26 years on, HC orders fresh probe into tribal activist’s murder


Mumbai: Twenty-six years after an activist was murdered for fighting a battle against the land mafia of Vasai-Virar belt in neighbouring Thane district, the Bombay High Court has ordered a fresh probe.

The real culprits were not put on trial and instead a wrong accused was put behind the bars, the Court said.

Bombay High Court. Reuters

Bombay High Court. Reuters

Yadav Mhatre, actively involved in the welfare of the Adivasis (tribals), was killed on June 29, 1987 allegedly at the behest of the land mafia.

Police had arrested a wrong person named Dilip Tumbda who was finally acquitted by the Sessions Court in 2009 after spending 22 years in jail.

On the other hand, eight persons of a family who were named accused by the victim’s family were discharged by the Court after police filed an application seeking their release on the ground that evidence against them was deficient.

The High Court observed, “real culprits were being shielded although they are named by the prosecution. The criminal case, therefore, could not have been disposed of perfunctorily and hastily and without application of mind, when the allegations are as serious as of causing murder.

“These are not routine and ordinary criminal cases involving petty offences. The aspect of delay, though material, is not always fatal. The administration of justice can never become a casualty. Even after delay, if real culprits are brought before the Court, thereafter the Courts cannot become a silent spectator and dispose of criminal cases casually and light heartedly,” Justice S Dharmadhikari said.

The judgement rendered in this Court, therefore, falls short of the required standards. It has resulted in serious miscarriage of justice.

“In the Sessions Case, where the material placed before the Court show that the real accused were not apprehended, arrested and put up for trial, then, the learned Judge should have been cautious and careful in evaluating the material,” Justice Dharmadhikari remarked.

“Even if he (Judge) was not inclined to convict those who are arraigned as accused, still he was obliged to consider the seriousness of the matter.

“The learned Judge failed to take cognisance and note of the request of the applicant and the prosecution, that the real culprits are now traced and they be named as accused in the case and put up for trial,” the High court bench observed.

“Without deciding that application in accordance with law and straightway delivering a Judgement of acquittal has resulted in miscarriage of justice. This is complete mockery of criminal justice delivery system.”

“I would be failing in my duty as a higher court if I do not interfere with such an acquittal. In revisional powers and equally in exercise of this Court’s inherent power, such acquittals can be set aside,” Justice Dharmadhikari said.

“No doubt, powers have to be exercised sparingly and in exceptional circumstances. However, when there is a glaring defect of procedure, manifest error on the point of law and a flagrant miscarriage of justice, then, there is a obligation to step in,” he observed.

On June 28, 1987, the deceased, Yadav Mhatre, was on his way to Bhabha Atomic Research Centre where he worked as a fitter.

He was accompanied by his brother Ganghadhar, the lone eyewitness in this case. According to Gangadhar, eight persons fired shots at Yadav and escaped after committing the crime.

Gangadhar filed a police complaint and identified the accused as Govind Patil, Mahadev, Kisan, Baban Gharat, Kanti Dhumal, Atmaram Yadav, Kisan Patil and Baban Patil.

The police arrested them and also recovered the weapon. The case was then handed over to CID.

However, CID probe set free these accused and police instead arrested Dilip Tumbda, a young labourer. Dilip’s father and two brothers were also arrested but released later.

After 22 years, Tumbda was finally acquitted on June 29, 2009 by a Sessions court.

While ordering a fresh probe now, the High Court has made it clear that Dilip shall not be arraigned as an accused in this case since his acquittal has not been disputed.

PTI

 

 

#India- Shocking case of miscarriage of justice


Wanton Lawlessness, Outlook
The Lajpat Nagar bomb blast case of 1996 shows horrendous police culpability — if the court had not noticed the ‘casualness and slipshod approach’ of the police, three persons might have been wrongly executed by the state

Instances of miscarriage of justice are many in India. Sometimes, such instances arise due to gross negligence by the police in the investigation. Sometimes, due to wanton fabrication of evidence and violation of the legal procedures to be followed during the investigation.

Such instances continue to take place and even increase in number because of the lack of fear in the police officers that action might be taken against them for miscarriages of justice caused by negligence or mala fide actions or inaction.

There has been a worrisome increase in the number of such cases ever since terrorism made its appearance in the early 1980s.Calls for ruthless action against terrorists and zero tolerance of terrorism have unfortunately created an impression in the minds of sections of police officers that any methods are good methods for dealing with terrorists and terrorism. Political tolerance of the use of illegal methods in dealing with terrorists has added to the belief that the police can take liberties with the law and procedures while dealing with terrorism.

One has to be firm and ruthless under the law in dealing with terrorists, but one cannot go beyond the law in dealing with them. One has to use the might of the law against them, but one cannot use illegal methods and procedures during the investigation. Use of such methods and procedures prove counter-productive.

Since many of the acts of terrorism committed in India are by jihadis, innocent Muslims have often been the victims of mala fide investigation. Instead of controlling terrorism, it aggravates it by adding to the anger in the Muslim community against the police and other investigating agencies. It becomes a vicious circle. The more illegal the methods used by the police, the more the terrorism. The more the terrorism, the more illegal the methods used by the police.

A shocking instance of such wrongful action and miscarriage of justice has been brought to notice after 16 years by a Division Bench of Delhi consisting of Justice Ravindra Bhat and Justice G.P.Mittal. In a judgement delivered on November 22, 2012, it has acquitted two Kashmiri Muslim convicts who had been awarded death penalty by the trial court in a case relating to an explosion in the Lajpat Nagar Market of New Delhi in 1996 in which 13 persons were killed. Another convict’s sentence was reduced to life term.

It is a horrendous case because if the court had not noticed the wanton miscarriage of justice by the police, three persons might have been executed by the state on the basis of evidence of questionable value and authenticity. It was not a case of the police unconsciously using such evidence, but wantonly using such evidence in full knowledge of its lack of authenticity in order to obtain a conviction.

The judgement has said: “Police have not maintained minimum standard of probe in the case, test identification parade (TIP) was not conducted, statements of vital witnesses were not recorded. There was also absence of (police) daily diary entry in the case.” The court has observed that there was casualness in the investigation of the case.

While we have taken many steps to improve the quality of intelligence collection and physical security, we have not succeeded in improving the quality of investigation. This has had two results. Firstly, an increasing number of undetected cases. Secondly, instances of the use of wrongful methods and miscarriage of justice in cases which are claimed to have been successfully detected.

After the 26/11 terrorist strikes in Mumbai, the government had set up the National Investigation Agency (NIA) to improve the quality of investigation. Despite this, the number of undetected cases has been increasing. This judgement has drawn our attention to a serious case of miscarriage of justice due to bad investigation in the year 1996– sixteen years later. One does not know how many more such instances remain unnoticed or undetected during the prosecution and trial.

It is important for the government to go into this and take corrective action to prevent a recurrence of such instances. There is a need to improve not only the quality of the investigation, but also the quality of the supervision over the investigation by senior officers.


B. Raman  is Additional Secretary (retd), Cabinet Secretariat, Govt. of India, New Delhi, and, presently, Director, Institute For Topical Studies, Chennai, and Associate of the Chennai Centre For China Studies. E-mail: seventyone2@gmail.com Twitter @SORBONNE75)

Petition to Chief Justice of India- Remove Justice Bhaktavatsala ‘ Kindly Adjust” #Vaw #Gender #Justice


 

A judge’s obligation to the public starts and ends with his or her analysis of the law, its correct use, not with the preaching of personal beliefs or preferences. Chief Justice S H. Kapadia once said, “High Courts and the Supreme Court are courts of principles. The judges should not speak anything beyond the principles of a particular case. Let us not give lectures to the society. The problem is sometimes we judges impose our own values, our own likes or dislikes on the society”. The Karnataka High Court seems to have missed this message. The comments made by Justice Bhaktavatsala in various domestic violence and divorce court proceedings recently are perpetuating the myth of patriarchy and his opinions going beyond the legal scope..The judges are supposed to protect and enforce human rights of the citizens , but here we have a judge who is against women rights and even encouraging them to continue to stay in a violent relationship. Such views are retrograde and against the tenets of the Constitution of India.

I am shocked at the comments made by Justice Bhaktavatsala of Karnataka , High Court, in various domestic violence and divorce cases recently are perpetuating the myth of patriarchy and his opinions are unconstitutional The judges are supposed to protect and enforce human rights of the citizens , but here we have a judge who is against women rights and even encouraging them to continue to stay in a violent relationship.

According to media reports on August 31, he went out of his way to counsel a young woman whose stated reason for not living with her husband was that he used to beat her. Justice Bhaktavatsala said, “Women suffer in all marriages. You are married with two children, and know what it means to suffer as a woman. Yesterday, there was a techie couple who reconciled for the sake of their child. Your husband is doing good business, he will take care of you. Why are you still talking about his beatings? I know you have undergone pain. But that is nothing in front of what you undergo as a woman. I have not undergone such pain. But madam (Justice BS Indrakala) has.”

The court asked the woman if her parents were present, at which her father walked up to the bench. The judge remarked, “Ask your father if he has never beaten your mother!” When the woman said her husband would beat her in the open, in front of everyone, Justice Bhaktavatsala remarked that it was she who was bringing it out in the open. The court was told that the husband would beat her in the middle of the night and had thrown her out of the house.

When the woman’s advocate produced photographs showing her swollen face, the court said, “You have to adjust. Are you just behind money? There is nothing in your case to argue on merits. You have to give him a divorce or go with him. Have you read about actor Darshan. He spent 30 days in jail after beating his wife. But they are living together now. What is on your mind and what is on your agenda?” The court directed the couple to go out and talk to each other.

This is just not an isolated case in another case  reported , a young advocate had not imagined she would be receiving a lesson on married life when she took up a case on behalf of an estranged wife. She was summarily told by Justice K Bhaktavatsala that she was unfit to argue a matrimonial case as she was unmarried. While the lady advocate was citing the allegations against the husband, Justice Bhaktavatsala stopped her midway and asked, “Are you married?” When she replied in the negative, the judge said, “You are unfit to argue this case. You do not know real life. Why are you arguing like this? He is your (client’s) partner,not a stranger.Family matters should be argued only by married people, not spinsters. You should only watch. Bachelors and spinsters watching family court proceedings will start thinking if there is any need to marry at all. Marriage is not like a public transport system. You better get married and you will get very good experince to argue such cases.”However, despite the peace making efforts of the court,the case remained unresolved.

In another case,  in a bid to unite a couple who are seeking divorce he directed the duo to spend two days at Bangalore Club. The techie couple have been trying to get a divorce for the past five years.Justice Bhaktavatsala asked the woman to take her husband to her house and spend two days along with their daughter and return after two days but she refused saying that, her reputation would get “spoiled”. Later the judge asked the man to take his wife to his house but he also refused saying, “his mother would faint at the first look of his wife”. Then Justice Bhaktavatsala suggested that the couple stay in a Bangalore club with their daughter and parents. He said all arrangements for it would be done by the counsel and added “let this be a progress of family union”.

Last year in a a habeas corpus petition by a Bangalore resident seeking reunion with his newly married wife, who he claimed was being illegally detained by her parents, Justice Bhaktavatsala  had recommended that the Hindu Marriage Act be changed so that a girl under 21 cannot marry without permission of her parents. Presently the law requires the girl to be 18yrs. In a case of marriage by choice he sent the boy to jail.

I am extremely disturbed at these comments that appear to advocate silence and acquiescence of women who are subject to violence within the family. Also, to suggest that the woman was seeking a divorce to gain some monetary advantage is, apart from trivializing her travails, a complete misconception as single mothers and divorced women suffer immense financial setbacks.If this is the response to women who struggle against stigma and fear to speak up about domestic violence, their confidence in obtaining justice will also be shaken. Such views are retrograde and against the tenets of the Constitution of India.

There should be an  inquiry into the remarks passed by the judge  to ensure that there will be no miscarriage of justice in all cases relating to women because of such biased views.  He should be removed ,as a gender insensitive judge, is perpetuating stereotypes and the patriarchal values which women have been fighting for years and are still fighting.

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