Prafulla Jha, veteran voice of the voiceless, is released from Jail after seven years

Subhas Chandra Pattanayak

journalist prafulla jha
Veteran journalist Pafulla Jha who headed the Chhattisgarh State Bureau of Dainik Bhaskar, was arrested on January 22, 2008 under charges of ‘sedition’, which in police parlance stands for sympathy for the Naxals.

He was sentenced to 7 years that he spent in the jail with his head high, though that imperiled the economy of his family. His son was also jailed as his collaborator in the crime of ‘waging war against the nation’ and his daughter had to give up her Ph.D. midway in dire straits.

Yet, journalistic mana that manifests only in being the voice of the voiceless stayed his forte as he suffered helplessly behind the bars, with fellow journalists too pusillanimous to raise a collective voice against tha police, that had confessed that Jha was no danger as a Maoists, but claimed that he was booked as such to “teach others a lesson”.

His only noted offense was his alleged contributions to Maoist literature, when admittedly; he had done some translations from a special edition of the Economic and Political Weekly on Nepal Maoists.

In the annals of suffering of scribes for betterment of the society, Jha shall remain an epitome of working class consciousness, which, for all time to come, shall continue to inspire every journalist who shall have the affinity to journalistic concern for the working class.

Welcome Mr. Jha to your own world of freedom that a tyrant State can never keep suppressed for all time to come.

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Welcome the new Cabinet

Subhas Chandra Pattanayak

Orissa Governor Dr. S.C. Jamir administered oath of office and secrecy to members of the new Cabinet in Raj Bhawan this forenoon.

The ceremony began with Mr. Naveen Patnaik swearing in as Chief Minister at 10.10 AM followed by 11 Cabinet Ministers and 10 Ministers of State. The ceremony ended at 11.10 AM.

Dr Damodar Rout, Debi Prasad Mishra, Bikram Keshari Arukh, Badrinaryan Patra, Lalbihari Himrika, Bijoyshree Routray, Usha Devi, Jogendra Behera, Pradeep Maharathy, Pushendra Singh Deo and Pradeep Kumar Amat took oath as Cabinet Ministers,whereas Arun Sahu, Ramesh Majhi, Prafulla Mallick, Pranab Prakash Das, Sudam Marnadi Dr Pradeep Panigrahi, Snehangini Chhuria, Asok Kumar Panda, Atanu Sabyasachi Nayak and Sanjaya Dasburma took oath as Ministers of State.

Most of the sworn-in Ministers touched the feet of the Chief Minister before and after taking oath of office, oblivious of how such sycophancy is an affront to the dignity of the constitutional posts they are bestowed upon with.Portfolios are yet to be distributed.

But the good thing is that, Naveen has eased out some of his former cabinet colleagues, who, in public perception, were not of the stuff that matches political responsibility and probity.

The Chief Minister being the same as of the last term, it will be proper for the new Cabinet to begin with taking stock of assurances given by the government in the last Assembly and to discourage loss of Cabinet resolutions in bureaucratic labyrinth at the stage of execution.

When the new team starts functioning, its collective responsibility should be emancipation of people from the pernicious grip of trade and industry that have posed severe threat to environment and eco-systems of the State.

It would be better to keep the future generations of Orissa and their right to the State’s natural resources in mind before squandering them away for touted benefit of only the present generation.

The last Government had done a lot of damage to the contemporary and future generations of Oriyas. Yet, the mandate given to Naveen is with the last hope that his approach may change, good sense may prevail and State terror may end.

With hope against hope that this new government would be pro-people instead of being pro-power, we welcome the new Cabinet.

Higher Judiciary should quash the Delhi ADJ order on pre-marital sex

Subhas Chandra Pattanayak

Notion of judiciary is that consensual sex is no rape and so, an Additional Sessions Judge (ADJ) of Delhi has acquitted a person of charges of rape, as to him, “when a grown up, educated and office-going woman subjects herself to sexual intercourse with a friend or colleague on the letter’s promise that he would marry her, she does so at her own peril”.

Higher Judiciary should immediately intervene and quash it, because it is absolutely an anti-women judgment, supprtive of the treachery of man, over and above being vitiated with the venom of reliance on religion, inasmuch as the verdict underlines, “She must understand that she is engaging in an act which not only is immoral but also against the tenets of every religion”.

In other words, in the name of religion, the ADJ has said, that a male is above the laws despite having used the body of a female as a vehicle of his passion in an environment where the word ‘marriage’ has not got the seal of approval of religious society.

This is bad; and needs be rejected.

The case is that an orphan young nubile was proposed by a young unmarried man through chats online in 2006 and the young woman eventually had accepted the proposal. They got into a relationship that can be defined as ‘mutual marriage’. The said man used to have physical relationship with her in that environment of mutual marriage. When the mutual marriage should have been led into a socially recognized relationship, the young man abandoned her. On being abandoned by the male partner, she had interpreted her predicament as use of her body by the man on deliberate false promise of making the relationship known to the society.

Though in usual parlance, she had termed it ‘rape’, in reality it was not ‘rape’.

The ADJ has taken cognizance of the fact that there was frequent sexual intercourse between the two.

Rape_ a wrong perception

When ‘rape’ can be a sexual encounter for once between a man and a woman, frequent sexual intercourse between the both for years cannot be termed ‘rape’.

Judiciary has a wrong perception in matter of rape so far, which needs to be rectified.

As the ADJ has given us the impression, it was consensual sex between the two, and hence was not ‘rape’ of the woman by the man.

We also say that it was not ‘rape’ of the woman by the man, notwithstanding the term used by the abandoned woman in deja vu.

But, then what was it? Had the ADJ pondered over this, in interest of justice, it should not have been difficult for him to see that, sexual intercourse between the both was nothing but consummation of mutual marriage, awaiting announcement thereof to the society, which, she being an orphan, the man had promised to do on his family platform. But he did not do.

The Offense is yet to be seen

A male partner making a breech of mutual marriage is an offense; because no marriage can be unilaterally terminated. Sadly, in the case, the ADJ could not see this offense before delivering the verdict.

Personal perception cannot be judicial

I am afraid, the ADJ has not freed himself from his personal prejudices in matter of sex and marriage while hearing the case of the victim. I say so, because he says, “In my opinion, every act of sexual intercourse between two adults on the assurance or promise of marriage does not become rape, if the assurance or promise is not fulfilled later on by the boy”.

This perception of a judge may be a personal perception. But, if justice is to be done, in such peculiar cases, a judge should rise above personal perceptions and read the reality before arriving at a decision.

In this particular case, despite the word ‘rape’ used by the victim under shrouds of the wrongly used terminology, specifically in absence of a judicially determined definition of frequent sexual intercourse between two male and female adults before announcing their marriage on social platforms, the Court should have termed it as ‘consummation of a mutual marriage awaiting announcement to the society’ and should have given it the legal status the spirit of the victim’s petition really craved.

An affront to a female’s human rights

But the Court has fallen in the trodden track of woman bashing and acquitted the man that has unilaterally terminated the mutual marriage consummated through years long sexual relationship. Therefore, the said verdict is an affront to human rights of the woman and deserves to be rejected by right-thinking society and needs be nullified by the higher judiciary, which should, if and when the case comes to its attention, create a definition of frequent sex before (legal) marriage as ‘an act of consummation of mutual marriage awaiting legal status’.

Will the higher/highest judiciary of the country please rise to the occasion, as such cases are rampant in the country; and come forward to fulfill their social responsibility in this peculiar issue by giving the required legal definition to frequent and years long sexual intercourse before marriage as ‘consummation of sexual rights in a mutual marriage’, instead of terming /accepting the case as a case of mere pre-marital sex?

The issue is serious and the answer should be speaking.

Scribes stress on action against rowdy medicos and IIC of Mangalabag P.S.

Cuttack based scribes belonging to both the print and electronic media, in a signed memorandum to Orissa’s Director General of Police today stressed on action against medicos who kidnapped two reporters of Naxatra News from the medicine indoor of SCB Medical College on June 15 and tortured them in wrongful confinement for more than two hours. They also demanded stern action against the inspector-in-charge of Police of Mangalabag PS for discernible siding with the rowdy medicos.

DSC_0356

Members of the presidium of Media Unity for Freedom of Press (MUFP) Prasanta Patnaik and Subhas Chandra Pattanayak and coordinator of Save the Samaja Forum Pabitra Maharatha accompanied the aggrieved scribes in a major rally to Police headquarters. In absence of the DGP, the memorandum was received by Additional DGP Mr. Sanjib Marik.

tortured journalist briefs the ADGP

The tortured scribes, Chittaranjan Samantray and Debasis Mohanty gave a detail description of how they were shanghaied into wrongful confinement in a hostel of the medical college by a gang of around a hundred medical students and interns and physically tortured. They were forced to kneel down for hours and then forced to proceed to the same medicine indoor for begging apology before the indoor patients before whom on June 14 they had raised objections to what the house surgeons had said about the father of Samantray.

Samantray’s father was admitted into the medicine ward for treatment. The house surgeons pronounced that the senior Samantray had developed damage in both his kidneys and insisted that he should be shifted to a private hospital. Samantray was shocked, because no pathological investigation had indicated about any damage to the kidneys and he protested. This irked the house surgeons and they started rebuking him in filthy language. An embarrassed and shocked Samantray tried to capture the highly atrocious conduct of the medicos; but obstructed, he went to the unit head and professor of medicine, Dr. Siddharth Das and placed before him his grievances. Dr. Das rushed to the spot and investigated into the matter and as all co-patients of the indoor ward corroborated the allegations raised by Samantray, asked the errant medicos not to work in the same ward. This further irritated the medicos.

When next day, June 15, he had come to attend his father, his co-reporter Debasis had also come with him to meet the professor in his indoor chamber in matter of his ailing mother. Seeing them in the indoor corridor, the miscreant medicos jumped on them and whisked them away into the hostel, where they were kept in wrongful confinement and tortured.

The gory part of the incident is that the IIC of Mangalabag Mr. Shariffudin having come to the spot on SOS message from the affected scribe remained a silent spectator of the torture and willfully neglected to register the FIR filed by them and was later seen entertaining the miscreant medicos in his chamber and registering a parallel FIR filed by them in order to create a confusion in course of criminal justice dispensation.

memorandum

About 50 scribes, while collectively presenting their Memorandum, informed the ADGP that the same IIC is terrorizing them and urged upon him to investigate into his conduct and discipline him. Besides the two victims of medico-police atrocity, the memorialists included, amongst others, Pradip Sahu,Navdeep Das,Cittaranjan Mishra, Satchidanand Behera, Gopal Mohapatra, Matrudatta Mohanty,Prasanta Mohanty, Jyotiprakash Rao, Bikash Sharma, Abhi Mohanty, Amardev Nayak, Rajkishore Panda, Pratap Chandra Sahoo, Devi Prasanna Khuntia, Rajkishore Mohanty, Ch. Jagannath Patra, Satyajit Mishra, Saroj Kumar Mallik,Ajaya Kumar Das, Pabitra Maharatha, Prasanta Patnaik and Subhas Chandra Pattanayak.

The ADGP has assured to take suitable action in the matter and expeditiously.

Orissamatters’ New Page: LAW BEYOND PUBLIC KNOWLEDGE

law beyond public knowledge_intro

PRIVATE COUNSEL OF INFORMANT HAS NO RIGHT OF AUDIENCE IN HEARING OF BAIL PETITION OF THE ACCUSED, ARGUES BIBHU PRASAD TRIPATHY

bptA master of Law from the National Law School of India University, Bangalore, Bibhu Prasad Tripathy, Managing Partner of Lex Publicio, has splendid contributions to his profession.

He practices in constitutional forums of justice such as the High Court of Orissa, High Court of Delhi, and the Supreme Court of India.

He also practices in the National Green Tribunal, and National Consumer Forum.

Amidst engagements in such great ramparts of justice, he also creates time sometimes to assist the justice delivery system in solving intricacies of law.

His argument in matter of a Bail Application in the Court of the District and Sessions Judge, Cuttack fits perfectly into this page.

The Samaja, a powerful newspaper of Orissa, allegedly occupied by Servants of the People Society through fraudulent means, has become a battleground for rival fractions and the fraction that has captured the office of the Samaja is misusing its media power to browbeat the rivals through gained over police black sheep. Thus a life member of SoPS Sri Brajaraj Das @ Brajabhai and the President of the newspaper’s employees association Sri Devi Prasanna Nayak were booked by the police on cooked up charges leveled through a FIR which eventually landed the court as a G.R.Case. Bails denied in the primary Court, Das and Nayak had to prefer an application for bail in the District Court through Advocate Bibhu Prasad Tripathy.

It was shocking to see that the media house Samaja was trying to browbeat the Court by engaging a top criminal lawyer to oppose the bail application, when the Court was only to be addressed by the public prosecutor on behalf of the State. Tripathy vehemently objected to that. He argued that the private counsel for the informant has no right of audience in the Court hearing the bail application. The Court agreed.

We post here his argument in public interest.

IN THE COURT OF DISTRICT & SESSIONS JUDGE, CUTTACK
(Bail Application)
B.A. NO…………………OF 2013

(Arising out of GR Case No 465 of 2013 arising out of Cantonment PS Case No 20 of 2013 u/s 341/323/294/354/506/447 and 34 of IPC)

IN THE MATTER OF:

Braja Bhai & Another
……Petitioners
-Versus-
State of Orissa
………Opposite Party

NOTE OF SUBMISSION FILED ON BEHALF OF THE ACCUSED PERSONS OBJECTING TO INFORMANTS PRIVATE COUNSEL’S INDEDPENDENT RIGHT OF AUDIENCE

That the sought questions for consideration during the time of hearing of the bail application of the accused persons was whether the informant private counsel has an independent right of audience or in other wards whether a third party/informant can present oral argument against the petition for bail filed by the accused persons?

That, Section 301 of CrPC states the following:

301. Appearance by Public Prosecutors:
(1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal.
(2) If in any such case, any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case.

That, the Hon’ble Delhi High Court in Smt. Indubala & Ors Vs Delhi Administration & Ors (1991 CrLJ 1774) in Paragraph 6 in the operative portion of the order has stated the following:

“So, it is evident that a complainant can only assist the Public Prosecutor when the proceedings are being conducted at the stage of inquiry, trial or appeal. Such a complainant can submit written arguments after the evidence is closed in the case but as far as application for grant of bail is concerned there is no provision made in the Code of Criminal Procedure that a complainant or a third party can intervene and make any submissions independently in opposing the application for grant of bail or anticipatory bail. A single Bench of Punjab and Haryana High Court in Kuldip Singh v. State of Haryana, 1980 Cri LJ 1159, also considered the provisions of S. 301 of the Code of Criminal Procedure in the same manner. Counsel for the petitioner has also made reference to Sarwan Kumar v. State of Haryana, 1989 (2) Recent Criminal Reports 459, wherein a single Judge of that Court also held that the first informant or the complainant in proceedings seeking grant of anticipatory bail neither can be considered as necessary party nor a proper party and has no locus standi to be heard. It was held that the complainant party may hold a watching brief and may bring the relevant facts to the notice of the State counsel and apart from that the complainant party has no right to be heard when particularly the State is duly represented.”

That, a Three Judges Bench of the Hon’ble Supreme Court in Shivkumar Vs Hukum Chand & Another (1999 (7) SCC 467) has categorically stated that from the scheme of the Code the legislative intention is manifestly clear that prosecution in a sessions court cannot be conducted by anyone other than the Public Prosecutor. The legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a sessions court. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel overlooked it, Public Prosecutor has the added responsibility to bring it to the notice of the court if it comes to his knowledge. A private counsel, if allowed free hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament applied a bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor.

That in Thakur Ram Vs State of Bihar (AIR 1966 SC 911) the Hon’ble Supreme Court ruled that “in a case which has proceeded on a police report, a private party has no locus standi. It further ruled that, barring a few exceptions, in criminal matters, the aggrieved party is the State, which is the custodian of the social interests of the community at large, and so it is necessary for the State to take all steps necessary for bringing the person who has acted against the social interests of the community, to book.”

That, the Hon’ble Chhatishgarh High Court in Dr Sunil Puri Vs State of Chhatishgarh (2006 CrLJ 866) has observed in Paragraph 15 that “In the result, I hold that the counsel for the complainant or the first Informant has no right of audience in a petition filed Under Section 438, Cr. P.C. for grant of anticipatory bail. He cannot be permitted to orally address the Court. It is only the State Counsel who can be heard in opposing the bail application. However, the counsel so engaged by the first informant or the complainant can brief the State Counsel and can also make a representation on behalf of the complainant or the first informant, and can assist the State Counsel while opposing the ball application. The objection raised by the counsel for the applicant is upheld. However, in the present facts and circumstances of this particular case, it is observed that if so desired, counsel for the first informant, may file written argument at the time of hearing concluded by the counsel for the State.”

That, the Division Bench of the Calcutta High Court also held in the matter of In Re, Rakhal Ojha alias Rakhal Chandra Ojha (1988 Cri LJ 278) that “a plain reading of Sub-sections (1) & (2) of Section 301 Cr. P.C. makes it clear that if in a case which is in charge of a Public Prosecutor or Asstt. Public Prosecutor, a private person engages a lawyer, then, notwithstanding such engagement, the Public Prosecutor or Asstt. Public Prosecutor, who is in charge of the case, shall conduct the prosecution and the lawyer engaged by the private person shall act therein under the direction of the Public Prosecutor or Asst. Public Prosecutor and he can only submit written arguments and that too with the permission of the Court. It was held vide para 8 that the lawyer so engaged by a private person has no right of audience in a case which is in charge of a Public Prosecutor. This analogy derived by the Calcutta High Court appears to be based upon the language of Section 301(2) Cr. P.C. It is held that when the section Itself says that the lawyers engaged may with the permission of the Court, submit written arguments after the evidence is closed, is clear and unambiguous and there is no scope for going behind the letters of the law to hold that such a lawyer can address the Court orally also.”

That, the Hon’ble Delhi High Court in the case of Praveen Malhotra Vs State (1990 CrLJ 2184) while adjudicating a dispute relating to the third party right to intervene and the heard in opposition of bail application clearly stated that “Under Sub-section (2) of Section 301, the pleader instructed by any private person has to act under the directions of the Public Prosecutor or the Assistant Public Prosecutor. Thus it is clear that pleader of a private party can only assist the Public Prosecutor when proceedings are at the stage of inquiry, trial or appeal. After close of evidence such pleader with permission of court, can submit written arguments. The scheme of the Code is that when a case is at the stage, of enquiry, trial or appeal, the Public Prosecutor is in charge of the case. He represents the prosecuting agency before the court. Even in cases where a pleader has been instructed by a private person, such pleader has to act under the directions of the Public Prosecutor and such a pleader is included in the definition of “Public Prosecutor” as provided in Section 2(u). Thus it is evident that no pleader can be permitted to intervene or act except in the manner provided under Section 301(2) of the Code. The combine effect of Section 2(u), 24 and 301 of the Code is that a pleader engaged by a private party cannot plead though he can act and that too under the directions of the Public Prosecutor.” That in Paragraph 19 held that “it may also be noticed that the applicants have not alleged in the application that the State is not doing its duty properly in any manner. The applicants have also not sought leave to assist the State. The contention of the applicants was also not .that the Public Prosecutor has abdicated his functions. The main thrust of the argument of learned counsel for the applicant has been that the applicants have a right to intervene and make oral arguments in the bail application filed by the petitioner. For the reasons aforesaid my answer to the question is that the applicants have no right to intervene and be heard in opposition to the bail application (Cr. M. (M) 161/90).”

That, it follows in the above said Judgements that a plain reading of Section 301 of CrPC reveals that oral submissions by the informant counsel before the Court cannot be independent of the prosecutor and prosecution should not mean persecution. That it is for the said intended objective the Courts have taken an unanimously view that there is no provision in Criminal Procedure Code allowing a complainant or third party to oppose the application for grant of bail or anticipatory bail to the accused persons. Hence the private counsel for the informant does not have an independent right of audience.
By the petitioners
Through
Bibhu Prasad Tripathy
Advocate