Tuesday, September 18, 2018

Suspension Must Necessarily Be For A Short Duration: SC Upholds Revocation Of 6-Yr Long Suspension Of IPS Officer

‘This Court in Ajay Kumar Choudhary v. Union of India, (2015) 7 SCC 291 has frowned upon the practice of protracted suspension and held that suspension must necessarily be for a short duration.’
Reiterating that suspension must necessarily be for a short duration, the Supreme Court has upheld a Madras High Court judgment that had quashed the disciplinary proceedings against an Inspector General of Police in Tamil Nadu and revoked the suspension.
Pramod Kumar IPS was accused of abusing his official position as Inspector General of Police in extorting money from the directors of a financial institution who had allegedly cheated a large number of depositors to the tune of Rs 1,210 crores. As the IPS officer was arrayed as an accused in the said crime and was arrested and was detained in custody for a period exceeding 48 hours, he was suspended from service. Pursuant to this, disciplinary proceedings were initiated against him.
The officer challenged the disciplinary proceedings before the administrative tribunal, which though refused to interfere in the matter, revoked the suspension by holding that there was no material to indicate that he had tampered with the evidence or influenced the witnesses. The high court upheld the revocation of suspension and also quashed the disciplinary proceedings against him.
Before the apex court (State of Tamil Nadu vs. Pramod Kumar IPS), Senior Advocate V Giri appeared for the state and contended that the high court erred in quashing the charge memo on the ground that it was not approved by the disciplinary authority. He further submitted that the apex court judgment in Union of India vs. BV Gopinath was not correctly decided and that the approval of the disciplinary authority at the initial stage and the stage of initiation of the disciplinary proceedings is sufficient and there is no need for an approval of the charge memo by the disciplinary authority as held in the above judgment.
On the other hand, Senior Advocate P Chidambaram contended on behalf of the officer that the issue pertaining to the approval of the disciplinary authority at the stage of issuance of a charge memo is no more res integra.
In BV Gopinath, it was held that if any authority other than the disciplinary authority is permitted to draw the charge memo, the same would result in destroying the underlying protection guaranteed under Article 311 (2) of the Constitution of India.
Rejecting the senior counsel’s contentions, the bench of Justice SA Bobde and Justice L Nageswara Rao observed: “We see no reason to take a view different from the one taken by this Court in B.V.Gopinath (supra). We also see no substance in the submission made by the Senior Counsel for the State that the said judgment needs reconsideration. Assuming that Mr.Giri is right in his submission that the initiation of disciplinary proceedings and issuance of charge memo are at the same stage, the mandatory requirement of Rule 8 which provides for the charge memo to be drawn by the disciplinary authority cannot be ignored. We reject the submission on behalf of the Appellant that Gopinath’s case can be distinguished on facts. We are not in agreement with the contention of the Appellant that the business rules and standing orders of the State of Tamil Nadu are quite different from the office orders and circulars issued by Union of India which formed the basis of the judgment in Gopinath’s case. A close reading of the said judgment would disclose that reliance on the office note was only in addition to the interpretation of the Rule.”
The bench upheld the high court order quashing the charge memo, and observed that in this case mandatory requirement of Rule 8 (4) and the charge memo being drawn up or cause to be drawn up by the disciplinary authority was not complied with. However, it gave liberty to the disciplinary authority to issue a charge memo afresh after taking approval from the disciplinary authority.
On the question of suspension continuing for six years, the bench observed: “There cannot be any dispute regarding the power or jurisdiction of the State Government for continuing the first Respondent under suspension pending criminal trial. There is no doubt that the allegations made against the first Respondent are serious in nature. However, the point is whether the continued suspension of the first Respondent for a prolonged period is justified.”
The bench noted that, while releasing the officer on bail, liberty was given to the investigating agency to approach the court in case he indulged in tampering with the evidence and  no complaint has been made by the CBI in that regard. It also observed that it is only on the basis of the minutes of the review committee meeting, that the Principal Secretary, Home (SC) Department ordered extension of the period of suspension.
Upholding the high court judgment, the bench said: “This Court in Ajay Kumar Choudhary v. Union of India, (2015) 7 SCC 291 has frowned upon the practice of protracted suspension and held that suspension must necessarily be for a short duration. On the basis of the material on record, we are convinced that no useful purpose would be served by continuing the first Respondent under suspension any longer and that his reinstatement would not be a threat to a fair trial. We reiterate the observation of the High Court that the Appellant State has the liberty to appoint the first Respondent in a non sensitive post.”

Monday, September 17, 2018

SC Upholds Conviction Of Officials Who Were Caught Accepting Bribe Of Rs 800 In Year 1994

The Supreme Court recently dismissed appeals filed by officials who were accused of receiving bribe of Rs 800 from a shop owner.

The prosecution case was that the commercial tax officer inspected a grocery shop and seized the accounts book, and when the shop owner requested for return of accounts book, a bribe of Rs 2,000 was demanded.  He reiterated this demand, when the owner later approached him for the same, and this was subsequently reduced it to Rs 800, to be paid on 1st November, 1994, failing which the application for registration certificate would be rejected. Later the shop owner alerted the Vigilance and Anti-Corruption Wing, and the officer and his staff (who received money on officer’s behalf) were arrested.
The trial court convicted the accused under Sections 7 and 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988 were sentenced to undergo rigorous imprisonment for two years. The high court, on their appeal, reduced it to one year.
Before the apex court, it was contended on behalf of the accused that the officer did not receive the money and the staff did not demand the same.
The bench of Justice R Banumathi and Justice Indira Banerjee observed that there was sufficient evidence to hold that there was demand of bribe and acceptance, and refused to take a different view from that taken by the high court and the trial court.
The bench, dismissing their appeals, directed the accused to surrender to custody within eight weeks to serve the remaining sentence.

Sunday, September 16, 2018

CIC Can Order Disciplinary Action Only Against CPIO, Not The Appellate Authority, Holds Delhi HC

The Delhi High Court has held that the Central Information Commission (CIC) has no power to recommend disciplinary action against the appellate authority under the penal provisions of the RTI Act as the same can be enforced only against the Central Public Information Officer (CPIO).

A bench of Chief Justice Rajendra Menon and Justice V.K. Rao held that, “…the CPIO being custodian of the information or the documents sought for, is primarily responsible under the scheme of the RTI Act to supply the information and in case of default or dereliction on his part, the penal action is to be invoked against him only”.
In so holding, the bench upheld the order passed by a single judge on the plea moved by the Centre challenging the CIC’s order of November 12, 2014, in which disciplinary action had been recommended against the First Appellate Authority (FAA).
“The Appellate Authority is not the custodian of the information or the document. It is only a statutory authority to take a decision on an appeal with regard the tenability or otherwise of the action of the CPIO and, therefore, there is a conscious omission in making the Appellate Authority liable for a penal action under Section 20 of the RTI Act and if that be the scheme of the Act and the legislative intention, we see no error in the order passed by the learned writ Court warranting reconsideration,” said the bench headed by the Chief Justice.
The division bench was hearing an appeal moved by RTI activist R.K. Jain against the single judge order.
Jain had, in October 2013, filed an RTI application seeking notings in respect of his earlier RTI applications besides the name and designation of each of the CPIOs/deemed CPIOs and other officers who had dealt with each of his RTI applications. In addition thereto, inspection of all files, records and documents and copies of related notings was also sought.
He has also sought information with regard to the staff assigned and other information pertaining to the office of the Attorney General of India; information pertaining to opening of registers in the Administrative/Cash sections of the Departments of Legal Affairs; and information with regard to foreign and domestic tours of Ministers and officers of the rank of Joint Secretary and above.
His request was denied as the CPIO held that it was not possible to supply such a wide array of information but he was invited to carry out an inspection of the record.
Aggrieved, Jain went in to appeal before the FAA which affirmed the decision of the CPIO.
Jain then filed an appeal with the CIC which allowed the appeal and also recommended disciplinary action against the FAA.
The Centre went to the high court in appeal wherein the single judge set aside the part of CIC’s order recommending disciplinary action against the FAA.
It is to be noted here that the single judge had, however, agreed with Jain’s counsel that the RTI Act “requires a re-look, so that more teeth could be given to the CIC and the SIC with regard to their supervisory jurisdiction over the FAA. That being said the cure in that behalf does not lie with the Court. It is the legislature that needs to examine the issue as it is an aspect which squarely falls within its domain”.
Jain then went in appeal before the division bench which held that penal provisions are to be implemented or enforced only against the CPIO and not against any other authority like the senior ranking officer or the Appellate Authority who decides the appeal under Section 19(1).
Reading Sections 19 and 20 of the Act, the bench said, “From a perusal of the legislative intention and the broad architecture of the RTI Act, it is clear that under Section 20(1), the provisions have been made for imposing penalty against the CPIO and also making him liable for disciplinary action under Section 20(2)”.
“…it is clear that Section 19(1) makes a provision for filing of an appeal if a person is aggrieved by a decision or inaction of the CPIO. The Appellate Authority in Sub-Section (1) of Section 19 is classified as an officer senior in rank to the CPIO meaning thereby that under the scheme of RTI Act, the CPIO is a different authority or officer different from an Appellate Authority to whom an appeal lies under Sub-Section (1) of Section 19. If the legislative intent, as can be made out on a combined reading of various provisions are taken note of, it would be seen that the legislature only proposes for taking action against CPIO, and not against any other authority like the Appellate Authority or officer to whom the appeal lies,” it said.
On Jain’s argument, the bench said, “If the argument canvassed by the petitioner was to be accepted then by that interpretation, we would be expanding the meaning of a CPIO and we would be adding something more into the definition of CPIO than the one as was conceived by the legislature. This is not permissible under law and when the CPIO is only indicated to be officer against whom penal action can be taken under Section 20, we cannot read into the said statutory provision anything more by supplying words or meaning which would enlarge the scope of the penal provisions under Section 20.”

Saturday, September 15, 2018

HC relief to 1st dealers seeking CENVAT credit

Gujarat high court has struck down provisions in the Goods and Service Tax Act under which first stage dealers were denied credit of CENVAT on stock of goods purchased a year before GST regime came into effect. The HC observed that the government can’t deny the right of credit to first stage dealers with retrospective effect. 

Gujarat HC on Friday struck down provisions in the Goods and Services Tax (GST) Act under which first stage dealers were denied central value-added tax (Cenvat) credit on the stock of goods purchased a year before GST regime came into effect. The HC has observed that the government cannot deny the right of credit to first stage dealers with retrospective effect andtheCentrehas not given any justification for limiting the rights. Acting on a petition filed by an industrial goods dealer, Filco Trade Centre Pvt Ltd, a bench of Justice Akil Kureshi and Justice B N Karia has held Clause (iv) of Sub-section 3 of Section 140 of GST Act as unconstitutional and junked it. The court said: “...no just reasonable or plausible reason is shown for making such a retrospective provision taking away the vested rights.” The petitioner firm had submitted before the HC that it has stock of industrial goods which are normally sold over a long period of time. The stock was purchased long ago, but the introduction of GST made it impossible for the company to claim input credit, which was earlier available under central value-added tax (VAT). This was mainly due to the one-year time limit put under the transitional law. Accordingly, a first stage dealer cannot claim input credit on excise on any goods with invoice before July 1, 2016 as GST came into effect on July 1, 2017. The Centre defended the time limit for claiming Cenvat credit by stating that it is a concession granted to the assessee and is always made subject to conditions imposed by the legislature. The parliament is competent to impose conditions and the company had no vested right to claim the benefit, it added. The HC rejectedtheCentre’s argument and said the provision of credit exists in the new law also, just like it existed in old legislation. But if the goods were purchased prior to a year of introduction to GST, the credit would be lost to the first stage dealer. This condition has the retrospective operation and takes away an existing right. The court further said: “Had the statutory provision given a time limit from the appointed day for utilization of such credit, the issue would stand on an entirely different footing. Such a provision could be seen as a sunset clause permitting the dealers to manage their affairs for which reasonable time frame is provided.The present condition however without any basis limits the scope of a dealer to enjoy existing tax credits in relation to purchases made prior to one year from the appointed day. No such restriction existed in the prior regime.”

SC awards ₹50L to scientist framed in false Isro spy case

Nearly 24 years after scientist Nambi Narayanan was framed and arrested in the so-called Isro spy case, the Supreme Court created history on Friday by invoking constitutional powers to direct the Kerala government to pay Rs 50 lakh compensation to him for “blatant violation” of his right to life. The SC held that Narayanan’s right to life was infringed on by wrongful arrest and torture and ruled that the compensation is paid in eight weeks. Narayanan was arrested in 1994 for allegedly leaking defence secrets relating to an Isro project to two Maldivian women — Mariam Rasheeda and Fauzia Hassan. Along with another scientist, D Sasikumaran, he was accused of selling secrets. Though the concept of compensating a “wrongly arrested” person is absent in the Indian criminal justice system, a bench of CJI Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud not only ordered the Kerala government to pay the hefty compensation but permitted Narayanan to proceed with his civil suit seeking more damages from the state government.

Sec.498A IPC : Only HC Can Quash Cases On Settlement

Sec.498A IPC : Only HC Can Quash Cases On Settlement; A Third Agency Created By Courts Can’t Exercise Statutory Functions: SC 

The directions issued by a two-judges bench in Rajesh Sharma v. State of UP to regulate the purported misuse of Section 498A IPC were modified by a three-judges bench of SC today.
In Rajesh Sharma, it was held that Family Welfare Committees should be constituted at every districts by District Legal Services Authority. The complaints of domestic violence under Section 498A IPC were directed to be vetted by the Committee first. It was also held that  the police can carry out investigation and arrest only on the basis of report by the Committee.
These directions issued by the bench of Justice A K Goel and Justice U U Lalit in clause 19(i) of the Rajesh Sharma were wholly struck down by the three judges bench of Chief Justice Dipak Misra, Justice A M Khanwilkar and Justice D Y Chandrachud. The Court held that Family Welfare Committee was an extra-judicial authority, which cannot exercise powers and functions of police and court. The Court expressed that the directions were contrary to the scheme of Code of Criminal Procedure, and held that they had the  “potential to enter into the legislative field”. Hence, it was held that “the direction contained in paragraph 19(i) as a whole is not in accord with the statutory framework”
“The core issue is whether the Court in Rajesh Sharma (supra) could, by the method of interpretation, have issued such directions. On a perusal of the directions, we find that the Court has directed constitution of the Family Welfare Committees by the District Legal Services Authorities and prescribed the duties of the Committees. The prescription of duties of the Committees and further action therefor, as we find, are beyond the Code and the same does not really flow from any provision of the Code”, held the Court.
It was added that there were enough statutory provisions and judgments in place to check abuse of the provision.“…there are statutory provisions and judgments in the field and, therefore, the directions pertaining to constitution of a Committee and conferment of power on the said Committee is erroneous”
Only HC Can Quash FIR/Complaint On Settlement.
Another direction in the Rajesh Sharma enabled District/Sessions Judge to quash FIR/Complaint on settlement between the parties. The District/Sessions Judge was also enabled to nominate any other senior judicial officer to pass orders of quashing. This direction in clause 19(iii) of Rajesh Sharma read as follows :
In cases where a settlement is reached, it will be open to the District and Sessions Judge or any other senior Judicial Officer nominated by him in the district to dispose of the proceedings including closing of the criminal case if dispute primarily relates to matrimonial discord.
This did not find favour with the three-judges bench. It was held that Section 498A IPC was a non-compoundable offence. Therefore, only High Courts had the power to quash the case on the basis of mutual settlement, as held in Gian Singh case
“The directions to settle a case after it is registered is not a correct expression of law. A criminal proceeding which is not compundable can be quashed by the High Court under Section 482 CrPC. When settlement takes place, then both the parties can file a petition under Section 482 CrPC and the High Court, considering the bonafide of the petition, may quash the same. The power rests with the High Court.”
Other Directions Not Disturbed.
At the same time, it is significant to note that the other directions in Rajesh Sharma were left undisturbed by the three judges bench. The Court approved the direction in Rajesh Sharma that red corner notices and impounding of passports in cases of accused staying abroad should not be done in a routine manner. The Court also agreed that recovery of disputed dowry items may not by itself be a ground while rejecting an application for grant of bail under Section 498-A IPC. Therefore, directions in clauses 19(iv) and 19(v) were endorsed.
As regards direction in clause 19(vii) which held that personal appearance of the accused should not be insisted and that video conferencing should be resorted to, the Court held that appropriate applications seeking exemption from personal appearance, either under Section 205 CrPC or Section 317 CrPC ,depending upon the stage of case, should be filed.
Police To Be Sensitised.
The Court noted that the police has to act as per the provisions of Section 41 Cr.P.C, and also the judgements of the Supreme Court in Arnesh Kumar Lalita KumariD K Basu and Joginder Kumar cases before making arrests for offences under Section 498A IPC.
In Arnesh Kumar, the Court had held that arrest for offence under Section 498A IPC has to be made only in exceptional circumstances, that too after recording special reasons in writing in accordance with Section 41(1)(b) CrPC.  In Lalita Kumari, a Constitution Bench held that Police has to carry out preliminary enquiry before registration of FIR in respect of matrimonial disputes. Joginder Kumar exhorted that police should not carry out arbitrary arrests and D K Basue laid down procedural guidelines to be followed by police while arresting.
“we think it appropriate to direct that the investigating officers be careful and be guided by the principles stated in Joginder Kumar (supra), D.K. Basu (supra), Lalita Kumari (supra) and Arnesh Kumar (supra). It will also be appropriate to direct the Director General of Police of each State to ensure that investigating officers who are in charge of investigation of cases of offences under Section 498-A IPC should be imparted rigorous training with regard to the principles stated by this Court relating to arrest. ” 
Genesis Of The Case.
The judgment of the three-judges bench came in a writ petition filed in 2015 by an NGO , Social Action for Manav Adhikar, seeking to create a uniform system of monitoring and  reviewing incidents of violence against women under Section 498-A IPC  and rehabilitation of the victimsand their children at the Central, State and District levels. That apart, it also sought for directions  to immediately register FIR on complaint of cruelty and harassment by married women as per the IPC.
During the pendency of the petition, the directions in Rajesh Sharma came to be passed on July 27, 2017. After that, another PIL was filed in SC, seeking a direction that two out of three members of the Family Welfare Committees directed to be constituted as per Rajesh Sharma should be women. When the PIL was mentioned before the bench of Chief Justice on October 13,2017, the bench expressed prima facie disapproval of Rajesh Sharma directions.  The bench then observed :
At this stage, we are obligated to state that we are not in agreement with the decision rendered in Rajesh Sharma (supra) because we are disposed to think that it really curtails the rights of the women who are harassed under Section 498A of the Indian Penal Code. That apart, prima facie, we perceive that the guidelines may be in the legislative sphere.
The Court appointed Indu Malhotra, then Senior Advocate and now Supreme Court judge, and V Shekhar, Senior Advocate, as amicus curiae to assist the matter, and proceeded to re-consider the directions.
Both the amicus opined that the Court went overboard by issuing directions in Rajesh Sharma
Full Judgment

Mumbai Int’l Airport Is Built Challenge The 55-Yr-Old Acquisition; Bombay HC Imposes Cost

Original Owners Of Land Where Mumbai Int’l Airport Is Built Challenge The 55-Yr-Old Acquisition; Bombay HC Imposes Cost 

The Bombay High Court recently dismissed a writ petition filed by original owners of lands acquired for the purpose of building the Chhatrapati Shivaji Maharaj International Airport and imposed a cost of Rs 10,000 on them for challenging the said acquisition on untenable grounds.
A division bench of Justice AA Sayed and Justice SC Gupte was hearing the petition challenging the said acquisition that took place under the Requisitioning and Acquisition of Immovable Property Act, 1952. While the acquisition took place in 1953, it was challenged only in 2015.
Petitioner’s advocate Zal Andhyarujina submitted that following the acquisition, the international airport was constructed and was being operated under the Airport Authority of India till 2006.  However, by an agreement dated April 4, 2006, titled as Operation, Management and Development Agreement (OMDA), between the Airport Authority of India (AAI) and Mumbai International Airport Pvt. Ltd., the AAI gave Mumbai International Airport exclusive right and authority during the term of OMDA to undertake some of the functions of the Airport Authority of India concerning operation, maintenance, development, upgrade, etc., of the international airport and perform services and activities constituting aeronautical services and non­aeronautical services at the airport.
Mumbai International Airport is a company established through the equity of AAI and other private promoters.
According to the petitioners, the development of the international airport in terms of OMDA is complete and a large part of the land originally acquired has been lying unutilised. It was further submitted by Andhyarujina that interested parties have been invited to submit applications for participation in a competitive bidding process for five land parcels forming part of the land of Terminal 2 of the international airport for commercial exploitation.
Thus, it was argued that these lands, originally acquired for the public purpose of an airport, are being diverted to a purely private commercial user. The petitioners contended that this diversion amounts to an act of fraud and since the land is no longer to be used for a public purpose, it must be reverted to the original owners, i.e., the petitioners.
After going through all the contentions, the court referred to the Supreme Court’s decision in Northern Indian Glass Industries vs. Jaswant Singh, and noted how the apex court had explained the Land Acquisition Act by quoting from its decision in Gulam Mustafa vs. State of Maharashtra in 1976.
The court then said:
“There is no provision of law, which enables the owner of a land, which is acquired by the State for a public purpose under the Act, to reclaim the same at any time in future on the ground of its subsequent change of user or on the ground that the original public purpose, for which it was acquired, is no longer valid or relevant. If the land vests in the State upon notice under Section 7, the State cannot be divested of its title for non-user of the land for the purpose for which it is required.  Even if the land is not used for such purpose, the landowner does not get any right to ask for re-vesting of the land in him and to ask for restitution of the possession.”
The bench further noted that if any land originally acquired for a public purpose is subsequently fraudulently diverted for a private purpose, then it may be open to any public-spirited individual to approach the high court in its writ jurisdiction by filing public interest litigation.
“But that is not how the petitioners have approached this court. The Petitioners are not guided by any public spirit,” the court said.
Thus, the court decided that since the challenge to the said acquisition was on untenable grounds and that, too, after so many years, the petitioners must be saddled with costs. But after petitioner’s counsel sought some leniency, the court imposed a cost of Rs 10,000 only to be paid to the Union of India.

Friday, September 14, 2018

Supreme Court Issues New Guidelines To Prevent Misuse Of S.498A IPC

SC Modifies The Earlier Directions Issued To Prevent Misuse Of 498A IPC, Says No To ‘Welfare Committees’ 

Supreme Court of India has modified its directions issued in  Rajesh Sharma case for preventing misuse of Section 498A of Indian Penal Code.
A three judges’ bench led by CJI has withdrawn the earlier direction issued by a two judges bench that complaints under Section 498A IPC should be scrutinised by Family Welfare Committees before further legal action by police.
Though the bench acknowledged that there was a misuse of the provision leading to social unrest, it said that Court cannot fill in legislative gaps.
The Court observed that there were inbuilt mechanisms in criminal procedure to check misuse of provisions.
“We have protected pre-arrest or anticipatory bail provision in dowry harassment cases,there is no scope for courts for constitutionally filling up gap in penal law”.
The Bench was delivering the Judgment in petitions seeking reconsideration of the directions to check abuse of Section 498A of the IPC laid down in the 2017 apex court judgment in Rajesh Sharma v. UOI.
The Bench of Supreme Court bench of Chief Justice Dipak Misra, Justice D. Y. Chandrachud and Justice A. M. Khanwilkar reserved the Judgment on April 23.
Directions in Rajesh Sharma’s Case
i) (a) In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities preferably comprising of three members. The constitution and working of such committees may be reviewed from time to time and at least once in a year by the District and Sessions Judge of the district who is also the Chairman of the District Legal Services Authority.
 (b) The Committees may be constituted out of para legal volunteers/social workers/retired persons/wives of working officers/other citizens who may be found suitable and willing. 16
(c) The Committee members will not be called as witnesses.
(d) Every complaint under Section 498A received by the police or the Magistrate be referred to and looked into by such committee. Such committee may have interaction with the parties personally or by means of telephone or any other mode of communication including electronic communication.
(e) Report of such committee be given to the Authority by whom the complaint is referred to it latest within one month from the date of receipt of complaint.
(f) The committee may give its brief report about the factual aspects and its opinion in the matter.
(g) Till report of the committee is received, no arrest should normally be effected. 
(h) The report may be then considered by the Investigating Officer or the Magistrate on its own merit.
(i) Members of the committee may be given such basic minimum training as may be considered necessary by the Legal Services Authority from time to time.
(j) The Members of the committee may be given such honorarium as may be considered viable.
(k) It will be open to the District and Sessions Judge to utilize the cost fund wherever considered necessary and proper.
ii) Complaints under Section 498A and other connected offences may be investigated only by a designated Investigating Officer of the area. Such designations may be made within one month from today. Such designated officer may be required to undergo training for such duration (not less than one week) as may be considered appropriate. The training may be completed within four months from today;
iii) In cases where a settlement is reached, it will be open to the District and Sessions Judge or any other senior Judicial Officer nominated by him in the district to dispose of the proceedings including closing of the criminal case if dispute primarily relates to matrimonial discord;
iv) If a bail application is filed with at least one clear day’s notice to the Public Prosecutor/complainant, the same may be decided as far as possible on the same day. Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected. Needless to say that in dealing with bail matters, individual roles, prima facie truth of the allegations, requirement of further arrest/ custody and interest of justice must be carefully weighed;
v) In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine;
vi) It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases between the parties arising out of matrimonial disputes so that a holistic view is taken by the Court to whom all such cases are entrusted; and
vii) Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption from personal appearance or permit appearance by video conferencing without adversely affecting progress of the trial.
viii) These directions will not apply to the offences involving tangible physical injuries or death.
Remarking that the directions govern the procedural aspects of the registration of a complaint by the police or the Magistrate under Section 498A, the Chief Justice envisaged a reading of the Statement of Objects and Reasons of the Criminal Law (Second Amendment) Act of 1983 inserting the said provision in the IPC, a consideration of earlier views of the various High Courts and of the Supreme Court, and a deliberation on whether a Family Welfare committee as directed by the bench of Justice Adarsh Kumar Goel and Justice UU Lalit in Rajesh Sharmashould be constituted to look into any complaint before arrest is effected.
Senior counsel Indu Malhotra, having been appointed amicus curiae in a related petition by NGO Nyayadhar, submitted, “The judgment (in Rajesh Sharma) has been in operation since July, 2017 and no complaints under Section 498A has been registered since then”.
It may be noted that hearing the petition on behalf of the said NGO, Chief Justice Misra had, on October 13, 2017, in context of the Rajesh Sharma judgments, remarked, “We are not in agreement with the judgment passed in the case. We can’t write the law. We can only interpret the law”.
Senior counsel Indira Jaising drew the attention of the bench to an order of Justice Goel and Justice Rohinton Nariman delivered on Thursday requiring the placing of the Rajesh Sharma judgment before the Chief Justice for reconsideration. She submitted that on account of the Supreme Court website having been hacked, it has not been possible to access the order. When the Chief Justice remarked that the same was an administrative order, Jaising advanced that it was a judicial order.
It was also contended on Friday that the 2017 judgment has necessitated prima facie truth of the allegations to be made out before arrest or other coercive action is effected and consequently, women are being harassed.

Full Judgment

Thursday, September 13, 2018

‘The Day Is Not Far Off When Every Judgment Can Be ‘Annulled’ By Governments’: SC (Read Judgment)

It is nothing but an attempt to nullify the judgment which the legislature cannot do, as we have a well-defined field of separation of powers of the judiciary, legislature and the executive.’
While setting aside Kerala Professional Colleges (Regularization of Admission in Medical Colleges) Ordinance 2017, the Supreme Court made scathing observations about the Kerala Government’s blatant attempt to nullify the judgment of the High court and the Supreme Court.
In case such a power of covering up illegal action is given to the State Government in individual cases of two colleges, the day is not far off when every judgment can be annulled, remarked Justice Arun Mishra observing that the State Government has exceeded its powers and has entrenched upon the field reserved for the judiciary.
The Judgments
Admission Supervisory Committee of the professional colleges found that admission of 180 students in the Kannur Medical College and Karuna Medical College were illegal. The decision was upheld by the High Court of Kerala. The Apex court, upholding the High court order, had further directed that the 30 students who were found eligible but were deprived of the admissions in Karuna Medical College, shall be adjusted in the next academic session i.e. 2017-18 and the corresponding number of seats shall be reduced for the said session for admissions.
The Ordinance
Pursuant to this judgment, the State promulgated Ordinance for regularizing the admission of 180 students who were illegally admitted in the Kannur Medical College and Karuna Medical College run by Prestige Educational Trust and Safe Development Alms Trust respectively.
The Challenge
Medical Council of India then challenged the validity of the ordinance before the Supreme Court contending that it was brought in to nullify judgments and orders of the Apex Court and encroaches upon the power of the judiciary.
State Cannot Sit Over The Judgment
In a 51 page judgment, the bench comprising of Justice Arun Mishra and Justice Indira Banerjee observed that effort has been made by the state to cover up the arbitrariness and illegality in an illegal and impermissible manner.
 “The provision of any existing law framed by legislation has not been changed by the State Government by the impugned Ordinance but illegalities found in the admissions were sought to be got rid of. What was laid down in the judgment for ensuring the fair procedure which was required to be followed was sought to be undone, it was nothing but the wholly impermissible act of the State Government of sitting over the judgment and it could not have promulgated the Ordinance setting at naught the effect of the judgment.”, the bench said.
The SC Order Was On Merits
The bench also rejected the submission made on behalf of the state that the Supreme Court order was not on merits. It said: “The SLPs. against the order passed by the High Court were also dismissed and this Court had directed that 30 students be admitted in the next session. Independent directions were issued which were not ordered by the High Court. This Court directed that they are to be admitted to the academic session 2017¬18. Thus, it does not lie in the mouth of the respondents to contend at all that it was not a decision on merits by this Court. Submission is startling and in the negation of stupendous effort made and time given by this Court while hearing the matters before deciding them by the aforesaid order.”
Implications Of Speaking Order Dismissing SLPs
The court also explained the implications of a speaking order refusing to grant leave to appeal giving reasons for refusing the grant of leave. The bench said: Firstly the statement of law contained in the order is a declaration of law by this Court within the meaning of 46 Article 141 of the Constitution; secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by this Court which would bind the parties thereto and also the court, tribunal or authority.
The Court further said: “It is apparent from the order passed by this Court as well as by the High Court of Kerala that receiving online applications was mandatory and it was laid down in the judgment for ensuring the fair process of admissions, transparency as well as identities of the applicants. The condition was the outcome of the judgment on the power of judicial review passed by the Kerala High Court and affirmed by this Court also. Thus, the very same judgment is sought to be nullified by the impugned Ordinance by making a provision to the contrary. Admissions as per the Ordinance are to be regularised dehors the mode of submitting the applications. It is not removing the defect in any existing law. The Ordinance has clearly annulled a judgment of Court which was laid down in order to ensure fair procedure.”
Other observations
The judgment also refers to various decisions and makes the following observations on the issue of bringing in legislations related to a judgment rendered by Constitutional courts. The bench observed:
  • The rule of law would be meaningless as it would be open to the State Government to defy the law and yet get away with it.
  • The legislature can make a law retrospectively which may alter the law as it stood when a decision was arrived at. It is in this limited sphere, the legislature may alter the very basis of an earlier decision given by the court. It cannot directly annul that final judgment by a subsequent legislation. If its purpose is to annul a final judgment, such act of legislature must be declared to be unconstitutional.
  • The legislature has the power to legislate including the power to retrospectively amend the laws and thereby removing causes of ineffectiveness or invalidity. Further, when such correction is made, the purpose behind the same is not to overrule the decision of the court or encroach upon the judicial turf, but simply enact a fresh law with retrospective effect to alter the foundation and meaning of the legislation and to remove the base on which the judgment is founded.
  • Judicial pronouncement, either declaratory or conferring rights on the citizens cannot be set at naught by a subsequent legislative act. However, the legislature shall be competent to pass an amending or a validating Act, if deemed fit, with retrospective effect removing the basis of the decision of the Court by amending the law.
  • It is open to the Legislature within certain limits to amend the provisions of an Act retrospectively and to declare what the law shall be deemed to have been, but it is not open to the legislature to say that the interpretation of the law shall be otherwise than as declared by the Court.

Wednesday, September 12, 2018

MACT awards ₹57L to kin of accident victim

A Motor Accident Claims Tribunal (MACT) has awarded over Rs 57 lakh to the kin of a 44-year-old man who was killed in a road accident in 2016. MACT presiding officer Paramjit Singh asked Shriram General Insurance Company Limited to pay Rs 57,27,000, at an interest rate of 9 per cent annually, to the family of Neeraj Sharma. PTI

SC puts under lens penalty for Sidhu

Four months after the Supreme Court let off ex-cricketer Navjot Singh Sidhu with a paltry Rs 1,000 fine in a 30-year-old case in which a person died, another SC bench on 11 September agreed to reexamine the quantum of punishment to the Punjab Congress MLA. 
Allowing a plea for reconsideration of the judgment that altered Sidhu’s conviction to Section 323 of the IPC from the stringent Section 304-II, as was recorded by the Punjab and Haryana HC, a bench of Justices A M Khanwilkar and Sanjay Kishan Kaul said it would only reconsider the sufficiency of punishment given to him. In its May 15 verdict, a bench of Justices J Chelameswar and Kaul had said Sidhu could not be held responsible for causing the death of one Gurnam Singh, who died after allegedly being given fist blows by the Punjab legislator. PTI

Uttarakhand high court orders ₹ 2 cr relief to slain doctor’s widow

The Uttarakhand high court on 11 September directed the state to pay compensation of Rs 1.99 crore, along with interest of 7.5% per annum from the date of filing of the petition in 2017, to the widow of Dr Sunil Kumar, who was shot dead while on duty at the community health centre in Udham Singh Nagar on April 20, 2016. In May 2016, the then CS had proposed to the CM to grant benefits to the doctor’s family, including compensation of Rs 50 lakh as well as appointing his elder son to the post of lecturer in any polytechnic in Dehradun on a permanent basis, and government accommodation for the family for a period of five years. 

However, the widow was paid Rs 1lakh and her son was given “compassionate appointment” as a lecturer in computer science department of State Polytechnic, Dehradun, on a contract basis. The Uttarakhand HC also awarded “extraordinary pension” to petitioner Sarita Singh as per the provisions of the UP Civil Services (Extraordinary Pension) (First Amendment) Rules, 1981, as adopted by Uttarakhand, within 10 weeks, along with arrears at the rate of 8.5% interest per annum

SC orders auction of 16 Amrapali assets

With controversy-hit real estate firm Amrapali Group failing to raise funds for unfinished housing projects, the Supreme Court on 11 September selected 16 of its properties for auction, which is expected to fetch a little over Rs 1,300 crore. 

The SC set the ball rolling for the auction of Amrapali assets after the company could not show funds to complete projects in which 46,575 homebuyers have invested money and entrusted the task of selling the properties to the debt recovery tribunal. In the first round, 16 properties will go under the hammer and the funds raised will be handed over to the National Buildings Construction Corporation for completing unfinished projects in Delhi NCR, Bhubaneswar, Jaipur, Sikkim, Udaipur, and Raipur. 

The bench of Justices Arun Mishra and U U Lalit directed Amrapali Group to appear before DRT on September 25 and furnish all documents of the properties to enable the tribunal to auction the assets. The court also directed the transfer of Rs 25 lakh to DRT from the bank account of the company to meet the expenses for selling the properties. The bench said homebuyers could also be asked to clear their dues and pay before the court in order to raise the money but didn’t pass an order after advocate M L Lahoty vehemently contended that distressed buyers should be asked to pay only as a last option.

Man gets death for rape, murder of minor girl

A court in Modasa sentenced a 24-year-old man to death for raping an eight-year-old girl and killing her by throwing her into a well in 2014. On October 30, 2014, the girl was playing with her siblings outside her house in Limboi village when Dinesh alias Kala Vasava lured her with Rs five and offered to buy her something from a paan kiosk. He then took the girl to a field and sexually assaulted her. 

Vasava then picked up the girl and threw her into a well in the field. The girl's body was recovered the next day and her father lodged a complaint against Vasava after other children told him that the latter had taken away the girl. Police arrested Vasava the same day, said DS Patel, additional public prosecutor, Aravalli. Additional sessions judge A K Rao awarded capital punishment to Vasava terming it as a .rarest of rare case.

HC: Palanpur drug planting a ‘deep rooted conspiracy’

The Gujarat high court termed the alleged planting of opium in a Palanpur hotel to frame a Rajasthan-based lawyer and thus force him to vacate a shop in Pali a “deep-rooted conspiracy”. While granting 10-day remand of former IPS officer Sanjiv Bhatt and the then Palanpur police inspector I B Vyas in the 22-year-old narcotics case, the HC made certain observations which may prove to be a setback for the accused police officials. 

Justice R P Dholaria said in his order , “On overall consideration of the matter, this court is subjectively satisfied that the incident of planting opium at Lajvant Hotel in Palanpur is a deep-rooted conspiracy wherein clear involvement of the respondents and others is clearly emerging and therefore for unearthing deep-rooted conspiracy, a special team came to be constituted by the order of this court at the behest of the respondents themselves.” The advocates representing Bhatt and Vyas were opposing the demand for custodial interrogation on the grounds that the case in Palanpur is no different to the one registered in Pali by advocate Sumersingh Rajpurohit, who was arrested in a drug peddling case in 1996. 

They argued that multiple investigations are not permitted for one offence. However, the HC discarded the argument and observed, “This court is subjectively satisfied that this case is totally distinct and separate, and a separate crime has been registered and the complainant himself has been turned out to be the accused in the present case registered at Palanpur police station.” Bhatt and Vyas were arrested last week by CID (crime) on a high court order for further investigation in the two-decade-old FIR, which was filed by Vyas. It was Vyas along with then sitting HC judge R R Jain who had demanded an investigation by the CBI in this case.

Maulvi’s 3rd wife alleges sodomy, HC denies anticipatory bail

The Gujarat high court has denied pre-arrest bail to a maulvi from South Gujarat who is accused of sodomizing his third wife. Justice A Y Kogje refused bail to the 40-year-old man, a resident of Mandvi town in Surat district, “The court is convinced that prima facie, the allegations (levelled by his wife) attract the ingredients of the offence (section 377 of IPC) and hence discretion cannot be exercised in the favour of the applicant.” 

The Maulvi had married his 25-year-old neighbor last year. The woman’s parents were against their marriage because two previous marriages of the maulvi were already in subsistence. A few months after marriage, the woman complained to her parents about her husband forcing her into unnatural sex and being cruel to her. The woman approached Mandvi police station in April and accused her husband of cruelty, unnatural sex, assault, and demanding dowry. She said that her husband has three wives and he keeps them at different places. Cops registered an FIR against the man in May and booked him under sections 498A, 377, and 323 of the IPC and the Dowry Prohibition Act. 

The Maulvi approached Bardoli court for anticipatory bail, but he did not get any relief. He approached the HC in July. His advocate argued that it was only a case of offence under section 498A of the IPC. He said that to give it a serious colour, the woman had levelled charges of unnatural sex. He also submitted, “If such reckless allegations are considered by courts, no husband is safe”. It was also contended that the woman’s father insisted on divorce and the invocation of section 377 only as a pressure tactic. It was also argued that there was no medical evidence available to prove that allegations are correct. The maulvi had married his 25-year-old neighbour last year. The woman’s parents were against the marriage as he already had two wives

Tuesday, September 11, 2018

SC orders razing of tony enclave in Aravali range

SC orders razing of tony enclave in Aravali range
In a big jolt to prominent politicians, former babas, defence personnel and judges who purchased residential plots in Kant Enclave, situated in the protected zone of Aravali range in Faridabad, the Supreme Court on Tuesday ordered demolition of all buildings constructed after 1992 in the residential complex. 
In a big jolt to several prominent politicians, former bureaucrats, defence personnel and judges who purchased residential plots in Kant Enclave, situated in the protected zone of Aravali range in Faridabad, the Supreme Court on Tuesday ordered demolition of all buildings constructed after 1992. Spread over a sprawling 425 acres with over 1,650 residential plots and open space of 153 acres in the form of green belts, parks and roads, Kant Enclave is a sought-after address with luminaries like former CJI A M Ahmadi and others residing in the area. Only 6km from the Delhi border and near Badkal and Surajkund lakes with the Aravali hills as a backdrop, the enclave is refuge from the capital’s heat and dust. The court set a deadline of December-end to clear the land by demolishing all structures. It also imposed a fine of Rs 5 crore on the company which claimed to have invested Rs 50 crore in developing the area. The fine amount is to be deposited within a month in the Aravali Rehabilitation Fund. The area was developed by R Kant & Co after the Haryana government granted exemption in 1984 for the construction of a film studio and residential complex.

Mid-term transfer of babu illegal: BOMBAY HC

The Bombay high court on Tuesday said the mid -term transfer of a sub-divisional officer from Bhiwandi as deputy collector (Mumbai suburban) by state revenue minister Chandrakant Patil was prima facie illegal. A bench of Justices Abhay Oka and Mahesh Sonak heard a petition by Santosh Thite challenging the Maharashtra Administrative Tribunal’s (MAT) August 7, 2018 order dismissing his petition to quash and set aside his transfer.
Thite was appointed sub-divisional officer, Bhiwandi, Thane district, on November 11, 2015. On June 7, 2018, even before completing his three-year tenure, he was transferred and replaced with Mohan Naladkar. Thite had replaced Archana Kadam. Before MAT, the government said the work of the Nagpur-Mumbai Samruddhi Expressway was to be given priority, and hence Naladkar was appointed in Thite’s place. 
It also stated that Patil, in pursuance of the powers conferred upon him, effected certain modifications in the proposal prepared by the Civil Services Board. The judges said perusal of MAT’s order prima facie indicated that it proceeded on the assumption that the chief minister had approved the transfer in accordance with the Maharashtra Government Servants Regulation of Transfers Act. Thite’s advocate Uday Warunjikar said “his transfer is at the behest of a political personality without any authority of law.”
The judges said the minister was not the competent authority, and no reasons had been recorded as mandated by the Act. “There is also no specific prior approval. Thus, it appears to us the order is prima facie illegal. Perhaps the tribunal did not notice no reasons are recorded by the competent authority and there is no signature of transferring authority,” said the bench. It issued notices to Naladkar and Kadam, seeking replies on October 8. Since Thite took charge on August 30, the bench said it is not granting any relief. Before dictating the order, the judges gave the government the option to withdraw the transfer order. “We are concerned with the decision­making authority and nothing else. If this is the way implementation of the Act is done!” Justice Oka lamented. He also said, “If we find the order (of transfer) is wrong, we can always have it set aside.”

Monday, September 10, 2018

Delhi HC rejects Rahul, Sonia Gandhi's plea against tax reassessments

In a setback to Congress president 
Rahul Gandhi
 and his mother 
Sonia Gandhi
, the Delhi high court on Monday justified re-opening of their tax assessments for 2011-12 relating to Associated Journals Ltd, the publisher of 
National Herald

Dismissing their petitions challenging the move, a bench of Justices S Ravindra Bhat and AK Chawla said the Gandhis and Congress leader Oscar Fernandes had "the primary obligation to disclose the acquisition of shares" in Young Indian (YI). The rejection of the pleas of the Congress leaders will pave the way for the I-T department to scrutinise records for assessment year 2011-12.

The I-T's demand for reopening of tax returns of senior Congress leaders, including Motilal Vora, is based on its previous assessment order, passed on YI in December 2017, where it has accused them of having "devised the scheme involving pre-ordinate artificial and fraudulent steps to take over AJL". The tax demand was imposed on YI after the department cancelled the tax exemption of the company - which had shown nil income for 2010-11 - as it had been found engaged in activities which were noncharitable in nature, according to the order.