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Kotkhai Custodial Death Case: Forced to Consume Liquor, Cannabis, then Tortured, Witness Tells Court

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Kotkhai Custodial Death case trail witnesses

Shimla-In the Kotkhai custodial death case, six more witnesses recorded their statements in the special CBI court in Chandigarh on October 9, 2019. One of the witnesses included Ashish Chauhan – an accused in Gudia rape and murder case, who was later discharged by the CBI.

While three accused – former Inspector General of Police, Zahur H Zaidi, former SP, Shimla, DW Negi, and DSP, Theog, Manoj Joshi-were already granted bail by the court, the bail plea of three others was dismissed yesterday. These three accused included former Station House Officer (SHO), Kotkhai Police Station, Rajinder Singh, head constable Rafee Mohammad, and constable Raneeta.

In his statement, prosecution witness Ashish Chauhan told the court that he was picked up from his home on July 9, 2017, by three policemen and was taken to Bankufer rest house, where he was interrogated. On July 9, he was taken to Chhaila police post where he was kept till July 10.

Ashish, in his statement, told the court that Zaidi, Bhajan Dev Negi, Rattan Negi, PSO Sushil, PSO Sunil, and Manoj Joshi started torturing him from July 11 using different techniques. They asked him to confess to the crime, which he had not committed, Ashish said. He alleged that he was tied upside down with a rope and beaten brutally with sticks and given electric shocks. He also alleged that during this torture, he has sustained grieve injury to his spinal cord. 

He also alleged that Zaidi forcefully made him consume neat alcohol. Zaidi smoked cannabis and also forced him to smoke the same, Ashish alleged.

On the intervening night of July 13-14, his signatures were taken and he was told that an FIR was registered. The police was also alleged of keeping him in custody illegally without taking him to the court within 24 hours of arrest. It was only on July 15 that he was taken to the local court in Theog and was officially taken on remand.  

Other than Ashish, statements of other prosecution witnesses including Dr HV Acharya, Assistant Director, Forensic Science Laboratory, Gujarat, who had conducted BEOS and narco test on Ashish Chauhan, Rajinder Singh, Lokjan, Deepak and Subhash Singh, was also recorded. 

As per the conclusion of the report, no the role of five accused was observed in the act of rape and murder of Gudia as the motive of rape and murder were not established. Similarly, narco and BEOS test did not suggest any role of Rajinder in the killing of Suraj inside Kotkhai Police Station lock-up.

Further, prosecution witness Dr Ashwani Soon, who is a radiologist with DDU Zonal Hosptial, Shimla, Pritam Chand, Amar Singh Verma and constable Ajay Kumar also recorded their statement and were cross-examined.

Earlier, in the previous hearing in the case in September 2019, six prosecution witnesses had recorded their statement in the court. As a crucial revelation, the driver of Zaidi had told the court that he was with the accused from July 11 to July 13, 2017. He confirmed that he took Zaidi to the spot where the body of the rape victim was lying on July 11. Later, the driver said, he took Zaidi to Kotkhai Police Station and then to the Guest House of Public Works Department in the afternoon. Five accused were also kept at the HPPWD guest house illegally after their arrest.

Similarly, during a hearing on August 16, 2019, two villagers, Prashant Negi and Ishan, had given statements that they were illegally detained and kept at the said guest house. They had also told the court that they were brutally beaten, kept naked, and given third-degree torture between July 11 and July 13. These two CBI witnesses had identified Zaidi and then SP DW Negi and other police officials who were present during this time.

There are total 60 prosecution witnesses of CBI in the case. Statements of over 26 witnesses have already been recorded.

On August 29, 2017, CBI had arrested eight Police officials including the IG Zaidi in relation to the custodial killing of Suraj – an accused in the Gudia rape and murder case- on July 18, 2017. Later, then SP DW Negi was also arrested. CBI had later discharged all remaining accused alleging that they were innocent and were framed by the said police officials.

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Pandemic – ‘Nationwide Lock-down’ A Tale of Caution & Hope

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Curfew Relaxation in Himachal Pradesh 3

Shimla-It’s for the first time in the history of our planet that the entire Humankind is together and is focused on fighting with one problem.

In India, from many days Doctors have been coming out and demanding a nationwide lockdown fearing the wrath of the virus which has been raging hell all across the world. The State has now responded and has ordered a 21-day lockdown for the entire nation, which is an unprecedented move.

The Lockdown is an extreme step which is demanded by these extraordinary circumstances. And as expected it has and will continue to have a huge impact on the economic health of the country. It has paralysed virtually all commerce and has put millions of people out of work, leaving many struggling with basic requirements like food and medicines. This has caused much debate in the media and elsewhere that whether we are ‘over-reacting’ to the coronavirus outbreak?

In this post, the author argues that the present step of a ‘National Lockdown’ is the most efficient and only available first response which the Government could have taken to tackle the immediate and ongoing existential crisis.

The viability of measures is to be seen through the lens of precaution and what might be the risk to reward outcome of the decision. The ‘precautionary principle’ which has had its evolution through various judgments of our Supreme Court ultimately boils down to an understanding that “if one is bound to err then always err on the side of minimising the risk and the scale of catastrophic harm than to take high-risk measures for immediate gains”.

The question which has arisen for consideration is,  ‘what is at stake by acting too strongly versus what is at stake by acting too weakly?.

The answer, when we think about it with any seriousness, is that too strong action will more quickly reduce wealth and economic activity; whereas too weak action could put crores of lives at stake across the country, and a far greater economic impact will await us down the line.

It is here then that the value judgments behind political decisions about pandemics come into full light. Are we willing to risk economic potency, or are we willing to risk our neighbours, friends, and elders’ lives? The United States and the United Kingdom who have not still imposed a complete nationwide lockdown and are also planning to lift the partial lockdown at the time of Easter (as announced by President Trump) have obviously given a very feeble response and have given considerable weightage to their economy rather than their people. India has chosen to completely focus on its people.

Precautionary Principle 

The Global pandemic and nature of this virus is a powerful reason for aggressively employing the Precautionary Principle to reduce our collective exposure to this deadly virus, an exposure which is grave.

It is hoped that a strong regulatory action which includes measures of forced quarantine, curfew and nation-wide lockdowns, (reduction of public transport/movement/contact) throughout the country would go some way towards lowering contagion even if not completely getting rid of it.

The basic point is that we need to consider the viability of measures through the lens of precaution, and always err on the side of minimising the risk and scale of catastrophic harm. We should be willing to make huge economic sacrifices. So that many of our fellow citizens don’t have their very lives sacrificed at the altar of ‘economic growth’.

The individual choices that we are all facing over the coming months should also be shaped by precaution. We need to be aware that passing this virus to others can create huge contagion cascades that infect thousands of people. It is only by taking pronounced physical distancing steps as early on as possible can we ensure that we are not fueling the wildfire of this pandemic. For many, this may mean a lonely few months, but that is by far a worthwhile price to pay to reduce the scale of this catastrophe.

A Caution- Listen to The Cry of the Poor and Homeless

Though the step by the Government of Lock-down is commendable, there are certain extremely important issues to be kept in mind.

Our country is home to the largest undernourished population in the world. It ranks 102 in the Global Hunger Index, has 1 in 5 people living on less than Rs.150 per day. We have the largest number of street children!

We need an Economic Task Force and a distribution strategy for the supply of essential commodities to the needy.

With the massive outbreak of COVID-19 across the country, there is a *huge and urgent* need of ration and other supplies for daily wage workers, workers in the informal sector as well as masks for doctors and nurses at the frontline.

There have been some announcements which have been made by the State to tackle the above situation such as:

  •  Pradhanmantri Garib Kalyan Yojana – Rs. 1,70,000 crore (Rs. 1.7 trillion) package for poor stuck in lockdown Rs. 50 lakhs insurance cover for health workers in Covid 2019 front.
  •  Pradhanmantri Ann Yojana – 800 Mn people will get additional free 5 kg wheat/Rice and 1 kg, Dal, for 3 months from ration
  • Farmers will get upfront Rs. 2,000 in their account directly
  •  MNREGA – Daily wages increased from Rs. 182 to Rs. 202. Rs 2,000 per worker will be an additional income.
  •  Old Age peoples – Poor senior citizen/widow / handicapped will get additional Rs. 1,000/pm for another 3 months.
  • Mahila Jan Dhan Account – Women will get additional Rs. 500/pm for another 3 months
  • Ujjwala Yojana – Below Poverty Level family will get free LPG cylinder for next 3 months
  •  Up to 20 lakh collateral-free loans for the SHGs from earlier 10 lakh crore cap
  • For organised sector employee and others who earn below Rs. 15,000 salary, Government will pay 12% + 12% provident fund (contribution of employee and employer) under EPF for the next 3 months.
  • EPFO regulations will be amended to allow workers under EPFO to draw up to 75% of their non-refundable advance or 3 months of wages, whichever is lower.
  •  State governments to be directed to utilise an existing Rs 31,000 crore welfare fund for the benefit for 3.5 crore construction workers

Hope & Love

Hope now is that the underprivileged will continue to receive help not only from the Government but also from the super-rich and the various religious institutions that India is so infested by and is proud of. If there was any time for religious institutions to shine this is exactly that time.

We live in a world where infinite money is printed to support corporations and banks and millions are donated to ‘Gods and Godmen’, at the same time nakedly excluding the millions homeless, who are left scrounging for their next meal. India can break this vicious cycle and take steps here out of compassion and empathy. India, the oldest civilization of the world can lead the world and show the light of ‘reason & love’ in its civilized response to the present existential crisis.

There is nothing we can do to change the constraints of our existence. Heartbreak and death await us all one day. As  Albert Camus once said;

 Love is not just a confrontation with the absurdity of the world; it is a refusal to be broken by it.  It is our choice whether we shrink from the slings and arrows of fate, or whether we stand in the full light of the sun while it shines above us.

India! its time to stand at a “physical distance” but stand Together.

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COVID-19: Lockdown in Himachal Pradesh Till Further Orders

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Himachal pradesh lockdown

Shimla– Himachal Pradesh Government today declared a complete lockdown till further orders in the State in view of COVID-19 threat. Except for essential services, everything will be shut down, declared the Chief Minister Jairam Thakur in Assembly. He said there is no need to panic as this decision has been taken only as a precautionary measure to prevent spread of coronavirus pandemic in the State. 

All transportation services including public and private vehicles except on some special routes will remain suspended till March 31st, 2020. The people will have to remain at their homes and will only be allowed to leave home in emergency conditions.

As per the notification, all interstate and intrastate movement of public and private stage and contract carriage including taxies, autorickshaws etc are prohibited. There will be a total prohibition on movement or plying of trains and commercial aircraft. The private vehicles will be plied only if essentially required for visiting hospitals and for availing/maintenance of essential services. Goods carriage vehicles will be allowed to ply.

All shops, commercial establishments, factories, workshops, godown etc. will have to close their operation. However, shops or stores selling groceries, milk, bread, fruit, vegetable, meat, fish and other uncooked food items and their transportation-related activities and warehousing will remain operational.

Hospitals, chemists stores, optical stores, pharmaceutical and soap manufacturing units and their ancillaries together with transportation activities will also remain operational. Besides, petrol pumps, LPG gas, oil agencies, their godowns and their transportation services will remain operational.

E-commerce (delivery of all essential goods including food, pharmaceuticals and medical equipments will be allowed. Production and manufacturing units which require continuous process may continue to function, after obtaining the required permission from the Deputy Commissioner and following all precautionary protocols as notified by the Health Department. Units manufacturing alcohol for medicine/sanitizers will be subject to following all precautionary protocols as notified.  

All foreign returnees, who have landed in India on or after March 9th, 2020, will have to observe a strict home quarantine. All such foreign returnees will have to notify the district surveillance officer of the concerned district and Toll-Free number 104 and register themselves for home quarantine. Any offence or failure to comply with these guidelines will attract legal action.

The people will have to stay at home and come out only for basic purposes like a visit to grocery, vegetable shops, chemists etc. and for essential and permitted work-related travel only and that too while strictly following social distancing guidelines issued from time to time. No social, cultural, sports, political, religious, academic, family or any kind of mass gathering will not be allowed under no circumstances.

As per the notification, the functioning of all Government offices will be regulated under the order issued on March 21st except for offices charged with law and order and magisterial duties, police, armed forces, and central para-military forces, health, treasury, urban local bodies and rural development, fire, electricity, water and municipal services, banks/ATM, print, electronic and social media, telecom and internet services including IT&ITeS, postal services, supply chain and related transportation.

Further, any other service which the Deputy Commissioner of the concerned district deems to be essential.

All the staff in the above-mentioned departments will not be given leave and already sanctioned leaves have been cancelled. Leave on medical grounds will be admissible only if certified by the District Medical Board.

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Transfer of Judges – A Tool to Undermine the Institution of Justice

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Justice S. Muralidhar

Shimla- Justice S Murlidhar of Delhi High Court who was hearing a petition on Delhi Riots, had sharply condemned both the government and police on Wednesday. His scathing remarks questioned the working of the police. Following it, orders for his immediate transfer came late at night the same day to the Punjab and Haryana High Court.

Earlier on 12th of Feburary a resolution of the collegium was passed taking a decision on  transfer. Wide spread protests were made by lawyers against the resolution of the collegium as the decision was unreasoned , unconventional, against past practices and had potential to significantly effect the functioning of Courts.

Coincidently the judge on the day of the Center’s notification of transfer was hearing a PIL on DELHI Riots and had asked why there shouldn’t be FIRs against those who had indulged in hate speech before the riots occurred.  He told the Delhi Police chief to “seriously consider the consequences” of not registering the FIR.

The judge has been regarded by the DELHI Bar as one of the ‘citizen friendly judges’ who is known for standing up for individual rights and for passing many orders for checking unconstitutional use of state power. The Judge has delivered several landmark judgments and was known to be impervious to pressure.

The Collegium & Sherlock Holmes

Former Supreme Court Judge Justice Madan Lokur had raised questions on the manner of functioning of the collegium. The Judge observed;

“The mystery behind the change in the appointment of the chief justice from one high court to another will need a Sherlock Holmes to unravel”.

As a rule of practice, It is only when a person is being appointed as a high court judge for the first time that he or she is sent out of his practising court. Once a permanent High Court judge is appointed and posted, he is transferred to another high court only upon elevation as Chief Justice. In the present case there has been a departure from this rule of practice. In such circumstances where the norms are not being followed and an unconventional procedure is followed then it becomes imperative that reasons are recorded in writing stating the cause of such a departure. Not only reasons have to be recorded but even the consent of the judge needs to be taken. These principles flow from the basic structure of the constitution i.e “independence of judiciary”.

However the Notification affecting the transfer doesn’t mention the reasons for the decision, nor does the resolution of the Collegium passed on 12th Feburary state any good reason for the transfer.

The Strike of Lawyers

The hurried manner in which the transfer is effected is troubling so much so that the Delhi High Court Bar Association (DHCBA) has condemned the transfer recommendation and also passed a resolution unanimously regarding this. The Bar Association had expressed dismay at the transfer of one of the finest judges by the collegium of the Supreme Court.

Expressing “shock” at the collegium recommending Justice Muralidhar’s transfer, the high court bar association hoped the decision would be recalled, saying such transfers were “detrimental” to the institution.

The resolution stated;

“Unequivocally and in the strongest possible terms, the Delhi high court bar association condemns the said transfers… Such transfers are not only detrimental to our noble institution but also tend to erode and dislodge the faith of the common litigant in the justice dispensation system. Such transfers also impede free and fair delivery of justice by the bench,” a resolution passed by the association said.
The association requested its members to abstain from work on 20 February 2020, “as a token of protest as the said transfer is a rarest of rare case, the majesty of our revered institution is at stake”.

Hon’ble Judge has been a part of important decisions as, disclosure of assets by judges under RTI, Legalization of Homosexuality and 1984 anti-Sikh riots.

Transfer of Judges – A Threat to The Independence of Judiciary

If the judiciary has to be a bulwark for the protection of the “rights of the individual” and mete out even-handed justice without fear and favour” then it should be independent.

Exercise of the judicial function is one which requires more than any other work a proper balance of mind and an undisturbed and peaceful life. Administration of justice cannot properly be done by a disgruntled judge. If transfer hangs over his head as a Damocles’ sword, the balance of justice slips out of his hand. An immediate and unnoticed transfer may cause so great inconveniences that it may compel him to quit rather than comply with the transfer order.

In the judges’ case, the Supreme Court held that the consent of the judge was not necessary for his transfer from one High Court to another. According to the Court, there are three safeguards against arbitrariness in the use of the President’s power to transfer judges under Article 222. They are:

  1. There must be full and effective consultation with the
    Chief Justice of India.
  2. The power of transfer can be exercised in public interest only and not by way of punishment.
  3. Judicial review of the decision of the President to
    transfer a judge.

However, do these safeguards suffice to preserve the independence of the judiciary, one of the cardinal faith of the Constitution? Judges, unlike government servants, hold an office under the Constitution and there is no master-servant relationship between the government and the judge. A close study of Sankal Chand’s case and the Judges case would reveal that the Supreme Court has miserably failed to bring out the clear distinction between the transfers by punishment and transfers in public interest or in the present matter, as the order put it, “for better administration of justice“. These expressions are not capable of any precise definition and in a given set of circumstances may be applied differently by different people. In many cases, it would not be possible to rule out some elements of a penal character. The present procedure, as it stands, has instead of limiting the scope of transfers only enhanced its scope by giving a very elastic definition of public interest and ‘better administration of justice”.

Object /Reason and purpose of transfer needs to be clearly spelt out in Orders

The great Mr. Palkhiwala, after examining the Judges’ case had rightly pointed out that the dichotomy was not between transfer in public interest and “for better administration of justice” and transfer by punishment, but the dichotomy was between transfer in’ public interest’ and transfers for ‘extraneous considerations’. According to him, the object of the transfer and not the result, or effect, of the transfer is the decisive factor. The object of the purpose needs to be clearly spelled out in such orders and this cannot be done in a slip-shod manner.

Consent OF the Judge must be sought

Justice Bhagwati in Sankal Chand’s case and reiterated in the Judges case that the “transfer is made consensual” was the only effective safeguard for a judge against arbitrary transfer and only if such an interpretation is accepted, the noble concept of independence of the judiciary can be preserved. This view is shared by many eminent jurists, judges, lawyers etc. The Lord Chief Justice of England, Hon. Lord Lane, speaking on “Standards of Judicial Independence” expressed the view that a judge ought not to be liable to be transferred from one High Court to another without necessarily seeking his consent. Justice H. R. Khanna, a former judge of the Supreme Court, regretted that the Law Commission’s recommendation that no judge should be transferred without his consent unless a panel consisting of the Chief Justice of India and his four seniormost colleagues find cause for such a course has fallen into deaf ears.

The Hon’ble judge not only ‘did not give his consent‘ but had also taken a critical view of the functioning of the police and remarks made by the members of the ruling party. The timing of the transfer during the pendency of such a sensitive matter is highly suspicious and can have a chilling effect upon judges and judicial functioning.

Better administration of justice can be achieved by providing detailed reasons to the Hon’ble judge and to the people of India. Transfers without reason can instill fear in the minds of the judges, the first casualty of which would obviously be the justice itself.

The constitutional provision (Article 222) on the transfer of judges has a direct and proximate connection with the independence of the judiciary. This provision, like many other constitutional provisions, can be made use of for achieving many useful purposes as well as evil purposes until a clear and reasonable interpretation is given to the Article keeping in view the principle of “independence of the judiciary”  in mind. Its abuse will have many dangerous effects on the judiciary and its independence. If the judiciary loses its independence and becomes subservient, the net result would be that the Constitution will lose its prominence. Justice Khanna has aptly put it like this:

“Once the independence of the judiciary is undermined and the seats of Justice came to be occupied by men with pliable conscience’ and subservient to the political wing of the State, the first casualty would necessarily be the supremacy of the Constitution, for it, would be open to every branch of the State to ride roughshod over the provisions of the Constitution.”

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