Friday, June 30, 2017

HC slams CBI judge for being ‘robot’ at trial

Gujarat high court said that the inaction on the part of the CBI judge, D L Patel, during the trial was one of major reasons it was ordering a retrial in the Amit Jethava murder case. Justice J B Pardiwala said, "I am very sorry to say that the presiding officer also failed in his solemn duty to reach the truth. The presiding officer remained a mute spectator for one reason or the other and continued to witness the drama of mockery of justice."

The HC was unhappy at the way the CBI judge remained unperturbed through the trial. The HC said that the judge cannot remain "a robot" or "a recording machine" while witnesses were being won over. Judges are not merely "passionless thinking machine" who do not react to a situation and do not become suspicious when witnesses turn hostile and the prosecution does not ask them questions, the HC said.
The HC criticized trial courts because the "tendency to acquit an accused easily is galloping fast" to show high disposal of cases. Courts' responsibilities increase at a time when crime is increasing.

The HC judge said that the maxim, 'Let hundred guilty persons be acquitted, but not a single innocent should be convicted, is changing the world over and the courts are compelled to accept that "society suffers by wrong convictions and it equally suffers by wrong acquittals".

"A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape," the HC order reads.

Justice Pardiwala called for a need to change in the judiciary, "Time is ripe for the courts to take some positive action...the need of the hour is robust judging."

Wednesday, June 28, 2017

‘No criminal cases in disputes of civil nature’

In an important order, Gujarat high court has held that criminal cases with "overwhelmingly and predominantly civil flavour" can be quashed.

The high court elaborated on what kind of cases can be quashed. It said that the court may interfere in cases of offences particularly those arising from "commercial, financial, mercantile, civil and partnership or such type of transactions".

The high court further said that there is no need to put the accused person in cases with civil nature to "great oppression and prejudice" by putting him on criminal trial because there is not even a remote chance of conviction.
The high court had made it clear that a criminal case lodged due to any business transaction or payment related issue, wherein criminal intention is not substantiated at the outset of the deal, may be quashed. Justice BN Karia observed: "Extreme injustice would be caused to him (accused) by not quashing the criminal trial."

The high court quashed an FIR against Vasudev Agrawal and three others who were accused of theft and encroachment on another person's land. The land in dispute is situated on the highway at Sanathal on the outskirts of Ahmedabad. The dispute was related to ownership of the plot, which was allegedly sold in the 1980s. The complainant, who lives abroad, accused Agrawal of trying to usurp land that was actually in his ownership.

On the other hand, Agrawal supplied documents revealing that they were bona fide purchasers of the plot and had issued public notice thrice before the purchase. The land parcel was later sold twice. Agrawal's advocate  submitted that they were implicated in the case by the complainant to usurp the land and extort money. A civil case was also filed in this matter and the civil court had rejected the arguments by the complainant in this case.

After hearing the case, Justice Karia noted: "It would be unfair to continue with criminal proceedings, and it would cause abuse of the process of law."

Tuesday, June 27, 2017

Litigant must be vigilant of proceedings, cannot cast entire blame on advocate: Delhi HC

The Delhi High Court last month held that the litigant has a duty to be vigilant of the judicial proceedings pending against him or initiated at his instance.
The facts of the case were that Moddus Media Pvt. Ltd. had filed an application for condonation of 400 days’ delay in filing an appeal against an adverse judgment. The applicant claimed that their counsel Pradeep Kumar misled them by assuring them that he was taking care of the matter, when he had in fact stopped attending the proceedings.
It was further alleged that after the judgment and decree was passed on August 31, 2015, the counsel informed them that the civil suit filed by the respondent/plaintiff company has been dismissed by the Court and that there was no need to panic.
The applicants claimed that they requested their lawyer to provide copies of documents and the court order. It was also alleged that towards the end of 2015, the company’s authorised representative again requested the counsel to give him copies of all the documents. Despite reassurances that he would do so, the lawyer failed to provide the documents.
They tried to contact the counsel several times through SMS/WhatsApp messages, but to no avail.
It was also alleged that their new counsel inspected the file of the case and they moved an application under Order XXI Rule 26 of CPC before the Executing Court. They also lodged a complaint against Kumar with the Bar Council of India on November 5, 2016.
It was submitted that the previous counsel had been negligent in not attending the court proceedings and not informing them about the progress of the case and that the appellant company should not be made to suffer for the negligence of their lawyer.
Regarding the complaint against the lawyer to the Bar Council of India, the Single Judge Bench of Justice Vinod Goel stated:
“It is nowhere alleged that after impugned judgment and decree dated 31.08.2015 their lawyer Pradeep Kumar had informed them that the suit of the respondent/plaintiff has been dismissed or they requested him to supply them copies of decree and order..It is also not alleged that their counsel stopped appearing in the case from 10.11.2014 as alleged in the application.”
The Court further stated that if their lawyer stopped appearing from November 2014, the appellant company should have contacted their lawyer or engaged another lawyer in the matter. Justice Goel noted that they could have appeared in person, and they did not bother to inquire from their previous counsel as to why he stopped appearing.
“If they were informed by their counsel after the decision in the suit and copy of order was not supplied, they should have gone to lawyer personally or to court to obtain copies of orders or should have taken assistance of other lawyer. But they were not serious at all.”
Regarding the conduct of the litigant, the Court observed:
“The litigant owes a duty to be vigilant of his rights and is also expected to be equally vigilant about the judicial proceedings pending in the court of law against him or initiated at his instance. The litigant cannot be permitted to cast the entire blame on the Advocate.
…After filing the civil suit or written statement, the litigant cannot go off to sleep and wake up from a deep slumber after passing a long time as if the court is storage of the suits filed by such negligent litigants.
…If the litigant does not turn up to obtain the copies of judgment and orders of the court so as to find out what orders are passed by the court is liable to bear the consequences.”
The Court further stated that the appellant company was either concealing true facts of its knowledge of dismissal of the suit or they have been careless and negligent in pursuing their case. Therefore, the Court held that the appellant did not make out a case for condonation of delay.
Moreover, the Court dismissed the appeal filed against the decree and order of the trial court.

SC refuses to pass interim order on govt order making Aadhaar mandatory for social welfare schemes

The Supreme Court, on Tuesday, refused to pass an interim order on the government’s notification making Aadhaar mandatory for using benefits of various social welfare schemes, news agency PTI reported.
A vacation bench comprising Justices AM Khanwilkar and Navin Sinha said no interim order can be passed at this stage on the “mere apprehension” of petitioners that government may deprive people from availing benefits of various social welfare schemes due to lack of Aadhaar.
“No interim order can be passed in mandamus on mere apprehensions. You have to wait for one week. If somebody is deprived (of the benefits) you can point out the same to this court,” the bench told counsel for the petitioners Shyam Divan and posted the matter for further hearing on July 7.
Divan told the court that the government should be directed not to deprive any person of the benefits of social welfare schemes which he/she is enjoying now due to lack of Aadhaar.
The government also informed the apex court that the June 30 deadline has now been extended to September 30 for those who are availing benefits of social welfare schemes but don’t yet have an Aadhaar number. The court referred to its June 9 verdict and said no further observation is needed in the matter pending before it.

Monday, June 26, 2017

The 19-year-old boy killed hisf ather for raping married sister

A 19-year-old boy killed his father after he got to know that the latter had raped his married sister in a village of Jamnagar's Jodiya taluka on Sunday.
Police said the traumatized rape survivor called up her brother, who lived in Jamnagar city, and told him about the sexual assault by her father. The man had raped his daughter twice on Sunday morning.

The furious boy immediately rushed home and asked his father about the crime. After a heated altercation, he strangulated him till he died.
"The rape survivor had returned to stay with her mother since one month due to troubled relationship with her husband in Devbhoomi Dwarka district. Her father, who worked as casual labourer, came home once every 10-15 days," P S Koringa, sub-inspector, Jodiya police station told News agency.
The boy has been detained by police.

High court pulls up officials, elected representatives for interfering in bail matters

The Gujarat high court on Friday castigated the government and public office-bearers for the practice of issuing certificates advocating prisoners' bail and warned them not to interfere with the functioning of the court.
A bench of Justice Abhilasha Kumari and Justice A J Shastri termed advocating prisoners' bail on temporary basis — by elected representatives and revenue officials at the village level — as a 'disease, which needs to be eradicated'. In the line of fire were a talati-cum-mantri of Mota Vadodar village of Lunavada taluka in Mahisagar district, a woman sarpanch of Samli village in Panchmahal district and a councillor of Bharuch municipality.

A murder accused, Babubhai Vankar, obtained a letter recommending the extension of the bail period from the woman sarpanch. Since the sarpanch is illiterate, her husband issued a letter advocating more time in prisoner's freedom. The judges made it clear that the high court does not need any recommendation from public in judicial work. The court did not grant any relief to prisoners and deprecated the practice of such recommendation by office-bearers, calling it "overstepping the limit of their power".
The court took the letter issued by Bharuch councillor Babubhai Vasava very seriously and observed that there is a direct nexus between elected representatives and prisoners in jail. The bench directed the secretary of urban development and urban housing department to issue appropriate notification/guidelines to curb the malpractice.

The high court said that a councillor's duty was to monitor civil and public works and said a councillor was not authorized to issue certificates to convicts. The high court further observed that the gesture of issuing such a letter is not only beyond the scope of the duties of a councillor, but it "constitutes a direct interference in the judicial functions of the court." The court went on to say: "The court does not need recommendations from any elected personality in order to perform its judicial functions. Further, it reveals the direct nexus between such elected representatives and convicted persons, who are serving sentence in jail."

Prison riot: FIR against Indrani Mukherjee, others

Around 200 women inmates, including Sheena Bora murder case accused Indrani Mukherjee, have been booked for rioting and criminal conspiracy inside Byculla jail.

The Nagpada police also filed an FIR against six Byculla women prison staffers, including a jailor, for the murder of a 31-year-old convictManjula Shetye, inside the jail on Friday. The Bhandup resident was serving life term in Yerwada jail since 2005 for the murder of her sister-in-law, and was shifted to Byculla prison recently.

A case of murder was registered at Nagpada police station after the jail officials received the post mortem report on Saturday. The report signed by three doctors—P A Patil, N P Kamble and S V Khandare from JJ Hospital—stated 'evidence of multiple contusions' as the cause of death. Samples of her viscera will be sent for forensic analysis.

The six officials—jailor Manisha Pokharkar and guards Bindu Naikode, Waseema Shaikh, Sheetal Shegaokar, Surekha Gudve and Aarti Shingane—were suspended on Saturday for dereliction of duty after the news of Shetye's death spread. On Saturday morning, around 200 women inmates, including Indrani Mukherjee, climbed up the two-storey jail's terrace and staged a protest over the death, with some of them setting papers, books and clothes on fire. Nagpada police, who rushed to the prison and brought them down, have registered a case of rioting and criminal conspiracy against the protesters.

Sunday, June 25, 2017

Sandhya Rani Debbarma & Ors vs The National Insurance Co. Ltd & ... on 16 September, 2016

Supreme Court of India

Sandhya Rani Debbarma & Ors vs The National Insurance Co. Ltd & ... on 16 September, 2016

Author: V G Gowda

Bench: V. Gopala Gowda, Adarsh Kumar Goel

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NO. 9194  OF 2016
                   (Arising out of SLP(C) No.1448 of 2014)



COMPANY LTD. & ANR.                    … RESPONDENTS

                               J U D G M E N T


Leave granted.

The present appeal has been filed after a delay of 2824 days against the impugned judgment and order dated 17.05.2006 passed by the learned single judge of the High Court of Tripura at Agartala in Writ Petition (C) No. 113 of 2006. The Writ Appeal preferred by the appellants against the same before the Division Bench of the High Court, came to be dismissed as not maintainable vide judgment and order dated 22.08.2013. The appellants herein filed an SLP challenging the same. Vide order dated 05.05.2014, this Court directed the appellants to amend the Special Leave Petition and impugn the judgment and order of the learned single judge as well. Having regard to the fact that the delay was caused only on account of the appellants pursuing the remedy of filing a Writ Appeal before the Division Bench of the High Court, as well as the fact that claim is made under Section 166 of the Motor Vehicles Act, 1988, which is a beneficial legislation, we deem it fit and proper to condone the delay in filing the Special Leave Petition. Hence, delay is condoned.

The necessary relevant facts required to appreciate the rival legal contentions advanced on behalf of the parties are stated in brief hereunder:

On 14.11.2003, the deceased, while travelling in a vehicle (Jeep) bearing No. TR013476 met with an accident at Assam-Agartala Road near Banukumari, at Baramur due to collision with a Bus bearing No. TR01-1212 coming from opposite direction. He was taken to the nearby Government Hospital namely, GBP Hospital, Agartala where he was declared ‘brought dead’. Jirama P.S. Case No. 90 of 2003 was registered on the very same day under Sections 270338and 304A of the Indian Penal Code (hereinafter referred to as “IPC”).

The appellants herein (being the legal heirs of the deceased) filed Title Suit (M.S.C.) No. 1 of 2004 before the Motor Accident Claims Tribunal, West Tripura, Agartala (hereinafter referred to as “the Tribunal”) claiming a total compensation amounting to Rs.33,45,000/-. It was submitted that the deceased was survived by his parents, wife and two minor children. On the day of the accident, his age was 31 years and 4 months. He was working as Junior Engineer (Grade-I) under the Government of Tripura and drawing monthly salary of Rs.13,504.50/-, without imposition of income tax, as per the statutory exemption in the state of Tripura from paying income tax to the members of Scheduled Tribes. The owner of the jeep and its insurer-National Insurance Company Ltd. as well as the owner of the Bus and the insurer-Oriental Insurance Company Ltd. were made parties to the claim.

The Tribunal by way of judgment and award dated 14.12.2005 held that the age of the deceased being 31 years at the time of the accident, a multiplier of 17 would be applicable and awarded as under:

|Head under which awarded       |Amount                      |
|Loss of dependency             |32,32,000/-                 |
|Funeral expenses               |2,000/-                     |
|Loss of consortium             |25,000/-                    |
|Loss of estate                 |2,500/-                     |
|Total                          |32,52,700/-                 |

The Tribunal further ordered that the insurer of both the vehicles involved in the accident, that is, the bus and the jeep were equally liable to pay the compensation. Thus, the National Insurance Co. Ltd (insurer of the jeep) and the Oriental Insurance Co. Ltd. (insurer of the bus) were ordered to pay a sum of Rs.16,26,350/- each, along with 6% interest per annum from the date of filing of the claim petition to the appellants. It was further ordered by the Tribunal that the payment had to be paid within a period of two months from the date of receipt of the award, failing which the interest would be payable at the rate of 9% per annum.

Aggrieved by the said Award passed by the Tribunal, the National Insurance Company Ltd. challenged the Award by filing Writ Petition No. 113 of 2006 under Articles 226 and 227 of the Constitution of India before the learned single Judge of Gauhati High Court. The other insurer-Company did not prefer any appeal.

The learned single judge of the High Court, by way of judgment and order dated 17.05.2006 allowed the writ petition and modified the Award passed by the Tribunal by reducing the amount from Rs.32,52,700/- to Rs.20,40,000/- only. The learned single judge, held as under:

“4. But the finer question of law is where none of the grounds permitted under Section 149(2) of the act has been taken as ground for the purpose of approaching this Court under  Article 227 for setting at right alleged perversity, gross infirmity and infraction of settled legal principles which constitute parameter of the Tribunal, whether plenary powers of a writ court can be kept at bay in the name of the restrictions and limitations imposed by section 149(9) of the act.” On the issue of calculation of the compensation amount, the learned single judge observed:

“8. In the case on hand, the average monthly gross income after double advancement was assessed at Rs. 16,750/- from which only Rs. 1,000/- was deducted for taxes, self-maintenance and pleasure of the deceased which in my view is a gross perversity because of its fanciful subjectivity, irrationality in total disregard of the ratio noticed above. It amounts to stepping out of its parameters by the Tribunal.” The learned single judge further went on to hold:

“13. It is thus clear that where on the face of it, an award is a perversity due to gross non-observation of the settled legal principle in determining the just amount of compensation, it can be said that the Tribunal has not acted within its parameters calling for interference by the High Court in exercise of its plenary supervisory powers” Aggrieved, the appellants filed Writ Appeal No. 38 of 2006 before the High Court of Tripura, Agartala. The Division Bench of the High Court dismissed the Writ Appeal as not maintainable vide judgment and order dated 22.08.2013 holding that the order passed by the learned single Judge was under Article 227 and not under Article 226 of the Constitution of India, and thus, the same was not amenable to being challenged by way of a Writ Appeal. The Division Bench held as under:

“An appeal is the creation of a statute and if the Single Judge has clearly mentioned that he is exercising powers under article 227 against which no appeal lies, then the mere fact that the petitioner had also invoked the provisions of Article 226 would not be sufficient to hold that an appeal would lie against such an order. The law is well settled that what cannot be done directly, cannot be permitted to be done in an indirect manner………” Hence, the present appeal.

Mr. Bijan Kumar Ghosh, learned counsel appearing on behalf of the appellants submits that the learned single judge of the High Court grossly erred in entertaining the writ petition filed by the insurance company against the award passed by the Tribunal. The learned counsel places reliance on the decision of a Three Judge Bench of this Court in the case of Sadhana Lodh v. National Insurance Co. Ltd.[1], wherein it has been held that a writ petition under  Article 227 of the Constitution of India, challenging the award of the Tribunal in a motor accident case is not maintainable. It is further contended that it was not open to the High Court to enlarge the grounds of appeal which have been provided for in the statute to the insurer in cases of motor accidents. Thus, the learned counsel prays that the award passed by the Tribunal be restored and that the compensation be awarded to the appellants at the interest rate of 9% per annum.

On the other hand, Mr. S.L. Gupta, learned counsel appearing on behalf of the respondent-Insurance Company submits that the impugned judgment and orders suffer from no infirmity in law. It is submitted that the award was passed by the Tribunal in complete ignorance of the decisions of this Court in the cases of G.M., Kerala SRTC v. Susamma Thomas[2], Sarla Verma & Ors. v. Delhi Transport Corporation & Anr.[3] as well as  T.N. State Transport Corpn. Ltd. v. S. Rajapriya[4] The learned counsel submits that the monthly income of the deceased was Rs.10,020/- at the time of the accident, which was wrongly taken as Rs.13,500/-. The Tribunal further arbitrarily arrived at the figure of Rs.16,750/- per month as the monthly salary of the deceased. Thus, the award of compensation of Rs.32,52,700/- arrived at by the Tribunal was definitely on the higher side. Thus, the learned counsel contends that the learned single Judge has rightly interfered with the quantum of compensation awarded by the tribunal.

We have heard the learned counsel appearing on behalf of the parties and have perused the evidence and materials placed on record, as well as the impugned judgments and orders passed by both the learned single judge and the Division Bench of the High Court.

At the outset, we make it clear that we are dealing with the matter on merits, without going into the question of maintainability of the writ petition filed by the insurance company before the single judge of the High Court, questioning the correctness of the quantum of compensation awarded by the Tribunal.

The date of birth of the deceased as shown on the admit card of the Tripura Board of Secondary Education was 03.07.1972. The accident occurred on 14.11.2003. Thus, the age of the deceased at the time of the accident was 31 years and 4 months. Thus, the appropriate multiplier in the instant case is 17. On the issue of the salary of the deceased at the time of the accident, the learned single judge proceeds on the assumption that it was Rs.10,020/- on the ground that the same was the amount mentioned in the claim petition. Thus, we proceed on the basis that the monthly income of the deceased at the time of the accident was Rs.10,020/-. Further, in accordance with the principle of law laid down by this Court in the case of Santosh Devi v. National Insurance Corporation[5], an addition of 50% must be made to the actual salary income of the deceased towards future prospects in those cases where the deceased had a permanent job and was below 40 years of age at the time of the accident. Thus, in the instant case, 50% of Rs.10,020/- comes to Rs.5,010/-, which if added gives the income as Rs.15,030/-. In accordance with the principle of law laid down by this Court in the case of Sarla Verma & Ors. v. Delhi Transport Corporation & Anr[6](supra), where the number of dependents of the deceased are between 4 and 6, 1/4th of the income of the deceased is to be deducted towards the living and personal expenses. Since in the present case, there are 5 dependents, (wife, two minor children, mother and father), 1/4th of the monthly income, that is, Rs.3750/- (rounded off) is to be deducted towards living and personal expenses.

Deducting Rs.3750/- on account of personal and living expenses, the monthly income comes to Rs.11,280/-. Since the age of the deceased at the time of the accident was 31 years and 4 months, multiplier of 17 is applicable. Thus, the total loss of dependency comes to:

Rs.11,280/- X 12 X 17 = Rs.23,01,120/-

The High Court arrived at the amount of Rs.20,40,000/- in complete and utter forgetfulness of the principles of computing compensation laid down by this Court in catena of cases, which shall be referred to in a later part of this judgment.

What is more shocking is the logic applied by the High Court in modifying the award to Rs.20,40,000/-, which is only the annual loss of dependency, thereby, completely missing the next crucial step in determining the award of compensation due to the dependents of the deceased under the other different heads such as loss of estate, funeral expenses, loss of consortium etc. It is worth reproducing the reasoning of the learned single judge in not awarding any amount under the other heads: “19. For the reasons and discussions aforementioned, this writ petition has merit and the same is allowed modifying the award to Rs. 20,40,000/- only. As this amount would fetch perpetually more than Rs. 10,000/- per month by way of interest @ 6% per annum without consuming the principal sum during the period of dependency, no further award on any other count is called for……” It is difficult for this Court to understand what is the legal principle on which the learned single judge has relied on to arrive at the conclusion that no further award under any other head is called for, when the same has been the well settled position of law by this Court.

In light of the three judge bench decision of this Court in the case of Rajesh & Ors. v. Rajbir & Ors.[7] as well as the decision of this Court in the case of Kalpanaraj & Ors. v. Tamil Nadu State Transport Corporation[8], the appellants are further entitled to compensation under the following heads:

|Head                           |Amount                          |
|Funeral expenses               |Rs.  25,000/-                   |
|Loss of consortium             |Rs.1,00,000/-                   |
|Loss of guidance to minor      |Rs.1,00,000/-                   |
|children                       |                                |
|Loss of love and affection to  |Rs.1,00,000/-                   |
|aged parents                   |                                |
|Loss of estate                 |Rs.1,00,000/-                   |
|Litigation costs               |Rs.  25,000/-                   |
|Total                          |Rs.4,50,000/-                   |

The appellants are thus, entitled to a total compensation of Rs.23,01,120/- + Rs.4,50,000/- = Rs.27,51,120/-.

This amount is payable by the respondents to the appellants, not at rate of 6% interest per annum as the learned single judge has held, but at the rate of 9% per annum, according to the principle laid down by this Court in the case of Municipal Corporation of Delhi, Delhi v. Uphaar Tragedy Victims Association & Ors[9].

The appeal is accordingly allowed. The judgments and orders passed by the Division Bench and the learned Single Judge of the High Court are set aside. Both the insurance companies shall be liable to pay half a share each of the compensation amount of Rs.27,51,120/-, at an interest rate of 9% per annum from the date of filing the claim petition till the date of realization. The respondent-Insurance companies are directed to pay the amount as awarded in this judgment to the claimants within four weeks from the date of receipt of the copy of this judgment and order in terms of the apportionment of the compensation made by the Tribunal. No costs.


(V. GOPALA GOWDA) ………………………………………………………J.



[1]    (2003) 3 SCC 524
[2]     (1994) 2 SCC 176
[3]     (2009) 6 SCC 121
[4]     (2005) 6 SCC 236
[5]    (2012) 6 SCC 421
[6]    (2009) 6 SCC 121
[7]    (2013) 9 SCC 54
[8]    (2014) 5 SCALE 479
[9]    (2011) 14 SCC 481

Tuesday, June 20, 2017

Sedition charges against 15 men for raising pro-Pakistan slogans after Champions trophy match

Fifteen Muslim men who allegedly raised pro-Pakistan slogans and burst crackers in Mohad village of Madhya Pradesh’s Burhapur district after India’s defeat in the ICC Champions Trophy final on Sunday night have been charged with sedition.
The fifteen are in the age group of 20 and 35. They were arrested on Monday from the village, about 25 kilometers from the district headquarters Burhanpur, which is a communally sensitive district in Madhya Pradesh.
Investigating Officer Ramashray Yadav told The Indian Express that an offence under Section 120 B (criminal conspiracy) and Section 124 A (Sedition) has been registered against the fifteen in Shahpur Police Station. He further said Mohad is a Muslim-dominated village and a complaint was filed by a Hindu villager.
“The police would soon send a letter to the district magistrate with a request to stop government subsidies being enjoyed by the accused”

Monday, June 19, 2017

Man jailed for sharing photo of London fire victim on Facebook

A 43-year-old man has been jailed in the UK for posting on Facebook a video and pictures of a victim of the massive fire that engulfed a 24-storey residential tower in west London, killing at least 79 people.

Omega Mwaikambo posted one video and two pictures of the body bag with the man inside and then later five pictures of the victim's face and body after opening it to look inside.

He pleaded guilty at Westminster Magistrates Court to two counts of sending by a public communications network an offending, indecent or obscene matter.

Public welfare is supreme law: HC reminds govt

Amid allegations that the government is bending laws to make it easy for industrialists to acquire land, Gujarat high court has told the state government not to forget that "welfare of the people is the supreme law", and advised it on how "public necessity is greater than private".

Justice J B Pardiwala pulled up the state government for allowing a private company to retain possession of a huge parcel of land though it remained unutilized for long.

"Why this charity of a huge government largesse to an individual?" asked the court.

Prior to that, the court pointed out the huge number of people who lack shelter in this country. "They have to brave the scorching heat in the summer, torrential rains during monsoon, and biting cold in winter," the court said.

Without mincing words, Justice Pardiwala said, "Let me remind the authorities concerned of the two maxims 'salus populi est supreme lex' which means, 'the welfare of the people is the supreme law' and 'necessitas publica major est quam privata', which means 'public necessity is greater than private'."

The case involved Navyug Industry, which was allotted over 53,000 square metres of land in 1962 near Patan town. As the city expanded, the land was covered by the city survey and a portion of the plot was vested with the government authority. The industry, which was wound up in 2001, was permitted to sell the land on condition that it would not claim another parcel of land in lieu of the plot.
Meanwhile, Gujarat State Road Transport Corporation (GSRTC) needed a plot to build a depot and a pick-up bus stand. It was allotted 15,300 square metres from the land forfeited from the company after it breached the condition of allotment.

The company moved the HC claiming a stake in the land that was allotted to GSRTC.

After hearing the case, the HC observed that the government had taken the matter "very lightly and with no sense of responsibility".

Rejecting the company's claim to the land, the court said, "At least, it could be said that the government land is being used for public purpose, rather than allotting such a huge parcel of land to an individual who has defaulted, or rather breached, the condition of allotment."

Sunday, June 18, 2017

Rs 10 crore secured bail for Gayatri Prajapati, reveals HC probe

The bail granted to UP ex-minister Gayatri Prajapati in a rape case had led to a huge furore, and it now emerges that the relief was part of a deep conspiracy in which senior judges were involved.

A sum of Rs 10 crore also changed hands in the "deal".

The startling facts came to light after Allahabad high court Chief Justice Dilip B Bhosale sought an inquiry into Prajapati's bail. The probe revealed high-level corruption in posting of judges to sensitive courts which handle cases of heinous crimes such as rape and murder.

In his report, Bhosale said additional district and sessions judge O P Mishra, who granted bail to Prajapati on April 25, was posted as POCSO (protection of children from sexual offences) judge on April 7 when he had just three weeks left for retirement.

He was appointed bypassing norms and by removing a judge who was "handling the assignment efficiently" for a year.

IB probe establishes graft in judge's POCSO posting

The report said the grant of bail was settled upon payment of Rs 10 crore, of which Rs 5 crore was shared among three lawyers who acted as middlemen and Rs 5 crore was paid to the POCSO judge (Mishra) and district judge Rajendra Singh who posted Mishra to the sensitive court.

Singh has been questioned and his elevation as an HC judge has been withdrawn by the Supreme Court collegium pending further action.

"Laxmi Kant Rathaur, who was assigned POCSO jurisdiction on July 18, 2016, was doing very well. There was absolutely no justification or reason to change him suddenly and appoint O P Mishra as POCSO judge on April 7, 2017, more so when he was about to retire within three weeks," Justice Bhosale is believed to have observed in his confidential report.

After a nudge from the SC, the UP police had registered an FIR on February 17 against Prajapati, a minister in the Samajwadi Party government, in a rape case.

He was arrested on March 15 and moved a bail application in Mishra's court on April 24. A day later, he was granted bail even as the investigation was still in progress.

A probe by the Intelligence Bureau established corruption in Mishra's posting to the sensitive POCSO court and raised questions on the transfer-posting regime in UP's subordinate judiciary.

Government says cancer patient will get MA card

Gujarat high court seeking clarification on preparing a bed-ridden cancer patient's Mukhyamantri Amrutam Yojana card for free treatment, Rajkot authorities assured the court the she would get the card once her family member tenders application with the necessary documents. 

Rajkot district's Meenaben Parmar filed the petition for her mother-in-law Anuben Parmar, who is bed-ridden for past few months due to cancer. She submitted that because of family's poor financial condition, they were trying to get benefit of MA Yojana for treatment of the old woman. When they applied for MA card, the district authorities insisted to bring the patient in person without with the procedure could not be completed. 

Upon the HC query, Rajkot's project officer appeared before the court and assured that once Anuben's relatives apply for the card, an officer would visit her for verification and MA Yojana card would be prepared for her. After this assurance, the HC disposed the petition

Why can’t encroachments be removed? High court orders inquiry

Gujarat high court expressed grave concerns at illegal occupation of large parcels of government land. The court for an inquiry into how eviction orders are executed by the government machinery. 

Justice J B Pardiwala called for proper implementation of orders to rid government lands of unauthorized occupation while deciding a case from Patan district. 

In this case, the authorities ordered a family to vacate a piece of land they had been tilling for many years. 

The government said they had actually encroached on a water body and all records indicate government ownership. 

The family claimed that they had been paying revenue for years. 

The high court ruled in favour of the state government and held that the government land must be vacated. However, Justice Pardiwala said, "I have noticed that huge parcels of lands are occupied by various unauthorized individuals. This is on account of indiscriminate state largess in allotment. I have also noticed that although steps have been taken and orders passed for eviction, the authorities have still not bothered to take physical possession of the land. Huge parcels of lands are being misused." 

With this observation, the court further said, "It is, therefore, necessary that an inquiry in this regard be initiated by the state government, to see that all orders passed till this date by revenue authorities are implemented and executed in their true spirit. 

If a person is declared to be in unauthorized occupation of the land, the authorities are expected to take actual possession of the land." 

The court said that even after eviction orders are passed, people in illegal possession of government land remain there for years together. "It does not make any sense," the court said and directed the HC registry to send a copy of its order to the principal secretary of the revenue department to take necessary action for execution of eviction orders and set up an inquiry in this regard.

Salaried law graduates can’t practice law

Gujarat high court has ruled that an advocate having a consultancy contract in the nature of a full-time job is not eligible for enrolment with the Bar Council of Gujarat (BCG) and cannot be given a certificate to practice law. 

The case involves a woman, Jalpa Desai, who passed law from MSU and was seeking to enrol herself with the BCG as an advocate. Trouble arose when it did not take any decision on her application for enrolment on the ground that she was technically employed with the Gujarat Industrial Development Corporation (GIDC) since 2012, and a person can't practice as an advocate once she/he is in job. 

However, Desai denied that she was an employee of GIDC. She maintained that she was engaged as a legal consultant/ legal expert. And hence the provisions of Advocates Act and BCG and the Bar Council of India rules can't prevent her from getting enrolled as an advocate. When the Bar did not take any decision, she moved the HC. 

Before the high court, Desai argued that she was never treated as an employee and she was paying tax at source for professional services. What was paid to her was not a salary. BCG maintained that Desai's contract with GIDC, by which she was getting a monthly payment of Rs25,000 required her to be present in office during office hours and that made her a full-time employee according to the Advocates Act and Rule 49 of the Bar Council of India. 

While summing up, Justice N V Anjaria ruled that BCG cannot give Desai a certificate to practice law as an advocate. "Considering the nature of service contract of the petitioner with the Corporation, there is no gain saying that she incurs debility in terms of Rule 49 as her employment could be characterized as a full-time salaried employment," the HC said, and concluded that refusal by BCG to grant her enrolment, and the certificate to practice law, is "eminently proper and legal".

Women sacrificing love for parents common in India, says Supreme Court

 Unsuccessful love stories have found a very vivid description in a Supreme Court observation wherein it has said that women sacrificing their relationship to accept parents' decision is a common phenomenon in India. 

The apex court noted this in a judgement which set aside the conviction and life sentence of a man who had survived a pact with a woman to commit suicide immediately after secretly entering into wedlock. 

While the 23-year-old woman could not be saved in the incident of 1995, the man suffered the ordeal as the police booked him for the offence of killing her. 

The top court noted that the woman might have first "unwillingly" agreed to go by her parents' wish but later she apparently changed her mind which appeared from the scene of the incident where garlands, bangles and vermilion were found. 

Further, it observed that the woman might have told her lover that due to resistance from her family, she would not marry him. 

"Such a reaction on the part of a girl to sacrifice her love and accept a decision of her parents, even though unwillingly, is a common phenomenon in this country," a bench of justices A K Sikri and Ashok Bhushan said. 

The court noted that the victim and the accused were in love with each other and the woman's father had testified in the court that due to caste differences, his family had refused to give their nod to the couple to marry. 

The man was convicted for allegedly killing her and awarded life term by a trial court and the verdict was subsequently upheld by the Rajasthan High Court

The man had told the trial court that since her family was not agreeing to their marriage, both of them had decided to commit suicide and consumed copper sulphate at a house in an under-construction building in Jaipur. 

He had said that the quantity of copper sulphate consumed by him was less as compared to the woman after which her health deteriorated and he went out of the building to seek help from neighbours. 

When he returned, he found the woman hanging after which she was rushed to a hospital but she eventually died. 

The man's version of the incident was held as "plausible" by the apex court which noted that as per his statement, the woman was physically abused by her family and was mercilessly beaten even on the day of incident in November 1995. 

"When she was madly in love with the appellant (man) and wanted to marry him, there is a possibility that after receiving such kind of shabbily treatment at the hands of her parents, in anguish she may have decided to revolt and, therefore, proposed to the appellant that they should get married for which they chose a secluded place," the bench noted in its order. 

It observed that there may be a possibility that when a man is not able to get a woman he wants, he may go to the extent of killing her as he does not want to see her alliance with any other person. 

"This might be the motive in the mind of appellant (man). However, whether events turned in this way is anybody's guess as no evidence of this nature has surfaced. It is not even possible for the prosecution to state any such things as whatever actually happened was only known to two persons, one of whom is dead and other is in dock," it said. 

The bench observed that criminal cases cannot be decided on the basis of hypothesis and acquitted the man holding that the prosecution has not been able to prove his guilt beyond reasonable doubt.