Wednesday, 26 August 2015

Delhi Government becomes first State/UT to notify Witness Protection Programme

Background

Protection of witnesses is always a concern for fair justice. Delhi High Court highlighted this in the case of Neelam Katara v. Union of India, as well as in Jessical Lal murder case. In 2013, Delhi High court had directed Delhi government to frame a witness protection policy in order to provide guidelines and principles for protection of witnesses.  The court had clearly mentioned that the prosecution, police and executive agencies will have to follow this policy for witness protection.

Guidelines in Neelam Katara Case
In the order dated 14.10.2003 in paragraph 15 in the case of “Ms. Neelam Katara Vs. Union of India & Ors.” Crl. W. No. 247/2002 (High Court of Delhi), Hon’ble Court has stated that “ Till a suitable Legislation is brought on the Statute book, we direct that following guidelines shall operate for protection of the witnesses.

In paragraph 16, Hon’ble Court has stated that:- “These guidelines shall be known as “Witness Protection Guidelines”

“Witness” means a person whose statement has been recorded by the Investigating Officer under Section 161 Cr.P.C. pertaining to a crime punishable with death or life imprisonment.
“Accused” means a person charged with or suspected with the commission of a crime punishable with death or life imprisonment.
 “Competent Authority” means the Member Secretary, Delhi Legal Services Authority.
Admission to Protection: The competent Authority, on receipt of a request from a witness shall determine whether the witness requires police protection, to what extent and for what duration.

Factor to Be Considered:

In determining whether or not a witness should be provided police protection, Competent Authority shall take into account the following factors:
1. The nature of the risk to the security of the witness which may emanate from the accused or his associates.
2. The nature of the investigation or the criminal case.
3. The importance of the witness in the matter and the value of the information or evidence given or agreed to be given by the witness.
4. The cost of providing police protection to the witness.

Obligation of the police:

1. While recording statement of the witness Under Section 161 Cr.P.C., it will be the duty of the Investigating Officer to make the witness aware of the “Witness Protection Guidelines” and also the fact that in case of any threat he can approach the Competent Authority. This the Investigation Officer will inform in writing duly acknowledged by the witness.
2. It shall be the duty of the Commissioner of Police to provide security to a witness in respect of whom an order has been passed by the Competent Authority directing police protection.

In paragraph 17, Hon’ble Court has stated that:- “We further direct that the respondent, State shall give due publicity to the guidelines framed. We make it clear that the guidelines framed by us would not be in derogation of the powers of the concerned criminal court. If it forms an opinion that a witness requires police protection to so direct.”

Delhi Witness Protection Scheme 2015

Complying with the Delhi High Court’s guidelines, the Aam Aadmi Party led Delhi government on July 30, 2015 notified its witness protection programme thus becoming the first State/UT to do so.

Categories of witness as per threat perception:

Category ‘A’ - Where the threat extends to life of witness or his family members and their normal way of living is affected for a substantial period, during investigation/trial or even thereafter.
Category ‘B’ - Where the threat extends to safety, reputation or property of the witness or his family members, only during the investigation process or trial.
Category ‘C’ - Where the threat is moderate and extends to harassment and intimidation of the witness or his family member's, reputation or property, during the investigation process.

Persons eligible under the Scheme:

Any person and his family member who is a witness in the trial of the offences which are punishable with death or life imprisonment or an imprisonment not less than seven years.

Key facts of Delhi Witness Protection Scheme:

1.  Prohibits revealing or publication of name, address and other details of witness in any manner, directly or indirectly.
2.      Change identity of a witness in order to protect identity of a witness and relocating the person.
3.      Facility for live link and in-camera proceedings to help witness to depose without coming to court.
4.      Protection measures like installing security devices at the witness house and guarding it, providing escort vehicles to the witness.
5.      Protection under the programme to witness will approved by a member secretary or the Officer on Special Duty (OSD) of the Delhi State Legal Services Authority (DLSA).
6.  Formations of witness protection fund in order make payments for services in witness protection. This fund will be maintained from budgetary allocations, donations and fines deposited in court.


dRead about complete scheme: 




Tuesday, 25 August 2015

ITLOS on Italian mariners: India and Italy to maintain ‘status quo’ over Enrica Lexie case


ENRICA LEXIE CASE HISTORY

On 15 February 2012, two Italian marines, Massimiliano Latorre and Salvatore Girone, operating as part of an anti-piracy Vessel Protection Detachment (VPD) on-board Italian-flagged commercial oil tanker MT Enrica Lexie, allegedly opened fire on the St. Antony killing two Indian fisherman, Jelestine and Ajeesh Pinku, on board, in the seas off Ambalapuzha. The incident has sparked a conflict of opinions over legal jurisdiction and functional immunity between the governments of India and Italy. In addition, it continues to cause diplomatic tension between the two nations.

                                                            Brief Time-line


Feb 17, 2012: Italian oil tanker Enrica Lexie is brought to Kochi 

Feb 19, 2012: Kerala police arrest the two Marines suspected to have fired the shots. Captain of the tanker Umberto Vitelli is also questioned.

Feb 20, 2012: Both marines were remanded in judicial custody for 14 days.
Feb 22, 2012: Italy moves the Kerala High Court, seeking to quash the first information report (FIR)

March 1, 2012: Italy informs India that it has initiated criminal proceedings against the marines under its law that could lead to a prison term of not less than 21 years.

March 19, 2012: Kollam Chief Judicial Magistrate extends the judicial custody of Marines by another 14 days.

March 29, 2012: Court allows Italian vessel to sail out, with riders. Judge directs the police to permit the ship to sail, on its agent furnishing a bond for Rs. 3 crore

April 3, 2012: Kerala High Court sets aside Kollam Magistrate court's order.

April 20, 2012: The legal heirs of the two deceased fishermen tell the Kerala High Court that a settlement for paying a compensation of Rs. 1 crore to each bereaved family has been reached between the Italian government representatives and them.

Apr 20, 2012: Additional Solicitor-General Harin Raval informs the Supreme Court that Enrica Lexie, was not in Indian waters when the shooting incident occurred.

April 27, 2012: The Kerala High Court approves the out-of-court settlement reached between Italy and J. Freddy, owner of the mechanised boat which was fired upon by two marines The boat owner accepts the out-of-court-settlement of Rs.17 lakh.

Apr 30, 2012: Describing Italy's compromise with the kin of the two Indian fishermen as “illegal” and “astonishing,” the Supreme Court says that they were “playing” with the Indian process of law.

May 2, 2012: Supreme Court allows the vessel, Enrica Lexie, to leave India, along with the crew and the remaining marines.

May 30, 2012: Kerala High Court grants bail to both the marines on various conditions, including a bond of Rs. 1 crore each with two Indian solvent sureties for a like amount.

June 2, 2012: After 105 days in custody, the two Italian marines, arrested for allegedly gunning down two Indian fishermen off Kerala, are released on bail.

Dec 22, 2012: The marines fly back home for Christmas in a chartered flight.

Jan 4, 2013: Marines return to Kerala from Italy post-Christmas.

Jan 18, 2013: The Supreme Court holds that the State of Kerala had no jurisdiction to investigate into the `Italian marines shooting incident’ and says only the Union of India had jurisdiction to proceed with the investigation and trial of the two marines.

Feb 22, 2013: The Supreme Court permits Marines Massimilano Latorre and Salvatore Girone to visit their country to vote in the February 24 and 25 elections.

March 11, 2013: Italy refuses to return two of its marines.

March 18, 2013: Italian Ambassador Daniele Mancini claims complete immunity under the Vienna Convention. Supreme Court makes it clear to the envoy that a person who came to the court as a petitioner cannot claim any immunity.

March 21, 2013: The Italian government says it will return to India two marines facing murder charges in the shooting deaths of two fishermen off the Kerala coast.

March 28, 2014: Italy rejects marines’ trial in India

September 12, 2014: SC allows Italian marine Latorre to return home for 4 months

April 7, 2015: Italian Marine Massimiliano Latorre moved the Supreme Court seeking extension of his stay in Italy on medical grounds. And same was extended by SC on April 9, 2015
July 26, 2015: Italy moves ITLOS in Marines case.

August 11, 2015: India has told the International Tribunal for the Law of the Sea (ITLOS) that Italy’s plea in the Italian marines case was "misleading". 


August 14, 2015: India rejects Italy's 4.4 crore offer to free marines.


Saturday, 22 August 2015

PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT

DEFINITIONS:

Domestic Violence: The term domestic violence includes elaborately all forms of actual abuse or threat of abuse of physical, sexual, verbal, emotional and economic nature that can harm, cause injury to, endanger the health, safety, life, limb or well-being, either mental or physical of the aggrieved person. The definition is wide enough to cover child sexual abuse, harassment caused to a woman or her relatives by unlawful dowry demands, and marital rape.

The kinds of abuse covered under the Domestic Violence Act ‘2005 are:

·         Physical Abuse
• an
 act or conduct causing bodily pain, harm, or danger to life, limb, or health;
• an
 act that impairs the health or development of the aggrieved person;
• an
 act that amounts to assault, criminal intimidation and criminal force.

·         Sexual Abuse
• any conduct of a sexual nature that abuses, humiliates, degrades, or violates the dignity of a woman.

·         Verbal and Emotional Abuse
• any insult, ridicule, humiliation, name-calling;
• insults or ridicule for not having a child or a male child;
• repeated threats to cause physical pain to any person in whom the aggrieved person is interested.

·         Economic Abuse
 • depriving the aggrieved person of economic or financial resources to which she is entitled under any law or custom or which she acquires out of necessity such as household necessities, stridhan, her jointly or separately owned property, maintenance, and rental payments;
• disposing of household assets or alienation of movable or immovable assets;
• restricting continued access to resources or facilities in which she has an interest or entitlement by virtue of the
 domestic relationship including access to the shared household.

·         Domestic Relationship: A domestic relationship as under the Domestic Violence Act ‘2005 includes live-in relationships and other relationships arising out of membership in a family.

·         Beneficiaries under the Domestic Violence Act ‘2005:
 Women: The Domestic Violence Act ‘2005 covers women who have been living with the Respondent in a shared household and are related to him by blood, marriage, or adoption and includes women living as sexual partners in a relationship that is in the nature of marriage. Women in fraudulent or bigamous marriages or in marriages deemed invalid in law are also protected.
• Children: The
 Domestic Violence Act ‘2005 also covers children who are below the age of 18 years and includes adopted, step or foster children who are the subjects of physical, mental, or economical torture. Any person can file a complaint on behalf of a child.
• Respondent: The
 Domestic Violence Act ‘2005 defines the Respondent as any adult male person who is or has been in a domestic relationship with the aggrieved person and includes relatives of the husband or male partner.

RIGHTS GRANTED TO WOMEN UNDER DOMESTIC VIOLENCE ACT ‘2005
Right to reside in a shared household:
The
 Domestic Violence Act ‘2005 secures a woman’s right to reside in the matrimonial or shared household even if she has no title or rights in the household. A part of the house can be allotted to her for her personal use. A court can pass a residence order to secure her right of residence in the household.
The Supreme Court has ruled in a recent judgment that a wife’s claim for alternative accommodation lie only against her husband and not against her in-laws and that her right to ‘shared household’ would not extend to the self-acquired property of her in-laws.



Right to obtain assistance and protection:
A woman who is victimized by acts of
 domestic violence will have the right to obtain the services and assistance of Police Officers, Protection Officers, Service Providers, Shelter Homes and medical establishments as well as the right to simultaneously file her own complaint under Section 498 A of the Indian Penal Code for matrimonial cruelty.

Right to issuance of Orders:
She can get the following orders issued in her favour through the courts once the offence of
 domestic violence is prima facie established:
 Protection Orders: The court can pass a protection order to prevent the accused from aiding or committing an act of domestic violence, entering the workplace, school or other places frequented by the aggrieved person, establishing any kind of communication with her, alienating any assets used by both parties, causing violence to her relatives or doing any other act specified in the protection order.

Residence Orders: This order ensures that the aggrieved person is not dispossessed, her possessions not disturbed, the shared household is not alienated or disposed off, she is provided an alternative accommodation by the Respondent if she so requires, the Respondent is removed from the shared household and he and his relatives are barred from entering the area allotted to her. However, an order to remove oneself from the shared household cannot be passed against any woman.

Monetary Relief: The Respondent can be made accountable for all expenses incurred and losses suffered by the aggrieved person and her child due to the infliction of
 domestic violence. Such relief may include loss of earnings, medical expenses, loss or damage to property, and payments towards maintenance of the aggrieved person and her children.


Custody Orders: This order grants temporary custody of any child or children to the aggrieved person or any person making an application on her behalf. It may make arrangements for visit of such child or children by the Respondent or may disallow such visit if it is harmful to the interests of the child or children.

Compensation Orders: The Respondent may be directed to pay compensation and damages for injuries caused to the aggrieved person as a result of the acts of
 domestic violence by the Respondent. Such injuries may also include mental torture and emotional distressed caused to her.

Interim and Ex parte Orders: Such orders may be passed if it is deemed just and proper upon commission of an
 act of domestic violence or likelihood of such commission by the Respondent. Such orders are passed on the basis of an affidavit of the aggrieved person against the Respondent.
Right to obtain relief granted by other suits and legal proceedings:
The aggrieved person will be entitled to obtain relief granted by other suits and legal proceedings initiated before a civil court, family court or a criminal court.

LIABILITIES AND RESTRICTIONS IMPOSED UPON THE RESPONDENT

1. He can be subjected to certain restrictions as contained in the Protection and Residence order issued against him.
2. The Respondent can be made accountable for providing monetary relief to the aggrieved person and her children and pay compensation damages as directed in the Compensation order.
3. He has to follow the arrangements made by the court regarding the custody of the child or children of the aggrieved person as specified in the Custody order.
The
 Domestic Violence Act ‘2005 does not permit any female relative of the husband or male partner to file a complaint against the wife or female partner.

AUTHORITIES RESPONSIBLE AND THEIR FUNCTIONS

The
 Domestic Violence Act ‘2005 provides for appointment of Protection Officers and Service Providers by the state governments to assist the aggrieved person with respect to medical examination, legal aid, safe shelter and other assistance for accessing her rights.

Protection Officers: These are officers who are under the jurisdiction and control of the court and have specific duties in situations of domestic violence. They provide assistance to the court in preparing the petition filed in the magistrate’s office, also called a domestic Incident Report. It is their duty to provide necessary information to the aggrieved person on Service Providers and to ensure compliance with the orders for monetary relief.

Service Providers: These refer to organizations and institutions working for women’s rights. They must be registered with the state government to record the Domestic Incident Report and to help the aggrieved person in medical examination. It is their duty to approach and advise the aggrieved person of her rights under the law and assist her in initiating the required legal proceedings or taking appropriate protective measures to remedy the situation. The law protects them for all actions done in good faith and no legal proceedings can be initiated against them for the proper exercise of their powers under the Domestic Violence Act ‘2005.

Court of first class Judicial Magistrate or Metropolitan Magistrate: This shall be the competent court to deal with cases of domestic violence and within the local limits of this court, either of the parties must reside or carry on business or employment, or the cause of action must have arisen. The Magistrate is allowed to hold proceedings in camera if either party to the proceedings so desires.
General duties of Police Officers, Service Providers and Magistrate: Upon receiving a complaint or report of domestic violence or being present at the place of such an incident, they are under a duty to inform the aggrieved person of:

• her right to apply for obtaining a relief or the various orders granted under the Domestic Violence Act ‘2005;
• the availability of services of Service Providers and
 Protection Officers;
• her right to obtain free legal services; and
• her right to file a complaint under Section 498 A of the Indian Penal Code.

Counselors: The Magistrate may appoint any member of a Service Provider who possesses the prescribed qualifications and experience in counseling, for assisting the parties during the proceedings.
Welfare experts: The Magistrate can appoint them for assisting him in discharging his functions.
In charge of Shelter Homes: The person in charge of a shelter home shall provide shelter to the aggrieved person in the shelter home upon request made by the aggrieved person, a Protection Officer or a Service Provider on her behalf.
In charge of Medical Facilities: The person in charge of a medical facility shall provide medical aid to the aggrieved person upon request made by the aggrieved person, a Protection Officer or a Service Provider on her behalf.
Central and State Governments: Such governments are under a duty to ensure wide publicity of the provisions of this Domestic Violence Act ‘2005 through all forms of public media at regular intervals, to provide awareness and training to all officers of the government, and to coordinate the services provided by all Ministries and various Departments.



PROCEDURE OF FILING COMPLAINT AND THE COURT’S DUTY UNDER DOMESTIC VIOLENCE ACT ‘2005

• The aggrieved person or any other witness of the offence on her behalf can approach a Police Officer, Protection Officer, or Service Provider and file a complaint with a Magistrate for obtaining orders or reliefs under the Domestic Violence Act ‘2005. The informant who in good faith provides information relating to the offence to the relevant authorities will not have any civil or criminal liability.
• The court is required to take cognizance of the complaint by instituting a hearing within three days of the complaint being filed in the court.
• The Magistrate shall give a notice of the date of hearing to the
 Protection Officer to be served on the Respondent and such other persons as directed by the Magistrate, within a maximum period of 2 days or such further reasonable time as allowed by the Magistrate.
• The court is required to dispose of the case within 60 days of the first hearing.
• The court, to establish the offence by the Respondent can use the sole testimony of the aggrieved person.
• Upon finding the complaint genuine, the court can pass a
 Protection Order, which shall remain in force till the aggrieved person applies for discharge. If upon receipt of an application from the aggrieved person, the Magistrate is satisfied that the circumstances so require, he may alter, modify or revoke an order after recording the reasons in writing.
• A complaint can also be filed under Section 498 A of the Indian Penal Code, which defines the offence of matrimonial cruelty and prescribes the punishment for the husband of a woman or his relative who subjects her to cruelty.

PENALTY / PUNISHMENT UNDER DOMESTIC VIOLENCE ACT ‘2005

For Respondent: The breach of Protection Order or interim protection order by the Respondent is a cognizable and non-bailable offence. It is punishable with imprisonment for a term, which may extend to one year or with fine, which may extend to twenty thousand rupees or with both. He can also be tried for offences under the Indian Penal Code and the Dowry Prohibition Act.
For Protection Officer: If he fails or does not discharge his duties as directed by the Magistrate without any sufficient cause, he will be liable for having committed an offence under the Domestic Violence Act ‘2005 with similar punishment. However, he cannot be penalized without the prior sanction of the state government. Moreover, the law protects him for all actions taken by him in good faith.

APPEAL UNDER DOMESTIC VIOLENCE ACT ’2005
An appeal can be made to the Court of Session against any order passed by the Magistrate within 30 days from the date of the order being served on either of the parties.

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE RULES ‘2005

The Domestic Violence Act ‘2005 empowers the Central government to make rules for carrying out the provisions of the Domestic Violence Act ‘2005. In exercise of this power the Central government has issued the Protection of Women from Domestic Violence Rules 2005 relating to the following matters:


• the qualifications and experience to be possessed by a Protection Officer and the terms and conditions of his service;
• the form and manner in which a
 domestic incident report may be made;
• the form and the manner in which an application for
 Protection Order may be made to the Magistrate;
• the form in which an application for legal aid and services shall be made;
• the other duties to be performed by the
 Protection Officer;
• the rules regulating registration of Service Providers;
• the means of serving notices;
• the rules regarding counseling and procedure to be followed by a Counselor;
• the rules regarding shelter and medical assistance to the aggrieved person;
• the rules regarding breach of
 Protection Orders.