Wednesday, November 6, 2019

The kin of former Chief Minister Farooq Abdullah challenging their alleged house arrest by the State, dismissed - J & K high Court

The Jammu and Kashmir High Court on Tuesday declined to entertain the pleas filed by the kin of former Chief Minister Farooq Abdullah challenging their alleged house arrest by the State.
Justice Ali Mohammad Magrey dismissed the pleas filed by Muzafar Ahmad Shah, Begum Khalida Shah and Dr. Mustaffa Kamal in this regard, opining that their plea involved disputed questions of fact in which case the High Court is not the appropriate forum to approach by way of a writ petition. The order reads,
"... a Writ Court is neither to hold an enquiry into the allegations made in a petition, nor take oral evidence. In writ proceedings, a fact is to be supported and proved by authentic documentary evidence. 
Whereas the petitioners had alleged that they were being unlawfully detained in their houses since September 5, 2019, the State countered the submission on the strength of a communication by the Additional Deputy Commissioner. The said communication stated that neither have the petitioners being placed under house arrest, nor has their liberty been curbed.
In response, the petitioners' counsel had also submitted certain paper clippings to show that the petitioners were in fact under house arrest. However, the Court declined to place reliance on the same, remarking that,
"Press cuttings cannot be relied upon as authentic documentary evidence. Further, a Writ Court cannot hold enquiry into disputed facts."
The Court proceeded to observe that,
"Once facts are disputed, the writ petition is rendered not maintainable. In such circumstances, the only option available to a Writ Court is to dismiss the writ petition, leaving the party concerned free to take recourse to appropriate remedy."
It, therefore, dismissed the petition as not maintainable before the High Court and unnecessary. However, the judge clarified that the parties were free to pursue other appropriate legal remedies available to them.
"In light of the above, this petition is dismissed, as being not maintainable and unnecessary, leaving the petitioner free to take appropriate remedy available to him under law before an appropriate forum."
Farooq Abdullah himself was recently placed under house arrest invoking the Public Safety Act (PSA), following the abrogation of Article 370 of the Constitution.

Wednesday, October 9, 2019

Traffic rule violators can be prosecuted & punished independently under both MV Act and IPC: SC


Emphasising the need to strictly people for violating traffic rules and for causing accidents punish by their rash and negligent driving, the Supreme Court has held that offenders could be tried and punished separately under Motor Vehicles Act and also under stringent Indian Penal Code. 

Setting aside Gauhati high court verdict ruling that the provisions of IPC cannot be invoked against traffic rule violators and they could be punished under MV Act, a bench of Justices Indu Malhotra and Sanjiv Khanna said the ingredients of offences under the both statutes are different and an offender can be tried and punished independently under both statutes. 
It said the principle that MV Act being special law should prevail over the general law has no application in cases of prosecution of offenders in road accidents under the IPC and MV Act. Differentiating between the two laws, the bench said that MV Act is a beneficial legislation whose primary objective is to provide a statutory scheme for compensation of victims of motor vehicle accidents but the IPC, on the other hand, is a punitive and deterrent in nature whose object is to punish offenders for offences committed under the IPC.

The court said that keeping IPC out of traffic rule violation cases would lead to anomalous situation as the accused could be lets off with lightly as offences under MV Act are compoundable in nature and no proceedings would be initiated if the accused pleads guilty and deposits the fine imposed. It also pointed out that there is no provision under the MV Act which separately deals with offences causing death, or grievous hurt. 
“If the IPC gives way to the MV Act, and the provisions of CrPC succumb to the provisions of the MV Act as held by the High Court, then even cases of culpable homicide not amounting to murder, causing death, or grievous hurt, or simple hurt by rash and negligent driving, would become compoundable. Such an interpretation would have the consequence of letting an offender get away with a fine by pleading guilty, without having to face any prosecution for the offence committed,”the bench said. 

“This Court has time and again emphasised on the need to strictly punish offenders responsible for causing motor vehicle accidents. With rapidly increasing motorisation, India is facing an increasing burden of road traffic injuries and fatalities. The financial loss, emotional and social trauma caused to a family on losing a bread winner, or any other member of the family, or incapacitation of the victim cannot be quantified,”it said.

It said that Sections 279, 304 Part II, 304A, 337 and 338 of IPC have been specifically framed to deal with offences like rash and negligent driving resulting in death, or hurt, or grievous hurt and an accused could be prosecuted under both the laws simultaneously. 
“The principle of proportionality between the crime and punishment has to be borne in mind. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. The maximum imprisonment for a first time offence under Chapter XIII of the MV Act, is up to only six months; whereas the maximum imprisonment for a first time offence under the IPC in relation to road traffic offences can go upto 10 years under Section 304 Part II of the IPC. The sentence imposed by the courts should be commensurate with the seriousness of the offence, and should have a deterring effect on wrong doers. The punishment of offenders of motor vehicle accidents under the IPC is stricter and proportionate to the offence committed, as compared with the MV Act,”the bench said. 
“We thus hold that a prosecution, if otherwise maintainable, would lie both under the IPC and the MV Act, since both the statutes operate with full vigour, in their own independent spheres. Even assuming that some of the provisions of the MV Act and IPC are overlapping, it cannot be said that the offences under both the statutes are incompatible,”the bench said.

Sunday, October 6, 2019

Supreme Court has directed the Bihar Police Subordinate Service Commission to conduct their physical tests

"The presence of lady members in the police force, considering the crime against women, is a prime need of the hour. Thus we feel that every endeavor should be made to ensure that there is higher representation of women in the police services," said the bench comprising Justices Sanjay Kishan Kaul and Krishna Murari.

Saturday, September 28, 2019

Maradu flats: Complete demolition in 138 days; pay Rs 25L compensation to owners, directs SC

The Supreme Court Friday directed demolition of flats built on the coastal zone of Kochi's Maradu within 138 days and asked the Kerala government to pay Rs 25 lakh interim compensation to each flat owner within four weeks.

The top court also ordered setting up of a one-member committee of retired high court judge to oversee the demolition and assess total compensation.

A bench comprising justices Arun Mishra and S Ravindra Bhat directed freezing of assets of builders and promoters who were involved in the construction of illegal buildings in the coastal zone areas of Kochi.

The bench further said the government may consider recovering the interim compensation amount from the builders and the promoters.

Kerala Chief Secretary Tom Jose was present at the hearing. The court said his presence would not be required during the next hearing on October 25.

Senior advocate Harish Salve, appearing for the Kerala government, informed the bench that power and water supply were disconnected to the four apartment complexes in Kochi on Thursday.

The apex court said there should be no reason for delay in demolition and gave the example of Kant enclave in Faridabad where illegal structures have been demolished, and modalities of recovering the money from those responsible for such construction has been worked out.

The bench clarified that the court's primary concern was that no construction should have been carried out at the eco-fragile coastal zone and the question was not regarding any individual.

While Salve was making submissions relating to the nitty gritty of demolition exercise that has to be carried out, the bench said, "If you cannot do it, we will think of involving some other outside agency."

Salve said the state government has submitted a plan under which in 138 days the structure would be demolished -- including 90 days for demolition and 38 days for removing of debris.

He said the buildings need to be brought down through implosion and expert agency will be appointed by October 11 to carry out the work.

The apex court on September 23 had said that illegal construction in coastal areas of Kerala is a "colossal loss" to the environment, and had expressed shock over spate of unauthorised structures coming up at Kochi's Maradu.

The top court had said that it appears that the authorities, rather than preventing the violations, were trying to mobilize the public opinion and time has come to hold them responsible for their active connivance in such activities of degrading the environment and violation of the coastal zone regulations.

The apex court had also sought a concrete plan from the Kerala government on the removal of illegal structures.

On May 8, the apex court had directed that these buildings be removed within a month as they were constructed in a notified CRZ, which was part of the tidally-influenced water body in Kerala.

The court had passed the order after taking note of a report of a three-member committee, which said when the buildings were built, the area was already notified as a CRZ and construction was prohibited.

Tuesday, September 24, 2019

Cricket star Warne gets driving ban

FORMER cricketer Shane Warne has been banned from driving for 12 months after racking up six speeding offences in three years.
The Australian spin bowler (pictured) admitted breaking a 40mph limit in a hired Jaguar car in Kensington when he had 15 penalty points on his licence, Wimbledon magistrates heard.
Warne, 50, who was not in court, was clocked at 47mph at 6.29am on a slip road on August 23 last year.

Saturday, September 21, 2019

Man’s death in MRI room: Bombay high court grants interim compensation of Rs 10 lakh to kin

The 
Bombay high court
 on Tuesday granted interim compensation of Rs 10 lakh to the family of a 32-year-old salesman in Mumbai who died last January after being 
sucked into an MRI machine 
at a civic hospital, observing that the “unfortunate incident’’ was prima facie a case of negligence. 

The HC directed the civic body and 
BYL Nair hospital 
, where the death occurred, to pay the amount within six weeks offering some reprieve to the victim's family.


“But for the 
on part of hospital authorities the incident wouldn’t have taken place,’’ said the HC bench of Justices Akil Kureshi and SJ Kathawalla on Tuesday. “Hospitals should take all necessary precautions based on such case. Municipal hospitals are visited by a large number of people, relatives, many from rural areas lacking in awareness. It would be unreasonable to think that they are aware about entering 
 room without metal objects," said Justice Kureshi dictating the order in open court.

The court also directed the family to put the amount in a fixed deposit. The state chief minister's relief fund had released Rs 5 lakh to the family last year, said the Brihanmumbai Municipal Corporation (BMC) counsel Joquim Reis. The FD, the court suggested, is to ensure that the money is secure and grows, after observing that the man, a salesman with a ‘multi brand outlet’ earning Rs 36,000 monthly was the “virtually sole earning member’’ who lived with his aged parents and unmarried sister. “The proof of income is not conclusive,’’ observed the HC, adding that the final compensation amount would be computed after a detailed hearing where his age, income, dependents and future earning capacity would be factored in.
 resident, Rajesh Maru, died after getting pulled into the MRI machine along with an oxygen cylinder he allegedly carried into the room for his ailing relative.

The HC noted the contents of an FIR filed and statements recorded in the case too.

BMC special counsel Joaquim Reis had argued that it was the first incident of its kind and a departmental inquiry was being conducted and the role of four others being probed. He had submitted that a preliminary inquiry, subject to final inquiry, had pointed towards two staff, a ward boy and another, for prima facie negligence.

“As per the employer, its staff was negligent in discharge of duties.The BMC thus cannot avoid its liabilities to pay compensation,’’ said the HC in the interim order.

Saturday, September 14, 2019

Don’t indiscriminately attach bank accounts: Gujarat HC

The Gujarat high court on Friday directed GST officials not to use their powers to attachproperties during tax evasion probes to “harass” businessmen.
The high court observed that attachment of properties, especially bank accountsof businessmen, may damage their business. Hence the power should be used sparingly.

The high court was dealing with cases filed by one Pranit Desai and his six companies after GST officials attached various bank accounts during their investigation into input tax credit fraud to the tune of Rs 43 crore. Desai complained that the attachment was affecting his business badly because he was unable to make transactions since March. He is into manufacturing of refractive lining material.

The issue before the high court was the powers conferred on GST officials under Section 83 of the GST Act. The bench of Justice J B Pardiwala and Justice A C Rao observed that provisional attachment under Section 83 should be made after the assessing officer feels that it is absolutely necessary in the interest of revenue.

The court said, “The power conferred upon the Assessing Authority under Section 83 is very drastic, far-reaching power and that power has to be used sparingly and only on substantive weighty grounds and for valid reasons. To ensure that this power is not misused, no safeguards have been provided in the Section 83…It should not be exercised unless there is sufficient material on record to justify the satisfaction that the assessee is about to dispose of the whole or any part of his property with a view to thwarting the ultimate collection of the demand.”

The court made it clear, “It (attachment) should neither be used as a tool to harass the assessee nor should it be used in a manner which may have an irreversible detrimental effect on the business of the assessee.”

The high court ordered the government to release all bank accounts belonging to Desai and his six companies with the observation, “The attachment of bank accounts and trading assets should be resorted to only as a last resort because, the attachment of the bank accounts of the assessee would paralyse the functions and business of the assessee.”

Friday, September 13, 2019

'Sorry, have lost faith in you': Madras High Court slams Tamil Nadu govt after AIADMK's illegal hoarding kills 23-year-old techie

  • Madras High Court came down heavily on the Tamil Nadu government on Friday after a 23-year-old Chennai woman was killed in an accident after a large flex board fell on her. 
  • The court, which has on previous occasions outlawed the use of large political hoardings along streets, expressed its displeasure on the non-compliance of its order by the ruling party.
  • A hoarding about AIADMK party had come off lose and fallen on Subashree, a software engineer, after which she fell off her two-wheeler and came under a water tanker on Thursday.
A hoarding about AIADMK party had come off lose and fallen on Subashree, a software engineer, after which she fell off her two-wheeler and came under a water tanker on Thursday. The accident took place on the Pallavaram-Thoraipakkam road when the woman, a resident of Chromepet in Chennai, was on her way back home. The victim received serious head injury and was rushed to Kamakshi Hospital where she later passed away.