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GOVERNING COUNCIL & EXECUTIVE COMMITTEE RAJASTHAN STATE JUDICIAL ACADEMY, JODHPUR PATRON-IN-CHIEF Hon'ble Mr. Justice Jagdis

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GOVERNING COUNCIL & EXECUTIVE COMMITTEE RAJASTHAN STATE JUDICIAL ACADEMY, JODHPUR PATRON-IN-CHIEF Hon'ble Mr. Justice Jagdis GOVERNING COUNCIL & EXECUTIVE COMMITTEE RAJASTHAN STATE JUDICIAL ACADEMY, JODHPUR PATRON-IN-CHIEF Hon'ble Mr. Justice Jagdish Bhalla, Hon'ble Chief Justice, Rajasthan High Court, Jodhpur EXECUTIVE COMMITTEE : Hon'ble Mr. Justice A.M. Sapre, Hon'ble Administrative Judge Chairman : Hon'ble Mr. Justice P.C. Tatia Member : Hon'ble Mr. Justice Mohd. Rafiq Member : Hon'ble Mr. Justice M.N. Bhandari Member : Shri T.H. Samma, Registrar General, Raj. High Court, Jodhpur Member : Shri Ratan Lahoti Registrar, National Law University, Jodhpur Member-Secretary : Shri Bhuwanesh Narain Bhatt, Director, Raj. State Judicial Academy THE JOURNAL OF RAJASTHAN STATE JUDICIAL ACADEMY VI Issue Edition : 2009 Editorial Board Editor-in-Chief • Bhuwanesh Narain Bhatt, Director, R.S.J.A., Jodhpur Members • Shri Chandrika Prasad, RHJS (Retd.), President, District Consumer Redressel Forum, Sawai Madhopur • Dr. V.S. Shasthri, Associate Prof., Faculty of Law, NLU, Jodhpur • Shri P.K. Lohra, Advocate, Jodhpur • Shri Rajendra Prasad, Advocate, Jaipur Published By : Director Rajasthan State Judicial Academy C-7, Near J.N.V.U. Dispensary, Residency Road, Jodhpur - 342003 (Raj.) Telephone : 0291-2654701 Fax : 0291-2654702 The views expressed in the articles, which are being published in this Journal, are the views of the individual author and do not represent any official view of the Academy. Whilst all reasonable care has been taken in the preparation of this publication, no liability is assumed for any error or omission. From the Desk of Director Gradually growing dowry deaths, honour killings, ethnic violence, communal riots etc. are mushrooming like epidemics, weakening the edifice of our democracy. Corruption and criminalization is deepening its roots in the society and have become the order of the day. In these alarming situations, citizens of the nation have set their eyes on judiciary with the hope that it shall fulfill dreams of an ideal society. Various welfare schemes are being floated by the organs of the State merely for befooling poor electorates and to derive personal benefits. It is more than an admitted position that the projected 'ultimate beneficiary' is getting only a meagre share. Happily, Judiciary is far from such a criticism and is seriously aiming at its objects i.e. reduction of arrears of cases, spreading legal awareness, dispensation of justice etc. Judiciary of our country has made untiring efforts for nurturing our democracy since last more than half decade. Its appetite for imparting justice to a common man is unfazed and unquestionable. Still, more important role of judiciary for curbing social evils, eradicating ignorence & inequalities and upliftment of victims and have- nots of the society is desirable. To achieve these solemn objects, sturdy independence, quality of thoughts, geniality, liberal mind and unflagging and effervescent enthusiasm are expected from Judges and Judicial Officers. Zeal to do justice without fear and favour is a hallmark of a great Judge. If Judges take a vow to administer justice, uphold our Constitution and Rule of law, 'we the people of India' shall see that an egalitarian Society dreamt of by founding fathers of our Constitution is in offing. It will be an ideal situation for creating an environment of amity, prosperity and good governance. Faith of a common man in our judiciary is immense and will be reinforced when it shall redeem the status of golden bird for our country. Bhuwanesh Narain Bhatt -: CONTENTS :- From the Desk of Patron-in-Chief Hon'ble Mr. Justice Jagdish Bhalla, Chief Justice, Rajasthan High Court From the Desk of Chairman Hon'ble Mr. Justice P.C. Tatia, Judge, Rajasthan High Court From the Desk of Director Mr. Bhuwanesh Narain Bhatt, Director, Rajasthan State Judicial Academy PART-I ARTICLES Page No. 1. Judgment Writing - Hon'ble Shri Justice Kailash Chandra Joshi 2. Human Rights of Mentally Ill Patients- Professor (Dr.) M.K. Vyas 3. Evidential Value of Expert Opinion - Professor (Dr.) S.S. Sharma 4. Corporate Restructuring: Status of Depository Receipts in the Takeover Regime - Professor (Dr.) U.R. Daga 5. U;kf;d voekuuk % yksdrkaf=d n`f"Vdks.k&Dr. Chandrika Prasad Sharma, RHJS (Retd.) 6. Enhancing Timely Justice : Strengthening Criminal Justice Administration - Jagdish Prasad Sharma, DJ, Dholpur 7. Cyber Crime - Comperative Study of Information Technology Act, 2000 and Information Technology (Amendment) Act, 2008 - Hemant Singh, C.J. (J.D.) cum J.M. PART-II JUDGMENT UPDATE 8. Important Judgments PART-III LATEST ACTS, AMENDMENTS, NOTIFICATIONS & GOVERNMENT POLICIES 9. The Right of Children to free and compulsory education Act, 2009 10 The Code of Criminal Procedure Code (Amendment) Act, 2008 . 11 The Rajasthan Court Fees and Suits Valuation (Amendment) Act, 2009 . 12 Notification under Sec. 8(1) of The Protection of Women from Domestic . Violence Act, 2005 13 The National Litigation Policy . PART-IV ACADEMIC EVENTS 14 Resume - Workshop for IInd Block of year 2009-10 . 15 Event Book . JUDGMENT WRITING Justice Kailash Joshi* Almost every judicial proceeding ultimately culminates into final order or judgment, which determines and decides the rights, obligations and liabilities of the parties in a reasoned manner. A judge is normally judged by his orders and judgments which is the principal instrument of rendering justice. The perception of people about personality and performance of a provider of justice is principally derived from the judicial activities of judge concerned, therefore, it is all the more important to achieve perfection in the art of writing judgment. At the very out-set, let me refer to the oldest surviving courtroom drama in world literature, written by a Greak playwright “Aeschylus” in 458 B.C. which reads as follows: “Fair trial, fair judgment….. Evidence which issued clear as day…… ….[Q]uench your anger; let not indignation regin Pestilence on our soil, corroding every seed `Til the whole land is sterile desert….. …..[C]alm this black and swelling warth.” The world at the beginning of twenty first century is dramatically different from what it was even two decades ago. A new world order is emerging in the new borderless world and it is possible that old conflicts may get substituted by new ones. The role of the judges in the emerging scenario is not only 'speedy dispensation of justice' but its aim should be to do best to prevent disharmony in society. Acquisition of knowledge is like an endless ocean and one requires guidance and support by several individuals in order to derive out a handful of pearls from the depth. Theoretical knowledge without practical learning is of little value. In order to achieve practical, positive and concrete results along with theoretical concepts, the exposure of * Author is former Director, RSJA and presently, Hon'ble Judge of Rajasthan High Court. real life situation is very much needed. Experience shows that judgment should be delivered at an early date after conclusion of the hearing. If the date fixed for pronouncement of judgment is adjourned without cogent and convincing reason or an undue long date is fixed for judgment then that will create suspicion in the mind of litigating public about integrity and impartiality of the judge concerned and at the same time, will afford an opportunity to the miscreants to misuse the occasion by misleading parties and procuring illegal gratification in the name of judge. When hearing is completed, the judgment should come out as early as possible. Judgment involving important points of law and having vital impact requiring utmost care, considerations, critical analysis may require some time, but not long time. Obviously, writing of judgment is an art, but once perfection is achieved it will improve the efficiency. It merits the equal importance that the judgment should be precise, avoiding un- necessary analysis/quoting or reproducing the extracts from documents/witnesses/ pleadings/citations. There are many reasons behind lengthy judgments like excessive citations of previous cases and other writings, prolixity in arguments, presentation of several separate opinion in cases in which a single opinion would or might have been sufficient and also one reason can be excessive reporting of judgments. So while writing a precise and effective judgment, one should try to eliminate such things. Art of writing judgment can not be said to be an art in strict sense because judgment writing is an essential feature of judicial functioning to be performed by a judge individually. This process of arriving at his/her own conclusion depends upon his/her own style, skill to marshall facts and evidence keeping in view the facts and circumstances of each case. Pronouncement of reasoned judgment is an essential requirement from different prospective i.e. for the litigant, legal profession, appellate/ subordinate courts and judge’s own conscience. Vision for writing judgment may be endless but I hold an opinion that an effective and precise judgment should contain following features in brief: (1) Brevity (2) Effective language and style (3) Reasoned approach and attitude. Of these, the reasons must be explicit to enable the parties effectively to exercise their rights in appeal; should sufficiently communicate why and how this conclusion is drawn and why preference to one witness is given over other. Some things depend on impression. Intellectual honesty can, and should, be a sufficient guide. There are errors or misunderstandings to be guarded against; e.g. when a discretion is exercised, all relevant, and no irrelevant, matters are to be taken into account. A defective statement (“Taking into account these matters, I find …. I therefore conclude….”) suggests that other matters were ignored. Misapprehension may be avoided by an appropriate formula (“I have considered all the evidence. I think ….. is of particular importance …. My conclusion is ….”). If he does not, his judgment is apt to be misunderstood by the parties in appeal. The finding should be indicated, not merely because it is part of the grounds for the judge’s conclusion but also because, if there is disagreement with his conclusion, it may help to show why he decided as he did.
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