Tuesday, March 17, 2020

False p Case

The High Court of Punjab and Haryana held that the police authorities are at liberty to proceed against the complainant for lodging a false case of molestation, in accordance with the law.

The single bench of Justice Hari Pal Verma said,
"This Court cannot ignore the fact that the number of times, such like false cases are registered. Had there been no fair investigation, the petitioner, Karan Chawla would have to face trial."

The petition was filed under Section 438 of the Code of Criminal Procedure, 1973 for grant of anticipatory bail to the petitioner in the FIR registered by the police under Sections 376, 354, 511 of IPC.

The FIR was registered on the statement of the prosecutrix with the allegation that she suffered an accident and was brought to the hospital. In the operation room, when the doctor went away after treating her, the prosecutrix alleged that the petitioner came inside the room and started molesting her.

Ruchika Sabharwal, AAG representing the State submitted that the above-said incident was looked into by the police and a Special Investigation Team constituted thereafter for recording the statements of the staff of the hospital.

The SIT had come to the conclusion that no such incident of alleged molestation by the petitioner had taken place and accordingly the police prepared the cancellation report.

The court while looking into the fact that SIT constituted said,
" In view of the fact that SIT constituted in the case has not found anything in the case and thereby, the cancellation report has also been prepared, the present petition is rendered infructuous."

Subsequently, the court dismissed the petition as infructuous and said that there has been no fair investigation and the court cannot ignore the fact the number of times such false cases are registered.

Accordingly, the court held,
"The police authorities are at liberty to proceed against the prosecutrix for lodging a false case of molestation"

Friday, March 13, 2020

Gujarat High Court on Friday registered a suo moto Public Interest Litigation titled "Precautionary Measures In The Wake Of The Pandemic of Corona Virus (COVID-19)

In the wake of COVID 19 pandemic, the Gujarat High Court on Friday registered a suo moto Public Interest Litigation titled "Precautionary Measures In The Wake Of The
Pandemic of Corona Virus (COVID-19)".
A bench comprising Chief Justice Vikram Nath and Justice Ashutosh Shastri said that the suo moto action was taken "to further strengthen the hands of the Government and also to keep a check and control of the said Virus being spread further in the judicial setup of the State".
The Court has issued the following directions :
"(1) The Advisory issued by the Ministry of Health & Family Welfare, Government of India and the Government of Gujarat on the above Pandemic be strictly adhered to and followed in letter and spirit.
(2) In addition to the above, we direct the Government of Gujarat:
(i) to provide temperature guns at the security check to check the temperature of entrants in the Court premises;
(ii) In case any person is found to be having temperature above normal, then, to take necessary steps for further investigation forthwith;
(iii) to take necessary steps for sanitizing the Court building and premises on daily basis by using appropriate formulations.
(3) Following directions are issued to the members of the Bar Association, members of the Registry, staff of the High Court and all other stakeholders to take following
i. Public gatherings may be avoided unless unavoidable.
ii. Counsels may discourage litigants from attending Courts.
iii. Absence of parties appearing in person may not entail any adverse orders.
iv. All precautionary measures as advised by the Government may be taken.
v. Handshake greetings may be avoided and greetings may be with folded hands only.
(4) The above directions contained at Sr.No.(3) to be equally applied to all the subordinate courts in the State of Gujarat"

Prisoners have no right to vote, Delhi HC re-affirms constitutional validity of Section 62(5) RP Act

The constitutional validity of Section 62(5) of the Representation of the People Act, 1951, the Delhi High Court has re-affirmed that prisoners have no right to vote. (Praveen Kumar Chaudhary vs Election Commission & Ors)
The judgment was passed by a Division Bench of Chief Justice DN Patel and Justice C Hari Shankar in public interest litigation preferred by one Praveen Kumar Chaudhary.
It was the Petitioner’s contention that Section 62(5) was violative of the basic structure of the Constitution.
The Petitioner argued that under the provision, there was no valid classification between the persons who are in jail and the persons who are on bail or out of jail.
The Petitioner further pointed out that as per the second proviso to Section 62(5), while a person whose name has not been entered in the electoral roll does not cease to be an elector and can also contest the election, he/she cannot cast his/her vote if he/she is in jail.
This type of classification, the Petitioner submitted, was not valid in the eyes of law and was violative of Article 14 of the Constitution of India.
The Election Commission, on the other hand, argued that this issue had already been decided by the Supreme Court in Anukul Chandra Pradhan, Advocate Supreme Court vs. Union of India & Ors (1997).
The Election Commission pointed out that the Supreme Court had noted that Article 14 permitted reasonable classification which had a rational nexus with the object of classification.
Stating that criminalisation of politics was the bane of society and negation of democracy, the Supreme Court had opined the object of free and fair elections and maintenance of law and order were the essence of democracy and upheld the validity of Section 62(5) for making a reasonable classification, the Election Commission further pointed out.
In view of the submissions and the Supreme Court’s decision, the Court reiterated that the right to vote was neither a fundamental right nor a constitutional right.
It said,
“Right to vote is not one of the common law rights but it is a right conferred by a statute. The right to vote is subject to limitation imposed by the statute. The right to vote is the statutory right, the law gives it and the law can take it away.”
Delhi High court
Referring to the classification as a valid classification, the Court added that persons who are out of jail and persons who are in jail are class by themselves.
After perusing a series of other case laws on the issue, the Court opined that Section 62(5) was constitutionally valid.
It said,
“The classification of the persons who are in jail and who are out of jail is a valid classification and it has a reasonable nexus with the objects sought to be achieved ..”
Delhi High court

Tuesday, March 10, 2020

Police officer cannot seize driving licence unless in uniform: Calcutta High Court

"... the duty to produce a licence and certificate of registration only arises under Section 130 of the 1988 Act, Sub-section (1) of which provides that the driver of a motor vehicle in any public place shall on demand by any police officer in uniform produce his licence for examination."
Calcutta High Court

The Court was dealing with a writ petition filed by Suryaneel Das (petitioner) alleging that he was intimidated and threatened by two men dressed in civilian clothes, who seized his driving licence, without the issuance of any temporary authorisation slip.

The petitioner told that Court that while he was talking on the phone, two men came up to him, asked him to disconnect the phone and step out of the car in order to answer some queries.

The men seized his driver's licence, all the while refusing to show any valid ID proofs. On the petitioner's insistence, they gave him a compound slip after the licence was seized. However, this slip did not disclose the identity of the impounding officers either.

In reprimanding the police authorities for their conduct, Justice Sabyasachi Bhattacharyya remarked that,

“....the mala fides of the Sub-Inspector of Police, namely, Biswajit Das, is patent from his action in seizing the driving licence of the petitioner without issuing any acknowledgement which would act as a temporary licence for the petitioner in the first place.”

Calcutta High Court

The Court proceeded to rule in the petitioner's favour, inter alia, given that the police officers had violated the Motor Vehicles Act in seizing the driver's licence while not in uniform. The Court observed,

"... nothing has been disclosed as to the police being in uniform when they seized the driving licence and, as such, there was no duty cast upon the petitioner, who was the driver of the vehicle-in-question, to hand over his licence at all and the seizure of the licence was palpably under coercion on the part of the police officer involved, who was not even in uniform."

The Court also rejection submissions made by the police relying on Section 206 of the Motor Vehicles Act to justify its conduct. This provision allows the seizure of driving licence where it is suspected that the driver may abscond or avoid legal summons, where such person is charged with an offence.

The Court pointed out that even in such a scenario, the police "could at best take resort to Section 177 of the 1988 Act and impose a fine of Rs.100/- as stipulated for a first offence."

The Court further took critical note of a submission that the police in the area had no facility to accept cash or payment by card for any Motor Vehicle Act violation. Observing that the same was inexcusable, the Bench also pointed out that the alternative of seizing driver's licences for violations were disproportionate.

In this case, the High Court also held that there was no prima facie evidence to prove that the police gave an opportunity to the petitioner to pay any fine on the spot.

In view of these observations, the Court held that the seizure and the proceedings against the petitioner were liable to be quashed.

The High Court also cautioned the errant police officer to follow the due process of law in the future.

“Since a police officer is supposed to be a protector of justice, a much higher obligation is expected from the officers of the police than a common citizen with regard to protecting the law by following due process of law.”
Calcutta High Court
The writ petition was disposed of with directions that the police authorities immediately return the driving licence to the petitioner.

The respondent-authorities were represented by Advocates Amal Kumar Sen and Ashima Das. The petitioner appeared party-in-person.

Monday, March 9, 2020

Coronavirus: What you need to know

How do you catch it?
From a sufferer who coughs or sneezes near you. Close contact with a sick person.
Not washing your hands regularly and touching your face after contact with unclean surfaces also raises the risk.
What is ‘close contact’?
The NHS defines it as living in the same house, being in contact with another person’s bodily fluids, talking together for longer than a few minutes or being within 6ft of a person for more than 15 minutes.
How do I know if I have it?
The only sure way is a Medical  test. If you think you need one, call 108.
You can have it without feeling ill. Main symptoms are similar to flu – a cough, high temperature and shortness of breath. Those with flu-like symptoms are not likely to have it if they have not been to a high-risk area or have not had close contact with a confirmed patient.
How to reduce my risks?
Don’t travel to hotspots, such as northern Italy. Avoid contact with sick people.
Good personal hygiene. Wash your hands regularly with soap for at least 20 seconds. Use hand sanitiser as an alternative.
Cover your mouth with a tissue or sleeve when coughing or sneezing. Bin used tissues straight away and wash your hands.
Don’t touch your eyes, nose or mouth.
Do face masks help?
Not really. Experts say masks are better used by infected people to stop them spreading it. Masks can raise the risk if people touch their faces more to adjust them.
How worried should I be?
About 80 per cent of patients experience only mild illness, says the World Health Organization.

Monday, March 2, 2020

Members barred from joining the month-old body under 'One Bar, One Vote' norm of GHCAA

The Gujarat High Court Advocates' Association (GHCAA) has passed a resolution to remove membership of the lawyers who join the newly-formed Ahmedabad NCLT Practitioners Association (ANCLTPA) formed by the other faction. 

ANCLTPA was formed about a month ago. The GHCAA has been objecting the new association which comprises mostly lawyers practicing in the high court and few Chartered Accountants and Company Secretaries. Earlier on February 10, the GHCAA had passed a resolution paving way to open its branch at the NCLT which it sent to the Principal Bench of NCLT at New Delhi and Bar Council of Gujarat (BCG) to get recognition. At the same time, the ANCLTPA has also sent communication to get recognition.

GHCAA will write a letter to the BCG to not give recognition to newly-formed association. "We passed the resolution on February 25 looking at the existing norm of 'One Bar One Vote' under which members of other bars cannot be members of our association," said Yatin Oza, GHCAA president. Oza said, "As part of the resolution passed, we will remove the member and take away member's chamber for joining another association."
Under One Bar One Vote norm, a lawyer can only vote in the bar where he or she is an ordinary member. "As per this norm, one lawyer cannot become member of two associations. Most of the high court lawyers who are also our members are practicing at the NCLT," said Hardik Brahmbhatt, Secretary of the GHCAA.

The resolution passed by the GHCAA reads, "Some advocates who have chosen to become not only electorate but also chosen to become office-bearers of another association stand to lose their membership of GHCAA. Hence it is resolved to request the Chief Justice of High Court of Gujarat to cancel allotment of chambers in their favour."

Saturday, February 29, 2020

Protests can’t infringe rights of others: SC

 The Supreme Court on Friday ruled that one’s right to protest could not infringe upon the rights of others as it upheld the Uttarakhand high court verdict initiating stringent action against lawyers boycotting district court work for years.
Uttarakhand lawyers had moved the SC claiming that the HC verdict violated their fundamental right to free speech to go on strike court work to protest against issues concerning them. They said it was a mode of peaceful representation to express grievances of the lawyer community.

Rejecting the arguments, a bench of Justices Arun Mishra and M R Shah said, “Such a right to freedom of speech cannot be exercised at the cost of litigants and/or at the cost of the justice delivery system as a whole.”

“To go on strike or boycott courts cannot be justified under the guise of right to freedom of speech and expression under Article 19(1)(a) of the Constitution,” the SC bench said.

Advocates in the districts of Dehradun, Haridwar and Udham Singh Nagar have been boycotting court work on Saturdays for the past more than 35 years. The Law Commission had found that between 2012 and 2016, advocates were on strike for 455 days (average 91 days per year) in Dehradun district and 515 days (average 103 days per year) in Haridwar district.

A PIL against the strikes was entertained by the HC, which passed a series of directions on the line of law settled by the apex court banning strikes by lawyers. It also warned of contempt of court proceedings against errant advocates.

The bench also took suo motu cognisance of lawyers resorting to strikes in several parts of the country despite a series of judgments by the SC banning strikes by advocates. “We take suo moto cognisance and issue notices to Bar Council of India and all state bar councils to suggest further course of action and to give concrete suggestions to deal with the problem of strikes/abstaining from work by lawyers,” the bench said and sought responses from BCI and state councils within six weeks.

The court criticised the inaction of BCI and state councils against lawyers indulging in strikes. “The day has now come for the Bar Council of India and bar councils of states to step in and take concrete steps. It is the duty of bar councils to ensure that there is no unprofessional and unbecoming conduct by any lawyer,” it said.

Writing the judgment endorsing the steps taken by the HC against lawyers of three districts of Uttarakhand, Justice Shah said, “We direct all concerned and district bar associations to comply with the directions issued by the high court in its true spirit. It is directed that if it is found that there is any breach of any of the directions issued by the high court in the impugned judgment and order, a serious view shall be taken and the consequences shall follow, including punishment under the Contempt of Courts Act.”

Thursday, February 27, 2020

Saudi bars entry of foreign pilgrims over corona virus

Saudi Arabia on 27/02/2020 banned foreign pilgrims from entering the kingdom to visit Islam’s holiest sites over the new coronavirus, potentially disrupting the plans of millions of faithful ahead of the Muslim fasting month of Ramadan and as the annual hajj pilgrimage looms.
The decision showed the growing worry across the Mideast about the virus as Iran confirmed that infected cases in the country spiked by over 100, to 254 now. A total of 26 people have died so far, it said. That pushes the region’s overall cases to above 350. Iran’s death toll is highest outside of China, where the outbreak began.
Saudi Arabia’s barring of pilgrims from Mecca, home to the cube-shaped Kaaba that the world’s 1.8 billion Muslims pray toward five times a day, and also the holy city of Medina, appeared unprecedented in modern history. The kingdom's Al Saud ruling family stakes its legitimacy in overseeing and protecting the sites. Authorities also suspended entry to travelers from nations affected by the new virus who hold tourist visas for the kingdom.
It appeared Saudi officials worried about the risk of pilgrims spreading the virus as they had in Iran. The virus’s epicenter in the Islamic Republic is the holy Shia city of Qom, where the faithful in reverence reach out to kiss and touch a famous shrine. That shrine and others have remained open, despite Iran’s civilian government calling for them to be closed. There have been no confirmed cases of the new coronavirus in Saudi Arabia amid the outbreak

HC: Ensure lawyers for sedition-accused

To uphold the best legal traditions, a member of the Hubballi Bar Association should appear on behalf of the three Kashmiri students charged with sedition for allegedly raising pro-Pakistan slogans in their engineering college hostel in Hubballi on February 14, the Karnataka high court observed on Thursday.
The observation came a day after the court slammed the local bar for allegedly heckling a group of Bengaluru lawyers who had appeared on behalf of the students, calling it “sheer militancy”. On Thursday, HBA officer-bearers appeared before the court with a fresh resolution, modifying the one passed on February 15 that had barred its members from appearing for the accused. However, the court was still unhappy with the modified resolution, which left the matter to individual members.
A division bench headed by Chief Justice Abhay Shreeniwas Oka noted that instead of modifying it, the association should have simply recalled the contentious resolution. The association agreed to take back the resolution.
Meanwhile, despite assurances from HBA office-bearers to ensure that proceedings are conducted in a peaceful manner, the bench said it's February 20 order directing the local police to provide security to advocates appearing for the three students will continue. “We would have transferred the case here. That was a simple task. However, as far as possible, it should be heard there. That will send the right signal. It is not good that lawyers have to seek police protection for appearing in a court,” the chief justice observed.

Don’t insist on domicile certificate, ONGC -Gujarat High Court

The Gujarat high court on 27/02/2020  Certificate of candidates for recruitment for the posts of technicians.
Various candidates residing outside Gujarat had approached the high court after they were disqualified on the ground that they had not supplied certificates showing that they were domiciled in Gujarat.
The petitioners came to know about this after they cleared the computer-based test and made it to the final merit list.
The candidates opposed ONGC’s decision to disqualify them saying that domicile certificate was not asked for in the advertisement issued in January 2019, and therefore ONGC cannot insist on this eligibility criterion.
After hearing the case, the high court allowed petitions filed by the candidates seeking directions to ONGC that it cannot insist on a domicile certificate at the belated stage of recruitment. The HC also directed the ONGC to add the names of these candidates in the final merit list.

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