Month: March 2013

Corruption: Procedure for investigation

Investigation into the complaints against Public Servants
for abuse of their Official position:

Necessity of investigation into allegations of corruption:

The adverse impact of lack of probity in public life leading to a high degree of corruption is manifold. It also has adverse effect on foreign investment and funding from the International Monetary Fund and the World Bank who have warned that future aid to under-developed countries may be subject to the requisite steps being taken to eradicate corruption, which prevents international aid from reaching those for whom it is meant. Increasing corruption has led to investigative journalism which is of value to a free society. The need to highlight corruption in public life through the medium of public interest litigation invoking judicial review may be frequent in India but is not unknown in other countries.
[See R v Secretary of State for Foreign andCommonwealth Affairs, (1995) 1 WLR 386.]

Of course, the necessity of desirable procedures evolved by court rules to ensure that such a litigation is properly conducted and confined only to mattes of public interest is obvious. This is the effort made in these proceedings for the enforcement of fundamental rights guaranteed in the Constitution in exercise of powers conferred on this Court for doing complete justice in a cause. It cannot be doubted that there is a serious human rights aspect involved in such a proceeding because the prevailing corruption in public life, if permitted to continue unchecked, has ultimately the deleterious effect of eroding the Indian polity. As a result of the aforesaid discussion, we hereby direct as under:

Procedure for investigation laid down by Supreme Court of India:

I. CENTRAL BUREAU OF INVESTIGATION (CBI) AND CENTRAL VIGILANCE COMMISSION (CVC)

1. The Central Vigilance Commission (CVC) shall be given statutory status.
2. Selection for the post of Central Vigilance Commissioner shall be made by a Committee comprising the Prime Minister, Home Minister and the Leader of the Opposition from a panel of outstanding civil servants and others with impeccable integrity to be furnished by the Cabinet Secretary. The appointment shall be made by the President on the basis of the recommendations made by the Committee. This shall be done immediately.
3. The CVC shall be responsible for the efficient functioning of the CBI. While Government shall remain answerable for the CBI’s functioning, to introduce visible objectivity in the mechanism to be established for over viewing the CBI’s working, the CVC shall be entrusted with the responsibility of superintendence over the CBI’s functioning. The CBI shall report to the CVC about cases taken up by it for investigation; progress of investigations; cases in which chargesheets are filed and their progress. The CVC shall review the progress of all cases moved by the CBI for sanction of prosecution of public servants which are pending with competent authorities, specially those in which sanction has been delayed or refused.
4. The Central Government shall take all measures necessary to ensure that the CBI functions effectively and efficiently and is viewed as a non-partisan agency.
5. The CVC shall have a separate section in its Annual Report on the CBI’s functioning after the supervisory function is transferred to it.
6. Recommendations for appointment of the Director, CBI shall be made by a Committee headed by the Central Vigilance Commissioner with the Home Secretary and Secretary (Personnel) as members. The views of the incumbent Director shall be considered by the Committee for making the best choice. The Committee shall draw up a panel of IPS officers on the basis of their seniority, integrity, experience in investigation and anti – corruption work. The final selection shall be made by Appointments Committee of the Cabinet (ACC) from the panel recommended by the Selection Committee. If none among the panel is found suitable, the reasons the reasons thereof shall be recorded and the Committee asked to draw up a fresh panel.
7. The Director, CBI shall have a minimum tenure of two years, regardless of the date of his superannuation. This would ensure that an officer suitable in all respects is not ignored merely because he has less than two years to superannuate from the date of his appointment.
8. The transfer of an incumber Director, CBI in an extraordinary situation, including the need for him to take up a more important assignment, should have the approval of the Selection Committee.
9. The Director, CBI shall have full freedom for allocation of work within the agency as also for constituting teams for investigations. Any change made by the Director, CBI in the Head of an investigative team should be for cogent reasons and for improvement in investigation, the reasons being recorded.
10. Selection/extention of tenure of officers upto the level of Joint Director (JD) shall be decided by a Board comprising the central Vigilance Commissioner, Home Secretary and Secretary (Personnel) with the Director, CBI providing the necessary inputs. The extension of tenure or premature repatriation of officers upto the level of Joint Director shall be with final approval of the Board. Only cases pertaining to the appointment or extension of tenure of officers of the rank of Joint Director or above shall be referred to the Appointments Committee of the Cabinet (ACC) for decision.
11. Proposals for improvement of infrastructure, methods of investigation, etc. should be decided urgently. In order to strengthen CBI’s in-house expertise, professionals from the revenue, banking and security sectors should be inducted into the CBI.
12. The CBI Manual based on statutory provisions of the Cr. P.C. provides essential guidelines for the CBI’s functioning. It is imperative that the CBI adheres scrupulously to the provisions in the Manual in relation to its investigative functions, like raids, scizure and arrests. Any deviation from the established procedure should be viewed seriously and severe disciplinary action taken against the concerned officials.
13. The Director, CBI shall be responsible for ensuring the filing of chargesheets in courts within the stipulated time limits, and the matter should be kept under constant review by the Director, CBI
14. A document on CBI’s functioning should be published within three months to provide the general public with a feedback on investigations and information for redress of genuine grievances in a manner which does not compromise with the operational requirements of the CBI.
15. Time limit of three months for grant of sanction for prosecution must be strictly adhered to. However, additional time of one month may be allowed where consultation is required with the Attorney General (AG) or any other law officer in the AG’s office.
16. The Director, CBI should conduct regular appraisal of personnel to prevent corruption and/or inefficiency in the agency.

III. ENFORCEMENT DIRECTORATE

1. A Selection Committee headed by the Central Vigilance Commissioner and including the Home Secretary, Secretary (Personnel) and Revenue Secretary, shall prepare a panel for appointment of the Director, Enforcement Directorate. The appointment to the post of Director shall be made by the Appointments Committee of the Cabinet (ACC) from the panel recommended by the Selection Committee.
2. The Director, Enforcement Director like Director, CBI shall have a minimum tenure of two years. In his case also, premature transfer for any extraordinary reason should be approved by the aforesaid Selection Committee headed by the Central Vigilance commissioner.
3. In view of the importance of the post of Director, Enforcement Directorate, it shall be upgraded to that of a Additional Secretary/Special Secretary to the Government.
4. Officers of the Enforcement Directorate handling sensitive assignments shall be provided adequate security to enable them to discharge their functions fearlessly.
5. Extensions of tenure upto the level of Joint Director in the Enforcement Directorate should be decided by the said Committee headed by the Central Vigilance Commissioner.
6. There shall be no premature media publicity by the CBI/Enforcement Directorate.
7. Adjudication/commencement of prosecution shall be made by the enforcement Directorate within a period of one year.
8. The Director, Enforcement Directorate shall monitor and ensure speedy completion of investigations/adjudications and launching of prosecutions. Revenue Secretary must review their progress regularly.
9. For speedy conduct of investigations abroad, the procedure to approve filing of applications for Letters Rogatory shall be streamlined and, if necessary, Revenue Secretary authorised to grant the approval
10. A comprehensive circular shall be published by the Directorate to inform the public about the procedures/systems of its functioning for the sake of transparency.
11. In-house legal advice mechanism shall be strengthened by appointment of competent legal advisers in the CBI/Directorate of Enforcement.
12. The Annual Report of the Department of Revenue shall contain a detailed account on the working of the Enforcement Directorate.

III. NODAL AGENCY

1. A Nodal Agency headed by the Home Secretary with Member (Investigation), Central Board of Direct Taxes, Director General, Revenue Intelligence, Director, Enforcement and Director, CBI as members, shall be constituted for coordinated action in cases having politico-bureaucrat- criminal nexus.
2. The Nodal Agency shall meet at least once every month.
3. Working and efficacy of the Nodal Agency should be watched for about one year so as to improve it upon the basis of the experience gained within this period.

IV PROSECUTION AGENCY

1. A panel of competent lawyers of experience and impeccable reputation shall be prepared with the advice of the Attorney General Their services shall be utilised as Prosecuting Counsel in cases of significance. Even during the course of investigation of an offence, the advice of a lawyer chosen from the panel should be taken by the CBI/Enforcement Directorate.
2. Every prosecution which results in the discharge or acquittal of the accused must be reviewed by a lawyer on the panel and, on the basis of the opinion given, responsibility should be fixed for dereliction of duty, if any, of the concerned officer. In such cases, strict action should be taken against the officer found guilty of dereliction of duty.
3. The preparation of the panel of lawyers with approval of the Attorney General shall be completed within three months.
4. Steps shall be taken immediately for the constitution of an able and impartial agency comprising persons of unimpeachable integrity to perform functions akin to those of the Director of Prosecutions in U.K. On the constitution of such a body, the task of supervising prosecutions launched by the CBI/Enforcement Directorate shall be entrusted to it.
5. Till the constitution of the aforesaid body, Special Counsel shall be appointed for the conduct of important trials on the recommendation of the Attorney General or any other law officer designated by him.
The learned amicus curiae had urged us to issue directions for the appointment of an authority akin to the Special or Independent Counsel in the United States of America for the investigation of charges in politically sensitive matters and for the prosecution of those cases and to ensure that appointments to sensitive posts in the CBI and other enforcement agencies and transfers therefrom were not made by the political executive. We are of the view that the time for these drastic steps has not come. It is our hope that it never will, for we entertain the belief that the investigative agencies shall function far better now, having regard to all that has happened since these writ petition were admitted and to the directions which are contained in this judgment. The personnel of the enforcement agencies should not now lack the courage and independence to go about their task as they should, even where those to be investigated are prominent and powerful persons.

[Source: Vineet Narain Vs. Union of India. (Supreme Court of India)]

Comment: This is an elaborate procedure laid down for investigation. However the procedure works when the human beings follow the procedure with letter and spirit. But since the laying down of procedure, high functionaries in all departments above were found to be not diligently following the procedure. Many resigned due to this reason. It is wondered how the Jan Lokpal or Public Ombudsman, if created by legislation is going to work honestly. How honest persons of integrity will be appointed as Ombudsman if they could not be found for aforesaid mechanism?

Corruption: Locus standi of a private person.

Locus Standi of a private person to file complaint of corruption:

Complaint in respect of allegations of Prevention of corruption Act, 1988:

It is a well recognised principle of criminal jurisprudence that anyone can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary. The scheme of the Code of Criminal Procedure envisages two parallel and independent agencies for taking criminal offences to court. Even for the most serious offence of murder, it was not disputed that a private complaint can, not only be filed but can be entertained and proceeded with according to law.

Locus standi of the complainant is a concept foreign to criminal jurisprudence save and except that where the statute creating an offence provides for the eligibility of the complainant, by necessary implication the general principle gets excluded by such statutory provision. Numerous statutory provisions, can be referred to in support of this legal position such as:

(i) Section 187-A of Sea Customs Act, 1878
(ii) Section 97 of Gold Control Act, 1968
(iii) Section 6 of Import and Export Control Act, 1947
(iv) Section 271 and Section 279 of the Income Tax Act, 1961
(v) Section 61 of the Foreign Exchange Regulation Act, 1973,
(vi) Section 621 of the Companies Act, 1956 and
(vii) Section 77 of the Electricity Supply Act.

This list is only illustrative and not exhaustive. While Section 190 of the Code of Criminal Procedure permits anyone to approach the Magistrate with a complaint, it does not prescribe any qualification the complainant is required to fulfil to be eligible to file a complaint. But where an eligibility criterion for a complainant is contemplated specific provisions have been made such as to be found in Sections 195 to 199 of the CrPC. These specific provisions clearly indicate that in the absence of any such statutory provision, a locus standi of a 24 complainant is a concept foreign to criminal jurisprudence. In other words, the principle that anyone can set or put the criminal law in motion remains intact unless contra-indicated by a statutory provision. This general principle of nearly universal application is founded on a policy that an offence i.e. an act or omission made punishable by any law for the time being in force is not merely an offence committed relation to the person who suffers harm but is also an offence against society. The society for its orderly and peaceful development is interested in the punishment of the offender. Therefore, prosecution for serious offences is undertaken in the name of the State representing the people which would exclude any element of private vendetta or vengeance. If such is the public policy underlying penal statutes, who brings an act or omission made punishable by law to the notice of the authority competent to deal with it, is immaterial and irrelevant unless the statute indicates to the contrary. Punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait- jacket formula of locus standi unknown to criminal jurisprudence, save and except specific statutory exception. To hold that such an exception exists that a private complaint for offences of corruption committed by public servant is not maintainable, the court would require an unambiguous statutory provision and a tangled web of argument for drawing a far fetched implication, cannot be a substitute for an express statutory provision.
The only conclusion that unquestionably emerges is that Section 5-A is a safeguard against investigation of offences committed by public servants, by petty or lower rank police officer. It has nothing to do directly or indirectly with the mode and method of taking cognizance of offences by the Court of Special Judge. It also follows as a necessary corollary that provision of Section 5-A is not a condition precedent to initiation of proceedings before the Special Judge who acquires power under Section 8(1) to take cognizance of offences enumerated in Section 6(1)(a) and (b), with this limitation alone that it shall not be upon commitment to him by the Magistrate.

[Source: A.R. Antulay v. R.S. Nayak, 1984 AIR SC 718, 1984 SCR (2) 914, (Supreme Court of India)]

The above observations were made in respect of Section 5-A of Criminal Laws (Amendment) Act, which was similar to section 19 of Prevention of Corruption Act, 1988 and therefore were followed by Supreme Court of India under that Act, as well.

(See Subramanium Swamy vs. Manmohan Singh)

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Sanction for prosecution of Public Servants in India.

Prosecution of Public Servants in India, for corruption:

Consideration and scope of powers of Competent Authority:

Section 19 of Prevention of Corruption Act, 1988 of India, governs the sanction for prosecution which is under:

19. Previous sanction necessary for prosecution. – (1) No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office.(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),:
(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;
(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;
(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.
(4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.Explanation. – For the purposes of this section,
(a) error includes competency of the authority to grant sanction;
(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.

Function of Authority competent to grant sanction for prosecution of public servants:

Grant or refusal of sanction is not a quasi judicial function and the person (public servants) for whose prosecution the sanction is sought is not required to be heard by the Competent Authority before it takes a decision in the matter. What is required to be seen by the Competent Authority is whether the facts placed before it which, in a given case, may include the material collected by the complainant or the investigating agency prima facie disclose commission of an offence by a public servant. If the Competent Authority is satisfied that the material placed before it is sufficient for prosecution of the public servant, then it is required to grant sanction. If the satisfaction of the Competent Authority is otherwise, then it can refuse sanction. In either case, the decision taken on the complaint made by a citizen is required to be communicated to him and if he feels aggrieved by such decision, then he can avail appropriate legal remedy. 

[Source: Subramanium Swamy v. Manmohan Singh (Supreme Court of India)]

Time limit for Prosecution for Corruption

Delay in granting sanction for prosecution of public servants:

Time limit for sanction for prosecution:

Prosecution for corruption in India is dealt with by section 19 of Prevention of Corruption Act, 1988 which requires that prosecution must obtain prior sanction from the Government. In practice the Government would sit on the application for sanction forever. The supreme court has recently read down this provision and set a time limit within which, if no decision is taken, the permission to prosecute shall be deemed to have been granted.

Deemed sanction for prosecution in case of delay:

The Parliament should consider the Constitutional imperative of Article 14 enshrining the rule of law wherein `due process of law’ has been read into by introducing a time limit in  Section 19 of the P.C. Act 1988 for its working in a reasonable manner. The Parliament may, in my opinion, consider the following guidelines:
a) All proposals for sanction placed before any Sanctioning Authority, empowered to grant sanction for the prosecution of a public servant under section 19 of the P.C. Act must be decided within a period of three months of the receipt of the proposal by the concerned authority.
b) Where consultation is required with the Attorney General or the Solicitor General or the Advocate General of the State, as the case may be, and the same is not possible within the three months mentioned in clause (a) above, an extension of one month period may be allowed, but the request for consultation is to be sent in writing within the three months mentioned in (a) above. A copy of the said request will be sent to the prosecuting agency or the private complainant to intimate them about the extension of the time limit.
c) At the end of the extended period of time limit, if no decision is taken, sanction will be deemed to have been granted to the proposal for prosecution, and the prosecuting agency or the private complainant will proceed to file the chargesheet/complaint in the court to commence prosecution within 15 days of the expiry of the aforementioned time limit.

However the above Observation has been made by only one Judge i.e. Asok Kumar Ganguli, J. and not assented by G.S.Singhvi, J., it only has persuasive value at present. At best this paper tiger can only persuade future judges or legislatures to make it binding.

[Source: Subramanium Swamy v. Manmohan Singh (Supreme Court of India)]

Conviction, Sentence and Parole

Balancing conviction, sentence and parole of the prisoners:

Object of parole is three fold:

  • Firstly, the use of parole as a motivational force for reforming the prisoners.
  • Secondly, to keep the family ties intact as the family ties are likely to be broken because of the long periods of incarcerations.
  • Thirdly, to slowly draw the misled soul back into the folds of the society. Since, punishment should be more reformative and less retributive, the role of parole as a reformative measure has to be acknowledged. By denying parole at the drop of a hat is to ignore the importance of parole in the jail administration.

[Source Buddhi v. State of Rajasthan, 2005 (10) RDD 4380. (Supreme Court of India)]

Importance of reform of Prisoner:

We feel that correctional strategy is integral to social defence which is the final justification for punishment of the criminal. And since personal injury can never psychically heal, it is obdurate obscurantism for any legislative criminologists to reject the potential for prisoner re-socialisation from the calculus of reformative remission and timely release. ……..We need not tarry long to tell the truth that every sinner has a future, given the social chance, and every prisoner a finer chapter as a free person, given the creative culturing of his psychic being.”

Objective of penology:

“A Judicial journey to the penological beginning reveals that social defence is the objective. The triple purposes of sentencing are retribution, draped sometimes as a public denunciation, deterrence, another scary variant, with a Pavlovian touch, and in our era of human rights, rehabilitation, founded on man’s essential divinity and ultimate retrievability by raising the level of consciousness of the criminal and society. We may avoid, for the nonce, theories like ‘society prepares the crime, the criminal commits it;’ or that crime is the product of social excess’ or that’poverty is the mother of crime’.”

Human dignity requires compassion for convicts:

“The mood and temper of our Constitution certify that arbitrary cruelty to the prisoner and negative attitude to reformation of the individual are obnoxious. Even the recent ruling in Bachan Single on the vires of death penalty upholds this high stance.”
“Human dignity, emphasised in the Preamble, compassion, implicit in the prescription of fair procedure in Art. 21, and the irrationality of arbitrary incarceratory brutality violative of Art. 14 invest the demand for a reformatory component in jail regimen with the status of a constitutional requirement. “

Conclusions on conviction, sentence and reforms:

(12) In our view, penal humanitarianism and rehabilitative desideratum warrant liberal paroles, subject to security safeguards, and other humanizing strategies for inmates so that the dignity and worth of the human person are not desecrated by making mass jails anthropoid zoos. Human rights awareness must infuse institutional reform and search for alternatives.
(13) We have declared the law all right, but law-in-action fulfils itself not by declaration alone and needs the wings of communication to the target community. So, the further direction goes from this court that the last decretal part is translated and kept prominently in each ward and the whole judgment, in the language of the State, made available to the inmates in the jail library.
(14) Section 433A does not forbid parole or other release within the 14-year span. So to interpret the Section as to intensify inner tension and intermissions of freedom is to do violence to language and liberty.

[Source: Maru Ram v. Union of India, 1981 (1) SCC 107. (Supreme Court of India)]

Denial of Parole:

In exercise of powers conferred by sub-section 6 (6) of Section 401 of the Code of Criminal Procedure, 1898 (Old Act), the Government of Rajasthan framed the Parole Rules known as Rajasthan Prisoners Release on Parole Rules, 1958. The Rule 9 thereof is as under:-

“9. Parole period.- A prisoner, who has completed with remission, if any (one-fourth) of his sentence and subject to good conduct in the Jail, may be released on 1st parole for 20 days including days of journey to home and back, and for 30 days on 2nd parole provided his behaviour has been good during the 1st parole and for 40 days on third parole provided his behaviour has been good during the second parole. If during the third parole also the prisoner has behaved well and his character has been exceedingly well and if the prisoner’s conduct has been such that he is not likely to relapse into crime, his case may be recommended to the Government through the State Committee for permanent release on parole on such conditions as deemed fit by the Superintendent Jail and the District Magistrate concerned; the chief condition among them being that if the prisoner while on parole commits any offence or abets, directly or indirectly, commission of any offence, he has to undergo the unexpired portion of the sentence in addition to any sentence imposed upon him by reason of such an offence. In case the permanent release on parole is rejected, the prisoner will be eligible for release on parole for 40 days every yearsubject to the same conditions for the remaining of his sentence;
Provided that cases of prisoners who have been sentenced to imprisonment for life, for an offence for which death penalty is one of the punishments provided by law or who have been sentenced to death but this sentence has been commuted under Section 433 of Code of Criminal Procedure into one of life imprisonment shall not be placed before the State Committee for permanent release on parole unless he has served 14 years of imprisonment excluding remission, but including the period of detention passed during enquiry, investigation or trial. Such prisoners may be released on parole for 40 days every year for the remaining period of their sentence subject to the conditions stated above.”

Permanent release of prisoner on Parole:

“So far as permanent release on parole is concerned, it cannot depend upon the prisoner’s availing or non- availing the benefit of first, second and third parole and the prisoner can show his behaviour while serving sentence in prison to be of standard on the basis of which, the prisoner can be released on permanent parole which may be of such standard as it would have been of the standards if prisoner would have been released on parole and lived outside the prison where he may have shown while on parole. In such cases the prisoner’s character and conduct within jail will be relevant. In case, he because of his ignorance or because of lapse on the part of jail authorities of not bringing in the knowledge of the prisoner about his right under rule 9, 17 missed the opportunity to avail the benefits of first, second and third or any of the above parole but not because of his fault then such person can not be denied the benefit under the Rules of 1958.
The aim and object behind framing the Rules of 1958 are very important because of simple reason that after the life, the liberty is most important right of a person and if one is entitled to or can be given liberty even for short period, then such liberty cannot depend upon procedural formalities of moving application and seeking liberty, particularly when liberty has been taken away of such person (though, in accordance with law) or is under control of some authority who has lawful right to restrict the liberty of a person as in the case, after conviction of a person. It is more important because of the reason that in spite of the fact that persons are lodged in prison because they committed crime and some of the crimes may be of very heinous nature and the law framers were conscious of the fact that some offenders may not be lightly released on parole, yet they made provision in the Rules of 1958 by enacting rule 14 by using liberal language for release of offenders who have committed heinous crimes and provided that the classes of prisoners mentioned in sub-clauses (a) to (d) ordinarily will not be eligible for release on parole. The law framers have not prescribed total ban on the release on parole of prisoners who have committed heinous offences referred under clauses (a) to (d) under rule 14. This also suggests towards the intention of the law framers that even the penal law should be reformative in nature so as to reform the person and to achieve the object of law to punish the offender with clear aim and object to reform the offender so that he can adjust and settle in the society again and may be given more opportunities to interact with his family members and society.”

[Source: Srawan Kumar v. State. (High Court of Rajasthan, India)

In reaching the above conclusion the Rajasthan High Court relied upon following definition of parole given in Wikipedia:

All of the meanings originated from the French parole (“voice”, “spoken word”). Following developed a plan to prepare them (prisoners) for eventual return to society that involved three grades. The first two consisted of promotions earned through good behavior,labor, and study. The third grade in the system involved conditional liberty outside of prison while obeying rules. A Violation would return them to prison and starting all over again through the ranks of the three grade process.

Criminal Breach of trust and cheating

Ingredients to constitute criminal breach of trust or cheating:

Civil wrong v. Criminal wrong:

Bare perusal of the FIR lodged by the complainant, would indicate that he had got in touch with the appellant so as to extend the benefit of Appellant’s Channel “GOD TV”; to his other brethren residing at Ahmedabad. For the said purposes, he had met the owner of Siti Cable, Bapi Nagar in Ahmedabad and negotiated a settlement for a sum of Rs. 10 lacs on behalf of the Appellant’s Company as the fee to be paid to Siti cable by Appellant for telecast of channel “God TV” in Ahmedabad. Further grievance of the Complainant was that despite the telecast of “GOD TV”, the Appellant, as promised, failed to pay a sum of Rs. 10 lacs to the owners of Siti cables. This is what has been mentioned in nutshell in the complainant’s FIR. We have grave doubt, in our mind whether on such averments and allegations, even a prima facie case of the aforesaid offences could be made out against the present appellant.

The matter appears to be purely civil in nature. There appears to be no cheating or a dishonest inducement for the delivery of property or breach of trust by the Appellant. The present FIR is an abuse of process of law. The purely civil dispute, is sought to be given a colour of a criminal offence to wreak vengeance against the Appellant. It does not meet the strict standard of proof required to sustain a criminal accusation.

Existence of ‘dishonest intention’:

Intention should be dishonest ‘before start of transaction’:

Criminal breach of trust is defined under Section 405 IPC and Section 406 thereof deals with punishment to be awarded to the accused, if found guilty for commission of the said offence i.e. with imprisonment for a term which may extend to three years, or with fine, or with both.

Section 420 of the IPC deals with cheating and dishonestly inducing delivery of property. Cheating has been defined under Section 415 of the IPC to constitute an offence. Under the aforesaid section, it is inbuilt that there has to be a dishonest intention from the very beginning, which is sine qua non to hold the accused guilty for commission of the said offence. Categorical and microscopic examination of the FIR certainly does not reflect any such dishonest intention ab initio on the part of the appellant.

Civil dispute:

In such type of cases, it is necessary to draw a distinction between civil wrong and criminal wrong as has been succinctly held by this Court in Devendra Vs. State of U.P., 2009 (7) SCC 495, relevant part thereof is reproduced hereinbelow:

A distinction must be made between a civil wrong and a criminal wrong. When dispute between the parties constitute only a civil wrong and not a criminal wrong, the courts would not permit a person to be harassed although no case for taking cognizance of the offence has been made out.

Accordingly proceedings were quashed.

[Source: Joseph Salvaraj A. v. State of Gujarat, (2011) 7 SCC 59 (Supreme Court of India)]

Definition and scope of Hinduism.

Can a Hindu remain Hindu after conversion?

Hinduism:

Hinduism being the world’s oldest religious tradition, incorporates all forms of belief and worship without necessitating the selection or elimination of any. The Hindu is inclined to revere the divine in every manifestation, whatever it may be, and is doctrinally tolerant. A Hindu may embrace a non-Hindu religion without ceasing to be Hindu, and since the Hindu is disposed to think synthetically and to regard other forms of worship, strange gods, and divergent doctrines as inadequate rather than wrong or objectionable, he tends to believe that the highest divine powers complement each other for the well-being of the world and mankind. The core of religion does not even depend on the existence or non-existence of God or on whether there is one god or many. Since religious truth is said to transcend all verbal definition, it is not conceived in dogmatic terms. Hinduism is then both a civilization and a conglomerate of religions with neither a beginning, a founder, nor a central authority, hierarchy, or organization. Since religious truth is said to transcend all verbal definition, it is not conceived in dogmatic terms. Hinduism is then both a civilization and a conglomerate of religions with neither a beginning, a founder, nor a central authority, hierarchy, or organization.

The conundrum which has blocked the minds of a few today was given a riposte by Swami Vivekananda in the following words:

…we tend to reduce everyone else to the limits of our own mental universe and begin privileging our own ethics, morality, sense of duty and even our sense of utility. All religious conflicts arose from this propensity to judge others. If we indeed must judge at all, then it must be `according to his own ideal, and not by that of anyone else’. It is important, therefore, to learn to look at the duty of others through their own eyes and never judge the customs and observances of others through the prism of our own standards.

It would not be proper to hold that the painter/petitioner had a deliberate intention to manifestly insult Bharat Mata which is clear from his various interviews and reports placed on record where he has consistently maintained that he actually celebrates nudity and considers it as the purest form of expression. It also cannot be lost sight of that he had immediately withdrawn the said painting from the auction and apologised to those offended, thus making it clear that his is only an artistic impulse.

[Source: Maqbool Fida Hussain v. Raj Kumar Pandey. (Delhi High Court)]

Comments about conversion:

The observation of the court in this case seems to be slightly exaggerated. An apt example in favour is orthodox Hindus attending Sikh Gurudwara. Most Punjabi Hindu do it. It does not affect their status. But there are other circumstances as well. While it is correct that migration or movement within the numerous branches or analogous religions may not affect the status as Hindu but the effect is not the same if a persons adopts a monolithic religion which cannot be reconciled with Hinduism at all. Except with the core principle of ‘Nirgun Brahm ki Upasana’. Statutory law on Hindu Marriage provide conversion to another religion as a ground for divorce. Therefore it shall be necessary to read above judgement in that context only. Further the observations about conversion are obiter dicta. There was no issue before the court to decide about validity of conversion. Hence the observations have only persuasive authority to be tested in appropriate case.