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LEGAL VIEW / Rakesh BhatnagarUse power of Sec. 319 CrPC
sparingly |
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NEW DELHI:
The provision for empowering the trial court to summon any
person who may not have been named as an accused in a first
information report or in a chargesheet seems to have been
incorporated in the Code of Criminal Procedure with all good
intentions, but it has bestowed criminal courts with enormous
responsibility.
Section 319 CrPC gives a blanket power to the trial court to
summon and even order arrest for anyone - who, it finds during
the trial and recording of evidence - has committed an
offence. The purpose is to keep the police and its
investigation under judicial scrutiny; and to ensure that the
real culprits are not ignored and the innocent and victims of
crime are not accused and made to face trial. The conviction
rate, even if small, must not be increased at the cost of the
innocent and the criminals shielded for reason best known to
investigative agencies.
But it has been observed that this provision has not been
frequently exercised by courts; and whenever courts apply
Section 319 in an ongoing trial, its orders are invariably
challenged by the accused.
Moreover, different courts have offered conflicting opinions
on the applicability of law. High courts have offered varied
rulings regarding whether such an accused has the rights to
cross-examine the witness on whose testimony the trial court
had summoned him as an accused. Does this not violate the
principle of natural justice, which guarantees that an accused
must be heard before being condemned or made to suffer a
prolonged trial?
The Punjab and Haryana high court's judgments on the issue of
Section 319 say that the statement of the complainant without
cross-examination is not admissible in evidence. Thus
summoning such a person as an accused is unlawful.
But some Delhi high court judgments took a contrary view, when
it held that ``the term `evidence' in Section 319 does not
contemplate cross-examination by persons summoned as accused
to join trial... It does not contemplate of creating of
additional state of cross-examination of prosecution witnesses
by those who are to be summoned and added as accused''.
Recently two persons were summoned as accused by a trial
court, on the complainant's deposition during the cross
examination, that they had raped her. They challenged the
order on the ground that they had been arrayed as accused
without having been given a chance to cross-examine the
witness. They lost at the high court and the Supreme Court.
A Bench comprising M B Shah and Justice S N Variava set at
rest the controversy over exercise of power under Section 319
CrPC by the trial court. It was natural for the court to
appreciate facts in the particular case, where the victim of
rape and abduction had herself named the petitioners, whom the
police gave a clean chit. The court's application of Section
319, under the circumstances, was obvious.
But even so, this power must be exercised sparingly. Once the
sessions court records the statement of a witness, it would be
part of the evidence. The intent behind Section 319 is clear:
Even persons who have been cleared or left out during
investigation, but against whom evidence exists showing their
involvement in the offence, fall within the ambit of a
criminal court, and are included in the expression ``any
person not being the accused''.
After all, the accused arrested on the basis of prima facie
evidence collected by police, are not entitled to crossexamine
the police before the trial begins.
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Capital's securityHow secure is Delhi's VIP area |
The
spot of the killing is within a half kilometre radius of
Rashtrapati Bhavan, Parliament House, the Election Commission
office (which has a police control room van), Parliament Street
police station and the New Delhi DCP's office.
Phoolan Devi's immediate neighbours were MP Khagen Das and UP
Chief Minister Rajnath Singh's official residence.
The killers left behind the weapons that they apparently used.
They abandoned the getaway car not far from the scene of the
crime.
This isn't a stray act. It means the police later would have
difficulty in connecting the criminals with the recoveries,''
the source said.
The way the MP and the PSO have been shot from a close range
also indicates a professional job. ``They are evidently good
marksmen. They have shot to kill their target,'' the source
said. |
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SWAMINOMICSA
land without any justice |
What
does the
gunning down of Phoolan Devi have to do with economic reform? A
lot. The whole premise of economic reform is that the government
should stop doing things that can be left to private enterprise
(like running steel mills) and focus its energies on what the
state alone can do, like enforcing laws and contracts, and
ensuring a conducive climate for competitive enterprise. Alas,
the only contracts enforced these days seem to be those put out
by the mafia. The police seem very poor at catching criminals,
and the courts at convicting them. When redress cannot be
obtained through due process of law, it will be obtained through
bullets. The villagers of Behmai know that as well as Phoolan
Devi’s Mallah gang.
It is one thing for the state to withdraw from excessive
economic meddling, quite another to withdraw from its basic
functions of collecting taxes and delivering public services.
The growing incapacity of the state to convict criminals has
progressed in tandem with its incapacity to collect taxes (which
are slipping as a percentage of GDP), to supply water and
electricity towns, and to supply primary health and education to
villages. The state is eroding, even collapsing in some areas.
In these circumstances, it is a wonder that the country is able
to achieve 6 per cent GDP growth.
Economic reform is about recasting the role of the state. It is
not about having a weak or collapsing state. On the contrary,
economic reform requires a strong and capable state that fulfils
its basic functions of tax collection and service delivery.
Efficiency-enhancing competition is possible only when the rules
of the game are well enforced by a capable state. But, if a
dysfunctional state allows laws to be flouted with immunity, if
money, muscle and influence decide outcomes, then markets cannot
promote competition, efficiency or social justice.
In todays context, the old argument of the public sector versus
private sector is obsolete. The need of the hour is good
governance. If the state cannot redress grievances and only
bullets can, neither socialism nor capitalism will work, and
only those with access to money, muscle and influence will
prosper.
Phoolan Devi’s story is one long sequence of outrages outside
the law. It started with her abduction and rape by Baba Gujjar.
It continued with the murder of her rapist by her lover, Vikram
Mallah. It continued with the murder of Vikram Mallah, and the
subsequent mass rape she suffered in Behmai village.
The revenge she later extracted at Behmai violated the rule of
law. So did her subsequent incarceration without trial for 14
years. So did the arbitrary dropping of charges against her by
the Chief Ministers of Madhya Pradesh and Uttar Pradesh. So,
too, did her own murder this week.
Even in death, the violations did not stop. Contrary to the law,
her body was hijacked by the Samajwadi Party and taken to
Mirzapur for a cremation aimed at extracting political capital.
The law entitled her relatives to arrange her cremation, and
they wanted it done in New Delhi. But Mulayam Singh Yadav coolly
declared that the Samajwadi Party was her family, and nobody
dared contradict a politician who could one day be Prime
Minister.
Phoolan Devi’s murder may seem to have nothing to do with the
privatisation of electricity in Orissa. Yet a common thread runs
through both the lack of rule of law. In Orissa, the moribund
state electricity board was trifurcated as part of a reform
process into a generating company, Orissa Power Generating
Corporation (OPGC), a transmission company (GRIDCO) and two
distribution companies (CESCO and BSES). There was some
controversy over whether this really would promote competition
and efficiency. But optimists hoped that anything would be
better than continuing with the old state electricity board,
which had lost all capacity to generate power and collect dues.
An American company, AES, took a 49 per cent stake in OPGC and
51 per cent stake in CESCO.
Two years down the line, privatisation is in shambles. The new
owners discovered that they had been told a pack of lies about
the true extent of transmission losses and theft of power.
Nobody in the government has been hauled up or prosecuted for
fraud. Worse, the new distribution companies inherited crooked
but unsackable staff, and inflexible rules that made it
impossible to fix responsibilities and deal with the corrupt and
inefficient. Earlier the state electricity board was helpless to
act against crooked linesmen who colluded with big consumers to
fix meters, and now the private owners faced the same problem.
Besides, poor governance for years had created a culture of
non-payment, of non-accountability, and a general feeling that
people could keep using electricity without paying for it. So
there was much indignation when CESCO attempted to check theft
and leakages, and conduct door-to-door surveys. When it
disconnected supplies for non-payment, huge pressure was brought
to bear by officials and politicians to restore the connections,
despite continued non-payment. Cases of arson and theft made
work conditions impossible, according to CESCO, and the
government proved unwilling or incapable of lending law and
order support.
In consequence, CESCO cannot even meet its costs, let alone
service its debt or earn any profit. It is supposed to put its
sales receipts into an escrow account to pay Gridco for
supplies.
For three months it broke this escrow account in order to pay
its employees.
For this transgression it was threatened with prosecution. So
CESCO is now putting its sales receipts into escrow, but no
longer has enough money to pay its employees, who will doubtless
become more rapacious than ever.
CESCO cannot pay the transmission company, GRIDCO, for power.
GRIDCO, in turn cannot pay Orissa Power Generating Company. The
same lack of governance which earlier bankrupted the public
sector is now bankrupting the privatised network.
The lesson is clear. Neither privatisation nor delicensing nor
anything else can work unless we have a capable state that
delivers good governance. The need of the hour is not more
economic reform but urgent administrative, police and judicial
reform to ensure justice and redressal within a reasonable time
frame. |
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Crime against
truckers on the rise in Bihar' |
PATNA:
Truckers may
have gained notoriety for rash driving during the night, but
they are convinced that they are the real victims in Bihar.
"During the last three years, about 1600 truck drivers,
helpers and even their owners have lost their lives on the roads
of Bihar," said Krishna Murari Pandey, a truck owner, who
has formed the Truck Parichalak Sewa Suranksha Sangh to raise
this issue.
In December, four bodies of truck drivers and their helpers were
recovered in a day, on the Muzaffarpur-Kanti road. Pandey and
his associates jammed the road for two days in protest.
"Incidents, in which truckers lost their lives, declined
for few months but have increased again these days,"
recalls Pandey. Truckers point out that the road near Fatuha and
between Pipra Kothi and Khagaria are notorious, where trucks go
"missing with the driver and helper along with the
goods". "Newspapers keep reporting about recovery of
unidentified bodies on the road sides," he said.
"Truck dacoity is an organised crime in Bihar," said
Trilokinath Shukla, coordinator of Bihar Pradesh Truck Operator
Association. He informed that a gang of 22 persons, involved in
truck dacoities, was caught at Fatuha three months ago.
"Though there are cases when the truck was recovered or few
criminals were arrested, but police seldom recovered goods being
carried by the truck," Shukla said.
He said that trucks carrying tea leaves, medicines and sugar are
the most targeted ones, insisting that the organised crime was a
result of a nexus between transporters, wholesalers and the
police. "Stolen trucks are often taken to Nepal and sold
off with changed number plates or they end up in the junkyards
of Kolkata or Kanpur," Shukla added.
Truckers are convinced that the killings have a lot to do with
police high-handedness. "Truck drivers travel during the
night to avoid policemen who ask for their papers illegally and
extort money," Pandey said. He pointed out that instead of
enforcing sections 113, 114 and 115 of the Motor Vehicle Act,
which includes off loading the material in excess to the
authorised weight (nine tonnes), the transport agencies use
section 194 which includes imposing fine and virtually
legalising overloading," Shukla said. He quoted a letter
issued to states by the Union ministry of road transport and
highways asking them to enforce section 113, 114 and 115 of the
Act. "Many of the states are, however, only compounding the
offence of overloading in terms of section 194 and it has become
a source of revenue," remarked the Union ministry's letter. |
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1 more arrested
in Falta incident |
KOLKATA:
Muzzafar Mollah,
the main accused in the assault on Antarctica Ltd manager Subir
Dutta, is absconding, South 24 Parganas police superintendent
Deb Kumar Gangopadhyay said on Sunday.
Dutta, who was admitted to Calcutta Medical Research Institute
after the assault, was declared as "clinically dead".
With one more arrest in connexion with the assault, the total
number of arrests had increased to 16, Gangopadhyay said. Those
arrested were mainly criminals and relatives of Mollah, the
retrenched temporary employee of Antarctica. They belonged to
the locality. The unit, located at Falta Export Processing Zone,
was, however, functioning.
On Saturday, Dutta was dragged out of an office bus and
assaulted when he was returning home. Mollah, after
retrenchment, had demanded the benefits of a permanent employee. |
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Bengal budget passed without much ado |
KOLKATA:
In the wake of
threat to state economies posed by indiscriminate imports, other
states are likely to follow West Bengal and impose luxury tax on
imported consumer goods.
State finance minister Asim Daspupta claimed this, dismissing on
Thursday the fear of economic isolation of the Left ruled state.
The state budget was smoothly passed in the West Bengal assembly
during the day on voice vote as the entire opposition staged a
walkout protesting against alleged harbouring of criminals by a
state minister.
The budget proposal included a 20 per cent tax on imported items
ranging from motor cars to umbrellas. "The doubting
Thomases questioned our sagacity when we had imposed luxury tax
on imported cigarettes. Other states followed our move. This
will happen this time also,'' he said.
The soft-spoken Dasgupta even joined high-decibel tirade on the
compliance of the WTO obligations. He called those who were
opposing his luxury tax as the 'stooges' of the US and other
rich countries.
"The developed countries are pumping huge subsidy for their
domestic agricultural products and escaping WTO regimen under
various pretext,'' he maintained.
He also castigated the Centre for violating the Constitution, as
Delhi has signed the WTO agreement without consulting the state
governments. "Both the Congress and the United Front had
lost the people's mandate as they succumbed to the WTO and IMF
pressures,'' he maintained.
Claiming that his budget will continue to be the harbinger of an
alternative economy, the MIT educated economist lauded his
projection on job generations in the state as 'based on
Marxism'.
According to him, his goal was to generate 600,000 jobs a year
and his vehicle will be the hitherto largely untapped resources
as well as infrastructure of state co-operatives and panchayats.
He exhorted the assembly to build 'mass movements' against the
'discrimination' to the state by the commercial banks so that
they cough up more money as loans to self-employed people here .
Despite the much hyped private investments in the state,
Dasgupta admitted that the increase in the jobs generated in the
private sector was nominal. In contrast to the decrease of jobs
in the central government units based in the state, he stressed
on the rise in the jobs in the state government departments.
Predictably, Dasgupta did not mention downsizing of the state
government but promised to cut down his revenue deficit by
taking austerity drives including reduction in foreign jaunts by
the ministers and bureaucrats. But at the same breath,he also
claimed that his deficit budgets were actually surplus budgets
at the end of the year.
Rattling figures, he rubbished allegations about the lack of
infrastructure for industrial resurgence. If the whizkid of
Buddhadeb Bhattacharjee government is to be believed, West
Bengal is next to Punjab and Maharashtra in roads construction
and second to Kerala only so far the health indicators are
concerned. |
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Invitation
a historic opportunity for Pak: Advani |
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It's
an ordeal to travel on PG rail section |
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Jalandhar
police launches website |
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Karnataka-Kerala
task force to curb border crime |
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Kashmir
should not be terrorist haven: Bush |
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Kerala
joins hands with Karnataka to check smuggling |
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Cabinet
minister involved in arms license racket |
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BJP
leader's arrest a blow to party's poll prospects |
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BJP
demands special House session on law and order |
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1
more arrested in Falta incident |
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