All is not Well at Belekeri, the Ore Export Hub at Karwar

The construction of jetties by iron ore exporters at Belekeri port allegedly in violation of Coastal Regulatory Zone (CRZ) rules is going on unabated. With iron ore export from the port increasing rapidly, the number of exporters is also going up. These exporters have been building their own jetties at the port for berthing the barges, which carry the iron ore fines from the jetty to the ships anchored miles away from the port. In fact, the Ports Department permits the exporters to build jetty and allots the site on lease. The exporters reclaim the sea to build the jetties. In the process they allegedly violate the CRZ rules. It may be noted that iron ore export at Belekeri was closed by the government last year on the grounds that the exporters had encroached even the government land for stacking the ore at the port. However, one of the exporters secured stay against the government order from the Supreme Court and the export activities have continued. According to Ganesh, the Port Director, whenever illegal constructions at the port were found, notices had been served on the erring exporters to stop the work. Sometimes, the exporters commence building jetties without valid permission from the department. The department even does not hesitate to lodge a complaint against such exporters, he added. Video

It remains a mystery as to how the exporters dare build the jetties violating CRZ rules under the nose of the authorities, people wonder. A social worker said whenever officials were asked about the incidents of CRZ rules’ violation at the port, they first pretend ignorance stating that the exporters might have got the permission to build the jetties from the Centre itself. When they are told that the Port Department has initiated action against the exporters for illegal construction, they wake up and say they would investigate the matter. Before the officials could take action, the construction is completed, he alleged. As far as political leaders are concerned, they raise hue and cry over encroachment of government land and CRZ violation by the exporters, whenever they visit the port. But they become silent the moment they leave the port, it is alleged. Unless the government is serious, no one can stop exporters from building jetties the way they like, people say.

Source - Express Buzz




State Human Rights Commission chairman, S R Nayak, expressed anger and resentment at the way the ore companies had violated law and encroached upon the sea without any permission, at Belekeri port near there.
During his visit to Belekeri port in Ankola taluk near here on Friday March 26, Nayak questioned the port officials as to why they had not obstructed Coastal Services Company from unathorizedly dumping sand and stones into the sea for creating a jetty, without any prior licence or permission.
“For building a jetty, permission of the union environment and forest ministry, in addition to the Coastal Regulary Zone approval, are required. But Coastal Services Company does not hold any of these permissions. You are sitting and watching quiety, as they dump mud and stones into the sea. The ore companies have even been trying to invade the sea, and I know that they draw support from the rulers,” Nayak remarked.
He instructed the port officials to submit a detailed report on the construction of jetty in violation of law, stipulating that the report should contain details of land area encroached upon, licences if any the company holds etc. “This report will be placed before the government. If the government fails to take action, the Commission will file complaint in the High Court or Supreme Court under Human Rights Protection Act 1993,” he added.
Source - Daijiworld.com

The SC is firm on stopping illegal mining.'

Two events of this week have struck a double blow to the powerful Reddy brothers of Bellary. On Monday, the supreme court ordered a stay on the mining operations of the Obulapuram Mining Company (OMC) in Anantapur district of Andhra Pradesh. In the second event the same day, a team of officers from the state forest department raided the Belekeri port in Karwar and seized five lakh tonnes of iron ore worth Rs 150 crore. The supreme court’s shut-down of the operations of OMC and its appointment of a high-level team headed by the Survey of India (SoI) officers to ascertain if the OMC had mined in areas outside those allowed by their licences, and whether they had violated the forest conservation laws is bad news for the Karnataka ministers, Janardhana Reddy, Karunakara Reddy and their associate, B Sriramulu. The forest department is aware of the ownership of the iron ore which they say was transported to Belekeri with the help of fake permits, the raid suggested a new resolve on the part of the department to check illegal mining and wanton rape of forest areas. It does not bode well for the mining lords of Bellary who are facing charges of blatant violations in protected forest areas, extending mining areas allotted to them illegally and even moving boundary pillars between Andhra Pradesh and Karnataka to facilitate their actions. The story of the Reddys is the story of malaise in Indian body politic. On the strength of their political clout rooted in their wealth, that has spanned the two states and extends to Delhi, the Reddy brothers managed to extract power to virtually rule Bellary district as an autarky and influence the cabinet decisions pertaining to forests and mining. That power was born out of their funding of the BJP’s election campaign and later buying up MLAs to bring the government into power. But they overestimated their clout in holding the Yeddyurappa government to ransom in Karnataka and in trying to influence the succession following the death of Y S Rajashekhar Reddy in Andhra Pradesh. While the Yeddyurappa government, aware of its pathetic dependence on the flock of MLAs controlled by Reddys is still supine, the Rosaiah government in the neighbouring state has decided to go after them, seeking a CBI inquiry into OMC operations. Hubris leads to downfall, and the Reddys will not be an exception to that rule. Source - Deccan Herald Powerful Bellary mine lords are raking in crores in ill-gotten profits by clandestinely transporting thousands of tonnes of iron ore from mines to a port near Karwar for export. The elaborate illegal enterprise includes the printing of fake road permits to avoid paying tax, forging the forest department's no objection certificates (NOC) to show the iron ore was not mined from a forest area, and avoiding royalty worth several crores. The black economy goes beyond mere tax evasion and results in a sort of a parallel government for mining, transportation and export operations. This has coincided with a rise in iron ore prices in the international market. A raid was conducted on February 20 by the Lok Ayukta, Karnataka's anticorruption bureau. This exposed the illegal operations. Despite that, iron ore- laden trucks continue to ply between the Bellary mines and Bellikeri port near Karwar in Uttara Kannada district without being checked by the police or regional transport authorities. The Lok Ayukta found that this movement of iron ore had resulted in a loss of Rs 1.3 crore to the transport department alone in the last 30 days because road tax had not been paid. The shocking revelation was made during a raid on the premises of three iron ore exporters - Adani Shipping, Salgaocar Shipping and Mallikarjun Shipping - in the coastal district of Uttara Kannada last week. The Lok Ayukta has withheld the names of the mining companies involved in this racket as investigations are on. " It is shocking to note that the miners are printing their own road permits and NOCs. Upon verification, we found out that the road permits and NOCs and the government seals on them were counterfeit. The signatures on these documents have been forged. Besides, royalty has not been paid to the government for the ore transported to the port from the mines," said a senior Lok Ayukta official. Investigators have not yet computed the total loss to the government from the non payment of royalty and various other taxes on mining and export profits. What the investigators do know is that several mining companies are printing their own road permits instead of getting them from the transport department. They are also printing NOCs carrying the stamp of the forest department to allow the transport of iron ore to the Bellikeri port. In the process, the mine lords evade the hefty mineral royalty that they should pay the government. But, more serious is the total subversion of the government by the mine lords. " About 48,000 tonnes of iron ore was transported from various mines in Bellary district to Bellikeri port in the last 30 days using counterfeit road permits and NOCs. The miners have failed to provide weekly reports on the payment of royalty. We have seized all documents and computers from the three shipping companies. We impounded the remaining stock of iron ore," the officials said. But, investigators could have only found a part of the stock while other miners could have smuggled larger quantities of iron ore during this period. Clandestine movement of iron ore takes place in Karnataka whenever the prices in the international market go up. The state accounts for 30 per cent of the total exports (95 million tons in 2008-09) from the country. About 85 per cent of the iron ore exporters in India rely on the spot trading market against long- term leases. During the first week of February, for instance, the price of high grade iron ore (64 per cent and above ferrous content) in the spot trading market had touched $ 126 (Rs 5,807) per tonne, up from $ 74 (Rs 3,410) per tonne in September 2009, according to the Federation of Indian Mineral Industries. "During the same period, the clandestine movement of iron ore was reported between the mines in Bellary district and the Bellikeri port. What has shocked us is that the trucks are not being checked by the Regional Transport authorities even after the raids," Lok Ayukta officials said. They suspect the involvement of the officers of the Regional Transport department in this racket. "The Regional Transport authorities are supposed to verify the documents of every truck at the district check post. They could have ascertained whether the road permits and NOCs were genuine. But it seems they were deliberately overlooked by the Regional Transport authorities," the officials said. For every truck transporting iron ore, the miners have to pay road permit fee to the government. As iron ore mining is carried out on the fringes of the forests in Bellary district, the miners have to obtain an NOC from the forest department. If the forest department finds out that ore has been mined from the forests, the stock will be impounded. This is why an NOC is required to show that the ore was not mined from a forest area. Besides, the miners have to pay a royalty of Rs 80 to Rs 140 per tonne of iron ore extracted depending on the grade. A weekly report on the royalty paid has to be submitted to the mines and geology department. Once these formalities are completed, the documents have to be handed over to the ore transporting companies. Senior BJP leader and Karnataka's transport minister R. Ashoka said he was not aware of the findings of the Lok Ayukta.  Normally, the Lok Ayukta submits its report to the government after conducting all investigations. We go through it in detail and take action against the culprits. If mine owners are violating any rule during the transportation of iron ore, we will look into it. Similarly, the mines and geology department will examine violations, if any, by the miners," he said. This is not for the first time that this kind of racket has been detected. Last year, the district conservator of forests detected iron ore mining inside core areas of reserve forests. But he was transferred. Four inspectors of motor vehicles ( IMVs) of the regional transport authority in Bellary were transferred after they impounded trucks transporting iron ore without proper documents. Evidently, the mine lords make large enough profits to buy political patronage. Source - India Today Bellary district Forest Department sources said that a team of forest officials swooped down on the Belekeri port and seized 500,000 tonnes of iron ore worth INR 150 crore. A team, led by Deputy Conservator of Forests Mr R Gokul, Assistant Conservator of Forests Mr Narendra Hittalamakki and Range Forest Officer Mr CG Naik conducted the raid. An FIR was filed by the team in Ankola Police Station against the Conservator of Belekeri port who refused to cooperate with the forest officials. Last month, some Lokayukta officials, led by Mr Uday Veer Singh, had raided the Belekeri port and seized documents from three shipping agencies. A forest official, on condition of anonymity, said that there was a big racket spreading from Bellary to Ankola where ore is transported using fake permits and passes of Mines and Geology and Forest departments. These passes are printed at Bellary and Ankola. Forest officials also sought the direction of the court to restrain the port authorities from exporting the cargo seized during the raid, without permission of forest officials. Several million tonnes of the ore was extracted from the forest areas of Bellary and Hospet region and exported to China. It was brought to the port by using fake permits, an official alleged. (Sourced from www.thehindu.com) Source - Steel Guru

Civil Court's Jurisdiction - Companies Bill, 2009? - Corporate Law Articles - Chartered Accountants India,Taxpayers, CAs India, CA india ,ICAI, Compan

Civil Court's Jurisdiction - Companies Bill, 2009? - Corporate Law Articles - Chartered Accountants India,Taxpayers, CAs India, CA india ,ICAI, Company Secretary ,CS, Cost Accountants, MBA, Finance Professionals

by Durga Rao

We all aware that there is no express provision barring the Civil Courts to entertain certain company disputes under the Companies Act, 1956. We have been seeing the cases where the Civil Court entertains Company disputes if there is no specific remedial measure before the Company Law Board or the Company Court. The issue of Civil Court’s Jurisdiction to entertain certain company matters is also supported by the Constitutional Courts on the ground that there is no specific bar under the existing Companies Act, 1956 barring the Civil Courts in entertaining Company matters and on the ground that the Companies Act, 1956 do no provide all remedial measures to all the shareholders before the Company Law Board or the Company Court.

It is true that adjudicating a company dispute requires specialization and the Civil Court may not effectively adjudicate a Company dispute. We are all aware of the inevitable complications under Company Law. Laudably, an effort has been made to bar the Civil Court’s jurisdiction to entertain company matters in the Companies Bill, 2009 or in the proposed new Companies Act replacing Companies Act, 1956.

Section 391 of the Companies Bill, 2009 dealing with the Civil Court’s Jurisdiction is extracted below:

“391. No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Tribunal or the Appellate Tribunal is empowered to determine by or under this Act or any other law for the time being in force and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or any other law for the time being in force by the Tribunal or the Appellate Tribunal”.

The object of section 391 in the proposed Companies Act is to exclude the Civil Courts in entertaining company disputes and to avoid the jurisdictional ambiguity. Under the existing Companies Act, 1956, shareholders who are qualified to approach the Company Law Board under section 397/398 may choose to approach the Civil Court rather the Company Law Board.

In CDS Financial Services (Mauritius) Limited Vs. BPL Communications Limited and others, (2004) 121 Comp Cases 375, it was held that “when there is no express provision excluding the jurisdiction of the Civil Courts, such exclusion can be implied only in cases where a right itself is created and the machinery of enforcement of such right is also provided by the statute. If the right is traceable to the general law of contracts or it is a common law right, it can be enforced through the Civil Court, even though the forum under the statute also will have jurisdiction to enforce that right. Sections 397, 398 and 408 of the Companies Act, 1956, do not confer exclusive jurisdiction on the company court to grant reliefs against oppression and mismanagement. The scope of these sections is to provide a convenient remedy for minority shareholders under certain conditions and the provisions therein are not intended to exclude all other remedies”.

Now, with the express bar under section 391 of the proposed act, if a remedy is available before the National Company Law Tribunal etc. then, no Civil Court can entertain a suit.

But we need to address an issue as to what is the situation if a particular relief is not available to the shareholders before the National Company Law Tribunal or under the new Companies Act?

Under such circumstances, despite section 391 in the proposed Companies Act, it may be very difficult to bar the Civil Courts in entertaining Company Disputes or it may be difficult to lay down a proposition that no shareholder can approach the Civil Court against the managerial personnel, the management or the Company.

It is true that the Civil Court may not be effective like the proposed National Company Law Tribunal, but, when a remedy is not provided before the Tribunal, the shareholders will obviously be approaching the Civil Courts and it may even be supported by the Constitutional Courts in future.

It is true that the Civil Courts jurisdiction is effectively barred under certain enactments like Securitization Law and it is not usual to see a Civil Court to entertain a dispute under Securitization Act upon which the Debt Recovery Tribunal shall have jurisdiction. It is possible under the Securitization Law in view of the limited scope of the subject matter. Under Securitization Law, it is only about the determination of debt or the legality of the action taken by the Bank under the Act. Only the Bank, the borrowers, the guarantors and in some cases a third party, is interested in a securitization case, but, that is not the case with a Company litigation. The Company Law Board, Company Court or the National Company Law Tribunal as the case may be should consider many issues before passing an order in a Company dispute.

In my opinion, it is very difficult to bar the Civil Court’s jurisdiction as intended with section 391 of the proposed Company’s bill or the new act.

In order to achieve the objective of barring the Civil Court’s Jurisdiction effectively, we need a detailed provision barring the Civil Court’s Jurisdiction and there should be a provision similar to section 151 of C.P.C in the proposed Companies Act giving liberty to the shareholders or the members to approach the Tribunal for the relief which is not specifically provided under the Act. If there is such an arrangement under the proposed Act, the National Company Law Tribunal shall decide the maintainability of the applications or the petitions and can pass appropriate orders.

I am sure that it is very difficult to bar the Civil Court’s Jurisdiction as intended with section 391 of the proposed bill or the proposed new Companies Act. There tend to be lot of litigation on the issue of Civil Court’s Jurisdiction even after the new Companies Act coming into force replacing Companies Act, 1956.

Note:

I have expressed my opinion on the issue and I am aware of the complications in Company Law.

by Durga Rao on CACLub India

PIL says cannot have mosque in Hindu area, HC says intolerance has to go

PIL says cannot have mosque in Hindu area, HC says intolerance has to go

A resident of a Hindu-dominated locality in Navi Mumbai has challenged the construction of a mosque; the Bombay High Court has told her such intolerance has to go.

The petition, filed by Sumitra Kadu of Sector 50E, Nerul, alleges that CIDCO given a Muslim trust a 1042.27-sq-metre, reserved plot. Her advocate, G N Salunke, told the court Wednesday that not one Muslim family lives in a radius of 1 km from the site and only 331 Muslim families live beyond that radius.

“If the mosque is allowed there is every possibility of encroachment on the public open premises in the locality by Muslim encroachers which may badly affect the development of the city,” says the petition, heard by a division bench of Justice F I Rebello and Justice J H Bhatia.

“So minorities cannot have their own place of worship? This intolerance has to go. Either we should live together or pack our bags and go,” the bench said.

Kadu contends she is a project-affected person and 12.5 per cent of the area was reserved for their rehabilitation which has not been completed yet. Her lawyer said the police commissioner has repeatedly stated there is likely to be a law-and-order problem if construction of the mosque is allowed, yet CIDCO has handed over the plot to the trustees of the mosque. “Public in the locality is very much annoyed and aggressive and there is every possibility to riot and in law-and-order point of view the allotment is required to be cancelled,” the PIL states.

It says the trustees are neither project-affected persons nor residents of Sector 50E. The construction of the mosque, it says, will affect the construction of a college the land was reserved for. The plot is also a mangroves bed but permission has not been sought to hack it, the PIL adds.

The court directed CIDCO to file an affidavit and submit a map of the area in two weeks. The court also told Salunke and the CIDCO counsel to come up with a workable solution.

Types of grievances brought u/s 482 Cr.P.C.

Types of grievances brought u/s 482 Cr.P.C.

Here is the list of orders of Lower Courts/ Magistrates against which applications are normally filed before the High Court under s. 482 Cr.P.C. These applications are brought under following category code : Category Code Impugned Orders /relief sought for ( Allahabad HC) 401510 order under Sections 110/111 Cr.P.C. for quashing of notice 401511 order under Sections 107/116 Cr.P.C. 401512 order under Section 125 Cr.P.C. for maintenance 401513 order under Section 126 Cr.P.C. 401514 order under Section 127 Cr.P.C. for alteration of maintenance 401515 order under Section 128 Cr.P.C. for enforcement of order of maintenance 401516 order under Section 133 Cr.P.C. for removal of nuisance 401517 order under Section 145 Cr.P.C. before filing revision 401518 order under Section 145 Cr.P.C. after filing revision 401519 order under Section 145(8) Cr.P.C. for custody or sale of crops 401520 order under Section 146 Cr.P.C. before filing revision 401521 order under Section 146 Cr.P.C. after filing revision 401522 order under Section 156(3) Cr.P.C., to quash the order for investigation 401523 order summoning accused in a complaint case without filing revision 401524 order summoning accused in a complaint case after filing revision 401525 order summoning accused after rejecting final report without filing revision 401526 order summoning accused after rejecting final report after filing revision 401527 for quashing of charge sheet 401528 for quashing of investigation 401529 for quashing of F.I.R. 401530 against summoning order u/s 319, Cr.P.C. 401531 to dispense with the presence of accused 401532 to set aside order of commitment 401533 for stay of arrest 401534 for expeditious disposal of Bail 401535 for disposal of bail on same day 401536 for quashing of criminal Proceedings in State case 401537 order under Section 203,Cr.P.C. dismissing complaint

Source : Notification of Allahabad High Court

Vicarious Liability of Directors U/s 141 of N.I Act,1881-Gui

Vicarious Liability of Directors U/s 141 of N.I Act,1881-Gui

Vicarious Liability of Directors U/s 141 of N.I Act,1881-Guidelines of Supreme Court The Hon’ble Supreme Court in its recent judgment inNational Small Industries Corp. Ltd. Vs. Harmeet Singh Paintal and Anr., pronounced on 15.02.2010 has laid down guidelines to determine vicarious liability of directors of Company. The SC has significantly narrowed down the liability of directors. It was held that only those to be held responsible who were in charge of the conduct of business at that relevant time. The Apex Court held that from the provisions of Section 141 NI Act, it is clear that that the persons who are sought to be made vicariously liable for a criminal offence under Section 141 should be, at the time the offence was committed, was in-charge of, and was responsible to the company for the conduct of the business of the company. Every person connected with the company shall not fall within the ambit of the provision. Only those persons who were in-charge of and responsible for the conduct of the business of the company at the time of commission of an offence will be liable for criminal action. It follows from the fact that if a Director of a Company who was not in- charge of and was not responsible for the conduct of the business of the company at the relevant time, will not be liable for a criminal offence under the provisions. The liability arises from being in-charge of and responsible for the conduct of the business of the company at the relevant time when the offence was committed and not on the basis of merely holding a designation or office in a company. The Apex Court further observed that Section 141 is a penal provision creating vicarious liability, and which, as per settled law, must be strictly construed. It is therefore, not sufficient to make a bald cursory statement in a complaint that the Accused Director is in charge of and responsible to the company for the conduct of the business of the company without anything more as to the role of the Director. But the complaint should spell out as to how and in what manner the accused director was in-charge of or was responsible to the accused company for the conduct of its business. This is in consonance with strict interpretation of penal statutes, especially, where such statutes create vicarious liability. A company may have a number of Directors and to make any or all the Directors as accused in a complaint merely on the basis of a statement that they are in-charge of and responsible for the conduct of the business of the company without anything more is not a sufficient or adequate fulfillment of the requirements under Section 141. The Apex reiterated its own catena of decisions, in which it has held that for making Directors liable for the offences committed by the company under Section 141 of the Act, there must be specific averments against the Directors, showing as to how and in what manner the Directors were responsible for the conduct of the business of the company. The Supreme Court after reiterating its own judicial pronouncements in various decisions laid down the following principles: (i) The primary responsibility is on the complainant to make specific averments as are required under the law in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no presumption that every Director knows about the transaction. (ii) Section 141 does not make all the Directors liable for the offence. The criminal liability can be fastened only on those who, at the time of the commission of the offence, were in charge of and were responsible for the conduct of the business of the company. (iii) Vicarious liability can be inferred against a company registered or incorporated under the CompaniesAct, 1956 only if the requisite statements, which are required to be averred in the complaint/petition, are made so as to make accused therein vicariously liable for offence committed by company along with averments in the petition containing that accused were in-charge of and responsible for the business of the company and by virtue of their position they are liable to be proceeded with. (iv) Vicarious liability on the part of a person must be pleaded and proved and not inferred. (v) If accused is Managing Director or Joint Managing Director then it is not necessary to make specific averment in the complaint and by virtue of their position they are liable to be proceeded with. (vi) If accused is a Director or an Officer of a company who signed the cheques on behalf of the company then also it is not necessary to make specific averment in complaint. (vii) The person sought to be made liable should be in- charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a Director in such cases.

Source : Recent judgment of the Supreme Court in the case of National Small Industries Corp. Ltd. Vs. Harmeet Singh Paintal and Anr.

Right To Bail In India

Right To Bail In India

When you are arrested, you are taken into custody. This means that you are not free to leave the scene. Without being arrested, you can be detained, however, or held for questioning for a short time if a police officer or other person believes you may be involved in a crime. For example, an officer may detain you if you are carrying a large box near a burglary site. You can also be detained by storekeepers if they suspect you have stolen something. Whether you are arrested or detained, you do not have to answer any questions except to give your name and address and show some identification if requested. The object of arrest and detention of the accessed person is primarily to secure his appearance at the trial and to ensure that in case he is found guilty he is available to receive the sentence. If his presence at the trial could be reasonable ensured otherwise than by his arrest and detention, it would be unjust and unfair to deprive the accused of his liberty during the pendency of the criminal proceedings against him. The provisions regarding the issue of summons or those relating to the arrest of the accessed person under a warrant or without a warrant or those relating to the release of the accessed at his trial but without unreasonable and unjustifiably interfering with his liberty. Thus this article is related with the provisions related with the release of a person on a bail. In words of Krishna Iyer J. .. the subject of bail:- " ..... belongs to the blurred area of criminal justice system and largely hinges on the hunch of the bench, otherwise called judicial discretion. The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden of public treasury all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process." Thus release on bail is crucial to the accused as the consequences of pre-trial detention are given. If release on bail is denied to the accessed it would mean that though he is presumed to be innocent till the guilt is proved beyond the reasonable doubt he would be subjected to the psychological and physical deprivation of jail life. The jail accessed loses his job and is prevented from contributing effectively to the preparation of his defense. Therefore where there are no risks involved in the release of the arrested person it would be cruel and unjust, to deny him bail. The law bails " has to dovetail two conflicting demands namely, on one hand, the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence. The presumption of innocence of an accused till he is found guilty". In order to sub serve the above said objective, the Legislature in its wisdom has given precise directions for granting or granting bail. Why Bail? Before actually determining the place of bail within human rights framework as conferred by the Constitution, it is important to examine the object and meaning of bail, such that an analysis of these fundamental objects and change therein may reveal a change. The object detention of an accused person is primarily to secure her/his appearance at the time of trial and is available to receive sentence, in case found guilty. If his/her presence at the trial could be reasonably ensured other than by his arrest or detention, it would be unjust and unfair to deprive the accused of his liberty during pendency of criminal proceedings. Thus it is important to note the relevant provisions enshrined in the Universal Declaration of Human Rights:- Article 9- No one shall be subjected to arbitrary arrest, detention or exile. Article 10- Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. Article 11(1)- Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense. There are thus several reasons which have been enumerated as to why bail ought to be allowed to prevent pre-trial detention MEANING OF BAIL Bail, in law, means procurement of release from prison of a person awaiting trial or an appeal, by the deposit of security to ensure his submission at the required time to legal authority. "Bail has been defined in the law lexicon as security for the appearance of the accused person on giving which he is released pending trial or investigation." According to Black's Law Dictionary, what is contemplated by bail is to "procure the release of a person from legal custody, by undertaking that he/she shall appear at the time and place designated and submit him/herself to the jurisdiction and judgment of the court.". MEANING OF BAIL IN INDIA According to Criminal Procedure Code, 1973 (Cr.P.C. hereinafter), does not define bail, although the terms bailable offense and non-bailable offense have been defined in section 2(a) Cr.P.C. as follows: " Bailable offense means an offense which is shown as bailable in the First Schedule or which is made bailable by any other law for the time being enforce, and non-bailable offense means any other offense". That schedule refers to all the offenses under the Indian Penal Code and puts them into bailable and on bailable categories. The analysis of the relevant provisions of the schedule would show that the basis of this categorization rests on diverse consideration. However, it can be generally stated that all serious offenses, i.e. offenses punishable with imprisonment for three years or more have seen considered as non bailable offenses. Further, Sections 436 to 450 set out the provisions for the grant of bail and bonds in criminal cases. The amount of security that is to be paid by the accused to secure his release has not been mentioned in the Cr.P.C. Thus, it is the discretion of the court to put a monetary cap on the bond. Indian Courts however ,have greater discretion to grant or deny bail in the case of persons under criminal arrest, e.g., it is usually refused when the accused is charged with homicide. It must be further noted that a person accused of a bailable offenses is arrested or detained without warrant he has a right to be released on bail. But if the offense is non-bailable that does not mean that the person accused of such offense shall not be released on bail: but here in such case bail is not a matter of right, but only a privilege to be granted at the discretion of the court. Provisions under the Code of Criminal Procedure, 1973 The Code of Criminal Procedure, 1973, makes provisions for release of accused persons on bail. Section 436 of the Code provides for release on bail in cases of bailable offenses. Section 436 provides that when person not accused of a non-bailable offense is arrested or detained he can be detained as right to claim to be released on bail. The section covers all cases of person s accused of bailable of fences cases of persons though not accused of any offense but against whom security proceedings have been initiated under Chapter VIII of the Code and other cases of arrest and detention which are not in respect of any bailable offense. This section entitles a person other than the accused of a non-bailable offense to be released on bail, it may be recalled that S. 50(2) makes it obligatory for a police officer arresting such a person without a warrant to inform him his right to be released on bail. Section 436 (1) of the Code signifies that release on bail is a matter of right, or in other words, the officer-in-charge of a police station or any court does not have any discretion whatsoever to deny bail in such cases. The word " appear in this sub- clause is wide enough to include voluntary appearance of the person accused of an offense even where no summons or warrant has been issued against him. There is nothing in S. 436 to exclude voluntary appearance or to suggest that the appearance of the accused must be in the obedience of a process issued by the court. The surrender and the physical presence of the accused with the submission to the jurisdiction and order of the court is judicial custody, and the accused may be granted bail and released from such custody. The right to be released on bail under S. 436(1) cannot be nullified indirectly by fixing too high amount of bond or bail-bond to be furnish by the person seeking bail. Section 440(1) provides the amount of every bond executed under this chapter shall be fixed with due regard to the circumstances of the case, and shall not be excessive. Further S. 440(2) empowers the High Court or the Court of Sessions may direct that the bail required by a police officer or Magistrate be reduced. Sub-section (2) of S. 436 makes a provision to effect that a person who absconds or has broken the condition of his bail bond when released on bail is a bailable case on a previous occasion, shall not as of right to be entitled to bail when brought before the court on any subsequent date even though the offense may be bailable. In Maneka Gandhi v. Union of India [1978] 2 SCR 621 The amount of the bond should be determined having regard to these relevant factors and should not be fixed mechanically according to a schedule keyed to the nature of the charge. Otherwise, it would be difficult for the accused to secure his release even by executing a personal bond, it would be very harsh and oppressive if he is required to satisfy the court-and what is said in regard to the court must apply equally in relation to the police while granting bail-that he is solvent enough to pay the amount of the bond if he fails to appear at the trial and in consequence the bond is forfeited. The inquiry into the solvency of the accused can become a source of great harassment to him and often resulting denial of bail and deprivation of liberty and should not, therefore, be insisted upon as a condition of acceptance of the personal bond. It also stated that there is a need to provide by an amendment of the penal law that if an accused willfully fails to appear incompliance with the promise contained in his personal bond, he shall be liable to penal action. J. Per Bhagwati & Koshal, JJ. further observed that it is now high time that the State Government realized its responsibility to the people in the matter of administration of justice and set up more courts for the trial of cases. In Moti Ram & Others. v. State of M.P [1978] 4 SCC 47 Urgent need for a clear and explicit provision in the Code of Criminal Procedure enabling the release, inappropriate cases, of an under trial prisoner on his bond without sureties and without any monetary obligation. Criminal courts today, are extremely unsatisfactory and needs drastic change. In the first place it is virtually impossible to translate risk of non- appearance by the accused into precise monetary terms and even its basic premise that risk of financial loss is necessary to prevent the accused from fleeing is of doubtful validity. There are several considerations which deter an accused from running away from justice and risk of financial loss is only one of them and that too not a major one. In this case the court also pointed out the enlightened Bail Projects in the United States such as Manhattan Bail Project and D. C. Bail Project shows that even without monetary bail it has been possible to secure the presence of the accused at the trial in quite a large number of cases. The Court laid down following guidelines, that determine whether the accused has his roots in the community which would deter him from fleeing, the Court should take into account the following factors concerning the accused: 1. The length of his residence in the community, 2 His employment status, history and his financial condition, 3. His family ties and relationships, 4 His reputation, character and monetary condition, 5.His prior criminal record including any record or prior release on recognizance or on bail, 6. The identity of responsible members of the community who would vouch for his reliability. The nature of the offense charged and the apparent probability of conviction and the likely sentence in so far as these factors are relevant to the risk of non appearance, and If the court is satisfied on a consideration of the relevant factors that the accused has his ties in the community and there is no substantial risk of non-appearance, the accused may, as far as possible, be released on his personal bond. Of course, if facts are brought to the notice of the court which go to show that having regard to the condition and background of the accused his previous record and the nature and circumstances of the offense, there may be a substantial risk of his non-appearance at the trial, as for example, where the accused is a notorious bad character or confirmed criminal or the offense is serious (these examples are only by way of illustration), the court may not release the accused on his personal bond and may insist on bail with sureties. But in the majority of cases, considerations like family ties and relationship, roots in the community, employment status etc. may prevail with the court in releasing the accused on his personal bond and particularly in cases where the offense is not grave and the accused is poor or belongs to a weaker section of the community, release on personal bond could, as far as possible, be preferred. But even while releasing the accused on personal bond it is necessary to caution the court that the amount of the bond which it. Section 436A . Maximum period for which an under trial prisoner can be detained - The new provision Section 436Awas introduced in order to solve the problems of undertrials' who were languishing in jails as they will now be given an opportunity to be set free instead of endlessly waiting for their trial to take place. This move has been made due to a faulty criminal justice system and provides a makeshift method of providing justice and relief to undertrial prisoners. This seems to suggest that the Legislature and the Government have accepted the existence of the faulty system and their inability to do anything about it. For this purpose section 436 A was inserted. According to S. 436-A, a person who has undergone detention for a period extending upto half of the maximum period of imprisonment imposed for a particular offense, shall be released on her/his personal bond with or without sureties. The procedure provided is that the Court has to hear the Public Prosecutor and give its decision with reasons in writing. The Court may release the applicant, or if not satisfied may order for the continued detention of the applicant. However, no prisoner can be detained for a period longer than the maximum period of imprisonment provided. The exception to the section is that it is not applicable to offenders who have been sentenced to death. Moving onto the (de)merits of the provisions itself, S. 436-A gives discretion to the Court to set the prisoner free or to make him/her continue imprisonment. There is no mention of any applications having to be filed under the section. The first part of the section states that any prisoner who has served more than half the term of his/her imprisonment 'shall' be released. However, the proviso puts a restriction on the mandatory provision by giving discretionary powers to the courts. This raises questions regarding the implementation of the provision. There is every chance that a prisoner may be sent back to jail to serve a period longer than the half term of his/her sentence. Till the Judges give their written reasons for the same, one will not know on what grounds a continuation of the term can be ordered as the section does not provide any guidelines. Will the undertrial prisoner continue to serve term till the maximum period of the Granting of Bail with conditions Section 437 of the Code provides for release on bail in cases of non-bailable offenses. In such cases, bail is not a matter of right. Court has sufficient discretion to deny or to grant bail. First Schedule to the Code provides the list of bailable and non-bailable offenses. Further cases often arise under S. 437, where though the court regards the case as fit for the grant of bail, it regards imposition of certain conditions as necessary in the circumstances. To meet this need sub-section (3) of S. 437 provides: When a person accused or suspected of the commission of an offense punishable with imprisonment which may extend to seven years or more or of an offense under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abatement of, or conspiracy or attempt to commit, any such offense, is released on bail under sub-section (1), the Court may impose any condition which the Court considers necessary: - (a)In order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or (b)In order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or (c)Otherwise in the interests of Justice. It will be noticed that: - 1)The power to impose conditions has been given to the court and not to any police officer 2)The power to impose conditions can only be exercised - i)Where the offence is punishable with the imprisonment which may extend to seven years or more or ii)Where the offence is one under Chapter VI (Offences against the State), Chapter XVI (offences against the human body), or Chapter XVII (offences against the property) of I.P.C, or iii)Where the offence is one of the abetment of or conspiracy to or attempt to commit any such offence as mentioned above in (i) and (ii). CANCELLATION OF BAIL According to S. 437(5) any court which has released a person on bail under (1) or sub sec (2) of S. 437 may if considers it necessary so to do, direct that such person be arrested and committed to custody. The power to cancel bail has been given to the court and not to a police officer. Secondly, the court which granted the bail can alone cancel it. The bail granted by a police officer cannot be cancelled by the court of a magistrate. For cancellation of bail in such a situation, the powers of the High Court or Court of Session under S. 439 will have to invoked. Rejection of bail when bails applied for is one thing; cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable cases than to cancel a bail granted in such case. Cancellation of bail necessary involves the review of a decision already made and can large be permitted only if , by reason of supervening circumstances it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. However, bail granted illegal or improperly by a wrong arbitrary exercise of judicial discretion can be cancelled even if there is absence of supervening circumstances. If there is no material to prove that the accused abused his freedom court may not cancel the bail. In Public Prosecutor v. George Williams1951 Mad 1042 The Madras High Court pointed out five cases where a person granted bail may have the bail cancelled and be recommitted to jail: (a)Where the person on bail, during the period of the bail, commits the very same offence for which is being tried or has been convicted, and thereby proves his utter unfitness to be on bail; (b)If he hampers the investigation as will be the case if he, when on bail; forcibly prevents the search of place under his control for the corpus delicti or other incriminating things; (c)If he tampers with the evidence, as by intimidating the prosecution witness, interfering with scene of the offence in order to remove traces or proofs of crime, etc. (d)If he runs away to a foreign country, or goes underground, or beyond the control of his sureties; and (e)If he commits acts of violence, in revenge, against the police and the prosecution witnessed & those who have booked him or are trying to book him. RIGHT TO BAIL AND ARTICLE 21'S RIGHT TO PERSONAL LIBERTY The right to bail is concomitant of the accusatorial system, which favours a bail system that ordinarily enables a person to stay out of jail until a trial has found him/her guilty. In India, bail or release on personal recognizance is available as a right in bailable offences not punishable with death or life imprisonment and only to women and children in non-bailable offences punishable with death or life imprisonment. The right of police to oppose bail, the absence of legal aid for the poor and the right to speedy reduce to vanishing point the classification of offences into bailable and non-bailable and make the prolonged incarceration of the poor inevitable during the pendency of investigation by the police and trial by a court. The fact that under trials formed 80 percent of Bihar's prison population, their period of imprisonment ranging from a dew months to ten years; some cases wherein the period of imprisonment of the under trials exceeded the period of imprisonment prescribed for the offences they were charged with- these appalling outrages were brought before the Supreme Court in Hussainara Khatoon v. State of Bihar AIR 1979 SC 1360 Justice Bhagwati found that these unfortunate under trials languished in prisons not because they were guilty but because they were too poor to afford a bail. In Mantoo Majumdar v. State of Bihar AIR 1980 SC 846 the Apex Court once again upheld the under trials right to personal liberty and ordered the release of the petitioners on their own bond and without sureties as they had spent six years awaiting their trial, in prison. The court deplored the delay in police investigation and the mechanical operation of the remand process by the magistrates insensitive to the personal liberty of the under trials, remanded by them to prison. The Court deplored the delay in police investigation and the mechanical operation of the remand process by the magistrates insensitive to the personal liberty of under trials, and the magistrate failure to monitor the detention of the under trials remanded by them to prison. The travails of illegal detainees languishing in prisons, who were uniformed, or too poor to avail of, their right bail under section 167 Cr.P.C. was further brought to light in letters written to Justice Bhagwati by the Hazaribagh Free Legal Aid Committee in Veena Sethi v. State of Bihar (1982) 2 SCC 583. The court recognized the inequitable operation of the law and condemned it- "The rule of law does not exist merely for those who have the means to fight for their rights and very often for perpetuation of status quo... but it exist also for the poor and the downtrodden... and it is solemn duty of the court to protect and uphold the basic human rights of the weaker section of the society. Thus having discussed various hardships of pre-trial detention caused, due to unaffordability of bail and unawareness of their right to bail, to under trials and as such violation of their right to personal liberty and speedy trial under Article 21 as well as the obligation of the court to ensure such right. It becomes imperative to discuss the right to bail and its nexus to the right of free legal aid to ensure the former under the Constitution- in order to sensitize the rule of law of bail to the demands of the majority of poor and to make human rights of the weaker sections a reality. RIGHT TO BAIL AND RIGHT TO FREE LEGAL AID -: ARTICLES 21 AND 22 READ WITH ARTICLE 39A Article 21 of the Constitution is said to enshrine the most important human rights in criminal jurisprudence. The Supreme Court had for almost 27 years after the enactment of the Constitution taken the view that this Article merely embodied a facet of the Dicey on concept of the rule of law that no one can deprived of his life and personal liberty by the executive action unsupported by law. If there was a law which provided some sort of procedure, it was enough to deprive a person of his life and personal liberty. In the Indian Constitution there is no specifically enumerated constitutional right to legal aid for an accused person. Article 22(1) does provide that no person who is arrested shall be denied the right to consult and to be defended by legal practitioner of his choice, but according to the interpretation placed on this provision by the Supreme Court Janardhan Reddy v. State of Hyderabad, AIR 1951 SC 227. in this provision does not carry with it the right to be provided the services of legal practitioners at state cost. Also Article 39-A introduced in 1976 enacts a mandate that the state shall provide free legal service by suitable legislations or schemes or any other way, to ensure that opportunities for justice are not denied to any citizen by reason of economic or other disabilities - this however remains a Directive Principle of State Policy which while laying down an obligation on the State does not lay down an obligation enforceable in Court of law and does not confer a constitutional right on the accused to secure free legal assistance. However the Supreme Court filled up this constitutional gap through creative judicial interpretation of Article 21 following Maneka Gandhi's case. The Supreme Court held in M.H. Hoskot v. State of Maharashtra a AIR 1978 SC 1548nd Hussainara Khatoon's case that a procedure which does not make legal services available to an accused person who is too poor to afford a lawyer and who would, therefore go through the trial without legal assistance cannot be regarded as reasonable, fair and just. It is essential ingredient of reasonable, fair and just procedure guaranteed under Article 21 that a prisoner who is to seek his liberation through the court process should have legal services made available to him. The right to free legal assistance is an essential element of any reasonable, fair and just procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21. Thus the Supreme Court spelt out the right to legal aid in criminal proceeding within the language of Article 21 and held that this is.... "a constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation and the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided of course the accused person does not object to the provision of such lawyer." Conclusion It is indisputable that an unnecessarily prolonged detention in prison of under trials before being brought to trial is an affront to all civilized norms of human liberty and any meaningful concept of individual liberty which forms the bedrock of a civilized legal system must view with distress patently long periods of imprisonment before persons awaiting trial can receive the attention of the administration of justice. Thus the law of bails must continue to allow for sufficient discretion, in all cases, to prevent a miscarriage of justice and to give way to the humanization of criminal justice system and to sensitize the same to the needs of those who must otherwise be condemned to languish in prisons for no more fault other than their inability to pay for legal counsel to advise them on bail matters or to furnish the bail amount itself. While concluding, it seems desirable to draw attention to the absence of an explicit provision in the Code of Criminal Procedure enabling the release, in appropriate cases, of an under trial prisoner on his bond without sureties and without any monetary obligation. There is urgent need for a clear provision. Undeniably, the thousands of under trial prisoners lodged in Indian prisons today include many who are unable to secure their release before trial because of their inability to produce sufficient financial guarantee for their appearance. Where that is the only reason for their continued incarceration, there may be good ground for complaining of invidious discrimination. The more so under a constitutional system which promises social equality and social justice to all of its citizens. The deprivation of liberty for the reason of financial poverty only is an incongruous element in a society aspiring to the achievement of these constitutional objectives. There are sufficient guarantees for appearance in the host of considerations to which reference has been made earlier and, it seems to me, our law-makers would take an important step-in defence of individual liberty if appropriate provision as made in the statute for non-financial releases.

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