Tuesday, March 17, 2020

False p Case

The High Court of Punjab and Haryana held that the police authorities are at liberty to proceed against the complainant for lodging a false case of molestation, in accordance with the law.

The single bench of Justice Hari Pal Verma said,
"This Court cannot ignore the fact that the number of times, such like false cases are registered. Had there been no fair investigation, the petitioner, Karan Chawla would have to face trial."

The petition was filed under Section 438 of the Code of Criminal Procedure, 1973 for grant of anticipatory bail to the petitioner in the FIR registered by the police under Sections 376, 354, 511 of IPC.

The FIR was registered on the statement of the prosecutrix with the allegation that she suffered an accident and was brought to the hospital. In the operation room, when the doctor went away after treating her, the prosecutrix alleged that the petitioner came inside the room and started molesting her.

Ruchika Sabharwal, AAG representing the State submitted that the above-said incident was looked into by the police and a Special Investigation Team constituted thereafter for recording the statements of the staff of the hospital.

The SIT had come to the conclusion that no such incident of alleged molestation by the petitioner had taken place and accordingly the police prepared the cancellation report.

The court while looking into the fact that SIT constituted said,
" In view of the fact that SIT constituted in the case has not found anything in the case and thereby, the cancellation report has also been prepared, the present petition is rendered infructuous."

Subsequently, the court dismissed the petition as infructuous and said that there has been no fair investigation and the court cannot ignore the fact the number of times such false cases are registered.

Accordingly, the court held,
"The police authorities are at liberty to proceed against the prosecutrix for lodging a false case of molestation"

Friday, March 13, 2020

Gujarat High Court on Friday registered a suo moto Public Interest Litigation titled "Precautionary Measures In The Wake Of The Pandemic of Corona Virus (COVID-19)

In the wake of COVID 19 pandemic, the Gujarat High Court on Friday registered a suo moto Public Interest Litigation titled "Precautionary Measures In The Wake Of The
Pandemic of Corona Virus (COVID-19)".
A bench comprising Chief Justice Vikram Nath and Justice Ashutosh Shastri said that the suo moto action was taken "to further strengthen the hands of the Government and also to keep a check and control of the said Virus being spread further in the judicial setup of the State".
The Court has issued the following directions :
"(1) The Advisory issued by the Ministry of Health & Family Welfare, Government of India and the Government of Gujarat on the above Pandemic be strictly adhered to and followed in letter and spirit.
(2) In addition to the above, we direct the Government of Gujarat:
(i) to provide temperature guns at the security check to check the temperature of entrants in the Court premises;
(ii) In case any person is found to be having temperature above normal, then, to take necessary steps for further investigation forthwith;
(iii) to take necessary steps for sanitizing the Court building and premises on daily basis by using appropriate formulations.
(3) Following directions are issued to the members of the Bar Association, members of the Registry, staff of the High Court and all other stakeholders to take following
i. Public gatherings may be avoided unless unavoidable.
ii. Counsels may discourage litigants from attending Courts.
iii. Absence of parties appearing in person may not entail any adverse orders.
iv. All precautionary measures as advised by the Government may be taken.
v. Handshake greetings may be avoided and greetings may be with folded hands only.
(4) The above directions contained at Sr.No.(3) to be equally applied to all the subordinate courts in the State of Gujarat"

Prisoners have no right to vote, Delhi HC re-affirms constitutional validity of Section 62(5) RP Act

The constitutional validity of Section 62(5) of the Representation of the People Act, 1951, the Delhi High Court has re-affirmed that prisoners have no right to vote. (Praveen Kumar Chaudhary vs Election Commission & Ors)
The judgment was passed by a Division Bench of Chief Justice DN Patel and Justice C Hari Shankar in public interest litigation preferred by one Praveen Kumar Chaudhary.
It was the Petitioner’s contention that Section 62(5) was violative of the basic structure of the Constitution.
The Petitioner argued that under the provision, there was no valid classification between the persons who are in jail and the persons who are on bail or out of jail.
The Petitioner further pointed out that as per the second proviso to Section 62(5), while a person whose name has not been entered in the electoral roll does not cease to be an elector and can also contest the election, he/she cannot cast his/her vote if he/she is in jail.
This type of classification, the Petitioner submitted, was not valid in the eyes of law and was violative of Article 14 of the Constitution of India.
The Election Commission, on the other hand, argued that this issue had already been decided by the Supreme Court in Anukul Chandra Pradhan, Advocate Supreme Court vs. Union of India & Ors (1997).
The Election Commission pointed out that the Supreme Court had noted that Article 14 permitted reasonable classification which had a rational nexus with the object of classification.
Stating that criminalisation of politics was the bane of society and negation of democracy, the Supreme Court had opined the object of free and fair elections and maintenance of law and order were the essence of democracy and upheld the validity of Section 62(5) for making a reasonable classification, the Election Commission further pointed out.
In view of the submissions and the Supreme Court’s decision, the Court reiterated that the right to vote was neither a fundamental right nor a constitutional right.
It said,
“Right to vote is not one of the common law rights but it is a right conferred by a statute. The right to vote is subject to limitation imposed by the statute. The right to vote is the statutory right, the law gives it and the law can take it away.”
Delhi High court
Referring to the classification as a valid classification, the Court added that persons who are out of jail and persons who are in jail are class by themselves.
After perusing a series of other case laws on the issue, the Court opined that Section 62(5) was constitutionally valid.
It said,
“The classification of the persons who are in jail and who are out of jail is a valid classification and it has a reasonable nexus with the objects sought to be achieved ..”
Delhi High court

Tuesday, March 10, 2020

Police officer cannot seize driving licence unless in uniform: Calcutta High Court

"... the duty to produce a licence and certificate of registration only arises under Section 130 of the 1988 Act, Sub-section (1) of which provides that the driver of a motor vehicle in any public place shall on demand by any police officer in uniform produce his licence for examination."
Calcutta High Court

The Court was dealing with a writ petition filed by Suryaneel Das (petitioner) alleging that he was intimidated and threatened by two men dressed in civilian clothes, who seized his driving licence, without the issuance of any temporary authorisation slip.

The petitioner told that Court that while he was talking on the phone, two men came up to him, asked him to disconnect the phone and step out of the car in order to answer some queries.

The men seized his driver's licence, all the while refusing to show any valid ID proofs. On the petitioner's insistence, they gave him a compound slip after the licence was seized. However, this slip did not disclose the identity of the impounding officers either.

In reprimanding the police authorities for their conduct, Justice Sabyasachi Bhattacharyya remarked that,

“....the mala fides of the Sub-Inspector of Police, namely, Biswajit Das, is patent from his action in seizing the driving licence of the petitioner without issuing any acknowledgement which would act as a temporary licence for the petitioner in the first place.”

Calcutta High Court

The Court proceeded to rule in the petitioner's favour, inter alia, given that the police officers had violated the Motor Vehicles Act in seizing the driver's licence while not in uniform. The Court observed,

"... nothing has been disclosed as to the police being in uniform when they seized the driving licence and, as such, there was no duty cast upon the petitioner, who was the driver of the vehicle-in-question, to hand over his licence at all and the seizure of the licence was palpably under coercion on the part of the police officer involved, who was not even in uniform."

The Court also rejection submissions made by the police relying on Section 206 of the Motor Vehicles Act to justify its conduct. This provision allows the seizure of driving licence where it is suspected that the driver may abscond or avoid legal summons, where such person is charged with an offence.

The Court pointed out that even in such a scenario, the police "could at best take resort to Section 177 of the 1988 Act and impose a fine of Rs.100/- as stipulated for a first offence."

The Court further took critical note of a submission that the police in the area had no facility to accept cash or payment by card for any Motor Vehicle Act violation. Observing that the same was inexcusable, the Bench also pointed out that the alternative of seizing driver's licences for violations were disproportionate.

In this case, the High Court also held that there was no prima facie evidence to prove that the police gave an opportunity to the petitioner to pay any fine on the spot.

In view of these observations, the Court held that the seizure and the proceedings against the petitioner were liable to be quashed.

The High Court also cautioned the errant police officer to follow the due process of law in the future.

“Since a police officer is supposed to be a protector of justice, a much higher obligation is expected from the officers of the police than a common citizen with regard to protecting the law by following due process of law.”
Calcutta High Court
The writ petition was disposed of with directions that the police authorities immediately return the driving licence to the petitioner.

The respondent-authorities were represented by Advocates Amal Kumar Sen and Ashima Das. The petitioner appeared party-in-person.

Monday, March 9, 2020

Coronavirus: What you need to know

How do you catch it?
From a sufferer who coughs or sneezes near you. Close contact with a sick person.
Not washing your hands regularly and touching your face after contact with unclean surfaces also raises the risk.
What is ‘close contact’?
The NHS defines it as living in the same house, being in contact with another person’s bodily fluids, talking together for longer than a few minutes or being within 6ft of a person for more than 15 minutes.
How do I know if I have it?
The only sure way is a Medical  test. If you think you need one, call 108.
You can have it without feeling ill. Main symptoms are similar to flu – a cough, high temperature and shortness of breath. Those with flu-like symptoms are not likely to have it if they have not been to a high-risk area or have not had close contact with a confirmed patient.
How to reduce my risks?
Don’t travel to hotspots, such as northern Italy. Avoid contact with sick people.
Good personal hygiene. Wash your hands regularly with soap for at least 20 seconds. Use hand sanitiser as an alternative.
Cover your mouth with a tissue or sleeve when coughing or sneezing. Bin used tissues straight away and wash your hands.
Don’t touch your eyes, nose or mouth.
Do face masks help?
Not really. Experts say masks are better used by infected people to stop them spreading it. Masks can raise the risk if people touch their faces more to adjust them.
How worried should I be?
About 80 per cent of patients experience only mild illness, says the World Health Organization.

Monday, March 2, 2020

Members barred from joining the month-old body under 'One Bar, One Vote' norm of GHCAA

The Gujarat High Court Advocates' Association (GHCAA) has passed a resolution to remove membership of the lawyers who join the newly-formed Ahmedabad NCLT Practitioners Association (ANCLTPA) formed by the other faction. 

ANCLTPA was formed about a month ago. The GHCAA has been objecting the new association which comprises mostly lawyers practicing in the high court and few Chartered Accountants and Company Secretaries. Earlier on February 10, the GHCAA had passed a resolution paving way to open its branch at the NCLT which it sent to the Principal Bench of NCLT at New Delhi and Bar Council of Gujarat (BCG) to get recognition. At the same time, the ANCLTPA has also sent communication to get recognition.

GHCAA will write a letter to the BCG to not give recognition to newly-formed association. "We passed the resolution on February 25 looking at the existing norm of 'One Bar One Vote' under which members of other bars cannot be members of our association," said Yatin Oza, GHCAA president. Oza said, "As part of the resolution passed, we will remove the member and take away member's chamber for joining another association."
Under One Bar One Vote norm, a lawyer can only vote in the bar where he or she is an ordinary member. "As per this norm, one lawyer cannot become member of two associations. Most of the high court lawyers who are also our members are practicing at the NCLT," said Hardik Brahmbhatt, Secretary of the GHCAA.

The resolution passed by the GHCAA reads, "Some advocates who have chosen to become not only electorate but also chosen to become office-bearers of another association stand to lose their membership of GHCAA. Hence it is resolved to request the Chief Justice of High Court of Gujarat to cancel allotment of chambers in their favour."

Saturday, February 29, 2020

Protests can’t infringe rights of others: SC

 The Supreme Court on Friday ruled that one’s right to protest could not infringe upon the rights of others as it upheld the Uttarakhand high court verdict initiating stringent action against lawyers boycotting district court work for years.
Uttarakhand lawyers had moved the SC claiming that the HC verdict violated their fundamental right to free speech to go on strike court work to protest against issues concerning them. They said it was a mode of peaceful representation to express grievances of the lawyer community.

Rejecting the arguments, a bench of Justices Arun Mishra and M R Shah said, “Such a right to freedom of speech cannot be exercised at the cost of litigants and/or at the cost of the justice delivery system as a whole.”

“To go on strike or boycott courts cannot be justified under the guise of right to freedom of speech and expression under Article 19(1)(a) of the Constitution,” the SC bench said.

Advocates in the districts of Dehradun, Haridwar and Udham Singh Nagar have been boycotting court work on Saturdays for the past more than 35 years. The Law Commission had found that between 2012 and 2016, advocates were on strike for 455 days (average 91 days per year) in Dehradun district and 515 days (average 103 days per year) in Haridwar district.

A PIL against the strikes was entertained by the HC, which passed a series of directions on the line of law settled by the apex court banning strikes by lawyers. It also warned of contempt of court proceedings against errant advocates.

The bench also took suo motu cognisance of lawyers resorting to strikes in several parts of the country despite a series of judgments by the SC banning strikes by advocates. “We take suo moto cognisance and issue notices to Bar Council of India and all state bar councils to suggest further course of action and to give concrete suggestions to deal with the problem of strikes/abstaining from work by lawyers,” the bench said and sought responses from BCI and state councils within six weeks.

The court criticised the inaction of BCI and state councils against lawyers indulging in strikes. “The day has now come for the Bar Council of India and bar councils of states to step in and take concrete steps. It is the duty of bar councils to ensure that there is no unprofessional and unbecoming conduct by any lawyer,” it said.

Writing the judgment endorsing the steps taken by the HC against lawyers of three districts of Uttarakhand, Justice Shah said, “We direct all concerned and district bar associations to comply with the directions issued by the high court in its true spirit. It is directed that if it is found that there is any breach of any of the directions issued by the high court in the impugned judgment and order, a serious view shall be taken and the consequences shall follow, including punishment under the Contempt of Courts Act.”

Thursday, February 27, 2020

Saudi bars entry of foreign pilgrims over corona virus

Saudi Arabia on 27/02/2020 banned foreign pilgrims from entering the kingdom to visit Islam’s holiest sites over the new coronavirus, potentially disrupting the plans of millions of faithful ahead of the Muslim fasting month of Ramadan and as the annual hajj pilgrimage looms.
The decision showed the growing worry across the Mideast about the virus as Iran confirmed that infected cases in the country spiked by over 100, to 254 now. A total of 26 people have died so far, it said. That pushes the region’s overall cases to above 350. Iran’s death toll is highest outside of China, where the outbreak began.
Saudi Arabia’s barring of pilgrims from Mecca, home to the cube-shaped Kaaba that the world’s 1.8 billion Muslims pray toward five times a day, and also the holy city of Medina, appeared unprecedented in modern history. The kingdom's Al Saud ruling family stakes its legitimacy in overseeing and protecting the sites. Authorities also suspended entry to travelers from nations affected by the new virus who hold tourist visas for the kingdom.
It appeared Saudi officials worried about the risk of pilgrims spreading the virus as they had in Iran. The virus’s epicenter in the Islamic Republic is the holy Shia city of Qom, where the faithful in reverence reach out to kiss and touch a famous shrine. That shrine and others have remained open, despite Iran’s civilian government calling for them to be closed. There have been no confirmed cases of the new coronavirus in Saudi Arabia amid the outbreak

HC: Ensure lawyers for sedition-accused

To uphold the best legal traditions, a member of the Hubballi Bar Association should appear on behalf of the three Kashmiri students charged with sedition for allegedly raising pro-Pakistan slogans in their engineering college hostel in Hubballi on February 14, the Karnataka high court observed on Thursday.
The observation came a day after the court slammed the local bar for allegedly heckling a group of Bengaluru lawyers who had appeared on behalf of the students, calling it “sheer militancy”. On Thursday, HBA officer-bearers appeared before the court with a fresh resolution, modifying the one passed on February 15 that had barred its members from appearing for the accused. However, the court was still unhappy with the modified resolution, which left the matter to individual members.
A division bench headed by Chief Justice Abhay Shreeniwas Oka noted that instead of modifying it, the association should have simply recalled the contentious resolution. The association agreed to take back the resolution.
Meanwhile, despite assurances from HBA office-bearers to ensure that proceedings are conducted in a peaceful manner, the bench said it's February 20 order directing the local police to provide security to advocates appearing for the three students will continue. “We would have transferred the case here. That was a simple task. However, as far as possible, it should be heard there. That will send the right signal. It is not good that lawyers have to seek police protection for appearing in a court,” the chief justice observed.

Don’t insist on domicile certificate, ONGC -Gujarat High Court

The Gujarat high court on 27/02/2020  Certificate of candidates for recruitment for the posts of technicians.
Various candidates residing outside Gujarat had approached the high court after they were disqualified on the ground that they had not supplied certificates showing that they were domiciled in Gujarat.
The petitioners came to know about this after they cleared the computer-based test and made it to the final merit list.
The candidates opposed ONGC’s decision to disqualify them saying that domicile certificate was not asked for in the advertisement issued in January 2019, and therefore ONGC cannot insist on this eligibility criterion.
After hearing the case, the high court allowed petitions filed by the candidates seeking directions to ONGC that it cannot insist on a domicile certificate at the belated stage of recruitment. The HC also directed the ONGC to add the names of these candidates in the final merit list.

Friday, February 14, 2020

Supreme Court issues guidelines on listing of Criminal Appeals against orders involving death penalty

The Supreme Court has issued guidelines regarding the listing of Criminal Appeals against High Court orders involving the death penalty.
As per the Office Order dated February 12, these guidelines shall be followed scrupulously by all.
The guidelines are as follows:
(A) In matters where the appeal is against a High Court order upholding the death penalty and leave is granted by Supreme Court, the Criminal Appeal will be listed for hearing before a Three Judges Bench within not later than six months from the date of grant of leave, irrespective of whether an appeal is ready or not.
(B) (i) As soon as an SLP involving death penalty is filed, a communication from the Registry may be sent to the court appealed from, seeking a certificate of service as well as an original record within a period of thirty days from the receipt of such intimation or further within such period as may be directed by the Court. The record will be sent along with the translated copy of the documents which may be in vernacular language.
(ii) On grant of leave by the Supreme Court, the Registry may insist on the filing of additional documents by the parties within a period of thirty days after the receipt of intimation in this regard.
(iii) In the event records or additional documents have not been received/filed, the matter may be listed before Judges concerned in Chambers with appropriate office report for directions, instead of listing the matter before the Registrar Court as per the existing practice.

CAA Protests: Court bound to see that people have a right to agitate, says Bombay High Court

The Bombay High Court on 13/2/2020 held that persons peacefully protesting against any particular law cannot be called as traitors or anti-nationals. The observation was made while granting permission for the conduct of an indefinite protest against the controversial Citizenship Amendment Act (CAA), 2019 in the Beed district of Maharashtra.

"... this Court is expected to consider the right of such persons to start agitation in a peaceful way. This Court wants to express that such persons cannot be called as traitors, anti-nationals only because they want to oppose one law. It will be act of protest and only against the Government for the reason of CAA."
Bombay High Court

Thursday, February 13, 2020

Rajya Sabha official demoted for anti-Modi posts in social media

The Deputy Director has “failed to maintain political neutrality”, says order 
On the directive of Rajya Sabha Chairman Venkaiah Naidu, an official working in the post of Deputy Director in the Rajya Sabha Secretariat has been demoted for his social media posts allegedly against Prime Minister Narendra Modi, BJP Cabinet Ministers and Uttar Pradesh Chief Minister Yogi Adtiyanath. 
memo issued by the Secretariat dated February 12 to Deputy Director (Security) Urujul Hasan charges him with “sharing several offensive, derogatory, demeaning and sarcastic posts on social media against the Hon’ble Prime Minister of India and some Union Ministers and Chief Ministers as also sharing a number of posts indicating his active involvement/assistance/indulgence in political activities canvassing in connection with an election to the legislature”. 
According to sources, the order was issued following a year-long enquiry after an anonymous complaint flagged Mr. Hasan’s Facebook posts made from April to May 2018. Many of these posts, sources said, were merely repost of others’ statements. 
 As per the Rajya Sabha orders, Mr. Hasan has been demoted for five years and even at the end of this period he will not be allowed to resume his post of Deputy Director. 
The order rules that Mr. Hasan has “failed to maintain political neutrality” as per the Central Civil Services Conduct Rules of 1964 which has stringent provisions against participation of a government servant in any kind of political activity or even freely expressing their view.
Various sections of these rules have been invoked against Mr. Hasan. As per the rules, a government servant is debarred from joining any political party, he/she is not allowed to “canvass or otherwise interfere with, or use his influence in connection with or take part in an election to any legislature or local authority”. The government servant is not allowed to even indicate the manner in which he proposes to vote or has voted. 
The enquiry committee had also taken into account a Madras High Court ruling of May 10, 2018 against an actor-turned-politician for forwarding an offensive WhatsApp message, saying, “Forwarding a message is equal to accepting the message and endorsing the message.” 
Former Chief Secretary of Delhi Rakesh Mehta said a civil servant is not allowed to breach the political line under any circumstances and the rules are very clear about it. “The CCS Rules apply for social media posts too. A social media post cannot be considered a private correspondence. A civil servant cannot make his political views public simply because it would prejudge their decision making process,” Mr. Mehta said. However, he agreed that the rules are archaic and need to be revisited in an era of social media. 

Wednesday, February 12, 2020

SC Directs Political Parties To Publish Criminal Antecedents Of Candidates In LS & Assembly Polls Within 48 Hours

Story updated when order copy received.

The apex court, which was hearing a contempt plea over the issue of criminalization of politics directed the parties to upload on their websites the reasons for the selection of candidates with criminal antecedents. The Supreme Court said that political parties must publish credentials, achievements and criminal antecedents of candidates on newspapers, social media platforms and their respective websites along with an explanation. "Political parties must put all the information in public domain about a candidate within 48 hours after clearing the name and the party must also submit a report regarding publication within 24 hours after the nomination of the candidate," the top court said. The court said that parties will be liable for contempt if they failed to comply with its order and directed Election Commission to file contempt petition in SC in case of non-compliance

The Juvenile Justice Boards are not meant to be silent spectators and pass orders only when a matter comes before them -SC

"We make it clear that the Juvenile Justice Boards are not meant to be silent spectators and pass orders only when a matter comes before them. They can take note of the factual situation if it comes to the knowledge of the JJBs that a child has been detained in prison or police lock up. It is the duty of the JJBs to ensure that the child is immediately granted bail or sent to an observation home or a place of safety. The Act cannot be flouted by anybody, least of all the police,"

"All JJBs in the country must follow the letter and spirit of the provisions of the Act. We make it clear that the JJBs are not meant to be silent spectators and pass orders only when a matter comes before them. They can take note of the factual situation if it comes to the knowledge of the JJBs that a child has been detained in prison or police lock-up. It is the duty of the JJBs to ensure that the child is immediately granted bail or sent to an observation home or a place of safety. The Act cannot be flouted by anybody, least of all the police," the bench observed.

Tuesday, February 11, 2020

Section 482 CrPC- HC Cannot Quash Criminal Proceedings On The Basis Of Its Assessment Of 161 Statements: SC

 The Court, while allowing the criminal appeal, held that quashing of criminal proceedings cannot be meted out by the High Courts if a prima facie case is made out disclosing the ingredients of the alleged offence.

The Bench emphasized that the appreciation of evidence in a petition under Section 482 CRPC was a matter of exceptional circumstance.

It was held,

"It is settled law that the evidence produced by the accused in his defence cannot be looked into by the Court, except in very exceptional circumstances, at the initial stage of the criminal proceedings. It is trite law that the High Court cannot embark upon the appreciation of evidence while considering the petition filed under Section 482 CrPC for quashing criminal proceedings"

Furthermore, Court took the view that statements recorded in terms of Section 161 CRPC were wholly inadmissible in evidence and were not a valid ground for allowing a petition under Section 482 CRPC.

"The conclusion of the High Court to quash the criminal proceedings is on the basis of its assessment of the statements recorded under Section 161 CrPC. Statements of witnesses recorded under Section 161 CrPC being wholly inadmissible in evidence cannot be taken into consideration by the Court"

SC Upholds Constitutional Validity Of 2018 Karnataka Law Granting Reservation In Promotion For SC-ST

The Supreme Court's recent decision that there is no fundamental right to claim reservation in promotions has become a subject matter of intense debate.

The decision was discussed in the Parliament, and the Centre has told the House that the matter was under the study and consideration of the Government at "high level".

Article 16(4)(A) 

"Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion [, with consequential seniority,] to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State."

Alongside Article 16(4)(A), the Parliament has inserted Article 16(4)(B) through the Constitutional (81st Amendment) Act in 2000. It ensures that vacant posts arising out of reservation shall be carried out to subsequent years and such vacant posts will not be considered to determine the ceiling of 50% reservation on a total number of vacancies.

Latest Judgment

Monday, February 10, 2020

Section 438 of the Code of Criminal Procedure (Anticipatory Bail) shall not apply to the cases under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, except when the complaint does not make out a prima facie case

The Supreme Court has observed that provisions of section 438 of the Code of Criminal Procedure (Anticipatory Bail) shall not apply to the cases under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, except when the complaint does not make out a prima facie case for applicability of the provisions of the Act.
In cases where prima facie case is not made out, the bar created by section 18 and 18A (i) of the Act excluding provisions of Section 438 of the Code of Criminal Procedure (Anticipatory Bail), shall not apply, observed the bench of Justices Arun Mishra, Vineet Saran and S. Ravindra Bhat while upholding the constitutionality of Section 18A of the SC-ST Act,, inserted vide an amendment in 2018.
The Court observed that the provisions which have been made in section 18A are rendered of academic use as they were enacted to take care of mandate issued in Dr. Subhash Kashinath (supra) which no more prevails. The provisions were already in section 18 of the Act with respect to anticipatory bail, it noted. The bench observed:
Concerning the applicability of provisions of section 438 Cr.PC, it shall not apply to the cases under Act of 1989. However, if the complaint does not make out a prima facie case for applicability of the provisions of the Act of 1989, the bar created by section 18 and 18A (i) shall not apply. We have clarified this aspect while deciding the review petitions
Regarding the power under Section 482 CrPC, the bench said:
The court can, in exceptional cases, exercise power under section 482 Cr.PC for quashing the cases to prevent misuse of provisions on settled parameters, as already observed while deciding the review petitions.  
While upholding the provisions of the SC-ST Act, it said:
"Concerning the provisions contained in section 18A, suffice it to observe that with respect to preliminary inquiry for registration of FIR, we have already recalled the general directions (iii) and (iv) issued in Dr. Subhash Kashinath's case (supra). A preliminary inquiry is permissible only in the circumstances as per the law laid down by a Constitution Bench of this Court in Lalita Kumari v. Government of U.P., (2014) 2 SCC 1, shall hold good as explained in the order passed by this Court in the review petitions on 1.10.2019 and the amended provisions of section 18A have to be interpreted accordingly.

The section 18A(i) was inserted owing to the decision of this Court in Dr. Subhash Kashinath (supra), which made it necessary to obtain the approval of the appointing authority concerning a public servant and the SSP in the case of arrest of accused persons. This Court has also recalled that direction on Review Petition (Crl.) No.228 of 2018 decided on 1.10.2019. Thus, the provisions which have been made in section 18A are rendered of academic use as they were enacted to take care of mandate issued in Dr. Subhash Kashinath (supra) which no more prevails. The provisions were already in section 18 of the Act with respect to anticipatory bail."
Justice Ravindra Bhat,in a separate opinion penned by him, observed thus:
As far as the provision of Section 18A and anticipatory bail is concerned, the judgment of Mishra, J, has stated that in cases where no prima facie materials exist warranting arrest in a complaint, the court has the inherent power to direct a pre-arrest bail. 20. I would only add a caveat with the observation and emphasize that while considering any application seeking pre-arrest bail, the High Court has to balance the two interests: i.e. that the power is not so used as to convert the jurisdiction into that under Section 438 of the Criminal Procedure Code, but that it is used sparingly and such orders made in very exceptional cases where no prima facie offence is made out as shown in the FIR, and further also that if such orders are not made in those classes of cases, the result would inevitably be a miscarriage of justice or abuse of process of law. I consider such stringent terms, otherwise contrary to the philosophy of bail, absolutely essential, because a liberal use of the power to grant pre-arrest bail would defeat the intention of Parliament

Sunday, February 9, 2020

Mop in Stomach: Doctor ordered to pay ₹6.85 lakh

The Gujarat State Consumer Dispute Redressal Commission has ordered a Surat-based gynecologist to pay Rs 6.85 lakh to a woman for forgetting a mop in her abdomen after her C-section surgery.
Dr. Meena Vankawala will be paying the amount to one Bhavi Mehta, who was admitted to her hospital in March 2012. She delivered a son after undergoing surgery. She complained that her baby swallowed fluid during birth and hence suffered various health problems. The baby’s treatment lasted long at different hospitals.
After C-section surgery, the woman continued to feel pain in her abdomen. She consulted other doctors but did not get any relief. Finally, on May 14, 2012, she was hospitalized and sonography reflected a foreign body in her abdomen. She was operated upon and a mop of the size of 15x12 mm was found in her stomach.
Mehta sued Dr. Vankawala, her hospital and the insurance company in the consumer commission for medical negligence.
She also supplied a medical report saying that Dr. Vankawala did not remove the mop during the surgery. The case lasted for seven years and the commission accepted the patient’s claim that it was a case of medical negligence.
The commission said, “This is a case of medical negligence which is highly difficult to establish... There is no dispute that the cotton mop was left during the operation in the body of complainant No. 1(Mehta)... doctor had not taken any care to remove the mop from the body of the complainant, otherwise, she might not have suffered such severe and unbearable pain for long. This itself suggests concluding that the doctor was careless and negligent at the time of performing the operation on her.”
The complainant had sought  hefty amount of over Rs 90 lakh towards compensation for the trouble she and her son had undergone. But the consumer commission said that she was entitled to get Rs 5 lakh towards compensation, and Rs 1.5 lakh for the medical expenses she had incurred. The doctor and her insurance company were also ordered to pay Rs 25,000 to the patient for mental agony caused to them besides Rs 10,000 towards legal expenditure.

Woman gets 6 years in jail for perjury, She Was Seeking More Alimony

Jyoti Joshi’s desperate efforts to get more maintenance from her husband have landed her in jail for six years. A court in Amreli punished her for giving false evidence and making a false statement before the court, during proceedings on her plea seeking more maintenance money.
Last month, a magisterial court in Amreli sentenced her to three years’ rigorous imprisonment for supplying false evidence in court under Section 193 of the IPC. It punished her with equal jail term under Section 199 of the IPC, for giving a false statement in the declaration which is by law receivable as evidence. The court ordered her to undergo both terms consecutively.
While Joshi got six years in jail, she succeeded in her bid to increase the maintenance amount – from Rs 2,000 to Rs 6,000 in December 2013. However, seven months before she got this relief from the court, the court ordered registration of a complaint against her under Sections 193, 199 and 200 of IPC.
In this case, Jyoti married Yogesh Joshi in 1987 and the couple lived in Chalala town. After matrimonial discord, Jyoti approached the court in 2003 and secured monthly maintenance of Rs 1,100 by way of a settlement in 2004. The maintenance amount was later increased to Rs 2,000.
In 2007, Jyoti filed an application for enhancement in maintenance to Rs 6,000, claiming that her husband was an accountant with the animal husbandry department in Rajkot drawing a salary of Rs 12,000. To show that she needed more money due to her dire financial status, Joshi claimed that she was living in her aunt Saguna Madhak’s house by paying Rs 2,000 rent. She thus needed more than Rs 2,000 maintenance from the husband.
The husband, on the other hand, complained before the court that his wife was lying on oath. The court ordered an inquiry and found the substance to the husband’s claim. The judge ordered the court registrar to file a complaint against Jyoti for supplying false evidence in court.
In 2014, the trial against Jyoti began. Last month, the court delivered its verdict holding her guilty of telling a lie to the court because it was established that she was not paying any rent to her aunt, because the aunt did not own any property at all.

Friday, January 31, 2020

Unequivocal statements made by counsel will be binding on their clients.

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Unequivocal statements made by counsel will be binding on their clients

The Supreme Court has observed that unequivocal statements made by counsel will be binding on their clients.
In this case, counsel for the landlord made a statement before the High Court that the tenant will be re-­inducted in equal area in the newly constructed building within one month. Before the Apex Court, the issue was whether the landlord is bound by this statement made by the Counsel.
The bench of Justices AM Khanwilkar, Hemant Gupta and Dinesh Maheshwari noted that an unequivocal statement was made by the counsel engaged by the landlord to espouse his cause before the High Court. It also noted that there is no case that he had expressly instructed his counsel not to make such a statement.It said:
The engagement was in respect of eviction proceedings and the statement was in relation to the commitment of the appellant qua the subject matter thereof and being an unequivocal statement, it will be binding on the appellant.
The Court noted that in Himalayan Coop. Group Housing Society vs. vs. Balwan Singh, it was observed that authority-­agency status affords the lawyers to act for the client on the subject matter of the retainer. It noted the following observations from the judgment:
Generally, admissions of fact made by a counsel are binding upon their principals as long as they are unequivocal; where, however, doubt exists as to a purported admission, the court should be wary to accept such admissions until and unless the counsel or the advocate is authorised by his principal to make such admissions
A lawyer generally has no implied or apparent authority to make an admission or statement which would directly surrender or conclude the substantial legal rights of the client unless such an admission or statement is clearly a proper step in accomplishing the purpose for which the lawyer was employed.
We may add that in some cases, lawyers can make decisions without consulting the client. While in others, the decision is reserved for the client. It is often said that the lawyer can make decisions as to tactics without consulting the client, while the client has a right to make decisions that can affect his rights. 

Thursday, January 30, 2020

'Two Finger Test' Unconstitutional As Violative Of Woman's Right To Privacy & Dignity : Gujarat HC

Full Judgment

The Gujarat High Court has held that the "archaic and outdated" practice of two-finger test, conducted to determine the virginity/consent of a rape victim, is unconstitutional.
The court held that the two finger test is violative of the right of the victim to privacy, physical and mental integrity and dignity. 
The court said,
"Our endeavour is to remind the trial Courts as well as the medical fraternity that the "two-finger test" is unconstitutional, as it violates the right of the victim of sexual assault to privacy, physical and mental integrity and dignity. If the trial Court comes across any such medical certificate, wherein, there is a reference of such a test, then it should take cognizance of the same and do the needful in the matter."
As per the bench of Justices JB Pardiwala and Bhargav D. Karia, the two-finger test is in direct conflict with the proviso to Section 146 of the Indian Evidence Act, which stipulates that "in prosecution for rape or attempt to commit rape, it shall not be permissible to put questions in the cross-examination of the prosecutrix as to her general immoral character."
"Despite the aforesaid proviso, the two-finger test leading to the formation of the medical opinion regarding consent allows the past sexual history of the victim to cause prejudice to her testimony.
…The test itself is one of the most unscientific methods of examination used in the context of sexual assault and has no forensic value. Whether a survivor is habituated to sexual intercourse prior to the assault has absolutely no bearing on whether she consented when the rape occurred. Section 155 of the Indian Evidence Act, does not allow a rape victim's credibility to be compromised on the ground that she is "of generally immoral character," the bench remarked.
The observations were made in a "unique acquittal appeal" where the trial Court realized its mistake in calculating the age of the victim at a very late stage. The court had recorded that the victim was above 16 years of age and hence, it went on to determine her consent by way of the two-finger test.
After pronouncing the judgment of acquittal and upon hearing the accused and the prosecution at the point of sentence however, the court realized that the victim was a minor. Therefore, the determination of the victim's consent was immaterial. In such circumstances, the trial Court found itself in a helpless situation as it could not have reviewed its order of erroneous acquittal or illegal acquittal so far as the offence of rape is concerned.
The High Court thus, in a state appeal, corrected the mistake committed by the Trial Court 25 years after the order of acquittal was passed and held the accused guilty of rape. The Court has asked him to personally remain present before it on January 31, when it is likely to sentence him.
Lastly reminding the State of its obligation in view of the International Covenant on Economic, Social, and Cultural Rights 1966 and the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, apart from its statutory and constitutional obligation, the court said,

"the victim of sexual assault are entitled to legal recourse that does not traumatize them or violate their physical or mental integrity and dignity. They are also entitled to medical procedures conducted in a manner that respects their right to consent. Medical procedures should not be carried out in a manner that constitutes cruel, inhuman, or degrading treatment and health should be of paramount consideration while dealing with gender based violence. The State is under an obligation to make such services available to survivors of sexual violence. Proper measures should be taken to ensure their safety and there should be no arbitrary or unlawful interference with their privacy."
In 2013, the Supreme Court had observed in the case Lilu @ Rajesh v State of Haryana and another that the 'two-finger test' will violate the woman's right to privacy and dignity.
In December 2019, the Supreme Court again disapproved the use of this test in sexual offence cases and called for a report from state governments on a query as to whether it has been done away with.

Tuesday, January 28, 2020

DRT has no power to condone the delay

The Supreme Court has held that the Debts Recovery Tribunal has no power to condone the delay in filing application for review under the Recovery of Debts and Bankruptcy Act 1993(RDB Act)
The Court held that the provisions of Limitation Act, including the provision to condone delay under Section 5 of it, apply only to original applications filed under Section 19 of the RDB Act and not to review applications.

A bench comprising Justices R F Nariman and V Ramasubramanian held so in the case Standard Chartered Bank vs MSTC Ltd.
The Court in this case noted that Section 24 of the RDB Act states that the provisions of Limitation Act apply to "an application made to a Tribunal".
Section 2(b) of the Act defines an "application" as an application made under Section 19 of the Act, which is an original application. The application for review is filed not under Section 19 but as per Section 22(2)(e) read with Rule 5A of the Debt Recovery Tribunal (Procedure) Rules, 1993.

Thursday, January 23, 2020

HC refuses to quash FIR against protesters

The Gujarat high court has refused to quash an FIR filed against some protesters of the Citizenship Amendment Act observing that the investigation into “the serious offence” is under way and at a very nascent stage.
The court held the accused have not been able to establish that the HC should use its special powers to quash the FIR in this case.
Four protesters including Amarnath Vasava were arrested in Chhapi town in Banaskantha district of north Gujarat, where the protesters had gathered in large numbers.
The authorities had withdrawn permission to hold the programme at the last moment and detained Vasava and three others from their hotel in the morning of December 19, 2019.
After the protests, police booked people including these four for rioting, unlawful assembly, creating rift between communities and criminal conspiracy.
The protesters approached the HC saying that they had been in police detention at the time the alleged trouble took place. Still they have been implicated in the case. Cops had taken them to the venue at the insistence of the mob.
The HC observed that their submission is attractive, but the cops had to take them to the venue due to demand of the mob, which had already started damaging property.
Two of the accused delivered speeches and shouted slogans, though there was no permission to hold the programme, the HC said.

Acceptance Of Corporate Insolvency Resolution Not A Ground To Quash Case Under Sec 138 NI Act: Madras HC

In a significant ruling, the Madras High Court has held that acceptance of the Corporate Insolvency Resolution Plan under Section 31 of the Insolvency and Bankruptcy Code, 2016 cannot be a ground for quashing the prosecution initiated under Section 138 of the Negotiable Instruments Act, 1881 against the corporate debtor and its socials. "No clause in the Corporate Insolvency Resolution Plan even if accepted by the adjudicating authority/appellate Tribunal can take away the power and jurisdiction of the criminal court to conduct and dispose of the proceedings before it in accordance with the provisions of the Code of Criminal Procedure," a single-Judge bench of Justice GR Swaminathan held.
The observations have been made in an application led under Section 482 of CrPC, seeking to quash Section 138 proceedings as non-est in the eyes of law and to direct the Complainant-Respondent to pursue their remedies under IBC. The Petitioner-company had undergone the Corporate Insolvency Resolution Process under Section 31 of the Code and moratorium in terms of Section 14 of the Code was declared, during the pendency of complaints about the dishonor of cheque.

Wednesday, January 22, 2020

Govt can’t invalidate PAN for lack of Aadhaar linkage: HC

The Gujarat high court said that a person’s Income Tax (I-T) permanent account number (PAN) does not become invalid for filing income tax returns and making transactions just because it is not linked to their Aadhaar card.
The HC said the government cannot make a PAN inoperative or hold the PAN holder to be a defaulter just because their PAN was not linked to their Aadhaar or their Aadhaar number was not quoted till the Supreme Court decides the validity of the Aadhaar Act, which is pending in the form of a reference before a larger bench.
The HC made it clear that until the apex court decides the issue of the Aadhaar Act’s validity as a money bill in Rojer Mathew v/s South Indian Bank Ltd, the government cannot take action against PAN holders for not linking them with their Aadhaar ID, under Section 139AA of the Income Tax Act.
The HC recently passed this order on a petition filed by advocate Bandish Soparkar in 2017, when the central government had issued the diktat mandating linking of PAN with Aadhaar. On March 31, 2019, the central government set a deadline of September 30 for this.

Tuesday, January 21, 2020

Udate on CAA in SC

The Supreme Court on Wednesday granted four-week time to the Centre to reply to the 144-odd petitions challenging the contentious Citizenship (Amendment) Act or CAA. While most of the petitions challenge the constitutional validity of CAA, some of them seek a declaration that the act is constitutional.
The apex court also ordered that high courts should not take up cases on CAA.
As the hearing began, Attorney General KK Venugopal, appearing for the Centre, told the bench led by Chief Justice of India (CJI) Sharad Arvind Bobde that there are 140-odd petitions but only 60 petitions have been served on Union. He sought time to reply to the rest of them.
Lawyer Kapil Sibal, representing a group of petitioners, said that matter should be heard by a Constitution bench. He also urged the court to direct Centre to put the process of granting citizenship on hold for two-three months till the apex court hears the matter. The Supreme Court is likely to send the matter to a constitution bench.
Sibal further said that the National Population (NPR) exercise is scheduled for April and should be postponed through an interim order of the court. Fellow lawyer and Congress leader Abhishek Manu Singhvi, who is also representing the petitioners, also demanded a stay saying, “If the process could wait for 70 years, can it not wait for two more months?”
But Venugopal opposed it saying there should be no interim order without hearing the Centre. The Centre’s top law officer said that seeking the postponement of implementation of the act is the same as seeking a stay of the same. CJI Bobde agreed and said it won’t grant any stay without hearing Centre.
The petitions first came up for a hearing before the top court on December 18, 2019 when the court issued notice to the central government and Venugopal. Only 60-odd petitions had been filed by then.
The Centre had subsequently filed a transfer petition seeking transfer of CAA-related cases from high courts to the Supreme Court.
The change in the citizenship law, which was passed by Parliament on December 12, 2019, amends Section 2 of the Citizenship Act, which defines “illegal migrants”. In this definition, Parliament added a provision that excluded people belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian communities from Afghanistan, Bangladesh or Pakistan, from being counted as undocumented migrants. The only condition was that such people should have entered the country before 31 December 2014.
The exclusion of Muslim community from this special dispensation has led to widespread protests across the country. Critics say this is the first time that a law has linked Indian citizenship to the applicant’s religion. There have also been protests against a proposed all-India National Register of Citizens (NRC) and the potential problems in the two working in combination.
The petitioners challenging the law have submitted that the CAA discriminates on the basis of religion by segregating persons and granting them the benefit of naturalisation, if they belong to a certain religion from three neighbouring countries.
This religious segregation, the petitioners submitted, is without any reasonable differentiation and it is not only violates Article 14, but is also blatantly opposed to the Basic Structure of the Constitution.
Supporters of CAA have argued that the exclusion of Muslims from the three countries is reasonable since Muslims are in a majority in the three countries and are hence not in danger of being persecuted for their faith.