(This post has been written exclusively in Indian Context)
Whatever I am going to say here below is well known to law persons. It is not targeted, on the sly, against anybody in particular. I am trying to draw the attention of my enlightened friends towards some simmering discontent all around. There is nothing technical about it.
There is an unwritten fundamental principle, as followed in judicial circle, of India that ‘a sentence to imprisonment’ by any Court of Law (SDM/Session/District/High/Supreme)cannot be wholly undone by any higher court.
(( Exception to this rule should be, in my opinion, the Court which had itself pronounced the first verdict/sentence but It must be done before it has been confirmed, partly or wholly, by high/supreme court. So this may be done under the advice of the concerned High court which has entertained the appeal. (But the advice, technically speaking, may not be binding on lower court.) Naturally this will happen in extreme cases of having found some new and important evidences. In case there is a new incumbent in the lower Court, the same would be required to seek the approval of former one. As a check against bribery the looser party, who has won the suit earlier, may again file an appeal with Supreme Court against the decision (It is under the provision of ‘SLIP’. Please see the Part III (Appendices) of this post for further detail). Regarding other higher Courts, things are already in place or may be worked out, but in my personal opinion it may be slashed to Maximum 1/3rd(Quotient number), but not necessarily, by the same)).
Then such a verdict has to be necessarily executed once before a bail is granted by the appellate court. It is very essential to observe these two principles because otherwise nowadays the parties to a case themselves start to disregard or to take lightly the judicial person in lower court, in the course of proceeding itself, under the ego of being capable for going to Higher Court.
((Leaving aside the issue of anticipatory bail which depends upon the discretion of appellate court (High and Supreme) and is applicable generally to persons like senior ministers, technocrats, bureaucrats or judges, ‘Stay orders’ are applicable only to the verdict/ruling which involve death sentence or demolition order.))
But the principles are being flouted around all over country. In cognizance offence especially this demoralizes the police as well. Though lower court has got every right to know the reason for its order having been quashed but it cannot undo the order of higher court. But there are instances of Supreme Court’s verdict having been quashed by High Court in some Govt. related issue. Further it is trivially well known that an ‘order quash’ by higher court must be associated with a petition elaborating the reason for making appeal. Quashing of an order by higher court implies that an Appeal have been entertained, automatically, but not dismissal of case. It is also forgotten that disobeying a verdict or obstructing police in getting it executed amounts to inviting the charge of ‘Contempt of Court’.
In any legal suit the thrust point of the pleas of accused should be self-defense unless there is sufficient reason, as approved by Court, for counter-case. Nowadays people just in order to delay the process and to let the heat settle, go on talking superfluous things. So barring aside the cases of ‘murder’ it is becoming growingly difficult to arrive at any conclusion. Some people think that entertaining the Court is sufficient to convince the same and to win its favor. Some people don’t take it as a crime to create the situation for violence, and go on building it up slowly. They don’t realize that to endanger anyone’s property, life or profession by spreading false rumor around is also a culpable offence.
Of late a law has been passed stipulating Capital punishment (death sentence)against ‘minor rape’ cases which may partially be manipulated.( Clinical Age may not be the exact measure of one’s Biological Age viz. being Minor or Major) So naturally police should avoid entertaining cases of one-man rape, unless it has been done in broad day light with more than 1 witness or severe casualty has been reported, because nowadays this has become a convenient tool to demoralize male or even to extort money. Moreover one man rape is possible only if victim is minor. So in such cases police should preferably register the case of molestation. Such laws are generally framed keeping in mind the requirement of backward areas (Class C) of the country but undue advantage is taken by women in Metro cities (Class A and B).
Nowadays there is very special type of nuts moving around who on the strength of illusion factor think that the capacity to destabilize others by creating accident type of situation is the real definition of superiority & wisdom, not the shit of law & court. They should be replied in their own language. There is nothing to remind into it that it is an indexless issue, not only in court of law but everywhere, and hence in life it should be tackled through amity as far as possible. However sometimes court may be required it to tackle it on discretionary basis. The trouble is that just to confuse Court, such type of people try to camouflage all of their misconducts in the shield of this logic, or by thrusting upon this logic, without any such issue having been raised ever by anybody. There has to be difference between ‘complaint logic’ and ‘defense logic’. A complaint may not be entertained and the issue ends there. But defense is a part of proceeding which has to be meaningful. For such people it is not enough to be exonerated.
It is something well known that in almost all cultures of the world para-psychological reasoning is not admissible under court of law, nor should it be. Even a report based on Polygraph/Narco test is not admissible, and may be regarded to be para-psychological reasoning because a machine can be manipulated and person may not be in normal state of mind. (THIS may serve as a lead to truth for investigation purpose but not the truth itself) This is because Court of law is concerned with the ‘merit of issue’ rather than the unconcerned and superfluous detail regarding the issues of whole of the life. Moreover it is assumed that in a democracy, which evolves as an organic entity, ‘law of karma’ itself reflects in the final turn of events. All discretionary issues are subservient to the composite definition of right and wrong. It is also true that Law also does not become perfect in a day. This also goes on evolving under the mutation aspect/force of nature.
But of late a new form of para-psychological reasoning is gaining ground all over world. Nowadays people start to talk straightway in term of divine grace, negative or positive, of each other. This had been always a subconscious process without being given any name. This is basically implementation of law of karma which is cumulative in nature, rolling from past to future. Evoking right or wrong reaction through one’s behavior & learning into others mind used to determine the personality of an individual. But nowadays under the spell of some evil force the youngsters have started to believe that disseminating one sided divine grace, negative or positive, to others is the only mode of action and growth.. But the trouble is that even Law people’s vision has become colored in their perception of the thing. Paradoxically the said type of persons themselves start to give such type of logic in the course of legal proceedings, sometimes in police station too, which may also be termed as Para-psychological reasoning. There is no need to say that Court has been always exercising such discretion in relation to individual’s persona, especially if the issues involve some form of coercion or violence. Buy any explicit talk is a threat to sanity of mankind. So I think that there should be some express provision under law that any such logic by any of the parties concerned may invite 1 to 3 years imprisonment.
There is another correlated but very awkward issue. This is the issue of ‘adultery harassment’. Without explaining it much I would say that as a safeguard there is need for introducing a clause in 497 of Indian penal code as per which adultery harassment can be deemed as an offence (preferably a non-cognizable and non bailable offence with 1 year imprisonment to the guilty person or couple). This involves one married and another married person. This may be applicable to persons living nearby under a static situation and proximity of minimum one year. This is because in such issue there are hundreds of other issues which start to crop up, like regularly troubling the bachelor on flimsy pretext, or demanding extra money from a bachelor tenant in some or other guise , or associating name of the same with some bad woman. This finally may culminate into violence in some or other pretext. This is really a ludicrous issue. Because it is against male ego to report any such complaint but at the same time our culture is taking such a shape that people regard adultery to be a mode of growth and wisdom, and thereby resort to several coercive measures to force even an unwilling person to fall into the trap. It is happening to the extents that in metro cities people start to talk in term of banishing the refusing person from the localities. In rural areas there are, in addition, so many other unpredictable dimensions, varying from case to case, which is not possible to mention. Moreover in such type of issues the axes of hoodlums around always fall on to male side.
In my personal opinion to do adultery within the knowledge of the spouse of the other person is a sure road to doom. Of course adultery by consent is not an offence or is deemed as a Civil offence to be applicable only a under Divorce suit( IPC 497). Further any complaint or raising any such issue in court of law against two persons having such relation by mutual consent should also be treated as a culpable offence.
In Part I of this post, for the sake of simplicity I have omitted certain nitty-gritty in relation to the jurisdiction of various courts. This might be causing some confusion in the mind of my otherwise enlightened friends. Here follows a non technical detail regarding the same.
In general one can file a suit in any of the lower court (SDM/Session/District) depending upon the gravity of case and jurisdictional limit of the Court. It is upon the Court to decide whether the case deserves the attention of that Court or not. There are certain guidelines in this respect.( IN GENERAL SDM Court can take both Civil and Criminal suit. of light nature. SDM is regarded to be judicial Magistrate. Session Court takes primarily Criminal suit. District court takes primarily Civil suit. But there is no hard and fast rule as such. Property matters are handled by a separate Court called Tahsildar Court. Sometimes Session and District court are merged as one Court. Sometimes, in small cities, District Magistrate (IAS) oneself serves as Judicial Magistrate. In such a capacity the same is known as Joint Magistrate.) All Govt. related cases can be filed only in High or Supreme Court. Mostly State Govt. related cases are entertained in High court and Union Govt. related cases are handled in Supreme Court. However a case relating to basic tenets of constitution or the cases which requires special interpretation of constitution, may be under the advice of High Court, can be filed only in Supreme Court. However High court or Supreme Court has liberty to entertain any case if it appears to be too complicated or too high profile in nature which may not be handled properly in lower court. Supreme Court is empowered to strike down an amendment of the constitution. However, as said, High court and Supreme Court are primarily Appellate court. One can file appeal in the High court against the decision of lower court, and in the Supreme Court against the decision of High court.
Around 10 years ago Supreme Court has introduced another concept/provision called Public interest Litigation (PIL) under which a petition against a public representative OR high ranking Govt. authority OR any other influential person of private sector can be filed in Supreme Court. It is upon Court to decide whether it deserves attention under PIL or not. In general PIL relates to the said authority being habitual offender in exercising its authority, i.e. either regularly going beyond the prescribed authority/jurisdiction or victimizing innocent persons on regular basis or making arbitrary demands from the unknown persons bypassing the procedure laid down. In Exceptional cases this may be used for highlighting some wrong (which is yet to be covered under law), and/or need for framing a law which does not need the approval of parliament. The petition can be done via Registrar office by submitting all relevant documents and details of the issue. Of course if it is done by email then for the sake of trust it should bear digital signature along with scanned copy of identity proof
In Part II of this post I had discussed an issue with reference to provision of SLIP. SLIP stands for Special Leave in Petition”. In general it is a provision under which one make an appeal in Supreme Court, bypassing High Court, against the decision of lower court/tribunal. In general there is no constraint as such as to who, whether complainant or accused, can file this special leave to appeal in SC. Normally if an accused is sentenced by lower court, the same can make an appeal in High Court against the decision of lower court. Further the same can make an appeal in Supreme Court against the decision of High Court. An appeal may or may not be entertained depending upon discretion of higher Court. . Generally SC accepts appeal when the sentences by lower Court has been wholly confirmed by High Court. However there is no constraint as such.
High court can accept the appeal against Lower court only if the offence is bailable. So there is no need in part of Lower court to grant appeal. But High court has to grant the certificate of fitness for further appeal in Supreme Court.
If an appeal against lower court has been rejected by High court then there is scope for applying SLIP but normally it does not happen. Further if High court in any of its order, under an appeal against Lower court or otherwise, has refused to grant the certificate of fitness for further appeal in the Supreme court then also SLIP becomes applicable. SLIP is a special power vested in SC(under article 136 of constitution) to take the appeal even if High court has refused to grant the certificate of fitness for appeal to SC or has refused to accept the appeal against an order of Lower Court.
The provision of SLIP has been made to safeguard the interest of a complainant too (as opposed to that of accused) who might have lost a suit in High court under an appeal by the accused, implying the party which was sentenced to imprisonment ( or for that matter any other sentence) by lower court. In such a case complainant is required to bypass High court while making an appeal against the decision of High Court. If the said fundamental principle is adhered to that no court can undo the sentence to imprisonment wholly, even then complainant can make an appeal in Supreme Court under SLIP against the decision of High Court.
I have expressed an opinion that such a sentence can be undone wholly only by the court where the suit was filed first and the sentence was executed. This should be done only under the advice of High court where the accused might have filed an appeal. So here also is a situation for SLIP if the complainant feels that it was wrong decision under the advice of High Court. I think that if sentence is only halved by High Court then there should be no scope for SLIP but if it is slashed to 1/3rd then there is situation for applying SLIP. However such appeals are accepted by the SC only in the cases where either complainant is high profile in nature or in general it is felt that a gross injustice has been done on the basis of some extraneous consideration OR a substantial question of law is involved.