Tuesday, March 17, 2020

False 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."