Thursday, January 31, 2019

Lawyer fined for seeking prosecution of CBI judge

A city sessions court fined an advocate Rs 25,000 for seeking the prosecution of a sitting CBI judge after the latter rejected an application. The lawyer has a habit of seeking the criminal prosecution of judges, the court said.

The lawyer, in this case, is Devesh Bhatt, whose client filed an application for the prosecution of special CBI judge J K Pandya. Additional sessions judge Prerana Chauhan also ordered the registry to send a report to the chairman of the Bar Council of Gujarat for appropriate action against Bhatt for his conduct, under the provisions of Section 15 of the Advocates Act. The court fined the applicant Rs 25,000 as well, public prosecutor Sudhir Brahmbhatt said.

CBI judge Pandya had turned down a demand for further investigation in connection with graft charges earlier this month. Bhatt’s client, the TaxPayers Protection Council, demanded Pandya’s prosecution before the city sessions court for passing an order which could jeopardize the public interest and cause losses to the exchequer.

The sessions court refused to buy Bhatt’s argument and noted that the law gives the judicial immunity when he passes an order as part of his judicial function. The court noted Bhatt’s past behaviour and observed that Bhatt is “habitual of making frivolous complaints against judges”. He had filed a complaint against a former high court judge. The high court took suo motu contempt of court action in 2018 and issued a nonbailable warrant against Bhatt. He has used another person as a tool against the court to make such allegations and file a criminal complaint, which has shaken the credibility and dignity of the judiciary.

The court further said that Bhatt has a habit of tarnishing the image of judges and he then remains absent before courts. This cannot be taken lightly. The court termed it “unfortunate”.
The court further said that it is the duty of advocates to respect judges as well as respect judicial decisions rendered by judges and they should avoid making such type of frivolous prosecution requests as they are also officers of the court and part of the judicial system.

Is Extra Marital Consensual Gay Relationship A Crime?

Discharging a man accused under Section 377 IPC, the Bombay High Court observed that extramarital consensual sexual relationship is not a criminal offence, in view of Supreme Court judgment in Navtej Singh Johar vs. Union of India.

Long back in 2009, a woman had filed a complaint against her husband and his gay partner. According to her, after 4 to 5 years of their marriage in 1994, she realised that her husband is gay and she opposed the parallel relationship of her husband. She alleged that her husband continued to keep his gay relationship with different males, including the accused. She also said that her husband was not willing to stop his relationship with them.

The application seeking discharge by the accused (husband's alleged gay partner), was dismissed by the Magistrate court. The Sessions court, partly allowed revision petition and discharged him from offences under sections 323 and 504 of the Indian Penal Code but maintained the charge under section 377 IPC.
Justice Mridula Bhatkar said: "The complainant has grievance against her husband, who is a gay and kept sexual relations with male friends i.e., the petitioner. The Supreme court in the case of Navtej Singh Johar & Ors. Vs. Union of India has held section 377 of the Indian Penal Code insofar as it criminalises consensual sexual conduct between the adult of same sex, as unconstitutional. In the present case, both were having an extra marital consensual sexual relationship. Though it may be a ground for divorce on the ground of cruelty to the complainant, it does not constitute offence under section 377 because both are adults and had sexual relationship by consent."
The court also said that, the woman, who filed the complaint, cannot be termed as a victim. It said: "In this case, there is no victim. The complainant wife is an aggrieved person but she cannot be called as a victim under section 377 of the Indian Penal Code. There are allegations against the husband having unnatural sexual intercourse with her."
The bench then set aside the order passed by the Additional Sessions Judge, and discharged the accused.

There Cannot Be Any Legitimate Expectation Unless A Legal Obligation Exists: SC

Unless a legal obligation exists, there cannot be any legitimate expectation, the Supreme Court has held.

The bench comprising Justice Dhananjay Y Chandrachud and Justice Hemant Gupta, in State of Bihar vs. Dr. Sachindra Narayan, were considering a contention raise that, since the State Government had provided funds for payment of pension for the last many years, the Institute and the employees of the Institute have legitimate expectations to receive the amount of pension.

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The bench observed that legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in regular and natural sequence. It said that payment of pension in the past will not confer an enforceable right in favour of the Institute or its employees.
The court reiterated that a pious hope even leading to moral obligation cannot amount to a legitimate expectation. "Legitimate expectation is one of the grounds of judicial review but unless a legal obligation exists,there cannot be any legitimate expectation. The legitimate expectation is not a wish or a desire or a hope, therefore, it cannot be claimed or demanded as a right.", the bench said.
The court allowed state's appeal against the judgment of the division bench of Patna high court which directed it to provide financial assistance for payment of the arrears as well as current pension to the employees of the Anugraha Narayan Sinha Institute of Social Studies, Patna..
The bench said: "The money contributed to the Institute by the State Government is one source of the fund of the Institute fund. Section 9(3) of the Act provides that the funds shall be applied towards meeting the expenses of the Institute including expenses incurred in exercise of its powers and discharge of its functions under the Act. Therefore, the retirement pension scheme, at best can be treated to be a part of obligation of utilization of funds of the Institute but such obligation to bear the amount of pension fund is not on State Government as it is not mandated either by Section 8 or Section 9 of the Act."
The court said that, in this case there was no obligation on the State to disburse the grant towards the pension amount in terms of the Act or the Rules or even in terms of the resolution of the Board.

"The resolution of the Board of the Institute to implement a retirement benefit scheme from its own resources will not bind the State Government to pay the amount of pension to the employees of the Institute. The employees of such Institute cannot be treated at par with the employees of the State Government nor the State can be burdened with the responsibility to pay pension to the employees of the Institute.", the bench said setting aside the division bench order.

Wednesday, January 30, 2019

Pune Cable Operators fail to get stay on TRAI tariff rollout

The Bombay High Court refused to stay the 2017 TV channel tariff order by TRAI in a case filed by the Pune Cable Operators’ Association.
The new tariff scheme is scheduled to come into operation from Friday across the country, except in West Bengal.
The Pune Cable Operators’ Association tried to get a stay today by pointing out that the Calcutta High Court had issued a stay on the implementation of the tariff order till Feb 18 after local cable operators had complained that they needed more time.
However, the Bombay High Court refused to issue a similar stay.
Instead, it asked TRAI and the petitioners to submit a copy of the Calcutta High Court order for a hearing next week.

Additional District Magistrate Can Order Externment Under MP Rajya Suraksha Adhiniyam: SC

The Supreme Court has held that an Additional District Magistrate can pass an Externment order when there is no provision in the statue prohibiting passing of an order by an officer lower than the rank of District Magistrate.

In State of Madhya Pradesh vs. Dharmendra Rathore, the Madhya Pradesh High Court had set aside an externment order passed by the Additional District Magistrate on the ground that he had no jurisdiction to pass the order under the Madhya Pradesh Rajya Suraksha Adhiniyam, 1990, and such an order could be passed only by District Magistrate. The High court had apparently relied on the Constitution Bench judgment of the Supreme Court in Ajaib Singh vs. Gurbachan Singh which had held that the detention order could not have been passed by any authority lower than the rank of District Magistrate.
In fact, in the case of Ajaib Singh the Supreme Court considered the provisions of Defence of India Act, 1962 and Defence of India Rules, which contained a different statutory scheme. The said scheme stipulated that detention order can be passed by the authority empowered by the rules to apprehend or detain with restriction that the authority empowered to detain not being lower in rank than that of a District Magistrate. It was in that background, the court held that Additional District Magistrate being not the District Magistrate was incompetent to pass the impugned order.

The bench comprising Justice Ashok Bhushan and Justice KM Joseph noticed this distinction and also the fact that the State Government, in the present case, had issued a notification delating the power of the District Magistrate to the Additional District Magistrate. 

It observed: "It is clear that in the Statutory Scheme of the Adhiniyam, 1990, there is no provision, which prohibit passing an order by an officer lower than the rank of District Magistrate rather under Section 13, there is no limitation on the State Government while specially empowering an officer of the State to exercise the power of District Magistrate under Sections 3, 4, 5 and 6 and further under Section 18, the powers and duties of District Magistrate can be directed to be exercised or performed by Additional District Magistrate or Sub -Divisional Magistrate for such areas as may be specified in the order. Thus, the Scheme of the Adhiniyam, 1990 clearly contemplate exercise of the power of District Magistrate under Sections 3, 4, 5 and 6 by an Additional District Magistrate or Sub -Divisional Magistrate."

The court said that Ajaib Singh judgment was not applicable in the facts of the present case and that the High Court committed the error in relying on the said judgment for holding that Additional District Magistrate had no jurisdiction.

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Attributing Political Colours To Judgments Is An Act Of Contempt Of Gravest Form: SC

The Supreme Court, in its judgment quashing Rules 14A to 14D of the Rules of High Court of Madras, 1970, observed that attributing political colours to the judgments is nothing less than an act of contempt of gravest form.
Justice Arun Mishra, who authored the judgment for the bench also comprising of Justice Vineet Saran, observed that it has become very common to the members of the Bar to go to the press/media to criticize the judges in person and to attribute political colours to the judgments. 
Read This - Autonomy Of The Bar Cannot Be Taken Over By The Court: SC Quashes Madras HC 'Disciplinary Rules' For Lawyers
The bench said: "Whenever any political matter comes to the Court and is decided, either way, political insinuations are attributed by unscrupulous persons/advocates. Such acts are nothing, but an act of denigrating the judiciary itself and destroys the faith of the common man which he reposes in the judicial system. In case of genuine grievance against any judge, the appropriate process is to lodge a complaint to the concerned higher authorities who can take care of the situation and it is impermissible to malign the system itself by attributing political motives and by making false allegations against the judicial system and its functionaries. Judges who are attacked are not supposed to go to press or media to ventilate their point of view."
Nurses Can Practice Their Profession Throughout The Territory Of India: SC 
Some Advocate Feel They Are The Only Champion Of The Causes.
Justice Mishra further observed that some advocates feel that they are above the Bar Council due to its inaction and they are the only champion of the causes. 
"The hunger for cheap publicity is increasing which is not permitted by the noble ideals cherished by the great doyens of the bar, they have set by their conduct what should be in fact the professional etiquettes and ethics which are not capable of being defined in a narrow compass. The statutory rules prohibit advocates from advertising and in fact to cater to the press/media, distorted versions of the court proceedings is sheer misconduct and contempt of court which has become very common. It is making it more difficult to render justice in a fair, impartial and fearless manner though the situation is demoralizing that something has to be done by all concerned to revamp the image of Bar. It is not open to wash dirty linen in public and enter in accusation/debates, which tactics are being adopted by unscrupulous elements to influence the judgments and even to deny justice with ulterior motives.", the bench said. 
Absolutely Necessary To Remove Black Sheeps From The Profession
The bench added that it is for the Bar Council and the senior members of the Bar to rise to the occasion to maintain the independence of the Bar. It added: " The Bar Council of India under its supervisory control can implement good ideas as always done by it and would not lag behind in cleaning process so badly required. It is to make the profession more noble and it is absolutely necessary to remove the black sheeps from the profession to preserve the rich ideals of Bar and on which it struggled for the values of freedom."

Casual Act Of Possession Over Property Does Not Confer 'Possessory Title': SC

Holding that possessory title over property cannot be claimed merely on the basis of 'casual possession', the Supreme Court observed that a casual act of possession does not have the effect of interrupting the possession of the rightful owner.

In Poona Ram vs. Moti Ram, the plaintiff had filed a suit in which he claimed possessory title based on prior possession for a number of years. The Trial court decreed the suit. The First Appellate court reversed it holding that the defendants had proved their title and possession over the suit property. The High Court restored the Trial court decree and judgment.

In the appeal filed by the defendant, the bench comprising Justice NV Ramana and Justice Mohan M. Shantanagoudar  considered the issue whether the plaintiff had better title over the suit property and whether he was in settled possession of the property, which required dispossession in accordance with law. 
In the judgment, the court explained the concept behind suit based on possessory title. It said: "Section 64 of the Limitation Act, 1963 contemplates a suit for possession of immovable property based on previous possession and not on title, if brought within 12 years from the date of dispossession. Such a suit is known in law as a suit based on possessory title as distinguishable from proprietary title. It cannot be disputed and is by now well settled that 'settled possession' or effective possession of a person without title entitles him to protect his possession as if he were a true owner"

The bench then referred to some previous judgments on the subject and briefly explained the crux of the matter. It said: A person who asserts possessory title over a particular property will have to show that he is under settled or established possession of the said property. But merely stray or intermittent acts of trespass do not give such a right against the true owner. Settled possession means such possession over the property which has existed for a sufficiently long period of time, and has been acquiesced to by the true owner. A casual act of possession does not have the effect of interrupting the possession of the rightful owner. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. Settled possession must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. There cannot be a straitjacket formula to determine settled possession. Occupation of a property by a person as an agent or a servant acting at the instance of the owner will not amount to actual legal possession. The possession should contain an element of animus possidendi. The nature of possession of the trespasser is to be decided based on the facts and circumstances of each case."

Examining the evidence on record, the bench observed that merely on doubtful material and cursory evidence, it cannot be held that the plaintiff was ever in possession of the property, and that too in settled possession. The plaintiff, in this case, had relied on an old body of a motor vehicle belonging to him lying in the disputed property. In this regard, the bench said: "Absolutely no material is found to show that the plaintiff/Respondent No. 1 was in actual possession, much less continuous possession, of the property for a longer period which may be called settled possession or established possession. As mentioned supra, mere casual possession, that too relying on a motor vehicle body lying on a part of the property, would not prove settled possession of the plaintiff."
Setting aside the High Court judgment, the bench said: "In order to claim possessory title, the plaintiff will have to prove his own case, and also will have to show that he has better title than any other person. Since there is no documentary proof that the plaintiff was in possession of the suit property, that too for a long period, he cannot be allowed to succeed based on minor discrepancies in the evidence of the defendants."
Full Judgment

"Don't Play Around With The Law": Supreme Court Warns Karti Chidambaram

The Supreme Court today allowed former finance minister's son Karti Chidambaram to travel abroad but has warned him that the court will be "forced to take steps" if he does not cooperate with the probe agencies, investigating the Aircel-Maxis case. Karti Chidambaram and his father P Chidambaram are accused No, 1 and 2 in the case.
"You can go wherever you want to, you can do whatever you want but don't play around with the law. If there is an iota of non-cooperation, we will come down heavily," Chief Justice Ranjan Gogoi told Karti Chidambaram.
The top court has directed Karti Chidambaram to be present before the Enforcement Directorate on March 5, 6, 7 and 12 for questioning. He also has to deposit Rs 10 crore with the Supreme Court as a condition for traveling abroad. 
Karti Chidambaram had sought the Supreme Court's permission to travel to the UK, Spain, Germany and France in February and March for a tennis tournament.
During the earlier hearing last week, the top court had asked the Enforcement Directorate to specify the dates on which Karti would be required to appear for questioning in the Aircel Maxis case. The probe agency had opposed his plea to travel abroad, alleging that he has been "evasive and non-cooperative". The ED had told that court that the Aircel Maxis probe is getting "delayed" because of Karti Chidambaram's frequent foreign travels.
Karti Chidambaram is being investigated by the Enforcement Directorate and the CBI in several cases, including the one relating to Foreign Investment Promotion Board (FIPB) clearance to INX Media for receiving foreign funds to the tune of Rs. 305 crore when his father, P Chidambaram was the finance minister.

Monday, January 28, 2019

No Authority Can Claim Privilege Not To Comply With SC Judgment: SC

The Supreme Court has observed that no authority can claim a privilege not to comply with its judgment.

The bench comprising Justice DY Chandrachud and Justice Hemant Gupta made this observation while allowing an appeal filed by an employee of the Council for Scientific and Industrial Research (CSIR).
In this case, the employee had approached the Tribunal contending that the failure to communicate the Annual Confidential Reports in which he had failed to meet the benchmark violated the O-Ms issued by the Department of Personnel and Training. However, the tribunal held that CSIR is an autonomous body and therefore the circulars issued by the Union of India would not ipso facto apply. The high court concurred with the said view of the Tribunal.
In his appeal, the bench noted that in Dev Dutt vs. Union of India, it was held that that non-communication of entries in the ACRs has civil consequences since it may affect the chances of the employee for promotion and other benefits. While holding that failure to communicate ACRs would be arbitrary, the court had held that these directions would apply to employees of statutory authorities, public sector corporations and other instrumentalities of the State, in addition to government servants. The bench also added that the Three Judge Bench in Sukhdev Singh vs. Union of India had approved of this view taken in Dev Dutt judgment.

The bench then observed that both the Tribunal and the High Court were in error in coming to the conclusion that CSIR being an autonomous entity and having adopted the O.Ms of the Department of Personnel and Training with effect from a specified date, the employee could not make a grievance of the non-communication of the ACRs for the relevant period.
"CSIR by reason of its autonomy may have certain administrative privileges. No authority can, however, claim a privilege not to comply with a judgment of this Court. Once the law was enunciated in Dev Dutt's case (supra), all instrumentalities of the State were bound to follow the principles laid down by this Court. CSIR was no exception.", the bench said.

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Sunday, January 27, 2019

Supreme Court strikes down Madras High Court disciplinary Rules for advocates

The Supreme Court has struck down the discplinary Rules framed by Madras High Court for lawyers.
The judgment was rendered by a Bench of Justices Arun Mishra and Vineet Saran.

The disciplinary rules contained grounds on which an advocate could be disbarred. These grounds included abusing/browbeating a judge, spreading unfounded allegations against a judge, and appearing in court under the influence of alcohol.

Under the rules, disciplinary action could be taken against an advocate on the following grounds:

“(vii) An Advocate who is found to have accepted money in the name of a Judge or on the pretext of influencing him; or
(viii) An Advocate who is found to have tampered with the Court record or Court order; or
(ix) An Advocate who browbeats and/or abuses a Judge or Judicial Officer; or
(x) An Advocate who is found to have sent or spread unfounded and unsubstantiated allegations/petitions against a Judicial Officer or a Judge to the Superior Court; or
(xi) An Advocate who actively participates in a procession inside the Court campus and/or involves in gherao inside the Court Hall or holds placard inside the Court Hall; or
(xii) An Advocate who appears in the Court under the influence of liquor shall be debarred from appearing before the High Court or Subordinate Courts permanently or for such period as the Court may think fit and the Registrar General shall thereupon report the said fact to the Bar Council of Tamil Nadu.”
These rules were framed in 2016 pursuant to the Supreme Court’s directions in the 2009 case of RK Anand v Registrar, Delhi High Court. Accordingly, amendments were made to the Advocate’s Act, 1961 to accommodate the new rules framed by a committee of judges, and notified through a circular issued by the High Court Registrar on May 20, 2016.
As per these disciplinary rules, judges of the High Court as well as those of subordinate courts were empowered to initiate action against, and even debar an advocate on any of the aforementioned grounds.

Woman fined Rs 25 lakh for threat to file fake case of molestation

Slamming the misuse of gender protection laws, the 
Bombay high court
recently imposed a fine of Rs 25 lakh on a woman entrepreneur and her husband. Neha Gandhir, the proprietor of Haryana-based Feel Good India company, which was involved in a trademark infringement fight with Mumbai-based Sapat and Company, had allegedly threatened to file false molestation charges against the court receiver.

“Time and again, it is noted with distress, that a socially enabling piece of legislation, is being grossly misused with impunity, by the very gender for whose empowerment it has been enacted, leaving the male/s facing grossly wrong and derogatory charges, which they have to thereafter defend themselves against. Such gross and 
 of a socially enabling piece of legislation has to be sternly condemned by the Courts and dealt with a very stern hand,” said Justice S Kathawalla.

Gandhir’s lawyers sought leniency considering the fact that she was a young entrepreneur with two children. Gandhir admitted that “in a fit of rage”, she had snatched the photographic equipment and threatened the court receiver and representatives of Sapat. She said the “use of the word ‘molestation’ was ‘unintended in spirit’ and was as such used as a ‘term of art’ and was said in a state of great fear and apprehension”.

The HC refused to accept the explanation. “If such abhorrent behaviour is left unpunished, by showing compassion to a person who knowingly, grossly abuses the process of law, and thereafter attempts to justify the same by saying that she did it in a fit of rage, the court will send out a wrong message to the general public,” said the judge. “Such conduct may also deter court officials from executing orders against women,” said the judge. 

The case was filed by Sapat against Feel Good for infringing on the former’s trademark name for a cough syrup. The HC on December 21, 2018, restrained Feel Good from infringing the copyright and appointed a court receiver to seize goods from the company’s factories. The confrontation occurred on January 4, when the court receiver and representatives of the other company tried to video-record loading of goods into a tempo. “Gandhir tried to snatch away his phone, asked him to delete what was video-graphed and us-ed the most easily available weapon to an unscrupulous and dishonest woman, when her dishonesty is exposed, by threatening them that she will level false allegations of molestation against them,” the court observed.

Saturday, January 26, 2019

Aadhaar info not conclusive proof in criminal probes: HC

Aadhaar card is a document that provides a conclusive link between the card-holder’s photograph, his/her fingerprints and iris scan with Aadhaar number: Court'Aadhaar card details cannot be taken as conclusive proof during an investigation into a criminal case'

Aadhaar card details — such as name, gender, address and date of birth — cannot be taken as conclusive proof during an investigation into a criminal case, the Lucknow bench of Allahabad high court has said. These entries may be subject to verification in case of doubt, the court said in a January 9 ruling, which was made public.

The court clarified that an Aadhaar card was a document that provided a conclusive link between the card-holder’s photograph, his/her fingerprints and iris scan with Aadhaar number.

A bench of justices Ajai Lamba and Rajeev Singh said, “If a person relies on Aadhaar entries as proof of address and date of birth, these cannot be considered conclusive proof under the Evidence Act.”

The verdict came during the hearing of a writ petition in which a woman challenged an FIR lodged by her mother about her kidnapping with Sujauli police station in Bahraich. In her FIR, the mother had said that her minor daughter was abducted by a man and his relatives. In her writ petition, the woman pleaded that she was a major and was not kidnapped but had married on her own free will. She alleged that her mother did not accept her marriage and lodged a false FIR against her husband and his family members. On the high court’s intervention, police investigated the case and gave a clean chit to the woman’s husband and her in-laws. The case was closed.
However, during the hearing, the court took cognisance of the aggrieved woman and her husband’s Aadhaar card details, which mentioned her date of birth as ‘January 1, 1999’ and his as ‘January 1, 1997’. The court was intrigued by ‘January 1’ in both the Aadhaar cards and said it found same date of birth in many such cards. Therefore, the court said, this must be clarified with the Unique Identification Authority of India (UIDAI).

On the court’s direction, UIDAI Lucknow regional office deputy director Jasmine filed an affidavit and appeared in the court. In the affidavit, she said, “Aadhaar is only proof that a person obtaining subsidy or service by identifying himself/herself on the basis of Aadhaar number is the same person who enrolled after providing biometrics and documents. If a resident does not have a valid date of birth document, it’s recorded on the basis of a declared date. If the date is approximate, the age is verbally communicated by the resident to the operator, based on which the year of birth is calculated. By default, the date of birth is recorded as January 1 of that calendar year.”

After this clarification by UIDAI, the court said name, gender, address and date of birth on the Aadhaar card can’t be taken as conclusive proof.

When Can Appellate Court Allow Plea For Adducing Further Evidence: SC

The Supreme Court, in a judgment delivered on Friday, explained the scope of power of the Appellate Court to allow the application for adducing further evidence in criminal cases.

The bench comprising Justice Ashok Bhushan and Justice KM Joseph, allowed an appeal against the High Court judgment which had upheld the Sessions' court order rejecting the applications filed by the accused- appellant under Section 391 of the Code of Criminal Procedure.

Brig. Sukhjeet Singh, a retired Brigadier of Indian Army and a recipient of Maha Vir Chakra in the 1971 war, was convicted by the Trial Court in a 'cheating' case. He filed Criminal appeal before the Sessions Court and also moved an application under Section 391 Cr.P.C for placing on record a Trust Deed. The Sessions Court dismissed this application. 
The High Court, dismissing the challenge against this Session's court order, observed that the applications filed at a belated stage appear to be with some ulterior malafide motive or for delaying the decision of the appeal to eternity. Brig. Singh approached the Apex Court.
Referring to earlier judgments in this regard, the bench made the following observations vis-à-vis scope of powers under Section 391 CrPC:
  • It is clear that there are no fetters on the power under Section 391 Cr.P.C. of the Appellate Court. All powers are conferred on the Court to secure ends of justice. The ultimate object of judicial administration is to secure ends of justice. Court exists for rendering justice to the people.
  • When it becomes necessary to take additional evidence, cannot be enlisted or enumerated in any fixed formula. It depends on facts of each and every case to come to a conclusion as to whether it is necessary to take additional evidence or not.
  • When Statute grants right to appeal to an accused, he has right to take all steps and take benefit of all powers of the Appellate Court in the ends of the justice. In a criminal case Appellate Court has to consider as to whether conviction of the accused is sustainable or the appellant has made out a case for acquittal. The endeavour of all Courts has to reach to truth and justice.
On facts, the bench concluded that the Trust Deed and the Resolution, which are foundation and basis for the start of the process of the sale of the land were documents, ought to have been permitted to be proved to arrive at any conclusion to find out the criminal intent, if any, on the part of the appellant.
Allowing the appeal, the bench set aside the High Court and Sessions Court order and directed the Appellate Court to receive the additional evidence and decide the appeal expeditiously.

Friday, January 25, 2019

Writ Under Article 32 Not Maintainable For Enforcement Of Personal Contractual Rights: SC

The Supreme Court has held that employees cannot be granted a writ under Article 32 of the Constitution of India for claiming enforcement of any personal contractual rights against their employers.
The bench comprising Justice Abhay Manohar Sapre and Justice R. Subhash Reddy ruled, "Even otherwise, no writ lies under Article 32 of the Constitution at the instance of any employee or the employer for claiming enforcement of any personal contractual rights inter se the employee and his employer."

Allot Rs 50, 000 Crore Annual Budget for Advocates' Welfare, BCI writes to PM Narendra Modi

The Bar Council of India (BCI), through its chairman Manan Kumar Mishra, has addressed a letter to the Prime Minister, Narendra Modi pressing for an annual budgetary allocation of Rs 50, 000 crores for the welfare of Advocates in India.
Recalling a speech made by Modi in 2014, during an event organised by the BCI, the letter points out,
“… you [Modi] gave a clear assurance to the Lawyers of the country that if you become the Prime Minister of the country, you will make some Budgetary provisions for Lawyers, the Legal Profession and their welfare.
However, repeated representations made in furtherance of the same to government officials yielded little result. In turn, the BCI has made the instant representation, seeking the implementation of the following proposals for the general welfare of advocates, i.e.:
  1. Insurance cover up to Rs. 20, 00, 000/- for the Lawyers and their families (dependents).
  2. Medi-claim: free medical treatment of every type of disease in best Hospitals of India & other countries (if needed) for the Advocates. Lawyers should be provided a “special card” for this purpose, so that they could avail the benefit of this schemes anytime, anywhere. 
  3. Stipend for needy new entrants at the Bar upto 5 years of their practice (Minimum Rs. 10, 000/- Per Month)
  4. Scheme for pension for old/indigent Advocates and provision for family pension in case of untimely death of Advocates (Minimum Rs. 50, 000/- per month).
  5. Advocates Protection Act to be enacted for Advocates of the Country by the Parliament 
  6. All the Bar Associations of the country should have adequate building/accommodation/sitting facilities with well-equipped Libraries, e-libraries, with internet, toilets etc. and facilities for lady advocates.
  7. Interest-free house loans, loans for Library, Vehicle for the needy Advocates. The government should acquire lands at cheaper for the Housing of Advocates. 
  8. Legal Services Authority Act – Amendments & necessary changes should be made in the Act so that the functions under this Act could be discharged by the Lawyers (and not the Judges or Judicial Officers only. 
  9. All the Acts (which provide for appointments of retired Judges/Judicial Officers as the Presiding Officers/ Member of different Tribunals, Commissions of Forums/ Authorities) should be properly amended so that competent Advocates (and not only the Judges) could also be appointed on these places. 
  10. In case of untimely death of any Advocate (below 65 years of age) due to accident, murder, any disease, the Government should grant the family/dependents at least a sum of Rs 50, 00, 000 /- (fifty lakhs).
The letter also urges for a budgetary allocation of Rs 50, 000 crores per year, which it states would be sufficient to cover the welfare requirements of the Advocates. The money so allocated may be deposited through trustee committees headed by Advocates General, the BCI suggests.
The Budget Session is to begin soon, our request is very simple. As citizens of this country, the lawyers and their families have also the right to get the bar minimum requirement so life and to live a respectable and secured life.
The BCI has requested that the government respond to the representation before January 31, 2019. The BCI letter also informs that Bar Council and Associational representatives had contemplated carrying out a massive demonstration at Delhi to highlight these demands. However, the same was deferred to acquaint the Prime Minister with the demands. The next joint meeting of Bar Councils and Bar Associations is expected to be held on February 9-10, 2019.

'Cheque Bounce' Complaint Against Director Not Maintainable If Company Is Not Arraigned As Accused, Reiterates SC

The Supreme Court has reiterated that a 'cheque bounce' complaint against the director of the company is not maintainable if the company is not arraigned as an accused.
The bench comprising Justice DY Chandrachud and Justice Hemant Gupta quashed the complaint while setting aside the high court order that had dismissed the petition filed by the accused under Section 482 of the Code of Criminal Procedure.
The bench observed that the complainant had issued notice of demand only on the director and lodged the complaint against him without arraigning the company as an accused. It further noted that the accused had drawn the cheque not in his personal capacity, but as the director for Lakshmi Cement and Ceramics Industries Ltd.
The bench said that it is important to fulfill some conditions before lodging such a complaint. It said: "These conditions are; (i) presentation of the cheque to the bank within six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (ii) a demand being made in writing by the payee or holder in due course by the issuance of a notice in writing to the drawer of the cheque within thirty days of the receipt of information from the bank of the return of the cheques; and (iii) the failure of the drawer to make payment of the amount of money to the payee or the holder in due course within fifteen days of the receipt of the notice."
Referring to earlier judgments and Section 141 of the Negotiable Instruments Act, the bench said: "In the absence of the company being arraigned as an accused, a complaint against the appellant was therefore not maintainable. The appellant had signed the cheque as a Director of the company and for and on its behalf. Moreover, in the absence of a notice of demand being served on the company and without compliance with the proviso to Section 138, the High Court was in error in holding that the company could now be arraigned as an accused."
Quashed The Complaint, But Complainant Will Get The Money
Though the court quashed the complaint, it said that the amount deposited by the accused in the court as per its earlier direction (Rs 4,15,000 was the cheque amount and the accused had deposited the entire amount in the court) would be paid over to the complainant.
The court said: "In pursuance of the aforesaid directions, the appellant deposited an amount of Rs. 4, 15,000/- on 23 February 2009. The amount has been invested in a fixed deposit which has been renewed periodically. In our view, having regard to the intent of the order which was passed by this Court on 28 November 2008, it would be appropriate and proper if the amount deposited in this Court, together with accrued interest, is paid over to the respondent-complainant."
Since the complainant had not appeared despite service of notice in this case, the bench directed the registry to intimate him regarding this order.

Thursday, January 24, 2019

Mere Delay In Passing The Award By Itself Cannot Be The Ground To Appoint Another Arbitrator: SC

The Supreme Court has observed that mere neglect of an arbitrator to act or delay in passing the award by itself cannot be the ground to appoint another arbitrator in deviation from the terms agreed to by the parties.

The bench comprising of Justice R. Banumathi and Justice Indira Banerjee held thus while considering appeal against Rajasthan High Court order appointing a retired District Judge as the sole arbitrator to resolve the dispute between the parties, by allowing application under Section 11 and Section 15 of the Arbitration and Conciliation Act, 1996, filed by contractor.

In this case, the terms of agreement provided for arbitration by the Managing Director of the Rajasthan Small Industries Corporation Limited himself or his or her nominee for the sole arbitration. One retired IAS officer was initially appointed as the sole arbitrator on 21.02.2005. Later in 2009, the Chairman-cum-Managing Director of the Corporation was appointed to act as the sole arbitrator by the consent of both the parties. The contractor approached the High Court contending that since for a long period of about ten years, no award has been passed and that the arbitrators were kept on changing for one reason or other. Allowing this application, the High Court appointed the new Arbitrator. While the High Court was in seisen of the Arbitration application, the Arbitrator passed an award.
On appeal by the Corporation, the bench observed that, when the parties have consciously agreed that the disputes or differences shall be referred to the Managing Director himself or his nominee for sole arbitration and having participated in the arbitral proceedings before arbitrator for quite some time, the contractor cannot turn round and seek for appointment of an independent arbitrator.

"The respondent having participated in the proceedings before the arbitral tribunal for quite some time and also having expressed faith in the sole arbitrator, is not justified in challenging the appointment of the Managing Director of the appellant-Corporation as the sole arbitrator", the court said.
The bench also rejected the contention on behalf of the contractor that Section 12(5), which prohibits the employee of one of the parties from being an arbitrator, applies in this case. The court observed that, in this case, the agreement between the parties was entered into on 28.01.2000 and the arbitration proceedings commenced way back in 2009.

"In the case in hand, the arbitration proceedings started way back in 2009 long before 2015 Amendment Act came into force and therefore, 2015 Amendment Act is not applicable to the case in hand. The statutory provisions that would govern the matter are those which were then in force before the Amendment Act", the court added.

The court further held that the high court was not right in appointing an independent arbitrator without keeping in view the terms of the agreement between the parties. As regards the issue whether the High Court was right in terminating the mandate of the arbitrator appointed as per the agreement, the bench, referring to Russell on Arbitration, said: "It is true that there was some delay in passing the award. 23 However, between 2011 and 2013, the respondent has not filed any application to expedite the proceedings and for passing of the award. The respondent has neither filed the Request Case for passing of the award at an early date nor filed the petition under Section 14 of the Act for termination of the mandate of the arbitrator that the arbitrator has 'failed to act without undue delay'.. Mere neglect of an arbitrator to act or delay in passing the award by itself cannot be the ground to appoint another arbitrator in deviation from the terms agreed to by the parties."
By invoking Article 142 of the Constitution, the bench also set aside the award passed by the Arbitrator observing that since the High Court was in seisen of the matter, he could have given further opportunity to the other party. It also appointed the present Managing Director of the corporation as the sole arbitrator and directed him to take up the matter and continue the proceedings.

Undivided Share In Joint Family Can Be Disposed By Will As Per Sec.30 Hindu Succession Act : SC

The undivided interest of a Hindu in a joint family property can be disposed of by Will as per Section 30 of the Hindu Succession Act 1956, held the Supreme Court yesterday while dismissing appeals from a partition suit.
"Section 30 of the Act, permits the disposition by way of Will of a male Hindu in a Mitakshara coparcenary property", observed the bench of Justices A M Khanwilkar and Ajay Rastogi in the case Radhamma and others v Muddukrishna and others (After 2005 amendment, any Hindu, whether male or female, can do so; but the case was pertaining to pre-2005 situation)
The matter arose out of a suit for partition of the estate of one Patel Hanume Gowda, filed in 1976 by his second wife and his daughter from second marriage. After the death of Gowda in 1965, his estate came under the control of his children from first marriage, who were made defendants in the suit. In the suit proceedings, they produced a Will stated to have been executed by Gowda in 1962, by which his undivided interest was bequethed to them.
Though the plaintiff contested the validity of the Will contending that it was a result of undue influence and coercion exercised by defendants on Gowda, the trial court found that the Will was proved to have been validly executed in terms of Section 68 of the Evidence Act. The trial court however invalidated the disposition of undivided share in coparcenary interest as per the Will, on the ground that Hindu Personal Law prohibited it. The plaintiffs were therefore given 1/10th share in the undivided interest.
In appeal, the High Court of Karnataka reversed this declaration of the trial Court, relying on Section 30 of the Hindu Succession Act. "Section 30 makes it clear that a Hindu testator may dispose of any property which is capable of being disposed of by him by Will or other testamentary disposition in accordance with Indian Succession Act of 1925. The Explanation again clarifies that it is only in respect of interest of a male Hindu in Mitakshara joint family property. The disability prevailed till coming into force of Section 30 of the Act is removed so far as Will is concerned", observed the High Court, setting aside the grant of 1/10th share to the plaintiffs.
Challenging this, the plaintiffs approached the Supreme Court. Their arguments against the execution of Will were rejected by the Court, noting that the concurrent facutal findings of the High Court and trial court cannot be interfered with.
The apex court further observed that rule against disposition of undivided coparcenary interest was relaxed by Section 30. The provision is an exemption to the general rule that the interest of a Male Hindu in joint family property will devolve by survivorship upon the surviving members of the coparcenary after his death. The Court observed :
An exception is contained in the explanation to Section 30 of the Act making it clear that notwithstanding anything contained in the Act, the interest of a male Hindu in Mitakshara coparcenary property can be disposed of by him by Will or any other testamentary disposition.
Therefore, the judgment authored by Justice Ajay Rastogi held that the testator Patel Hanume Gowda was qualified to execute a Will bequeathing his undivided share in the joint family properties by Will executed in 1962. 
"Since the testator has bequeathed his share/his undivided coparcenary interest by Will dated 16.6.1962, no further independent share could be claimed by the appellants", observed the Court while dismissing the appeals.

SC Explains Difference Between Retrospective And Retroactive Statutes

While holding that the Interest on Delayed Payment to Small Scale and Ancillary Industrial Undertakings Act, 1993, is prospective in operation, the Supreme Court has delineated the difference in concepts of retrospective and retroactive operation of laws.

The bench comprising Justice AK Sikri, Justice Ashok Bhushan and Justice S Abdul Nazeer was considering these appeals after a bench of Justice V Gopala Gowda and Justice Arun Mishra was split on the question whether the Act is retroactive or not. Justice Gowda had opined that provisions of the Act were retroactive in nature, while Justice Mishra held that it was neither retrospective nor retroactive, but prospective.

The bench considered the issue of whether the Act was applicable when the contract for supply was entered between the parties prior to enforcement of the Act i.e. 23.09.1992. It held that the Act was clearly prospective in operation and it was not necessary to term it as retroactive in operation.
The bench observed that 'retroactivity' in the context of the statute consists of application of new rule of law to an act or transaction which has been completed before the Rule was promulgated.'''

The bench quoted from Jay Mahakali Rolling Mills vs. Union of India: "Retrospective" means looking backward, contemplating what is past, having reference to a statute or things existing before the statute in question. Retrospective law means a law which looks backward or contemplates the past; one, which is made to affect acts or facts occurring, or rights occurring, before it comes into force. Retroactive statute means a statute, which creates a new obligation on transactions or considerations or destroys or impairs vested rights. 

It also referred to another judgment in which these concepts were explained by quoting from Advanced Law Lexicon by P. Ramanath Aiyar:
  • "Retroactive- Acting backward; affecting what is past. (Of a statute, ruling, etc.) extending in scope or effect to matters that have occurred in the past. Also termed retrospective. 
  • 'Retroactivity' is a term often used by lawyers but rarely defined. On analysis it soon becomes apparent, moreover, that it is used to cover at least two distinct concepts. The first, which may be called 'true retroactivity', consists in the application of a new rule of law to an act or transaction which was completed before the rule was promulgated. The second concept, which will be referred to as 'quasi-retroactivity', occurs when a new rule of law is applied to an act or transaction in the process of completion.... The foundation of these concepts is the distinction between completed and pending transactions...." 
  • Retrospective- Looking back; contemplating what is past. Having operation from a past time. 'Retrospective' is somewhat ambiguous and that good deal of confusion has been caused by the fact that it is used in more senses than one. In general however the Courts regards as retrospective any statute which operates on cases or facts coming into existence before its commencement in the sense that it affects even if for the future only the character or consequences of transactions previously entered into or of other past conduct. Thus, a statute is not retrospective merely because it affects existing rights; nor is it retrospective merely because a part of the requisite for its action is drawn from a time and antecedents to its passing.

Disability book for Advocates who practice in compensation Cases

Wednesday, January 23, 2019

Indian ‘fortune teller’ held for sexual assault - Australia

A 31-year-old Indian man purporting to be a “fortune teller” has been arrested and charged with sexually assaulting a teenage girl in Australia, a media report said on Tuesday.

Arjun Muniyappa was arrested at Sydney International Airport on Monday after he tried to board a plane to Singapore, the New South Wales police were quoted as saying by the Sydney Morning Herald.
Muniyappa approached the 14-year-old girl and offered her free fortune telling services before sexually assaulting her on Sunday, the report said.

He is self-proclaimed fortune teller working from an astrology centre. He was arrested and charged with two counts of intentionally sexually touching a child under 16, and three counts of aggravated sexual assault against a victim under the age of 16. PTI

Gujarat Govt releases GPSC recruitment calendar

The Gujarat Public Service Commission (GPSC) recruitment calendar for the June to December 2019 period was released on Wednesday evening. The commission will recruit 4,617 class I, II and III government employees to various departments.

A government release in this regard announced it was looking at recruiting candidates for 1,493 posts of medical officers, 100 posts in the Gujarat Administrative Service, including municipal chief officers, 273 gynaecologists, 128 anaesthetist, 213 physicians, 191 surgeons, 77 assistant engineers for the roads and building department, 350 assistant engineers for the Narmada and water resources department and 92 agriculture officers, among others. The major thrust of the recruitment effort is focussed on strengthening health infrastructure.

Last month, the state government expressed concern at the lack of specialist doctors in rural areas and promised the Gujarat high court that it was holding special recruitment drives to address the problem. These promises came when a petition was being heard that objected to the government turning away doctors from other states who were seeking to enroll in specialist postgraduate courses even though most seats had remained vacant. “Some departments like Narmada and water resources and the roads and building department need engineers for to the ongoing canal network and road network expansion. These recruitment proposals had been pending for one and a half years,” said a senior official of the general administration department (GAD).

19-Year-Old Moves Court Saying Cops Not Taking Her Complaint

The Gujarat high court gave the state government a good dressing down for not having a mechanism in place to facilitate legal counselling and assistance to rape survivors at police stations and demanded an explanation as to why the system is not in place.
In 1995, the Supreme Court had in Delhi Domestic Working Women Vs Union Of India And Others issued eight-point instructions for legal assistance to rape survivors as soon as they approach the police.

The high court asked the state government whether such a system exists in Gujarat, but the government did not reply to the question. Justice Sonia Gokani of the high court sought the state government’s explanation as to why it has not complied with the order after 23 years.

The government got a rap from the high court when a 19-year-old alleged gang rape survivor, who was pregnant, knocked at the high court doors on January 15 with two demands. She prayed that she be given permission to terminate her pregnancy and Banaskantha police should register an FIR over her abduction, illegal detention, and gang rape because she was kidnapped and raped by four persons earlier this month. She complained that she had tendered her complaint to Gadh police and the SP of Banaskantha, but they did not act.

The court was infuriated at the unnoticed “cries” of the victim of such a serious crime. It ordered Gadh police on Tuesday to register the FIR in 24 hours and place a copy before the high court. The high court issued a show-cause notice, seeking an explanation for the alleged inaction by the Gadh police inspector and the SP by January 29, because they were approached by the rape survivor.

Meanwhile, the high court on January 16 ordered an expert panel of doctors to examine the rape survivor and give the opinion on how safe abortion would be. Upon their reply, the high court on Tuesday permitted the complainant to have her pregnancy terminated and ordered the Palanpur Civil Hospital to secure evidence after the abortion for the purpose of further criminal proceedings, said Atit Thakore, the petitioner’s advocate.

Jayalalithaa not a convict, rules Madras HC

The Madras High Court on Wednesday dismissed a Public Interest Litigation filed against use of public money to construct a mausoleum for former Chief Minister Jayalalithaa after holding that she cannot be described as a convict since the Supreme Court had not set aside her acquittal from a disproportionate assets case by Karnataka High Court. 

A Division Bench of Justices M. Sathyanarayanan and P. Rajamanickam pointed out that she had died before the disposal of an appeal preferred against the acquittal and the Supreme Court had not specifically set aside her acquittal from the case after dealing with the matter on merits. The Supreme Court had only said the appeal against her stands abated. 
Therefore, as a necessary corollary it must be construed that she must be given the benefit of her acquittal from the case by the Karnataka High Court and therefore not be branded as a convict, the Bench observed. 
The PIL petition had been filed by advocate M.L. Ravi of Desiya Makkal Sakthi Katchi on the sole ground that she was a “convict” and therefore public funds should not be used for construction of a mausoleum for her. The petitioner, however, had no objection to the private funds being used for the construction.
The Division Bench had reserved its verdict on the PIL petition on December 20 last year, after hearing elaborate arguments advanced on behalf of the petitioner and Advocate General Vijay Narayan who asserted that by no stretch of imagination the former Chief Minister could be termed a convict. 
Right then, The Hindu had reported that the Bench has reserved its verdict after doubting whether Jayalalithaa could be termed a convict in the absence of a conclusive finding by the Supreme Court in the disproportionate assets case against her.

Stipulating 50% Disability Limit In Hearing Impairment Or Visual Impairment For Post Of Judicial Officer Legitimate: SC

The Supreme Court has held that stipulating a limit of 50% disability in hearing impairment or visual impairment as a condition to be eligible for the post of a judicial officer is a legitimate restriction.
The bench comprising Justice Ashok Bhushan and Justice KM Joseph observed thus while dismissing the appeal filed by a V. Surendra Mohan, who was held ineligible for the post of judicial officer (civil judge) as it was found that he was having 70% disability. The High Court had dismissed the writ petition filed by Surendra Mohan challenging this decision by the Tamil Nadu Public Service Commission.
The apex court bench, while considering his appeal, noted that, in this case, the State, High Court and Public Service Commission were of the view that disability, which is suitable for appointment on the post of Civil Judge should be between 40%-50%, and thus the said prescription does not violate any statutory provision nor contravene any of the provisions of the Act, 1995. It also observed that, in this case, the requirement of reservation as mandated by Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 is clearly fulfilled. 
The court also noted that, as per the definition of disability in the Act, a person with disability is a person who is suffering from not less than 40% of any disability and thus the benefit of reservation under the Act thus can be claimed only by a person who is suffering from 40% or more of any disability. 
One of the issues that popped up for consideration was that, how can one who suffers from partial blindness of more than 50% be excluded from consideration since they are also partial blind. In this regard, the court said: "The word "partial blind" may be a general concept but where a percentage has been fixed looking to nature of job, it cannot be said that all partially blind are eligible. There is a valid classification with a nexus to object sought to be achieved, when eligibility is fixed 40% to 50% of disability...  Partially blind and partially deaf disability of 40%-50% has been pegged to achieve the object of appointing such partially blind and partially deaf physically disabled persons who are able to perform the duties of Civil Judge(Junior Division). "
"It is well within the power of appointing authority to prescribe eligibility looking to the nature of the job, which is to be performed by holder of a post", the bench added.
While upholding the said stipulation, the bench observed: "A judicial officer in a State has to possess reasonable limit of the faculties of hearing, sight and speech in order to hear cases and write judgments and, therefore, stipulating a limit of 50% disability in hearing impairment or visual impairment as a condition to be eligible for the post is a legitimate restriction i.e. fair, logical and reasonable."