Penal provisions for fake posts in the times of the Corona Virus

Karnataka State Police in collaboration with Check4Spam to counter rumours amid the coronavirus outbreak has initiated a portal to verify any suspected news and also upload the content for its verification and clarification.  It is urged to the public not circulate any unverified news concerning coronavirus, which is likely to create panic and disturb social tranquillity. 

Source: https://factcheck.ksp.gov.in/about-us/ 

Penal provisions under Indian Laws:

Information Technology ACT, 2000

Section 66C- Punishment for identity theft. – Whoever, fraudulently or dishonestly make use of the electronic signature, password or any other unique identification feature of any other person, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to rupees one lakh.

The Disaster Management ACT, 2005

Section 54. Punishment for false warning.

Whoever makes or circulates a false alarm or warning as to disaster  or its severity or magnitude, leading to panic, shall on conviction, be  punishable with imprisonment which may extend to one year or with  fine. —Whoever makes or circulates a false alarm or warning as to disaster or its severity or magnitude, leading to panic, shall on  conviction, be punishable with imprisonment which may extend to  one year or with fine.

Indian Penal Code

Section 153. Wantonly giving provocation with intent to cause  riot- if rioting be committed- if not committed.-

Whoever, malignantly, or wantonly by doing anything which is illegal, gives provocation to any person intending or knowing it to be likely that such provocation will cause the offence of rioting to be committed, shall, if the offence of rioting be committed in consequence of such provocation, be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both; and if the offence of rioting be not committed, with imprisonment of either description for a term which may extend to six months, or with fine, or with both.

Section 153A: Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.—

Whoever—

(a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different reli­gious, racial, language or regional groups or castes or communi­ties, or

(b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquillity, ……………….

(2) Whoever commits an offence specified in sub-section (1) in any place of worship or in any assembly engaged in the performance of religious wor­ship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.]

Section 182. False information, with intent to cause public servant to use his lawful power to the injury of another person.—

Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant—

(a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, or

(b) to use the lawful power of such public servant to the injury or annoyance of any person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

Section 188. Disobedience to order duly promulgated by public servant.

Whoever, knowing that, by an order promulgated by a public serv­ant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple impris­onment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. 

Section 269. Negligent act likely to spread infection of disease danger­ous to life.

Whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.

Section 270. Malignant act likely to spread infection of disease danger­ous to life.

Whoever malignantly does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Section 336. Act endangering life or personal safety of others.

Whoever does any act so rashly or negligently as to endanger human life or the personal safety of others, shall be punished with impris­onment of either description for a term which may extend to three months, or with fine which may extend to two hundred and fifty rupees, or with both.

Section 465. Punishment for forgery.

Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Section 505. Statements conducing to public mischief.

(1) Whoever makes, publishes or circulates any statement, rumour or report,—

(a) with intent to cause, or which is likely to cause, any offi­cer, soldier, 3[sailor or airman] in the Army, 4[Navy or Air Force] 5[of India] to mutiny or otherwise disregard or fail in his duty as such; or

(b) with intent to cause, or which is likely to cause, fear or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquillity; or

(c) with intent to incite, or which is likely to incite, any class or community of persons to commit any offence against any other class or community, shall be punished with imprisonment which may extend to 6[three years], or with fine, or with both. 7[(2) Statements creating or promoting enmity, hatred or ill-will between classes.—Whoever makes, publishes or circulates any statement or report containing rumour or alarming news with intent to create or promote, or which is likely to create or promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, feelings of enmity, hatred or ill-will between different reli­gious, racial, language or regional groups or castes or communi­ties, shall be punished with imprisonment which may extend to three years, or with fine, or with both.

(3) Offence under sub-section (2) committed in place of worship, etc.—Whoever commits an offence specified in sub-section (2) in any place of worship or in an assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.]

Thugs of Hindustan - Criminal Tribes Act 1871 of British India

Criminal Tribes Act (CTA), India

In 1871 the British rulers  passed a law known as Criminal Tribes Act (CTA) branding scores of castes and communities steeped in grinding poverty in India, as ‘born criminals’. 

This barbaric law was first notified and enforced in northern India that was subsequently extended to Bengal and other provinces as well.  It notified 160 castes that constitute the core of present day ‘Dalit Samaj’ as hereditary criminals.

 As a community they were branded as criminals by birth, that receive training in professions like theft, burglary, house-breaking, robbery, dacoity, and counterfeiting from one generation to the next.  

The total head count of these criminal tribes was approximately 60 million constituting nearly 30% of the total population (according to 1871 census the total population of India was about 200 million). 

All the members of the so called ‘criminal-tribes’ were native Hindus. As such, with a single stroke of pen the British rulers declared 30% of the Hindu population as hereditary criminals, thereby condemning their unborn generations as ‘pariahs’ destined to work as hewers of wood and drawers of water.

It is important to note that the CTA made it lawful to perform genocide against a list of Indian tribes at different regions (Bhils, Kanjars, Sansis, Nats, Meenas, Charas, Satnamis, Gonds, Marias, Chenchus, etc., to name a few), deemed to be criminals by birth.  

Apparently, many of these tribes were deprived of basic human rights not because they were indulged in any criminal activity but because they were fighting against British destruction of their jungles and other habitats. 

Thugs were one such courageous tribe that valiantly fought against British rulers. As such, they were badly maligned via publicized atrocity literature and ‘Thug’ became a synonym for criminal in English language!  

Surprisingly, this distortion and misrepresentation of Indian history and traditions is being taught at major academic institutions both in India and the west, even today. This needs to be exposed and corrected by presenting the facts at appropriate academic forums.

Thus, the bill introduced in 1871 by the British Jurist, James Fitzjames Stephen (who authored Indian Evidence Act), deprived these communities elementary human rights and dignity, permanently arresting their socioeconomic growth by restricting their mobility. 

This draconian law was based on an irrational assumption that people in India have been pursuing the ‘caste-system-defined-job-positions’ like weaving, carpentry  that is passed on from one generation to the next, as a hereditary profession.  Therefore, there must have been hereditary criminals as well who followed their forefathers’ profession! 

Elaborating on this atrocious logic he commented “when we speak of professional criminals we mean a tribe whose ancestors from time immemorial destined by the usage of caste to commit crime, and whose descendants will be offenders against law, until the whole tribe is exterminated in the manner of thugs’.

 Thus, this draconian law was evidently based on an irrational assumption rather than on any empirical research data.  No attempt was made to investigate the causes that compelled these hapless tribes to take to crime for earning a livelihood-a phenomenon which apparently took shape during the long period of Islamic rule in India.  

Mercifully, British rulers did not follow this advice, namely the extermination of these hapless tribes, as suggested by Sir James Fitzjames Stephen, follower of Anglican Church turned lawmaker for India!

The people that praise British as just and egalitarian and blame high caste Hindus for social evils in India (Kancha Ilaiah) should answer as to why the British did not ban untouchability during their 200-years long rule of India? 

Also, these critics should recognize the fact that people who agitated for the abolition of untouchability and facilitated the untouchability prevention act of 1955, were mostly high caste Hindus.  

Consequently the Dalit Samaj of today holds deep grudge against the so-called ‘high castes’ and the caste warfare rhetoric goes on relentlessly, even after six decades after the  independence.  The leftist and pseudo-secular writers find no time to find the truth, and unfortunately, the vote-bank politics and caste warfare continue unabated.  

Source: https://www.myind.net/Home/viewArticle/scheduled-castes-and-tribes-fault-lines-created-british-raj

Contract Killings and Punishment

Anybody could be a hired killer in Delhi, say police; they are ready to pull the trigger for as low as Rs 40,000.

A mother of seven, a science graduate, a property dealer and a man looking for a job — the profiles of Delhi’s contract killers are diverse. For as little as Rs 40,000, some of these dreaded murderers for hire can fire a gun or wield a knife.

At least 50 contract killing cases were solved by the Delhi police in 2017. Not all of the accused had previous criminal records — some were first-time offenders with dreams of becoming rich overnight.

Former Delhi commissioner Ved Marwah said that though the phenomenon of professionals taking money to kill is spread across the world. “Contract killers are professionals and are everywhere in the world. But first-timers indulging in such crimes shows degeneration of social values. We have to strengthen the criminal justice system, raise the threshold of social behaviour and maintain higher standards.”

Source:  .hindustantimes.

Contract killings have not been alien to Delhiites but what is startling is the fact that they are no longer executed to simply settle scores in business or political rivalries but have even crept into family issues. 

A senior Gurgaon police official believes that over time contract killers have also become “sophisticated and smart.”

“They are no longer the rustic gangs from UP villages who usually worked under the patronage of some local politician or businessman. With landowners from Delhi’s fringe villages striking gold with the property boom, sufficient money has been pumped into these areas to fulfill the fancy for foreign-made guns. This explains the proliferation of guns in the NCR,” said the official.

Source: DNA

The Madras High Court Bench confirmed life sentence imposed on five contract killers, and speaking through the Division Bench of Justices A. Selvam and T. Mathivanan held :

“However high or wise a person is, when he happens to commit a crime against morality, he would certainly, in a flustered state, leave a mark of vestige. This is the archaism and that is what has happened in this case.” 

Source: the Hindu

Punishment:

The punishment for murder under India’s Penal Code is life imprisonment or death and the person is also liable to a fine.[16] 

Guidance on the application of the death sentence was provided by the Supreme Court of India in Jagmohan Singh v. State of Uttar Pradesh, where the Court enunciated an approach of balancing mitigating and aggravating factors of the crime when deciding on the imposition of capital punishment.[17]  However, this approach was called into question first in Bachan Singh v. State of Punjab where the Court emphasized that since an amendment was made to India’s Code of Criminal Procedure, the rule has changed so that “the offence of murder shall be punished with the sentence of life imprisonment.  The court can depart from that rule and impose the sentence of death only if there are special reasons for doing so.”[18]  The Court also emphasized that due consideration should not only be given to the circumstances of the crime but to the criminal also.[19] 

However, more recently the Court in Sangeet & Anr. v. State of Haryana, noted that the approach in Bachan has not been fully adopted subsequently,[20] that “primacy still seems to be given to the nature of the crime,” and that the “circumstances of the criminal, referred to in Bachan Singh appear to have taken a bit of a back seat in the sentencing process.”[21] The Court in Sangeet concluded as follows:

This Court has not endorsed the approach of aggravating and mitigating circumstances in [the 1971 case of] Bachan Singh.  However, this approach has been adopted in several decisions.  This needs a fresh look.  In any event, there is little or no uniformity in the application of this approach.

Aggravating circumstances relate to the crime while mitigating circumstances relate to the criminal.  A balance sheet cannot be drawn up for comparing the two.  The considerations for both are distinct and unrelated.  The use of the mantra of aggravating and mitigating circumstances needs a review.

In the sentencing process, both the crime and the criminal are equally important. We have, unfortunately, not taken the sentencing process as seriously as it should be with the result that in capital offences, it has become judge-centric sentencing rather than principled sentencing.

The Constitution Bench of this Court has not encouraged standardization and categorization of crimes and even otherwise it is not possible to standardize and categorize all crimes.

The grant of remissions is statutory.  However, to prevent its arbitrary exercise, the legislature has built in some procedural and substantive checks in the statute.  These need to be faithfully enforced.[22]

Source: https://www.loc.gov/law/help/sentencing-guidelines/india.php

After looking at the judgments of various cases, in my opinion, section 307 IPC is very confusing in so far as the basis of the conviction of accused is concerned. There is a common ingredient which is required for the conviction under this section and that element is intention along with the knowledge and the implication of the act done. All the courts across the board agree on the fact that the intention to commit murder and the preparation for the act must be present. However the element where the courts differ with each other is the matter of proving the intention.

The difference being that courts say that to prove the intention of the accused, the nature of the injury, the nature of the weapon used, preparation taken are taken into account however surprisingly the courts arrive at different conclusions regarding these facts. That is in some cases the courts have ruled that even if the weapon used was dangerous but caused a simple wound, there would be no conviction under section 307 and in another case the court rules that even if no injury is caused the accused can be convicted if intention to kill is proved. This is contradictory in nature. In one case the court also ruled that forced starvation can also be convicted under section 307.

The questioning of the constitutional validity of this section was a legitimate question which was solved by a very simple answer by the Andhra Pradesh High Court. The main conclusion is that there is no hard and fast rule about the methodology of proving the intention of the accused, that may vary from case to case and it is the judge’s responsibility to take cognizance of the facts before him and decide on the intention of the accused and it is the intention which matters the most in conviction.

The nature of the injuries, weapons used are merely clues that the judiciary uses to reach to a conclusion about the intention of the accused. So it can be safely said that even of no injury is caused a person can be convicted under this section.

Source: https://www.lawctopus.com/academike/attempt-murder-section-307-ipc/

Killer Potholes - Who is responsible?

The dialogue on Killer Potholes has started after the unfortunate death of the Lady Biker or Bikerni Jagruti Hogale, And should continue till this is resolved.

Why IndianPenalCode Section 304A cannot be made applicable to Civic Bodies?

Why is Causing death by Negligence by Civic bodies, National Highway Authorities and Road Contractors not punishable?

This is a 2015 Link on #KillerPotholes of India... .

If a doctor can face legal action for malpractice or negligence, and a manufacturer of a product be held liable for its poor performance, why can’t civic bodies be held responsible for road accidents that occur due to their negligence?

Priti Prasad of Ambarnath (in Mumbai’s metropolitan region) and Om Prakash of Bengaluru have been treated as culprits instead of victims despite one having lost a mother the other his wife. Both were riding their respective two-wheelers with a person riding pillion. And both crashed because of potholes on the road.

The law should have helped the survivors of the crash by punishing the culprits. But in both cases, the police went after the wrong person. Who then are the real culprits?

The civic authorities whose job is to maintain the roads and the contractors who laid the roads. In both cases, they obviously fell short. Instead those who were riding the vehicles have been faulted and booked.

A lurching halt in a pothole, even at a prescribed speed, can unseat the rider. The pillion rider has no control and risks falling which could lead to injury and death. The question of speeding here is not as relevant as the criminal liability of not maintaing the roads.

Priti Prasad tried to do the right thing by going to the heart of the matter. She argued that it wasn’t her driving at fault, but the pathetic condition of the road she was forced to use. The Ambernath police refused to register the FIR she was keen to file in order to target the contractor. She should ideally have listed the Ambernath civic body as well.

Standards are often ignored when building roads and sometimes a bad job is done to ensure that subsequent pothole repair contracts are secured as well. Each monsoon is a trigger for renewed loot.  In Mumbai, the high court has had to weigh in on behalf of the citizens, asking the civic body to ensure good roads and keep them pothole-free. It hasn’t become reality yet though.

Civic bodies, being impersonal and therefore insensitive, take these regular raps on the knuckle in their stride and provide sworn affidavits about how they will correct themselves.  The point is they don’t. Even Ganapati, the deity of Maharashtrian, has to worry if he can be brought in safely from the workshop and then taken for immersion without risking injury due to a pothole.

Perhaps the law of torts, whereby they are required to pay for damaged caused, would be the best way to cure the civic bodies of their habitual neglect. Suppose Prakash and Prasad take on the civic bodies by making a demand using torts, and seeking a corrective for a wrong done, it would be a nice start.

Given the number of potholes, not just on any city’s badly-kept roads but on toll-funded highways as well, authorities will have to reckon with the loss of finances and the need to have a separate department to deal with the cases. But they have to get the message that the city is run on tax-payer’s money.

It’s not enough to just have a civic body to provide employment to some and political opportunities to others. It would be a good idea if the accident laws were enabled to provide succour by levying the burden of compensation on the agencies.

Normally the person responsible for a road accident pays through insurance companies. So why not the civic bodies given they are the principal cause of accidents?

Source - http://www.firstpost.com/india/killer-potholes-of-india-civic-bodies-should-have-to-pay-up-for-the-deaths-they-cause-2444758.html

Slideshow on India's Killer Potholes: http://m.ndtv.com/photos/news/indias-killer-potholes-15625#&ui-state=dialog

Even as radio jockey Malishka and radio channel Red FM 93.5 are embroiled in a controversy with the Municipal Corporation of Greater Mumbai (MCGM) over a satirical video about the bad condition of the city roads, almost 29 accidents per day, or one accident every 50 minutes, were reported due to potholes across the country between 2013 and 2015, according to this reply by the Ministry of State for Road Transport and Highways to the Rajya Sabha (upper house of Parliament) on March 27, 2017.

As many as 10,876 road accidents due to potholes were reported across the country in 2015, the latest figure available. The data for 2016 are yet to be compiled, according to this reply by the ministry to the Lok Sabha (lower house of Parliament).

Over three years, 31,681 accidents were reported due to potholes.

Source - https://www.indiaspend.com/viznomics/killer-potholes-29-accidents-reported-every-day-over-3-years-81157

A brilliant artist Baadal Nanjundaswamy hit national headlines after he planted a life-sized crocodile in the middle of a road after BBMP failed to repair a pothole. His efforts paid off and the city corporation filled up the pothole in just a day after the pictures went viral. A few weeks later Badal Nanjundaswamy drew a butterfly net around a pothole to wake up authorities! Again the red faced civic authorities immediately swung into action and filled up the potholes.
The location of Bengaluru is also partially responsible for the bad condition of roads. It is located 3000 feet above sea level and receives a lot rain. Since the rain leads to water logging, asphalted roads crack, creating potholes. However, the bad quality of work is the main reason for the ever increasing number of potholes across the city.
According to an estimate, there are 2,631 potholes in the city. It states that 910 potholes had come up on roads that are still under the defect liability period. Sources said that if there is any defect/pothole on the road when it is under the defect liability period, the contractor is liable to repair the same at his/her cost.
According to ‘The Hindu’ the report also states that there are 1,721 potholes on other roads, mainly arterial and sub-arterial ones. Sources said that a tender to fill the potholes on these roads would be called soon. The BBMP had earlier stated that a fine of Rs. 2,000 would be levied on contractors for each pothole.
In the last five years the BBMP has spent over Rs 100 crore to repair potholes across the city. However the potholes refuse to vanish. It clearly shows that the major portion of the spent has been siphoned off by the concerned people. Currently the BBMP is bankrupt, unless the Congress state government in Karnataka which snatched BBMP from the BJP releases generous funds for the road work, potholes continue to exist. Making Bengaluru is potholes free city should be the top priority of the BBMP and state government. Apathy kills.

Source - http://www.news18.com/news/india/killer-potholes-of-bengaluru-tragic-deaths-apathy-of-the-government-1106602.html

Filling up potholes is Mumbai man’s tribute to his son. - http://www.hindustantimes.com/mumbai/filling-up-potholes-is-mumbai-man-s-tribute-to-his-son/story-3Y1UQVIEQbir6KSwFrM5VM.html

In July 2015, Billhore’s son Prakash, 16, died when the bike he was riding hit an 18-feet wide water-filled pothole on the Jogeshwari-Vikhroli Link Road. Prakash was driving back home from college with his cousin

"The trench was made to repair burnt cable wires underground but was not covered after they were repaired. I lost my son due to negligence of civic authorities,” said Billhore.
Now, Billhore, 46, has made it his mission to highlight the callous way in which the municipal corporation maintains the city’s roads.
“Filling up potholes is a tribute to my son who was a bright student and was the hope for a better future of our family,” Billhore said.
Every Sunday, he and his two friends scout around Andheri looking for potholes and filling them up with sand or pebbles."

After the accident, the Aarey police station registered criminal cases against a municipal officer and an engineer from a private power company. The two were held guilty under section 304A (causing death due to negligence) and section 338 (act endangering life and causing grievous hurt). They have got anticipatory bail.
“The charge sheet will be filed this week and we expect court proceedings to begin soon,” said Vilas Chavan, senior inspector from Aarey police station.

#KillerPotholes

Create Awareness against QNET and other phony MLM Ponzi schemes

An article about the Awareness of the Ponzi and MLM schemes.

We all have friends who -
1. Have suddenly started up their dream business
2. But it's a secret
3. Don't even tell you the name of their business but they keep telling you I am into a business
3. Have their Facebook full of motivational quotes
4. Claim that they have suddenly become rich
5. They visit Malaysia and Dubai and post pictures having fun there and call it a business trip ! These are the only guys who have fun during a business trip it seems. (Reality: They bought the tickets by themselves only to post pictures so that their innocent friends would think that they are doing something really cool)
6. No matter how much you ignore them, they will keep on calling you till their last breath. We already know that this is not the characteristics of a person who has even 10% self respect in him/her.
7. And then one day they tell you that they have an open position of a Business Partner. He also tells you that he trusts you a lot and hence has arranged a meeting with his seniors to introduce you, probably in a CCD :-p
8. They tell you that you can earn more than 4 crores in just a few years but do not tell you exactly what is your role in the business, But overall this guy looks so convincing that you almost feel that if you do not join him, you will miss out !
9. He makes you feel that you are running in a Rat Race by working in your current job and that their Business is the only way to change your life.

If you have experienced this and escaped, Congrats ! You are one of the Lucky Ones ! Sadly, Not everyone escapes, some join it only to lose their money because they chose not to dupe more people.

This post is issued in public interest so that all of us can understand there is no short cut to success.

Please Please Please share this post and help us create awareness against QNET. This is the only way to save your closed ones from getting cheated.

Source - Facebook post

In defence of a revolutionary - Reopening the trial of Shaheed Bhagat Singh and his team - IndianExpress

Eighty-five years after the hanging of Bhagat Singh, lawyers from India and Pakistan have joined hands to re-open, and overturn, the sham trial that led to his death.

In a dark, poky room that constitutes his chamber in the new block of the Supreme Court, Delhi, Nafis Siddiqui, a 77-year-old criminal lawyer, has been preparing for a most unorthodox case for the last two years. 

As part of his research, he has been reading up on cases where verdicts have been upended after long periods of time. He cites the case of George Stinney, a young boy, exonerated 70 years after his death by a court in US (in 2014), that found he was denied due process. Siddiqui points out another relevant trial; the ongoing legal battle between the British government and victims of Kenya’s Mau Mau emergency, who are demanding compensation 50 years after the events. “When it comes to infringement of fundamental rights, a delay in the matter is of no consequence,” he says.




With loose-flowing white hair, thick-framed glasses and oversized black coat, Siddiqui is an idiosyncratic figure. He pulls out a thick brown folder marked “Bhagat Singh”, with whom he has grown to be familiar through history books and family lore — Siddiqui’s father-in-law, Hasrat Mohani, a freedom fighter, communist and poet, credited for coining the slogan, “Inquilab Zindabad!”, had a great influence on the revolutionary. “I mostly handle cases of murder, and this is clearly a case of political murder,” he says.



Eighty-five years after the hanging of Bhagat Singh, a lawyer from Pakistan is trying to pull off what is either an audacious attempt to change the course of history, or a fool’s errand. In 2014, Siddiqui was approached by Lahore-based Imtiaz Rashid Qureshi — who has been fighting a lone battle to prove the innocence of Bhagat Singh — to advise him on his case. Qureshi’s petition, which was filed at the Lahore High Court in 2013, seeks to reopen the case of the hanging of Singh and his compatriots, Sukhdev Thapar and Shivaram Rajguru, whose death anniversary will be celebrated on March 23 as Martyrs’ Day. In February this year, a two-member division bench in Lahore referred the case to a larger bench. For Qureshi, who argued that only a bench of three or more members could undo the decision of the three-member bench that awarded the death sentence in 1930, it was a moment of victory.

The first breakthrough came in 2014 when the court handed him a copy of the original FIR for the murder of British police officer John Saunders lodged at Lahore’s Anarkali police station in December 1928. The FIR does not name any of the three accused.



This is just one of the many discrepancies of the Lahore Conspiracy Case, which lasted for nearly two years and is universally recognised as a sham trial. As AG Noorani detailed in his book, The Trial of Bhagat Singh, from the lower court to the tribunal to the Privy Council, it was a judgment that represented a total compromise of the legal process.

The accused remained absent through the proceedings and remained unrepresented. Halfway through the trial, an Indian judge, deemed sympathetic to the accused, was removed from the tribunal. Many other rules of law were flouted. In a scathing editorial that appeared in April 1931, in the Marathi newspaper Janata, soon after the hanging, BR Ambedkar called out the hypocrisy of the British who manipulated the trial for political ends.



“We are demanding two things, that the British government, through the Queen, apologise to both our countries, and pay compensation to the families of Bhagat Singh, Rajguru and Sukhdev,” says Qureshi over the phone from Lahore. Loquacious and deeply committed to the cause, he calls himself a “lover of Bhagat Singh” and runs a memorial in his name, the Bhagat Singh Memorial Foundation. “This is a case that unites the two countries and it proves that Pakistan, an Islamic state, can also be liberal. Let’s not forget the Quaid-e-Azam was the only leader to have publicly defended him.” In a speech he gave in the Central Assembly in 1929, Mohammad Ali Jinnah had famously expressed his sympathy for the revolutionaries.

Qureshi’s pursuit has had a ripple effect in India. In Ludhiana, the descendants of Sukhdev Thapar have recently written to the Indian government, demanding a copy of the FIR and papers related to the judgment. Ashok Thapar, (a great-nephew, his grandfather was the younger brother of Sukhdev), who runs the Shaheed Sukhdev Thapar Memorial Trust, says, “We want government support to go to Lahore and pursue this case, or we will file an RTI. As his blood relations, we have a claim.”



More than perhaps the verdict, the reopening of the trial is crucial for another reason. There is renewed hope that the court will order the release of about 164 files related to the case, which are with the Punjab Archives in Lahore. They have been treated as “sensitive”, and no historian or researcher has ever been allowed to access them, says Ludhiana-based Jagmohan Singh, a researcher on Bhagat Singh. He also happens to be Bhagat Singh’s nephew, born to his sister Bibi Amar Kaur. But, unlike the sustained campaign around the declassification of the Netaji files, these files have been neglected. Yet, they are a crucial part of setting the record straight.



“The trial may or may not change history, but it’s the right of the people to know what happened, and those files will help us get there,” says Shantanu Rajguru, a great-grandnephew of Shivaram Rajguru. The family lives in Pune and is currently putting together a biography on the revolutionary. It was Rajguru, known as the marksman of the group, who fired the shot that killed Saunders. But Rajguru, like Sukhdev (who was in charge of coordinating the operation to avenge the death of Lala Lajpat Rai), has been reduced to a footnote in history, believes Shantanu. The descendants of Sukhdev believe that the retrial should not be held in the name of Singh alone.

*****
Apart from the context of historicity, the trial is significant as a measure of the democratic struggle in Pakistan being led by the civil society. The effort to reinstate Bhagat Singh as an icon has gathered force in recent times, as he has emerged as a symbol for the secularists in their battle against illiberal forces. Singh belongs to the pantheon of heroes of the Indian subcontinent. He is venerated in Punjab where he was born. “The PIL is an important political and historical development in a country and a region where history is often distorted in textbooks, held hostage to nationalist expediencies and heroes like Bhagat Singh are simply whitewashed or relegated to a footnote,” says Raza Naeem, a social scientist and activist from Lahore, over an email interview.



While there is no official celebration of his martyrdom day in Pakistan, every year, on March 23, there is a gathering of activists at Shadman Chowk, next to Lahore Jail, where he was executed. Since 2001, there has been a movement demanding Shadman Chowk be renamed Bhagat Singh Chowk. The government agreed a few years ago, but capitulated when Islamist groups objected to the icon on grounds of his religious identity. In a conciliatory move last year, the government announced a package of Rs 8 crore, for the restoration of his ancestral house in Faisalabad district.

“I have attended the annual gathering at the chowk for a few years and every year, the movement has grown,” says Haroon Khalid, Pakistani author and journalist. “It is now part of the broader debate that seeks to widen the horizons of Pakistani nationalism by incorporating non-Muslim heroes as well. Another interesting dynamic of this movement is that it also comes at a time when the Pakistani state actively wants to re-project itself as a liberal secular state. There has been particular focus on the protection and promoting of Sikh heritage in the country. Bhagat Singh is seen in that broader framework of this Sikh heritage,” he says.

*****


(The other aspects touched in the original article are not subscribed to or agreeable with me. It would be a narrow approach to stifle the Patriotic actions of the Revolutionaries under the Colonial Rule to a set of political isms. It is also equally wrong and disruptive to equate those Revolutionaries in the real sense to the present ongoing events involving a  few misguided, politically motivated individuals.)

SOURCE - 

http://indianexpress.com/article/india/india-news-india/freedom-fighter-bhagat-singh-inquilab-zindabad-supreme-court-nafis-siddiqui-george-stinney-hasrat-mohani-in-defence-of-a-revolutionary/#sthash.WNn5MgTv.dpuf

A Cyclists encounter with the Railway Police at Bangalore - The Logical Indian

From the #Facebook page #LogicalIndian:

#MyStory

“I have read of inhumane incidents happening in many parts of the country. But you won’t totally believe unless you encounter one. Now onward I can totally believe them.

I frequently travel to China for my official trips. One thing I always adored by Chinese people is their use of electrical or foldable bicycle which they carry with them in the subway.

This time, after coming to India I desperately started looking for such bicycle if available in India. At last, I found one BTWIN HOPTOWN bicycle at Decathlon. I immediately bought and started using it. Once I was carrying it with me on the train between the route KR PURAM to Bangalore Cantonment. I am proud of the fact that I am not the one contributing to the pollution in Bangalore.

On 9/2/2016, while exiting from Bangalore Cantonment railway station one ticket checking officer lady caught me and started demanding fine for carrying a bicycle with me. I tried to convince her, once folded it is not a bicycle at all, it weights hardly 14 kg and it is very much portable. But she insisted on asking for 6 times the fare of travel. I asked her for the railway rules regarding this and the receipt of the bill. She took my pass and made me wait for another 30 minutes and later came with an excuse that she doesn’t know the luggage rules. I was getting late and told her 6 times my fare of travel is 60 rupees and that she can have 100 rupees and let me go. But she demanded 300 rupees.

I told her even if it is 1000 rupees I will pay but I need the receipt. She presented the same excuse that she doesn’t know the luggage rules. At last, I lost my patience and started to call her corrupt. After which she slapped me, pushed me and called her police constable colleague to take me to the jail for misbehavior. He took me to the jail and started beating me. His other colleagues joined him, they undressed me and started beating me with hand, leg and sticks 5 people at a time. I was sure that I was going to die that day and only my body will be found next day. I begged them in all the possible way I can. At last, after an hour, one guy listened to my plea and asked me to pay 5000 rupees. He asked me to call any of my friends to come with 5000 rupees and then can take me back.

I called my manager Harish Haswani who came with two mutual colleagues of ours. All three had to plea to the railway police for more than an hour on my behalf as Railway police have threatened them that they will file a case against me of misbehaving with a lady officer and that I have tried to press her breast. I was very much shocked to see to what level character of a woman can fall. After too much of plea and the bribe from my colleagues they released me. The lady officer fined me 190Rs stating my bicycle weight is 40kg although it is 14kg only. Also, she fined me for ticket-less traveling though I was having the monthly pass. Also, the receipt she issued is of date 8/02/16 and not 9/02/16 on which date I travelled and the incident took place. We all were too much afraid and didn’t dare to ask her for the mistake in the receipt. All of our focus was just to save my life and get me out of there.

I am undergoing the treatment. My left hand is fractured. My friend Sarfaraz is taking care of me. I am determined never to travel by train in Bangalore again. My fold-able  BTWIN bicycle will never get used again. But at the same time, I have lost all the focus at my work. Fortunately, my mobile has done the voice recording of the entire incident. My mobile recording along CCTV camera recording at railway is enough to prove if I have done remotely any kind of misbehavior with the lady. I am determined to teach a lesson to these corrupt officials even if it cost me my life. I have written letters to all higher police authorities as well as human rights commission seeking action in this regards. They will respond but very unfortunatly as per indian goverment office time.”

And Comments thereon:


@drmsbc has replied to tweets on this issue saying that Railway police is state police and doesn’t come under railways.

https://twitter.com/drmsbc/status/698662569536417793

I will delete this post in some time since my suggestion is perhaps no longer relevant.

In the meanwhile, if you have any suggestions regarding how to approach this issue then let me know.

My original post:
-----------
The Logical Indian, could you please tweet this to @RailMinIndia
They are very prompt and they will take appropriate action.

Edit:
The summary of tweets made for this issue:
My tweet to @RailMinIndia:
https://twitter.com/amithbag/status/698599458020261888

Sidhharth (@siddhu_2011):
https://twitter.com/RailMinIndia/status/698595124578615296
(@RailMinIndia has replied to Siddharth’s tweet)

Avinash Surendran (@ashwin296):
https://twitter.com/ashwin296/status/698605652466405376

cibi s (@cibiindhu):
https://twitter.com/cibiindhu/status/698627271477870592

It looks like @drmsbc has replied to the tweets of Sidhharth, Avinash and cibi s:

“@cibiindhu @RailMinIndia @GMSWR @ashwin296 @siddhu_2011 Rly Police is state police, not under Rly. Clarification by @srdcmsbc.”
https://twitter.com/drmsbc/status/698662569536417793

So essentially it seems that they are saying that they can’t do much since Railway police is state police. Is that ticket checking lady also under Railway police and not Railway? Requesting Sidhharth, Avinash and cibi s to reply to @drmsbc and ask for clarification.
-----------

Comment #2:

Laws that were made to protect women are being used as a tool to extort money, take revenge, cry victim when a woman herself is the wrong doer and to teach a "lesson" to a man for being a man by the "empowered women". This is happening not only in metros but smallest areas around the country. While crime against Innocent and vulnerable women is happening everywhere, false accusations against innocent and vulnerable men and boys like one above is on a rise too. While there are stringent laws to take care of the former, there is little one can do in case of latter. Some time before everyone realizes the need to control this menace.

Comment #3:

#PMOIndia, Narendra Modi, Suresh Prabhu
After such incidents, do you still expect us to co-operate with the Police and have faith in these so called Law Enforcement forces in India?
Who gives them the right to even TOUCH US without any valid reason or proof? Are these people seriously the ones responsible for OUR SAFETY?
WE WILL NOT BE SUPPRESSED AND THIS NEEDS TO STOP. NOW.
#Shame

Comment #4:

Laws-

The Bangalore Metro Rail (Carriage and Ticket) Rules 2011 limit the weight of personal baggage to 15 kg. Rule 3 says: “No person shall, while travelling in metro railway, carry with him any goods other than a small baggage containing personal belongings not exceeding 60cm x 45cm x 25cm in size and 15kg in weight, except with the prior approval of the metro railway administration.” The rules also prohibit carrying explosive, inflammable, and poisonous substances.

The Metro Railway (Operation and Maintenance) Act, 2002, imposes fines and in some cases jail sentences for offences committed on the metro. Anyone indulging in sabotaging the train or maliciously hurting or attempting to hurt other passengers while travelling in the metro can face imprisonment up to 10 years. Pasting posters or drawing graffiti on the walls of stations or trains is punishable by a fine of ₹1,000 or imprisonment for up to 6 months. Travelling in an inebriated state or creating nuisance in the train is punishable by a ₹500 fine. Passengers are monitored at security checkpoints and those that are causing trouble, heavily drunk, or carrying forbidden items are not permitted to board. Spitting on the metro premises is punishable by a fine of ₹100.

Comment #5:

I hope you are innocent fight back and get back to work and train travel with your bicycle this time with any rule copy. If you are innocent nothing should stop you should fight back even if you dont have enough evidence . Expose them to society and put them to shame .believe your friends and family know your nature have confidence. We are all with you.

Reproduced here for Academic information.

Source : #Facebook #TheLogicalIndian

NDPS Act needs a re-look - india

India’s Anti-Narcotics Law is in Urgent Need of Rehab

Thirty years since the passage of the NDPS Act, the failure to do anything meaningful for the rehabilitation of drug addicts has led to the government and courts criminalising people in urgent need of medical assistance

 

The Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”) – India’s primary law to combat drug trafficking – turned 30 last November with scant public or parliamentary discussion about the contradictory objectives of rehabilitation and deterrence that have rendered the statute strikingly ineffective.

The law was enacted to fulfil India’s obligations under a series of international conventions and reiterate its commitment towards eradication of the drug problem across the country. In its present form, it envisages stringent punishments for drug traffickers and rehabilitation for addicts. While the consumption of drugs is prima facie criminalised, the Act makes a clear distinction between traffickers – who are subject to strict penal action – and individual consumers, who can be pushed towards rehab.

Several exit routes – for instance sections 39and 64A, which allow for probation and immunity from prosecution to addicts volunteering for treatment respectively – have been provided for addicts to leave the penal system. However, from our interaction with lawyers and rehabilitation centres, it is clear that these two sections are the most unused provisions in the statute. We find that both the police and judiciary share a lack of understanding of the statute and its mechanisms for rehabilitation. While this has given way to abuse of the law, the lacunae in training and sensitisation of the investigation agencies, prosecution, and the judiciary has handicapped the objectives of rehabilitation.

Further, based on our analysis of judgments from some sample districts of Punjab, we have found a complete absence of court ordered probation or rehabilitation. The judges, seemingly uninformed about the larger objectives of the legislation, find it expedient to convict and fine consumers as it achieves illusory deterrence. We learned though our interaction with organisations working on rehabilitation of drug addicts that not a single individual has been sent to a rehab centre by court order. The objectives behind the two-pronged approach of deterrence and rehabilitation may have been conceived as being complementary, but nevertheless, they appear irreconcilable when it comes to application.

In fact, the problem of implementing the NDPS Act stems from an unclear legislative intent. At the time of drafting the legislation, MPs were equivocal about the intended functions and ends of the law. This is visible from the parliamentary debates around the NDPS Act and its subsequent amendments.

Detrimental effects of unclear legislative intent

Although the purported intent of the law at the time of enactment was to specifically deter drug traffickers, MPs argued for imprisonment for all, irrespective of whether they were traffickers or individual consumers. The debates in 1985 oscillated between demanding deterrence and rehabilitation of individual consumers, thus leading to obscurity regarding the true legislative intent behind the Act. The 2001 amendment to the Act, which introduced graded punishment according to the quantity of drugs involved, rationalised the sentencing structure marginally. However, the aspect of court-monitored rehabilitation failed to receive any attention.

Even the parliamentary standing committeereport of 2011, which dealt with section 27 (punishment for personal consumption of narcotic and psychotropic substances) at length failed to adequately address the issue of rehabilitation. The committee accepted submissions from several sources, including NGOs, who argued that the section contradicts the legislative intent of treatment and reformation drug users, as they require medical assistance and not punishment. The committee concluded that it was not possible to move away from the deterrence framework and recommended that provisions for punishment ought to stay even for drug users if the objective of the legislation was to be achieved. The committee thus continued to conceptualise rehabilitation within the ambit of criminalisation.

Of addicts and rehabilitation

Another problem that afflicts the legislation is the continued absence of any perceptible distinction between a consumer and an addict. The existing definition of an addict is neither medical nor legal. During the discussion of the bill in 1985, the words ‘consumer’ and ‘addict’ were used interchangeably. The 2011 standing committee report is unclear on the status of an ‘addict’. It uses ‘addict’ to mean an individual on the lower end of the scale of guilt but nonetheless someone who ought to be punished. The language used here reflects the ambiguity in the nature of treatment designed within the statute for users and addicts. The statute uses words like ‘consumption’, ‘possession’, ‘use’, without providing any guidance on what they mean or how they differ in indicating the guilt of the individual.

Another key aspect, which has contributed to the inability of law to handle the drug menace in India is the lack of political will in creating institutions responsible for monitoring and implementing rehabilitation.

During the parliamentary debates in 1985 and 1989, several MPs suggested that section 71, pertaining to rehabilitation needs to be more nuanced – with certain obligations placed on the government to introduce the necessary medical establishments and facilities. There were several suggestions for operationalising the provision, which included making necessary budgetary allocations, setting up boards to oversee rehabilitation mechanisms, collaborating with the Ministry of Social Justice and Welfare to ensure effective rehabilitation, etc. Subsequently, attention towards institutional support for rehabilitation dwindled. The measures and recommendations made earlier were not followed through either.

The debates surrounding the recent amendments indicate that the idea of rehabilitation has been significantly marginalised, although several states, primarily Punjab are in critical need of state-led intervention through social reform initiatives. It was only in 2014, after drug abuse in Punjab gained nation wide notoriety, that the state government set up 28 rehabilitation centresunder the Central scheme provided by the Ministry of Social Justice.

Further, the debates tend to centralise both the drug problem and the suggested solutions. Most of the discussions have revolved around the facilities available and institutions set up in Delhi. Even in 1985, it was no uncertain fact that there were several porous border regions, which were problematic transit routes. They required constant monitoring, but this was unfortunately neglected at the policy level.

Conclusion

On the aspect of rehabilitation, the apathy and redundancy of the NDPS Act has been writ large. The inadequacy of accompanying institutional mechanisms – in terms of training of the judiciary, essential rehabilitation systems, etc – has rendered the reformatory objective of the statute nugatory. This, coupled with the problematic implementation of the legislation by multiple authorities and the absence of government established rehab programmes, has hindered effective implementation of the statute. The Act has not only been excessive and abusive, but has also cast a huge burden on the criminal justice system because of its structural defects. If the government is serious about reforming the criminal justice system, reform of the NDPS Act is a necessary first step.

Source -  

Neha Singhal is a Senior Resident Fellow and Sakshi is a Research Fellow at the Vidhi Centre for Legal Policy, New Delhi.

http://thewire.in/2016/01/26/indias-anti-narcotics-law-is-in-urgent-need-of-rehab-19907/

Speedy Justice through the Fast Track Courts - Uber Driver Case

The conviction of a driver for raping a woman in a car booked through the Uber Technologies Inc. app less than a year after the attack is being described by those involved in the case as unprecedented for the speed at which it delivered justice for the victim of a sexual assault in India.

The “swiftness with which the trial was conducted is unprecedented,” said Madhur Verma, Delhi police officer in charge of the investigation. Judgment in a rape case typically takes three to four years in India. This one took less than nine months.

Lawyers and police officers involved in the case say it will be remembered as a “classic example” of how to conclude rape trials efficiently.

Source : http://www.wsj.com/articles/BL-IRTB-30692

Milk Adulteration to be Punishable with Life Imp.

In a significant statement with wide implications, the Centre on Wednesday told the Supreme Court that it has formed a highlevel committee to consider if to make the offence of milk adulteration punishable by life imprisonment. It has agreed to the view of the court that the present penalty of six months in jails "was hardly a deterrent" for the menace which was most acute in Delhi and Uttar Pradesh.

An affidavit in the court by Rakesh Nayal, a senior official in the Union health ministry said the panel, headed by R.K. Jain, secretary of the National Disaster Management Authority, and representatives from Food Safety and Standard Authority of India will take a decision within 45 days.

The court had on December 12, 2014 taken serious exception to Centre's refusal to amend the law to make the offence punishable with life term. 

"What are you doing about it? In March we had given an ultimatum to the Centre to inform us if you are amending the law and we are now in December,"

the Bench said when Anurag Tomar, the lawyer for the petitioner in the PIL, pointed out the delay.

"After perusing the reports submitted by various states, prima-facie we are of the opinion that milk is being laced with white paint, caustic soda, detergent, shampoo, urea, starch and blotting paper and the practice is going unabated. The Centre must come out with necessary amendment to the Act with all seriousness to curb adulteration. We hope the government will take appropriate decision during the winter session of Parliament," the court had said.

The Bench had earlier said it would be foolish to go lightly on adulterators just because no grievous illness or death has been reported immediately after someone drinks milk laced with such poisonous substances. 

"The poisoning in the body is gradual and once it happens people think they are afflicted with cancer and nobody blames milk. Are you waiting for them to add cyanide in milk? Only then instant death will be caused for you to take action," 

the court had said.

The Bench suggested an amendment to the law after the Uttar Pradesh government said they faced a hurdle in prosecuting adulterators under the IPC and seeking their life imprisonment after the Allahabad High Court ruled in 2010 that the IPC cannot be invoked when the FSSA should prevail.

Source: India Today

Source: http://indiatoday.intoday.in/story/milk-adulteration-life-imprisonment-centre-health-ministry-supreme-court-rakesh-nayal-fssai/1/416991.html

Forensic Accounting - A Career Option

Forensic Accounting Beginnings

The term "forensic accounting" was first used in 1946 by Maurice E. Peloubet, a partner in a New York accounting firm. He wrote about the use of accounting in courtroom proceedings as part of testimony, but acknowledged that investigation was becoming more prevalent for accountants due to the increase in government agencies that regulated financial practices. Journals began to publish articles about the connections between law and accounting. In 1953, a New York lawyer named Max Lourie claimed that he invented the phrase "forensic accounting," although Peloubet wrote about it first. Lourie stressed the need for forensic accounting literature and training.

Forensic accounting service has been the growth industry in the 1990s. Called the private eyes of the corporate culture, forensic accountants must have an investigative mentality. A normal accountant acts like a watchdog, but a forensic accountant must be trained to act like a bloodhound. They look behind the facade and do not accept financial records at their face value.

Forensic Accounting

"Forensic" means "suitable for use in a court of law", and it is to that standard and potential outcome that forensic accountants generally have to work.

“Forensic accounting” is the practice of utilizing accounting, auditing, and investigative skills to assist in legal matters. Forensic accounting is the specialty practice area of accountancy that describes engagements that result from actual or anticipated disputes or litigation.

Forensic accounting is the application of accounting principles, theories, and disciplines to facts or hypotheses at issue in a legal dispute, and encompasses every branch of accounting knowledge.

There are two major aspects within forensic accounting practice -

1. Litigation support services that represent the factual presentation of economic issues related to existing or pending litigation. In this capacity, the forensic accounting professional quantifies damages sustained by parties involved in legal disputes and can assist in resolving disputes, even before they reach the courtroom. If a dispute reaches the courtroom, the forensic accountant may testify as an expert witness.

2. Investigative services that make use of the forensic accountant’s skills, which may or may not lead to courtroom testimony. It is the act of determining whether criminal matters such as employee theft, securities fraud (including falsification of financial statements), identity theft, and insurance fraud have occurred. As part of the forensic accountant’s work, he or she may recommend actions that can be taken to minimize future risk of loss. Investigation may also occur in civil matters. For example, the forensic accountant may search for hidden assets in divorce cases. An important criterion is the ability to respond immediately and to communicate financial information clearly and concisely in a courtroom setting. A forensic accountant must be open to examining all alternatives, scrutinising the fine details and at the same time seeing the big picture.

Forensic accounting can involve the application of special skills in accounting, auditing, finance, quantitative methods, certain areas of the law and research, and investigative skills to collect, analyze, and evaluate evidential matter and to interpret and communicate findings.

Application of Principles of Forensic Accounting to an organisation

• One premise of forensic accounting is to look for indications of abnormal occurrences in the accounting and financial reporting systems.

• Having a forensic accounting orientation to designing the accounting processes will provide an opportunity to design in steps for verification of key assumptions and data while also providing the opportunity for identifying possible fraud.

• The related area of forensic auditing can help in reducing the transaction processing risk by helping to perform audit type procedures on a routine schedule.

• Timely performance of audit type procedures can help management and internal audit function be more effective by helping to identify and resolve potential internal control breakdowns quickly and thoroughly. It can reduce external audit costs by regularly completing testing procedures that are part of the annual certified audit.

• In instances where information processing systems cover a broad array of businesses and/or locations establishing routine or continuous monitoring of all transaction processing systems, it can be considered as a type of forensic accounting.

Some of the areas that the principles and activities of forensic accounting can apply in an organization include:

• Reviewing operational transactions for compliance with standard operating procedures and approvals.

• Completing analysis of financial disbursement transactions in the accounting system to determine if they are normal or outside company policy and, thus, possibly fraudulent.

• Reviewing general ledger and financial reporting system transactions for possible improper classification or manipulation of data or accounts and its impact on the resulting financial reports.

• Examining warranty claims or returns for patterns of fraud or abuse.

• Helping estimate the economic damages and the resulting insurance claims that stem from calamities such as fires or other natural disasters.

• Evaluating or confirming business valuation in mergers and acquisitions.

 Forensic Accountants - The Bloodhounds of Book-keeping

 Forensic accounting requires the most important quality a person can possess: the ability to think.

There is no book that tells you how to do a forensic investigation. It is about solving a puzzle or peeling an onion. It takes creativity.

All of the larger accounting firms, as well as many medium-sized and boutique firms, have specialist forensic accounting departments. Within these groups, there may be further sub-specializations: some forensic accountants may, for example, just specialize in insurance claims, personal injury claims, fraud, construction, or royalty audits.

Forensic accountants may be involved in recovering proceeds of crime and in relation to confiscation proceedings concerning actual or assumed proceeds of crime or money laundering. In the United Kingdom, relevant legislation is contained in the Proceeds of Crime Act 2002. In India there is a separate breed of forensic accountants called Certified Forensic Accounting Professionals. Some forensic accountants are also Certified Fraud Examiners, Certified Public Accountants, or Chartered Accountants.

Forensic accountants utilize an understanding of business information and financial reporting systems, accounting and auditing standards and procedures, evidence gathering and investigative techniques, and litigation processes and procedures to perform their work. Forensic accountants are also increasingly playing more proactive risk reduction roles by designing and performing extended procedures as part of the statutory audit, acting as advisers to audit committees, fraud deterrence engagements, and assisting in investment analyst research.

The forensic Accountant is a bloodhound of Bookkeeping. These bloodhounds sniff out fraud and criminal transactions in bank, corporate entity or from any other organization’s financial records. They hound for the conclusive evidences. External Auditors find out the deliberate misstatements only but the Forensic Accountants find out the misstatements deliberately. External auditors look at the numbers but the forensic auditors look beyond the numbers.

Forensic accountant takes a more proactive, skeptical approach in examining the books of Accounting. They make no assumption of management integrity (if they can assume so then there is no need for their appointment) show less concerns for the arithmetical accuracy have nothing to do with the Accounting or Assurance standards but are keen in exposing any possibility of fraud.

In addition to the specialized knowledge about the techniques of finding out the frauds one needs patience and analytical mindset. One has to look beyond the numbers and grasp the substance of the situation. It is basically the work of the intelligent accountants. He needs to question seemingly benign document and look for inconsistencies. He searches for evidence of criminal conduct or assists in the determination of, or rebuttal of, claimed damages.

Who needs Forensic Accountants

Forensic accountants are more than just number crunchers who happen to work on criminal or civil disputes -- these accountants possess additional skills. They must conduct investigations, know how to use a variety of computer programs and communicate well. Some forensic accountants specialize in specific industries that are susceptible to fraud, such as insurance or banking, and learn the business practices associated with those fields.

Forensic Accountants work in most major accounting firms and are needed for investigating mergers and acquisitions, and in tax investigations, economic crime investigations, all kinds of civil litigation support, specialized audits, and even in terrorist investigations.

Forensic Accountants work throughout the business world, in public accounting, corporations, and in all branches of government.

Forensic Accounting in India

Forensic accounting is unique in that it combines accounting with investigation. These bloodhounds— as opposed to the watchdogs that are auditors— attempt to sniff out fraudulent transactions from the financial records of banks and companies.

Sherlock Holmes was probably the most famous practitioner But Kautilya was the first economist who openly recognized the need of the forensic accountants. He mentioned forty ways of embezzlement centuries ago.

The Opportunities for the Forensic Accountants are growing at the rapid speed. Collapse of Enron and World Trade Centre twin towers have blessed the American Forensic Accountants with the opportunities.

Forensic accounting is still nascent in India. However, the nature of fraud in India has undergone a change. Reserve Bank of India has made forensic accounting audit compulsory for banks in India. However banks are hesitant in approaching certified fraud examiners, and are mostly dependent on their internal auditors.

In India the formation of Serious Fraud Investigation Office is the landmark creation for the Forensic Accountants. Growing cyber crimes, failure of regulators to track the security scams, series of co-operative banks bursting - all are pinpointing the need of forensic accounting, irrespective of whether we understand the need or not.

In the Indian context the Forensic Accountants are the most required in the wake of the growing frauds. After the Satyam scam, forensic auditors are much in demand as many companies want to understand what could be the initial warning signals of a Satyam kind of fraud in other Indian companies. Even the government’s Serious Fraud Investigation Office (SFIO) has sought the help of forensic accountants to get to the root of the financial fraud at Satyam.

How to become a Forensic Accountant

Commerce graduates can easily take up forensic accounting as a career. You need to become a chartered accountant and then specialise in forensic accounting. The forensic accountants prior audit and accounting experience will be of tremendous assistance. But ultimately, it is only through working with experienced forensic accountants on various cases that one can learn the skills necessary to become a capable forensic accountant.

There are several organizations that provide training and additional certification for forensic accountants. Each organization requires that its members possess varying degrees of education and experience, and they must sit for additional exams. These certifications show that a forensic accountant has training and experience beyond that of a standard accountant.

 Some places where one can study and/or obtain certifications as Forensic Accounting Professional are:

• Institute of Chartered Accountants of India, New Delhi

• Association of certified fraud examiners (ACFE), USA

• Indiana University, Bloomington, USA

• British Columbia Institute of Technology, Canada

• Charles Stuart University, New South Wales, Australia

Some forensic accountants take courses in:

• Sociology

• Psychology

• Law enforcement

• Criminal law

• Business law

• Business and finance

• Information systems

• Communication

Conclusion

Forensic accountants are trained to detect evidence of frauds. Forensic accounting is about more than legal matters and financial numbers. There is an acute shortage of forensic accounting skill sets in India. A huge demand for forensic accountants has come up in the wake of the requirements from the investors after the Satyam fiasco. There are only about 400 forensic accountants in the country though India loses approximately $40 billion because of frauds.

Author - Rajkumar S. Adukia

Senior Partner, Adukia & Associates, Chartered Accountants

Mumbai 400 058

Email rajkumarfca@gmail.com

Source - Forensic Accounting - 

http://www.caclubindia.com/articles/forensic-accounting-20172.asp#.UzRcBPmSxhY

Jurisdiction of cheque dishonor complaint - Judgement

Dis-honour of Cheque cases can be filed only to the Court within whose local jurisdiction, the offence was Committed; ie, where the cheque is dishonoured by the bank on which it is drawn.

Bhaskaran Vs Balan (2009) which allowed Five territorial Jurisdictions overruled [Read the Judgment]On August 4, 2014 by M.A.Rashid

A three Judge Bench of the Supreme Court finally held that  a Complaint of Dis-honour of Cheque can be filed only  to  the  Court  within  whose  local jurisdiction the offence was committed, which  in  the  present  context  is where the cheque is dishonoured by the bank on which it is drawn. The Court clarified that the Complainant  is  statutorily  bound  to comply with Section 177 etc. of the CrPC and therefore the  place  or  situs where the Section 138 Complaint is to be filed is not of his choosing.

The Supreme Court in Dashrath Rupsingh Rathod Vs. State of Maharashtra & Anr. Overruled the two Judge Bench Judgment in K. Bhaskaran v. Sankaran Vaidhyan  Balan  (1999)  7 SCC 510 wherein  it was held that “the offence under Section 138 of the Act can be completed only with the concatenation of a number of acts.

Following are the acts which are components of the said offence : (1) Drawing of the cheque, (2) Presentation of the cheque to the bank, (3) Returning the cheque unpaid by the drawee bank, (4) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (5) failure of the drawer to make payment within 15 days of the receipt of the notice”.” if the five different acts were done in five different localities any one of the courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under Section 138 of the Act. In other words, the complainant can choose any one of those courts having jurisdiction over any one of the local areas within the territorial limits of which any one of those five acts was done.”

The Court accepted the view of another two Judge Bench Judgment in Harman  Electronics  Pvt.Ltd. v. National Panasonic India Pvt. Ltd. (2009) 1  SCC  720. “It is one thing to say that sending of a notice is one of the ingredients for maintaining the complaint but it is another thing to say that dishonour of a cheque by itself constitutes an offence.

For the purpose of proving its case that the accused had committed an offence under Section 138 of the Negotiable Instruments Act, the ingredients thereof are required to be  proved. What would constitute an offence is stated in the main provision. The proviso appended thereto, however, imposes certain further conditions which are required to be fulfilled before cognizance of the offence can be taken.

 If the ingredients for constitution of the offence laid down in the provisos (a), (b) and (c) appended to Section 138 of the Negotiable Instruments Act intended to be applied in favour of the accused, there cannot be any doubt that receipt of a notice would ultimately give rise to the cause of action for filing a complaint. As it is only on receipt of the notice the accused at his own peril may refuse to pay the amount. Clauses (b) and (c) of the proviso to Section 138 therefore must be read together. Issuance of notice would not by itself give rise to a cause of action but communication of the notice would.”.

Justice Vikramjit Sen who wrote the main Judgment held that “We  respectfully agree  with  this  statement  of  law  and  underscore  that   in   criminal jurisprudence there is  a  discernibly  demarcated  difference  between  the commission of an offence and its  cognizance  leading  to  prosecution.

The Harman  approach  is  significant  and  sounds  a  discordant  note  to  the Bhaskaran ratio.  Harman also highlights the reality  that  Section  138  of the NI Act is being rampantly misused so  far  as  territorial  jurisdiction for trial of the Complaint is concerned.  With the passage of time  equities have therefore transferred from one end of the pendulum to  the  other.

 It is now not uncommon for the Courts to encounter the issuance of a notice  in compliance with clause (b) of the proviso to Section 138 of the NI Act  from a situs which bears no connection with the Accused or with any facet of  the transaction between the parties, leave aside the place where  the  dishonour of the cheque has taken place.
This is also the  position  as  regards  the presentation of the cheque, dishonour  of  which  is  then  pleaded  as  the territorial platform of the Complaint under  Section  138  of  the  NI  Act.