Again someone treaded his/her soul!!!

Mumbai has been attacked again and then comes the same rotten promises of the politicians. How serious today's government is towards our safety and security of the nation can well be gauged from the fact that for no rhyme or reason they excluded CBI from the reach of RTI. I bet you watch these horrible pictures of our fellow brethren soaked in blood lying on the floor helpless. It cost us with 21 lives and hundreds injured. And 21 lives are not the only casualties. 21 families basically died with these 21 fellow citizens. 

Morning news items were pretty in contrast with each other. In Delhi police was busy catching and prosecuting women and their pimps for treading their bodies and in Mumbai someone who treaded his/her souls and assisted someone across or within our border actualize his/her ghastly plan of killing innocent and completely helpless fellow citizens. 

Everybody is talking of Pakistan and why USA is not doing anything against Pak. Probably in response and to restore the shaking faith back in USA, Obama Administration has stopped the delivery of 800 million dollars scheduled aid. But who is the biggest beneficiary of such terrorist activities??? Probe your within, analyze the facts/news and the answer would be right there before.

Someone right within our country, someone high up has treaded his/her soul to make such attacks possible and rather than accusing Pakistan, our government and all of us need to locate these money-thirsty, nay blood-thirsty monsters. We need to fix our own country. USA had one 9/11 and no such incident after that. 

For someone, terrorism is hard core business for many purposes, two of which I can share here.

1. Keeping the countrymen deep scared, instilling fear psychosis in their being so that their questioning tendencies go away. So that any uprising against corruption, against malpractices of the powerful stop and does not rise again.
2. With countries becoming nuclear enabled and empowered, the possibility of war has terribly decreased. Now all these countries know that one mistake by one country and the chain would start wiping out the total habitation off the earth. Hence no old time war would happen wherein they used small weapons to attack the other. Available information suggest that the nuclear arsenal, in possession with various countries, is good enough to wipe out the earth 15-16 times. I wonder why do we need so much nuclear arsenals, after all not everybody is Jesus Christ that a resurrection will happen and that too 15-16 times which even Jesus would have failed. In absence of such wars which were great markets of small weapons; these weapons now get used in the name of terrorism. I am sure that the persons involved in such businesses will realize someday their misdeeds. I have read that the king who ordered crucifixion of Jesus developed one life-time disease of washing his hands believing them to be stained with the blood of Jesus. 

People behind such attacks are mentally and psychologically too ill. World leaders, if they wish to save the humanity from further proceeding towards the OBVIOUS destruction, need to come out of their tiny concepts of NATIONS and start thinking of the earth as ONE PLACE. I don't see any other way out of such insane acts. If you see, then please share your thoughts. I know that this wish of mine is too much to ask for and with such wishes I do carry the risk of getting termed crazy but I better be crazy than hopeless!!!

If you are faced with or wish to initiate against someone a criminal prosecution

More often than not, life brings to you situations where you felt that someone should be criminally charged for one or the other action but don't know what to do or how to start with. Then there are situations which life brings to you in though unfortunately when you have been charged rightly or wrongly with some criminal offence. In both the situations, the info given in the following paras will come to your aid.

Hon'ble Supreme Court dealt the above in great detail in

H.S. Bains, Director, Small Savings-cum-Deputy Secretary Finance, Punjab v. State (Union Territory of Chandigarh) 1980 (4) SCC 631 and stated thus:

It is seen from the provisions to which we have referred in the preceding paragraphs that on receipt of a complaint a Magistrate has several courses open to him. He may take cognizance of the offence and proceed to record the Statements of the complainant and the witnesses present under Section 200. Thereafter, if in his opinion there is no sufficient ground for proceeding he may dismiss the complaint under Section 203. If in his opinion there is sufficient ground for proceeding he may issue process under Section 204. However, if he thinks fit, he may postpone the issue of process and either enquire into the case himself or direct an investigation to be made by a Police Officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding. On the other hand, in the first instance, on receipt of a complaint, the Magistrate may, instead of taking cognizance of the offence, order an investigation under Section 156(3). The police will then investigate and submit a report under Section 173(1). Oft receiving the police report the Magistrate may take cognizance of the offence under Section 190(1)(b) and straightaway issue process. This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not. The Police report under Section 173 will contain the facts discovered or unearthed by the police and the conclusion drawn by the police therefrom. The Magistrate is not bound by the conclusions drawn by the Police and he may decide to issue process even if the Police recommend that there is no sufficient ground for proceeding further. The Magistrate after receiving the Police report, may, without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the Statements upon oath of the complainant and the witnesses present under Section 200 Criminal Procedure Code and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he had earlier ordered an investigation under Section 156(3) and received a report under Section 173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding under Sections 200, 203 and 204. Thus, a Magistrate who on receipt of a complaint, orders an investigation under Section 156(3) and receives a police report under Section 173(1), may, thereafter, do one of three things: (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under Section 190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report: (3) he may take cognizance of the offence under Section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. If he adopts the third alternative, he may hold or direct an inquiry under Section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be.

Again in Abhinandan Jha and Ors. v. Dinesh Mishra, (supra) the question arose whether a Magistrate to whom a report under Section 173(1) had been submitted to the effect that no case had been made out against the accused, could direct the police to file a charge-sheet, on his disagreeing with the report submitted by the Police. this Court held that the Magistrate had no jurisdiction to direct the police to submit a charge-sheet. It was open to the Magistrate to agree or disagree with the police report. If he agreed with the report that there was no case made out for issuing process to the accused, he might accept the report and close the proceedings. If he came to the conclusion that further investigation was necessary he might make an order to that effect under Section 156(3). If ultimately the Magistrate was of the opinion that the facts set out in the police report constituted an offence he could take cognizance of the offence, notwithstanding the contrary opinion of the police expressed in the report. While expressing the opinion that the Magistrate could take cognizance of the offence notwithstanding the contrary opinion of the police the Court observed that the Magistrate could take cognizance under Section 190(1)(c)'. We do not have any doubt that the reference to 'Section 190(1)(c)' was a mistake for 'Section 190(1)(b)'. That appears to be obvious to us. But Shri Kapil Sibal urged that the reference was indeed to Section 190(1)(c) since at that time Section 190(1)(c) included the words 'or suspicion' and the Court had apparently taken the view that the Magistrate could take cognizance of the offence not under Section 190(1)(b) as if on a police report but under Section 190(1)(c) as if 'on suspicion'. We do not agree with this submission. Section 190(1)(c) was never intended to apply to cases where there was a police report under Section 173(1). We find it impossible to say that a Magistrate who takes cognizance of an offence on the basis of the facts disclosed in a police report must be said to have taken cognizance of the offence on suspicion and not upon a police report merely because the Magistrate and the Police arrived at different conclusions from the facts. The Magistrate is not bound by the conclusions arrived at by the police even as he is not bound by the conclusions arrived at by the complainant in a complaint. If a complainant States the relevant facts in his complaint and alleges that the accused is guilty of an offence under Section 307 Indian Penal Code the Magistrate is not bound by the conclusion of the complainant. He may think that the facts disclose an offence under Section 324 Indian Penal Code only and he may take cognizance of an offence under Section 324 instead of Section 307. Similarly if a police report mentions that half a dozen persons examined by them claim to be eye witnesses to a murder but that for various reasons the witnesses could not be believed, the Magistrate is not bound to accept the opinion of the police regarding the credibility of the witnesses. He may prefer to ignore the conclusions of the police regarding the credibility of the witnesses and take cognizance of the offence. If he does so, it would be on the basis of the Statements of the witnesses as revealed by the police report. He would be taking cognizance upon the facts disclosed by the police report though not on the conclusions arrived at by the police. It could not be said in such a case that he was taking cognizance on suspicion.

In case you wish to clarify any of your doubts in connection with the above, let me know.

Are you in hurry to get a divorce?

Divorce, a thing which was almost unheard of a decade ago and the pursuing parties used to be looked down upon then, has become so common these days that marriage as an institution seems loosing its importance in India. Marriage at one time considered to be an union of two souls to be continued for seven lives gets broken in India at the drop of a hat. Equanimity between the partners has become too remote a thing in today's era of only accumulation and no experience.

Believe you me, I have cases where exceptionally better off and intellectually sound people part ways on too insignificant developments which would have been OK between two friends and such cases sadden me. My approach to every case so far has been to reunite the couple if the differences have not taken them too far and is not beyond bridging. A good number of divorce cases I have succeeded to kill them right in my chamber and sent the couple back happy. But then there are the ones where keeping the parties together would only bring in more damages to them individually as well as to the people around their lives and these are the cases where amicable separation is to be advocated.

There are two legal ways of obtaining divorce viz. contested and mutual.

Contested is too painful a process to go through and should be better avoided but cases where parties are not willing to cooperate and have declared war on each other, there is no other way.

Mutual is most respectful way of amicably settling the issues and separating with dignity intact.

Fortunately or unfortunately, even mutual takes minimum six months for the divorce to come through though it is way far better than 5-6 years of a contested divorce suit in getting decided.

Prior to a 2009 judgment of Hon'ble Supreme Court, the six months, statutorily provided period to separate the two motions of a mutual divorce case, the court used to be willing to waive off if the parties could be shown living separately for a longer period but post 2009 judgment of Apex Court, this possibility is no longer available except with the Apex Court itself.

Since this holier-than-thou discretion the Apex Court reserved it for itself, people, wealthy and in hurry, seeking divorce use ways and means to utilize this discretion available with Hon'ble Supreme Court. One such instance I came across in the following case. In case you can't make out what I am hinting at please feel free to write to me.

Priyanka Singh Vs. Jayant Singh on 10 November, 2009

Bench: Harjit Singh Bedi, J.M. Panchal

CIVIL ORIGINAL JURISDICTION

TRANSFER PETITION (C) NO.400 OF 2009

Priyanka Singh ...Petitioner Versus

Jayant Singh ...Respondent ORDER

1. This is a petition for transfer of Divorce Petition No.1118 of 2008 titled Shri Jayant Singh vs. Smt. Priyanka Singh pending in the Court of Civil Judge (Senior Division), Gautam Budh Nagar (U.P.) to District Court, Koderma (Jharkhand).

2. While issuing notice, this Court stayed further proceedings of the divorce case. On 15.5.2009, the parties appeared in person and presented a joint application for grant of decree of divorce by mutual consent. However, as the averments necessary for making out a case under Section 2

13B of the Hindu Marriage Act, 1955 (for short `the Act') were not made in the application, the case was adjourned with a direction to the parties to file an appropriate application. Thereafter, the parties jointly filed I.A. No.3 of 2009 with the prayer that their marriage be dissolved by granting a decree of divorce by mutual consent. They also filed an application (I.A. No.4 of 2009) under Section 13B of the Act for dissolution of marriage by a decree of divorce by mutual consent by stating therein that due to temperamental incompatibility, the parties have not been able to live together as husband and wife; that they have been living separately since 12.3.2005 and that the marriage is irretrievably broken down. It has also been averred that there is no chance of reconciliation between the parties and after due intervention of the family members and other relatives, they have decided to seek a decree of divorce by mutual consent. Both the I.As are supported by the affidavits of the parties.

3. We have heard learned counsel for the parties and perused the record. Keeping in view the fact that the parties are living separately for last more than 4 years and 6 months and there is no chance of reconciliation between them and also the fact that they have agreed to dissolve their marriage by mutual consent without any coercion or undue influence, we deem it proper to accept the prayer made in the two 3

applications for dissolution of marriage. Accordingly, Divorce Petition No.1118 of 2008 titled Shri Jayant Singh vs. Smt. Priyanka Singh pending in the Court of Civil Judge (Senior Division), Gautam Budh Nagar (U.P.) is transferred to this Court and marriage between the parties is dissolved by granting a decree of divorce by mutual consent in terms of Section 13B of the Act.

4. The transfer petition is disposed of in the manner indicated above. ........................................J.

[R.V. RAVEENDRAN]

......................................J.

[G.S. SINGHVI]

New Delhi

November 10, 2009