BASIC PROCEDURE -PROCESS OF COURTS

THE BASIC PROCEDURE-PROCESS OF the Trial COURTS  

Basic understanding of procedure /process of courts in both criminal and civil cases in nut-shell [for dummies] ,not a exhaustive commentary or reference material:

Many Young students/Advocates take time to understand procedural laws.Only careful and meticulous study ,one can learn procedural law with ease.

To become successful lawyers,one must muster procedural laws,we often ignore it,when we study at university.The mustering procedural laws should be given utmost importance along with substantive law.

"CIVIL"

The procedure involved in civil cases.

Plaint:Preparing PLAINT (in duplicate) along with [a]Verifying affidavit

[b]Valuation slip

[c]Vakalatnama 

[d]List of documents

[e]Interim Application(IA)

[f]Process fees

[g]Copies for the court & other side i.e defendants  

        

Filing-Filing of plaint before Chief Ministerial Officer[Sherestedar)–paying appropriate court fee &process fees.

Numbering :Initially S.R No. will allotted, after office scrutiny[it may returned for lack of clarity in documentation or discrepancies or vagueness in drafting ], if registry/office  is satisfied ,number [OS .no e.g 01/2012] will be allotted, the file will come before the bench /court.It is first hurdle in civil cases.

        

Hearing on IA No.1 (if any IA is filed for immediate relief e.g Interim Application[out of order] like restrain order or injunction order)

        

Interim Order :If IA is allowed, comply with the order. [compliance means sending IA copy to the other side by Registered  Post with Acknowledgment   due  and filing affidavit to that effect in the court]- On every interim application ,there will be stages to be followed by either of the party–objection by the other side – Hearing– Order on said IA.

 

-Or the court will issues Notice/Summons to other side.

       

-Return of notice

       

-If other side appears, they will file vakalat or they will be placed ex-parte. 

 -If notice is not served to the other side[due to wrong address ]

-Steps to re-issue the summons to be taken by filing process or take steps to give public notification in news paper advertisement, if address of defendants is not known.

         

-Written statement-If the other side appears, matter will be posted for Written statement of defendants

     

-Issues–after filling of Written Statement ,the court will frame issues involved in the case[suit]

        

-Evidence–after framing the issues ,evidence of plaintiff ((PW) by way of filing affidavit and exhibiting the documents

       

-Cross examination–Cross examination of plaintiff. 

    

-Evidence–evidence of defendant by way of filing affidavit and exhibiting the documents.

-Cross examination–Cross examination of the defendant.

       

-Argument–Court will hear arguments of the plaintiff counsel.

      

-Argument–Court will hear arguments of the defendant counsel.

 

FINALE JUDGEMENT

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" CRIMINAL" 

-FIR[First Information Report]–complaint to police registers FIR-Sec-154 Cr. P .C.,-FIR sets criminal law into motion.[Private Complaint can be filed in magistrate court ,which will beagain referred to police for investigation],FIR is not compendium ,all details are not necessary.

 -Cr.No will be allotted e.g Cr. No. 12/2012-Malakpet P.S .. &CD    will be maintained as per procedure.

        

 -INVESTIGATION:on investigation accused will be arrested.Police will visit the scene of crime,collect evidence-when,how,where,whom,why&other incriminating material,conduct panchanama /inquest[P.M will be conducted at civil hospital to a-certain the cause of death  ],police will start pining down the suspects with available clues at scene of the crime/offence.

     

-PRODUCTION–accused will be produced before the Magistrate,accused will be send  to judicial custody[after examination by the doctor to ascertain  the fitness of accuse]

        

-BAIL–application for bail is to be filed (if Bailable -u/s 436, Non-Bail able -u/s 437 before Magistrate ,in bailable cases ,bail is matter of right unlike non–bail able cases) an anticipatory bail can be sought for apprehension of arrest.

       

-OBJECTIONS–APP will file objections  after receiving instructions from concerned Police Station.

       

-HEARING–Court will hear the matter.

  -ORDER–Order on bail 

       

-FINALE REPORT /CHARGE SHEET–the police will file Final Report i.e.Charge sheet,detail report mentioning offences committed by the accused,witness[PW],Exhibits-weapons recovered-Post Morten &expert reports.Complainant can object charge sheet ,magistrate can ask police to file charge sheet again.[if the offences are trial able by sessions court, the court will commit the matter to the sessions court] 

-HEAR BEFORE CHARGE–It is mandatory for court to hear the matter before charge 

-CHARGE–Charges framed by the court will be read over to the accused and ask them,whether they are guilty ?. If the accused denies the guilt, plead innocence, and then it will be posted for trial,if accused plead guilty,no question of trial. 

-TRAIL–court will issue summons to the Witnesses for trial. 

-EXAMINATION- IN- CHIEF-chief examination of witnesses by APP. 

-CROSS EXAMINATION–Cross examination by counsel/Adv. for accused. 

-MANDATORY 313 CR.PC  STATEMENT–read over by judge to the accused. 

-ARGUMENTS–arguments by Public Prosecutor &Defence counsel. 

-JUDGEMENT

-If in FIR offences alleged are exclusively triable by Sessions Court then a separate Criminal Misc is to be filed before the Sessions court for bail.

      

-CRIMINAL MISC– Criminal Misc petition for bail is to be filed before Sessions court along with certified copy of First Information Report & complaint.

        

-NOTICE TO PUBLIC PROSECUTOR–Court will issue notice to Public Prosecutor

      

-OBJECTIONS–Public Prosecutor [after getting instructions from concerned police station] will file objections or oppose bail

-HEARING OF ARGUMENTS–Court will hear the arguments.

       

-ORDER–Order on bail, if bail is rejected, accused can file bail application again, there is no bar on filing no. Of  bail applications,

accused can approach High court /Supreme court,if bail is rejection by the trial court.

       

- After filing of the charge sheet, the lower[magistrate] court will commit the matter to Sessions court and session court will after framing the charges, fix the dates for trial and above mentioned procedure of evidence/mode of trial will be followed.

Quantum of Sentence -Court will decide quantum of sentence after accused is found guilty of offences as alleged in the charge sheet.

-JUDGMENT-pronouncement of Sentence.

References &Read more : 

1.Criminal Procedure code ,1973.

2.Civil Procedure code,1908.

3.Indian Evidence Act 1872 

Note :The basic procedure ,which is followed by the trial courts,pl report,if any discrepancies,omissions or error exists in above note or construction ,suggestions will also be appreciated.This is not reference material but reconstruction from reference material .This is for dummies

Bhopal Gas Leak Case [criminal]

Bhopal Gas Leak Case:The gist of  the case :

IN THE COURT OF CHIEF JUDICIAL MAGISTRATE BHOPAL MP (Presided By Mohan P.Tiwari)

State of MP Vs. Warren Anderson & others Cr. Case No. 8460 / 1996

Names of Accused :

1.  Sri Warren Anderson S/O Sri John Martin Anderson Former Chairman, Union Carbide Corporation,Danbury Connecticut ,USA(declared Absconder)
2. Sri Keshub Mahindra ,Chairman, Union Carbide India Ltd. Bhopal,
3. Sri Vijay Prbhaker GokhleManaging Director,Union Carbide India Ltd 
4. Sri Kishore Kamdaar,Vice President i/c AP Division UnionCarbide India Ltd 
5. Sri J. Mukund former Works Manager AP Division Union Carbide India Ltd., 
6. SriDr.R.B.Roy Choudhary (dead) Asst.Works Manager AP Division Union Carbide India Ltd. , 
7. SriS.P.Choudhary, Production Manager AP Division Union Carbide India Ltd. , 
8. Sri KV Shetty PlantSuperintendent Works Manager AP Division Union Carbide India Ltd. Bhopal
9. Sri SI Qureshi former Operator AP Division Union Carbide India Ltd 

[ All were employed in the Union Carbide of India Limited (In short UCIL)

Accused Charged under :


All Accused persons  charged under Section 304A 336,337 and S.338 r/w section 35 of Indian Penal Code 1860.

History of UCIL :

Union Carbide India Ltd.(in short UCIL) is a subsidiary company of the Union Carbide Corporation (in short UCC) USA. UCE Inc. was the Regional Office of UCC, USA which controlled the UCIL, India and others. The UCIL was incorporated on 24th December, 1959. 

The UCC was a major shareholder with 50.9% of the share holdings in the UCIL UCIL Bhopal Plant pesticide under brand name Sevin and Temik were manufactured with the help of MIC,Phosgene &Chloroform.

It is stated There were three storage tanks in the plant for the storage of liquid MIC. These tanks were designated as E610, E611 and E619. 

Cause of Action/Date of Accident :  

On the intervening night of 2nd and 3rd Dec.1984 from the tank no. E610 a huge quantity of MIC-Methyle Isocynate (CH3 N=C=O)(MIC)escaped which caused the death immediately of thousands of humans beings and also caused simple and grevious injuries to a number of people, some of whom became permanently disabled and the number of effected persons is near about 5 lacs.Thousands of animals and other creatures had also been effected.

Case was Registered: 

The case was registered with P.S.Hanumanganj, Bhopal on 02.12.1984 at crime No.1104/84 dt. 03.12.84 u/s 304A IPC by the then SHO Surinder Singh ,on 6.12.84 , a case was registered with CBI as RC.3/84ACUI

Expert Team Investigation :


Team of scientists headed by Dr. S.Vardarajan Director General of CSIR with other scientists, the facts were noticed that MIC was stored in large quantities, the valves and other pipelines used in the UCIL, Bhopal were made up of Iron Steel, Galvanized Iron, Aluminium, Zinc, Copper or their alloys and a fact also revealed that possible entry of water into the Tank 610 when the water washing was going on.

CBI Filed Charge sheet :

CBI filed this Charge Sheet u/s 304, 324, 326, 429 IPC R/W Section 35 of IPC against the accused persons, namely Shri Warren Anderson&others:Committed to Court of Sessions for the trial according to law vide Order dated 22.6.1992

Supreme Court Dilution of Charge: 


Hon'ble Supreme Court in Criminal Appeal No.1672/1996 dated 13.9.1996 directed that the case be tried u/s 304A of IPC and the matter was remanded to trial Court for trial u/s 304A, 336, 337, 338 and section 35 IPC Accordingly, the charges were framed.

Prosecution Witness/Accused were examined: 



Prosecution has examined 178 witnesses in their favour. accused persons have been examined u/s 313 Cr.P.C.

Accused Pleaded Innocent:

They have submited that :

• They are not liable for any incident.They were even not present on the site when the gas leaked. 
• They further submitted that it is a mistake of one or the other local employee of the UCIL. They further state that the factory was designed by the UCC,USA which is having expertize in the field of MIC based pesticides business through out the world having lot of experience, therefore, 

Hence ,they can not be held guilty for the alleged offense.

Points for Consideration by the court :

• Whether on or about the night intervening 2nd & 3rd December, 1984 at Bhopal caused the death of 3828 or more people by doing an act to wit by running a defective plant of MIC a dangerous volatile and poisonous substance having a number of operational defects without reasonable care which resulted in leakage of the poisonous gas from tank No.610 of AP Division of UCIL Bhopal, which was a rash or negligent act not amounting to culpable homicide and sharing the common knowledge of the same did not do anything to avoid the escape of the gas. 

• Whether the accused persons can be held guilty of the same negligible act by running the same defective plant of MIC without reasonable care and caution without informing the local people about the remedial precautions which resulted in the leakage of the gas from tank No.610 endangering human life and personal safety sharing the common knowledge.

• Whether the accused persons can be held guilty of the same negligible act by running the same defective plant of MIC without reasonable care and caution without informing the local people about the remedial precautions which resulted in the leakage of the gas from tank No.610 endangering human life and personal safety sharing the common knowledge thereby causing simple injuries to the people.

• Whether the accused persons can be held guilty of the same negligible act by running the same defective plant of MIC without reasonable care and caution without informing the local people about the remedial precautions which resulted in the leakage of the gas from tank No.610 endangering human life and personal safety sharing the common knowledge thereby causing grievous injuries to the people.

Sentence : 


The accused persons namely under section 304A
read with Section 35 IPC 

(1)Sri Keshub Mahindra,

(2)Sri Vijay Prabhaker Gokhle.

(3)Sri Kishore Kamdaar,

(4)Sri J.Mukund

(5)Sri S.P.Choudhary,

(6)Sri KV Shetty

(7)Sri SI Qureshi, 

holding guilty for the offence punishable under sections 304A/ 35 of Indian Penal Code,1860 for an imprisonment of 2 years and fine of Rs.100,000.00 each, and  under section 336 Indian Penal Code, 1860 an imprisonment of 3 months.

Curative Petition Filed by CBI:


There was condemnation from all quarters as accused got away with[lesser punishment ] merely 2 yrs sentence for the grave crime ,which is regarded as  world most dangerous environmental disaster. 

The CBI filed curative petition in the Hon'ble Supreme Court on dilution of charge ,the same rejected by the Hon'ble court ,it was approached after the lapse of 15 yrs.

Bhopal Gas Leak Case Analysis :Was a Catastrophe Waiting to Happen

Bhopal Gas Leak Case Analysis :Was a Catastrophe Waiting to Happen’ -Part-II

The most industrial disasters are preventable provided,proper safety measures are undertaken by the management,what happened in Union Carbide factory,it was deliberate and intentional negligence of the management by ignoring the safety measures of the plant,especially,when plant is storing deadly chemical ,that too in the name of cost cutting measures ,jeopardizing the safety of the entire city of Bhopal.      

Some of horrible mistakes by UCC were reported in an UN report ‘was a catastrophe waiting to happen’ 

• The cooling system supposed to keep MIC at zero degree temperature was turn off six months before accident the same held for the burner in the tower for burning off the poson.Both steps had been taken with approval of company headquarters.The scrubbers capable of neutralizers MIC exhaust fumes had been placed in passive mode ,two months before the accident

• The spray system designed to pull escaping MIC fumes  to the ground by surrounding them in a mist was effective only to height of  12 meters, but then MIC fumes were released at height of  33  meters.

• The pipes were made of iron rods instead of stainless steel called by regulations.

These were some of the notable flagrant violations, which were overlooked by corrupt administration.There was accident in that plant before 1984, same was overlooked parent organization.Many organizations pleaded that Central Burea of India to should visit WEST VIRGINIA plant to inspect safety measures under taken in their chemical plant, same was not given credence by the CBI.

The testimony of flagrant violations is that of T.R Chouhan[Chemical plant operator who worked with UCC}, wrote in book Inside the killer carbide plant-A Bhopal worker’s story  was published by Apex press of New York in 1994.Even though CBI used services of Mr Chouhan,but he was transferred to minor job as industrial inspector in a small town near Bhopal.


 

Bhopal gas leak case revisited – was a catastrophe waiting to happen-part-I

Bhopal gas leak case revisited  – ‘was a catastrophe waiting to happen’  -Part-I

“There will be two eventualities in this world one is environmental destruction and other is war on Iran” Fidel Castro in a public address after recovering from illness.  

India happened to witness world dangerous environmental catastrophe,which shaken entire world ,on intervening night to 2 /3 rd December 1984 ,40 tonnes of deadly chemical methyl isocyanate[MCI] stored in pesticide factory was released into atmosphere resulting instant  death of thousands of people and several thousands of people injured or became chronically ill or died after prolong illness.The entire world condemned this criminal negligence of pesticide factory.

The official immediate death toll was 2,259 and the government of Madhya Pradesh has confirmed a total of 3,787 deaths related to the gas release.Others estimate 3,000 died within weeks and another 8,000 have since died from gas-related diseases,even after 27 yrs of disaster ,the victims are waiting for compensation and rehabilitation from the government.Ironically only 8 officials were convicted[merely two years,after Supreme court reduced charge to two years in 1996 ],but senior management official of the DOW like Anderson ,neither extradited or punished. 

Union Carbide[UCIL] paid $470m (£282m) in compensation to the Indian government after out of court settlement and same was upheld by Supreme Court of India,company also agreed for fund &group medical insurance ,estimated $17 million to treat 10,000 people, who may later develop symptoms. 

later DOW bought UCIL in 1999,contended that compensation issue is resolved and no claims will be entertained.

Environmental legislation in India:  

India is one of few countries,which has constitutional safe guards for the protection of environment.The directive principles of State policy and Fundamental Duties have specific provisions for the protection of environment.Most pollution cases fall under categories of nuisance, negligence and  principle of strict liability. 

The 42nd  Amendment to the Indian Constitution in 1976 introduced principles of environmental protection in the Constitution through Articles 48A and 51A(g).

After the Stockholm conference ,the Air Act and Environment act was enacted ,under Article 253 of the Constitution,the parliament can make laws to fulfill the  obligation under international conventions.

There are about 200 acts and statues in the field of environmental protection, still India is lagging behind in protecting the environment and our law makers never consider pollution and environment as an important national issue. 
The Panchayats, Municipalities and Municipal Corporations are duty bound to protect ecology and environment,any negligence on their part is punishable offence. 

Some of Leading cases  in Environmental Jurisprudence in India 
 

• The public right to decent living was recognised in Municipal Council, Ratlam Vs. Vardhichand, AIR 1980 ,a land mark in environmental jurisprudence, Justice Krishna Iyer justified magistrate action under Section 133 CrPC to remove public nuisance.

• In Rural Litigation and Entitlement Kendra, Dehradun, AIR 1985 SC 652,lime-stone quarries pose danger to ecology ,environment and public health.

• In Shriram Foods and Fertilizer Industries and another, AIR 1987 SC 965, leak of olium gas lead to death of several people including Advocate,Supreme Court awarded compensation.

• M.C. Mehta Vs. Union of India, AIR 1988 SC 1115,leading environmental lawyer filed PIL to clean up the river Ganga,which got polluted due to untreated sewerage water.

• Vellore Citizens Welfare Forum, AIR 1996 SC 2715 ,one of the landmark judgement under environmental jurisprudence recognizing ‘Sustainable Development.

• M.C. Mehta Vs. Union of India, AIR 1999 SC 291-for use of CNG and phasing out old vehicles.

• M.C. Mehta Vs.Union of India, AIR 1999 SC 734 -for shifting of tanneries and protect Taj Mahal.

•  AIR 2000 SC 3510, for the protection of  Yamuna river,Delhi.

 

• M.C. Mehta Vs. Kamal Nath, AIR 2002 SC 1515; damages from Span Hotels Private Ltd. for ecological damage of  Beas river.

• In Murli S. Deora vs Union Of India And Ors ,AIR 2002 SC 40-banning smoking in public places.

The Principle Judicial Remedies under Indian Law 


The remedies includes Damages, Injunction under section 94,95-order 39 of CPC,perpetual injunction under section 37-42 of Specific Relief Act,Nuisance under Indian Penal Code 1860 Section 268 ,and proceeding before magistrate to remove nuisance under section 133-144 of Criminal procedure Code,1973,civil action under section 91 of civil procedure code ,1908 in civil court.The principle of absolute liability was developed by the court in the post-Bhopal period and later adopted by legislation.

Public Liability Insurance Act (PLIA), 1991 [1992] The Central Government has been  authorized to establish the Environmental Relief Fund, for  the purpose of making relief payments.

National Environment Tribunal Act,1995 was enacted to  provide strict liability for damages arising out of any accident occurring while handling any hazardous substance and for the establishment of a National Environment Tribunal for effective and expeditious disposal of cases arising from such accidents 


The institutional frame work includes  

• Ministry of Environment and Forests (MOEF), 
• the Central Pollution Control Board (CPCB), 
• State Departments of Environment, 
• State Pollution Control Boards (SPCBs) 
• Municipal Corporations.

The National Environment Appellate Authority Act, 1997 : establishment for appellate authority under Environment (Protection) Act, 1986 for operation of industry.

Special Act for Bhopal case : 

The special act was enacted by the parliament called Bhopal Gas Leak Disaster[processing of claims]act in March 1985  to claim compensation behalf of victims from DOW. 
The Bhopal act conferred the exclusive right on the Indian Government acting as parens patriae  is Latin term  for "parent of the nation".[In law, it refers to the public policy power of the state to intervene against an abusive or negligent parent, legal guardian or informal caretaker, and to act as the parent of any child or individual who is in need of protection,the Hart-Scott-Rodino Antitrust Improvement Act of 1976 (15 USC 15(c)), through Section 4C of the Clayton Act, permits state attorneys general to bring parens patriae suits on behalf of those injured by violations of the Sherman Antitrust Act.] to represent all claimants both inside and outside India and directed the government to register and process the claims. The Constitutional validity was challenged in the Supreme Court and constitutional validity was up held by the apex court, which gave right to government of India to represent claimants in India and outside India.

Basic Principles of Environmental Law :

Strict liability is liability for which mens rea (Latin for "guilty mind") does not have to be proven in relation to one or more elements comprising the actus reus (Latin for "guilty act") although intention, recklessness or knowledge may be required in relation to other elements of the offence. Strict liability laws were created in the 19th century to improve working and safety standards in factories. Needing to prove mens reas on the part of the factory owners was very difficult and resulted in very few prosecutions.
Justice Ahmedhi maintained that there is no concept of strict liability in India ,reacting to criticism for diluting the charge under culpable homicide not  amounting.

Rylands v Fletcher [1868] UKHL 1 is a landmark English tort law ,often cited by courts in environmental cases.It applied the doctrine of strict liability for inherently dangerous activities (on appeal by Rylands, the House of Lords confirmed the previous judgment but restricted the rule to a non-natural use of the land}

Polluter pays principle:Polluter pays Principle is also known as extended polluter responsibility (EPR).This is a concept that was probably first described by the Swedish government in 1975 and same mentioned in Principle 16 of the Rio Declaration on Environment and Development.
Some eco-taxes underpinned by the polluter pays principle include:Gas Guzzler Tax, in USA[Corporate Average Fuel Economy (CAFE)- a "polluter pays"]. 

The U.S. Superfund law requires polluters to pay for cleanup of hazardous waste sites, when the polluters can be identified.

Real Encounters Vs Fake Encounters in India :An Analysis

Real Encounters V Fake Encounters in India:An Analysis

There is intense legal scrutiny of police encounters by the courts,most notorious encounter cases in India like  Ishrat Jahan[SIT admitted encounter is not real but fake] or Maoist leader Azad attracted lot of media,general public civil society and academic community attention.Ironically,Most general public don't know real difference between real and fake encounter or made to believe that all encounters are real,but real fact is all encounters are not real encounters.

The real encounters means state-owned force or police opens fire on armed criminals,indigenous armed people groups or non-state actors as a  retaliatory measure to defend civilians or themselves or safeguard  public life or Institutions of public importance like Mumbai attack or 9/11 US attack or Indian parliament attack or attack on police /armed forces convoy.



The moot questions for debate, 

• What kind of compensation to be awarded for constitutional torts[abuse of fundamental rights]in case of abuse  or misuse of authority by the public authorities acting under sovereign powers.

• Whether there is any straight jacket formula to determine compensation for the violation of fundamental  rights.

• Whether awarding compensation for victims of abuse of Fundamental rights will act as deterrence for public officials.

• Whether they are liable for abuse of fundamental rights in a individual capacity or state should take responsibility for abuse.

• Whether public official argument that , they have acted under pressure or orders of superior officers or under pressure  person in seat of the power[executive ]can be considered and hold good in law ,answer is no.   

Where civil rights debate begins : 

The civil rights debate surfaces,where there is abuse of power violating right to life,personal liberty and human rights,the issue of human rights abuses surfaces,when armed forces or police project the fake encounter as a real encounter.
The most fake encounters are nothing but cold blooded murder by state owned -police  or armed forces with out any legal sanction,theoretically speaking,no civil rights group or Human rights lawyer can object the real encounters.The issue of Human rights abuses only surfaces,when policeman behaves arbitrarily and exceeds statutory power. 

Human Rights watch, the Amnesty International has said that over thousand people were killed in ‘faked encounters’ in India between 1993 and 2008,speaks volumes of the criminalization of police force.

Significance of Article 21&Constitutionalism: 


Protection of life and personal liberty:"No person shall be deprived of his life or personal liberty except according to procedure established by law"


After Maneka Gandhi[AIR 1978 SC 597]case,the scope of Article 21 was widened,it was held that " A person can be deprived of his life and personal liberty  only when,first condition,there must be a law and second condition is there must be a procedure prescribed by that law, provided that the procedure is just, fair and reasonable." 

The experts also criticizes the draconian preventive detention laws,which is  against the spirit of freedom of life and liberty.

The illegal arrest,illegal detention,custodial violence,and extra -judicial killing like encounters are sworn enemies of individual liberty and constitutionalism.

No cause can justify encounters:

No legitimate cause can justify ill-legitimate encounters.In A.P India,Warangal District ,alleged acid attackers were killed in an encounter,after they gruesomely attacked girl with acid,which invited public outrage.The police justified their encounter on the ground that their killing received wide public support.

No police man possess right to kill any body in the name of encounter,even if he is acting under orders of superior officers or person in the seat of authority.

"Fake encounters are nothing but cold-blooded, brutal murder by persons who are supposed to uphold the law.In our opinion, if crimes are committed by ordinary people, ordinary punishment should be given but if the offence is committed by policemen much harsher punishment should be given to them because they do an act totally contrary to their duties,"  Justice Katju,while advocating death sentence for fake encounters.

Remedies &Compensation under Indian Constitution :

Where there is right,there is a remedy,any citizen can approach courts to protect their fundamental rights under Article 32 and Article 226 through writs.Any citizen can approach courts for abuse or curtailment of fundamental rights as enshrined part-III of Indian Constitution. 

If citizens 's fundamental rights are violated by the public authorities acting under sovereign power, they can get monetary compensation[constitutional torts-compensatory jurisdiction ]

In the following cases compensation awarded by courts for violation of Fundamental Rights acting under sovereign power. 

•  Devaki Nandan Prasad V State of Bihar ,1983(4) SCC 20 -pension was delayed for 12 yrs &compensation was awarded.  

• Khatri &others V State of Bihar &others 1 [1981] SCC 627 -Bhagalpur Blinded Prisoners case  

• Rudal Shah V State of Bihar [1983]4 SCC 141-prolonged detention after acquittal -Compensation awarded.

• State of Rajasthan V Vidya wati  AIR 1962 SC 933-death due to rash &negligent driving by Government jeep driver. 

• Nilabati Behra V State of Orissa[AIR 1993 SC 1960]- custodial death.

• State of Madhya Pradesh V shantibai [AIR 2005 M.P 66]-Negligent firing to clear the mob,resulting death of person standing on roof of their house.

• Bhim Singh V State of J.K [AIR 1986 SC 494]-Illegal arrest. 

• Kalavati V state of Himachal Pradesh [AIR 1989 HP 5]-Negligence in Government hospital resulting death of two persons.

• Saheli V Commissioner of Police Delhi[AIR 1990 SC 513]Death of boy due to beating &assaulting by the police. 

• C Ramkonda Reddy V State of A.P [AIR AP 235] -Inmates of jail died as bombs were hurled-compensation sought. 

• D.K Basu V Union of India [19971 SCC 416 -No yardstick to be followed for compensation -cost to cost method of computation of compensation should be adopted. 

• Union of India V Prabhakaran [2008] (9) SCC 527 -extended principle to cover public utilities like railways,electricity ,public corporation and local bodies ,which are not working for profit.

• In a case [1995],A.P High Court bench headed by then Chief Justice Js  Prabha Shankar Mishra ordered case to be booked under 302 IPC for fake encounters,Billal Nazki also agreed with view of Mishra in another[Manala case]J.Narsimha Reddy &Yethirajulu deferred on the ground that specific police officers to be mentioned as accused.  

NHRC's directions on Encounter killings  : 

The NHRC noted that in cases of killing by police by firing, prima facie, the ingredients of 299 IPC are satisfied and Section 157 of Cr. PC is attracted calling for investigation. 

The Commission made the following recommendations especially in regard to encounter deaths.

[a]When the police officer in charge of a police station receives information about deaths in an encounter between the police party and others, he shall enter the information in the appropriate register.

[b]The information as received shall be regarded as sufficient to suspect the commission of a cognizable offence and immediate steps should be taken to investigate the facts and circumstances leading to the death to ascertain what, if any, offence was committed and by whom.

[c] As the police officers belonging to the same police station are the members of the encounter party, it is appropriate that the aces are made over for investigation to some other independent investigation agency such as State CID. 

[d]) Question of granting of compensation to the dependents of the deceased may be considered in cases ending in conviction if police officers are prosecuted on the basis of the results of the investigation. 

 Ironically ,these directions are not followed in letter and spirit by state police.

The Concept of Sovereign immunity:

In Vidyawati  case rejected the argument of state Sovereign immunity and awarded compensation for fundamental rights abuse,in Nilabati Behra case, it was held by Supreme Court that ,the  concept of sovereign immunity is not applicable to fundamental rights abuse cases.Kasturi Lal V state of U.P[AIR 1965]distinguished state sovereign functions and non state sovereign functions.

U.S A &Constitutional Torts :

§ 1983 provides that: "Every person who, under color of any statute, ordinance, regulation, custom or usage, of any state or territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction of the United States to the deprivation of any rights, privileges or immunities secured by the Federal Constitution and its laws, is liable to the party injured in an action at law, suit in equity or other proper proceeding for redress"


Conclusion : 



There should be accountability on part of the police and public authorities towards human rights abuse,no abuse of power or position should be tolerated at any level ,what ever causes might be  or even acting under superior orders or person of high position[Executive]. The state should strive for 'Zero tolerance' for H.R abuses.  


There is a need for suitable legislation to make public authorities viable for infringement of fundamental rights as guaranteed under Constitution and for human rights abuses as India is signatory to Universal Declaration of Human Rights. 

In recent Uphaar Cinema case[http://www.indiankanoon.org/doc/1691320/] ,Supreme Court Bench headed by R.V Raveendran.J and K.S Radhakrishnan.J  said 

• There is a need for comprehensive legislation to make public authorities liable like UK section 6 of  Human Rights act ,1998  makes a public Authority liable for damages iif it is found to have committed breach of London Borough South work [2003] EWCA CV 1406 (2) WLR 

• Due to lack of legislation courts dealing with  torts claims against state and officials not following uniform pattern ,while deciding those cases and this at times leads to undesirable consequences and arbitrary fixation of compensation amount . 
 

From 2001 to 2010, the National Human Rights Commission (NHRC) recorded 14,231 i.e. 4.33 persons died in police and judicial custody in India. This includes
1,504 deaths in police custody and 12,727 deaths in judicial custody from 2001-2002 to 2009-2010[1]

The Asian Centre for Human Rights (ACHR) has consistently underlined that about 99.99% of deaths in police custody can be ascribed to torture and occur within 48 hours of the victims being taken into custody.[2]

The statistics of NHRC&ACHR speaks volumes of abuse of power by police or armed forces,which warrants serious action from the state to ensure safeguarding the Human Rights of citizens and give adequate compensation for abuse of their fundamental rights.    

 

References :

 

• HRC Annual Report 2001-2008 & Unstarred Question No. 1475, Answered by Minister of State in the Ministry of Home Affairs, Mr Jitendra Singh in the Lok Sabha on 9.08.2011.

• http://www.achrweb.org/reports/india/torture2011.pdf

• http://www.pucl.org/reports/AndhraPradesh/2001/note.htm