Wednesday, July 17, 2019

SC Order In Karnataka MLAs Case

In the name of maintaining 'constitutional balance', the Court passed an order nullifying the effect of Clause 2(b) of Schedule 10 of the Constitution.

The Supreme Court walked a tight rope to maintain 'constitutional balance' in the Karnataka MLAs' case.
The rebel MLAs wanted their resignations to be accepted fast by the Speaker and pleaded that they should not be forced to attend the House.
The Speaker said that MLAs have already incurred disqualification under Tenth Schedule of the Constitution and urged that the Court cannot direct the Speaker to take decisions within a time frame.
The MLAs raised the concern that decision on resignation is being delayed so as to force them to support the incumbent government in the trust vote, lest they will face disqualification for violating the party whip.
The matter witnessed a marathon hearing, with arguments based on Articles 190, 212 and Tenth Schedule of the Constitution.
On Wednesday(July 17), the bench of CJI Ranjan Gogoi, Justices Deepak Gupta and Aniruddha Bose   Passed an interim   Order giving Speaker as much time as he required to decide on resignations, and permitting the MLAs to stay out of the House proceedings, if they choose to do so, until further orders.
"We also make it clear that until further orders, the 15 members of Assembly ought not to be compelled to participate in the proceedings of the ongoing session of the House and an option should be given to them that they can take part in the said proceedings or to opt to remain out of the same", ordered the Court.
This was passed after the Court observed that "The imperative necessity, at this stage, is to maintain the constitutional balance and the conflicting and competing rights that have been canvassed before us".
The seemingly innocuous portion of the order which says that the MLAs cannot be compelled to attend the house proceedings has potential for a lot of repercussions, especially in view of the trust vote of the Congress-JD(S) government scheduled to take place tomorrow.
It is relevant to note that the Court was conscious of the trust vote tomorrow, as this fact is specifically recorded in the order.

"Such an interim exercise has been prudent in view of certain time frame exercises(s) that is in the offing in the Karnataka Legislative Assembly, particularly, the non-trust motion against the present Government, which we are told is due for being taken up on 18th July, 2019", the bench observed in this regard.
The liberty given by the apex court to dissident legislators will in effect enable them to defy any party whip issued to them to attend the trust vote tomorrow, and thereby to ward off any consequences of disqualification.
As per Clause 2(b) of Schedule 10 of the Constitution, abstaining from voting in House contrary to any direction issued by the political party to which the legislator belongs to will cause disqualification on the ground of defection.
Schedule X of Constitution

2. Disqualification on ground of defection.—(1) Subject to the provisions of paragraphs 4 and 5, a member of a House belonging to any political party shall be disqualified for being a member of the House—
(a) if he has voluntarily given up his membership of such political party; or
(b) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention
The Supreme Court's order has empowered the legislators to act against Clause 2(b) of Schedule 10. In other words, the order has extinguished the impact of Clause 2(b) of Schedule 10 of the Constitution in this case, depriving the political parties of the power to issue party whips to their members to attend the trust vote session.
Acceptance of resignation a matter of Speaker's discretion.
If one examines the constitutional scheme, it becomes clear that acceptance of resignation by the Speaker is not a matter of right of a legislator. It is the Speaker's discretion.
This is clear from proviso to Article 190(3(b) of the Constitution, which says that the Speaker shall not accept the resignation if he is satisfied that it was not voluntary or genuine.
Article 190(3)
(3) If a member of a House of the Legislature of a State
(a) becomes subject to any of the disqualifications mentioned in clause ( 1 ) or clause ( 2 ) of Article 191; or
(b) resigns his seat by writing under his hand addressed to the Speaker or the Chairman, as the case may be, and his resignation is accepted by the Speaker or the Chairman, as the case may be, his seat shall thereupon becomes vacant:

Provided that in the case of any resignation referred to in sub clause (b), if from information received or otherwise and after making such inquiry as he thinks fit, the Speaker or the Chairman, as the case may be, is satisfied that such resignation is not voluntary or genuine, he shall not accept such resignation
The Speaker had argued before the Court that the enquiry into resignation is inextricably linked with disqualification proceedings under Schedule 10. The inter-connection between these two proceedings is an issue which the Court said it will consider in detail later.
Anyhow, from the plain text of Constitution, two things follow :
  • Resignation is not a matter of right of an MLA.
  • A political party has power to direct its member to be present in voting in house, and non-compliance of such a direction will lead to the member's disqualification on ground of defection.
That being so, how can a person, who continues to be an MLA with the resignation having not been accepted by the Speaker, claim a right to abstain from House proceedings, particularly in view of Schedule 10?
In the process of maintaining 'constitutional balance', the Court passed an order nullifying the effect of Clause 2(b) of Schedule 10 of the Constitution, enabling the rebel MLAs to escape the consequences of defying party whips.
According to me, the order goes against the spirit of anti-defection laws.

Accountant’s 1,700 upskirt images taken on his iPhone

A HIGH-FLYING young accountant was caught with 1,700 ‘upskirt’ images of women he had filmed on his iPhone, a court heard.
Leon Chan, who works for global giant PricewaterhouseCoopers, was found out after trying to film a customer at Top Shop in Oxford Circus, London.
A store detective saw him behaving suspiciously with his phone as the unsuspecting woman was bending over, Westminster magistrates were told. 
Chan was detained and immediately handed over his phone and its PIN. 
Police examined the device and found the vast stash of images. 
Michael Magarian QC, defending, said Chan could be ‘described as a high-flyer’ and had achieved a first-class degree in economics at Leeds University. 
Mr Magarin added: ‘He is in a very, very good job. All of this behaviour was during a short period over Christmas and he will now face professional disciplinary proceedings.’
Chan, of Whitechapel, east London, admitted one count of outraging public decency by filming or attempting to film up women’s skirts, on or before January 1 this year. He will be sentenced later at Southwark crown court after magistrate Victoria Readman told him: ‘We are very concerned in relation to the seriousness of the offence.’

Sunday, July 14, 2019

Ukraine to chemically castrate paedophiles and rapists in prison under new laws

New laws in Ukraine will see convicted paedophiles and rapists forcibly castrated by chemical injection.
The legislation will potentially apply annually to thousands of men aged between 18 and 65 found guilty of raping or sexually abusing minors.

Paedophiles will face "coercive chemical castration" under the the new system.
This "involves the forced injection of anti-androgen drugs consisting of chemicals that should reduce libido and sexual activity", reported Ukrinform news agency.
The law will apply to all child rapes including "unnatural" rape and sexual abuse of children above and below the age of puberty.
In 2017 official figures showed 320 child rapes in Ukraine but the numbers of paedophile sex abuse cases are believed to run into the thousands.
New legislation could apply annually to thousands of men aged 18-65 found guilty of sex crimes against youngsters.

Saturday, July 13, 2019

If driver of offending Vehicle does not possess the Valid licence

Full Judgment

The Supreme Court has reiterated that, if the driver of the offending vehicle does not possess a valid driving license, the principle of 'pay and recover' can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.
Parminder Singh, a driver, was driving a Hyundai Elantra car in which Captain Kanwaljit Singh, the then Cabinet Minister in Punjab, was being driven from Ludhiana. The car collided with the Truck which came from the opposite direction at a very high speed, and rammed into the car. Captain Kanwaljit Singh succumbed to his injuries on the same day while undergoing treatment in the hospital. The driver survived, but became permanently disabled. The High Court enhanced the compensation awarded to him by the Motor Accidents Claims Tribunal to Rs.21,06,000/-
In the appeal filed by him, the Apex Court bench comprising Justice Indu Malhotra and Justice MR Shah observed that the compensation awarded to him towards his medical expenses is highly insufficient given the fact that he had undergone 5 surgeries, including a surgery for a severe head injury, and 12 throat surgeries. It said:
"The Appellant was produced before us. He was in an extremely pitiable state. On account of the removal of the frontal bone of the skull, half of his head has caved in. Furthermore, a deep circular incision was made in his throat, and his body was in an unstable condition, undergoing tremors. The Appellant is further suffering from hemiplegia, due to which the left side of his body is not functioning properly.. Given the debilitated state of the Appellant, no amount of money can compensate him. He has been in this condition since the age of 22 years when the accident took place, and will remain like this throughout his life. The Appellant has also been deprived of having a normal married life with a family, and would require medical assistance from time to time. Being completely dependant, he would require the help of an attendant throughout his life."
The bench then awarded the compensation as follows:
Rs. 32,40,000/- to be awarded towards loss of future earnings by taking the income of the Appellant at Rs. 10,000/- p.m., and granting Future Prospects @50%; ii) Rs. 7,50,000/- to be awarded towards repeated hospitalizations and medical expenses for undergoing surgeries and medical treatment; iii) Rs. 10,00,000/- to be awarded towards future medical expenses and attendant charges.
The court also noted that, in this case, evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. The bench said:
This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of 'pay and recover' can be ordered to direct the insurance company to the pay the victim, and then recover the amount from the owner of the offending vehicle.
The bench then directed the Insurance Company to pay the enhanced compensation amount and said that it is entitled to recover the amount from the owners and drivers of the two offending trucks.

Thursday, July 11, 2019

India's 'Dosa King' begins life in jail over murder of young woman's husband

An Indian restaurant tycoon known as the "Dosa King" will finally serve his life sentence for murdering the husband of a woman he wanted to marry -- 15 years after he was convicted.
P. Rajagopal, who founded the popular Indian restaurant chain Saravana Bhavan in 1981, was convicted of orchestrating the abduction and murder of his love interest's husband. 
The case dates back to 2001, when according to court documents, Rajagopal had unsuccessfully tried to persuade the married 21-year-old daughter of an employee to become his third wife. Rajagopal lavished the woman with expensive gifts and told her false stories about her husband, including that he had HIV.
In September 2001, the couple decided to move house to get away from the restaurant mogul. Before they could leave, the couple was abducted and attacked by Rajagopal and a group of others.
The couple survived, but later that year the restaurateur hired a hit man to kill the husband, whose body was found in a forest in Tamil Nadu, the court heard. He is believed to have been strangled to death.

Tuesday, July 2, 2019

Passport Renewal Cannot Be Denied Citing Criminal Case If There Is Permission From Court : Delhi HC

Holding that the rigours of provisions of the Passport Act which restrict from issuance/ renewal of passport to persons facing criminal prosecution stand relaxed by a notification issued by the Centre in 1993, the Delhi High Court has directed the Regional Passport office to renew the passport of Rajiv Chaturvedi, the Chief General Manager of state-run PEC Limited. 
In so saying, Justice Vibhu Bakhru has held that nothing precludes a person facing criminal or departmental proceedings from obtaining passport facilities if he has sought permission from the court as per the 1993 notification.
While Section 6 of the Passport Act provides that travel documents can be refused to persons facing criminal proceedings, the 1993 notification provides that the same can be issued if the court seized of the matter permits.
Chaturvedi, along with other officials of PEC Limited, a PSU under the Ministry of Commerce and Industry, stands charged with offences under Section 420 of the Indian Penal Code and Section 13 of the Prevention of Corruption Act following an FIR registered by the CBI last year for allegedly cheating the PSU of Rs 531 crores. 
He had moved court through advocate Gaurav Gupta after PEC Limited refused to grant him a No- Objection Certificate (NOC) for getting his passport renewed. 
The PEC had cited the Office Memorandum dated 28.03.2018 issued by the Ministry of Personnel, Public Grievances and Pension, Department of Personnel and Training which stated that vigilance clearance and the consequent no-objection certificate needed by a Public Servant for issuance/renewal of the Passport should ordinarily be withheld if there are Disciplinary proceedings pending against him. 
Chaturvedi challenged this March 28, 2018 office Memorandum besides another Office Memorandum dated 02.08.2018 issued by PEC Limited, declining his request for issuance of NOC for the renewal of his passport. 
Gupta told the court that in keeping with the notification dated August 25, 1993 issued by the Centre requiring persons booked for certain offences to seek court's permission for passport renewal, Chaturvedi had applied before a Special CBI court at Greater Bombay seeking permission for renewal of passport and the permission for the same was granted in April, 2018. 
However, he was not allowed renewal of passport by the regional passport office. 
Before the high court, the respondents including the Centre, PEC and the passport office submitted that since charges have been framed against Chaturvedi, passport facilities have been denied to him in view of Section 6(2)(f) of the Passports Act, 1967 which provides that the passport authority shall refuse to issue a passport or travel document for visiting any foreign country if the proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal court in India 
The counsel appearing for the PEC Limited also contended that the order dated 24.04.2018 passed by the Court of the Special Judge was conditional and permits issuance of a passport only if it is otherwise permissible as per the relevant passport rules. 
The high court, however, noted that apart from referring to Sections 6(2)(f) and 10 of Act, PEC did not draw its attention to any other rule, which would preclude Chaturvedi from obtaining passport facilities. The Court also noted that the concerned criminal court had permitted the renewal of passport.

The Allahabad High Court has notified the procedure for anticipatory bail applications.

The Allahabad High Court has notified the procedure to be followed while filing anticipatory bail applications.
Section 438 Criminal Procedure Code which had been omitted by Uttar Pradesh government during the Emergency was reinserted by the Government with effect from June 6, 2019.

Wednesday, May 29, 2019

Scrap driving licences of those who can't read: HC

Observing that an illiterate person is "virtually a menace for pedestrians" on the road, a single bench of the Rajasthan high court has directed the state government to withdraw driving licences given to persons who can't read signboards, warning signs and other signals. 

The court has directed the transport authorities to issue appropriate instructions, lay down guidelines and take action in cases where licenses were issued to persons unable to read and write.

While dismissing the writ petition of one Deepak Singh, who requested the court to direct the transport department to issue him a driving licence for a heavy motor vehicle (HMV) though he was illiterate, Justice Sanjeev Prakash Sharma said, "In the opinion of the court, Motor Vehicle Rules are required to be framed not only for the benefit of persons who seek licences but must also take into consideration the public who are using the roads. "

"A licence cannot be allowed to be issued to an illiterate person to drive any kind of vehicle as he is virtually a menace for pedestrians. He would not be in a position to understand road signs and notices of caution written on the boards for human safety on the highways as well as on the roads in the cities." 

Central government officials said though the Central Motor Vehicle Rules have no provision of a minimum qualification to obtain a driving licence for a non-commercial LMV, every applicant has to pass the test, which comprises reading road and traffic signs and some objective questions.

It is only for a driving licence for a commercial vehicle that an applicant must have a Class-VIII pass certificate . Following a Supreme Court order of July 2017, the road transport ministry had in April 2018 done away with the requirement of a commercial licence for driving taxis, three-wheelers, e-rickshaws and two-wheelers (food delivery, etc).

This allowed drivers to use their private licences to drive commecrial LMVs. "So, practically, the minimum qualification of Class VIII is applicable only for obtaining a licence to drive an HMV, which includes trucks and buses," said a government official.

Tuesday, May 28, 2019

GST Evaders Can Be Arrested: SC Upholds Telangana HC Judgment

The Supreme Court has dismissed a plea challenging Telangana High Court judgment that held that a person can be arrested by the competent authority in cases of Goods and Service Tax (GST) evasion.
The vacation bench of Chief Justice of India Ranjan Gogoi and Justice Aniruddha Bose, dismissing the Special Leave Petition, said that it is not inclined to interfere.
The Division bench of the Telangana High Court, in April, comprising of V. Ramasubramanian and Justice P. Keshava Rao had dismissed a batch of writ petitions seeking protection from arrest for alleged tax evasion. The challenge was against the summons issued by Superintendent (Anti-Evasion) of the Hyderabad GST Commissionerate under the Central Goods and Services Tax Act, 2017. The bench observed that sub Section (1) of Section 69 of the Act empowers the Commissioner to order the arrest of a person, when such a person is believed to have committed a cognizable and non bailable offence. It had said:
"If reasons to believe are recorded in the files, we do not think it is necessary to record those reasons in the authorization for arrest under Section 69(1) of the CGST Act. Since Section 69(1) of the CGST Act, 2017 specifically uses the words “reasons to believe”, in contrast to the words “reasons to be recorded” appearing in Section 41A(3) of Cr.P.C., we think that it is enough if the reasons are found in the file, though not disclosed in the order authorizing the arrest."
The state had submitted before the High Court that the petitioners before it were allegedly involved in incorporating several partnership firms and had claimed input tax credit on the basis of certain invoices, without there being any actual physical receipt of goods. It had alleged that the fraudulent input tax credit claimed by them was to the tune of Rs 224.05 crore.
The High court had also rejected the contention that here cannot be an arrest even before adjudication or assessment. It had said:
"To say that a prosecution can be launched only after the completion of the assessment, goes contrary to Section 132 of the CGST Act, 2017. The list of offences included in sub Section (1) of Section 132 of CGST Act, 2017 have no co relation to assessment. Issue of invoices or bills without supply of goods and the availing of ITC by using such invoices or bills, are made offences under clauses (b) and (c) of sub Section (1) of Section 132 of the CGST Act. The prosecutions for these offences do not depend upon the completion of assessment."
The bench also did not favour the argument raised by the petitioners that since all the offences under the Act are compoundable under sub Section (1) of Section 138 of the CGST Act, 2017, subject to the restrictions contained in the proviso thereto and that therefore, there is no necessity to arrest a person for the alleged commission of an offence which is compoundable. The court also had observed that the furthering of enquiry/ investigation is not the only object of arrest.

Monday, May 27, 2019

Accused Can't Be Indefinitely Kept In Jail For His Inability To Produce Registered Surety For Reasons Beyond His Control: SC

The Supreme Court has observed that an accused cannot be indefinitely kept in jail for his inability to produce registered surety for reasons beyond his control.
The bench comprising Justice Indira Banerjee and Justice Sanjiv Khanna directed the Chief Metropolitan Magistrate, Calcutta, to consider modifying the orders passed in the bail plea of one Wasim Ahmed, without insisting on registered surety.

Chief Metropolitan Magistrate of Calcutta had granted bail to Wasim Ahmed on condition of producing registered surety. He had approached the Apex Court directly against this order due to Advocate strike in West Bengal. 
He submitted before the court that he is a resident of Nagpur, and is not in a position to produce any registered surety. It was also submitted before the court that his mother is critically ill, for which he needs to go home. After hearing the counsel of Wasim Ahmed, the bench said:

Brother In Law Can Be Ordered To Pay Maintenance To Widow Under Domestic Violence Act, Says SC

The Supreme Court has observed that a brother in law can be ordered to pay maintenance to a widow.
In this case, the lady and her deceased husband were residing at a house which constitutes ancestral Hindu Joint Family Property.The deceased husband and the brother in law jointly carried on a business of a kiryana store. 
The woman, filed a complaint under Domestic Violence Act alleging that, after the death of her husband she and her child was not permitted to reside in her matrimonial home. The Trial court passed an interim order granting monthly maintenance in the amount of Rs 4,000 to the woman and Rs 2,000 to the child. The brother in law was directed to pay the said amount. This order came to be affirmed by the High court.
In appeal before the Supreme Court (Ajay Kumar vs. Latha @ Sharuti), the 'brother in law' contended that there was no basis under the provisions of the Act to fasten liability on him.
But, the bench comprising Justice DY Chandrachud and Justice Hemant Guptaobserved that the substantive part of Section 2(q) indicates that the expression "respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom relief has been sought. It said
"The proviso indicates that both, an aggrieved wife or a female living in a relationship in the nature of marriage may also file a complaint against a relative of the husband or the male partner, as the case may be.. Section 2(f) defines the expression 'domestic relationship' to mean a relationship where two persons live or have lived together at any point of time in a shared household when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are members living together as a joint family…. All these definitions indicate the width and amplitude of the intent of Parliament in creating both an obligation and a remedy in the terms of the enactment."
The court said that the averments in the complaint prima facie indicate that the case of the complainants is that the house where she and her spouse resided, belong to a joint family. Upholding the order, the bench said:
"Ultimately, whether the requirements of Section 2(f); Section 2(q); and Section 2(s) are fulfilled is a matter of evidence which will be adjudicated upon at the trial. At this stage, for the purpose of an interim order for maintenance, there was material which justifies the issuance of a direction in regard to the payment of maintenance."

Thursday, May 23, 2019

Driving licence - Medical conditions you need to tell the DVLA about to avoid £1,000 fine

MOTORISTS must tell DVLA about different medical conditions on their driving licence to avoid landing a fine.

British motorists are being warned that they could leave themselves open to fines and prosecution for failing to inform the DVLA about medical conditions. Drivers are required to inform the Driver and Vehicle Licensing Agency (DVLA) of medical conditions which could affect their driving. Motorists could receive a fine of up to £1,000 if a medical condition affects their driving and they fail to tell the agency. The list of medical conditions drivers must let the DVLA know about is around 200, which means it is worth letting checking if you are unsure.

Some conditions are obvious such as a brain injury which could trigger seizures and could have a very obvious effect on your driving.
However, things such as eating disorders or arthritis must also be told to the vehicle agency.