Friday, March 22, 2019

Hostel Rules- Not Unfair To Treat Women and Men Differently In Matters Of Safety and Security: Madras HC

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"Right of a women to have empowerment on the basis of the economic status is altogether different from the mandatory duty of the State to provide security and safety to the women and children" The Madras High Court has dismissed a Public Interest Litigation filed by some hostelers challenging the constitutionality of Tamil Nadu Hostels and Home for Women and Children (Regulation) Act, 2014 and the Rules. The bench comprising Justice S. Manikumar and Justice Subramonium Prasad observed that right of women to have empowerment on the basis of the economic status is altogether different from the mandatory duty of the State to provide security and safety to the women and children. It observed that treating men and women differently in the matter of security and safety cannot be termed as discrimination. 

The Act has several provisions imposing conditions for registration, licencing, maintenance and to provide managers and security personnel and such others matters connected therewith, in hostels, lodging houses, and homes for children and women.

According to PS Deepthi and some other students and employees (including some lawyers) who joined the petition, the Act, instead of protecting the women and children, destroys their freedom and independence in addition to making them jobless. Nothing Unfair In Treating Women and Men Differently In Matters Of Safety and Security The petitioners had contended that they are equal to men and thus there is no need for any security personnel, burdening them with enhanced charges. Rejecting the said argument, the bench said: "There is no unfair classification. The difference in treating women and children, in the matter of security and safety, cannot be compared to take of men, and the State Government enacting a special enactment exclusively for regulating Hostels, lodging houses, homes for women and children, has a rational nexus to the object sought to be achieved and thus there is no discrimination, violating Article 14 of the Constitution of India." Managers/Security Personnel Appointment Would Not Violate Privacy Yet another grievance of the petitioner is the provision which mandates the appointment of a Manager would invade the right to privacy of the inmates. The bench opined: "The appointment of a manager is only to ensure proper maintenance of the hostel, health of the inmates and children, inmates of the hostel, lodging home or house for children and women, are not subject to any form of mental or physical harassment. Contention that right of privacy of the inmates would be affected by a Manager cannot be accepted for the reasons that the manager to be appointed in a women or children hostel would invariably be a woman only." The court also noted that sufficient safeguards have been provided that the security personnel cannot enter the building. The Petitioners' argument was that the police is taking care of the safety of the entire population, free of cost and therefore they cannot be forced to bear the cost of engaging security personnel. Functioning of police to maintain law and order, public order and safety to the general public, cannot be compared to that of a Manager and Security Personnel mandated to be employed in hostels, lodging houses and homes for children and women, the vulnerable sections of the society, the court added. CCTV Cameras Not Only Prevent Crimes, But Also Detect Them With regard to their concerns about installation of CCTV cameras, the bench observed that they would not only prevent crime, but also in detection of the same. The court said: "Contention of the petitioner that installation of CCTV cameras would invade the privacy of inmates and even if such installation is made, it would not prevent, sexual harassment, cannot be accepted for the reason that such installation is required only in a hostel, lodging house or home for women and children where more than fifty inmates are accommodated, and closed television or digital recorder has to be installed at every entry or exit points. No such appliances are to be installed in bedrooms and other places, where privacy has to be maintained." Right Of Employment Not A Fundamental Right The bench also rejected their contention that instead of protecting the women and children, the Act destroys the freedom and independence of women, rendered them as jobless. It is an untenable argument for the reasons that right of employment was never recognised as a fundamental right to be enforced, the court remarked. Government Empowered To Prescribe Hostel Standards The contentions that the space requirement prescribed by the Government for the hostels, lodging houses and homes for children and women is illegal and that the state has no power or authority to fix, space index which is the right of the petitioners to decide and elect depending upon their financial conditions, were also rejected. The court, in this regard, said: "It is for the Government to prescribe the licencing conditions, standards of maintenance of hostels, lodging house, sanitation and other aspects and the petitioners have no legal right to question the same. As stated supra, as per Article 15 of the Constitution of India, States are empowered to enact laws in favour of in Children and Women." Concern Of State For Women & Children Cannot Be Said To Be Unwarranted Dismissing the petition, the bench observed that the Act is for a larger interest, aimed at the safety and security of women and children, in hostels, lodging houses and homes for children and women. It also rejected the contention that the state legislature has competence only in the matter of an enactment pertaining entry Inn and not relating to hostels, lodging hoses and houses for children and women. It said: "When safety and security of children and women in hostels, lodging houses and homes for children and women, are the paramount objects, indeed there should be a exclusive enactment, to the vulnerable sections of the society. Concern of the State cannot be said to be, unrealistic and that special laws are unwarranted. In the light of the enabling provisions and having regard to the statement of objects and reasons for which Tamil Nadu Hostels and Homes for Women and Children (Regulation) Act 2014, is enacted, we see no discrimination and therefore the said contention is rejected." 

Section 138 NI Act: Non-Filing Of I-T Returns Does Not Mean That The Complainant Had No Source Of Income: MP HC

"Non-filing of Income Tax Return by itself would not mean that the complainant had no source of income and thus, no adverse inference can be drawn in this regard only because of absence of Income Tax Return" The Madhya Pradesh High Court has observed that mere non-filing of Income Tax Return would not automatically dislodge the source of income of the complainant in a cheque bounce case under Section 138 of the Negotiable Instruments Act. The case of the complainant was that the accused had obtained a loan of Rs.10, 00,000 from him and assured that she would refund the said amount within a period of six months. In lieu of the said amount, she issued a cheque which got dishonoured. The accused was convicted by the Trial court, which was later upheld by the District Court. 

The contention taken by the accused was that the complainant had failed to prove his source of income. It was contended that since the complainant never disclosed his source of income in the Income Tax Return and never filed his Income Tax Return, it should be presumed that he did not have any source of income.

In the revision petition filed by the accused, Justice G.S.Ahluwalia observed: "Non-payment of Income Tax is a matter between the revenue and the assessee. If the assessee has not disclosed his income in the Income Tax Return, then the Income Tax Department is well within its rights to reopen the assessment of income of the assessee and to take action as per the provisions of Income Tax Act. However, non-filing of Income Tax Return by itself would not mean that the complainant had no source of income and thus, no adverse inference can be drawn in this regard only because of absence of Income Tax Return." The bench observed that the courts below were right in holding that the cheque was issued by the accused in discharge of legal liability which was returned by the Bank on her instructions. Where the accused has failed to satisfactorily explain the circumstances under which the cheque was issued by the accused or misused by the complainant, then it can be safely inferred/ presumed that the cheque was issued in discharge of legally recoverable dept/liability, the court added.

Thursday, March 21, 2019

"Tsunami Of Cruelty": P&H HC Confirms Death Penalty To 7 Men Accused Of Gang Rape/Murder Of Mentally Ill Woman, Imposes 50 Lakh Fine

"If they had come together to commit the crime jointly and individually and not one of them resisted any of the other, we think the liability to pay fine in the sum of `50 lakhs under the peculiar facts and circumstances must be made joint and several." 

The Punjab and Haryana High Court has confirmed the death sentence awarded to six men accused of gang rape of a mentally ill woman. Describing the crime as 'animalism' and '"tsunami" of cruelty', the bench comprising Justice AB Chaudhary and Justice Surinder Gupta, also imposed a fine of Rupees 50 Lakh, which is to be recovered from the convicts by attaching/selling their respective immovable properties like plot, house, agricultural land etc.

The bench confirmed the conviction recorded by the Trial court against Sunil @ Mada, Sunil @ Sheela, Sarvar @ Billu, Pawan, Padam @ Parmod, Manbir @ Manni and Rajesh @ Ghochru. Animalism, Tsunami of Cruelty Agreeing with the prosecution that the case is similar to 'Nirbhaya' case, the bench said that it is convinced that the death sentence awarded by the trial Court to all the accused persons was the only sentence that could be awarded. To hold that this case passes the rarest of rare test, the bench said:

"A mentally ill woman, who came out of her sister's house situated on the outskirts of the town Rohtak, started walking towards unpopulated open area, was ensnared and waylaid by these appellants/accused by forcibly making her sit on their motorcycle. She was taken to two places where she was raped by all the appellants/accused one by one. The appellants/accused had consumed alcohol. They changed the spot due to fear as a police jeep had passed. They pushed her down in the field and started hitting her with the bricks. Rajesh @ Ghochru again raped her and she was again hit with bricks. She was still alive. What must be the excruciating pain to almost half dead young woman! Then the 'animalism', torment, highest order of cruelty rather "tsunami" of cruelty made thereafter is bound to petrify one and all. Rajesh @ Ghochru placed a cement sheet on her anus and thrust it inside by hitting it inside with brick. She shrieked for the last time and breathed her last. Now we ask the question to ourselves; what else is required to hold this case to be the rarest of rare!" Death Sentence Not Deterrent Enough- Imposes Heavy Fine. The court further observed that the deterrence in the matter of sentences including the death sentence is not satisfactory and that the imposition of heavy fine which, if recovered by sale of the properties of the guilty, would prove additional deterrence. The court observed that the victim or the concerned relatives of the victim would also find atleast some solace to their sufferance, if they are compensated by selling the property of the guilty. Imposing a fine of Rs. 50 Lakhs on the convicts, the bench said: It is quite possible that one or more of the convict does not own or possess any immovable property. But then all these appellants/accused have been found, by us, to have committed the ghastly crime with a conspiracy jointly and individually. If they had come together to commit the crime jointly and individually and not one of them resisted any of the other, we think the liability to pay fine in the sum of `50 lakhs under the peculiar facts and circumstances must be made joint and several. Having thus, come to this conclusion, out of the total sale proceeds, if any recovered, half of the sale proceeds ought to go to the State of Haryana and the remaining half to PW5-Janki. The court then directed the Deputy Commissioner, to identify the immovable properties of all the convicts, attach them within one month. He was further directed to sell the attached properties within two months from the date of attachment and report compliance. Applauds Investigating Officer The Court also applauded hard work and the professionalism with which Investigating Officer SI, Mohammad Ilias who had conducted the investigation in such a hard case. Now it is for the Government how to reward him, the bench added.

Apprehensions About EVM Tampering Unfounded And Unjustified: Gujarat HC

The Gujarat High Court, on 19March , dismissed a lawyer's petition which raised apprehensions about malfunction and tamperability of Electronic Voting Machines. Advocate Khemchand Rajaram Koshti had approached the High Court challenging Rule 56(D)(2) of the Conduct of Elections Rules, 1961, insofar as it vests discretion in the Returning Officer to reject an application for counting of the printed paper slips in the drop-box of the Printer. He also sought for a direction to ECI to ensure mandatory counting of those printed paper slips.

In a detailed judgment, the bench comprising the Acting Chief Justice Anant S. Dave and Justice Biren Vaishnav observed that apprehensions of a malfunction and tamperability of the EVMs are completely unfounded and unjustified. The bench, referring to reports of Election Commission of India, in this regard, said:

"We are assured that the firm conviction about the integrity and non-tamperability and credibility of the EVMs and the confidence in the robustness of the procedural safeguards as voiced in the communication dated 10.01.2019 by the Election Commission Of India, make the making process of the Returning Officer and the discretion so vested in him, under Rule 56(D)(2) beyond reproach." The bench further observed that it shall be loath to sit in judgement over the assurance of a constitutional authority like the Election Commission Of India. It said: "The entire step-wise procedural safeguards that the Election Commission undertakes in the manner of the conduct of elections through the EVMs and VVPATS, in exercise of its constitutional obligation under Article 324 of the Constitution Of India coupled with the technology, leaves no room of doubt for the petitioner to contend that the discretion of the Returning Officer to entertain an application under Rule 56(D) (2) of the Rules can be said to be an unguided discretion when they are qualified with the words that the rejection will only be on the ground of the application being frivolous or unreasonable. Such a rule existed even when the voting was carried out through the Ballot Box." The court also added that the use of ballot paper was time consuming, prone to malpractices booth-capturing and ballot box stuffing, while EVMs has made voting, from the perception of the voter, much simpler and voter-friendly. "The voter has to merely press a button on the Balloting Unit. Under the EVM system, there is no invalid vote unlike the ballot system where there were large number of invalid votes to an extent that in some cases the number of invalid ballot papers were more than the winning margin of the elected candidate. The EVMs are more auditable, accurate, transparent reducing human error. The Commission conducted several field trials and involved all stake holders and political parties in evolving a error free EVM"

Tuesday, March 19, 2019

Uncivilized And Heartless Crime: SC Enhances Compensation To Acid Attack Victim

"This Court cannot be oblivious of the situation that the victim must have suffered an emotional distress which cannot be compensated either by sentencing the accused or by grant of any compensation" A crime of this nature does not deserve any kind of clemency, said the Supreme Court while directing the two convicts to pay Rupees 1,50,000 each as compensation to acid attack victim. Ishita was going to college when two boys came on a scooter and threw some acid over her from a jug and run away from the spot. A resident of the locality saw her crying with burn injuries and later jumping into the water tank nearby. She took her to hospital and subsequently case was registered against the accused.

The Trial Court convicted them for offence under Section 307/34 IPC and sentenced them to undergo rigorous imprisonment of 10 years with a fine of Rs. 5,000 each. However, partly allowing the appeal, the High Court held that the offence under Section 307/34 IPC was not made out and converted the offence from Section 307/34 IPC to Section 326 IPC and sentenced them for a period of 5 years rigorous imprisonment with a fine of Rs. 25,000 each. The State appealed against the High Court order.

Though the Apex court did not interfere with sentence and conviction recorded by the High Court, it said: "Indeed, it cannot be ruled out that in the present case the victim had suffered an uncivilized and heartless crime committed by the respondents and there is no room for leniency which can be conceived. A crime of this nature does not deserve any kind of clemency. This Court cannot be oblivious of the situation that the victim must have suffered an emotional distress which cannot be compensated either by sentencing the accused or by grant of any compensation." The bench then enhanced compensation observing that it may at least bring same solace to the victim for the sufferings which she had suffered. The bench also directed the State to pay the compensation as admissible under the Victim Compensation Scheme as in vogue to the acid victim. The court, referring to earlier judgments which had awarded compensation to such victims, ordered: "Taking note of the precedents of which reference has been made, we consider it appropriate to observe that both the accused shall pay the additional compensation of Rs. 1,50,000 (Rupees One Lakh and Fifty Thousand) each and the State of Himachal Pradesh shall pay the compensation as admissible under the Victim Compensation Scheme as in vogue to the acid victim. If the accused does not pay the additional compensation amount of Rs. 1,50,000/- (Rupees One Lakh and Fifty Thousand) each within six months, the defaulting accused shall suffer rigorous imprisonment of six months. The State shall deposit the compensation before the trial Court within three months from today and the learned trial Court, after proper identification of the victim, disburse at the earliest."

Monday, March 18, 2019

Every Prisoner Eligible For Emergency Parole Of 14 Days, Valid Reasons Needed For Reducing Parole Period: Bombay HC

The Bombay High Court has held that under the law, every prisoner who not a foreigner or a convict sentenced to death is eligible for emergency parole of 14 days for the death of parents, spouse, grandparents etc., and no authority can reduce the period of 14 days without recording valid reasons for the same. A division bench of Justice AS Oka and Justice AS Gadkari was hearing writ petitions filed by Dilip Pawar and Muzammil Shaikh, as both convicts had lost their respective fathers and were not allowed parole of 14 days. While Pawar was granted emergency parole of two days, Shaikh was granted parole for one day, that too with a police escort.

The Prisons (Bombay Furlough and Parole) Rules, 1959 were amended through notifications dated August 26, 2016, and April 16, 2018. By both the amendments, the concept of "Emergency Parole" was introduced by amending Rule 19 of the said Rules of 1959. Sub¬Rule (1) of Rule 19 of the said Rules of 1959 as amended on April 16, 2018, reads thus:¬ 

Emergency Parole¬ (A) All convicted prisoners except foreigner and death sentenced prisoners may be eligible for emergency parole of 14 days for death of parental grandfather or grandmother/father other/spouse/son/daughter/ brother/sister and marriage of son/daughter/ brother/sister, provided that no extension can be granted to emergency parole Upon examining the law, the bench noted- "In view of clause (A) of Sub¬Rule (1) of Rule 19, every prisoner, if his case is covered by the said clause, has a right to be considered for grant of emergency parole. When a power vests in the Competent Authority to grant emergency parole for 14 days, at least reasons in brief must be indicated by the Authority and recorded in the Order as to why the period of 14 days is being restricted to a period which is less than 14 days. Moreover, some reasons are required to be recorded as to why instead of granting parole without police escort, the parole is granted with police escort. Thirdly, for making emergency parole effective, the Authorities cannot insist that only during the day time, the convict will spend time with the members of the bereaved family and will have to spend the night in the nearby Jail. Such a course is not permissible, as the object of providing for grant of emergency parole is that the convicted prisoner can remain company of his family members in case of death of close relatives and can attend the obsequies." According to Shaikh, he was directed to deposit a sum of Rs.70,000 by way of charges of the police escort. Thereafter, it was found that a sum of Rs.15,895 was recovered in excess. The court observed- "We find that there are no guidelines issued by the State Government for determining the charges of police escort in such cases. The guidelines which we have referred earlier are not applicable to the prisoners to whom emergency parole is granted in police escort in exercise of the power under clause (A) of Sub-Rule (1) of Rule 19." Thereafter, APP PP Shinde informed the court that there is no such policy for fixing prices to be paid by prisoners who have been granted emergency parole with a police escort. Finally, the court directed the competent authority to consider the case of both petitioners for a grant of emergency parole in addition to the two- and one-day parole granted, respectively. More importantly, the court directed the state government to frame a policy/guidelines for fixing prices to be paid by prisoners for police escort while being released on parole. The court emphasized: "State Government shall ensure that a decision is taken by treating convicted prisoners as a separate class from those private persons who are given police security on the basis of their own request." The petitions have been disposed of and state government has been directed to file a compliance affidavit by March 18, 2019. 

Bombay HC order spells respite for power consumers

In a ruling that offers some relief to consumers, Bombay high court has held power supply cannot be cut over non-payment of past consumption if the dues were not reflected as arrears continuously for the preceding two years. However, the decision to disconnect would depend on "facts and circumstances of each case", the court held. The HC ruling by a full bench of justices S C Dharmadhikari, A M Badar and Bharathi Dangre was on a reference to settle "conflicting views" over restrictions provided in the Electricity Act for recovery of arrears pertaining to a period prior to two years unless the arrears have been continuously shown in the bills.

A bunch of petitions had been filed by large industrial users such as Ambuja Cement and other cement majors and a Prabhadevi-based Beach Tower Condominium and Maker Towers E and F Premises Cooperative Housing Society at Cuffe Parade with Maharashtra State Electricity Distribution Company Ltd and Brihanmumbai Electricity Supply and Transmission (BEST) 
undertaking. In some cases, the decisions were issued by the Electricity Ombudsman. Some petitions were a decade old. "Electricity is a material resource and belongs to the public. It is very difficult for the state to ensure regular electricity supply to those who require the same regularly. In fact, equal distribution of material resources so as to achieve common good is the constitutional goal," said the HC adding, "It is in public interest and for public good that defaulters are to be deprived of the supply of electricity.'' The question before the HC was whether utilities could in a bill include, for the first time, a demand for power supplied or consumed more than two years prior to the bill date. 

"Distribution Licensee cannot demand charges for consumption of electricity for a period of more than two years preceding the date of the first demand of such charges,'' held the bench adding, "bill may include the amount for the period preceding more than two years provided...the amount is shown as arrears...''  In other words, power supply cannot be disconnected on the ground of non-payment of past electricity dues if such dues are not shown as arrears for a continuous period of preceding two years.

Sunday, March 17, 2019

HC acquits married man of rape charge and Strikes Down Jail Term

The Gujarat high court has acquitted a married person from rape charges and struck down his 15-year jail term earlier awarded to him by a lower court for allegedly raping a minor.

The HC quashed the trial court’s conviction order and ordered to release Rajkot’s Narendrapari Goswami as the high court believed that it was a love affair between him and the girl and hence there was no element of force involved. The HC also did not consider the sexual relations with the girl as statutory rape because the prosecution could not prove that she was a minor by supplying only a school leaving certificate without examining any witness in support of the certificate.

Goswami, was booked under Protection of Children from Sexual Offences (POCSO) Act as well as for rape. He was sentenced to 15-year imprisonment in 2017 by a special court in Rajkot. His conviction took place after his ex-girlfriend lodged an FIR against him in 2013.

After hearing the appeal, the HC said that the girl was living with Goswami for five months. Even after she came to know that Goswami was married and had two kids, she maintained relations with him. “It is clear that there was love affair between the victim and Goswami… the victim had sexual relation with the accused with her consent. Therefore, as such, no offence is made out against the appellant,” the HC said.

The HC refused to accept that the victim was a minor at the time of incident. It said that mere producing the school leaving certificate without examining concerned witnesses, it cannot be said that the age mentioned in the certificate is established.

“Even otherwise, the school leaving certificate to prove the age of the victim is not of much evidentiary value. The prosecution has failed to place on record the birth certificate of the victim,” the court said and added that the date of birth mentioned in the school register of secondary school certificate has no probative value within Section 35 of the Indian Evidence Act, if the person who gave the information to the school does not give evidence.

NI Act- Once The Presumption Under Sec.139 Is Drawn, Complainant Need Not Prove Source Of Fund Till Accused Discharges His Burden

The Supreme Court has held that once the court has drawn presumption of existence of legally enforceable debt as per Section 139 of the Negotiable Instruments Act, factors like source of funds are not relevant if the accused has not been able to rebut the presumption.

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"When such a presumption is drawn, the factors relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were not of relevant consideration while examining if the accused has been able to rebut the presumption or not", held the bench of Justices A M Sapre and Dinesh Maheswari while dismissing an appeal against a High Court judgment which had reversed the acquittal by trial court.
The case pertained to dishonour of 7 cheques, each issued for Rs.3 lakhs. The defence of the accused was that the cheques were not issued to the complainant, but to his friend with whom the accused had financial transactions, and that such cheques were misused by the complainant. 
The trial court drew presumption that the cheques were issued for a legally enforceable debt based on the admission of signature in cheques by the accused. The trial court however proceeded to hold that that there was no documentary evidence to show source of the amount, transaction was not reflected in records and income tax returns etc. Based on such findings, the trial court held the complainant's case to be not proved and acquitted the accused.
The Trial Court concluded that the accused was successful in bringing rebuttal evidence to the requisite level of preponderance of probabilities; and observed that the complainant had failed to prove, beyond all reasonable doubt, that the cheques were issued in part payment of the loan amount of Rs. 22,50,000/-. Hence, all the 7 complaint cases were dismissed.
On complainant's appeal against acquittal, the High Court found fault with the trial court.The High Court observed that if the transaction in question was not reflected in the accounts and income-tax returns, that would at best hold the lender liable for action under the income-tax laws but, if the complainant succeeds in showing the lending of amount, the existence of legally enforceable debt cannot be denied. 
As the High Court reversed the acquittal, the accused approached the SC. Dismissing the appeal of the accused, the SC observed :
"In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI Act, the Trial Court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the Trial Court had been at variance with the principles of presumption in law(para 17)".
Referring to Kumar Exports v Sharma Carpets (2009) 2 SCC 519, the SC said that the accused need not lead direct evidence to rebut the presumption under Section 139 NI Act and that the same can be done by way of showing lacuna in the complainant's case. However, if the accused does not bring on record any facts to offset the presumption , the court cannot doubt the complainant's case.
"After such presumption, the onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case could not have been raised for want of evidence regarding the source of funds for advancing loan to the accused-appellant(para 17)"
The SC noted that the defence was that the complaint was filed by misusing the cheques given by the accused to a friend of the complainant. This defence was found to be weak on facts.
It may be noted that the accused himself had not advanced any case that the complainant had no capacity to advance the amounts.
In this backdrop, the SC observed :
"The observations of the Trial Court that there was no documentary evidence to show the source of funds with the respondent to advance the loan, or that the respondent did not record the transaction in the form of receipt of even kachcha notes, or that there were inconsistencies in the statement of the complainant and his witness, or that the witness of the complaint was more in know of facts etc. would have been relevant if the matter was to be examined with reference to the onus on the complaint to prove his case beyond reasonable doubt(para 19)".
But since the case was resting on presumption under Section 139 NI Act, such issues raised by the trial court were irrelevant.
"These considerations and observations do not stand in conformity with the presumption existing in favour of the complainant by virtue of Sections 118 and 139 of the NI Act", said the Court.
"Needless to reiterate that the result of such presumption is that existence of a legally enforceable debt is to be presumed in favour of the complainant. When such a presumption is drawn, the factors relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were not of relevant consideration while examining if the accused has been able to rebut the presumption or not"
"The result of discussion in the foregoing paragraphs is that the major considerations on which the Trial Court chose to proceed clearly show its fundamental error of approach where, even after drawing the presumption, it had proceeded as if the complainant was to prove his case beyond reasonable doubt". the Court went on to add.

Ex-Top Court Judge Justice PC Ghose Set To Be First Lokpal

Retired Supreme Court judge Pinaki Chandra Ghose is likely to be the country's first Lokpal, or the anti-corruption ombudsman, sources said today. The other members of the Lokpal would include four former High Court judges, including a woman judge, and four former civil servants, the sources added. The selection was made weeks after the February-end deadline set by the Supreme Court.
Justice Ghose's name was finalised and recommended by the Selection Committee led by Prime Minister Narendra Modi a couple of days ago.
Passed in 2013, the Lokpal Act involves the setting up of a Lokpal at the Centre and Lokayuktas in states to look into cases of corruption against certain categories of public servants.
The panel to choose the candidates -- headed by the prime minister -- includes the Lok Sabha speaker, leader of the opposition in the lower house, the Chief Justice of India or any judge of the Supreme court he nominates, and an eminent jurist who could be nominated by the President or any other member. President Ram Nath Kovind nominated Mukul Rohatgi, a former Attorney General, as the ''eminent jurist''.
But the selection committee, headed by Prime Minister Narendra Modi, had been hobbled by the absence of senior Congress leader Mallikarjun Kharge. Mr Kharge had refused to attend the meetings after he was designated a "special invitee" saying it does not allow him  to participate in the selection process.
He had skipped the last week meeting as well.
The selection committee is expected to include the Leader of the Opposition. In absence of the post following the Congress's poor show in the 2014 Lok Sabha elections, rules for the appointment of the CBI chief have been amended to include the Leader of the Largest Opposition Party.
Mr Kharge alleged that the government has been using his refusal to attend the selection committee meetings as an excuse for not appointing a Lokpal over the last five years.
Puducherry Governor Kiran Bedi tweeted: "Exceedingly happy to see the announcement of LOKPAL. It shall strengthen all anti-corruption systems in the country and give a big boost to vigilance work at all levels. Thank #AnnaHazare for having led and persevered for this cause. Jai Hind."
Justice Ghose was appointed as the judge of the Calcutta High Court in 1997 and elevated to the Supreme Court in 2013.
As the Chief Justice of the Andhra Pradesh High Court, he had convicted Sasikala, the live-in companion of former Tamil Nadu Chief Minister J Jayalalithaa, in a corruption case.

Friday, March 15, 2019

Section 320 CrPC: Courts Have Discretion To Refuse Compounding Of Offences Having Social Impact: SC

"Merely because an offence is compoundable under Section 320 CrPC, still discretion can be exercised by the court having regard to nature of offence." The Supreme Court has observed that a court has discretion to reject a plea to compound an offence having social impact, even if the offence is compoundable under Section 320 of the Code of Criminal Procedure. The case against Bhagyan Das was that, while working as Village Development Officer, he misled a woman about a Financial Scheme and embezzled major amount from her. Under the scheme, an amount of Rs. 9600 was be withdrawn by the joint signatures of both the woman and the VDO. Misusing his position as Government servant, he misled her by making payment of only Rs. 4000. 

Later, the Trial Court convicted him for offence under Section 420 IPC and sentenced him to undergo two years' rigorous imprisonment and also imposed a fine of Rs.2000. On his appeal, the Sessions Court modified the quantum of sentence by reducing it to one year imprisonment, and sustained the imposition of fine. 

Offence affects society at large, Said HC He preferred a revision petition before the Uttarakhand High Court and also filed an application seeking compounding of the offence. Though both parties had appeared before the High Court in person and sought compounding of the offence, the High Court rejected the plea observing that it is not a case which leaves its effect only on the complainant, but to the society at large. Justice Servesh Kumar Gupta had also referred to Gian Singh v. State of Punjab, wherein the constitution bench had observed that compounding powers should be exercised by the Court considering the social impact of the crime in question vis-à-vis its individual impact, as decisive criterion for quashment power in such cases. While dismissing his plea, the court observed thus: "Had this been a case of purely an individual nature without having any social impact, then this Court would have thought for accepting such type of application. Since the accused was a Government Servant working as Village Development Officer and was authorised to withdraw the amount jointly with the beneficiary concerned, but he was found indulged in grabbing the amount meant for the development of the poor villagers in the manner stated hereinabove, therefore, I think it is not a case where it leads its effect only to the complainant Smt. Deveshwari Devi, but to the society at large. It is the one case of embezzlement, which could be highlighted. Possibility of indulging in misuse of his position for grabbing the money of the many other unfortunate poor villagers by such type of Government Servant/convict cannot be ruled out." Courts Have Discretion To Refuse Compounding In the special leave petition filed by the accused, the bench comprising Justice R. Banumathi and Justice R. Subhash Reddy, agreeing with the High court view, observed that merely because an offence is compoundable under Section 320 CrPC, still discretion can be exercised by the court having regard to nature of offence. The court said: "Merely because an offence is compoundable under Section 320 CrPC, still discretion can be exercised by the court having regard to nature of offence, as such it is rightly held in the impugned judgment that as the offence for which appellant was convicted and sentenced, it will have its own effect on the society at large. In view of the reasons recorded in the impugned order rejecting the application for compounding, it cannot be said that the High Court has committed any error in not accepting the application filed for compounding the offence." Though it sustained conviction, the bench taking into account some other factors, modified the sentence imposed on the accused for the period already undergone.

Wednesday, March 13, 2019

Married Daughter Also Has A Right Of Succession In The "Lease Premises" Under Goa Succession Law: SC


The Supreme Court has observed that a married daughter would have a right of succession in the "lease premises", as per the provisions of Goa Succession, Special Notaries and Inventory Proceeding Act, 2012.
The bench comprising Justice L. Nageswara Rao and Justice MR Shah was considering an appeal against the Bombay High Court (at Goa) order that had confirmed an order passed by the Inventory Court holding that a married daughter has no right in the "lease premises" and therefore the same cannot be subjected to the inventory proceedings. In this appeal (Uma Mahesh Bandekar vs. Vivek Sadanand Marathe), the court essentially considered the issue whether the married daughter would have a right of succession in the "lease premises" or not?
Referring to the provisions of the Act, the bench observed that in Section 5 of the Inventory Proceeding Act, 2012, there is no classification between the daughter married or unmarried and son. It cannot be disputed that a daughter, may be a daughter married or unmarried, would have a right of succession in the properties of the parents including the lease, the bench said.
The court also added that the legal position under Portuguese Civil Code has not been changed pursuant to the enactment and enforcement of the Inventory Proceeding Act, 2012, brought into force with effect from 19.09.2016. The bench observed:
"As per Section 68 of the Inventory Proceeding Act, 2012, all the children and their descendants succeed to their respective parents and other ascendants, without distinction of sex or age. Thus, under the provisions of the erstwhile Portuguese Civil Code, 1867 and/or under the provisions of the Inventory Proceeding Act, 2012, there is no further classification between a daughter married or unmarried and son. Therefore, considering the scheme and the 19 provisions of the erstwhile Portuguese Civil Code and as per the provisions of the Inventory Proceeding Act, 2012, which has come into effect with effect from 19.09.2016, even the married daughter would have a right of succession in the "lease premises"."
The court further held that both the High court and inventory court erred in taking into account the Rent Act. The court said that the only question was in respect of the rights of succession of a married daughter in the "lease premises" under the provisions of the Portuguese Civil Code and subsequently under the provisions of the Inventory Proceeding Act, 2012. The bench said:
"It is required to be noted that the proceedings before the inventory court and the High Court were not at all with respect to Goa Rent Act. The proceedings were not between the landlord and the tenant. The provisions of Goa Rent Act shall be applicable with respect to dispute between the landlord and the tenant. As per the preamble of the Goa Rent Act, it has been enacted for control of rents and evictions. At the cost of repetition, it is observed that the dispute was neither under the provisions of the Goa Rent Act nor between the landlord and the tenant and therefore both, the inventory court as well as the High Court have erred in considering the provisions of the Goa Rent Act, more particularly Section 2(o) of the Goa Rent Act. The only question which was before the inventory court and the High Court was in respect of the rights of succession of a married daughter in the "lease premises" under the provisions of the Portuguese Civil Code and subsequently under the provisions of the Inventory Proceeding Act, 2012."

Selection of DGP in State guide lines- SC

The Director General of Police of the State shall be selected by the State Government from amongst the three  seniormost officers of the Department who have been empanelled for promotion to that rank by the Union Public Service Commission on the basis of their length of service, very good record and range of experience for heading the police force.

And, once he has been selected for the job, he should have a minimum tenure of at least two years irrespective of his date of superannuation. The DGP may, however, be relieved of his responsibilities
by the State Government acting in consultation with the State Security Commission consequent upon any action taken against him under the All India Services (Discipline and Appeal) Rules or following his conviction in a court of law in a criminal offence or in a case of corruption, or if he is otherwise
incapacitated from discharging his duties.”

Read full Judgment

Cal HC | Authorised signatory not to be prosecuted under S. 138 NI Act if the company not arraigned as accused

Calcutta High Court: Asha Arora, J., allowed a criminal revision petition filed against the order of conviction and sentence awarded to the petitioners for the offence under Section 138 of the Negotiable Instruments Act, 1881 (dishonour of cheque).
To cut the matter short, the present was a cheque bounce matter. The complainants had filed under Section 138 against the petitioners alleging that Alok Bhagat (Petitioner 2), who was the authorised signatory of Adeptics, a partnership firm, issued a cheque for Rs 1.5 lakhs for receiving goods from complainant’s factory. However, when presented to the bank, the said cheque got dishonoured with the endorsement–payment stopped by the drawer. A demand notice was sent but the petitioners failed to make payment. The matter went to trial and the petitioners were convicted and sentenced. In the appeal, their conviction was maintained but the sentence was modified. Aggrieved still, the petitioners filed the present revision petition.
The petitioners were represented by Ayan Bhattacharya, Ozair Elahi and Sharequl Haque, Advocates. It was pointed out that the cheque was issued by the firm and signed by Mr Bhagat as an authorised signatory. It was argued that to fasten liability upon the partners/directors of a firm/company, impleading it as an accused is imperative. Per contra, Kajal Mukherjee, Surajit Basu and Bikash Chakraborty, Advocates appearing for the complainant opposed the present petition.
The High Court noted that the cheque does not show that it was issued by Mr Bhagat in his personal capacity. It was signed on behalf of the firm as authorised signatory. After discussing Sections 7 and 138 along with Aneeta Hada v. Godfather Travels and tours (P) Ltd., (2012) 5 SCC 661, the High Court observed, “Curiously enough, though the cheque clearly shows that it was issued on behalf of Adeptees, no notice of demand was served on the said firm and the complaint was filed only against the petitioners without the mandatory requirement of impleading the company/firm as one of the accused.” Complainants argued that no such plea was taken before the trial court or the lower appellate court. However, relying on Ajit Balse v. Ranga Karkare, (2015) 15 SCC 748, the High Court rejected the argument. Resultantly, the revision petition was allowed and the impugned judgments were set aside. [N.K.Bhagat v. Biswanath Dey, CRR No. 2487 of 2018, dated 11-03-2019]

Tuesday, March 12, 2019

Apex Court Convicted a Lawyer for Contempt of Court

Bid to browbeat Supreme Court lands lawyer in spot

The Supreme Court on Tuesday convicted a lawyer for contempt of court for alleging that SC judges were unfit to decide which advocate should be designated ‘senior’ as they only conferred this status on judges’ relatives.

During the course of arguments on a writ petition filed by an NGO questioning the process for designating advocates as ‘seniors’, the petitioner NGO’s office-bearer and lawyer Mathews Nedumpara annoyed a bench of Justices R F Nariman and Vineet Saran by alleging, “Judges of the court are wholly unfit to designate persons as senior advocates, as they only designate judges’ relatives as senior advocates.”

In its judgment, the bench recorded the offending conversation and said, “On being asked whether such a designation should be granted as a matter of bounty, Nedumpara took the name of Fali S Nariman. When cautioned by the court, he took Fali S Nariman’s name again. “Thereafter, on being questioned by the court as to what the relevance of taking the name of Fali S Nariman was, he promptly denied having done so.” The bench said Fali Nariman’s name was taken “to browbeat the court and embarrass one of us” and added that Nedumpara’s arguments included such as “lawyers, like judges, are immune from contempt; there can be no defamation against lawyers”.

The bench added, “Conduct of this kind deserves punishment which is severe. Though we could have punished Nedumpara by this order itself, in the interest of justice, we issue notice to him as to the punishment to be imposed upon him for committing contempt in the face of the court. Notice returnable within two weeks from today.” Nedumpara later said he will move an application for recall of the order .

Death only when life term inadequate - SC

Holding that the death sentence should be awarded for heinous crimes only when life imprisonment appears to be wholly inadequate, the Supreme Court on Tuesday spared a man from the gallows and sentenced him to 25 years in jail for raping and murdering a five-and-a-half-year-old girl in 2015.
A bench of Justices N V Ramana, M M Shantanagoudar and Indira Banerjee convicted a school bus driver who had raped and murdered the child while she was on her way to school in Jabalpur and refused to give credence to some discrepancies in the statement of witnesses. It said the traditional dogmatic hypertechnical approach has to be replaced by a rational, realistic and genuine approach for administering justice in a criminal trial.

The accused had taken the ground that there were procedural lapses on the part of police and his alleged confession, which led to the recovery of the victim’s body, was liable to be rejected on the ground that the panchnama was drawn at the police station and not at the spot from where the body was recovered. He said the prosecution’s case mainly rests on the last-seen circumstances, but the said circumstance has not been duly proved.

The court, however, rejected his plea and said there was sufficient evidence to prove his guilt and upheld the trial court and HC’s order of conviction. But the bench commuted the punishment to 25 years’ imprisonment without remission. “As has been well-settled, life imprisonment is the rule to which the death penalty is the exception. The death sentence must be imposed only when life imprisonment appears to be an altogether inappropriate punishment having regard to the relevant facts and circumstances of the crime,” the bench said.
Rejecting the plea of the accused of granting him the benefit of the doubt, the bench said courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused.

“In our considered opinion, all the circumstances relied upon by the prosecution are proved beyond reasonable doubt and consequently the chain of circumstances is so complete so as to not leave any doubt in the mind of the court that it is the accused and accused alone who committed the offence in question. It is worth reiterating that though certain discrepancies in the evidence and procedural lapses have been brought on the record, the same would not warrant giving the benefit of the doubt to the accused/appellant. It must be remembered that justice cannot be made sterile by exaggerated adherence to the rule of proof, inasmuch as the benefit of the doubt given to an accused must always be reasonable, and not fanciful,” the bench said.