SEEKING CRIMINAL TRIAL’S TRANSFER AT DROP OF HAT NOT RECOGNISED BY ANY TENET OF LAW, SAYS ALLAHABAD HIGH COURT - The Daily Guardian
Connect with us

Policy & Politics

SEEKING CRIMINAL TRIAL’S TRANSFER AT DROP OF HAT NOT RECOGNISED BY ANY TENET OF LAW, SAYS ALLAHABAD HIGH COURT

Published

on

While dismissing a transfer application moved under Section 407 of the Code of Criminal Procedure, the Allahabad High Court has as recently as on August 26, 2021 in a learned, latest, laudable and landmark judgment titled Pramod Kumar Tiwari @ Lota Tiwari vs State of UP & Anr. in Case :- U/S 407 CR.P.C. No. – 31 of 2021 observed unequivocally that seeking of the transfer of criminal trial at the drop of a hat is not recognized by the courts or by any tenet of law. It is most refreshing to learn that the Single Judge Bench of Justice Mohd Faiz Alam Khan also emphasized unambiguously that an order of transfer is not to be passed as a matter of routine or merely because an interested party has expressed some apprehension about the conduct of the trial by a Presiding Officer. Justice Khan also made it crystal clear that this power would have to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide complete justice and credibility to the trial.

To start with, this brief, brilliant, bold and balanced judgment authored by a single Judge Bench comprising of Hon’ble Mohd Faiz Alam Khan of Allahabad High Court sets the ball rolling by first and foremost observing that, “Supplementary Affidavit filed by the applicant is taken on record. Heard Sri Amar Nath Dubey, learned counsel for applicant, Sri Ashok Kumar Srivastava, learned counsel for opposite party no.2, learned Additional Government Advocate for State and perused the record.”

To put things in perspective, the Bench then puts forth in the next para that, “The instant application has been moved by the applicant/accused with a prayer to set aside the order dated 20.7.2021, passed by the Sessions Judge, Pratapgarh in Transfer Application No. 166/2021, Pramod Kumar Tewari alias Lota Tiwari v. State of U.P. pertaining to S.T. No. 22/2013, arising out of Case Crime No. 473/2012, under Sections 147, 148, 149, 452, 302, 307, 504, 506, 120-B/34 I.P.C. P.S. Kotwali Nagar, District Pratapgarh, whereby the request of the applicant to transfer the above mentioned case to some other court from the court where the same is pending has been rejected, with a further prayer to transfer the above case to any other court of the same Judgeship.”

Simply put, the Bench then observes in the next para that, “Learned counsel for applicant submits that on 20.3.2021 the applicant had over heard a conversation between the public prosecutor and the Presiding Officer of the Court and the prosecutor was informing the Presiding Officer of the court that the file (instant case) has been transferred to his court keeping in view his reputation and he (Public Prosecutor) is having all the hope that the Presiding Officer would convict and sentence the accused persons with the maximum imprisonment. It is also stated that on 3.4.2021 the Advocates were not appearing in the courts in pursuance of the resolution of the Bar but the Presiding Officer of the court was in a hurry to hear the arguments of the case and this shows that the public prosecutor has colluded with the informant and, therefore, is impressing upon the Presiding Officer of the court to convict and sentence the applicant.”

Furthermore, the Bench then points out in the next para that, “It is also submitted that the applicant is not having any hope that he will get justice from the court where the case is pending and the same may be transferred to any other court of the same Judgeship.”

To be sure, the Bench then brings out in the next para that, “Learned Additional Government Advocate submits that transfer of a criminal case is a serious matter and it is not for a party to choose his forum for adjudication of the dispute and, therefore, the instant application is not having any substance and the same be rejected.”

As we see, the Bench then discloses in the next para that, “Sri Ashok Kumar Srivastava, learned counsel appearing for opposite party no.2 vehemently submits that the applicant/accused is in a habit of moving transfer applications and in the past also the transfer applications have been moved by the accused persons of the instant case and the ground is not such on the basis of which the case can be transferred.”

Be it noted, the Bench then enunciates in the next para that, “Having heard learned counsel for parties and having perused the record it is evident that when the application for transfer of the case was moved to the Sessions Judge, the arguments have been completed on behalf of one accused as is apparent from the report which was sent by the Presiding Officer of the court to the Sessions Judge which has also been quoted in the order of the Sessions Judge. It is also apparent that the Sessions Judge while rejecting the application of the applicant has categorically opined that the Presiding Officer has vehemently denied the charges levelled against him and has also stated in his report that the same case was previously fixed for judgment in the court of Additional District & Sessions Judge, Court No.4, Pratapgarh on 15.4.2021 (must be 15.04.2020), however the judgment could not be passed and thereafter the case has been transferred to the court of Special Judge, POCSO Act, Pratapgarh.”

While citing the relevant case law, the Bench then points out that, “The grounds which have been made the basis of moving this transfer application shows that the applicant is having merely an apprehension. In this regard it is worthwhile to refer a passage from the three Judge Bench decision of the Hon’ble Supreme Court passed in Gurcharan Dass Chadha v. State of Rajasthan MANU/SC/0093/1966 : AIR 1966 SC 1418, wherein it has been held:

“…The law with regard to transfer of cases is well-settled. A case is transferred if there is a reasonable apprehension on the part of a party to a case that justice will not be done. A Petitioner is not required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. It is one of the principles of the administration of justice that justice should not only be done but it should be seen to be done. However, a mere allegation that there is apprehension that justice will not be done in a given case does not suffice. The Court has further to see whether the apprehension is reasonable or not. To judge of the reasonableness of the apprehension the state of the mind of the person who entertains the apprehension is no doubt relevant but that is not all. The apprehension must not only be entertained but must appear to the Court to be a reasonable apprehension.”

It is worth noting that the Bench then envisages in the next para that, “Hon’ble Supreme Court in Abdul Nazar Madani v. State of T.N. MANU/SC/0349/2000 : (2000) 6 SCC 204 has held that: “…The apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises. If it appears that the dispensation of criminal justice is not possible impartially and objectively and without any bias, before any court or even at any place, the appropriate court may transfer the case to another court where it feels that holding of fair and proper trial is conducive. No universal or hard-and-fast rules can be prescribed for deciding a transfer petition which has always to be decided on the basis of the facts of each case. Convenience of the parties including the witnesses to be produced at the trial is also a relevant consideration for deciding the transfer petition. The convenience of the parties does not necessarily mean the convenience of the Petitioners alone who approached the court on misconceived notions of apprehension. Convenience for the purposes of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interest of the society.”

While citing yet another relevant case law, the Bench then hastens to add in the next para that, “In Captain Amarinder Singh v. Parkash Singh Badal and Ors. MANU/SC/0797/2009 : (2009) 6 SCC 260, while dealing with an application for transfer petition preferred Under Section 406 Code of Criminal Procedure, a three-Judge Bench of Hon’ble Supreme Court has opined that for transfer of a criminal case, there must be a reasonable apprehension on the part of the party to a case that justice will not be done. It has also been observed therein that mere an allegation that there is an apprehension that justice will not be done in a given case alone does not suffice. It is also required on the part of the Court to see whether the apprehension alleged is reasonable or not, for the apprehension must not only be present but must appear to the Court to be a reasonable apprehension. In the said context, Hon’ble Supreme Court has held thus:

“19. Assurance of a fair trial is the first imperative of the dispensation of justice. The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that the public confidence in the fairness of a trial would be seriously undermined, the aggrieved party can seek the transfer of a case within the State Under Section 407 and anywhere in the country Under Section 406 Code of Criminal Procedure.

20. However, the apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary. Free and fair trial is sine qua non of Article 21 of the Constitution. If the criminal trial is not free and fair and if it is biased, judicial fairness and the criminal justice system would be at stake, shaking the confidence of the public in the system. The apprehension must appear to the court to be a reasonable one.””

Adding more to it, the Bench then cites yet another very pertinent case law wherein it is put forth that, “In Lalu Prasad alias Lalu Prasad Yadav v. State of Jharkhand MANU/SC/0796/2013 : (2013) 8 SCC 593, Hon’ble Supreme Court, repelling the submission that because some of the distantly related members of the trial Judge were in the midst of the Chief Minister, opined that from the said fact it cannot be presumed that the Presiding Judge would conclude against the Appellant. From the said decision, following passage is reproduced:

“Independence of judiciary is the basic feature of the Constitution. It demands that a Judge who presides over the trial, the Public Prosecutor who presents the case on behalf of the State and the lawyer vis-a-vis amicus curiae who represents the accused must work together in harmony in the public interest of justice uninfluenced by the personality of the accused or those managing the affairs of the State. They must ensure that their working does not lead to creation of conflict between justice and jurisprudence. A person whether he is a judicial officer or a Public Prosecutor or a lawyer defending the accused should always uphold the dignity of their high office with a full sense of responsibility and see that its value in no circumstance gets devalued. The public interest demands that the trial should be conducted in a fair manner and the administration of justice would be fair and independent.””

Most remarkably, what forms the cornerstone of this judgment is then stated herein as: “The aforesaid laws would clearly emphasize on sustenance of majesty of law by all concerned. Seeking of the transfer of criminal trial at the drop of a hat is not recognized by the courts or by any tenent of law. An order of transfer is not to be passed as a matter of routine or merely because an interested party has expressed some apprehension about the conduct of the trial by a Presiding Officer. This power would have to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide complete justice and credibility to the trial as held in Nahar Singh Yadav and Anr. v. Union of India and Ors. MANU/SC/0964/2010 : (2011) 1 SCC 307], the apprehension with regard to the miscarriage of justice should be real and substantial.”

What’s more, the Bench then wishes to add in the next para that, “It is also worthwhile to extract the view of the Hon’ble Supreme Court in Usmangani Adambhai Vahora Vs. State of Gujarat and Ors, Reported in MANU/SC/0014/2016 (AIR 2016 SC 336), wherein it is emphasized that simply because an accused or a party has filed an application for transfer, a Judge is not required to express his disinclination. He is required under law to do his duty and not to succumb to the pressure put by a party by making callous allegations and he is not expected to show unnecessary sensitivity to such allegations.”

Needless to say, the Bench then points out that, “In the instant case, this Court is disposed to think that apprehension which has been made the basis to seek order for transfer of the case pending before the court below is absolutely weak and cannot be remotely said to be reasonable.”

Truth be told, the Bench then observes that, “Having regard to the grounds on which the transfer application has been moved, as well as the law placed above, in the considered opinion of this Court are not sufficient to exercise the jurisdiction for the transfer of the aforesaid case from the court where the same is pending.”

Without mincing any words, the Bench then crucially holds in the next para that, “For the reasons recorded herein above, I do not find any substance in the application under Section 407 Cr.P.C. moved by the applicant and, therefore, the same is dismissed. However as the case is pending since long for disposal, the trial court is directed to expedite the trial of the above case and conclude the same at the earliest without providing soft adjournments to the parties.”

Finally, the Bench then holds in the last para that, “A copy of the order be immediately sent to the trial court by the office through District Judge concerned.”

In conclusion, one has to laud in no uncertain terms that the single Judge Bench of Allahabad High Court comprising of Justice Hon’ble Mohd Faiz Alam Khan has made it absolutely clear that, “Seeking of the transfer of criminal trial at the drop of a hat is not recognized by the courts or by any tenet of law. An order of transfer is not to be passed as a matter of routine or merely because an interested party has expressed some apprehension about the conduct of the trial by a Presiding Officer. This power would have to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide complete justice and credibility to the trial.” All the courts must definitely adhere, abide and apply the principle stated herein as has been already explained hereinabove in all such cases where transfer of criminal trial is sought by any one particular party and not just grant the transfer at the drop of a hat which serves to undermines the very credibility of our judicial system!

Sanjeev Sirohi, Advocate,

One has to laud in no uncertain terms that the single-judge Bench of Allahabad High Court has made it absolutely clear that an “order of transfer is not to be passed as a matter of routine or merely because an interested party has expressed some apprehension about the conduct of the trial by a Presiding Officer. This power would have to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide complete justice and credibility to the trial”.

The Daily Guardian is now on Telegram. Click here to join our channel (@thedailyguardian) and stay updated with the latest headlines.

For the latest news Download The Daily Guardian App.

Policy & Politics

Is it safe to rely exclusively on ‘extrajudicial’ confession?

Published

on

Before dwelling upon extra judicial confession, it is incumbent to first of all understand what exactly confession is. It has not been defined anywhere in the Evidence Act. Stephen in his ‘Digest of the Law of Evidence’ (Article 21) defines it as: “A confession is an admission made at any time by a person charged with crime stating or suggesting the inference that he committed that crime.”

According to Wigmore: “A confession is an acknowledgement in express words, by the accused in a criminal case, of the truth of the guilty fact charged or of some essential part of it. It is to this class of statements only that the present principle of exclusion applies.” Blackstone has mocked at confession as “the weakest and most suspicious of all evidence.” Bertrand Russel says in ‘Power’: “In India it is rampant……… For the taming of the power of the police one essential requirement is that a confession shall never in any circumstances be accepted as evidence.”

One can easily discern after going through the definition forwarded by Stephen that the words ‘suggesting the inference that he committed that crime’ fail to convey the real import. It is in this context that to clear the fog and see the true picture , we must also carefully read what was spelt out by Lord Atkin in Pakala Narayana Swami v Emperor, AIR 1939 PC 47 (52). He said that, “… no statement that contains self-exculpatory matter can amount to a confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. Moreover, a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact is not of itself a confession, e.g., an admission that the accused is the owner of and was in recent possession of the knife or revolver, which caused a death with no explanation of any other man’s possession is not a confession even though it strongly suggests that the accused has committed the murder. Some confusion appears to have been caused by the definition of confession in Article 21 of the Stephen’s Digest of the Law of Evidence, which defines a confession as an admission made at any-time by a person charged with a crime stating or suggesting the inference that he committed that crime. If the surrounding articles are examined it will be apparent that the learned author, after dealing with admissions generally, is applying himself to admissions in criminal cases, and for this purpose defines confessions so as to cover all such admissions, in order to have a general term for use in the three following articles confession secured by inducement, made upon oath, made under a promise of secrecy. The definition is not contained in the Evidence Act, 1872; and in that Act it would not be consistent with the natural use of language to construe confession as a statement by an accused suggesting the inference that he committed the crime.”

It is imperative to mention here that the Apex Court too has endorsed the landmark ruling of Privy Council which I have just cited in the landmark case of Palvinder Kaur v State of Punjab, AIR 1952 SC 354. Justice Mahajan in this landmark case very elegantly elucidates that, “The confession must either admit in terms the offence or at any rate, substantially all the facts which constitute the offence. The admission of gravely incriminating fact, even conclusively incriminating fact is not by itself a confession. The statement that contains self-exculpatory (self-defending) or other matter cannot amount to a confession, if the exculpatory statement is of the same facts which, if true, would negative the offence alleged to be confessed. The statement which when read as a whole is of exculpatory character and in which the prisoner denies his guilt is not confession, and cannot be used in the evidence to prove his guilt.”

About confession, Phipson states that, “An unambiguous confession is in general sufficient to warrant a conviction without corroboration.” Confession is based on the latin maxim ‘habemus optimum testem, confitentem reum’ which literally means that, “We have the best witness, a confessing defendant.” In other words, it means that the confession of an accused is the best evidence against him.

Having dwelt in detail about what confession is, I must now divulge here what is well known that confession is divided into two classes: Judicial and Extra-judicial. Needless to say, a judicial confession is that which is made before the Magistrate or Court in the due course of legal proceedings. As for instance, a confession which is recorded under Sections 164 and 364 of the CrPC. A confession made to anybody other than a Magistrate or Court or any judicial body does not come within the purview of judicial confession. Let me add here that a confession which is neither made to a Magistrate nor in the course of legal proceedings and is made outside the court or before any person other than a Magistrate is an extra-judicial confession. In other words, confessions made to private persons, to police officers or to judicial officers in their private capacity fall within the realm of extra-judicial confession.

While it is true that a confession made to a Magistrate cannot be an extra-judicial confession but what we must not lose sight of is the fact that under certain circumstances even a confession made to a Magistrate can amount to an extra-judicial confession. As for instance, in R v Gopinath , 13 WR 69, it was held that a confession made before a Magistrate, in his private capacity is an extra-judicial confession. In Emperor v Sidheshwar Nath, (1933) 56 All 730, it was held that a confession made to a Magistrate while in the custody of the police is admissible. In State of Punjab v Harjagdev Singh, AIR 2009 SC 2693, it was held that an extra-judicial confession can be made to or before a private individual. It can also be made before a Magistrate who is not especially empowered to record confessions under Section 164 of CrPC or who receives the confession at a time when Section 164 is not applying. The Court also added that every inducement, threat or promise does not vitiate a confession.

Before proceeding ahead, let me tell you that while I don’t deny that extra-judicial confessions are considered generally as weak evidence but still if found reliable courts can convict an accused based on it and there is nothing wrong with it. There are many such cases where conviction has been given to an accused based on extra-judicial confession. As for instance, it was held in State of UP v MK Anthony , AIR 1985 SC 48 that there is no inflexible rule of law or prudence that an accused cannot be convicted on the basis of an extra-judicial confession without corroboration, though it is considered to be a very weak evidence. It was also held that it can be sufficient to found conviction provided –

1. It comes from the mouth of witnesses who appear to be unbiased and not even remotely inimical to the accused;

2. There is nothing to indicate that the witness may have motive for attributing untruthful statement to the accused;

3. The evidence given by the witness is clear, unambiguous and unmistakably conveys that the accused committed the crime;

4. Nothing is omitted by the witness which may suggest different conclusion; and

5. The evidence passes the rigorous test of credibility.

In Piara Singh v State of Punjab, AIR 1977 SC 2274, the Supreme Court while convicting the appellants on the basis of extra-judicial confession and underlining its importance held that, “The learned Sessions Judge regarded the extra-judicial confession to be very weak type of evidence and therefore refused to rely on the same. Here the learned Sessions Judge committed a clear error of law. Law does not require that the evidence of an extra-judicial confession should in all cases be corroborated. In the instant case, the extra-judicial confession was proved by an independent witness (Sarpanch) who was a responsible officer and who bore no animus against the appellants. There was hardly any justification, for the Sessions Judge to disbelieve the evidence of the Sarpanch particularly when the confession was corroborated by the recovery of an empty cartridge from the place of occurrence.” In State of AP v Gangula Satya Murthy, AIR 1997 SC 1585, the Supreme Court held that minor discrepancies should be ignored in appreciating the evidentiary value of extra-judicial confession. In this case, the record showed a discrepancy as to the time of confession when the words were spoken and the time appearing in police records . The Court said that this should have been ignored. There could have been an error in recording a.m. for p.m. The Court also said that at any rate it was not proper to jettison an otherwise sturdy piece of evidence of an extra-judicial confession on such a rickety premise.

Be it noted, in the famous Nanavati case, a statement made by the accused Nanavati to the Chowkidar of the building immediately after the shooting when he saw his wife in objectionable state with another man, was held to be an extra-judicial confession and treated as a direct piece of evidence of the guilt of the accused. In Ratan Gond v State of Bihar, AIR 1959 SC 18, the Supreme Court accepted the extra-judicial confession made by the accused in the house of the Mukhia of the village before some villagers. Similarly, in Sivakumar v State by Inspector of Police, (2006) 1 SCC 714 (723) (para 41), the Apex Court accepted the extra-judicial confession made before a village headman.

While craving my readers indulgence, let me further mention here that the principles which would make an extra-judicial confession an admissible piece of evidence quite capable of forming the basis of conviction of an accused have been well highlighted by Supreme Court in Sahadevan v State of TN, (2012) 6 SCC 403, in which it has been pointed out that –

1. The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.

2. It should be made voluntarily and should be truthful.

3. It should inspire confidence.

4. An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.

5. For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.

6. Such statement essentially has to be proved like any other fact and in accordance with law.

For my esteemed readers exclusive benefit, let me tell them that the Supreme Court has in many cases acquitted the accused whenever it found that the extra-judicial confession was not reliable or was weak or there was no corroboration or on any other ground which it considered as relevant for acquitting the accused. I will discuss some of them here of which I am aware and which I would like to also share with my readers. In Keshav v State of Maharashtra, (2007) 13 SCC 284(287) (para 9), it was alleged that the accused made confession to the wife of the deceased, who neither disclosed it to anyone nor lodged an FIR in that respect. The Apex Court held that the said extra-judicial confession was not reliable. In Polyami Sukada v State of MP, AIR 2010 SC 2977, it was held that the witnesses of confession did not inspire confidence. Their evidence was slippery. It was also held that conviction was not proper even if there was recovery of weapon on the basis of confession. But at the same time, the Apex Court also held that an extra-judicial confession need not be corroborated in all cases and conviction can be based solely on such confession. In Pakkirisamy v State of TN, AIR 1998 SC 107, it was held by Supreme Court that the extra-judicial confession of an accused cannot be taken into consideration in determining his guilt when it is not put to him in his examination under Section 313 of the Code of Criminal Procedure.

It is worth noting that in Jagta v State of Haryana, AIR 1974 SC 1545, the Apex Court held that, “An extra-judicial confession is, in the very nature of things a weak piece of evidence. There should be no difficulty in rejecting it if it lacks in probability.” In State of Karnataka v AB Nagaraj, AIR 2003 SC 666, it was alleged that the girl was killed by her father and step-mother in the national park. The confession was supposed to have been made during detention in the ‘Forest Office’ and there was no witness present. The evidence of extra-judicial confession was rejected. In Baldev Singh v State of Punjab, (2009) 6 SCC 564, the Apex Court held that the evidence of extra-judicial confession is generally of a weak nature. It was also held that no conviction ordinarily can be based solely thereupon unless the same is corroborated in material particulars and extra-judicial confession must be found to be reliable.

As pointed above, it is one of the most fundamental canon of criminal justice system that an extra-judicial confession to be reliable must be voluntary. Lord Parker, C.J., in Reg. v Smith, (1959) 2 Q.B. 35 at p. 39 held that, “It has always been the fundamental principle of the courts that a prisoner’s confession outside the court is only admissible if it is voluntary. In deciding whether an admission is voluntary the court had been at pain to hold that even the most gentle threats or slight inducements will taint a confession.” In State of Haryana v Jagbir Singh, 2003 (4) RCR (Criminal) SC 555, it was held by the Supreme Court that in order to make an extra-judicial confession reliable it must be shown that it was voluntarily made. Apart from the extra-judicial confession being voluntary, there are many other factors that needs to be taken into account to determine its genuineness. For example, it was held in Chattar Singh v State of Haryana, AIR 2009 SC 378, it was held by the Supreme Court that, “Whether the accused was a freeman when he confessed , one of the relevant factors. The value of the confession is determined by the veracity of the person to whom the confession is made and who appears to testify to it.” In Vinayak Shivajirao Pol v State of Maharashtra, AIR 1998 SC 1096 , confession of a military sepoy to his superior’s as to how he killed his wife and disposed off the dismembered parts of the body substantiated by recoveries, held to be capable of supporting conviction for murder without more.

It also must be brought out here that the extra-judicial confession may be either in writing or in oral as both of them are valid. Now when it comes to written confession the writing itself will be the best evidence but in case it is lost or is not available, then under such circumstances, the person before whom the confession was made can certainly be produced before the Court to depose that the accused made the statement before him.

It is imperative that before accepting extra-judicial confession on the basis of testimony of witness, the credentials of witness must be ascertained and examined properly. If witnesses are not reliable, it is not safe to rely on the extra-judicial confession made by the accused to them and on that basis alone convict the accused without any other evidence or independent corroboration. It is also imperative that the words used by those witnesses must be thoroughly examined before relying on them. In Heramba Brahma v State of Assam, AIR 1982 SC 1595, where a confession was made by an accused person to under trial prisoners who were awaiting trial for a heinous crime like dacoity which itself indicates that they were criminals and the High Court straightaway accepted their evidence without resorting to examining in minute detail the credentials of witness and without ascertaining in any manner the words used, the Supreme Court held that the evidence of extra-judicial confession was unworthy of belief and therefore liable to be rejected.

Now coming to another moot question: “Does delay in recording evidence in any manner affect the authenticity of extra-judicial confession?” Delay in recording evidence certainly affects the credibility and authenticity of extra-judicial confession if it is not properly explained but if it is properly and satisfactorily examined then it does not make any difference and conviction can still be based on extra-judicial confession. In this regard, it would be pertinent to discuss what happened in Ram Khilari’s case. In Ram Khilari v State of Rajasthan, AIR 1999 SC 1002, the appellant was convicted under Section 302, IPC on the basis of extra-judicial confession made by him to one Ram Kishan , who was father-in-law of his sister. His conviction was rightly upheld by the Apex Court as there was just no reason to disbelieve the statement of Ram Kishan. It was held to be quite probable that the appellant might have thought that he could get shelter in Ram Kishan’s house and therefore informed him what happened. The delay of 20 days in recording evidence was satisfactorily explained by the investigation and therefore no interference was warranted in his conviction on the basis of extra-judicial confession.

It must be underscored that any Court before basing a conviction on extra-judicial confession alone must be very careful when it comes to the words used by the accused while interacting with the witnesses and must make ensure that fabrications, concoctions and exaggerations don’t creep in any manner as that can push an innocent accused to conviction which would certainly tantamount to a great travesty of justice. In Mulk Raj v State of UP, AIR 1959 SC 902, it was held by Supreme Court that though court will require the witness to give the actual words used by the accused, yet it is not an invariable rule that the court should not accept the evidence if actual words are not given. Macaulay in his ‘History of England’, Vol 1 on page 283 very rightly points out that, “Words may easily be misunderstood by an honest man. They may easily be misconstrued by a knave. What was spoken metaphorically may be apprehended literally. What was spoken ludicrously may be apprehended seriously. A participle, a tense, a mood, an emphasis may make the whole difference between guilt and innocence.” Therefore, it merits no reiteration that wordings make a huge difference and it is the bounden duty of all courts concerned to fully understand in which sense the words have been used before basing any conviction on the basis of extra-judicial confession alone! It also must be borne in mind that many times a witness acts in good faith but there is unintended tricks of memory due to which there is misinterpretation and because of which an innocent accused can wrongly be convicted on the basis of extra-judicial confession alone which at all cost must be prevented by all concerned courts as that would result in a grave miscarriage of justice! At the same time all courts must bear in mind what the Supreme Court held in Narayan Singh v State of Madhya Pradesh, AIR 1985 SC 1678 that, “It is not open to any Court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witness who speaks to such a confession.” A balance thus has to be struck before a conviction or acquittal is recorded in such cases!

Continue Reading

Policy & Politics

Rewiring Brain: Neuroplasticity 

Researches reveal that learning any new language enhances brain’s functioning with respect to memory, attention, emotions, creative thinking skills and ability to multitask as it works on the grey as well as the white matter of the brain.

Published

on

INTRODUCTION

Until recently it was believed that our brains are hard-wired, just like computer or any other such equipment thus can never undergo changes and one has to remain with the type of brain he is born with. But researches show that the brain has the power to change itself. This idea of changes in brain’s function as well structure is termed as neuroplasticity. Earlier the Neuroscientists hold that neuroplasticity manifests in childhood only the research done in later half of the 20th century revealed that several aspects of brain can undergo alterations even in the adulthood. Moreover neuroplasticity insists don’t hold your brain as your in charge on contrary consider yourself as the in charge of your brain.

Rewiring your brain might sound complicated, but this is something very easy that can be done at home. Yes so here are some ways that would certainly help you to change the entire scene-

Play games- Yes, playing games is beneficial. Different games yield different benefits. Such as puzzle games improves brain connectivity, boosts problem solving while 3D adventurous games tends to improve memory, problem solving and scene recognition. Rhythm games like dance can help to improve the visuospatial memory as well as attention of the individual. Thus playing games can do miracles. Point to keep in mind that these effects emerge after about 16 hours of gameplay. But that shouldn’t be played at once.

Learning new Language- Researches reveal that learning any new language enhances brain’s functioning with respect to memory, attention, emotions, creative thinking skills and ability to multitask as it works on the grey as well as the white matter of the brain.

Music Therapy- A research from 2017 shows that music when combined with dance, gaming, exercise etc. helps in improving neuroplasticity. People associated with music have better focus and attention, better motor coordination and better visual perception.

Travel- if you enjoy traveling then there is one more reason to love traveling. It enhances cognitive flexibility, nourishes creativity and broadens world general view.

Enjoy relaxing moments- Take a break from work and give some time to brain for rest. This rest improves the creativity, helps to find out new solutions to the prevailing problems.

Meditation- Meditational practices strengthens the neural connections. Regular practice leads to good brain health, sustained focus and slackening mental stress. Calm brains have the power to hold overwhelming emotions and guards individual against unproductive worries.

Video Games- Playing video games undoubtedly harms our eyes and is being criticized for few problems associated to it but still it has various cognitive benefits such as motor coordination, spatial navigation, decision making, reasoning and resilience.

CONCLUSION

Psychologists as well as other experts use to stress that no changes are expected in brain after a certain point of age. But now this view has been discarded. As they now know that all this is possible at any point of age in entire lifespan.

All that one requires is just some time, dedication and patience. All the suggested activities may look quite simple but have huge impact.

Continue Reading

Policy & Politics

Marriage can be registered through video conference: Special Marriage Act

The court also batted for a common marriage law so as to shift everything online to make registration of marriage and divorce easier in tune with evolving technology.

Published

on

With the technological advancement, marriages can be registered under Special Marriage Act (SMA) 1954 through video conferencing said by Kerala High Court (Dhanya Martin V State of Kerala).

The observation was given by the two judges bench (Divisionbench) comprises of Justices A. Muhamed Mustaque and Kauser Edappagath. The observation was given while hearing the sets of petitions filed by person looking to solemnize their marriages under the Special Marriage Act through video conferencing.

The cases were referred by the single judge bench before the Division bench on 25th August, 2021. The Court held that it was only concern the way of identification of parties for the online registration of marriage and it is inclined to allow the matter. There is no difficulty to hold that in the era of technological advancement, marriage can also be registered without physical presence of the parties before the marriage officer. Therefore, marriage officer must be in a position to identify the parties through online video conference. The way to conduct such type of identification online has to be discussed.

The Court added that the parties have recommended two methods of identification. First method is the physical presence of the parties before the commission; if they are living abroad. Second method is the modern gadgets for identifying the parties with reference to facial recognition and biometric identifications.

STATEMENT OF ASG

The Court also informed the R Suvin Menon; Assistant Solicitor General (ASG) that it would needed the Union Government help in framing a mechanism that would permit usage of modern data and technology for this purpose. The ASG raised the concerns regarding the misuse of data and limitations on usage of facial recognition even in criminal prosecutions, the Court states that such concerned can be addressed but positive purposes for technology must be encouraged.

The Court said that the technology must have some restrictions against a person, but also can be used for the interest of individual. We can maximise the positive aspects and limits the negative one. The Court high lightened the importance of ease of setting up of uniform marriage law for the online registration and divorce.

The Bench said that court should switch everything online. This is the only reason for the requirement of common marriage law. Every marriage should be compulsory registered either private or personal. The marriage should be covered under the public law. In the modern technology, people can’t still bank on the physical method of marriage registration.

Public Prosecutor appearing for the Kerala government Gopi Nathan opposed and said that there is no provision under Special Marriage Act to register marriages before solemnisation before a marriage officer. In view of the Information Technology Act, no such type of provision is needed said by the Court. The provisions of the IT Act, especially Sections 4, 5 and 6, are read into all relevant present statutes.

OBSERVATION

In the case of State of Maharashtra V Paful B Desai, the Supreme Court held that evidence could now be recorded by means of video conferencing. It means that victim or witness can reported their statement through online video conferencing.

The Bench said that court should switch everything online. This is the only reason for the requirement of common marriage law. Every marriage should be compulsory registered either private or personal. The marriage should be covered under the public law. In the modern technology, people can’t still bank on the physical method of marriage registration.

Continue Reading

Policy & Politics

All-time high exports of engineering goods in August suggest pandemic may be behind us: EEPC India chairman

Tarun Nangia

Published

on

Reflecting strong demand from its key markets, engineering goods exports to 24 out of 25 top nations recorded positive growth in August, 2021 blowing past its previous monthly record of US$ 9.13 billion in July.

Unlike the previous months, exports to China registered the second largest export destination witnessing positive monthly growth in August 2021. Shipments to China rose 15% in August to reach US$ 613.3 million as compared to US$ 531.3 million in the same month last year.

Malaysia was the only country which saw a negative trend in import of engineering goods from India.

The US continued to be on top of the chart with August import of engineering goods from India growing 42% to US$ 1.3 billion as compared to US$ 916.5 million in the same month last year.

All the European countries for India’s top 25 engineering export destinations – Italy, Germany, Turkey, Belgium, UK, Poland, Spain and France recorded high positive growth during August as well as on a cumulative basis this fiscal.

The share of India’s engineering exports to its top 25 nations accounted for 76.8% of India’s total engineering exports in April-August 2021. This significant high share is indicative of the dependence of India’s engineering export on the traditional markets.

India’s engineering exports was at its all-time monthly high for the second straight month in August. The robust performance of the sector resulted in the share of engineering goods in total merchandise exports during the previous month rising significantly.

Share of engineering in total merchandise export was 27.68% in August 2021 as against 25.82% in July, 27.19% in June, 25.44% in May, 24.83% in April 2021 and 25.36 percent in March 2021.

“In the month of August, engineering goods exports recorded more than 40% growth even when compared with the same month in 2019. It now seems that the pandemic is behind us. We are positively hopeful that as a result of a turnaround in global trade and policy support the sector would do better than expected in the full financial year,” said EEPC India Chairman Mr Mahesh Desai.

“The annual target of US$ 107 billion looks very doable even though the achievement till August fell a bit short of the target when calculated on a pro-rata basis,” he said.

During April-August period of 2021-22, India’s engineering exports have fallen short of the target set by about US$ 1.82 billion calculated on a pro-rata basis achieving 40% of the target against 42% of desired level for the full year.

Engineering exports crossed US$ 9 billion mark consecutively for the second time after the month of July, reaching an all-time high of US$ 9.21 billion in August.

Cumulative engineering exports during April-August 2021-22 stood at US$ 42.91 billion registering 66.18% growth over the shipments of April-August 2020-21 at US$ 25.82 billion.

Out of 33 engineering panels or product groups, 29 panels witnessed positive growth in exports and remaining four panels witnessed negative export growth during August 2021 vis-à-vis August 2020.

Exports of iron and steel recorded a continuous growth to the extent of 142% in August 2021 compared to the same period last year. In case of non-ferrous metals, sectors like Zinc and products exhibited negative growth in exports to the extent of 26% during the month of August 2021 vis-a-vis August 2020. All the remaining segments showed positive growth.

All the seven panels under Industrial machinery exhibited positive growth in August 2021 which led the total industrial machinery panel increase by 39% during August 2021.

Electrical Machinery and equipment which is a major engineering exporting sector for India experienced a growth in exports both monthly and on cumulative basis increasing to the extent of 26.8% from US$ 692.9 million in August 2020 to US$ 878.4 million in August 2021.

The automobile sector (combination of Two and Three wheelers and Motor vehicles and Cars) recorded consecutive massive jumps in exports to the extent of 57.5% primarily due to sharp jump in exports of Two and Three Wheelers by 72.4% and Motor Vehicles by 52.5% during August 2021.

Exports of Aircrafts and Spacecraft parts and products recorded 12.8% negative monthly growth while ‘Ship, Boats and Floating Bodies’ exhibited a monthly decline of 21.7%.

“The government has relentlessly supported the industry and we hope that the two key issues of high raw material prices and container shortage would also be looked into. The industry is awaiting proper rates under RoDTEP,” said EEPC India Chairman.

Continue Reading

Policy & Politics

Centre provides a massive relief to the exporters

The government releases Rs 56,027 crore under various Export Promotion Schemes.

Tarun Nangia

Published

on

The Government of India has decided to budget Rs 56,027 crore in this Financial Year FY 21-22 itself in order to disburse all pending export incentives due to exporters. This amount includes claims relating to MEIS, SEIS, RoSL, RoSCTL, other scrip based schemes relating to earlier policies and the remission support for RoDTEP and RoSCTL for exports made in the 4th quarter of FY 20-21. Benefits would be disbursed to more than 45,000 exporters, out of which about 98% are small exporters in the MSME category.

The amount of Rs 56,027 crores of arrears is for different export promotion and remission schemes: MEIS (Rs 33,010 crore), SEIS (Rs 10,002 crore), RoSCTL (Rs 5,286 cr), RoSL (Rs 330 crore), RoDTEP(Rs 2,568 crore), other legacy Schemes like Target Plus etc (Rs 4,831 crore). This amount is over and above duty remission amount of Rs 12,454 crore for the RoDTEP scheme and Rs 6,946 crore for RoSCTLscheme already announced for exports made in this year i.e. FY 2021-22.

Exports in India have seen robust growth in recent months. Merchandise exports for April-August, 2021 was nearly $164 billion, which is an increase of 67% over 2020-21 and 23% over 2019-20. This decision to clear all pending export incentives within this financial year, will lead to even more rapid export growth in coming months.

For merchandise exports, all sectors covered under MEIS, such as Pharmaceuticals, Iron and steel, Engineering, Chemicals, Fisheries, Agriculture and allied Sectors, Auto and Auto Components would be able to claim benefits for exports made in earlier years. Benefits would help such sectors to maintain cash flows and meet export demand in international market, which is recovering fast this financial year.

Service sector exporters, including those in the travel, tourism and hospitality segments will be able to claim SEIS benefits for FY 2019-2020, for which Rs 2,061 crore has been provisioned. The SEIS for FY 2019-20 with certain revisions in service categories and rates is being notified. This support would have a multiplier effect and spur employment generation.

The apparel sector, which is a major labour-intensive sector, would get past arrears under ROSCTL and ROSL, and all stakeholders in the interconnected supply chains would be strengthened to meet the festive season demand in international markets.

Export claims relating to earlier years will need to be filed by the exporters by 31st December 2021 beyond which they will become time barred. The Online IT portal will be enabled shortly to accept MEIS and other scrip based applications and would be integrated with a robust mechanism set up by Ministry of Finance to monitor provisioning and disbursement of the export incentives under a budgetary framework.

A decision to clear all pending export incentives within this Financial Year itself despite other budgetary commitments arising out of the pandemic is with the objective of providing timely and crucial support to this vital pillar of Indian economy.

FIEO HAILS GOVERNMENT’S DECISION TO DISBURSE ALL PENDING EXPORT INCENTIVES TO EASE THE LIQUIDITY AT MOST CHALLENGING TIMES: DR SAKTHIVEL

Welcoming the government’s decision of budgeting an amount of Rs 56,027 crores to disburse all pending export incentives due to exporters as claims related to different export promotion and remission schemes including MEIS, SEIS, RoSL, RoSCTL, other scrip-based schemes relating to earlier policies and the remission support for RoDTEP and RoSCTL for exports made in the 4th quarter of FY 20-21, FIEO President, Dr A Sakthivel said that such a move will help the sector in meeting the liquidity concerns and maintaining cash flow of the exports sector thereby further facilitating in addressing the export demand in the international market.

Benefits to be disbursed to over 45,000 exporters, specially those from the MSME sector has come as a booster dose for them as it would help them to be able to complete their booked order more efficiently, said Dr Sakthivel. Thanking the Hon’ble Prime Minister, the Union Commerce & Industry and Textiles Minister and the Union Finance Minister, President, FIEO added that the decision will lead to an even more rapid growth in exports in coming months.

FIEO Chief said that support to Service sector exporters, including those in the travel, tourism and hospitality segments, with certain revisions in service categories and rates being notified will not only have a multiplier effect but will also help in employment generation. Incentivising major labour-intensive sectors and all the stakeholders including those from the supply chain will help in strengthening their endeavours to meet the festive season demand in the international market.

Such support and handholding to the sector during these challenging times, when the whole exporting community is showing their commitment and resilience to perform impressively has definitely given a boost to the government vision of achieving USD 400 billion exports for the fiscal. Dr Sakthivel said that these announcements has further infused confidence in exporters that the Government is working hand in hand with exporters as promised by our Hon’ble Prime Minister.

Continue Reading

Policy & Politics

Analysing a bill passed by Rajasthan Assembly that allows registration of child marriages

Surya Pratap

Published

on

“Unity is meaningless without the accompaniment of women. Education is fruitless without educated women and agitation is incomplete without the strength of women.”

— Dr BR Ambedkar

The opposition Bharatiya Janata Party (BJP) charged on September 17 that the Rajasthan Compulsory Registration of Marriages (Amendment) Bill, 2021, which was passed by voice vote in the state Assembly to amend a 2009 Act on mandatory marriage registration within 30 days of the union, will legitimise child marriages.

Despite parliamentary affairs minister Shanti Kumar Dhariwaldefended the Bill by claiming that registering child marriage does not make it legitimate, the opposition staged a walkout. He also promised that anyone who organise child weddings, even after they have been registered, will face consequences.

JUDGMENT OF THE SC IN 2006

The minister further informed the House that the Supreme Court had ordered that all forms of weddings be registered in its 2006 decision in Seema vs Ashwini Kumar.

He claimed that registering child weddings does not legitimisethem, and that if a kid gets married, he or she will have the ability to dissolve the marriage once they reach adulthood.

WHAT DOES THE BILL STATE?

On 17 September, the Rajasthan Assembly passed the Rajasthan Compulsory Registration of Marriages (Amendment) Bill, 2021, which changes the Rajasthan Compulsory Registration of Marriages Act, 2009, and requires parents or guardians to provide information on child marriages within 30 days after the wedding.

The Bharatiya Janata Party (BJP) questioned the need for child marriage registration and asked that the law be withdrawn. “How can they include child marriage in this Bill if child marriage is prohibited? All of this is done by Congress in order to create a vote bank.” If this measure passes, the assembly will have a bad day. Is it possible for the assembly to agree to legalise child marriages? We shall approve child weddings by a show of hands. The bill would write a dark chapter in the assembly’s history. Ashok, a BJP MLA.

WHAT DOES THE GOVERNMENT SAY?

Shanti Kumar Dhariwal, the Parliamentary Affairs Minister, defended the legislation, saying, “The bill makes no mention of the legality of child marriage. According to the bill, only registration is required after marriage. This is not to say that child marriage is legal. The district collector can still take action against underage marriages if he or she so desires.”

Dhariwal further stated that the legislation now allows for registration at the District Marriage Registration Officer, Additional District Marriage Registration Officer, and Block Marriage Registration Officer levels. These officers will be able to monitor and review the work of registration. This will make it easier for the general public to register. This will bring simplicity and transparency to the work. He further said that the marriage registration certificate was a legal document without which widows would be unable to benefit from numerous government programmes. According to him, any or both parties in a marriage will be entitled to file for marriage registration and get a certificate as a result of the mandatory registration.

MARRIAGES IN INDIA

Although no comprehensive data is available, estimates show that at least 1.5 million girls under the age of 18 marry each year in India, making it the country with the most child brides in the world, accounting for a third of the global total. While the percentage of females marrying before the age of 18 has decreased from 47% to 27% between 2005-2006 and 2015-2016, it is still too high.

Multiple reasons, including greater maternal literacy, improved access to education for girls, robust laws, and migration from rural to urban regions, may be contributing to the reduction. Among the reasons for the shift include increased rates of girls’ education, aggressive government investments in teenage girls, and strong public messaging about the illegality of child marriage and the harm it causes.

At the global level, child marriage is included in Goal 5 “Achieve gender equality and empower all women and girls” Under Target 5.3 “Eliminate all harmful practices, such as child, early and forced marriage and female genital mutilation”.

Continue Reading

Trending