (1477) and Vietnamese (1347).

Other bureau figures show the slump in migration has continued in 2011.

The government planned for an unchanged 168,700 family and skilled migrants in 2010-11, and 13,750 humanitarian refugees, but arrivals' data shows a far different trend.

The report said the figures suggest that the anti-immigration rhetoric of the ALP and the Coalition in the 2010 election campaign has influenced either the way immigration applicants are being assessed, or overseas interest in coming in the first place, or both.

A spokeswoman for the Immigration Minister, Chris Bowen, said the sharp decline in net overseas migration reflected immigration reforms that had tackled the potential abuse of student visas and shifted the focus to high-value occupations.

Thursday, June 23, 2011



Vishram Singh Raghubanshi ...Appellant
State of U.P. ...Respondent


1. This appeal has been preferred under Section 19 of the Contempt of Courts Act, 1971, (hereinafter called the `Act 1971') arising out of impugned judgment and order dated 5.5.2006 passed by the Division Bench of the Allahabad High Court in Contempt of Court Case No. 13 of 1999.


A) Appellant is an advocate practising for last 30 years in the District Court, Etawah (U.P.). On 25.7.1998, he produced one Om Prakash for the purpose of surrender, impersonating him as Ram Kishan S/o Ashrafi Lal who was wanted in a criminal case in the court of IInd ACJM, Etawah. There was some controversy regarding the genuineness of the person who came to surrender and therefore, the Presiding Officer of the Court raised certain issues. So, the appellant misbehaved with the said officer in the court and used abusive language. B) The Presiding Officer of the court vide letter dated 28.9.1998 made a complaint against the appellant to the U.P. Bar Council and vide letter dated 27.10.1998 made a reference to the High Court for initiating contempt proceedings under Section 15 of the Act, 1971 against him. The High Court considered the matter and issued show cause notice on 5.5.1999 to the appellant. In response to the said notice, the appellant submitted his reply dated 24.5.1999, denying the allegations made against him, but, tendering an apology in the form of an affidavit stating that he was keeping the court in the highest esteem. C) The Bar Council of U.P. dismissed the complaint referred by the Presiding Officer vide order dated 18.3.2001, but the Allahabad High Court did not consider it proper to accept the explanation submitted by the appellant or accept the apology tendered by him, rather, it framed the charges against the appellant on 27.9.2004. In 2 response to the same, the appellant again submitted an affidavit dated 18.10.2005 tendering an apology similar to one in the affidavit filed earlier. D) The Division Bench of Allahabad High Court considered the matter on judicial side, giving full opportunity to the appellant to defend himself. The High Court ultimately held the appellant guilty of committing the contempt and sentenced him to undergo 3 months simple imprisonment with a fine of Rs.2,000/-. Hence this appeal.

3. This Court vide order dated 26.6.2006 suspended the operation of sentence and directed the appellant to deposit the fine of Rs. 2,000/- in this Court, which seems to have been deposited.

4. Shri Sanjeev Bhatnagar, learned counsel appearing for the appellant, has submitted that he would not be in a position to defend the contemptuous behaviour of the appellant but insisted that the appellant is aged and ailing person and had tendered absolute and unconditional apologies several times. Thus, the apology may be accepted and the sentence of three months simple imprisonment be quashed. 3

5. On the contrary, Shri R.K. Gupta, learned counsel appearing for the respondent, has vehemently opposed the prayer made by Shri Bhatnagar and contended that the appellant does not deserve any lenient treatment considering the language used by him to the Presiding Officer of the court and such a person does not deserve to remain in a noble profession. He further contended that the apology has not been tendered at the initial stage. The first apology was tendered only after receiving show cause notice dated 5.5.1999 from the High Court and under the pressure. More so, the language of the apology is not such which shows any kind of remorse by the appellant, thus, considering the gravity of the misbehaviour of the appellant, no interference is wanted. Therefore, the appeal is liable to be rejected.

6. We have considered the rival contentions made by learned counsel for the parties and perused the record.

7. Admittedly, the case of impersonification of the person to be surrendered is a serious one, however we are not concerned as to whether the appellant had any role in such impersonification, but being an officer of the court, if any issue had been raised in this regard either by the court or opposite counsel, it was the duty of the appellant 4 to satisfy the Court and establish the identity of the person concerned. The conduct of the appellant seems to have been in complete violation and in contravention of the "standard of professional conduct and etiquette" laid in Section 1 of Chapter 2 (Part-VI) of the Bar Council of India Rules which, inter-alia, provides that an advocate shall maintain towards the court a respectful attitude and protect the dignity of the judicial office. He shall use his best efforts to restrain and prevent his client from resorting to unfair practices etc. The advocate would conduct himself with dignity and self respect in the court etc. etc. There may be a case, where a person is really aggrieved of misbehaviour/conduct or bias of a judicial officer. He definitely has a right to raise his grievance, but it should be before the appropriate forum and by resorting to the procedure prescribed for it. Under no circumstances, such a person can be permitted to become the law unto himself and proceed in a manner he wishes, for the reason that it would render the very existence of the system of administration of justice at a stake. 5

8. Before proceeding further with the case, it may be necessary to make reference to certain parts of the complaint lodged by the Presiding Officer to the High Court against the appellant: (i) During the course of cross examination in a criminal case on 22.8.1998, the appellant was advised that he should ask questions peacefully to the witness on which the appellant stepped over dias of the court and tried to snatch the paper of statement from him and started abusing him that "Madarchod, Bahanchod, make reference of contempt to the High Court" and stepped out, abusing similarly from the court room. (ii) In another incident on 25.7.1998, three accused persons namely, Ram Krishan, Ram Babu and Rampal surrendered before the court and filed an application no. 57Kha for cancellation for non-bailable warrants, and the whole proceeding was completed by him. Aforesaid three accused persons, namely, Ram Krishan and Ram Babu were real brothers and sons of Ashrafi Lal. On 30.7.1998 order was passed to release them on bail but before they could be released, it came to the knowledge of the court that right accused Ram Krishan son of Ashrafi Lal had surrendered and sent to jail. This fact was brought before the court by the mother of the person Om Prakash who was actually sent to jail on 1.8.1998, of which enquiry was done and after summoning from jail the person in the name of Ram Krishan stated in the court that his name was Om Prakash, son of Sh. Krishan Jatav. The complainant Bhaidayal was also summoned who also verified the above fact. Thereafter, an inquiry was conducted 6 by the Presiding Officer who found the involvement of the appellant in the above case of impersonification.

9. The High Court examined the complaint and the reply submitted by the appellant to show cause notice issued by the High Court. The High Court did not find the explanation worth acceptable and, thus, vide order dated 27.9.2004, framed charges against the appellant in respect of those allegations dated 22.8.1998 and 25.7.1998 respectively.

10. It is not the case of the appellant that he was not given full opportunity to defend himself or lead evidence in support of his case. The appellant has not chosen to defend himself on merit before the High Court, rather he merely tendered apology thrice. Even before us, Shri Sanjeev Bhatnagar, learned counsel for the appellant, has fairly conceded that the appellant had been insisting from the beginning to accept his apology and let him off. Mr. Bhatnagar's case has been that in the facts and circumstances of the case, particularly considering the age and ailment of the appellant, apology should be accepted and sentence of three months simple imprisonment be set aside. 7

11. It is settled principles of law that it is the seriousness of the irresponsible acts of the contemnor and degree of harm caused to the administration of justice, which would decisively determine whether the matter should be tried as a criminal contempt or not. (Vide: The Aligarh Municipal Board & Ors. v. Ekka Tonga Mazdoor Union & Ors., AIR 1970 SC 1767).

12. The court has to examine whether the wrong is done to the judge personally or it is done to the public. The act will be an injury to the public if it tends to create an apprehension in the minds of the people regarding the integrity, ability or fairness of the judge or to deter actual and prospective litigants from placing complete reliance upon the court's administration of justice or if it is likely to cause embarrassment in the mind of the judge himself in the discharge of his judicial duties. (See: Brahma Prakash Sharma & Ors. v. The State of U.P.[1953] INSC 41; , AIR 1954 SC 10; and Perspective Publications (P.) Ltd. & Anr. v. The State of Maharashtra, AIR 1971 SC 221).

13. In the case of Delhi Judicial Service Association v. State of Gujarat & Ors.[1991] INSC 229; , AIR 1991 SC 2176, this Court held that the power to punish for contempt is vested in the judges not for their personal protection only, but for the protection of public justice, whose interest 8 requires that decency and decorum is preserved in courts of justice. Those who have to discharge duty in a Court of Justice are protected by the law, and shielded in the discharge of their duties; any deliberate interference with the discharge of such duties either in court or outside the court by attacking the presiding officers of the court would amount to criminal contempt and the courts must take serious cognizance of such conduct.

14. In E.M.Sankaran Namboodiripad v. T.Narayanan Nambiar, [1970] INSC 147; AIR 1970 SC 2015, this Court observed that contempt of court has various kinds, e.g. insult to Judges; attacks upon them; comment on pending proceedings with a tendency to prejudice fair trial; obstruction to officers of Courts, witnesses or the parties; scandalising the Judges or the courts; conduct of a person which tends to bring the authority and administration of the law into disrespect or disregard. Such acts bring the court into disrepute or disrespect or which offend its dignity, affront its majesty or challenge its authority. In a given case, such a conduct be committed "in respect of the whole of the judiciary or judicial system". The court rejected the argument that in particular circumstances conduct of the alleged contemnor may be protected by Article 19(1)(a) of the Constitution i.e. right to freedom of speech and 9 expression, observing that the words of the second clause, of the same provision bring any existing law into operation, thus provisions of the Act 1971 would come into play and each case is to be examined on its own facts and the decision must be reached in the context of what was done or said.

15. Thus, it is apparent that the contempt jurisdiction is to uphold majesty and dignity of the law courts and the image of such majesty in the minds of the public cannot be allowed to be distorted. Any action taken on contempt or punishment enforced is aimed at protection of the freedom of individuals and orderly and equal administration of laws and not for the purpose of providing immunity from criticism to the judges. The superior courts have a duty to protect the reputation of judicial officers of subordinate courts, taking note of the growing tendency of maligning the reputation of judicial officers by unscrupulous practising advocates who either fail to secure desired orders or do not succeed in browbeating for achieving ulterior purpose. Such an issue touches upon the independence of not only the judicial officers but brings the question of protecting the reputation of the Institution as a whole. 10

16. The dangerous trend of making false allegations against judicial officers and humiliating them requires to be curbed with heavy hands, otherwise the judicial system itself would collapse. The Bench and the Bar have to avoid unwarranted situations on trivial issues that hamper the cause of justice and are in the interest of none. "Liberty of free expression is not to be confounded or confused with license to make unfounded allegations against any institution, much less the Judiciary". A lawyer cannot be a mere mouthpiece of his client and cannot associate himself with his client maligning the reputation of judicial officers merely because his client failed to secure the desired order from the said officer. A deliberate attempt to scandalise the court which would shake the confidence of the litigating public in the system, would cause a very serious damage to the Institution of judiciary. An Advocate in a profession should be diligent and his conduct should also be diligent and conform to the requirements of the law by which an Advocate plays a vital role in the preservation of society and justice system. Any violation of the principles of professional ethics by an Advocate is unfortunate and unacceptable. (Vide: O.P. Sharma & Ors. v. High Court of Punjab & Haryana, (2011) 5 SCALE 518). 11

17. This Court in M.B. Sanghi v. High Court of Punjab & Haryana & Ors.[1991] INSC 168; , (1991) 3 SCC 600, observed as under: "The foundation of our system which is based on the independence and impartiality of those who man it will be shaken if disparaging and derogatory remarks are made against the presiding judicial officer with impunity....It is high time that we realise that much cherished judicial independence has to be protected not only from the executive or the legislature but also from those who are an integral part of the system. An independent judiciary is of vital importance to any free society".

18. This leads us to the question as to whether the facts and circumstances referred hereinabove warrant acceptance of apology tendered by the appellant. The famous humorist P.G. Wodehouse in his work "The Man Upstairs (1914)" described apology :

"The right sort of people do not want apologies, and the wrong sort take a mean advantage of them."

The apology means a regretful acknowledge or excuse for failure. An explanation offered to a person affected by one's action that no offence was intended, coupled with the expression of regret for any that may have been given. Apology should be unquestionable in sincerity. It should be tempered with a sense of 12 genuine remorse and repentance, and not a calculated strategy to avoid punishment

19. Clause 1 of Section 12 and Explanation attached thereto enables the court to remit the punishment awarded for committing the contempt of court on apology being made to the satisfaction of the court. However, an apology should not be rejected merely on the ground that it is qualified or tempered at a belated stage if the accused makes it bona fide. There can be cases where the wisdom of rendering an apology dawns only at a later stage.

20. Undoubtedly, an apology cannot be a defence, a justification, or an appropriate punishment for an act which is in contempt of court. An apology can be accepted in case the conduct for which the apology is given is such that it can be "ignored without compromising the dignity of the court", or it is intended to be the evidence of real contrition. It should be sincere. Apology cannot be accepted in case it is hollow; there is no remorse; no regret; no repentance, or if it is only a device to escape the rigour of the law. Such an apology can merely be termed as paper apology. 13

21. In Re: Bal Thackeray, Editor Samna, (1998) 8 SCC 660, this Court accepted the apology tendered by the contemnor as the Court came to conclusion that apology was unconditional and it gave an expression of regret and realisation that mistake was genuine.

22. In L.D. Jaikwal v. State of U.P., [1984] INSC 109; AIR 1984 SC 1374, the court noted that it cannot subscribe to the 'slap-say sorry- and forget' school of thought in administration of contempt jurisprudence. Saying 'sorry' does not make the slapper poorer. (See also: T.N. Godavarman Thirumulpad v. Ashok Khot & Anr., AIR 2006 SC 2007) So an apology should not be paper apology and expression of sorrow should come from the heart and not from the pen; for it is one thing to 'say' sorry-it is another to 'feel' sorry.

23. An apology for criminal contempt of court must be offered at the earliest since a belated apology hardly shows the "contrition which is the essence of the purging of a contempt". However, even if the apology is not belated but the court finds it to be without real contrition and remorse, and finds that it was merely tendered as a weapon of defence, the Court may refuse to accept it. If the apology is offered at the time when the contemnor finds that the court is going 14 to impose punishment, it ceases to be an apology and becomes an act of a cringing coward. (Vide : Mulkh Raj v. The State of Punjab, AIR 1972 SC 1197; The Secretary, Hailakandi Bar Association v. State of Assam & Anr.[1996] INSC 711; , AIR 1996 SC 1925; C. Elumalai and Ors. v. A.G.L. Irudayaraj and Anr., AIR 2009 SC 2214; and Ranveer Yadav v. State of Bihar, (2010) 11 SCC 493).

24. In Debabrata Bandopadhyay & Ors. v. The State of West Bengal & Anr.[1968] INSC 148; , AIR 1969 SC 189, this Court while dealing with a similar issue observed as under: ".....Of course, an apology must be offered and that too clearly and at the earliest opportunity. A person who offers a belated apology runs the risk that it may not be accepted for such an apology hardly shows the contrition which is the essence of the purging of a contempt. However, a man may have the courage of his convictions and may stake his on proving that he is not in contempt and may take the risk. In the present case the appellants ran the gauntlet of such risk and may be said to have fairly succeeded."

25. This Court has clearly laid down that apology tendered is not to be accepted as a matter of course and the Court is not bound to accept the same. The court is competent to reject the apology and impose the punishment recording reasons for the same. The use of insulting language does not absolve the contemnor on any count whatsoever. If 15 the words are calculated and clearly intended to cause any insult, an apology if tendered and lack penitence, regret or contrition, does not deserve to be accepted. (Vide: Shri Baradakanta Mishra v. Registrar of Orissa High Court & Anr.[1973] INSC 210; , AIR 1974 SC 710; The Bar Council of Maharashtra v. M.V. Dabholkar etc., AIR 1976 SC 242; Asharam M. Jain v. A.T. Gupta & Ors., AIR 1983 SC 1151; Mohd. Zahir Khan v. Vijai Singh & Ors., AIR 1992 SC 642; In Re: Sanjiv Datta[1995] INSC 227; , (1995) 3 SCC 619; and Patel Rajnikant Dhulabhai & Ors. v. Patel Chandrakant Dhulabhai & Ors., AIR 2008 SC 3016).

26. In the instant case, the appellant has tendered the apology on 24.5.1999 after receiving the show cause notice from the High Court as to why the proceedings for criminal contempt be not initiated against him. It may be necessary to make the reference to the said apology, the relevant part of which reads as under: "That from the above facts, it is evident that the deponent has not shown any dis-regard nor abused the Presiding Officer, learned Magistrate and so far as allegations against him regarding surrender of Om Prakash is the name of Ram Kishan are concerned, the deponent has no knowledge regarding fraud committed by Asharfi Lal in connivance with others and deponent cannot be blamed for any fraudulent act.

That notwithstanding mentioned in this affidavit, the deponent tenders unconditional apology to Mr. S.C. 16 Jain, IInd Addl. Chief Judicial Magistrate, Etawah if for any conduct of the deponent the feelings of Mr. S.C. Jain are hurt. The deponent shall do everything and protect the dignity of judiciary. (Emphasis added)

27. On 24.11.2005, the appellant has submitted an affidavit saying as under: "That the deponent expresses his unqualified remorse for the incident giving rise to the present contempt application. The deponent tenders his unconditional apology to this Hon'ble Court and to Shri Suresh Chandra Jain, the then A.C.J.M.-2 Etawah for the entire incident without any qualification or pre-condition. The deponent gives the following solemn undertaking that no such incident would occur in future. The deponent has immense respect for this Hon'ble Court and all other Courts of Law in the land.

The deponent also expresses bona fide, genuine and heart-felt regret for the occurrence which the deponent consider a blot on him".

28. The High Court considered the case elaborately examining every issue microscopically and held that there was no reason to disbelieve the facts stated by the judicial officer against the contemnor/appellant, the facts were acceptable, and it was clearly proved that the contemnor was guilty of gross criminal contempt. The charges levelled against the appellant stood proved. A Judge has to discharge his duty and passes order in the manner as he thinks fit to the best of his capability under the facts and circumstances of the case 17 before him. No litigant, far less an advocate, has any right to take the law in his own hands. The contemnor abused the Judge in most filthy words unworthy of mouthing by an ordinary person and that is true without any justification for him ascending the dais during the course of the proceedings and then abusing the judicial officer in the words "Maaderchod, Bahanchod, High Court Ko Contempt Refer Kar". The courts certainly cannot be intimidated to seek the favourable orders. The appellant intimidated the presiding officer of the court hurling filthiest abuses and lowered the authority of the Court, which is tantamount to interfere with the due course of judicial proceedings. The charge which stood proved against the appellant could not be taken lightly and in such a fact-situation the apology tendered by him, being not bona fide, was not acceptable.

29. We have considered the facts and circumstances of the case. The show cause notice was given by the High Court on 5.5.1999. The appellant submitted his reply on 24.5.1999. The charges were framed against him on 27.9.2004 and in his first affidavit dated 18.10.2005, the appellant had denied all the allegations made against him. The so- called apology contained ifs and buts. Appellant is not even sure as to whether he has committed the criminal contempt of the court or 18 whether the most filthy abuses could hurt the Presiding Officer. Appellant has been of the view that the Officer was a robot and has no heart at all, thus incapable of having the feelings of being hurt.

The appellant filed second affidavit dated 24.11.2005 tendering apology. The apology has been tendered under pressure only after framing of the charges by the High Court in the Criminal Contempt when appellant realised that he could be punished. The apology was not tendered at the earliest opportunity, rather tendered belatedly just to escape the punishment for the grossest criminal contempt committed by him. The language used by the Advocate for a judicial officer where he practices regularly and earns his livelihood is such that any apology would fall short to meet the requirement of the statutory provisions. There has been no repent or remorse on the part of the appellant at an initial stage. Had it been so, instead of making grossest and scandalous allegations against the judicial officer, writing complaint against him to the Administrative Judge in the High Court of Allahabad, the appellant could have gone to the concerned judicial officer and tendered apology in open court. The appellant instead of yielding to the court honestly and unconditionally, advanced a well guarded defence by referring to all 19 the facts that led to the incident. Apology tendered by the appellant gives an impression that the same was in the alternative and not a complete surrender before the law. Such attitude has a direct impact on the court's independence, dignity and decorum. In order to protect the administration of public justice, we must take action as his conduct and utterances cannot be ignored or pardoned. The appellant had no business to overawe the court. Thus, we are of the view that the apology tendered by the appellant had neither been sincere nor bona fide and thus, not worth acceptance.

30. The appeal lacks merit and is, accordingly, dismissed. A copy of the judgment and order be sent to the Chief Judicial Magistrate, Etawah, for taking the appellant into custody and send him to the jail to serve out the sentence.


SK. YUSUF v. STATE OF WEST BENGAL [2011] INSC 531 (14 June 2011)


SK. Yusuf ...Appellant
State of West Bengal ...Respondent


1. This criminal appeal has been preferred against the judgment and order dated 28.06.2006 passed by the High Court of Calcutta in C.R.A.No. 229 of 2000, by which it dismissed the appeal of the appellant against the judgment and order of conviction dated 26.5.2000 passed by the Additional Sessions Judge, First Court, Burdwan in Sessions Trial No. 7 of 1999, convicting the appellant under Sections 302 and 201 of the Indian Penal code, 1860 (hereinafter referred to as `IPC') and appellant has been imposed the sentence to suffer rigorous imprisonment for life under Section 302 IPC and sentence of one year under Section 201 IPC. Both the sentences have been directed to run concurrently. 2. The facts and circumstances giving rise to this case are that:

(A) On 31.08.1991, Sahanara Khatun, daughter of Abdul Rajak, resident of village Batrish Bigha, PS: Jamalpur, aged 13 years, had gone to pluck jhinga at about 9.30 A.M. from her jhinga field. She did not return till 10.30 A.M., her father Abdul Rajak alongwith Habibur Rahaman and Sirajul Islam went to search her, however, could not trace her in the jhinga field. They looked for her in bamboo grove in nearby graveyard and found a freshly dug earth, thus, they removed the soil and found the dead body of Sahanara Khatun. (B) Imdad Ali (PW.1) lodged the FIR on the same day at 12.05 hours under Sections 302 and 201 IPC at Police Station Jamalpur, District Burdwan at a distance of 8 kilometres from the place of occurrence, wherein the appellant was named as accused on the suspicion that appellant was seen by Abdul Rashid (PW.5) and Swapan Murmu catching fish in the canal adjoining his jhinga field and was also seen talking with deceased. The appellant was having a spade in his hand, when it is inquired from the appellant, he replied that he had gone to catch the fish near railway track. Subsequently, 2 the appellant absconded. In the FIR, it had already been mentioned before committing the murder, Yusuf, the appellant tried to commit rape and on being resisted by the deceased, the appellant assaulted her on her head with spade and murdered and buried her in the graveyard. Thus, investigation ensued. The appellant was arrested on 7.9.1991 by the villagers in the paddy fields near Batrish Bigha and handed over to the police. It was on his disclosure that an old spade, one ghuni and one enamel thala (plate) were recovered. After completing the investigation, chargesheet was filed against the appellant. He denied his involvement in the crime pleading not guilty. Thus, he was put to trial. The prosecution examined 19 witnesses to prove its case. (C) After conclusion of the trial, the Additional Sessions Judge, Burdwan, vide judgment and order dated 26.5.2000 found the appellant guilty of offences punishable under Sections 302 and 201 IPC and sentenced him to life imprisonment and fine of Rs.1,000/- under Section 302 IPC and further sentenced to one year rigorous imprisonment and fine of Rs.500/- under Section 201 IPC. (D) Being aggrieved from the aforesaid judgment, the appellant preferred Criminal Appeal No. 229 of 2000 in the High Court of Calcutta which has been dismissed vide judgment and order dated 28.6.2006. Hence, this appeal. 3

3. Shri R.K. Gupta, learned Amicus Curiae, has submitted that it is a case of circumstantial evidence. There is no evidence on record that Sahanara Khatun, deceased, was seen with the appellant at the place of occurrence. The spade recovered by the Investigating Officer during investigation had not been sent for chemical analysis. The trial court as well as the High Court placed a very heavy reliance upon extra-judicial confession allegedly made by the appellant before Nurul Islam (PW.11) and Ali Hossain (PW.13) and others though there was no such confession. Nurul Islam is the brother-in-law of Abdul Rajak (PW.2), father of the deceased. Ali Hossain (PW.13) is a resident of the village of Nurul Islam (PW.11). He did not support the version of extra-judicial confession put forward by Nurul Islam (PW.11). There are contradictory statements regarding catching hold of the appellant at Jamalpur after one week of the incidence. There is no evidence of sexual assault on the deceased. Dr. Samudra Chakraborty (PW.18), who conducted the post-mortem on the body of Sahanara Khatun (deceased) did not mention in his report that any sexual assault was made on the deceased prior to her death. Thus, the appeal deserves to be allowed. 4

4. On the contrary, Shri Tara Chandra Sharma, learned counsel appearing for the State, has vehemently opposed the appeal contending that there are concurrent findings of fact which do not require any interference by this Court. Undoubtedly, the case is based on circumstantial evidence but chain is complete and the circumstantial evidence is so strong that it unmistakably points to the guilt of the appellant and that circumstances are incapable of explanation upon any other reasonable hypothesis that of the guilt of the appellant. There have been sufficient material on the basis of which the two courts below have convicted the appellant and the said judgments do not require any interference. The appeal lacks merit and is liable to be dismissed.

5. We have considered the submissions made by the learned counsel for the parties and perused the record. Before proceeding further, it may be necessary to refer to the findings recorded by the courts below briefly.

6. Trial Court's findings:

I. It appears from the evidence of Nurul Islam (PW.11) and Ali Hossain (PW.13) that the accused made an extra-judicial confession before them and also before other villagers when he was caught by 5 them about 7 days after his leaving away from his village after the date of occurrence. The court further held that there was no direct evidence and it was a case of circumstantial evidence and there was enough evidence on record, particularly, of Imdad Ali (PW.1), Abdul Rajak (PW.2), Habibar Rahaman (PW.3), Abdul Majid Mallick (PW.4), Abdul Rashid (PW.5), Alirul Rahmal (PW.6) and Abdul Salam Mallick (PW.7) that accused was present near the place of occurrence at the relevant time when Sahanara Khatun, deceased went to jhinga field and the accused was carrying at that time one spade. II. It appears from the evidence of Abdul Rashid (PW.5) and Alirul Rahmal (PW.6) that there was no one else at the place of occurrence adjacent to jhinga field and the accused was carrying one spade on the basis of which the trial Court came to the following conclusion: "So there may be a reasonable inference that the accused, who had one spade in his hand and who was engaged in catching fish near the P.O., suddenly attacked the victim- Sahanara when she came to the jhinga field and thereafter attempted to rape her and when he was resisted by her he became violent and murdered Sahanara with the help of his spade. The medical evidence given by Dr. Samudra Chakraborty (PW.18) will corroborate that Sahanara was murdered by Yusuf with a sharp-cutting weapon, which may be a spade and also by suffocation. The accused only had the opportunity to assault Sahanara in such a way as he carried the spade with him at that time and there is no 6 evidence from any side that except the accused such a spade was carried at that time by anybody else. Moreover, the accused himself had admitted in his extra-judicial confession before Nurul Islam (PW.11) and Ali Hossain (PW.13) and others that he murdered Sahanara at the relevant time when he was resisted by her from committing rape upon her at the relevant time". III. Extra-judicial confession came from the mouth of the witnesses who appeared to be unbiased and not even remotely inimical to the accused. Undoubtedly, Nurul Islam (PW.11) was a maternal uncle of the deceased but another witness in this regard i.e. Habibar Rahaman (PW.3) had no relationship with the family of the victim. Therefore, his evidence to the extent of extra-judicial confession would be legally and validly taken into consideration. The trial Court basically found the incriminating circumstance against the appellant as he is absconding and ultimately it found that there was cogent evidence against the appellant. 7. High Court's findings:

The High Court has accepted the judgment of the trial Court in toto observing that depositions of the witnesses, particularly, Abdul Majid Mallick (PW.4) and Abdul Rashid (PW.5) remained unshaken to the extent that at the material time they found the accused near the place of graveyard with spade in his hand. Another circumstance 7 which swayed with the High Court had been that just after the incident the appellant ran away. The High Court has accepted non- examination of some material witnesses, particularly, Swapan Murmu, Rejaul and Sirajul, accepting the explanation furnished by Abdul Majid Mallick (PW.4) that at the relevant point of leading evidence, none of these persons was available in that area. The extra-judicial confession made by the appellant-accused before Nurul Islam (PW.11) and Ali Hossain (PW.13) in presence of others has also been accepted. Further, the High Court had accepted the explanation furnished by the prosecution that in case there has been some laches on the part of the Investigating Officer in sending the spade etc. for chemical analysis, no adverse presumption can be drawn against the prosecution. The motive had been found as to the possibility of the accused trying to commit sexual assault. All these factors had been found by the High Court of the conclusive nature as to exclude every other possibility except the accused being guilty of the offence.

8. The case requires to be examined as to whether the aforesaid findings are sustainable in the eyes of law.



9. The courts below have concluded that there was sufficient material on record to show that the deceased and the appellant were seen together at the place of occurrence. Abdul Rashid (PW.5) is alleged to have stated in this regard. The relevant part of his statement reads as under:

"When I was returning from my field at 9.00 A.M., I saw Yusuf, appellant, catching fish near the jhinga field adjacent to the graveyard. I talked with him there and thereafter returned home. I did not see anybody else near that place. At about 10.45 A.M., I heard that the dead body of the Sahanara Khatun was recovered from the graveyard as she had been murdered by someone. I went to graveyard alongwith others. When the police officer asked me as to who was the person, I told him that I saw Yusuf, appellant, catching fish in a nala near the graveyard."(Emphasis added) 10. Another star witness Abdul Majid Mallick (PW.4) stated :

"I alongwith Rezwan Ali went to the house of Yusuf, appellant. We saw at the time that Yusuf, appellant, was going to his house with a spade and thala. Yusuf, appellant reported to us that he went to catch fish beside the nala. Rasid and Swapan firmly stated that they saw Yusuf, near the jhinga field. I again went to the house of Yusuf, and saw he fled away. Therefore, we could not apprehend Yusuf, in our village."

11. Abdul Majid Mallick (PW.4), a resident of the same village deposed that alongwith other persons particularly Rezwan Ali, he went to the house of Yusuf, appellant, and saw that he was going to 9 his house with a spade and thala and Yusuf had told them that he had gone to catch fish beside the nala. He stated as under:

"I do not know as to why Sahanara Khatun was murdered. Swapan Murmu is not a resident of our village. I cannot say where he is now residing. Rejowan Ali is an ailing person. Sirajul is now residing in Punjab. I saw Yusuf coming to his house carrying spade and a plate in his hand. I heard from Rashid and Swapan that they had seen the accused near the place of occurrence."

12. Imdad Ali (PW.1), informant has deposed that Abdul Rashid (PW.5) and Swapan Murmu (not examined) saw that Yusuf was talking with the deceased, Sahanara Khatun. Abdul Rajak (PW.2), father of the deceased had deposed as under: "I came to know that Yusuf murdered my daughter ...

I cannot say what was the reason for murder of my daughter".

13. The persons particularly Rezwan Ali and Sirajul who had told these witnesses that they had seen the appellant-accused near the jhinga field at the relevant time had not been examined. More so, it has not been stated by any of the aforesaid witnesses or persons not examined that Sahanara Khatun (deceased) was also seen there alongwith Yusuf, appellant. It has not been deposed by any of the witnesses that deceased was seen talking with the appellant at all. 10

14. The last seen theory comes into play where the time gap between the point of time when the accused and deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. (Vide: Mohd. Azad alias Samin v. State of West Bengal, (2008) 15 SCC 449; and State thr. Central Bureau of Investigation v. Mahender Singh Dahiya, (2011) 3 SCC 109).

15. From the above, it is evident that neither Abdul Majid Mallick (PW.4) nor Abdul Rashid (PW.5) had stated that either of them had seen Sahanara Khatun (deceased) alongwith Yusuf, near the place of occurrence in close proximity of time. All the witnesses deposed that appellant alone was seen near the place of occurrence with spade as he had gone there for catching the fish. Thus, there is no evidence to the extent that the deceased and appellant were seen together at the place of occurrence or nearby the same in close proximity of time.

16. While the appellant-accused was examined by the trial Court under Section 313 of Code of Criminal Procedure, 1973 (hereinafter called as Cr.P.C.), he was asked the question that during that time Abdul Rashid (PW.5) and Swapan Murmu (not examined) had seen 11 him talking with the deceased. The appellant replied that he was innocent.

17. We fail to understand as no witness had deposed seeing Sahanara Khatun, deceased talking with the appellant/accused, how such a question could be put to the accused.


18. Nurul Islam (PW.11), maternal uncle of the deceased, resident of village Rupsona, is not a witness of incident, rather deposed that he was the person who chased and apprehended the appellant after about 7 days of the incident. The relevant part of his statement reads as under:

"After 6-7 days, when I went to Shyamsundar Bazar for my business, I saw Yusuf on the roof of a bus. He got down from the bus after seeing me. He told me that he did the wrong and begged apology for that and pleaded not to assault him but take him to Jamalpur Police Station. I took Yusuf towards Batrish Bigha village by boat and when we crossed the river Damodar, Yusuf started running. I chased him but failed to catch him and then cried for help. Thereafter, public caught Yusuf at Jamalpur Poolmatha. When we took him to the village, Yusuf admitted to him and others that he murdered Sahanara Khatun and, thereafter, he asked the persons to take him to Jamalpur Police Station. Yusuf told them that he attempted to commit rape upon Sahanara Khatun and when she resisted, he assaulted her with the spade on her head and killed her and concealed the dead body in the graveyard". (Emphasis added) 12 In his cross-examination, PW.11 repeated the same about the confession made by Yusuf, appellant before him in presence of other persons of the village.

19. Ali Hossain (PW.13) is a resident of the village of Nurul Islam (PW.11) and deposed :

"......I went to Shyamsundar Bazar for purchasing goats. At that time, we see the accused on the roof of a bus. My friend Nurul Islam who was with me asked the accused to come down and he came down from the roof of the bus and requested us not to assault him and to take him at the Police Station Jamalpur and thereafter Nurul Islam took the accused towards Jamapur Police Station."

In the cross examination, his deposition is as under:

"I did not state to I.O. that after crossing the river at Karalaghat the accused ran towards Jamalpur. I did not chase the accused by crying - catch, catch. I did not state to I.O. that some persons of Jamalpur caught the accused. .... I alone went to Shyamsundar Bazar. Thereafter I purchased goats from Shyamsundar Bazar. I cannot say anything more about the occurrence."

20. By comparison of the statements of Nurul Islam (PW.11) and Ali Hossain, (PW.13), it is evident that Nurul Islam (PW.11) did not state anywhere in his statement in the court that at the time of apprehending the accused, Ali Hossian (PW.13) was also with him. It 13 is only Ali Hossain (PW.13) who stated that his friend Nurul Islam (PW.11) was with him. He further stated that it was Nurul Islam who asked the accused to come down from the roof of the bus and the accused came down. The statement of Nurul Islam (PW.11) is otherwise that he saw Yusuf, appellant, on the roof of the bus. Yusuf, appellant, got down from the bus after seeing him and told him that he did the wrong and begged apology for that. Ali Hossain (PW.13) did not speak anywhere regarding any confession, though stated that the accused requested them not to assault, rather to take him to police station. The material contradictions are there in respect of the manner in which the appellant had been apprehended. Ali Hossain (PW.13) did not state that appellant made an attempt to runaway after making the said witness.

21. Digambar Mondal (PW.19), the Investigating Officer has deposed that he had noticed the marks of injury on the cheek, forehead and head of the deceased. The wearing apparels of the victim were not soaked with blood. He only sent the wearing pant of the victim for chemical examination. He seized spade but did not sent it for chemical analysis. In his cross-examination he has stated as under: "The witness Nurul Islam stated to me that the accused was caught by some persons at Jamalpur Pool- 14 matha and thereafter police came and at that time the accused stated before those persons and police that he tried to commit rape Sahanara on 31.8.1998 and when she resisted the accused hit her with a spade and thereafter hid her body in the court-yard by digging some earth there". (Emphasis added)

22. Both, Nurul Islam (PW.11) and Ali Hossain (PW.13) are chance witnesses as they alleged to be in Shyamsundar Bazar on that date for marketing and none of them had regular business in that bazar. The Court while dealing with a circumstance of extra-judicial confession must keep in mind that it is a very weak type of evidence and require appreciation with great caution. Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witness must be clear, unambiguous and clearly convey that accused is the perpetrator of the crime. The "extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility". (See: State of Rajasthan v. Raja Ram, (2003) 8 SCC 180; and Kulvinder Singh & Anr. v. State of Haryana, (2011) 5 SCC 258).

23. Nurul Islam (PW.11) who is maternal uncle of the deceased had deposed about extra-judicial confession made by the accused in presence of others, though he was not able to explain who were the 15 other persons as no other person has been examined in this respect. Digambar Mondal (PW.19) had deposed that Nurul Islam (PW.11) had told him about the confession by the accused in presence of other persons and police personnel. The accused had told him also that dead body was buried in the courtyard. Thus, the theory of extra-judicial confession revealed by Nurul Islam (PW.11) does not get corroboration from the statement of Ali Hossain (PW.13) or any other independent witness or police personnel. Nor the body of the deceased was recovered from the courtyard. While considering the material contradictions in the statement of Nurul Islam (PW.11) and Ali Hossain (PW.13), we do not consider that it would be safe to accept his version in this respect.

24. Dr. Samudra Chakraborty (PW.18), who conducted the autopsy on the body of Sahanara Khatun found the following injuries:

i) One incised wound 4" x 0.2" x scalp deep over middle 3rd of left parietal region (vault of the scalp) cutting through the skin, pussa, muscle, vessel and nerve and being placed 1.2" left on mid-line of the body;

ii) Bruises over 1" x 0.6" x over left side of forehead and being placed 0.5" left of mid-line of the body;

16 iii) One lacerated wound 0.6" x 0.4" muscle and bone deep over left molar region with extra-vesation of blood and blood-clot in around the wound;

iv) Haema toma (red) 3.2" x 1.5" in area over left temporal parietal region;

v) Subdural haemorrhage of both sides of tempero parietal region of the brain. In the opinion of the doctor, death was due to combine effect of injuries and suffocation. The incised wound could be caused by a hit of sharp edge of the spade. The haema toma on the victim could be caused by a hit of heavy blunt weapon. This witness did not speak of any sign of sexual assault on the deceased before or after her death. ABSCONDANCE:

25. Both the courts below have considered the circumstance of abscondance of the appellant as a circumstance on the basis of which an adverse inference could be drawn against him. It is a settled legal proposition that in case a person is absconding after commission of offence of which he may not even be the author, such a circumstance alone may not be enough to draw an adverse inference against him as it would go against the doctrine of innocence. It is quite possible that he may be running away merely being suspected, out of fear of police 17 arrest and harassment. (Vide: Matru @ Girish Chandra v. The State of U.P.[1971] INSC 71; , AIR 1971 SC 1050; Paramjeet Singh @ Pamma v. State of Uttarakhand AIR 2011 SC 200; and Rabindra Kumar Pal @ Dara Singh v. Republic of India, (2011) 2 SCC 490) Thus, in view of the law referred to hereinabove, mere abscondance of the appellant cannot be taken as a circumstance which give rise to draw an adverse inference against him.


Undoubtedly, conviction can be based solely on circumstantial evidence. However, the court must bear in mind while deciding the case involving the commission of serious offence based on circumstantial evidence that the prosecution case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence case. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The facts so established should be consistent only with the hypothesis of the guilt of the accused and they should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a 18 conclusive nature and tendency. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. (Vide: Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, Krishnan v. State represented by Inspector of Police, (2008) 15 SCC 430; and Wakkar & Anr. v. State of Uttar Pradesh, (2011) 3 SCC 306).

27. No presumption could be drawn on the issue of last seen together merely on the fact that Abdul Rajak (PW.2), father of the deceased had stated that Sahanara Khatun had gone to pluck the jhinga and her dead body was recovered from there. The witnesses merely stated that the accused was present in the close proximity of that area. That does not itself establish the last seen theory because none of the witnesses said that the accused and deceased were seen together. Most of the witnesses had deposed that the accused was having spade. It may connect the appellant to the factum of digging the earth. A person going for catching fish normally does not take a spade with him. The nature of the admissibility of the facts discovered pursuant to the statement of the accused under Section 27 of Indian Evidence 19 Act, 1872 is very limited. If an accused deposes to the police officer the fact as a result of which the weapon with which the crime is committed is discovered, and as a result of such disclosure, recovery of the weapon is made, no inference can be drawn against the accused, if there is no evidence connecting the weapon with the crime alleged to have been committed by the accused. Be that as it may, the spade had not been sent for chemical analysis as admitted by Digambar Mondal (PW.19), I.O. himself and there was no explanation furnished as for what reason it was not sent. In case of circumstantial evidence, not sending the weapon used in crime for chemical analysis is fatal for the reason that the circumstantial evidence may not lead to the only irresistible conclusion that the appellant was the perpetrator of the crime and none else and that in the absence of any report of Serologist as to the presence of human blood on the weapon may make the conviction of the accused unsustainable. (Vide: Akhilesh Hajam v. State of Bihar (1995) Supp 3 SCC 357).

There is no medical evidence or suggestion by any person as to the sexual assault on the deceased. Therefore, it merely remained the guesswork of the people at large. Mere imagination that such thing might have happened is not enough to record conviction. 20

28. This incident had occurred in a broad day light at 9.30 a.m. in the month of August in the agricultural field surrounded by agricultural field of others. Therefore, the presence of a large number of persons in the close vicinity of the place of occurrence can be presumed and it is apparent also from the statement of Aliful Rahmal (PW.6). Thus, had the deceased been with the appellant, somebody could have seen her at the place of occurrence. It cannot be a positive evidence as concluded by the courts below that none other than the appellant could commit her murder because no one else had been there at the place of occurrence. In fact, nobody had ever seen the deceased at the place of occurrence. Digging the earth by a single person to the extent that a dead body be covered by earth requires a considerable time and there was a possibility that during such period somebody could have seen the person indulged in any of these activities, though no evidence is there to that extent. The circumstances from which the conclusion of guilt is to be drawn in such a case should be fully established. The circumstances concerned "must or should" and "not and may be" established. In the instant case, the circumstances have not been established. 21

29. In view of the above, we are of the considered opinion that the courts below convicted the appellant on a mere superfluous approach without in depth analysis of the relevant facts.

30. In the facts and circumstances of the case, the appeal succeeds and is allowed. The appellant is given benefit of doubt and acquitted of the charges of offences punishable under Sections 302 and 201 IPC. Appellant is in jail. He be released forthwith unless his detention is required in any other case. ....................................J.