Saturday, July 28, 2012

Supreme Court: Not encouraging prostitution

The Supreme Court on Thursday said its orders of providing a dignified life to sex workers should not be construed as an encouragement to prostitution. The clarification came from a bench of Justices Altamas Kabir and Gyan Sudha Mishra after additional solicitor general P P Malhotra drew the court’s attention to its July 19 order in which it had sought suggestions from the SC-constituted panel on creating “conditions conducive for sex workers who wish to continue working as sex workers with dignity”.

Malhotra said there was a danger of the order being construed as an incentive to indulge in an activity that had been termed as an offence under the Immoral Traffic Prevention Act, 1956.

The Judges on the bench passed separate orders, but both meant to clarify that the panel would recommend steps to create “conditions conducive for sex workers to live with dignity as per provisions of the Constitution Article 21″.

Justice Kabir added a precautionary clarification — “The above modification should not be construed to mean any attempt made to encourage prostitution.”

But, Justice Mishra said, “I prefer to add…sex workers have a right to live with dignity but the collective endeavour must be on part of the sex workers to give up the trade in case they are given alternate platform.”

The panel chairman and senior advocate Pradip Ghosh along with member and senior advocate Jayant Bhushan said the clarification in its terms of reference was redundant as it concentrated only on ways and means for rehabilitation of sex workers. The bench asked the panel to present its recommendations on August 22.

Though the bench clarified its July 19 order, Justice Kabir said: “It is all very good for your (government’s) policy to say prevent prostitution but will you provide to fill their stomach. Even a prostitute has a right to live with dignity.”

But Justice Mishra, who was part of the bench with Justice Markandey Katju when it commenced hearing on the issue, clarified, “We started hearing this case to provide suitable alternative to those who joined the profession under compulsion. Our effort was never intended for those who want to carry on this trade.”

On February 14 last year, Justices Katju and Mishra had said: “We strongly feel that the Central and state governments should prepare schemes for rehabilitation all over the country for physically and sexually abused women, commonly known as prostitutes, as we are of the view that prostitutes also have a right to live with dignity under Article 21 of the Constitution since they are also human beings and their problems also need to be addressed.”

The Union health ministry says there are 688,751 “registered” sex workers, while NACO estimates their population to be 12.63 lakh. Andhra Pradesh leads the list with more than one lakh registered female sex workers, while Karnataka has 79,000, followed by Tamil Nadu, Maharashtra and West Bengal. Among the metros, Delhi tops the list with 37,900 sex workers.

The Centre’s application also sought removal of NGO Durbar Mahila Samanwaya Samiti from the Court-appointed panel alleging that it advocated abolition certain provisions of the Immoral Traffic Prohibition Act. The bench rejected the plea saying such an organization, which understood the plight of sex workers, was needed as a “sounding board” for the panel searching for rehabilitation schemes.

Wednesday, July 25, 2012

Allot CNG to Ahmedabad at Delhi price: HC to Centre

To “enforce” the state’s “right to equality”, the Gujarat High Court on Wednesday ordered the Centre to allot natural gas, including CNG, for domestic and vehicular usage to Ahmedabad at the same rate at which it is supplied to Delhi and Mumbai.
Also, to bring down the pollution level, the HC directed the state government to pass necessary orders compelling owners of all the vehicles registered in Gujarat to use natural gas within a year.
The court further directed the state to take stringent steps within a month to check vehicular emissions match the international standards till the order of compulsory use of natural gas is complied with.
A division bench of Chief Justice Bhaskar Bhattacharya and Justice J B Pardiwala passed the order while acting on a set of public interest litigations (PILs) moved by Dhrangadhra Prakruti Mandal (DPL) and Gujarat Rajya Autorickshaw Federation.
In its petition, DPL argued that majority share of Gujarat’s natural gas is used for industrial purpose and very little is left for domestic and vehicular usage. It further said that Delhi and Mumbai get Low Priced Domestic Gas that caters to around 90 per cent of their domestic and vehicular usage.
However, due to non-allocation of the same to Gujarat, inadequate gas supply to City Gas Distribution (CGD) consequently leads to increase of financial burden on the people of the state as it is forced to use almost 100 per cent imported RLNG for CNG and domestic purpose. And this, it added, leads to price rise of around 30-40 per cent.
It also contended that such higher rates lead people to use fuel like petrol and diesel, which are comparatively causing more air pollution. According to the petitioner, the allocation, diversification and price fixation of the natural gas is under the absolute control and powers of the central government.
Allowing the petition, the court directed the Centre not to discriminate between CGDs promoted by central PSUs and others, and Gujarat-based CGDs.
Regarding its order on the compulsory use of natural gas, the court gave the state government liberty to impose additional tax on the sale of natural gas to private vehicle owners to make the gas cheaper for the public vehicle owners.

Fixing time limit for speedy trial will prove harmful: SC

The Supreme Court may have declared in numerous judgments that speedy trial was intrinsic to right to life of an accused, but on Wednesday the court said it was apprehensive about fixing a time limit for completion of a criminal trial as it could be misused by intelligent criminals.

This comment came from a bench of Justices H L Dattu and C K Prasad during the hearing on a petition by advocate Ranjan Dwivedi, who has sought quashing of the trial proceedings against him in the L N Mishra murder case on the ground of inordinate delay saying the 37-year-long trial has blighted him personally, physically and socially.

Senior advocate T R Andhyarujina said Dwivedi was 27-year-old when the bomb blast at Samastipur railway station killed Mishra on January 2, 1975. The trial has dragged on for no fault of his, and now the accused is a frail 64-year-old. He said there was a grave danger of immense prejudice during the trial of Dwivedi as 31 of 39 defence witnesses cited by him to prove his innocence have died. As many as 22 judges have handled the trial at various stages.

"It is a unique case. The apex court has declared that right to speedy trial was a requirement under Article 21 guaranteeing right to life. But, the trial has dragged on for 37 years. In 1992, the Supreme Court had directed day-to-day trial in this case for a speedy conclusion. Two decades later, we are no where near the end," Andhyarujina said.

"Whether the accused would get convicted or acquitted is immaterial. The question important here is whether any judicial system would tolerate such inordinate delay? Should the Supreme Court allow it to continue any more," he added.

The bench said there was no denying that delay had been frequent in the judicial system in India. "Delay will continue to happen given the system we have. Delay definitely affects the trial but can the Supreme Court fix a time limit for completion of a criminal trial. The SC had earlier in a judgment specifically struck down fixation of a time limit for completion of trial," it said.

"It is a unique case. But if we quash the proceedings, we may be sending a wrong signal, which may be used by an intelligent accused at a later date. We do not want this to happen because of our order," the bench said.

The court was apprehensive that if a time limit was fixed on the trial, then an unscrupulous accused could deliberately delay the trial by challenging every order against him in higher courts and thus designed delay the trial to seek its quashing after a decade or so.

The bench said since the trial has reached the fag end after dragging for nearly four decades, it could ask the trial court to complete it in the next three months by holding proceedings on a day-to-day basis refusing adjournment on any ground to the accused and prosecution. It asked Andhyarujina and additional solicitor general Harin Raval to give their views to expeditious completion of the 37-year-long trial by Thursday.

Role of Ananda Marg was suspected in the case, and several people were arrested. The chargesheet was filed against several people, including Dwivedi. The trial was transferred to Delhi by the Supreme Court in December, 1979, after the attorney general alleged that Bihar government was interfering with the trial. Charges were framed against the accused in 1981. Dwivedi was granted bail in 1978.

Monday, July 23, 2012

Biometric RC books to replace at Gujarat state RTOs

 All the books will soon be digitized by the year-end, said road and transport department of the state government.

The pilot project will kick off from Ahmedabad in August. Talking about the initiative, JM Bhatt, RTO, Ahmedabad, said that everyday more than 1200 vehicles get registered in Ahmedabad alone.

"All these new vehicles will be issued a biometric RC book on lines of smart card for the driving license. It will not only ease the transactions with the digital reading for administration, it will also be easier for the vehicle owners to carry it with them. For the existing RC book owners, the books will be called phase-wise and be replaced with cards," he said.

The RC books are used for a number of purposes including getting or renewing insurance of the vehicle, vehicle sales or transfer or to claim the vehicle in occasions of theft or robbery. RTO officials also stated that a special department is to be established to deal with the digital RC books including issue and replacement. The reader machines and printing equipments have been procured.

"Training of the personnel is underway. As we have already digitized or computerized most of the systems including registration of the vehicles and issue of smart cards, it would not be a major issue," said Bhatt.

VINOD KUMAR KOUL v. STATE OF J & K & ORS. [2012] EssenSC 382 (16 July 2012)


CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.5217 OF 2012 (Arising out of S.L.P.(C) No. 30744 of 2010) 
Vinod Kumar Koul ... Appellant 
State of J & K and others ... Respondents

G. S. Singhvi, J.
1. Leave granted.
2. In response to an advertisement issued by the Jammu and Kashmir Services Selection Board, Jammu (for short, ‘the Board’) which was published in the newspaper dated 29.3.1996, the appellant applied for the post of Laboratory Assistant, which is a District cadre post. He appeared before the Selection Committee consisting of respondent Nos. 4 to 6 but was not interviewed on the ground that he was not a permanent resident of District Udhampur.
3. The appellant challenged the decision of the Selection Committee in SSWP No.1656 of 1996 not to consider his candidature on the ground of violation of Articles 14 and 16 of the Constitution. The appellant pleaded that he was qualified for the post and fulfilled other conditions. In support of his assertion that he was a permanent resident of District Udhampur, the appellant annexed certificate dated 15.2.1994 issued by Additional Deputy Commissioner, Udhampur.
4. By an interim order dated 31.12.1996, the learned Single Judge of the High Court directed the Selection Committee to interview the appellant but made it clear that his result shall not be declared without the Court’s order.
5. The Board contested the writ petition primarily on the ground that the appellant is not a permanent resident of District Udhampur and that in view of Circular dated 20.5.1993, only an unambiguous permanent residence certificate issued by the competent revenue authorities of the district could be accepted. Similar written statements were filed by the other respondents.
6. After considering the arguments of the counsel for the parties, the learned Single Judge dismissed the writ petition on the premise that the selection was to be made only from the candidates belonging to District Udhampur and being a permanent resident of District Anantnag, the appellant was not entitled to be considered for appointment in District Udhampur. The Division Bench of the High Court agreed with the learned Single Judge and dismissed the appeal preferred by the appellant.
7. We have heard learned counsel for the parties and perused the record.
In exercise of the powers conferred upon him under Section 124 of the Constitution of Jammu and Kashmir, the Governor of the State framed the Jammu and Kashmir Subordinate Services Recruitment Rules, 1992 (for short, ‘the Rules’). Rules 3(ii), (v), (vi), (vii), (viii), 12, 13, 14 and 17, which are relevant for deciding the question raised in this appeal, read as under:
“3. Definitions:- In these rules unless the context otherwise requires:
i. xxx xxx ii. “Board” means the Services Selection Board constituted under these rules;
iii. xxx xxx iv. xxx xxx v. “Subordinate Service” means and includes all non-gazetted posts under the Government whether grouped into organized service or not;
vi. “State Cadre” means the sanctioned strength of the non-gazetted posts borne on the establishment of the headquartered offices of the departments having jurisdiction over the whole state but does not include the posts borne on the Divisional and district cadres;
vii. “Divisional Cadre” means the cadre of the department in the Division comprising the following posts:- a. All non-gazetted posts, the maximum of the pay scale or the pay as the case may be, of which exceeds Rs. 6000 per month, exclusive of all allowances and dearness pay;
b. All non-gazetted posts, the maximum of the pay scale or the pay as the case may be of which does not exceed Rs.
6000 per month, exclusive of all allowances and dearness pay but which are borne on the establishment of offices above the District level;
viii. “District cadre” means the cadre of a department in a District comprising all the posts whether executive, ministerial, technical or manipulative maximum of the pay scale or the basic pay of which does not exceed Rs.6000 per month exclusive of all allowances and dearness pay;
12. Procedure of referring vacancies to the Board (1) The Administrative Department concerned shall refer all vacancies in the Subordinate Services to the Board by 15th January of every year strictly in accordance with SRO 166 of 2005 dated 14th January, 2005, as amended from time to time, for making selection of candidates for appointment to the posts.
Provided that the Government may for any recruitment to be made under rule 9-A, refer the vacancies in one go at any time.
(2) While referring the vacancies to the Board, the administrative department shall specify the number of posts for which selection to be made from the reserved categories;
Provided that the Appointing Authority may with the prior approval of the Government in the General Administration Department and for sufficient reasons to be recorded make appointment in individual cases or class of cases out side the purview of these rules.
13. Procedure of selection by the Recruitment Board:- The Board shall make selection to the various posts in the following manner;- i) The Board on receipt of the reference of vacancies, advertise the posts, communicate copies of the advertisements to the respective employment exchange, Government Gazette, press and other publicity media so as to achieve wide publicity;
Provided that it shall be mandatory for the Board to:- (a) club the vacancies of District cadre of similar nature referred to it by any department in a calendar year;
(b) club the vacancies of Divisional cadre of similar nature referred to it by any department in a calendar year;
and advertise the same in one go as per laid down procedure and invite applications from the permanent residents of Jammu and Kashmir without prescribing the conditions of domiciliary requirements.
ii) A candidate can apply only in one district for District cadre posts and in one division in respect of Divisional cadre posts;
Provided that if any candidate applies for more than one district or one division, his candidature shall be considered only for the district or the division in which he is ordinarily residing.
iii) The Board shall, ordinarily, restrict the number of applicants for oral and/or written test, as the case may be, to at least five times the number of vacancies on the basis of academic merit in the qualifying examination converted into points on prorata basis out of the total points allocated for the basic eligibility qualification and grant of weightage for the higher qualification in the discipline concerned to be allowed in the manner and to the extent as the Board may deem appropriate for according due consideration to the merit and proficiency in higher qualification:
Provided that the Board may, for reasons to be recorded in writing, conduct a written test for short listing the candidates for admission to the oral test and for purpose of selection of candidates.
iv) The Board shall allot the requisite number of candidates in order of merit and reservation as referred by the appointing authority. The Board shall not maintain any select list for any casual or future vacancies;
v) The General Administration Department may prescribe such proformae as are required for reference of vacancies to the Board and for communicating the select list from time to time.
14. Power to make regulation: - The Services Selection Board may if it considers necessary formulate regulations to provide for the procedure and method for carrying out its functions under these rules:
Provided that prior approval of the Government shall be necessary for issuance of such regulations by the Board.
17. Power to issue instructions:- a) The Government in the General Administration Department may from time to time, issue such directives or instructions as may be necessary for the purpose of carrying out the provisions of these rules.
b) The Government in the General Administration Department, where it is satisfied that the operation of any provisions of these rules causes undue hardship in any particular case or class of cases, by order, dispense with or relax the requirement of that rule as it may consider necessary.”
8. Circular dated 20.5.1993 issued by the Board on which reliance has been placed by the respondents and which constitutes the foundation of the impugned judgment and the order of the learned Single Judge reads as under:
“J&K SERVICES SELECTION BOARD SRINAGAR The Board in its 11th meeting on 20.4.93 took the following decision with regard to the Permanent Residence Certificates.
Only un-ambiguous Permanent Residence Certificate issued by the competent Revenue authorities of the District to which the posts belong should be accepted in respect of District cadre posts. The PRC’s having statements like presently living at should not be taken any cognizance of same will hold good for Divisional Cadre posts as well.
Sd/- (Gouhar Ahmad) Secretary No:SSB/787-806/93 dated 20.5.1993.”
9. It is not in dispute that the post of Laboratory Assistant is a Subordinate Service post and is included in the District cadre for which recruitment is required to be made by the Board on the recommendations of the Selection Committee. In terms of Rule 13(i), the Board is required to club the vacancies of District cadre referred to it in a calendar year, advertise the same in one go and invite applications from the residents of Jammu and Kashmir without prescribing the conditions of domicile. In terms of clause (ii) of Rule 13, a candidate can apply only in one district for the District cadre posts and in one division for the Divisional cadre posts. If a candidate applies for more than one District or Division, then his candidature is required to be considered only for the district or the division in which he is ordinarily residing. In terms of Rule 14, the Board can, with the prior approval of the Government, frame regulations and lay down the procedure and method for carrying out its functions under the Rules.
10. There is nothing in the language of Rule 13(i) or any other Rule from which it can be inferred that for the District cadre post only a permanent resident of the particular district can apply. Rather, Rule 13(i) postulates inviting of applications from the permanent residents of Jammu and Kashmir and not any particular district. Only in terms of clause (ii) of Rule 13 the candidature of a person who applies for more than one district can be considered for the district in which he is ordinarily residing. In our view, in the absence of any statutory stipulation in that regard, it cannot be said that a candidate who is a permanent resident of the State of Jammu and Kashmir is not eligible to be considered for a District cadre post merely because he is not a permanent resident of the particular District for which the post has been advertised.
11. It is neither the pleaded case of the respondents nor it has been brought to our notice that the decision contained in Circular dated 20.5.1993 is a part of the scheme of the Rules or the same embodies some directive or instructions issued by the State Government in the General Administration Department under Rule 17 of the Rules. As a matter of fact, a plain reading of the circular shows that it contains an administrative decision taken by the Board in its meeting held on 20.4.1993.
12. In our view, the administrative decision of the Board, which is ex- facie inconsistent with the plain language of Rule 13(i), could not have been relied upon for determining eligibility of the appellant for appointment as Laboratory Assistant in District Udhampur and the learned Single Judge and the Division Bench of the High Court committed serious error by negating the appellant’s challenge to the decision of the Selection Committee not to consider his candidature and that too by overlooking the fact that at the time of submission of application, the appellant was residing in District Udhampur, which is an integral part of the State of Jammu and Kashmir.
13. In the result, the appeal is allowed. The impugned judgment and the order of the learned Single Judge are set aside. It is declared that the appellant was eligible to be considered for the post of Laboratory Assistant for District Udhampur. The Board is directed to declare the result of the appellant’s interview within a period of 4 weeks from today.
If it is found that the appellant’s name would have figured among the selected candidates, then the Board shall forward its recommendation to the appointing authority. This shall be done within 2 weeks of the declaration of result. Within next 4 weeks, the competent authority shall issue order appointing the appellant on the post of Laboratory Assistant. The appellant shall be entitled to have his seniority fixed in accordance with the Rules.
The parties are left to bear their own costs.

[G.S. SINGHVI] .....................J


Supreme Court awards Rs 10.63 L to road mishap claimants

The Supreme Court has awarded a whopping compensation of Rs 10.63 lakh to the road mishap claimants while taking a serious view of a family fighting a 20-year legal battle for compensation on the death of their sole bread winner in a road mishap.

A bench of Justices G S Singhvi and S J Mukhopadhya also directed an additional amount of Rs five lakh as costs to the family as the New India Assurance Company managed to obtain an ex-parte interim order in 2007 from the Supreme Court for paying Rs two lakh to the claimants until final disposal of its appeal.

 Referring to the pendency of the case in the Supreme Court for the past five years, the bench said, “It should be a matter of concern for those who are associated with this institution as to why an ex-parte interim order passed by the court should continue to operate for years together without the matter being listed for effective hearing.”

  Nanag Ram, who was riding a motorcycle, was killed after being hit by a truck in Jaipur on September 3, 1992.

 ”In the last almost 20 years the claimants – the aged parents, wife and five children of Nanag Ram, who became a victim of road accident in 1992, must have exhausted all their resources in prosecuting and contesting the litigation till the stage of High Court and they must not have been left with money sufficient for engaging an advocate in this court and also because in last almost five years, during which the special leave petition remained pending in this Court, they must have lost all hopes to get justice,” the apex court said.

 “The claimants could get a paltry sum of Rs 2 lakh and they perhaps thought that it will not be worthwhile to spend money for contesting the special leave petition filed by the appellant,” it said in its order.

Saturday, July 21, 2012

Why should aam admi pay for VIP lounge: SC

NEW DELHI: The Supreme Court on Friday said it was unfair to levy Airport Development Fee (ADF) on every passenger flying out of Delhi but allow foreign dignitaries to use VIP lounges free of cost at major airports.

"Our airport facilities are internationally competitive. But Airports Authority of India (AAI) has been a little unreasonable to passengers. In many airports abroad they charge even the dignitaries for using the VIP lounges. In London, it is 400 pounds. Why don't we charge the visiting dignitaries for using our VIP lounges which are much better than many in foreign countries?" asked a bench of Justices D K Jain and Madan Lokur.

"Are we so weak to charge them for using VIP lounges? Instead of burdening the common man, it would be a good idea to levy fee at least on reciprocal basis on foreign dignitaries using these lounges in out airports. They can pay in Indian or foreign currency," it said while issuing notice on a petition by Consumer Online Foundation questioning collection of ADF by Delhi International Airport Ltd (DIAL) on behalf of AAI.

In November last year, the Airport Economic Regulatory Authority (AERA) had permitted DIAL to resume collection of ADF from December 1 for a period of 18 months, which is till May 2013, from each passenger - Rs 221 each from domestic traveler and Rs 1,413 per international traveler.

DIAL had started collecting ADF from passengers from March, 2009, but an order from the Delhi High Court had stalled the exercise in June, 2011.

"The ADF is Rs 1,300 for international passengers and Rs 200 for domestic passengers with an additional 10.3% service tax. We had initially been allowed to collect it for a period of 36 months starting March 2009 and have now received an extension of 18 months. This is the first phase of collection through which we hope to bridge our funding gap by Rs 1,230.27 crore. A cost of Rs 701 crore that would be incurred by DIAL from April, 2010, would be recovered in phase-II of the ADF collection from June, 2013, to February, 2014," DIAL had said.

Appearing for the NGO, senior advocate Rajeev Dhavan said it was for AAI to collect ADF and questioned how a private operator leased to provide certain facilities at the airport could step into the shoes of the statutory authority and collect ADF.

"The ADF was for future construction and development of Airports and not to bridge the gap in the funding for the private operator," he said. However, senior advocate L Nageshwar Rao, appearing for DIAL, said the ADF was for future development and the shortfall in the budget of future structures and not to recover the cost of infrastructure already put in place.

The court issued notice to AAI and DIAL and asked their counsel to be present in court after two weeks.

Wednesday, July 18, 2012

Britain's supreme court strikes down key immigration rule for foreign workers

LONDON: Britain's supreme court has struck down a key provision in immigration rules for foreign workers on the ground that it had not been scrutinized by parliament. The court ruled in a case related to Pakistan national Hussain Zulfiquar Alvi that ministers could not bar foreign workers unless rules used to do so had been shown to parliament.

The ruling concerns the 'shortage occupations list' used by the home office to control migration of foreign workers skilled in occupations that were in demand in the country. The ruling is likely to have an impact on cases that had been refused after 2008.

"The home office's occupation list is usually out of touch with growing business needs and demand. The supreme court judgement may ensure that migrants are not denied a visa based on arbitrary lists produced by the home office," Amit Kapadia, executive director of HSMP Forum, told PTI after the court ruling.

"The decision is good for democratic process and will let MPs debate and decide that the occupation lists are in accordance with the current business needs," he added.

Hussain Zulfiquar Alvi came to the UK in 2003 as a student and stayed on after his studies to become a physiotherapy assistant. In 2009, he applied for further leave to remain under revised rules for migrant workers called the points-based system.

The system, which came into force in 2008, uses points to calculate which migrants have the most skills and would be of most benefit to the UK.

The home office said Alvi could not stay because he did not have enough skills to earn sufficient points. However, Alvi said the decision was unlawful because parliament had not actually scrutinized the specific home office-set rules relating to his occupation.

Rs 1 crore and a flat is cost of Divorce

The Bombay high court has inked a historical judgement in its history by awarding a flat and Rs 1 crore as permanent alimony and maintenance to an estranged wife. A city resident will pay this whooping amount to his estranged wife.

A division bench of Justice A M Khanwilkar and Justice A R Joshi last week gave its approval to the settlement agreed upon by Powai residents Arnab and Piyali Sen. “Since the couple was inclined to amicably settle the matter and had even drawn up the terms of settlement, it would be appropriate and in the interest of their children, who are now grown up and need special attention for further and higher education, to finalize the terms,” said the judges, while adding that they hoped the couple understood that “they have to act responsibly and not create any untoward situation which would jeopardize the settlement terms”.

 As per the settlement Arnab, a businessman, is allowed to sell off his sprawling flat in a 36-storey tower in Hiranandani Gardens, where his wife and two minor children currently reside. Flats in the area sell for around Rs 20,000/sq ft. After paying bank and society dues, Arnab will invest 50% of the proceeds in a new flat in the name of Piyali and their son and daughter. The remainder will go to Arnab, who will also have to pay his wife Rs 50 lakh permanent alimony and Rs 25 lakh each to his children as permanent maintenance.

 This amount will be put into a fixed deposit, and the children will be entitled to withdraw the proceeds when they turn 21.

 Once the flat is purchased and Piyali and the children move in, the couple will approach the family court for a divorce by mutual consent. The couple has also agreed to withdraw all criminal and civil cases that they have filed against each other. Piyali also assured the court that once she receives her alimony she would have no claim over the property owned by Arnab or his family members. She also agreed to let Arnab have weekly access to the children.

 The court has scheduled the matter for further hearing on August 2, 2012, when the couple would inform the judges about the compliance of the terms of the settlement.

 Arnab had moved the family court in 2010 for divorce, which is still pending. The family court had granted maintenance to the two children, which was subsequently fixed by the high court at Rs 12,500 per month for each child. The high court asked Arnab to pay Rs 25,000 as monthly maintenance for each child till he deposits the permanent maintenance.

(Names are changed to secure their identity)

Monday, July 16, 2012

SC: Minor variations in prosecution’s story irrelevant

Minor variations in prosecution’s story cannot entitle the accused to acquittal, the Supreme Court(SC) has upheld the life term awarded to eight West Bengal natives for strangulating a man and chopping his body into pieces for not meeting their extortion demand.

 A bench of SC comprises of Justices A K Patnaik and Swatanter Kumar also held that test identification parade (TIP) is not mandatory though it may help the investigating agency in corroborating the circumstantial and other material evidence and nailing the accused.

 A trial court had awarded death penalty to Panchanan Tarafdar alias Chotka, Uttam Das, Manoranjan Debnath alias Behari, Dipak Das alias Mou, Bishu Saha alias Chor Bishu, Satyajit Das alias Sadhu, Ganesh Das and Shyamal Ghosh but the Calcutta High Court had commuted it to life term after which they had come to the apex court in appeal.

 According to the prosecution, Archideb Bhattacharjee was strangulated and his body cut into several pieces at Patulia Barabagan, Barrakpore-Dum Dum Highway on September 29, 2003, after he expressed his inability to pay them Rs 40,000 on their extortion call.

 The convicts argued they were convicted despite several variations in the prosecution’s claim including the witnesses’ failure to identify Shyamal Ghosh, one of the convicts during TIP.

 “Every variation may not be enough to adversely affect the case of the prosecution. Firstly, these witnesses are rickshaw pullers or illiterate or not highly educated persons whose statements had been recorded by the Police.

 “Their statements in the Court were recorded after more than two years from the date of the incident. It will be unreasonable to attach motive to the witnesses or term the variations of 15-20 minutes in the timing of a particular event, as a material contradiction,” Justice Swatanter Kumar said, writing the judgement for the bench.

The SC rejected main appellant Shyamal Ghosh’s argument that the witnesses had not identified him in the TIP.

 ”The whole idea of a TIP is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity.

 ”It is equally correct that the CrPC does not oblige the investigating agency to necessarily hold the TIP. Failure to hold the TIP while in police custody, does not by itself render the evidence of identification in court inadmissible or unacceptable,” the bench said.

 The SC also rejected the plea of the convicts that the prosecution’s claim cannot be believed as the family had not lodged any complaint of extortion although they were charged with visiting the house of the deceased a number of times prior to the murder.

 ”The fact that they did not inform the police while lodging the missing diary report about the illegal demand for money by the accused persons and that the accused had also threatened the deceased with dire consequences, is not a material omission”.

 ”All the family members must have been under great mental stress as their husband/brother had not returned home,” the bench added while upholding their conviction and lift term.

Sunday, July 15, 2012

Corruption case: High court refuses to release passport of accused

The Gujarat high court has denied permission to an engineer to go abroad, where he got a job. This was because he is accused of corruption and facing a trial. 

Himanshu Ramvani from Bhuj town of border district of Kutch has been an undertrial in an corruption case. When he was released on bail, the concerned trial court imposed a condition that he would not go outside India without court's permission and accordingly he was asked to deposit his passport. 

Ramvani got a job of a Project Engineer in Khimji Ramdas Construction LLC at Muscat, Oman. But he could not join because his passport was impounded by the trial court. Ramvani moved the HC demanding his passport so that he could go to Muscat and join the firm. Before the court, he submitted that a passport cannot be impounded, as it would amount to violation of his fundamental rights. 

Seeking bail, Ramvani told the HC that there was no possibility that charges might not be framed in the case in near future. Hence the condition regarding his foreign visit be struck down and he be allowed to go abroad for the job. 

The state government, however, opposed the bail plea saying that Ramvani did not desire to go for a limited period, but his intention seemed to go for the service and he might settle there permanently. In this case, his presence could not be secured for the purpose of trial. 

The government lawyer also argued that passport is impounded mainly with a view to secure the presence of the accused that he may not flee away from India, when he is required for the trial. 

After hearing the case, justice R H Shukla refused to release Ramvani's passport with observation that such conditions are imposed with purpose of securing accused's presence during the trial. And if the accused permanently settles abroad, the purpose behind imposing such conditions would be defeated.

Sunday, July 8, 2012

Supreme Court grants divorce on the basis of wife’s behaviour

The Supreme Court has granted divorce to a man on the ground of mental cruelty. The court held that crumpling the husband’s ironed clothes or hiding his motorcycle keys to prevent him from going to office may appear to be naughty acts of wife, but would constitutemental cruelty’ for grant of divorce.
Bench of Justices Deepak Verma and Dipak Misra gave this ruling while granting divorce to Vishwanath Agrawal who sought to break with Sarla for causing him ‘mental cruelty’ — she used to crumple his ironed clothes and sometimes hide them and hide his motorcycle keys to prevent him from going to his factory; gave a false advertisement in a newspaper that he was a womaniser and addicted to liquor and also filed a criminal case against him.
Rejecting the findings of the trial court and the Bombay High Court that there was no direct evidence and that the grounds complained of by Mr. Agrawal were only childish acts on the part of Sarla, the Bench said: It does not require Solomon’s wisdom to understand the embarrassment and harassment that might have been felt by the husband. The level of disappointment on his part can well be visualised like a moon in a cloudless sky.”
The Bench said: “That apart, in the application for grant of interim maintenance, she had pleaded that the husband was a womaniser and drunkard. This pleading was wholly unwarranted and, in fact, amounts to a deliberate assault on his character. Thus, we have no scintilla of doubt that the uncalled-for allegations are bound to create mental agony and anguish in the mind of the husband. The factual matrix would reveal that the husband comes from a respectable family engaged in business. At the time of publication of the notice, the sons were quite grown up. The respondent-wife did not bother to think what impact it would have on the reputation of the husband and what mental discomfort it would cause [him]. It is manifest from the material on record that the children were staying with the father. They were studying in school and the father was taking care of everything. Such a publication in the newspaper having good circulation can cause trauma, agony and anguish in the mind of any reasonable man. In fact, it can decidedly be said that it was mala fide and the motive was to demolish the reputation of the husband in society.”
The Bench said: “The cruel behaviour of the wife has frozen the emotions and snuffed out the bright candle of feeling of the husband because he has been treated as an unperson. Thus, analysed, it is abundantly clear that with this mental pain, agony and suffering, the husband cannot be asked to put up with the conduct of the wife and to continue to live with her.”
The Bench directed the appellant to pay her Rs. 50 lakh as permanent alimony and allowed his appeal for divorce.

Friday, July 6, 2012

SC quashes CBI probe against Mayawati in disproportionate assets case

In a relief for Mayawat, theSupreme Court on Friday said that there was no material evidence against the BSP chief in the alleged disproportionate assets case against her.

The apex court said it had never asked the CBIto investigate Mayawati's alleged disproportionate assets while ordering registration of FIR into Rs 17 crore Taj Heritage Corridor scam.

"The CBI should not have lodged disproportionate assets case against Mayawatias there was no direction regarding it from this court," the SC bench observed.

The apex court quashed the FIR lodged by the CBI in the DA case against Mayawati terming it as illegal.

The CBI had lodged 2 FIRs, one in Taj Heritage Corridor scam and the other against Mayawati.

Mayawati had filed a petition in May 2008, seeking quashing of the criminal proceedings against her in the DA case, lodged by the CBI over eight years ago. She had alleged it was an act of political vendetta against her.

A bench headed by P Sathasivam had reserved its judgment on May 1 after two-hour-long hearing during which the former Uttar Pradesh chief minister had accused the CBI of "fixing" the DA case against her, a charge refuted by the agency.

Mayawati had said the bench should direct the CBI to consider the aspect of order passed by the Income Tax Tribunal holding that her income was genuine and the order had also been upheld by the Delhi high court.

The CBI had said there was "ample evidence" to show that she had amassed wealth disproportionate to her known sources of income. Mayawati had claimed she had received the money as donations from party workers.

Railway not responsible for luggage loss in passenger custody

The Maharashtra Consumer Redressal Commission has observed that if luggage is not handed over to railway administration against a proper receipt, the Railways will not be responsible in case of any theft or loss.
The commission was hearing an appeal filed by a Divisional Railway Manager (DRM) of Central Railways against the order of a district consumer redressal forum which had directed the DRM to pay Rs 1.35 lakhs to US resident Anagha Prasanna Walimbe for loss of her gold ornaments.
“It is not stated anywhere that the suitcase containing ornaments was under lock and key and when it was opened after leaving Pune railway station and reaching residence,” the bench presided by commission member S R Khanzode observed recently.
Khanzode also observed that the complaint of theft lodged with the Railway Police was closed and made final as the ornaments were not traceable.
In the absence of any cognate evidence placed on record by Walimbe, the railway administration shall not be held responsible for negligence or rendering deficient service to provide security/ protection to the luggage in the custody of the passenger, though traveling on a reserved ticket, Khanzode also said.
The Sholapur district consumer forum had directed the railways to pay Rs 1.35 lakhs along with 9 per cent interest after Walimbe filed a complaint saying that she traveled in the reserved second class on December 25, 1998, from Sholapur to Pune.
In her complaint, she said her luggage was kept under lock and key with her and after reaching Pune railway station, she took an autorickshaw to reach home. When she verified her luggage at night she found that her gold ornaments were missing from the suitcase.
She filed a case with the Railway police the next day.
Walimbe had alleged deficiency in service on the part of the railway administration and said there was no police bandobast or ticket collector to take care of her belongings of the passengers.
However, railways said she did not deposit her luggage with the authorities. Accordingly, she did not take a receipt.