Sunday, March 31, 2019

'Second FIR Not Barred Merely Because Motive In Both Offences Are The Same'; SC Upholds Life Sentence Of Saravana Bhavan Founder For Murder

The Supreme Court yesterday upheld the life sentence awarded to P Rajagopal - the founder of famous South Indian restaurant chain Saravana Bhavan - and five of his aides for murder of Santhakumar in 2001. The bench of Justices N V Ramana, Mohan M Shantanagoudar and Indira Banerjee dismissed the batch of appeals filed by accused against the 2009 judgment of Madras High Court. The trial court had sentenced Rajagopal to ten years imprisonment under Section 304, Part I IPC (culpable homicide not amounting to murder) in 2004, which was enhanced to life imprisonment under Section 302 IPC(murder) by Madras HC.

The crime was committed with the motive of Rajagopal to take Jeevajothi, the wife of deceased Santhakumar, as his third wife. "Either upon the advice of an astrologer or having become besotted with PW1(Jeevajothi), Accused No.1(Rajagopal) had evinced a keen desire to take PW1 as his third wife, though she was already married to Santhakumar (the deceased)", observed the Court in that regard.

In order to fulfill this desire, Rajagopal tried to get close to Jeevajothi, who was the daughter of a staff employed in Saravana Bhavan, by offering her financial help and gifts. Gradually, he started interfering in her personal life,and persuaded her to break away from the relationship with Santhakumar. When she did not yield, Rajagopal resorted to more devious means. On October 1, 2001, Santhakumar and Jeevajothi were abducted by Rajagopal and his henchmen, and were let off after threats. Eighteen days later, they were again abducted. Jeevajothi was taken to a village, where she was forced to undergo rituals, which were performed with the intention of making her leave Santhakumar. Santhakumar, who was separately taken away, was supposed to have been killed by a hired goon Daniel. However, Daniel had a change of mind, and spared Santhakumar's life and told him to escape to Mumbai. Daniel told a false story to Rajagopal that Santhakumar had been killed. But Santhakumar, instead of escaping to Mumbai, came back to Jeevajothi. Enraged on knowing this, Rajagopal and his aides abducted them again on October 24, 2001, and Santhakumar and Jeevajothi were taken away to different locations in separate vehicles. Weeks later, a dead body was found at Tiger Chola in Kodaikanal, which was identified as that of Santhakumar's. In relation to the first incident of abduction, Jeevajothi had lodged a complaint before police, upon which an FIR was registered on October 12, 2001. After tracing the dead body of Santhakumar, another FIR for murder was registered on November 20, 2001. In the appeal before Supreme Court, one of the main points raised by the counsel for accused was that the second FIR was illegal, as there was already an FIR registered for a crime in the same transaction. It was argued that the second alleged offence was a continuation of the first alleged offence, and separate FIR could not have been registered. Therefore, the investigation and trial on the basis of illegal FIR are wholly vitiated, argued the appellants. But the SC rejected this argument on the finding that both offences were separate transactions. "Evidently, the time and place of occurrence of the two incidents are different. Even the number of accused involved in the incidents is different. No continuity of action can be gathered from the sequence of events either", observed the bench. It further held that mere commonality of motive will not make the offences part of same transaction. "It may be noted that the motive for commission of both the offences may be the same, inasmuch as they were committed to enable Accused No. 1 to marry PW1, but merely because of their common motive, the second offence cannot be said to be in continuation of the first incident, in light of there being distinct intentions behind the two offences". The first offence was committed with the intention of threatening and pressurizing Santhakumar. The intention behind the second offence was to permanently get rid of him, noted the bench. "Therefore, it is evident that unity of purpose and design between the two offences is also absent. Thus, it is amply clear that the incident of murder is entirely separate and distinct from the earlier incident of abduction", observed the judgment authored by Justice Shantanagoudar. Reference was made to the decision in T.T. Antony v. State of Kerala, (2001) 6 SCC 181 in this regard. No further investigation for fresh offence committed during investigation The Court also rejected the argument that police should have carried out further investigation in relation to murder in the first FIR of abduction, instead of registering a separate FIR. "In case a fresh offence is committed during the course of the earlier investigation, which is distinct from the offence being investigated, such fresh offence cannot be investigated as part of the pending case, and should instead be investigated afresh", ruled the bench, relying on Awadesh Kumar Jha v. State of Bihar, (2016) 3 SCC 8. First FIR can be used as corroborative evidence The bench also rejected the argument of appellants that first FIR could not have been used as an evidence in the murder trial. The Court noted that the first FIR was not used as a substantive piece of evidence, but as a corroborative piece to show motive of the crime. Chain of Circumstances Clearly Established. The case was resting entirely on circumstantial evidence. The prosecution mainly relied upon three circumstances to prove the guilt of the accused - motive, the last seen circumstance and the recovery of the dead body at the instance of one of the accused Daniel, a mercenary hired by Rajagopal. The SC bench independently evaluated the evidence to "satisfy its conscience" and held that the incriminating circumstances were well established. The consistent testimonies of Jeevajothi and her family members established the motive of the crime. Their testimonies also revealed that the deceased was seen last in the company of the accused. The dead body was recovered based on the confession by one of the accused. Also, the personal belongings of the victim such as gold chain, wallet etc. were recovered from the accused persons. The dead body was found to have been identified by Jeevajothi based on his clothes and a scar on his body. Superimposition test was also done to identify the body. The appellants' argument that body could not have been identified without DNA test was not accepted by the bench. Though the court acknowledged that DNA test would have been the best course, it said that there were other pieces of evidence which established the identity. It also endorsed the superimposition test, saying that it was quite often used in police investigation such as Nithari murders, Russian tourist murder in Goa in 2008 and Paharganj bomb blast cases. The Court termed the testimonies of prosecution witnesses 'overwhelming, steadfast, cogent, homogeneous, consistent and reliable'. It noted that the accused had not offered any explanation to rebut the strong evidence placed against them. "Though the burden had shifted onto the accused to explain the said circumstance as to when they left the company of the deceased, no explanation was adduced in that regard by the accused herein. Hence, an adverse inference has to be drawn against the accused. It may be noted that such non­explanation by the accused provides an additional link in the chain of circumstances.", said the bench. The discrepancies in their testimonies pointed out by the appellants were ignored as 'minor' by the bench. "It is worth recalling that while it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that such proof should be perfect, and someone who is guilty cannot get away with impunity only because the truth may develop some infirmity when projected through human processes", said the bench in that regard. "In our considered opinion, the prosecution has proved the complicity of all the appellants in murdering Santhakumar by strangulating him and thereafter throwing the dead body at Tiger­Chola", concluded the bench. Rajagopal, who was earlier released on bail by SC on medical grounds, has been given time till July 7 to serve sentence.

Friday, March 29, 2019

Saravana Bhavan founder gets life term for murder

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One of the most high-profile passion crime cases in recent years reached its logical end on Thursday, when the Madras high court sentenced the founder of the Saravana Bhavan chain of hotels, P Rajagopal, to life imprisonment.
Originally sentenced to 10 years' rigorous imprisonment by a sessions court, the disgraced hotelier and five of his henchmen will now serve a life term for the abduction and murder of Prince Santhakumar in 2001. Significantly, the court set aside the Rs 55 lakh fine imposed on Rajagopal, and instead asked him to pay a total of Rs 30,000.
In the 1990s, Rajagopal, under the advice of an astrologer who predicted a lifetime of riches, madly wooed Jeevajothi, daughter of a Saravana Bhavan employee. The hotel chain owner wanted Jeevajothi, barely 20 then, to become his third wife. But when he failed in his advances, he plotted the murder of the man she eventually married, Prince Santhakumar, a maths teacher.
Over the years, he tried to wean Jeevajothi from her husband but when that failed too, the hotelier directed his eight henchmen to abduct and murder Santhakumar in October 2001. Santhakumar's body was found in Kodaikanal.
Jeevajothi's police complaints and statements, besides other circumstantial evidence and the depositions of the henchmen, firmly linked Rajagopal to the murder, resulting in a 10-year imprisonment in April 2004.
While the hotelier and others challenged their conviction and sentence, state public prosecutor Raja Ilango sought enhancement of their sentence.
On Thursday, a specially constituted division bench comprising Justices Prafulla Kumar Misra and R Banumathi said there was strong motive, and previous efforts to get rid of Santhakumar by hook or by crook. It observed: ``The abduction of Santhakumar, followed by his unnatural death and discovery of the dead body, coupled with the Sphinx-like silence of the accused persons, constitutes a very strong and unsnappable chain of events, unerringly pointing towards all the accused persons.''
Rejecting defence arguments that there was an inordinate delay in Jeevajothi approaching the police, the court said she did make certain allegations relating to the conduct of her parents, more particularly her mother. Also, her father had worked under Rajagopal and had benefitted from the helpful attitude of his owner. 
``Under such circumstances, a girl aged about 21 years would be naturally hesitant to file complaint, making allegations not only against the benefactor, but also against her own parents,'' they said, adding that Rajagopal was also very rich and influential. ``Therefore, we do not think there was any unnecessary and undue delay.''
Faulting the trial court for having sentenced the accused for an offence of culpable homicide not amounting to murder, the judges said that in the absence of two exceptions  sudden provocation and right to self defence a lesser sentence was not justifiable in this case. 
``Conviction under Section 304(I) of IPC is not appropriate, and once they are found guilty under Section 302, the sentence could be either death sentence or life imprisonment.'' Making it clear that life term would suffice as it did not rank among rarest of rare cases, the judges said, ``We do not find any justification in imposing a huge fine on Rajagopal.''

Narendra Modi: EC gives clean chit to PM Narendra Modi's address to the nation on Mission Shakti

Election Commission (EC) today gave a clean chit to Prime Minister Narendra Modi for his address to the nation on Mission Shakti. The poll panel had set up a committee to examine whether Modi's speech broke the modal code of conduct which is in force for Lok Sabha polls. EC said there was no violation of modal code in PM's speech.

PM Modi had addressed the nation to announce the successful test of anti-satellite missile (A-SAT) in his address to the nation on Wednesday.

In his address, Prime Minister Modi announced that India had demonstrated anti-satellite missile capability by shooting down a live satellite, describing it as a rare achievement that puts the country in an exclusive club of space superpowers.

Opposition parties alleged that the PM's address was a violation of the model code of conduct and demanded that EC take action in this regard.

Buyer Cannot Be Required To Wait Indefinitely For Possession: SC Asks Developer To Refund

"A buyer can be expected to wait for possession for a reasonable period. A period of seven years is beyond what is reasonable." A buyer cannot be required to wait indefinitely for possession, said the Supreme Court while affirming Consumer Commission order directing the developer to refund the amount to the buyer. In this case (Kolkata West International City Pvt. Ltd. vs. Devasis Rudra), the buyer paid an amount of Rs 39, 29,280 in 2006 to the builder and the agreement between them envisaged that possession of the Row House would be handed over to the buyer by 31 December 2008 with a grace period of a further six months. 

In 2011, the buyer approached the consumer commission and prayed for possession of the Row House and in the alternative for the refund of the amount paid to the developer together with interest at 12% per annum. Compensation of Rs 20 lakhs was also claimed. The State Commission allowed the complaint by directing the developer to refund the moneys paid together with interest at 12% per annum and compensation of Rs 5 lakhs. The National Commission modified this order by reducing the compensation from Rs 5 lakhs to Rs 2 lakhs.

The issue before the Apex court bench comprising Justice DY Chandrachud and Justice Hemant Gupta in the appeal filed by the developer against order of refund was whether the buyer was entitled to seek a refund or was estopped from doing so, having claimed compensation as the primary relief in the consumer complaint. While refusing to interfere with the order of refund, the bench said: "In terms of the agreement, the date for handing over possession was 31 December 2008, with a grace period of six months. Even in 2011, when the buyer filed a consumer complaint, he was ready and willing to accept possession. It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years is beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund."

Wednesday, March 27, 2019

HC rules that treatment for genetic disorder can’t be called cosmetic

RELIEF FOR TEACHER-Directs Govt To Reimburse Bills

Medical treatment for genetic disorder cannot be termed as treatment for body shape, Gujarat high court has held so and ordered the state government to reimburse medical bills with interest to a teacher for his daughter’s treatment.

It was a 15 years long battle for an assistant teacher in Rajpipla, Harshadkumar Pandya, who sought reimbursement of Rs 1,53,462 — the amount he had spent in 2002 to treat his four-year-old daughter, who was suffering from Russell-Silver Syndrome, a kind of dwarfism. This is a genetic disorder that causes malfunction of the pituitary gland.
Pandya got his daughter treated on advice of government doctors. She was given an imported drug called Norditropin.

When he sought reimbursement of the medical expenditure, his request was turned down ostensibly because Norditropin was not a lifesaving drug and the treatment undertaken was only meant for physical enhancement.
Pandya approached the high court in 2004.

On Monday, Justice A S Supehia refused to buy the government’s arguments that the treatment in this case falls in the categories — physical comfort/energy, for cosmetic and physical shape.
Medical reimbursement cannot be allowed if a person gets treatment under these categories. The HC said, “The treatment of four and a half years old daughter who was suffering from the disease of pituitary gland known as Russell-Silver Syndrome, a genetic disorder, and if not treated leads to various complications cannot be equated with the aforesaid category.”
The HC further said that the government itself admitted that the child was suffering from the disease. The HC also pointed out that drug Norditropin was nowhere mentioned in the list of imported drugs which are inadmissible for the purpose of reimbursement.
The high court ordered the government to reimburse the medical bills to the teacher with 9% interest within six weeks’ time.

SC Sentences Nedumpara To 3 Months Jail For Contempt; Bars From Practising In SC; Suspends Sentence On Undertaking

The Supreme Court bench of Justices R F Nariman and Vineet Saran today sentenced Advocate Mathews Nedumpara to 3 months imprisonment, which will remain suspended so long as he abides by his undertaking that he will not attempt to browbeat any judge of High Court or Supreme Court. 
He has also been barred from appearing in Supreme Court for a period of one year from today.
On March 11, the bench of Justices R F Nariman and Vineet Saran had held him guilty for committing contempt in the face of the court and had issued notice to him to hear him on sentence.

Nedumpara's lawyer sought for a change of the bench, and said that no hearing of sentence can be done without framing charges. The bench was not prepared to accept these arguments. The bench said that it has already held him guilty for contempt and another bench cannot hear him on sentence. Though Nedumpara offered unconditional apology as a last resort, it could not persuade the bench. 

The Court's action was triggered by Nedumpara's reference to Senior Advocate Fali S Nariman while alleging that only relatives of judges were being designated as senior advocates. Despite the cautioning by the court, he repeated the reference. When questioned about it, he denied having done so. When the others present in the Court confirmed his action, he attempted to justify his references.
"We are of the view that the only reason for taking the learned Senior Advocate's name, without there being any relevance to his name in the present case, is to browbeat the Court and embarrass one of us", said the court.
The Court's finding was not based on his solitary action of taking the name of Senior Advocate Fali S Nariman. Rather, the Court took into accountseveral past orders passed by the Supreme Court and the Bombay High Court deprecating the rough conduct of Nedumpara in Court. 
"This is not the first time that this particular advocate has attempted to browbeat and insult Judges of this Court", observed the bench of Justice R F Nariman and Vineet Saran while holding advocate Mathews Nedumpara guilty of committing contempt in the face of the court.
"In point of fact, the style of this particular advocate is to go on arguing, quoting Latin maxims, and when he finds that the Court is not with him, starts becoming abusive", said the Court. It added that he is mostly briefed in hopeless cases, vast majority of them being cases of debtors who have persistently defaulted, and he attempts to "browbeat the court" to get discretionary orders.
Based on the his past conduct, the SC observed "Nedumpara is in the habit of terrorising Tribunal members and using intemperate language to achieve his ends before several Judges of the Bombay High Court"

Forest Act- Magistrate Can't Invoke Jurisdiction Under S.451 CrPC To Release A Seized Vehicle, Once Authorized Officer Initiates Confiscation Proceedings:SC

Statutory interpretation must remain eternally vigilant to the daily assaults on the environment, said the Supreme Court while it set aside the Madhya Pradesh High Court order that directed the Magistrate to order interim release of a vehicle seized for being involved in the illegal excavation of sand from the Chambal River. The bench comprising Justice DY Chandrachud and Justice Hemant Gupta held that a Magistrate has no jurisdiction under Section 451 of the Criminal Procedure to release a seized vehicle, once the Authorised Officer initiated confiscation proceedings. 

The State of Madhya Pradesh had approached the Apex Court contending that the confiscation proceedings have been initiated in terms of Section 52(3) of the Indian Forest Act (amended by MP Act 25 of 1983) and hence the procedure is governed by Sections 52 and 52-A. Consequently, the jurisdiction of the Magistrate under Section 451 of the CrPC would (it has been urged) stand excluded, it was submitted. 

The bench, referring to statutory provisions, explained the procedure of seizure of a vehicles involved in contravention of the Forest Act, as follows Upon a seizure under Section 52(1), the officer effecting the seizure has to either produce the property before the Authorised Officer or to make a report of the seizure under sub-section (2) of Section 52. Upon being satisfied that a forest offence has been committed, the Authorised Officer is empowered, for reasons to be recorded, to confiscate the forest produce together with the tools, vehicles, boats and articles used in its commission. Before confiscating any property under sub-section (3), the Authorised Officer is required to send an intimation of the initiation of the proceedings for the confiscation of the property to the Magistrate having jurisdiction to try the offence. Where it is intended to immediately launch a criminal proceeding, a report of the seizure is made to the Magistrate having jurisdiction to try the offence. The order of confiscation under Section 52(3) is subject to an appeal under Section 52-A and a revision under Section 52-B. Subsection (5) of Section 52-B imparts finality to the order of the Court of Sessions in revision notwithstanding anything contained to the contrary in the CrPC and provides that it shall not be called into question before any court. Section 52-C stipulates that on the receipt of an intimation by the Magistrate under sub-section (4) of Section 52, no court, tribunal or authority, other than an Authorised Officer, an Appellate Authority or Court of Sessions (under Sections 52, 52-A and 52-B) shall have jurisdiction to pass orders with regard to possession, delivery, disposal or distribution of the property in regard to which confiscation proceedings have been initiated. Sub-section (1) of Section 52-C has a non obstante provision which operates notwithstanding anything to the contrary contained in the Indian Forest Act 1927 or in any other law for the time being in force. The only saving is in respect of an officer duly empowered by the State government for directing the immediate release of a property seized under Section 52, as provided in Section 31. The bench further observed that, upon the receipt of an intimation by the Magistrate of the initiation of confiscation proceedings under sub-section (4)(a) of Section 52, the bar of jurisdiction under sub-section (1) of Section 52-C is clearly attracted. The scheme contained in the amendments enacted to the Indian Forest Act 1927 in relation to the State of Madhya Pradesh, makes it abundantly clear that the direction which was issued by the High Court in the present case, in a petition under Section 482 of the CrPC, to the Magistrate to direct the interim release of the vehicle, which had been seized, was contrary to law, the court added. "Upon the receipt of an intimation by the Magistrate of the initiation of confiscation proceedings under sub-section (4)(a) of Section 52, the bar of jurisdiction under sub-section (1) of Section 52-C is clearly attracted. The scheme contained in the amendments enacted to the Indian Forest Act 1927 in relation to the State of Madhya Pradesh, makes it abundantly clear that the direction which was issued by the High Court in the present case, in a petition under Section 482 of the CrPC, to the Magistrate to direct the interim release of the vehicle, which had been seized, was contrary to law. The jurisdiction under Section 451 of the CrPC was not available to the Magistrate, once the Authorised Officer initiated confiscation proceedings". As a parting remark, the bench said: "For, it is only when the interpretation of law keeps pace with the object of the Legislature that the grave evils which pose a danger to our natural environment can be suppressed. The avarice of humankind through the ages has resulted in an alarming depletion of the natural environment. The consequences of climate change are bearing down on every day of our existence. Statutory interpretation must remain eternally vigilant to the daily assaults on the environment."

Tuesday, March 26, 2019

RTI info in 7 days or face contempt: SC to RBI

The Supreme Court on Tuesday threatened to pass punitive order against RBI for not abiding by its earlier verdict to make public its bank inspection report under the Right to Information Act and granted a week’s time to the central bank to comply.
A bench of Justices L Nageswara Rao and M R Shah reminded RBI that the apex court had way back in 2015 passed order directing the banking sector regulator to be more transparent in its operation and take action against those banks which have been practicing “disreputable business practices”. It pulled up RBI for its reluctance to disclose inspection reports of banks under transparency law despite clear directions of the apex court.
“We will haul you up for contempt if you do not reconsider your decision. We are giving you one week’s time to take a decision or we will pass an order against you,” the bench told the RBI counsel.
Senior advocate Joydeep Gupta, appearing for RBI, contended that the reports contain confidential information on banking operations and it was not feasible to make the entire report public. He said the apex court verdict did not direct to disclose the entire report and that the judgment should be re-examined. He said the fresh policy has been framed by RBI after the SC verdict.
The bench, however, made it clear that it will not go into the issue of re-examination of its earlier verdict and would decide the contempt petition against RBI on the premise that the verdict was right.

Gujarat HC stays Private firm from charging patients

Gujarat high court has asked Cadila Healthcare Ltd not to charge patients who come to Dahod’s General Civil Hospital for treatment.

A bench headed by acting Chief Justice A S Dave last week restrained the private company from charging any fees from patients after four residents of Dahod filed a PIL last year. The high court passed an interim order till April 4 and said, “Meanwhile, Respondent No 9 (Cadila Healthcare Ltd) is restrained from charging any fees towards any treatment for any ailment from any patient who approaches for medical treatment.”

The PIL filed through advocate Ruturaj Meena has taken exception to privatisation of the district hospital by the state government in order to create a self-financed medical college. The petitioners have complained before the court that the private company has violated the terms of the agreement of transfer of the hospital management.

The petitioners have claimed the private management of the hospital is charging poor patients for medical services which were given free till 2017. The company has even changed the name of the hospital in violation of its agreement with the government.

Minor pregnant after stepfather rapes her

A 40-year-old man was arrested on Tuesday for allegedly raping his 16-year old stepdaughter that resulted in a pregnancy, in Machhar Nagar area of Jamnagar.
The accused Bharat Rathod, who is a mason by profession, was arrested after the girl’s mother lodged a complaint with the B-Division police station of Jamnagar late night on Monday. Rathod had married the survivor’s mother some 12 years ago, said police.
According to the case details, about six months ago, when the teenager was alone in the house, Rathod had allegedly raped her twice and threatened her not to tell about it to her mother. However, on Monday when the girl’s mother noticed a bulge in her daughter’s abdomen she took her to a doctor, who revealed that the girl was at least five months pregnant.
On questioning, the minor told her mother about Rathod. Following this, the survivor’s mother lodged the police complaint and got Rathod arrested.

Friday, March 22, 2019

Hostel Rules- Not Unfair To Treat Women and Men Differently In Matters Of Safety and Security: Madras HC

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"Right of a women to have empowerment on the basis of the economic status is altogether different from the mandatory duty of the State to provide security and safety to the women and children" The Madras High Court has dismissed a Public Interest Litigation filed by some hostelers challenging the constitutionality of Tamil Nadu Hostels and Home for Women and Children (Regulation) Act, 2014 and the Rules. The bench comprising Justice S. Manikumar and Justice Subramonium Prasad observed that right of women to have empowerment on the basis of the economic status is altogether different from the mandatory duty of the State to provide security and safety to the women and children. It observed that treating men and women differently in the matter of security and safety cannot be termed as discrimination. 

The Act has several provisions imposing conditions for registration, licencing, maintenance and to provide managers and security personnel and such others matters connected therewith, in hostels, lodging houses, and homes for children and women.

According to PS Deepthi and some other students and employees (including some lawyers) who joined the petition, the Act, instead of protecting the women and children, destroys their freedom and independence in addition to making them jobless. Nothing Unfair In Treating Women and Men Differently In Matters Of Safety and Security The petitioners had contended that they are equal to men and thus there is no need for any security personnel, burdening them with enhanced charges. Rejecting the said argument, the bench said: "There is no unfair classification. The difference in treating women and children, in the matter of security and safety, cannot be compared to take of men, and the State Government enacting a special enactment exclusively for regulating Hostels, lodging houses, homes for women and children, has a rational nexus to the object sought to be achieved and thus there is no discrimination, violating Article 14 of the Constitution of India." Managers/Security Personnel Appointment Would Not Violate Privacy Yet another grievance of the petitioner is the provision which mandates the appointment of a Manager would invade the right to privacy of the inmates. The bench opined: "The appointment of a manager is only to ensure proper maintenance of the hostel, health of the inmates and children, inmates of the hostel, lodging home or house for children and women, are not subject to any form of mental or physical harassment. Contention that right of privacy of the inmates would be affected by a Manager cannot be accepted for the reasons that the manager to be appointed in a women or children hostel would invariably be a woman only." The court also noted that sufficient safeguards have been provided that the security personnel cannot enter the building. The Petitioners' argument was that the police is taking care of the safety of the entire population, free of cost and therefore they cannot be forced to bear the cost of engaging security personnel. Functioning of police to maintain law and order, public order and safety to the general public, cannot be compared to that of a Manager and Security Personnel mandated to be employed in hostels, lodging houses and homes for children and women, the vulnerable sections of the society, the court added. CCTV Cameras Not Only Prevent Crimes, But Also Detect Them With regard to their concerns about installation of CCTV cameras, the bench observed that they would not only prevent crime, but also in detection of the same. The court said: "Contention of the petitioner that installation of CCTV cameras would invade the privacy of inmates and even if such installation is made, it would not prevent, sexual harassment, cannot be accepted for the reason that such installation is required only in a hostel, lodging house or home for women and children where more than fifty inmates are accommodated, and closed television or digital recorder has to be installed at every entry or exit points. No such appliances are to be installed in bedrooms and other places, where privacy has to be maintained." Right Of Employment Not A Fundamental Right The bench also rejected their contention that instead of protecting the women and children, the Act destroys the freedom and independence of women, rendered them as jobless. It is an untenable argument for the reasons that right of employment was never recognised as a fundamental right to be enforced, the court remarked. Government Empowered To Prescribe Hostel Standards The contentions that the space requirement prescribed by the Government for the hostels, lodging houses and homes for children and women is illegal and that the state has no power or authority to fix, space index which is the right of the petitioners to decide and elect depending upon their financial conditions, were also rejected. The court, in this regard, said: "It is for the Government to prescribe the licencing conditions, standards of maintenance of hostels, lodging house, sanitation and other aspects and the petitioners have no legal right to question the same. As stated supra, as per Article 15 of the Constitution of India, States are empowered to enact laws in favour of in Children and Women." Concern Of State For Women & Children Cannot Be Said To Be Unwarranted Dismissing the petition, the bench observed that the Act is for a larger interest, aimed at the safety and security of women and children, in hostels, lodging houses and homes for children and women. It also rejected the contention that the state legislature has competence only in the matter of an enactment pertaining entry Inn and not relating to hostels, lodging hoses and houses for children and women. It said: "When safety and security of children and women in hostels, lodging houses and homes for children and women, are the paramount objects, indeed there should be a exclusive enactment, to the vulnerable sections of the society. Concern of the State cannot be said to be, unrealistic and that special laws are unwarranted. In the light of the enabling provisions and having regard to the statement of objects and reasons for which Tamil Nadu Hostels and Homes for Women and Children (Regulation) Act 2014, is enacted, we see no discrimination and therefore the said contention is rejected." 

Section 138 NI Act: Non-Filing Of I-T Returns Does Not Mean That The Complainant Had No Source Of Income: MP HC

"Non-filing of Income Tax Return by itself would not mean that the complainant had no source of income and thus, no adverse inference can be drawn in this regard only because of absence of Income Tax Return" The Madhya Pradesh High Court has observed that mere non-filing of Income Tax Return would not automatically dislodge the source of income of the complainant in a cheque bounce case under Section 138 of the Negotiable Instruments Act. The case of the complainant was that the accused had obtained a loan of Rs.10, 00,000 from him and assured that she would refund the said amount within a period of six months. In lieu of the said amount, she issued a cheque which got dishonoured. The accused was convicted by the Trial court, which was later upheld by the District Court. 

The contention taken by the accused was that the complainant had failed to prove his source of income. It was contended that since the complainant never disclosed his source of income in the Income Tax Return and never filed his Income Tax Return, it should be presumed that he did not have any source of income.

In the revision petition filed by the accused, Justice G.S.Ahluwalia observed: "Non-payment of Income Tax is a matter between the revenue and the assessee. If the assessee has not disclosed his income in the Income Tax Return, then the Income Tax Department is well within its rights to reopen the assessment of income of the assessee and to take action as per the provisions of Income Tax Act. However, non-filing of Income Tax Return by itself would not mean that the complainant had no source of income and thus, no adverse inference can be drawn in this regard only because of absence of Income Tax Return." The bench observed that the courts below were right in holding that the cheque was issued by the accused in discharge of legal liability which was returned by the Bank on her instructions. Where the accused has failed to satisfactorily explain the circumstances under which the cheque was issued by the accused or misused by the complainant, then it can be safely inferred/ presumed that the cheque was issued in discharge of legally recoverable dept/liability, the court added.

Thursday, March 21, 2019

"Tsunami Of Cruelty": P&H HC Confirms Death Penalty To 7 Men Accused Of Gang Rape/Murder Of Mentally Ill Woman, Imposes 50 Lakh Fine

"If they had come together to commit the crime jointly and individually and not one of them resisted any of the other, we think the liability to pay fine in the sum of `50 lakhs under the peculiar facts and circumstances must be made joint and several." 

The Punjab and Haryana High Court has confirmed the death sentence awarded to six men accused of gang rape of a mentally ill woman. Describing the crime as 'animalism' and '"tsunami" of cruelty', the bench comprising Justice AB Chaudhary and Justice Surinder Gupta, also imposed a fine of Rupees 50 Lakh, which is to be recovered from the convicts by attaching/selling their respective immovable properties like plot, house, agricultural land etc.

The bench confirmed the conviction recorded by the Trial court against Sunil @ Mada, Sunil @ Sheela, Sarvar @ Billu, Pawan, Padam @ Parmod, Manbir @ Manni and Rajesh @ Ghochru. Animalism, Tsunami of Cruelty Agreeing with the prosecution that the case is similar to 'Nirbhaya' case, the bench said that it is convinced that the death sentence awarded by the trial Court to all the accused persons was the only sentence that could be awarded. To hold that this case passes the rarest of rare test, the bench said:

"A mentally ill woman, who came out of her sister's house situated on the outskirts of the town Rohtak, started walking towards unpopulated open area, was ensnared and waylaid by these appellants/accused by forcibly making her sit on their motorcycle. She was taken to two places where she was raped by all the appellants/accused one by one. The appellants/accused had consumed alcohol. They changed the spot due to fear as a police jeep had passed. They pushed her down in the field and started hitting her with the bricks. Rajesh @ Ghochru again raped her and she was again hit with bricks. She was still alive. What must be the excruciating pain to almost half dead young woman! Then the 'animalism', torment, highest order of cruelty rather "tsunami" of cruelty made thereafter is bound to petrify one and all. Rajesh @ Ghochru placed a cement sheet on her anus and thrust it inside by hitting it inside with brick. She shrieked for the last time and breathed her last. Now we ask the question to ourselves; what else is required to hold this case to be the rarest of rare!" Death Sentence Not Deterrent Enough- Imposes Heavy Fine. The court further observed that the deterrence in the matter of sentences including the death sentence is not satisfactory and that the imposition of heavy fine which, if recovered by sale of the properties of the guilty, would prove additional deterrence. The court observed that the victim or the concerned relatives of the victim would also find atleast some solace to their sufferance, if they are compensated by selling the property of the guilty. Imposing a fine of Rs. 50 Lakhs on the convicts, the bench said: It is quite possible that one or more of the convict does not own or possess any immovable property. But then all these appellants/accused have been found, by us, to have committed the ghastly crime with a conspiracy jointly and individually. If they had come together to commit the crime jointly and individually and not one of them resisted any of the other, we think the liability to pay fine in the sum of `50 lakhs under the peculiar facts and circumstances must be made joint and several. Having thus, come to this conclusion, out of the total sale proceeds, if any recovered, half of the sale proceeds ought to go to the State of Haryana and the remaining half to PW5-Janki. The court then directed the Deputy Commissioner, to identify the immovable properties of all the convicts, attach them within one month. He was further directed to sell the attached properties within two months from the date of attachment and report compliance. Applauds Investigating Officer The Court also applauded hard work and the professionalism with which Investigating Officer SI, Mohammad Ilias who had conducted the investigation in such a hard case. Now it is for the Government how to reward him, the bench added.

Apprehensions About EVM Tampering Unfounded And Unjustified: Gujarat HC

The Gujarat High Court, on 19March , dismissed a lawyer's petition which raised apprehensions about malfunction and tamperability of Electronic Voting Machines. Advocate Khemchand Rajaram Koshti had approached the High Court challenging Rule 56(D)(2) of the Conduct of Elections Rules, 1961, insofar as it vests discretion in the Returning Officer to reject an application for counting of the printed paper slips in the drop-box of the Printer. He also sought for a direction to ECI to ensure mandatory counting of those printed paper slips.

In a detailed judgment, the bench comprising the Acting Chief Justice Anant S. Dave and Justice Biren Vaishnav observed that apprehensions of a malfunction and tamperability of the EVMs are completely unfounded and unjustified. The bench, referring to reports of Election Commission of India, in this regard, said:

"We are assured that the firm conviction about the integrity and non-tamperability and credibility of the EVMs and the confidence in the robustness of the procedural safeguards as voiced in the communication dated 10.01.2019 by the Election Commission Of India, make the making process of the Returning Officer and the discretion so vested in him, under Rule 56(D)(2) beyond reproach." The bench further observed that it shall be loath to sit in judgement over the assurance of a constitutional authority like the Election Commission Of India. It said: "The entire step-wise procedural safeguards that the Election Commission undertakes in the manner of the conduct of elections through the EVMs and VVPATS, in exercise of its constitutional obligation under Article 324 of the Constitution Of India coupled with the technology, leaves no room of doubt for the petitioner to contend that the discretion of the Returning Officer to entertain an application under Rule 56(D) (2) of the Rules can be said to be an unguided discretion when they are qualified with the words that the rejection will only be on the ground of the application being frivolous or unreasonable. Such a rule existed even when the voting was carried out through the Ballot Box." The court also added that the use of ballot paper was time consuming, prone to malpractices booth-capturing and ballot box stuffing, while EVMs has made voting, from the perception of the voter, much simpler and voter-friendly. "The voter has to merely press a button on the Balloting Unit. Under the EVM system, there is no invalid vote unlike the ballot system where there were large number of invalid votes to an extent that in some cases the number of invalid ballot papers were more than the winning margin of the elected candidate. The EVMs are more auditable, accurate, transparent reducing human error. The Commission conducted several field trials and involved all stake holders and political parties in evolving a error free EVM"

Tuesday, March 19, 2019

Uncivilized And Heartless Crime: SC Enhances Compensation To Acid Attack Victim

"This Court cannot be oblivious of the situation that the victim must have suffered an emotional distress which cannot be compensated either by sentencing the accused or by grant of any compensation" A crime of this nature does not deserve any kind of clemency, said the Supreme Court while directing the two convicts to pay Rupees 1,50,000 each as compensation to acid attack victim. Ishita was going to college when two boys came on a scooter and threw some acid over her from a jug and run away from the spot. A resident of the locality saw her crying with burn injuries and later jumping into the water tank nearby. She took her to hospital and subsequently case was registered against the accused.

The Trial Court convicted them for offence under Section 307/34 IPC and sentenced them to undergo rigorous imprisonment of 10 years with a fine of Rs. 5,000 each. However, partly allowing the appeal, the High Court held that the offence under Section 307/34 IPC was not made out and converted the offence from Section 307/34 IPC to Section 326 IPC and sentenced them for a period of 5 years rigorous imprisonment with a fine of Rs. 25,000 each. The State appealed against the High Court order.

Though the Apex court did not interfere with sentence and conviction recorded by the High Court, it said: "Indeed, it cannot be ruled out that in the present case the victim had suffered an uncivilized and heartless crime committed by the respondents and there is no room for leniency which can be conceived. A crime of this nature does not deserve any kind of clemency. This Court cannot be oblivious of the situation that the victim must have suffered an emotional distress which cannot be compensated either by sentencing the accused or by grant of any compensation." The bench then enhanced compensation observing that it may at least bring same solace to the victim for the sufferings which she had suffered. The bench also directed the State to pay the compensation as admissible under the Victim Compensation Scheme as in vogue to the acid victim. The court, referring to earlier judgments which had awarded compensation to such victims, ordered: "Taking note of the precedents of which reference has been made, we consider it appropriate to observe that both the accused shall pay the additional compensation of Rs. 1,50,000 (Rupees One Lakh and Fifty Thousand) each and the State of Himachal Pradesh shall pay the compensation as admissible under the Victim Compensation Scheme as in vogue to the acid victim. If the accused does not pay the additional compensation amount of Rs. 1,50,000/- (Rupees One Lakh and Fifty Thousand) each within six months, the defaulting accused shall suffer rigorous imprisonment of six months. The State shall deposit the compensation before the trial Court within three months from today and the learned trial Court, after proper identification of the victim, disburse at the earliest."

Monday, March 18, 2019

Every Prisoner Eligible For Emergency Parole Of 14 Days, Valid Reasons Needed For Reducing Parole Period: Bombay HC

The Bombay High Court has held that under the law, every prisoner who not a foreigner or a convict sentenced to death is eligible for emergency parole of 14 days for the death of parents, spouse, grandparents etc., and no authority can reduce the period of 14 days without recording valid reasons for the same. A division bench of Justice AS Oka and Justice AS Gadkari was hearing writ petitions filed by Dilip Pawar and Muzammil Shaikh, as both convicts had lost their respective fathers and were not allowed parole of 14 days. While Pawar was granted emergency parole of two days, Shaikh was granted parole for one day, that too with a police escort.

The Prisons (Bombay Furlough and Parole) Rules, 1959 were amended through notifications dated August 26, 2016, and April 16, 2018. By both the amendments, the concept of "Emergency Parole" was introduced by amending Rule 19 of the said Rules of 1959. Sub¬Rule (1) of Rule 19 of the said Rules of 1959 as amended on April 16, 2018, reads thus:¬ 

Emergency Parole¬ (A) All convicted prisoners except foreigner and death sentenced prisoners may be eligible for emergency parole of 14 days for death of parental grandfather or grandmother/father other/spouse/son/daughter/ brother/sister and marriage of son/daughter/ brother/sister, provided that no extension can be granted to emergency parole Upon examining the law, the bench noted- "In view of clause (A) of Sub¬Rule (1) of Rule 19, every prisoner, if his case is covered by the said clause, has a right to be considered for grant of emergency parole. When a power vests in the Competent Authority to grant emergency parole for 14 days, at least reasons in brief must be indicated by the Authority and recorded in the Order as to why the period of 14 days is being restricted to a period which is less than 14 days. Moreover, some reasons are required to be recorded as to why instead of granting parole without police escort, the parole is granted with police escort. Thirdly, for making emergency parole effective, the Authorities cannot insist that only during the day time, the convict will spend time with the members of the bereaved family and will have to spend the night in the nearby Jail. Such a course is not permissible, as the object of providing for grant of emergency parole is that the convicted prisoner can remain company of his family members in case of death of close relatives and can attend the obsequies." According to Shaikh, he was directed to deposit a sum of Rs.70,000 by way of charges of the police escort. Thereafter, it was found that a sum of Rs.15,895 was recovered in excess. The court observed- "We find that there are no guidelines issued by the State Government for determining the charges of police escort in such cases. The guidelines which we have referred earlier are not applicable to the prisoners to whom emergency parole is granted in police escort in exercise of the power under clause (A) of Sub-Rule (1) of Rule 19." Thereafter, APP PP Shinde informed the court that there is no such policy for fixing prices to be paid by prisoners who have been granted emergency parole with a police escort. Finally, the court directed the competent authority to consider the case of both petitioners for a grant of emergency parole in addition to the two- and one-day parole granted, respectively. More importantly, the court directed the state government to frame a policy/guidelines for fixing prices to be paid by prisoners for police escort while being released on parole. The court emphasized: "State Government shall ensure that a decision is taken by treating convicted prisoners as a separate class from those private persons who are given police security on the basis of their own request." The petitions have been disposed of and state government has been directed to file a compliance affidavit by March 18, 2019. 

Bombay HC order spells respite for power consumers

In a ruling that offers some relief to consumers, Bombay high court has held power supply cannot be cut over non-payment of past consumption if the dues were not reflected as arrears continuously for the preceding two years. However, the decision to disconnect would depend on "facts and circumstances of each case", the court held. The HC ruling by a full bench of justices S C Dharmadhikari, A M Badar and Bharathi Dangre was on a reference to settle "conflicting views" over restrictions provided in the Electricity Act for recovery of arrears pertaining to a period prior to two years unless the arrears have been continuously shown in the bills.

A bunch of petitions had been filed by large industrial users such as Ambuja Cement and other cement majors and a Prabhadevi-based Beach Tower Condominium and Maker Towers E and F Premises Cooperative Housing Society at Cuffe Parade with Maharashtra State Electricity Distribution Company Ltd and Brihanmumbai Electricity Supply and Transmission (BEST) 
undertaking. In some cases, the decisions were issued by the Electricity Ombudsman. Some petitions were a decade old. "Electricity is a material resource and belongs to the public. It is very difficult for the state to ensure regular electricity supply to those who require the same regularly. In fact, equal distribution of material resources so as to achieve common good is the constitutional goal," said the HC adding, "It is in public interest and for public good that defaulters are to be deprived of the supply of electricity.'' The question before the HC was whether utilities could in a bill include, for the first time, a demand for power supplied or consumed more than two years prior to the bill date. 

"Distribution Licensee cannot demand charges for consumption of electricity for a period of more than two years preceding the date of the first demand of such charges,'' held the bench adding, "bill may include the amount for the period preceding more than two years provided...the amount is shown as arrears...''  In other words, power supply cannot be disconnected on the ground of non-payment of past electricity dues if such dues are not shown as arrears for a continuous period of preceding two years.

Sunday, March 17, 2019

HC acquits married man of rape charge and Strikes Down Jail Term

The Gujarat high court has acquitted a married person from rape charges and struck down his 15-year jail term earlier awarded to him by a lower court for allegedly raping a minor.

The HC quashed the trial court’s conviction order and ordered to release Rajkot’s Narendrapari Goswami as the high court believed that it was a love affair between him and the girl and hence there was no element of force involved. The HC also did not consider the sexual relations with the girl as statutory rape because the prosecution could not prove that she was a minor by supplying only a school leaving certificate without examining any witness in support of the certificate.

Goswami, was booked under Protection of Children from Sexual Offences (POCSO) Act as well as for rape. He was sentenced to 15-year imprisonment in 2017 by a special court in Rajkot. His conviction took place after his ex-girlfriend lodged an FIR against him in 2013.

After hearing the appeal, the HC said that the girl was living with Goswami for five months. Even after she came to know that Goswami was married and had two kids, she maintained relations with him. “It is clear that there was love affair between the victim and Goswami… the victim had sexual relation with the accused with her consent. Therefore, as such, no offence is made out against the appellant,” the HC said.

The HC refused to accept that the victim was a minor at the time of incident. It said that mere producing the school leaving certificate without examining concerned witnesses, it cannot be said that the age mentioned in the certificate is established.

“Even otherwise, the school leaving certificate to prove the age of the victim is not of much evidentiary value. The prosecution has failed to place on record the birth certificate of the victim,” the court said and added that the date of birth mentioned in the school register of secondary school certificate has no probative value within Section 35 of the Indian Evidence Act, if the person who gave the information to the school does not give evidence.

NI Act- Once The Presumption Under Sec.139 Is Drawn, Complainant Need Not Prove Source Of Fund Till Accused Discharges His Burden

The Supreme Court has held that once the court has drawn presumption of existence of legally enforceable debt as per Section 139 of the Negotiable Instruments Act, factors like source of funds are not relevant if the accused has not been able to rebut the presumption.

Read Full Judgment
"When such a presumption is drawn, the factors relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were not of relevant consideration while examining if the accused has been able to rebut the presumption or not", held the bench of Justices A M Sapre and Dinesh Maheswari while dismissing an appeal against a High Court judgment which had reversed the acquittal by trial court.
The case pertained to dishonour of 7 cheques, each issued for Rs.3 lakhs. The defence of the accused was that the cheques were not issued to the complainant, but to his friend with whom the accused had financial transactions, and that such cheques were misused by the complainant. 
The trial court drew presumption that the cheques were issued for a legally enforceable debt based on the admission of signature in cheques by the accused. The trial court however proceeded to hold that that there was no documentary evidence to show source of the amount, transaction was not reflected in records and income tax returns etc. Based on such findings, the trial court held the complainant's case to be not proved and acquitted the accused.
The Trial Court concluded that the accused was successful in bringing rebuttal evidence to the requisite level of preponderance of probabilities; and observed that the complainant had failed to prove, beyond all reasonable doubt, that the cheques were issued in part payment of the loan amount of Rs. 22,50,000/-. Hence, all the 7 complaint cases were dismissed.
On complainant's appeal against acquittal, the High Court found fault with the trial court.The High Court observed that if the transaction in question was not reflected in the accounts and income-tax returns, that would at best hold the lender liable for action under the income-tax laws but, if the complainant succeeds in showing the lending of amount, the existence of legally enforceable debt cannot be denied. 
As the High Court reversed the acquittal, the accused approached the SC. Dismissing the appeal of the accused, the SC observed :
"In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI Act, the Trial Court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the Trial Court had been at variance with the principles of presumption in law(para 17)".
Referring to Kumar Exports v Sharma Carpets (2009) 2 SCC 519, the SC said that the accused need not lead direct evidence to rebut the presumption under Section 139 NI Act and that the same can be done by way of showing lacuna in the complainant's case. However, if the accused does not bring on record any facts to offset the presumption , the court cannot doubt the complainant's case.
"After such presumption, the onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case could not have been raised for want of evidence regarding the source of funds for advancing loan to the accused-appellant(para 17)"
The SC noted that the defence was that the complaint was filed by misusing the cheques given by the accused to a friend of the complainant. This defence was found to be weak on facts.
It may be noted that the accused himself had not advanced any case that the complainant had no capacity to advance the amounts.
In this backdrop, the SC observed :
"The observations of the Trial Court that there was no documentary evidence to show the source of funds with the respondent to advance the loan, or that the respondent did not record the transaction in the form of receipt of even kachcha notes, or that there were inconsistencies in the statement of the complainant and his witness, or that the witness of the complaint was more in know of facts etc. would have been relevant if the matter was to be examined with reference to the onus on the complaint to prove his case beyond reasonable doubt(para 19)".
But since the case was resting on presumption under Section 139 NI Act, such issues raised by the trial court were irrelevant.
"These considerations and observations do not stand in conformity with the presumption existing in favour of the complainant by virtue of Sections 118 and 139 of the NI Act", said the Court.
"Needless to reiterate that the result of such presumption is that existence of a legally enforceable debt is to be presumed in favour of the complainant. When such a presumption is drawn, the factors relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were not of relevant consideration while examining if the accused has been able to rebut the presumption or not"
"The result of discussion in the foregoing paragraphs is that the major considerations on which the Trial Court chose to proceed clearly show its fundamental error of approach where, even after drawing the presumption, it had proceeded as if the complainant was to prove his case beyond reasonable doubt". the Court went on to add.

Ex-Top Court Judge Justice PC Ghose Set To Be First Lokpal

Retired Supreme Court judge Pinaki Chandra Ghose is likely to be the country's first Lokpal, or the anti-corruption ombudsman, sources said today. The other members of the Lokpal would include four former High Court judges, including a woman judge, and four former civil servants, the sources added. The selection was made weeks after the February-end deadline set by the Supreme Court.
Justice Ghose's name was finalised and recommended by the Selection Committee led by Prime Minister Narendra Modi a couple of days ago.
Passed in 2013, the Lokpal Act involves the setting up of a Lokpal at the Centre and Lokayuktas in states to look into cases of corruption against certain categories of public servants.
The panel to choose the candidates -- headed by the prime minister -- includes the Lok Sabha speaker, leader of the opposition in the lower house, the Chief Justice of India or any judge of the Supreme court he nominates, and an eminent jurist who could be nominated by the President or any other member. President Ram Nath Kovind nominated Mukul Rohatgi, a former Attorney General, as the ''eminent jurist''.
But the selection committee, headed by Prime Minister Narendra Modi, had been hobbled by the absence of senior Congress leader Mallikarjun Kharge. Mr Kharge had refused to attend the meetings after he was designated a "special invitee" saying it does not allow him  to participate in the selection process.
He had skipped the last week meeting as well.
The selection committee is expected to include the Leader of the Opposition. In absence of the post following the Congress's poor show in the 2014 Lok Sabha elections, rules for the appointment of the CBI chief have been amended to include the Leader of the Largest Opposition Party.
Mr Kharge alleged that the government has been using his refusal to attend the selection committee meetings as an excuse for not appointing a Lokpal over the last five years.
Puducherry Governor Kiran Bedi tweeted: "Exceedingly happy to see the announcement of LOKPAL. It shall strengthen all anti-corruption systems in the country and give a big boost to vigilance work at all levels. Thank #AnnaHazare for having led and persevered for this cause. Jai Hind."
Justice Ghose was appointed as the judge of the Calcutta High Court in 1997 and elevated to the Supreme Court in 2013.
As the Chief Justice of the Andhra Pradesh High Court, he had convicted Sasikala, the live-in companion of former Tamil Nadu Chief Minister J Jayalalithaa, in a corruption case.

Friday, March 15, 2019

Section 320 CrPC: Courts Have Discretion To Refuse Compounding Of Offences Having Social Impact: SC

"Merely because an offence is compoundable under Section 320 CrPC, still discretion can be exercised by the court having regard to nature of offence." The Supreme Court has observed that a court has discretion to reject a plea to compound an offence having social impact, even if the offence is compoundable under Section 320 of the Code of Criminal Procedure. The case against Bhagyan Das was that, while working as Village Development Officer, he misled a woman about a Financial Scheme and embezzled major amount from her. Under the scheme, an amount of Rs. 9600 was be withdrawn by the joint signatures of both the woman and the VDO. Misusing his position as Government servant, he misled her by making payment of only Rs. 4000. 

Later, the Trial Court convicted him for offence under Section 420 IPC and sentenced him to undergo two years' rigorous imprisonment and also imposed a fine of Rs.2000. On his appeal, the Sessions Court modified the quantum of sentence by reducing it to one year imprisonment, and sustained the imposition of fine. 

Offence affects society at large, Said HC He preferred a revision petition before the Uttarakhand High Court and also filed an application seeking compounding of the offence. Though both parties had appeared before the High Court in person and sought compounding of the offence, the High Court rejected the plea observing that it is not a case which leaves its effect only on the complainant, but to the society at large. Justice Servesh Kumar Gupta had also referred to Gian Singh v. State of Punjab, wherein the constitution bench had observed that compounding powers should be exercised by the Court considering the social impact of the crime in question vis-à-vis its individual impact, as decisive criterion for quashment power in such cases. While dismissing his plea, the court observed thus: "Had this been a case of purely an individual nature without having any social impact, then this Court would have thought for accepting such type of application. Since the accused was a Government Servant working as Village Development Officer and was authorised to withdraw the amount jointly with the beneficiary concerned, but he was found indulged in grabbing the amount meant for the development of the poor villagers in the manner stated hereinabove, therefore, I think it is not a case where it leads its effect only to the complainant Smt. Deveshwari Devi, but to the society at large. It is the one case of embezzlement, which could be highlighted. Possibility of indulging in misuse of his position for grabbing the money of the many other unfortunate poor villagers by such type of Government Servant/convict cannot be ruled out." Courts Have Discretion To Refuse Compounding In the special leave petition filed by the accused, the bench comprising Justice R. Banumathi and Justice R. Subhash Reddy, agreeing with the High court view, observed that merely because an offence is compoundable under Section 320 CrPC, still discretion can be exercised by the court having regard to nature of offence. The court said: "Merely because an offence is compoundable under Section 320 CrPC, still discretion can be exercised by the court having regard to nature of offence, as such it is rightly held in the impugned judgment that as the offence for which appellant was convicted and sentenced, it will have its own effect on the society at large. In view of the reasons recorded in the impugned order rejecting the application for compounding, it cannot be said that the High Court has committed any error in not accepting the application filed for compounding the offence." Though it sustained conviction, the bench taking into account some other factors, modified the sentence imposed on the accused for the period already undergone.

Wednesday, March 13, 2019

Married Daughter Also Has A Right Of Succession In The "Lease Premises" Under Goa Succession Law: SC


The Supreme Court has observed that a married daughter would have a right of succession in the "lease premises", as per the provisions of Goa Succession, Special Notaries and Inventory Proceeding Act, 2012.
The bench comprising Justice L. Nageswara Rao and Justice MR Shah was considering an appeal against the Bombay High Court (at Goa) order that had confirmed an order passed by the Inventory Court holding that a married daughter has no right in the "lease premises" and therefore the same cannot be subjected to the inventory proceedings. In this appeal (Uma Mahesh Bandekar vs. Vivek Sadanand Marathe), the court essentially considered the issue whether the married daughter would have a right of succession in the "lease premises" or not?
Referring to the provisions of the Act, the bench observed that in Section 5 of the Inventory Proceeding Act, 2012, there is no classification between the daughter married or unmarried and son. It cannot be disputed that a daughter, may be a daughter married or unmarried, would have a right of succession in the properties of the parents including the lease, the bench said.
The court also added that the legal position under Portuguese Civil Code has not been changed pursuant to the enactment and enforcement of the Inventory Proceeding Act, 2012, brought into force with effect from 19.09.2016. The bench observed:
"As per Section 68 of the Inventory Proceeding Act, 2012, all the children and their descendants succeed to their respective parents and other ascendants, without distinction of sex or age. Thus, under the provisions of the erstwhile Portuguese Civil Code, 1867 and/or under the provisions of the Inventory Proceeding Act, 2012, there is no further classification between a daughter married or unmarried and son. Therefore, considering the scheme and the 19 provisions of the erstwhile Portuguese Civil Code and as per the provisions of the Inventory Proceeding Act, 2012, which has come into effect with effect from 19.09.2016, even the married daughter would have a right of succession in the "lease premises"."
The court further held that both the High court and inventory court erred in taking into account the Rent Act. The court said that the only question was in respect of the rights of succession of a married daughter in the "lease premises" under the provisions of the Portuguese Civil Code and subsequently under the provisions of the Inventory Proceeding Act, 2012. The bench said:
"It is required to be noted that the proceedings before the inventory court and the High Court were not at all with respect to Goa Rent Act. The proceedings were not between the landlord and the tenant. The provisions of Goa Rent Act shall be applicable with respect to dispute between the landlord and the tenant. As per the preamble of the Goa Rent Act, it has been enacted for control of rents and evictions. At the cost of repetition, it is observed that the dispute was neither under the provisions of the Goa Rent Act nor between the landlord and the tenant and therefore both, the inventory court as well as the High Court have erred in considering the provisions of the Goa Rent Act, more particularly Section 2(o) of the Goa Rent Act. The only question which was before the inventory court and the High Court was in respect of the rights of succession of a married daughter in the "lease premises" under the provisions of the Portuguese Civil Code and subsequently under the provisions of the Inventory Proceeding Act, 2012."