Friday, February 14, 2020

Supreme Court issues guidelines on listing of Criminal Appeals against orders involving death penalty

The Supreme Court has issued guidelines regarding the listing of Criminal Appeals against High Court orders involving the death penalty.
As per the Office Order dated February 12, these guidelines shall be followed scrupulously by all.
The guidelines are as follows:
(A) In matters where the appeal is against a High Court order upholding the death penalty and leave is granted by Supreme Court, the Criminal Appeal will be listed for hearing before a Three Judges Bench within not later than six months from the date of grant of leave, irrespective of whether an appeal is ready or not.
(B) (i) As soon as an SLP involving death penalty is filed, a communication from the Registry may be sent to the court appealed from, seeking a certificate of service as well as an original record within a period of thirty days from the receipt of such intimation or further within such period as may be directed by the Court. The record will be sent along with the translated copy of the documents which may be in vernacular language.
(ii) On grant of leave by the Supreme Court, the Registry may insist on the filing of additional documents by the parties within a period of thirty days after the receipt of intimation in this regard.
(iii) In the event records or additional documents have not been received/filed, the matter may be listed before Judges concerned in Chambers with appropriate office report for directions, instead of listing the matter before the Registrar Court as per the existing practice.

CAA Protests: Court bound to see that people have a right to agitate, says Bombay High Court

The Bombay High Court on 13/2/2020 held that persons peacefully protesting against any particular law cannot be called as traitors or anti-nationals. The observation was made while granting permission for the conduct of an indefinite protest against the controversial Citizenship Amendment Act (CAA), 2019 in the Beed district of Maharashtra.

"... this Court is expected to consider the right of such persons to start agitation in a peaceful way. This Court wants to express that such persons cannot be called as traitors, anti-nationals only because they want to oppose one law. It will be act of protest and only against the Government for the reason of CAA."
Bombay High Court

Thursday, February 13, 2020

Rajya Sabha official demoted for anti-Modi posts in social media

The Deputy Director has “failed to maintain political neutrality”, says order 
On the directive of Rajya Sabha Chairman Venkaiah Naidu, an official working in the post of Deputy Director in the Rajya Sabha Secretariat has been demoted for his social media posts allegedly against Prime Minister Narendra Modi, BJP Cabinet Ministers and Uttar Pradesh Chief Minister Yogi Adtiyanath. 
memo issued by the Secretariat dated February 12 to Deputy Director (Security) Urujul Hasan charges him with “sharing several offensive, derogatory, demeaning and sarcastic posts on social media against the Hon’ble Prime Minister of India and some Union Ministers and Chief Ministers as also sharing a number of posts indicating his active involvement/assistance/indulgence in political activities canvassing in connection with an election to the legislature”. 
According to sources, the order was issued following a year-long enquiry after an anonymous complaint flagged Mr. Hasan’s Facebook posts made from April to May 2018. Many of these posts, sources said, were merely repost of others’ statements. 
 As per the Rajya Sabha orders, Mr. Hasan has been demoted for five years and even at the end of this period he will not be allowed to resume his post of Deputy Director. 
The order rules that Mr. Hasan has “failed to maintain political neutrality” as per the Central Civil Services Conduct Rules of 1964 which has stringent provisions against participation of a government servant in any kind of political activity or even freely expressing their view.
Various sections of these rules have been invoked against Mr. Hasan. As per the rules, a government servant is debarred from joining any political party, he/she is not allowed to “canvass or otherwise interfere with, or use his influence in connection with or take part in an election to any legislature or local authority”. The government servant is not allowed to even indicate the manner in which he proposes to vote or has voted. 
The enquiry committee had also taken into account a Madras High Court ruling of May 10, 2018 against an actor-turned-politician for forwarding an offensive WhatsApp message, saying, “Forwarding a message is equal to accepting the message and endorsing the message.” 
Former Chief Secretary of Delhi Rakesh Mehta said a civil servant is not allowed to breach the political line under any circumstances and the rules are very clear about it. “The CCS Rules apply for social media posts too. A social media post cannot be considered a private correspondence. A civil servant cannot make his political views public simply because it would prejudge their decision making process,” Mr. Mehta said. However, he agreed that the rules are archaic and need to be revisited in an era of social media. 

Wednesday, February 12, 2020

SC Directs Political Parties To Publish Criminal Antecedents Of Candidates In LS & Assembly Polls Within 48 Hours

Story updated when order copy received.

The apex court, which was hearing a contempt plea over the issue of criminalization of politics directed the parties to upload on their websites the reasons for the selection of candidates with criminal antecedents. The Supreme Court said that political parties must publish credentials, achievements and criminal antecedents of candidates on newspapers, social media platforms and their respective websites along with an explanation. "Political parties must put all the information in public domain about a candidate within 48 hours after clearing the name and the party must also submit a report regarding publication within 24 hours after the nomination of the candidate," the top court said. The court said that parties will be liable for contempt if they failed to comply with its order and directed Election Commission to file contempt petition in SC in case of non-compliance

The Juvenile Justice Boards are not meant to be silent spectators and pass orders only when a matter comes before them -SC

"We make it clear that the Juvenile Justice Boards are not meant to be silent spectators and pass orders only when a matter comes before them. They can take note of the factual situation if it comes to the knowledge of the JJBs that a child has been detained in prison or police lock up. It is the duty of the JJBs to ensure that the child is immediately granted bail or sent to an observation home or a place of safety. The Act cannot be flouted by anybody, least of all the police,"

"All JJBs in the country must follow the letter and spirit of the provisions of the Act. We make it clear that the JJBs are not meant to be silent spectators and pass orders only when a matter comes before them. They can take note of the factual situation if it comes to the knowledge of the JJBs that a child has been detained in prison or police lock-up. It is the duty of the JJBs to ensure that the child is immediately granted bail or sent to an observation home or a place of safety. The Act cannot be flouted by anybody, least of all the police," the bench observed.

Tuesday, February 11, 2020

Section 482 CrPC- HC Cannot Quash Criminal Proceedings On The Basis Of Its Assessment Of 161 Statements: SC

 The Court, while allowing the criminal appeal, held that quashing of criminal proceedings cannot be meted out by the High Courts if a prima facie case is made out disclosing the ingredients of the alleged offence.

The Bench emphasized that the appreciation of evidence in a petition under Section 482 CRPC was a matter of exceptional circumstance.

It was held,

"It is settled law that the evidence produced by the accused in his defence cannot be looked into by the Court, except in very exceptional circumstances, at the initial stage of the criminal proceedings. It is trite law that the High Court cannot embark upon the appreciation of evidence while considering the petition filed under Section 482 CrPC for quashing criminal proceedings"

Furthermore, Court took the view that statements recorded in terms of Section 161 CRPC were wholly inadmissible in evidence and were not a valid ground for allowing a petition under Section 482 CRPC.

"The conclusion of the High Court to quash the criminal proceedings is on the basis of its assessment of the statements recorded under Section 161 CrPC. Statements of witnesses recorded under Section 161 CrPC being wholly inadmissible in evidence cannot be taken into consideration by the Court"

SC Upholds Constitutional Validity Of 2018 Karnataka Law Granting Reservation In Promotion For SC-ST

The Supreme Court's recent decision that there is no fundamental right to claim reservation in promotions has become a subject matter of intense debate.

The decision was discussed in the Parliament, and the Centre has told the House that the matter was under the study and consideration of the Government at "high level".

Article 16(4)(A) 

"Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion [, with consequential seniority,] to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State."

Alongside Article 16(4)(A), the Parliament has inserted Article 16(4)(B) through the Constitutional (81st Amendment) Act in 2000. It ensures that vacant posts arising out of reservation shall be carried out to subsequent years and such vacant posts will not be considered to determine the ceiling of 50% reservation on a total number of vacancies.

Latest Judgment

Monday, February 10, 2020

Section 438 of the Code of Criminal Procedure (Anticipatory Bail) shall not apply to the cases under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, except when the complaint does not make out a prima facie case

The Supreme Court has observed that provisions of section 438 of the Code of Criminal Procedure (Anticipatory Bail) shall not apply to the cases under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, except when the complaint does not make out a prima facie case for applicability of the provisions of the Act.
In cases where prima facie case is not made out, the bar created by section 18 and 18A (i) of the Act excluding provisions of Section 438 of the Code of Criminal Procedure (Anticipatory Bail), shall not apply, observed the bench of Justices Arun Mishra, Vineet Saran and S. Ravindra Bhat while upholding the constitutionality of Section 18A of the SC-ST Act,, inserted vide an amendment in 2018.
The Court observed that the provisions which have been made in section 18A are rendered of academic use as they were enacted to take care of mandate issued in Dr. Subhash Kashinath (supra) which no more prevails. The provisions were already in section 18 of the Act with respect to anticipatory bail, it noted. The bench observed:
Concerning the applicability of provisions of section 438 Cr.PC, it shall not apply to the cases under Act of 1989. However, if the complaint does not make out a prima facie case for applicability of the provisions of the Act of 1989, the bar created by section 18 and 18A (i) shall not apply. We have clarified this aspect while deciding the review petitions
Regarding the power under Section 482 CrPC, the bench said:
The court can, in exceptional cases, exercise power under section 482 Cr.PC for quashing the cases to prevent misuse of provisions on settled parameters, as already observed while deciding the review petitions.  
While upholding the provisions of the SC-ST Act, it said:
"Concerning the provisions contained in section 18A, suffice it to observe that with respect to preliminary inquiry for registration of FIR, we have already recalled the general directions (iii) and (iv) issued in Dr. Subhash Kashinath's case (supra). A preliminary inquiry is permissible only in the circumstances as per the law laid down by a Constitution Bench of this Court in Lalita Kumari v. Government of U.P., (2014) 2 SCC 1, shall hold good as explained in the order passed by this Court in the review petitions on 1.10.2019 and the amended provisions of section 18A have to be interpreted accordingly.

The section 18A(i) was inserted owing to the decision of this Court in Dr. Subhash Kashinath (supra), which made it necessary to obtain the approval of the appointing authority concerning a public servant and the SSP in the case of arrest of accused persons. This Court has also recalled that direction on Review Petition (Crl.) No.228 of 2018 decided on 1.10.2019. Thus, the provisions which have been made in section 18A are rendered of academic use as they were enacted to take care of mandate issued in Dr. Subhash Kashinath (supra) which no more prevails. The provisions were already in section 18 of the Act with respect to anticipatory bail."
Justice Ravindra Bhat,in a separate opinion penned by him, observed thus:
As far as the provision of Section 18A and anticipatory bail is concerned, the judgment of Mishra, J, has stated that in cases where no prima facie materials exist warranting arrest in a complaint, the court has the inherent power to direct a pre-arrest bail. 20. I would only add a caveat with the observation and emphasize that while considering any application seeking pre-arrest bail, the High Court has to balance the two interests: i.e. that the power is not so used as to convert the jurisdiction into that under Section 438 of the Criminal Procedure Code, but that it is used sparingly and such orders made in very exceptional cases where no prima facie offence is made out as shown in the FIR, and further also that if such orders are not made in those classes of cases, the result would inevitably be a miscarriage of justice or abuse of process of law. I consider such stringent terms, otherwise contrary to the philosophy of bail, absolutely essential, because a liberal use of the power to grant pre-arrest bail would defeat the intention of Parliament

Sunday, February 9, 2020

Mop in Stomach: Doctor ordered to pay ₹6.85 lakh

The Gujarat State Consumer Dispute Redressal Commission has ordered a Surat-based gynecologist to pay Rs 6.85 lakh to a woman for forgetting a mop in her abdomen after her C-section surgery.
Dr. Meena Vankawala will be paying the amount to one Bhavi Mehta, who was admitted to her hospital in March 2012. She delivered a son after undergoing surgery. She complained that her baby swallowed fluid during birth and hence suffered various health problems. The baby’s treatment lasted long at different hospitals.
After C-section surgery, the woman continued to feel pain in her abdomen. She consulted other doctors but did not get any relief. Finally, on May 14, 2012, she was hospitalized and sonography reflected a foreign body in her abdomen. She was operated upon and a mop of the size of 15x12 mm was found in her stomach.
Mehta sued Dr. Vankawala, her hospital and the insurance company in the consumer commission for medical negligence.
She also supplied a medical report saying that Dr. Vankawala did not remove the mop during the surgery. The case lasted for seven years and the commission accepted the patient’s claim that it was a case of medical negligence.
The commission said, “This is a case of medical negligence which is highly difficult to establish... There is no dispute that the cotton mop was left during the operation in the body of complainant No. 1(Mehta)... doctor had not taken any care to remove the mop from the body of the complainant, otherwise, she might not have suffered such severe and unbearable pain for long. This itself suggests concluding that the doctor was careless and negligent at the time of performing the operation on her.”
The complainant had sought  hefty amount of over Rs 90 lakh towards compensation for the trouble she and her son had undergone. But the consumer commission said that she was entitled to get Rs 5 lakh towards compensation, and Rs 1.5 lakh for the medical expenses she had incurred. The doctor and her insurance company were also ordered to pay Rs 25,000 to the patient for mental agony caused to them besides Rs 10,000 towards legal expenditure.

Woman gets 6 years in jail for perjury, She Was Seeking More Alimony

Jyoti Joshi’s desperate efforts to get more maintenance from her husband have landed her in jail for six years. A court in Amreli punished her for giving false evidence and making a false statement before the court, during proceedings on her plea seeking more maintenance money.
Last month, a magisterial court in Amreli sentenced her to three years’ rigorous imprisonment for supplying false evidence in court under Section 193 of the IPC. It punished her with equal jail term under Section 199 of the IPC, for giving a false statement in the declaration which is by law receivable as evidence. The court ordered her to undergo both terms consecutively.
While Joshi got six years in jail, she succeeded in her bid to increase the maintenance amount – from Rs 2,000 to Rs 6,000 in December 2013. However, seven months before she got this relief from the court, the court ordered registration of a complaint against her under Sections 193, 199 and 200 of IPC.
In this case, Jyoti married Yogesh Joshi in 1987 and the couple lived in Chalala town. After matrimonial discord, Jyoti approached the court in 2003 and secured monthly maintenance of Rs 1,100 by way of a settlement in 2004. The maintenance amount was later increased to Rs 2,000.
In 2007, Jyoti filed an application for enhancement in maintenance to Rs 6,000, claiming that her husband was an accountant with the animal husbandry department in Rajkot drawing a salary of Rs 12,000. To show that she needed more money due to her dire financial status, Joshi claimed that she was living in her aunt Saguna Madhak’s house by paying Rs 2,000 rent. She thus needed more than Rs 2,000 maintenance from the husband.
The husband, on the other hand, complained before the court that his wife was lying on oath. The court ordered an inquiry and found the substance to the husband’s claim. The judge ordered the court registrar to file a complaint against Jyoti for supplying false evidence in court.
In 2014, the trial against Jyoti began. Last month, the court delivered its verdict holding her guilty of telling a lie to the court because it was established that she was not paying any rent to her aunt, because the aunt did not own any property at all.

Friday, January 31, 2020

Unequivocal statements made by counsel will be binding on their clients.

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Unequivocal statements made by counsel will be binding on their clients

The Supreme Court has observed that unequivocal statements made by counsel will be binding on their clients.
In this case, counsel for the landlord made a statement before the High Court that the tenant will be re-­inducted in equal area in the newly constructed building within one month. Before the Apex Court, the issue was whether the landlord is bound by this statement made by the Counsel.
The bench of Justices AM Khanwilkar, Hemant Gupta and Dinesh Maheshwari noted that an unequivocal statement was made by the counsel engaged by the landlord to espouse his cause before the High Court. It also noted that there is no case that he had expressly instructed his counsel not to make such a statement.It said:
The engagement was in respect of eviction proceedings and the statement was in relation to the commitment of the appellant qua the subject matter thereof and being an unequivocal statement, it will be binding on the appellant.
The Court noted that in Himalayan Coop. Group Housing Society vs. vs. Balwan Singh, it was observed that authority-­agency status affords the lawyers to act for the client on the subject matter of the retainer. It noted the following observations from the judgment:
Generally, admissions of fact made by a counsel are binding upon their principals as long as they are unequivocal; where, however, doubt exists as to a purported admission, the court should be wary to accept such admissions until and unless the counsel or the advocate is authorised by his principal to make such admissions
A lawyer generally has no implied or apparent authority to make an admission or statement which would directly surrender or conclude the substantial legal rights of the client unless such an admission or statement is clearly a proper step in accomplishing the purpose for which the lawyer was employed.
We may add that in some cases, lawyers can make decisions without consulting the client. While in others, the decision is reserved for the client. It is often said that the lawyer can make decisions as to tactics without consulting the client, while the client has a right to make decisions that can affect his rights. 

Thursday, January 30, 2020

'Two Finger Test' Unconstitutional As Violative Of Woman's Right To Privacy & Dignity : Gujarat HC

Full Judgment

The Gujarat High Court has held that the "archaic and outdated" practice of two-finger test, conducted to determine the virginity/consent of a rape victim, is unconstitutional.
The court held that the two finger test is violative of the right of the victim to privacy, physical and mental integrity and dignity. 
The court said,
"Our endeavour is to remind the trial Courts as well as the medical fraternity that the "two-finger test" is unconstitutional, as it violates the right of the victim of sexual assault to privacy, physical and mental integrity and dignity. If the trial Court comes across any such medical certificate, wherein, there is a reference of such a test, then it should take cognizance of the same and do the needful in the matter."
As per the bench of Justices JB Pardiwala and Bhargav D. Karia, the two-finger test is in direct conflict with the proviso to Section 146 of the Indian Evidence Act, which stipulates that "in prosecution for rape or attempt to commit rape, it shall not be permissible to put questions in the cross-examination of the prosecutrix as to her general immoral character."
"Despite the aforesaid proviso, the two-finger test leading to the formation of the medical opinion regarding consent allows the past sexual history of the victim to cause prejudice to her testimony.
…The test itself is one of the most unscientific methods of examination used in the context of sexual assault and has no forensic value. Whether a survivor is habituated to sexual intercourse prior to the assault has absolutely no bearing on whether she consented when the rape occurred. Section 155 of the Indian Evidence Act, does not allow a rape victim's credibility to be compromised on the ground that she is "of generally immoral character," the bench remarked.
The observations were made in a "unique acquittal appeal" where the trial Court realized its mistake in calculating the age of the victim at a very late stage. The court had recorded that the victim was above 16 years of age and hence, it went on to determine her consent by way of the two-finger test.
After pronouncing the judgment of acquittal and upon hearing the accused and the prosecution at the point of sentence however, the court realized that the victim was a minor. Therefore, the determination of the victim's consent was immaterial. In such circumstances, the trial Court found itself in a helpless situation as it could not have reviewed its order of erroneous acquittal or illegal acquittal so far as the offence of rape is concerned.
The High Court thus, in a state appeal, corrected the mistake committed by the Trial Court 25 years after the order of acquittal was passed and held the accused guilty of rape. The Court has asked him to personally remain present before it on January 31, when it is likely to sentence him.
Lastly reminding the State of its obligation in view of the International Covenant on Economic, Social, and Cultural Rights 1966 and the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, apart from its statutory and constitutional obligation, the court said,

"the victim of sexual assault are entitled to legal recourse that does not traumatize them or violate their physical or mental integrity and dignity. They are also entitled to medical procedures conducted in a manner that respects their right to consent. Medical procedures should not be carried out in a manner that constitutes cruel, inhuman, or degrading treatment and health should be of paramount consideration while dealing with gender based violence. The State is under an obligation to make such services available to survivors of sexual violence. Proper measures should be taken to ensure their safety and there should be no arbitrary or unlawful interference with their privacy."
In 2013, the Supreme Court had observed in the case Lilu @ Rajesh v State of Haryana and another that the 'two-finger test' will violate the woman's right to privacy and dignity.
In December 2019, the Supreme Court again disapproved the use of this test in sexual offence cases and called for a report from state governments on a query as to whether it has been done away with.