Thursday, November 29, 2018

Inherent Powers Under Sec.482 CrPC Cannot Be Invoked By Accused At Stage Of Investigation As No Proceeding Is Pending Against Him : Allahabad HC

A petition filed under Section 482 of CrPC by the accused challenging an order of Magistrate directing reinvestigation by police was dismissed by the Allahabad High Court on the principle that accused has no right of hearing during investigation. The Court held that investigation cannot be regarded as a proceeding pending against the accused so as to invoke Section 482.
“ is apparent that an accused has no right of hearing during the course of investigation. The various orders passed by the Magistrate before summoning the accused is an attempt on the part of the Magistrate to arrive at a just conclusion on the allegations made in the complaint or the F.I.R. as the case may be. The accused will have the right to prove his innocence at the time of trial but that by itself will not give a right to the accused to interfere before the stage of summoning either by invoking the revisional powers of the Court or the inherent powers of the High Court under Section 482 Cr.P.C. as the Code clearly prohibits holding of two trials in respect of the same wrong”, held the judgment authored by Justice Rajeev Misra in the case Simplex Infrastructure and others vs State of UP and Another.
The petition was filed by a company, against which an FIR was registered on the allegation that it had committed cheating and criminal breach of trust by failing to make payments to the complainant as per their contract. On the police filing a refer report after investigation, the complainant filed a protest complaint. Acting on it, the Chief Judicial Magistrate, Meerut, ordered “re-investigation” invoking powers under Section 173(8) of CrPC.
The company approached the High Court challenging the CJM’s order, contending that Magistrate can only order ‘further investigation’ and not ‘re-investigation’ under Section 173(8) CrPC. Reliance was placed on the decision  Vinay Tyagi Vs. Irshad Ali @ Deepak (2013) 5 SCC 762 to advance this contention.
The complainant contended that it was immaterial that the CJM used the term ‘reinvestigation’ in the order, and in essence it meant ‘further investigation’. Relying on Chandra Babu @ Moses Vs. State Inspector of Police & Ors (2015) 8 SCC 774 it was pointed out that CJM has the power to take cognizance of the offence, independent of the final report. It was also contended that the petition was challenge, as accused was yet to be summoned by the Magistrate.
The High Court did not dwell on the issue whether the CJM committed illegality by ordering ‘re-investigation’. Rather, it confined the issue to whether the petition could have been filed by the accused when no process against it has been issued by the CJM.
Agreeing with the contention of the complainant, the HC held “In the case in hand, no process has been issued by the court below summoning the accused. As such, no proceedings can be said to be pending against the accused i.e. the applicants herein. The power under Section 482 Cr.P.C. can be exercised only in relation to certain proceedings which are pending against the person who approaches the High Court by means of an application under Section 482 Cr.P.C.”  The precedents of SC in Chandra Deo Vs. Prakash Chandra, AIR 1963 SC 1430,Divine Retreat Centre Versus State of Kerala & Ors. AIR 2008 SC 1614,,Narendra G. Goel Versus State of Maharashtra & Another  2009 (6) SCC 65 and Allahabad HC Full Bench decision in Ranjeet Singh & Another Vs. State of U.P. & Others, 2000 (3) Cr.L.J. 2738 were followed
Holding that the matter is still at the stage of investigation and the applicants who are the prospective accused
persons have not yet been summoned by the Court till date, the petition was dismissed.

Tuesday, November 27, 2018

Correctness Of HC Judgment Approved By SC Can’t Be Examined In Full Bench Reference: SC

The Supreme Court has upheld a full bench order of the Allahabad High Court turning down a reference to it seeking to examine correctness of a division bench judgment which was approved by the apex court.
A division bench of Allahabad High Court, doubting the correctness of another division bench judgment in Dr. Vishwajeet Singh and others. Vs. State of U.P., had referred the matter to a full bench. The full bench noticed that the said judgment was assailed in appeal before the apex court, and while dismissing the appeal it has clearly observed that it is in agreement with the view taken in Dr. Vishwajeet Singh.
The full bench turning down the reference had then observed: “There is thus a positive and unambiguous expression of approval of the said decision and, therefore, it cannot be said that the order of the High Court did not merge into the order of the Supreme Court. Insofar as the case before us is concerned, it is clear from the order that the Supreme Court not only dismissed the Civil Appeals after granting leave but while doing so, clearly observed that it was in agreement with the view taken in the impugned judgment and, accordingly affirmed the judgment of this Court.”
The bench had further said: “The said decision consequently merged in the order of the Supreme Court. The order of the Supreme Court came to be rendered after grant of leave. Once the decision of this Court stood merged   in the order of the Supreme Court, it would not be legally permissible for this Full Bench to consider the correctness or otherwise of Dr. Vishwajeet Singh.”
Dismissing the SLPs filed against this full bench order, the apex court bench comprising Justice Uday Umesh Lalit and Justice R. Subhash Reddy, upheld the full bench order, and said: “The questions as are sought to be raised now had already been considered in Dr. Vishwajeet Singh’s case (supra) which view was approved in terms by this Court. In the circumstances, the larger bench of five Judges of the High Court was right and justified in turning down the reference.”

TN Bar Council Committee recommends debarring of husband-wife "Advocate" duo for fraudulent enrolment, rowdyism

An aghast Enrolment Committee of the Bar Council of Tamil Nadu and Puducherry (BCTP) was recently prompted to pass orders prohibiting a woman advocate and her husband from legal practice. The order was passed following a complaint that the two were illegally professing themselves to be advocates and disturbing the local peace.
On finding sufficient proof of their transgressions, the BCTP has recommended that the Bar Council of India (BCI) permanently remove their names from the roll of advocates .
The complainant approached the BCTP after the woman advocate removed a blockade to a pathway and burned the same, in open defiance of a court’s order in a pending property dispute. Photographs proving the same were also submitted to the BCTP Committee.
Over and above this immediate grievance, the Council was informed that the woman had not undergone a regular law course to obtain a valid law degree in the first place.
The complainant alleged that she had been employed in two schools as a yoga teacher instead. The Council found that there was adequate proof to show that during the alleged study period in an Andhra Pradesh-based law college, the woman advocate was employed in at least one school as a yoga teacher on the weekends.
The fact that this school was located thousands of kilometres away from the law college led the Council to conclude that she had not undergone a regular law course, thereby making her law degree invalid in the eyes of law.
The fact of her previous employment – regardless of whether it was part time as claimed by her or not – was further found to be completely suppressed by the woman in her enrolment application. The failure to disclose this information also prompted the Council to hold that she is disentitled to continue practice as an Advocate.
To make matters worse, there were records to prove that she continued to be employed at the school after her enrolment, at least between June 2012 and December 2017.
And to top it all off, the woman and her husband had set up prominent boards outside a shop they had rented, notifying that they were involved in numerous parallel projects including an Aadhaar enrolment centre. They also appear to have referred to themselves as legal advisors for enterprises involved in aluminium fabrication, interior decoration and PVC doors as well.
This, despite the woman advocate’s admission before the BCTP that her husband had discontinued his legal studies, that he did not possess a law degree, and that he had not practiced as an advocate in any court.
Given these violations, the BCTP Committee observed that the duo had acted to attract total disqualification from legal practice under the Advocate’s Act. With particular reference to the woman advocate, it was observed,
If she is allowed to practice even for one day it will be a total disrespect to the nobility and dignity of Legal Profession and sincere Lawyers. Moreover she will go down to any level to tamper with the Court records and the pending cases against her, if she is allowed to practice pending proceedings under sec. 26… of the Advocates Act, 1961.
The duo has therefore been prohibited from legal practice, pending the decision of the BCI on BCTP’s recommendation for the permanent removal of their names from the advocate rolls under Section 26 of the Advocates Act, 1961.
The Committee comprising Senior Advocate R Singaravelan and N Chandrasekharan has also imposed a penalty of Rs. 50,000 on the woman, which she has been directed to pay within two weeks.
The complainant has also been granted liberty to move a complaint for professional misconduct against the duo under Section 35 of the Advocates Act.

Friday, November 23, 2018

Judge allows lawsuit against Trump Foundation to proceed, rejects Trump claim that he can't be sued

A lawsuit accusing President Donald Trump of misusing his charitable foundation for his own personal and political purposes will move forward after a Manhattan judge refused Trump's bid to throw the case out.
New York State Attorney General Barbara Underwood filed the action against the president, Donald Trump Jr., Ivanka Trump and Eric Trump earlier this year, charging that they had engaged in "extensive unlawful political coordination with the Trump presidential campaign, repeated and willful self-dealing transactions to benefit Mr. Trump's personal and business interests, and violations of basic legal obligations for nonprofit foundations."
A lawyer for the Trump Foundation fired back in August, arguing in court filings that Trump can't be sued while he's in office. He also contended the lawsuit should be thrown out because the family didn't knowingly do anything wrong, and argued the suit was only brought because of political bias.
In a 27-page ruling  state Supreme Court Justice Saliann Scarpulla rejected those arguments. She noted that a judge in a different case had already ruled earlier this year that Trump is not immune to civil actions "related purely to unofficial conduct because he is President of the the United States."
She also found that contrary to the foundation's argument, the attorney general's suit had made allegations of wrongdoing that were strong enough to let the case go forward.
The suit charges that foundation funds were used to pay off Trump-owned companies' legal obligations, including a $100,000 payment to a charity that was mandated in the settlement of a lawsuit.
It also accuses Trump of illegally using his foundation to further his political ambitions, citing an Iowa fundraiser for veterans that was a thinly-disguised campaign event. The campaign also told the foundation which charities it should give to, the suit says.
Scarpulla also slapped down the foundation's argument that the action should be tossed because former New York State Attorney General Eric Schneiderman was a frequent Trump critic and foe who had engaged in repeated "personal attacks" against the president. The ruling notes that Schneiderman — who abruptly resigned earlier this year after a report he'd been abusive to women — was out of office by the time the suit was filed.
"We welcome Justice Scarpulla's decision, which allows our suit to move forward," Underwood said in a statement. "As we detailed in our petition earlier, the Trump Foundation functioned as little more than a checkbook to serve Mr. Trump's business and political interests. There are rules that govern private foundations — and we intend to enforce them, no matter who runs the foundation."
Trump Foundation lawyer Alan Futerfas said, “The decision means only that the case goes forward. As we have maintained throughout, all of the money raised by the Foundation went to charitable causes to assist those most in need. As a result, we remain confident in the ultimate outcome of these proceedings.”

Drunk Indian-Origin Woman Causes Passenger Seizure Mid-Air, Jailed In UK

An Indian-origin woman has been jailed for six months in the UK for drunken behaviour on an aeroplane which caused a passenger to have a seizure.
Kiran Jagdev, an executive assistant based in the city of Leicester, had attempted to blame the crew of Jet2 airline for supplying her with alcohol during her flight from Tenerife in Spain back to the UK in January this year. Judge Philip Head "rejected" her excuse and decided to impose what he described as a "deterrent sentence" during a hearing at Leicester Crown Court this week.
The court was told that during a bumpy landing, the 41-year-old had started screaming "we are all going to die", causing further distress to passengers.
"The effect you had on other passengers must have been dreadful," the judge said.
"As the pilot was unable to put the craft down on the approach, that triggered a further foul-mouthed tirade where you shouted 'we're all going to die' for about 10 minutes," he said.
According to the prosecutors, Ms Jagdev had consumed between six and eight beers even before boarding the four-hour flight to East Midlands Airport. She then proceeded to drink a further four to six glasses of wine on the plane, using her own supply from her handbag when the crew refused her more drinks.
"She continued to ask cabin crew for a drink and they continued to refuse her and she was issued with an Air Navigation Order," Prosecutor Joey Kwong told the court.
After she was moved for kicking seats, causing a passenger to have a seizure, an off-duty police officer on the same flight offered to sit next to her to assist cabin crew but she began making "vulgar" comments to him.
She was arrested by police on landing and proceeded to direct abusive remarks at airport immigration authorities.
The air rage incident came days after Ms Jagdev, was convicted of assault in Tenerife and handed down a suspended sentence, which involves a deferred jail term reliant on good behaviour.
"There isn't any excuse. We can't put the blame on anyone other than herself and she accepts that," her defence lawyer, Harbinder Lally, told the court.
The judge concluded: "You are the author of your own and other people's misfortune.
"This demands a deterrent sentence so people who travel by air and get drunk will know there are consequences."

SC dismisses PIL seeking use of ballot papers in assembly, Lok Sabha polls

The Supreme Court Thursday dismissed a PIL seeking use of ballot papers instead of EVMs during upcoming assembly and Lok Sabha polls.
A bench headed by Chief Justice Ranjan Gogoi did not agree with the contention of NGO 'Nyay Bhoomi' that electronic voting machines are capable of being misused and they should not be used in the polls to ensure free and fair elections.

"Every system and machine is capable to be used and misused. Doubts will be everywhere," the bench said, while dismissing the PIL.

Don’t make theft victims feel like accused: Ahmedabad court

A city sessions court has said that the victims of theft should not be made to feel as if they are the accused when they come seeking custody of their stolen belongings.
Additional sessions judge P C Chauhan ordered to return 14.3 kg silver plates to a trader from Piplag village of Amreli district, Nirmal Vala (39). He had been asking for the silver plates since the person who looted them was nabbed and the valuables were recovered.

When Vala first requested the metropolitan court to return the muddamaal, his application was rejected on the ground that the receipt furnished by Vala showed that he had bought 18 kg silver, and the recovery was 14.3 kg. moreover, the notice issued to the accused was not served.

The sessions court was not happy with this decision and said, “In present times, incidents of loot continue to occur in which innocent complainants’ valuable goods are stolen. To get the stolen goods back, the complainants have to go through legal procedure as if they themselves are accused.”

Suggesting such treatment for victims be avoided, the court further said that a trial court cannot deprive the owner only on the ground that the notice issued to the accused has not been served. That an accused person’s “no claim” on muddamaal has not come on record should not be an excuse to refuse custody of a person’s belonging to him.

Tuesday, November 20, 2018

SC grants Amrapali last chance to come clean on diversion of home-buyers' money

Writing is very clear on the wall': SC warns Amrapali Group

Miffed by non-compliance of its various orders directing the Amrapali group to furnish all information on diversion of homebuyers’ money, the Supreme Court granted one last opportunity to the company and its directors on Tuesday to come clean and disclose all information by December 3. 
A bench of Justices Arun Mishra and U U Lalit made it clear that no further time would be granted to them and asked the directors to be ready to face the consequences in case of non-compliance of its orders to explain the alleged siphoning off of money of 46,000-odd homebuyers to the tune of Rs 2,765 crore.

The court had in October 6 last year agreed to hear a batch of petitions filed by thousands of homebuyers against the group and had issued notice to the company. In the last one year, the court heard the case on 36 days and passed various orders and even asked state-owned National Buildings Construction Corporation (NBCC) to take over Amrapali’s unfinished projects of the group. But construction could not start because of lack of funds.

Although the court on the last hearing on November 13 directed the group to furnish all information, senior advocate Geeta Luthra, appearing for the company, sought three weeks’ more time to comply with the SC’s order.

Advocate M L Lahoty, appearing for homebuyers, told the bench that the group had failed to comply fully with even one of the 21 orders passed by the court. He said non-cooperation of the group is delaying the proceedings and action should be taken for non-compliance.

The bench, however, agreed to give one more opportunity, and said “writing is very clear on the wall” in case of non-compliance. “We make it very clear that Amrapali Group should disclose its each and every activity since 2008 onwards related to residential, commercial, personal, official and financial projects where money was transferred,” the bench said.

The court had earlier said that time was running out for the directors and they will be sent to jail if they continued to defy its orders. It had also initiated suo motu contempt proceedings against company CMD Anil Sharma and two directors—Shiv Priya and Ajay Kumarand— for violating its order. The CMD and two directors are already under police custody without being arrested and they are not allowed to visit their homes and meet family members. They have been directed to assist the court-appointed forensic auditors during day time and spend the night in a Noida hotel.

Passports of 25 NRIs who deserted wives to be revoked

The foreign ministry, over the last few months, has moved to revoke the passports of at least 25 men against whom lookout circulars (LOCs) were issued.

It is learned that 33 lookout circulars were issued by agencies like police since January.
Eight of these were issued by the integrated nodal agency which has representation from the WCD, foreign and home ministries.
It is learned that 33 lookout circulars were issued by agencies like police since January. Eight of these were issued by the integrated nodal agency which has representation from the WCD, foreign and home ministries.

In criminal matters involving NRIs, LOCs can be issued by the investigating agency in cognisable offences when the overseas husband is deliberately evading arrest or not appearing in the trial court despite non-bailable warrants and other coercive measures or there is the likelihood that he will leave the country to evade trial or arrest.

A large number of NRI matrimonial dispute cases remain pending on account of non-appearance of the perpetrator, jeopardising women and children’s future. To expedite action, the integrated nodal agency was constituted to work on issues related to NRI matrimonial disputes. The INA has been meeting at regular intervals since January. It is led by WCD secretary Rakesh Srivastava and issues LOCs on the recommendation of the National Commission for Women after the latter scrutinises cases.

Data show that nearly 578 women abandoned by their NRI husbands have approached the NCW this year. Since 2009, NCW’s NRI cell has received over 4,000 complaints from women whose NRI husbands have left them.

Complaints have been coming from most states except the north-east. Delhi, Punjab, UP and Haryana figure among states with the maximum complaints. In 2018, the NCW received 76 complaints from Punjab, 74 from Delhi, 56 from Haryana and 55 from UP. Andhra Pradesh, Tamil Nadu, Maharashtra and Gujarat, too, see substantial complaints.
NCW chief Rekha Sharma said women who complain were struggling and they wanted their husbands living in foreign countries to be brought back. “We need to step up deterrence from the outset by making marriage registration mandatory and bring in provisions to consider court summons as deemed served after the husband does not respond a stipulated number of times and declare him an absconder. Police also need to play a more proactive role in investigation,” Sharma said.

The NCW has sought the intervention of foreign minister Sushma Swaraj to consider measures to prevent NRI husbands, who have deserted their wives in India, from getting ex-parte divorce in the foreign country where they reside. “We have also apprised the WCD ministry of our concerns,” the NCW chief told TOI. WCD ministry officials said they had received a letter from the NCW and would look into it.

Saturday, November 10, 2018

Calling Husband ‘Impotent’ In Pleadings Can Amount To Defamation: Bombay HC

The word “impotent” when understood in its plain and grammatical sense, reflects adversely upon the manhood of a person and has a tendency to invite derisive opinions about such person from others
The Bombay High Court has held that calling a husband ‘impotent’ in pleadings can amount to ‘defamation’.
A defamation complaint was filed by a husband alleging that his wife made some statements casting aspersions on his potency, in a writ petition filed by her before the high court. Summons issued by the magistrate to the wife was challenged before the high court.
The high court rejected the contention put forth by counsel appearing for the wife that whenever an allegation made in litigation is found to be true, it does not amount to defamation within the meaning of Section 499 of IPC. It was also contended that when the complaint is founded on an allegation in a plaint filed in a civil proceeding and has been found to be false, the offence would not be that of defamation punishable under Section 500 of IPC, but an offence relating to giving of false evidence punishable under Section 193 of IPC.
In this regard, Justice SB Shukre observed: “The offence is essentially of something which is a matter of evidence or law and not of pleadings. If any defamatory statement is made in pleadings, what would arise would be an offence of defamation punishable under Section 500 read with Section 499 of IPC and not of offence of giving false evidence punishable under Section 193 read with Section 191 of IPC.”
The counsel also contended that by the term ‘impotent’, what the wife meant was that due to some medical problem of the husband, the conception of the child was not possible.
Rejecting the said contention, the court observed: “Even if the expression “impotent person”, as the learned Counsel for the applicant would like this Court to do, is read in all its contextual setting, in particular, in the context of the birth of the child by adopting a medical procedure on the suggestion of the Gynecologist, still the apparent harm that the expression “impotent person” causes, is not diluted or washed out. This is for the reason that prima facie the word “impotent” when understood in it’s plain and grammatical sense, reflects adversely upon the manhood of a person and has a tendency to invite derisive opinions about such person from others and, therefore, use of such word and its publication as contemplated under Section 499 of IPC would be sufficient to constitute, in a prima facie manner, the offence of defamation punishable under Section 500 of IPC. Now, if the non-applicant submits that this word has been used by her in some different sense denoting condition of the non-applicant affecting the process of conception, it would be a matter of evidence to be proved accordingly. At this stage, the meaning apparently indicated by the word would have to be taken as it is. Then, such imputation has been made by filing a writ petition and, therefore, the other ingredient of publication is also fulfilled in the present case. Therefore, prima facie, the offence punishable under Section 500 of IPC is made out in this case.”

Thursday, November 8, 2018

Father Can File Application U/s 21 Of Domestic Violence Act Seeking Visitation Rights To Child: Bombay HC

If it is held that the husband, in absence of any application for grant of custody can maintain his application for visitation right will advance the object of the provision.”
The Bombay High Court recently upheld a lower court order that allowed an application filed by a father under Section 21 of the Domestic Violence Act, granting him visitation rights to his child.
In this case, the wife had filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005, seeking relief under Sections 18, 19, 20, 21 and 22 of the said Act. An application filed by the husband under Section 21 of the Act in the said proceedings was allowed granting him visitation rights to keep custody of his child for 48 hours for twice in a month. This order was upheld by the district court.
The wife then approached the high court contending that the husband has no right to independently prefer an application for custody orders as contemplated under Section 21 of the Domestic Violence Act, 2005.
The relevant provision itself says that such an application u/s 21 of the DV Act can be preferred by the aggrieved person or any person on her behalf during the pendency of her application under for any reliefs under the DV Act.
But, Justice Prakash D Naik observed that such an interpretation will render the provision incomplete. The court observed: “If the interpretation given on behalf of the wife aggrieved parties accepted it will render the provision incomplete as in case where wife – aggrieved party seeks custody of the child, if the child is in custody of the husband and an order of custody is passed in favour of the aggrieved party, visitation right can be granted to the husband. But if custody lies with the wife – aggrieved party, than the husband will have no remedy of visitation right if the interpretation as contemplated by the wife – aggrieved party is given effect to and thereby it can easily be said that interpretation given by the aggrieved party – wife will never advance the cause of the child. On the other hand, if it is held that the husband, in absence of any application for grant of custody can maintain his application for visitation right will advance the object of the provision as in case of child being in custody of the husband, application for custody can be filed by the wife wherein the husband can have visitation right if order is of custody of child passed in favour of the aggrieved party. In other situation, when the custody of the child lies with the wife, there would be no occasion for the wife for filing an application for custody. In that situation, husband will have remedy to have visitation right by filing application to that effect. The said interpretation and observations can be applied in the present case.”
The court also rejected the contention put forth on behalf of the wife that the husband could have approached other forums. It said: “The respondent had not asked for custody of the child for the simple reason that the child is already in her custody. It is the respondent i.e. father who has sought merely visitation right to his son which right was granted to him by the Trial Court that too for limited days. In case the visitation right is not given to the petitioner, minor child would be deprived of father’s love and affection. The paramount consideration is welfare of child. The petitioner could not be faced to seek remedy either under the Guardians and Wards Act, 1890 and Hindu Minority and Guardianship Act, 1956, as observed by the Sessions Court as it would lead to multiplicity of litigation. The Act is a self contained code.”
The court finally upheld the order passed by the Metropolitan Magistrate.

Wednesday, November 7, 2018

Sabarimala : Kerala HC Dismisses Petition Against Implementing SC Judgment On Women Entry

The High Court of Kerala today dismissed a petition filed by National Ayyaappa Devotees Association and few others against the implementation of Supreme Court’s judgment in Indian Young Lawyers Associaiton case, which permitted entry of women of all age groups to Sabarimala temple.
The petition was filed contending that the SC judgment was merely “declaratory in nature”, without casting any positive obligation on the State Government to implement it. It was also stated that the PIL in the apex court was not filed by devotees and that the same was based on newspaper reports. Therefore, the petition contended that the judgment of the Supreme Court was ‘per incuriam’ and ‘sub silentio’ and not binding on Ayyappa devotees.
The Division Bench of Justices P R Ramachandra Menon and N Anilkumar held that the High Court cannot examine the scope and correctness of the Supreme Court judgment. The Division Bench also noted that the petitioners have already approached the Supreme Court filing a writ petition seeking to set aside the Sabarimala judgment. The petitioner has also sought review of the same. These petitions are to be considered by the SC next week.Regarding this the Court observed that the petitioners cannot pursue two parallel remedies before different courts simultaneously.
Petitioner’s counsel Advocate Mathews Nedumpara submitted that the State Government has misunderstood the declaration given by SC and has adopted hasty measures to implement the judgment, which has resulted in converting Sabarimala into a “warzone”. The judgment of the SC ,which is merely a declaratory one, is misunderstood to be one which requires its compliance and execution, as the SC did not issue any order or direction- the counsel submitted. The argument however did not weigh with the Court. The Court held that the issue can be addressed only by the SC. The Court also expressed its unhappiness with the statement made in the petition that “This Hon’ble Court too happened to be misled to construe the said judgment as one requiring compliance”. The Court asked the Nedumpara as to the basis for making such a statement in the petition, upon which he conceded mistake. The Court also noted that the petition had technical defects as only one of the eight petitioners had attested the pleadings in the petition.
Clarifying that the Court was not expressing anything on the merits of the petition, the Court dismissed it, reserving the petitioners’ liberty to move the apex court seeking remedies.

Monday, November 5, 2018

UK opens up armed forces recruitment to more Indians

Ministry of Defence laid out the proposals before Parliament, which involves a waiver of the current requirement of a minimum of five-year residency in the UK for applying to join the country's Army, Navy or Air Force.PTI

Britain currently employs 4,500 Commonwealth citizens in the armed forces, with 3,940 in the Army, 480 in the Royal Navy and 80 serving in the RAF. (Source: AP)
The UK government on Monday announced a relaxation of recruitment criteria to allow Commonwealth nationals to apply for jobs in its armed forces in order to meet a shortage in its ranks.
The Commonwealth is an association of 53 independent states, including India.
The Ministry of Defence (MoD) laid out the proposals in a written ministerial statement (WMS) before Parliament, which involves a waiver of the current requirement of a minimum of five-year residency in the UK for applying to join the country’s Army, Navy or Air Force.
This would open up the forces to recruits who have been based in countries like India, Australia, Canada and Kenya and meet the necessary recruitment criteria for the service and role they wish to join.
“We have now decided to remove the five-year UK residency criterion for Commonwealth citizens and increase recruitment to 1,350 across the Royal Navy, British Army and Royal Air Force (RAF),” the MoD statement reads.
“Applications will be accepted from all Commonwealth countries, although in order to mitigate the risks associated with unaccompanied minors travelling to the UK without the guarantee of a job, we will not be accepting applications from those under 18,” the statement adds.
A limited waiver to the residency requirement was introduced in May 2016 to recruit up to 200 Commonwealth personnel per year to fill skill shortage posts. This limited waiver has now been widened, with the RAF and Navy beginning recruitment of Commonwealth applicants right away and the Army to accept such applications from early 2019. Applications from citizens of countries outside the Commonwealth will not be accepted.
“Citizens from the Commonwealth have a long tradition of serving with distinction in the Armed Forces,” the MoD said.
Special rules already allow citizens of Ireland and Gurkhas from Nepal to join the British armed forces. The five-year UK residency requirement for Commonwealth recruits was first waived in 1998, before being reintroduced in 2013.
A National Audit Office (NAO) report had revealed in April this year that the UK’s armed forces is short of around 8,200 soldiers, sailors and air personnel. Among measures to meet this shortage, women are now allowed to apply for all roles in the British military for the first time in history.
Britain currently employs 4,500 Commonwealth citizens in the armed forces, with 3,940 in the Army, 480 in the Royal Navy and 80 serving in the RAF.

Lie Detector/Brain Mapping/Narco Analysis Tests Can’t Be Ordered While Considering Bail Plea: SC Pulls Up Gujarat HC For Disclosing Identity Of Victim

 “In the instant case, by ordering the above mentioned tests and venturing into the reports of the same with meticulous details, the High Court has converted the adjudication of a bail matter to that of a mini-trial indeed.”
The Supreme Court on Monday quashed a Gujarat High Court judgment that had ordered lie detector, brain mapping and narco-analysis tests on the accused and grandmother, parents of the victim, in a bail application filed by the accused.
Examining these reports, the high court had also granted bail to the accused.
A ‘surprised’ apex court bench of Justice NV Ramana and Justice Mohan M Shantanagoudar said ordering such tests is not only in contravention to the first principles of criminal law jurisprudence but also violates statutory requirements.
The bench said that, while considering bail application, courts usually take into consideration the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds. The bench also added that the court must not undertake a meticulous examination of the evidence collected by the police, or rather order specific tests as done in the present case.
In the instant case, by ordering the above mentioned tests and venturing into the reports of the same with meticulous details, the High Court has converted the adjudication of a bail matter to that of a mini-trial indeed. This assumption of function of a trial court by the High Court is deprecated,” it said.
The court also took serious note of the high court order that had disclosed the name of the “victim” throughout the impugned order. Referring to Section 228A IPC and provisions of the POCSO Act, the bench said no disclosure of any particular(s) of the victim is allowed which can eventually lead to the disclosure of the identity of the victim.
Taking note that the special leave petition against this high court order has been filed by the grandmother of the victim and not by the state, the bench remarked: “The lethargic attitude of the State by not taking necessary steps to bring the matter to the notice of this Court by filing an appeal despite the clear violations of settled principles of criminal law jurisprudence and statutory prescriptions. The present Special Leave Petition was filed by the grandmother of the victim and it is only on her behest that we took notice of the matter.”

Ahmedabad based NGO, Peace and Equality Cell approached SC on behalf of complainant grandmother Sangeetaben.Advocates Philip Mathew and Navneet Nair have drafted the Petition

Bombay HC Reads Down MRTP Act Provision Which Permitted En-Bloc Regularization Of Illegal Constructions

‘By exercising the power under section 52A, unauthorised development which is contrary to the provisions of the Development Plans/Regional Plans under the MRTP Act and the Development Control Regulations framed under the MRTP Act shall not be declared as a compounded structure.’
The Bombay High Court has read down the provisions of section 52A of the Maharashtra Regional and Town Planning Act, 1966 and struck down Rules 4 (partly), 5 and 7 of the Compounded Structures Rules holding that they offend Articles 14 and 21 of the Constitution of India.
The bench comprising Justice AS Oka and Justice AK Menon read down Section 52-A of the MRTP Act to mean that non obstante clause in sub-section (1) of Section 52-A does not enable the planning authorities or the state government to compound unauthorized developments which are contrary to the provisions of the development plans/regional plans under the MRTP Act and the Development Control Regulations framed under the MRTP Act. It said that by exercising the power under section 52A, an unauthorised development which is contrary to the provisions of the Development Plans/Regional Plans under the MRTP Act and the Development Control Regulations framed under the MRTP Act shall not be declared as a compounded structure.
A number of PILs were filed challenging the validity of Section 52A of the Maharashtra Regional and Town Planning Act, 1966 which provides for en-bloc regularization of a very large number of illegal structures constructed in the state on or before 31st December. Their contention was that the said amendment, brought last year, destroys and defeats the very concept of town planning.
The bench observed thus in 138-page judgment: “If a provision or statute permits en-bloc regularization of illegal construction by completely overriding the provisions of the MRTP Act, DCR and draft or Development/Regional Plan it will surely constitute violation of Article 21 of the Constitution of India. But the law can be justified by the State by producing material which is not done by the State in this case. If a statute permits regularization of illegal development carried out before a cut off date, which is otherwise legal and it is illegal only on the ground that the same has been carried out without obtaining development permission, such a statute may not attract violation of Article 21. There is no violation of the town planning involved in such regularization. In the present case, if section 52A read is with the Compounded structure Rules, it permit regularization of illegal construction of multi storied buildings on public properties, on the lands reserved for public purposes, on the lands acquired for public purpose etc. We find for the reasons already set out that the provisions of section 52A and Rules 4, 5 and 7 Compounded structures Rules offend Articles 14 and 21 of the Constitution of India.”
The court also struck down Clauses (d) and (e) of Rule 4 (only to the extent to which the same permit compounding of structures contrary to provisions regarding zones) as well as Rules 5 and 7 of the Compounded Structure Rules.
The court further illustrated: “If construction of a building is carried out without obtaining development permission under the MRTP Act and the permissions required under the Municipal laws, it can be regularized if (i) all the required parameters such as size of the plinth, available FSI, necessary safeguards for fire fighting etc as provided in the DCR are taken care of and (ii)the structure can be made conforming to the provisions of DCR. By exercise of powers under sub-section (1) of section 52-A, such structure could be compounded if necessary, by imposing a condition to modify or alter the structure to bring it in conformity with the DCR. Obviously, if FSI is used which is more than what is permissible under the MRTP Act and the DCR framed thereunder, the structure to the extent to which additional F.S.I has been used cannot be regularized. If the DCR requires open spaces and set back to be provided in a particular manner, unless such provisions are complied with, the structure cannot be regularized. If DCR provides that only owner or lessee of property can apply for development permission, the structure can be regularized or compounded only if owner or lessee apply for regularization. Moreover, a structure made on a public property by encroaching upon it cannot be regularized.”
Referring to various apex court judgments, the bench said: “The Planning Authorities and the State will have to show zero tolerance to illegal constructions and it is the duty of the Planning Authority to take immediate steps for demolition of illegal developments. It is also their duty to ensure that such illegal developments are prevented and therefore, as far as PILs concerning Navi Mumbai are concerned, interim orders directing survey of illegal constructions, creation of Grievance Redress Mechanism etc. will have to be continued as final directions.”

Medical establishments to be covered under 2017 Act: Bombay High Court

Under the act establishments of medical practitioners including clinics, hospitals and dispensaries, with 10 or more employees are to be registered with the state government and those with lesser staff to be intimated to the local facilitator.

The Nagpur bench of the Bombay High Court on Friday upheld the constitutional validity of the provisions of the Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Act, 2017 under which establishments of medical practitioners including clinics, hospitals and dispensaries, with 10 or more employees are to be registered with the state government and those with lesser staff to be intimated to the local facilitator.
A division bench of Justice R K Deshpande and Justice Vinay Joshi was hearing a petition filed by Pradeep Arora (61), a general and paediatric surgeon, who runs Arora Hospital in Nagpur. Arora had challenged the definition of “establishment” under Section 2(4) of the Act. He argued that the inclusion of the profession and the establishment of any medical practitioner in the definition of “establishment” under the Act are liable to be struck down as the constitutional right to practice the profession or occupation of a doctor and the state government had not held any pre-legislative consultation before enforcing the Act.
The provisions of the Act require establishments, including medical facilities, with 10 or more employees to comply with the employment conditions mandated under the Act and those with lesser employees to be registered with the facilitator bringing the employer under statutory obligation to comply with it.
“..the Legislature seems to have adopted a practical approach based upon the data available with it indicating that the concept of medical tourism has also increased the commercial aspect of medical establishments. There are large multi­speciality hospitals, chains of hospitals spreading across inter­district, inter­state resulting in huge employment and engagement of huge work­force in the sector. It, therefore, became necessary to safeguard the interest of the employees and regulate their employment, conditions of service and provide them social security from being exploited under the garb of urgent work,” the bench observed in its 37-page order.
An establishment registered under the 2017 Act, requires the employer to fill online forms, declarations, documents stating the number of employees and their work hours, among others; prohibits discrimination between men and women employees; daily and weekly hours of work and interval for rest and protection of women from sexual harassment among others.
Advocate General A A Kumbhakoni told the court that to come under the definition of “establishment” under the Act, there should be a systematic activity, organised by cooperation between employer and employee and for the production and/or distribution of goods and services calculated to satisfy human wants and wishes.
“In our view, it is the harmonious activity carried out in cooperation amongst all the partners in the establishment to render material services to the community with the help of capital, which is covered by the definition of “establishment” under Section 2(4) of the new (2017) Act. Whether the establishment is running in profit or loss is of no consequence” the court observed. It said that Kumbhakoni was right in urging that it is a matter of legislative policy and wisdom as to the types of establishments to be included in the definition,” the bench observed.
Dismissing Arora’s petition, the court noted, “The objects and reasons of the new Act… not only take into consideration the regulation of conditions of employment, but also provide social security benefits to the employees covered by it. It deals with the statutory liabilities of employer of medical establishment. The new Act is modelled on the legislation suggested by the central government to bring about uniformity and equity in the provisions of law enforcement, to improve public accountability, transparency and to facilitate the ease of doing business and create new jobs”.