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Old 30th July 2015, 21:43   #16
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Default Re: Drive without borders vs State of Jammu & Kashmir

Unless the ALTOA are collecting money for 'ecological restoration' activities (seems not), there goes the 'tourists are destroying our fragile ecology' argument!

Before someone jumps in with an 'it's all hearsay and lies spread by tourists' argument, the Judicial Magistrate of the region has apparently seen enough in the situation to pass an order asking the ALTOA to desist from whatever it is they're doing to the trekkers' group.

Be interesting to know if ALTOA has actually challenged the order legally, or are they simply pretending it didn't happen and continuing the harassment as before?

Moreover, this is at least the SECOND confirmed case of local police refusing to file an FIR (including the car attack case from the other thread).

Edit: Swapped 'locals' with 'ALTOA' so this doesn't get misunderstood as a generalized 'all locals are hooligans' post.

Last edited by Chetan_Rao : 30th July 2015 at 21:50.
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Old 30th July 2015, 22:36   #17
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Originally Posted by Chetan_Rao View Post
Moreover, this is at least the SECOND confirmed case of local police refusing to file an FIR (including the car attack case from the other thread).
It is too late in the night, so wanted to just add this note. Police refusing to file an FIR is not unique to Ladakh alone. For a variety of reasons the police refuse to lodge and FIR, and this is a pan-India phenomenon.

Because once an FIR is filed, the issue has been registered "for ever" in the Indian judicial system. This is the formal recognition of a crime which has happened in a place in India. Now that "crime" could be any thing from a mobile theft, an affray, an assault, all the way up to murder. For the police they need to prioritize their work, so they generally record an FIR for a more severe criminal case (even though for a person who lost is Rs.10K mobile, that is the "biggest crime" which has happened in the world).

Last edited by sachinpk : 30th July 2015 at 22:37.
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Old 30th July 2015, 22:42   #18
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Quote:
Originally Posted by sachinpk View Post
For the police they need to prioritize their work, so they generally record an FIR for a more severe criminal case (even though for a person who lost is Rs.10K mobile, that is the "biggest crime" which has happened in the world).
disregarding the sheer ridiculousness of "oh, this is not serious enough", which I agree police tend to do, how much "work" would coppers in somewhere as sparsely populated as ladakh would be having is debatable.
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Old 30th July 2015, 22:46   #19
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Quote:
Originally Posted by sachinpk View Post
Police refusing to file an FIR is not unique to Ladakh alone. For a variety of reasons the police refuse to lodge and FIR, and this is a pan-India phenomenon.
I don't disagree, but that's besides the point. 'Police elsewhere does it too' is not an excuse.

Quote:
For the police they need to prioritize their work, so they generally record an FIR for a more severe criminal case (even though for a person who lost is Rs.10K mobile, that is the "biggest crime" which has happened in the world).
It's NOT the police's job to judge the severity or criminality of the reported incident. An FIR is only a notification filed by a civilian to notify law-enforcement of an incident. Whether it later turns into an actual legal case or prosecution is not for the police to decide until the claims have been verified for accuracy, but under no circumstances can they refuse to take cognizance of an alleged criminal offence outright.

Moreover, threatened (and inflicted) harm to person and property and alleged extortion is 'severe' enough to at least take notice.

Here' an extract from the relevant prescribed procedure (taken from the internet but someone legally educated on this forum can kindly verify accuracy of the quoted content):

Quote:
The police may not investigate a complaint even if you file a FIR, when:
(i) The case is not serious in nature;
(ii) The police feel that there is not enough ground to investigate.
However, the police must record the reasons for not conducting an investigation and in the latter case must also inform you.



Section 157, Criminal Procedure Code, 1973
There are certain caveats based on congnizability (police authority to arrest without warrant, in layman terms), but even then they're supposed to make a record of the complaint in the official register and provide the complainant a signed copy of the same. Under no circumstances are police authorized to turn a citizen away without noting the grievance in 'at least' one of the two prescribed forms. See next quote below:

Quote:
An F.I.R can only be filed for a cognizable crime. In the event someone is trying to file an F.I.R for a crime that falls in the non-cognisable category it is the duty of the police to listen to them, enter the matter in their daily register or dairy, give the person a signed copy of the entry made (as proof of the matter being recorded) and direct them to the closest or appropriate magistrate.
Long story short, filing an FIR (or making an official note of the complaint, whichever is applicable) is NOT OPTIONAL for the police when approached by a citizen. Keywords: 'NOT OPTIONAL'.

Last edited by Chetan_Rao : 30th July 2015 at 23:03. Reason: Added extract on FIR procedure
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Old 30th July 2015, 22:50   #20
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Default Re: Drive without borders vs State of Jammu & Kashmir

Quote:
Originally Posted by mayankk View Post
disregarding the sheer ridiculousness of "oh, this is not serious enough", which I agree police tend to do, how much "work" would coppers in somewhere as sparsely populated as ladakh would be having is debatable.
On a totally un-related note, talking about callous attitude of the Police - In Chennai, I was refused FIR for 4 months (theft of my motorcycle) before the police decided to register it and give me my copy. I just want to put it out that Police tend to be a bit 'lethargic' when it comes to FIRs' and a bit more forth-coming if it is just a complaint.

That said, the police inaction in a crime as serious as a mob attack and damage to property is suspicious indeed.!
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Old 31st July 2015, 10:38   #21
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Default Re: Drive without borders vs State of Jammu & Kashmir

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Originally Posted by r.praveen
I just want to put it out that Police tend to be a bit 'lethargic' when it comes to FIRs' and a bit more forth-coming if it is just a complaint.
When an FIR has been registered, that means the government has taken notice of a crime. Now that being the case, the police cannot just close the FIR without taking umpteen number of approvals to get it closed. There would be many many superiors up in the hierarchy chain, asking why should a case be closed. The SHO would go nuts answering all these folks.

Quote:
Originally Posted by Chetan_Rao
It's NOT the police's job to judge the severity or criminality of the reported incident. An FIR is only a notification filed by a civilian to notify law-enforcement of an incident. Whether it later turns into an actual legal case or prosecution is not for the police to decide until the claims have been verified for accuracy, but under no circumstances can they refuse to take cognizance of an alleged criminal offence outright
The catch is the whole lot of paper work to be completed. Once the FIR is registered closing the same is not a very easy thing to do. Secondly, in many states the number of FIRs filed (and cases left open) are considered for the "performance appraisal" of the SHO and superior staff. Nobody checks if the FIR was filed for a mobile theft, or for murder. An FIR once lodged has a complex way to get it closed (Click).So in many cases it is the paper work and the 100s of questions to be answered which makes police lazy to file FIR. I am not saying this is a right thing to do, but just stating the obvious .

Quote:
Moreover, threatened (and inflicted) harm to person and property and alleged extortion is 'severe' enough to at least take notice.
Agreed. But looks like the people who made these laws knew the probability of the local police being callous. And precisely for that reason, we have a way to lodge an FIR using registered post with acknowledgement. I don't know if the people who were attacked have utilised this facility. If they have not done that yet, perhaps we should check with them why they have not used this provision? Blaming the police is easy, but have we tried out alternatives as well?
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Old 31st July 2015, 16:09   #22
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Default Re: Drive without borders vs State of Jammu & Kashmir

Quote:
Originally Posted by sachinpk View Post
When an FIR has been registered, that means the government has taken notice of a crime. Now that being the case, the police cannot just close the FIR without taking umpteen number of approvals to get it closed. There would be many many superiors up in the hierarchy chain, asking why should a case be closed. The SHO would go nuts answering all these folks.
None of this is justification to 'refuse to take notice' of a reported incident.


Quote:
The catch is the whole lot of paper work to be completed. Once the FIR is registered closing the same is not a very easy thing to do.
How is this relevant? By your argument, a citizen can't expect to get any assistance from law-enforcement because helping a citizen 'involves too much paperwork'?

Quote:
Secondly, in many states the number of FIRs filed (and cases left open) are considered for the "performance appraisal" of the SHO and superior staff.
Funny how statistics seem to matter more that actually 'performing the job' in a 'performance appraisal'.

Quote:
Nobody checks if the FIR was filed for a mobile theft, or for murder. An FIR once lodged has a complex way to get it closed (Click).
If an FIR is too 'impractical' for the hard-working police, the CrPC has a prescribed alternative. Refer my previous post for the relevant extracts. Did they do it? Apparently not.


Quote:
But looks like the people who made these laws knew the probability of the local police being callous. And precisely for that reason, we have a way to lodge an FIR using registered post with acknowledgement. I don't know if the people who were attacked have utilised this facility. If they have not done that yet, perhaps we should check with them why they have not used this provision? Blaming the police is easy, but have we tried out alternatives as well?
The trekkers' group actually took their grievance to the relevant Judicial Magistrate themselves, who in turn passed a legal order (reportedly dated 10 Aug 2014) asking the local police to take cognizance of the alleged incidents and proceed with investigation. The police are yet to do it for reasons best known to them, nearly a YEAR after being ordered to do so. So, the local police not only broke the law by refusing to acknowledge the original complaint, but again by not acting on a legal order passed by an empowered Judicial Magistrate.

I find it amusing how you steadfastly argued on the KA RTO thread (paraphrasing your comments): "The Law is the law and everyone needs to follow it instead of making excuses about procedural and practicality issues. If they believe the laws are unfair or wrong, they should go to the right authorities and get them corrected the right way, instead of simply refusing to follow them". Yet here you are, making the same excuses on behalf of the local police in this incident and asking us to look at the procedural and practicality headaches of the helpless policeman. Different strokes for different folks?

I'll give you your own argument: The police needs to follow the the 'current' CrPC procedure and do their jobs. If the procedures are cumbersome and impractical, they need to go to the correct authorities and get these rules changed to make them more practical, instead of refusing to do their jobs until the rules are changed for their benefit.

Fair enough?

Last edited by Chetan_Rao : 31st July 2015 at 16:22.
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Old 31st July 2015, 16:25   #23
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Default Re: Drive without borders vs State of Jammu & Kashmir

Quote:
Originally Posted by Chetan_Rao
None of this is justification to 'refuse to take notice' of a reported incident.
I am not justifying any thing here. But just highlighted the practical challenges which are there in this case. The police need to figure out a way to simplify the process. The Bangalore Police have setup exclusive FIR lodging police kiosks, after this problem became rampant.

Quote:
Funny how statistics seem to matter more that actually 'performing the job' in a 'performance appraisal'.
Hmm. may not be the right way to go about it. But in KL for example, there are clear cut targets given to SHOs on various aspects. One of them is detecting x number of traffic violations, and raising petty cases and levying spot fines. Sure the SHO may be a real go-getter when it comes to say detecting a murder, but he cannot still show that as an excuse in poor detection MV petty cases. Again, not justifying things but whether we like it or not, things may not work our way always.

Quote:
I find is amusing how you steadfastly argued on the KA RTO thread (paraphrasing your comments): "The Law is the law and everyone needs to follow it instead of making excuses about procedural and practicality. If they believe the laws are unfair or wrong, they should go to the right authorities and get them corrected the right way". Yet here you are, making the same excuses on behalf of the local police in this incident and asking us to look at the procedural and practicality headaches of the helpless policeman
Sir, in the RTO thread how many excuses did people make to justify tax dodging? I am just highlighting the cumbersome process involved, and not justifying the police behaviour. Take it as "For your information" only. But the catch is that even the police tries to get away from registering an FIR, there are other ways to get it formally recorded.

Quote:
The police needs to follow the the 'current' CrPC procedure and do their jobs. If the procedures are cumbersome and impractical, they need to go to the correct authorities and get these rules changed to make them more practical, instead of refusing to do their jobs until the rules are changed for their benefit.
Perfectly agreed. But now that the local PS has refused to do their job, we need to take alternatives am I right? Have the victims filed an FIR through registered post to the District SP? Me adding some remarks on the behaviour of the police does not change the situation on the ground. The police will have to follow the existing FIR procedure, but the victims also should working on lodging the FIR quickly.
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Old 31st July 2015, 16:58   #24
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Default Re: Drive without borders vs State of Jammu & Kashmir

Quote:
Originally Posted by sachinpk View Post
But now that the local PS has refused to do their job, we need to take alternatives am I right? Have the victims filed an FIR through registered post to the District SP?
The OP in the 'Car convoy incident' thread clarified the delay in legal follow up. Please refer the thread for his answer, I can't comment on his behalf as I'm not privy to their discussions.

You did miss my point about the Trekkers' incident where they actually got the Judicial Magistrate to take cognizance of the incident and also pass an order asking the police to investigate, but no action has been taken by the police nearly a year after the order was passed. What's your take on that?
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Old 31st July 2015, 17:06   #25
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Originally Posted by Chetan_Rao View Post
You did miss my point about the Trekkers' incident where they actually got the Judicial Magistrate to take cognizance of the incident and also pass an order asking the police to investigate, but no action has been taken nearly a year after the order was passed. What's your take on that?
The police did a sloppy job. It is even stupid to think other wise . The next thing is did any further follow up actions happen after this? In very many cases a constant pressure has to be mounted on the government machinery to function. Or else we can just blame the police for doing a sloppy job, say nothing would improve and then go on.

On the Trekker's case. For some strange reason I am not able to see the magistrate's order completely. Will check from home if possible. What exactly has the magistrate asked the police to do? IndiaHikes does say that they will fight tooth and nail in this case (which is required), but don't know whether they have followed up with the magistrate court through any reminders. This may also be required at times, as judiciary also works in a very slow fashion.
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Old 14th August 2015, 18:15   #26
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Dear Friends,

I am very pleased to inform you all that we will be filing the petition in the High Court of Jammu and kashmir next week.
The draft is finalised, affidavits and vakalatnama's have been couriered to our advocate in Srinagar.

Thanks.

Waseem Memon
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Old 17th August 2015, 16:08   #27
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Default Re: Drive without borders vs State of Jammu & Kashmir

Dear Waseem
Many thanks for taking up the cause personally.
Please could you let us know - the summary points of the petition being filed and What is the specific help being sought from the Hon'ble J&K High Court?
Regards
Joy Bhowmik
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Old 17th August 2015, 20:40   #28
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Default Re: Drive without borders vs State of Jammu & Kashmir

That is a nice initiative Waseem. Why have the self drive rental companies also not following suit and lodge a petition? I agree that FIR is a must have document before you can initiate any legal remedy and is the one most difficult to obtain. At most you can have a ddr number on your complaint and no FIR.
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Old 18th August 2015, 09:47   #29
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Originally Posted by wanderernomad View Post
I agree that FIR is a must have document before you can initiate any legal remedy and is the one most difficult to obtain. At most you can have a ddr number on your complaint and no FIR.
I don't know if Waseem is trying the Public Interest Litigation (PIL) route, in which perhaps an FIR is not required at all. Because he is filing a case on behalf of the general public, and can say that he is doing it after seeing news in media etc. etc. But FIR is a must if the original poster (of this thread) plans to file a case against his attackers (the taxi operators). Without the FIR, nothing would start. Though we have seen the video and also debated on all this, for the government machinery at J&K and Ladakh nothing has happened, or they have not seen it . Only an FIR makes this machinery "see" such an incident has happened.
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Old 23rd August 2015, 12:08   #30
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Dear Friends,

Notarized documents have reached our advocate and we are all set to file the Petition in the High Court of Jammu & Kashmir on next Thursday as our advocate is travelling for next 2-3 days.

We are filing a WP and not a PIL.Our advocate is of the opinion that since the matter is grave in nature, the presiding judge will take this very seriously and eventually this WP will be given the importance it deserves.

I will come back to you all soon on the date of hearing.

Waseem Memon.

Last edited by SILVERWOOD : 23rd August 2015 at 12:09.
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