Monday, May 30, 2022

Professional misconduct of lawyer may also amount to contempt of court: Allahabad High Court

The Allahabad High Court recently issued contempt notices to the office bearers of the Ambedkar Nagar Bar Association for purportedly indulging in frequent strikes. 
"Accordingly, issue notice to newly added respondent Nos. 2 to 4 to show cause through counsel as to why contempt proceedings should not be initiated against them for frequently calling for strikes of the bar association due to which the judicial work of the revenue courts is affected which is amount to willful disobedience of the judgment passed by Hon'ble Supreme Court in the case Ex-Capt. Harish Uppal (Supra), Hussain (Supra), District Bar Association Dehradun (Supra)..."

The Court had found in that order,

"Perusal of the order sheet contained in Annexure No.3 to the petition indicates that the case is being adjourned mostly on the ground of strike of lawyers. Therefore, it would not be appropriate to issue any direction for disposal of case within some time bound period."

Restoration Applications Are To Be Dealt With Liberally, Right To Represent One's Cause Before Court Is A Fundamental Right: Delhi High Court

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The Delhi High Court has observed that the restoration applications are to be dealt with liberally as the right to represent one's cause before a Court is a fundamental right.

Justice C Hari Shankar was dealing with a plea challenging an order passed by the Senior Civil Judge which had dismissed a restoration application filed by the petitioner. 

The petitioner contended, in the restoration application, that on the date when he was absent for the hearing, the proceedings were taken up virtually and that he was unable to join the proceedings. 

The Senior Civil Judge, in passing the impugned order, had proceeded solely on the ground that, as per the dates of physical hearing, notified by High Court, the matter was taken up on physical hearing on 30th October, 2021 when the petitioner was absent.

The Senior Civil Judge had not found the petitioner to be guilty of repeated absence. The application for restoration was dismissed on the sole ground that the matter was listed on 30th October, 2021 for physical hearing and not for virtual hearing.

"In my considered opinion, the learned SCJ could have granted one more opportunity to the petitioner, rather than dismissing the petitioner's application for restoration," the Court said.

It added "It is well settled that restoration applications are to be dealt with liberally, as the right to represent ones' cause before a Court is a fundamental right."

Sunday, May 29, 2022

Order VIII Rule 1A(3) - Refusing To Permit Production Of Additional Documents Even If There Is Some Delay Will Be Denial Of Justice- Supreme Court

Order VIII Rule 1A(3) :
Refusing To Permit Production Of Additional Documents Even If There Is Some Delay Will Be Denial Of Justice: Supreme Court

Code of Civil Procedure, 1908; Order VIII Rule 1A (3) - To deprive a party to the suit not to file documents even if there is some delay will lead to denial of justice - Trial Court should have imposed some costs rather than to decline the production of the documents itself - Rules of procedure are handmaid of justice.
The Supreme Court observed that refusing permission to a party in a civil suit to produce additional documents even if there is some delay will lead to denial of justice.

In such cases, the trial Court can impose some costs rather than decline the production of the documents itself, the bench comprising Justices Hemant Gupta and V. Ramasubramanian observed.

In this case, the Andhra Pradesh High Court affirmed the order passed by the trial Court refusing to permit the defendant to produce additional documents in terms of Order VIII Rule 1A(3) of the Code of Civil Procedure, 1908. The defendant approached the Apex Court.
Order VIII Rule 1A

As per Order VIII Rule 1A, where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set-off or counterclaim, he shall enter such document in a list, and shall produce it in Court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement. The Sub Rule (3) provides that a document which ought to be produced in Court by the defendant under this rule, but, is not so produced shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.

The Apex court bench observed:

We find that the trial Court as well as the High Court have gravely erred in law in not permitting the defendants to produce documents, the relevance of which can be examined by the trial Court on the basis of the evidence to be led, but to deprive a party to the suit not to file documents even if there is some delay will lead to denial of justice... It is well settled that rules of procedure are handmaid of justice and, therefore, even if there is some delay, the trial court should have imposed some costs rather than to decline the production of the documents it

Saturday, May 28, 2022

Husband cannot escape liability to pay maintenance by entering into agreement with wife: Section 125 CRPC: Gauhati High Court

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The Gauhati High Court recently held that right to receive maintenance from the husband under Section 125 of the Code of Criminal Procedure (CrPC) is a statutory right of a wife and the husband cannot escape from his liability by signing an agreement to the contrary.

"The statutory right of a wife of maintenance cannot be bartered, done away with or negatived by the husband by setting up an agreement to the contrary...It has also been held that an agreement by which the wife waived her right to claim maintenance would be a void agreement as against public policy," - single-judge Justice Rumi Kumari Phukan 

Friday, May 27, 2022

Real Estate Appellate Tribunal does not have suo motu powers (RERA): Delhi High Court

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The Real Estate Appellate Tribunal (Appellate Tribunal) does not have powers to initiate cases suo motu, the Delhi High Court recently held while setting aside such proceedings initiated by the tribunal to monitor construction activity in the National Capital Territory.

Single-judge Justice Yashwant Varma held that under the Real Estate (Regulation and Development) Act, 2016 (RERA), the jurisdiction of the Appellate Tribunal stands confined to consideration of challenges raised against orders passed by either the Real Estate Regulatory Authority (Authority) or the Adjudicating Authority under the RERA.

"The Act does not vest or confer any authority or jurisdiction upon the Appellate Tribunal to initiate proceedings on its own motion." 

The Court held that the Appellate Tribunal failed to keep the ambit of the Act in mind.

“The Appellate Tribunal proceeded on the incorrect and unfounded premise that all projects were liable to be compulsorily registered under the Act.” 

“Office of a Lawyer is Not Less Respected than Court of Law”- Allahabad HC Denies Bail to Lawyer Accused of Raping Lady Junior Lawyer

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The Single Judge Bench of Justice Samit Gopal, while rejecting the bail, noted that:

The prosecutrix was junior in the office of the applicant. The allegations are against a person practising law and is a person in uniform involved in a noble profession. The office of a lawyer is not less respected than Courts of law. The act as complained of by her against the applicant is told by her in detail in her statements recorded under Section 161 Cr.P.C. and under Section 164 Cr.P.C. 

The Accused lawyer has been charged under Sections 366, 376, 354-A, 328, 323, 504, 506 I.P.C. As per FIR on 07.04.2021 at 00:32 hours, under Section 366 I.P.C. by Karunapati Patel against the applicant and Sipahi Lal Shukla in connection with an incident alleged to have taken place on 06.04.2021 at 13:30 hours alleging therein that the first informant is a resident of village Kaudru, Police Station Sarai Inayat, District Prayagraj. 

Compliant (father) alleged that his daughter aged about 20 years is an LL.B. student and was practising in the High Court with Rajkaran Patel (the present applicant) who is a resident of Village Sohasha, Police Station Mungra Badshahpur, District Jaunpur who is an Advocate in the High Court. On the day of occurrence at about 1:30 pm from near Alia Law Agency, both the accused persons have enticed away his daughter. The date of birth of his daughter is 15.11.2000. The first information report is thus lodged.

The Court observed that:

“There has been no reason for why the applicant is being falsely implicated. The investigation for other accused persons is pending. The apprehension of learned counsels for the State and of the panel lawyer of the High Court Legal Service Committee of the applicant being in a position to influence the investigation and tamper with the evidence cannot be ruled out at this stage.  

Looking at the facts and circumstances of the case, I do not find it a fit case for bail, hence, the bail application is rejected.”

Wednesday, May 25, 2022

Fake Motor Accident Claims - Bombay High Court denies anticipatory bail to advocate for filing multiple bogus claims-

The Bombay High Court at Aurangabad recently refused to grant anticipatory bail to an advocate involved in filing multiple bogus claims for compensation in motor accident cases -Vijaydatta Patil vs the State of Maharashtra.

an advocate accused of forging the documents for raising bogus claims before the Motor Accident Claims Tribunal seeking compensation.

Single-judge Justice Vibha Kankanwadi observed that the lawyer has defamed the entire legal fraternity by forging documents.

"An Advocate is the officer of the Court. No doubt, he pleads for his client, but he should be honest to the profession, towards Court as well as towards his client. Under such circumstance, for any such professional misconduct he is adopting forged documents or getting certain documents fabricated, then, he is rather defaming the entire fraternity of Advocates." 

"It will not be out of place to mention here that filing of such false cases are increasing. It is only with an intention to get more compensation. Note of such cases has also been taken by the Supreme Court. This court also taking into consideration the increase in such false cases had passed the said order in the Public Interest Litigation," the bench observed.

The insurance company should not be too technical and ask for the documents which the insured is not in a position to produce due to circumstances beyond his control

On March 23-24, 2013, the insured vehicle of the appellant was stolen. A First Information Report (FIR) was immediately lodged and the appellant also informed the insurance company as well as the Regional Transport Office (RTO) regarding the theft of his vehicle.

The appellant also submitted all the documents sought by the insurance company, but the insurance company failed to settle the claim.

Aggrieved, the appellant moved the District Consumer Disputes Redressal Commission (DCDRC), which disposed of the plea directing the appellant to submit a duplicate certified copy of the certificate of registration of the truck to the insurance company within a month.

The insurance company was directed to settle the claim as per the terms and conditions of the insurance policy within a month after receiving the same.

However, RTO denied issuing a duplicate certified copy of the certificate of registration to the appellant on the ground that due to the report of the theft of the truck, the details regarding the registration certificate on the computer were locked.

Thereafter, the appellant submitted an application before the insurance company along with photocopy of the certificate of registration and registration particulars, as provided by the RTO. Despite the above, the claim of the appellant was not settled.

Aggrieved, the appellant had moved the DCDRC which dismissed the complaint by observing that as the appellant had not filed the relevant documents for settlement of the claim, therefore, the non-settlement of the claim cannot be said to be a deficiency in service. The State Commission and the NCDRC also upheld the order of the DCDRC.

The appellant then moved the present appeal before the apex court.

At the outset, the Court noted that the insurance claim of the appellant was not settled mainly on the ground that he had not produced either the original certificate of registration or even the duplicate certified copy of the certificate of registration issued by the RTO. However, the appellant did produce the photocopy of the certificate of registration and other registration particulars as provided by the RTO.

It was observed by the Court that the appellant had tried his best to get the duplicate certified copy of the certificate of registration of the Truck. However, because of the report of theft of the truck, the details of registration on the computer had been locked and the RTO has refused to issue the duplicate certified copy of the registration.

"In the facts and circumstance of the case, when the appellant had produced the photocopy of certificate of registration and the registration particulars as provided by the RTO, solely on the ground that the original certificate of registration (which has been stolen) is not produced, non-settlement of claim can be said to be deficiency in service. Therefore, the appellant has been wrongly denied the insurance claim."

"The appellant has been asked to furnish the documents which were beyond the control of the appellant to procure and furnish. Once, there was a valid insurance on payment of huge sum by way of premium and the Truck was stolen, the insurance company ought not to have become too technical and ought not to have refused to settle the claim on non-­submission of the duplicate certified copy of certificate of registration, which the appellant could not produce due to the circumstances beyond his control," the Court said.

Therefore, the Bench set aside the orders passed by the DCDRC Chhattisgarh, State Commission and the NCDRC and held that the appellant is entitled to the insurance amount of ₹12 lakh along with interest at 7 per cent from the date of submitting the claim.

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Police Should Not Abuse Sex Workers, Media Should Not Publish Their Pictures During Raid & Rescue Operations : Supreme Court Issues Directions

A Bench comprising Justices L. Nageswara Rao, B.R. Gavai and A.S. Bopanna clarified that the directions so passed would hold the field till the time the Union Government comes up with a legislation.

The Apex Court had constituted a Panel for sex workers by its order dated 19.07.2011. There were broadly three aspects that the Panel had identified -

  1. Prevention of trafficking;
  2. Rehabilitation of sex workers who wish to leave sex work; and 
  3. Conditions conducive for sex workers who wish to continue working as sex workers with dignity.

The Bench reiterated that the right to life extends beyond the protection of limb or faculty to include the right to live with human dignity and the bare necessities of life like adequate nutrition, clothing and shelter and also the right to carry on activities that constitute the bare minimum expression of human-self. Acknowledging the right to life with dignity, undoubtedly, extends to sex workers and their children, the Bench directed State Government to act in strict compliance of some of the recommendations made by the Panel, which were also accepted by the Union Government.

The Court has directed the States and Unions to act in strict compliance with the following recommendations made by the panel :

  1. Any sex worker who is a victim of sexual assault should be provided with all facilities available to a survivor of sexual assault, including immediate medical assistance, in accordance with Section 357C of the Code of Criminal Procedure, 1973 read with "Guidelines and Protocols: Medico-legal care for survivor/victims of sexual violence", Ministry of Health and Family Welfare (March, 2014).
  2. The State Governments may be directed to do a survey of all ITPA Protective Homes so that cases of adult women, who are detained against their will can be reviewed and processed for release in a time-bound manner.
  3. It has been noticed that the attitude of the police to sex workers is often brutal and violent. It is as if they are a class whose rights are not recognised. The police and other law enforcement agencies should be sensitised to the rights of sex workers who also enjoy all basic human rights and other rights guaranteed in the Constitution to all citizens. Police should treat all sex workers with dignity and should not abuse them, both verbally and physically, subject them to violence or coerce them into any sexual activity.
  4. The Press Council of India should be urged to issue appropriate guidelines for the media to take utmost care not to reveal the identities of sex workers, during arrest, raid and rescue operations, whether as victims or accused and not to publish or telecast any photos that would result in disclosure of such identities. Besides, the newly introduced Section 354C, IPC which makes voyeurism a criminal offence, should be strictly enforced against electronic media, in order to prohibit telecasting photos of sex workers with their clients in the garb of capturing the rescue operation.
  5. Measures that sex workers employ for their health and safety (e.g., use of condoms, etc.)must neither be construed as offences nor seen as evidence of commission of an offence.
  6. The Central Government and the State Governments, through National Legal Services Authority, State Legal Services Authority and District Legal Services Authority, should carry out workshops for educating the sex workers abut their rights vis-a-vis the legality of sex work, rights and obligations of the police and what is permitted/prohibited under the law. Sex workers can also be informed as to how they can get access to the judicial system to enforce their rights and prevent unnecessary harassment at the hands of traffickers or police.

The bench ordered :

"The State Governments/ UTs are directed to act in strict compliance of the recommendations made in paras 2,4,5,6,7,9(the recommendations mentioned above), in addition to the implementation of the recommendations made by the panel as mentioned above, the competent authorities under the Immoral Traffic (Prevention) Act, 1956 are directed to comply with the provisions of the Act".

The other recommendations of the Panel regarding which the Union Government had expressed reservations are as under - 

  1. Sex workers are entitled to equal protection of the law. Criminal law must apply equally in all cases, on the basis of 'age' and 'consent'. When it is clear that the sex worker is an adult and is participating with consent, the police must refrain from interfering or taking any criminal action. There have been concerns that police view sex workers differently from others. When a sex worker makes a complaint of criminal/sexual/any other type of offence, the police must take it seriously and act in accordance with law.
  2. Whenever there is a raid on any brothel, since voluntary sex work is not illegal and only running the brothel is unlawful, the sex workers concerned should not be arrested or penalised or harassed or victimised.
  3. The Central Government and the State Governments must involve the sex workers and/or their representatives in all decision-making processes, including planning, designing and implementing any policy or programme for the sex workers or formulating any change/reform in the laws relating to sex work. This can be done, either by including them in the decision-making authorities/panel and/or by taking their views on any decision affecting them.
  4. As already recommended in the 6th interim Report dated 22.03.2012, no child of a sex worker should be separated from the mother merely on the ground that she is in the sex trade. Further, if a minor is found living in a brothel or with sex workers, it should not be presumed that he/she has been trafficked. In case the sex worker claims that he/she is her son/daughter, tests can be done to determine if the claim is correct and if so, the minor should not be forcibly separated.

The Bench directed the Union Government to respond to the other recommendations made by the Panel within a period of six weeks.

Monday, May 23, 2022

Chhattisgarh High Court grants divorce to husband on ground of cruelty after wife found to be adulterous

The Chhattisgarh High Court recently granted a decree of divorce on the ground of cruelty under Section 13 (1)(i) of the Hindu Marriage Act to a husband who alleged that his wife was leading an adulterous life.

It was noted that after apparently reconciling their differences and deciding to co-habit with each other after a long hiatus, the couple lived together hardly for 24 days, but the wife was found to be pregnant for over 40 days.

"It is, thus, apparent that after the alleged marriage, she had participated in sexual intercourse with someone else other than her husband, else she could not have carried such a pregnancy. It is true the husband didn't opt for a DNA test and didn't raise the contention in the proceedings filed by his wife seeking maintenance. But, merely on this ground, the material fact cannot be overlooked and it cannot be held that she was not leading an adulterous life, as held by the Family Court," the Bench held.

The judges further noted that the marriage between the couple has irretrievably broken down, and therefore, it is dead for all purposes and cannot be revived. Therefore, the Court granted a decree of divorce to the husband under Section 13 (1)(i) of the Hindu Marriage Act.

The Bench further noted that prior to the couple's 24 days living together, the husband was bed-ridden after suffering a leg fracture.

"Proof beyond a reasonable doubt is not postulated where the human relationship is involved and eyewitnesses are difficult to obtain and thus direct evidence to prove adultery is not possible and has to be inferred from circumstances which exclude any presumption of innocence in favour of the person against whom it is alleged. In view thereof, it is evident that the wife had sexual intercourse with someone else other than her husband and he is, therefore, entitled to a decree for dissolution of marriage on the ground enumerated under Section 13 (1) (i) of the Hindu Marriage Act, 1955," the bench held.

Hindu widow has absolute ownership of property she is being maintained out of: Supreme Court

The Bench of Justices Ajay Rastogi and Bela Trivedi held that Section 14(1) envisages a liberal construction favouring women to promote

"It is by Section 14(1) of the Act of 1956, that the Hindu widow’s limited interest gets automatically enlarged into an absolute right when such property is possessed by her whether acquired before or after the commencement of 1956 Act instead of her right to maintenance," the bench held.

The main question before the apex court was whether the respondent became the complete owner of the suit property instead of her pre-existing right of maintenance and whether such limited ownership right had been
fructified into full ownership by Section 14(1).

Section 14 of the Act states:

14. Property of a female Hindu to be her absolute property.

(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Clause (2) clarifies that such property would include property acquired by a Hindi woman instead of maintenance or arrears of maintenance.

Saturday, May 21, 2022

Private Medical Colleges - Capitation Fee , Management Of Private Medical Colleges Prohibited From Accepting Payment Of Fees In Cash: SC Issues Directions To Curb Capitation Fee Menace

The Supreme Court, in an order passed on 19/05/2022, has prohibited managements of private medical colleges from accepting payment of fees in cash.

This is to avoid charging of capitation fee. The bench comprising Justices L. Nageswara Rao and B R Gavai also agreed to the suggestion for setting up web-portal under the aegis of Supreme Court wherein any information about the private medical colleges charging capitation fees can be furnished by the students.

While fixing fee, the Fee Fixation Committees of the States should take into account all the components of fee, leaving no scope for managements to charge any additional amounts apart from what has been prescribed by the fee fixation committee from time to time, the bench directed.

The court was considering Special Leave Petitions in which orders passed by Fee Fixation Committee for undergraduate medical courses for the academic years 2004-2005, 2005-2006 and 2006-2007 were under challenge. Noticing that in spite of repeated directions to stop the menace of capitation fee, hard reality of charging exorbitant capitation fee was very much prevalent, the court had appointed Senior Advocate Salman Khurshid as Amicus Curiae to make a detailed analysis of the problem and suggest an appropriate mechanism by which the charging of capitation fee can be stalled.

In its order passed today in these petitions while considering the suggestions made by the Amicus Curiae, the bench observed:

In spite of the State Governments enacting legislations prohibiting the practice of charging capitation fee and making it an offence, the stark reality which cannot be ignored is that capitation fee being charged for admission to medical colleges is prevalent even today.

The court also accepted the following suggestions made by the Amicus Curiae and Counsel for the States and National Medical Council and issued following directions: 

(a) A web-portal under the aegis of Supreme Court has to be set-up wherein any information about the private medical colleges charging capitation fees can be furnished by the students. The webportal has to be maintained and regulated by the National Informatics Centre (NIC) under the Ministry of Electronics and Information Technology;

(b) The Chief Secretaries of the States and Union Territories are directed to publish the details about the web-portal in the English as well as vernacular newspapers at the time of admission. In addition, a pamphlet should be compulsorily given to the students and their parents at the time of counselling informing them about the availability of the web-portal;

(c) While fixing the schedule for the admission process, the National Medical Commission and the Dental Council of India have to make sure that the counselling for all the rounds, including the stray vacancy round, is completed at least two weeks before the last date of admission;

(d) The names of students who are recommended by the authority for admission in the stray round vacancy have to be made public along with rank allotted to them in the NEET exam. The admissions should be made strictly on the basis of merit and in the event of any admission to the contrary, suitable action shall be taken against the private medical colleges;

(e) While fixing fee, the Fee Fixation Committees of the States should take into account all the components of fee, leaving no scope for managements to charge any additional amounts apart from what has been prescribed by the fee fixation committee from time to time. In the event that the management intends to charge additional amounts over and above the price band fixed by the Fee Fixation Committee, or for any component not included in the structure fixed by the Fee Fixation Committee, the same can only be done with the concurrence of the Fee Fixation Committee;

(f) The management of private medical colleges are strictly prohibited from accepting payment of fees in cash, in order to avoid charging of capitation fee. The students or any other aggrieved persons are at liberty to report on the web-portal regarding collection of fees in cash by any medical colleges;

(g) The Director General of Health Services and other concerned authorities to the State Governments should ensure that the All-India Quota and State Quota rounds of counselling are completed strictly in accordance with the time schedule that is fixed.

Thursday, May 19, 2022

Supreme Court Enhances Sentence Of Navjot Sidhu To One Year

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The Supreme Court on 19/05/2022 enhanced the sentence of Congress leader and former Indian Cricket team member Navjot Singh Sidhu to one year imprisonment in a 1988 road rage accident in which a 65-year old person named Gurnam Singh had died.

The Court allowed the review petition preferred by the family of victim Gurnam Singh against its 2018 Supreme Court verdict that had reduced the sentence of Navjot Singh Sidhu to Rs 1000 from 3 years imprisonment in the case.

A bench of Justices A. M. Khanwilkar and Sanjay Kishan Kaul pronounced the verdict to allow the review petition on the issue of sentence.

"W e have allowed review application on the issue of sentence. In addition to fine imposed, we impose a sentence of imprisonment of one year to be undergone by respondent 1(Sidhu)", Justice Kaul read out the operative part of the judgment.  

 In May 2018, a division bench comprising Justice J Chelameshwar (since retired) and Justice SK Kaul had held that the offence of Sidhu will not amount to "culpable offence not amounting to murder" punishable under Section 304 Part II of the Indian Penal Code and instead found him guilty for the offence of "voluntarily causing hurt" under Section 323 IPC.

"The material on record leads us to the only possible conclusion that we can reach that the first accused voluntarily caused hurt to Gurnam Singh punishable under Section 323 IPC", said Justice Chelameswar in the Judgment. In 2006, the Punjab and Haryana High Court had convicted him under Section 304-II IPC and sentenced him to 3 years imprisonment. Reversing the High Court's findings, the Supreme Court had held that the cause of death was not certain and hence the punishment for culpabe homicide could not be sustained. It found fault with the High Court for concluding that the cause of death was subdural haemorrhage and not cardiac arrest.

"...the conclusion of the High Court that Gurnam Singh's death is caused by subdural hemorrhage but not cardiac arrest, in our opinion, is not based on any evidence on record and is a pure conjecture. We,therefore, find it difficult to sustain the conviction of the first accused and set­aside the same. Because to find a man guilty of culpable homicide, the basic fact required to be established is that the accused caused the death. But, as noticed above, the medical evidence is absolutely uncertain regarding the cause ofdeath of Gurnam Singh", the judgment authored by Justice Chelameshwar had held.

Challenging the 2018 verdict which reduced Sidhu's punishment, the victim's family filed review petitions.

The incident occurred on December 27, 1988, at a traffic junction in Patiala, when a dispute relating to the right way of vehicles led to Sidhu pulling out the deceased from his vehicle and assualting him with fist blows.

Victim was a 65 year old person

While allowing the review, the Court noted that Sidhu was an international cricketer, who was tall and well built and aware of the force of a blow that even his hand would carry. 

"The blow was not inflicted on a person identically physically placed but a 65 year old person, more than double his age. Respondent No.1 cannot say that he did not know the effect of the blow or plead ignorance on this aspect.It is not as if someone has to remind him of the extent of the injury which could be caused by a blow inflicted by him. In the given circumstances, tempers may have been lost but then the consequences of the loss of temper must be borne", the bench observed.

Tuesday, May 17, 2022

Calcutta High Court quashes criminal case against lawyer who provided incorrect legal advice

The Calcutta High Court recently quashed criminal proceedings against an advocate accused of providing false and improper legal advice that was instrumental in sanction of a bank loan to a now Non-Performing Asset (NPA)-turned company.
The High Court said that this did not lead to the conclusion that the petitioner entered into a criminal conspiracy to submit a false report.

There is no allegation or material in the charge sheet that the petitioner made any wrongful gain from the co-accused persons or he had any pecuniary benefit for preparing a wrong search report in favour of the company.

The act of the petitioner in submitting a wrong report without examining the basic tenets of ownership and possession of the property reveals his want of professional skill for which he may be held negligent, but in absence of tangible material it would not imply that he conspired with the principal accused persons in defrauding the bank.” 

While quashing the proceedings against the petitioner, the Court placed reliance on the Supreme Court decision in Central Bureau of Investigation, Hyderabad v K Narayana Rao, in which it was held that,

Merely because his opinion may not be acceptable, he cannot be mulcted with the criminal prosecution, particularly, in the absence of tangible evidence that he associated with other conspirators. At the most, he may be liable for gross negligence or professional misconduct if it is established by acceptable evidence and cannot be charged for the offence under sections 420 and 109 IPC along with other conspirators without proper and acceptable link between them.”

Supreme Court imposes ₹8 lakh costs on petitioner who challenged ban on 15-year-old petrol, 10-year-old diesel vehicles

The Supreme Court on 16-05-2022 imposed costs of ₹8 lakh on a petitioner who moved the court challenging the ban in Delhi on diesel vehicles older than 10 years and petrol vehicles older than 15 years.

"Two advocates who are practicing in the Supreme Court have entered into this misadventure. We warned them about this. An exemplary cost of ₹8 lacs is imposed on the petitioner. The registry will not entertain any writ petition by the advocate," the Court ordered.

(The Supreme Court had in 2018 -In a major order passed today, the Supreme Court directed that Transport Departments of National Capital Region (NCR) to immediately announce that all Diesel vehicles which are more than 10 years’ old and Petrol vehicles which are more than 15 years’ old shall not ply in NCR.)

Monday, May 16, 2022

Double Insurance - where an entity seeks to cover risks for the same or similar incidents through two different - overlapping policies

The Supreme Court, recently, held that in cases of overlapping insurance policies, when the defined loss of the insured is fully indemnified by one insurer, the second insurer is not liable for the claim towards the same incident.

"A contract of insurance is and always continues to be one for indemnity of the defined loss, no more no less. In the case of specific risks, such as those arising from loss due to fire, etc., the insured cannot profit and take advantage by double insurance."

A Bench comprising Justices UU Lalit, S. Ravindra Bhat and P.S. Narasimha allowed appeal assailing the order of the National Consumer Disputes Redressal Commission (NCDRC), which directed the insurance company to pay Rs. 1.78 crores towards the claim raised by the insured. While opining that the insurance company was not liable to pay, the Apex Court noted that in the present case the issue was that of 'double insurance'/'overlapping policy', wherein the entity seeks coverage of risks of the same or similar incidents from two insurance policies.

Factual Background

United India Insurance Co. Ltd. (insurer) issued a Standard Fire and Special Perils Policy (SFSP Policy) to Levis Strauss (India) Pvt. Ltd. (insured) covering its stock in storage, first for a period of 01.01.2007 to 31.12.2007 and then 01.01.2008 to 31.12.2008. Levis Strauss & Co., the parent company of the insurer obtained a global policy

 (STP Policy) from Allianz Global Corporate & Speciality (Allianz) for the period of 01.05.2008 to 30.04.2009. It covered stocks of all its subsidiaries, including the insurer. Another 'all risks' policy (AR Policy) was issued by Allianz for the period of 01.05.2008 to 01.05.2009 covering stocks of its subsidiaries across the globe. 

On 13.07.2008, fire broke out in one of the warehouses containing the stocks of the insured. On 18.07.2008, the insured claimed Rs. 12.20 crores from the insurer. Subsequently, on 11.09.2009, the insurer repudiated the claim stating that Condition No. 4 of the SFSP Policy, excludes liability for loss payable under marine policy i.e. STP Policy. The insured approached the NCDRC, which allowed its complaint, without deciding whether the STP policy was a marine policy. On perusal of Clause 47 of the STP Policy, it noted that the said policy excludes the extent covered by the domestic policy. It held that though the loss of profit which the insured would have earned on the sale of the damaged stock was payable by Allianz, the loss suffered to the extent of cost of the goods would be payable by the insurer. It allowed the claim to the extent of Rs. 1.78 crores as the insured had received 19.52 crores from Allianz.

STP Policy is a marine policy

Section 4 of the Marine Insurance Act, 1963 postulates that a contract of marine insurance may, by its express terms, or by usage of trade, be extended so as to protect the assured against losses on inland waters or on any land risk which may be incidental to any sea voyage.Referring to a catena of judgments, the Court noted that marine insurance policies in India include warehouse risks, combined with voyage and other marine risks. The STP policy also stipulates that it covers both marine and other risks. Moreover, the Policy describes itself as, 'Open Marine Insurance Contract'. It observed that the policy includes marine perils and is therefore a marine cover. 

As per Condition No. 4 of the SFSP Policy, the insurer was not liable to pay

The Court noted that Condition No. 4 of the SFSP Policy stated that in the event of occurrence of an insurance risk, if the insured was entitled to claim under a marine policy, the insurer cannot be held liable. Relying on Export Credit Guarantee Corporation of India Ltd. v. Garg Sons International (2014) 1 SCC 686; Vikram Greentech India Ltd v New India Assurance Co. (2009) 5 SCC 599; Sikka Papers Ltd v. National Insurance Co (2009) 7 SCC 777; Impact Funding Solutions Ltd. v. Barrington Support Services Ltd. (2016) UKKSC 57, the Court was of the view that the party who wishes to limit its liability must do so in clear words and that the insured cannot claim more than what is covered by the insurance policy. On a strict interpretation of Condition No. 4, the Court held that the insurer had excluded its liability from the risk covered under a marine policy, which in this case was the STP Policy. The Court also noted that there was no statutory or contractual obligation on the insurer to obtain a domestic policy in the conduct of its business and therefore, NCDRC had erroneously applied Clause 47.

Double Insurance

The insured had raised a claim of Rs. 12.2 crores with the insurer. Against the claim of Rs. 12.2 crores, it had already received about Rs. 19 crores from Allianz. Considering the same, the Court observed that a contract of insurance is one for indemnity of defined loss. In case of specific risks the insured cannot profit by double insurance. In this regard Castettion v. Prestton (1833) 11 QBD 380 was referred to, which had held that in case of a loss, the insured would be fully indemnified, but shall never be more than fully indemnified. The Court opined -

"Levi could not have claimed more than what it did, and not in any case, more than what it received from Allianz. Its endeavour to distinguish between the STP Policy and the SFSP Policy, i.e., that the former covered loss of profits, and the latter, the value of manufactured goods, is not borne out on an interpretation of the terms of the two policies. Even the facts here clearly show that Levi received substantial amounts towards the sale price of its damaged goods, over and above the manufacturing costs."

Marine Policy - Section 4 of the Marine Insurance Act, 1963 - A contract of marine insurance may, by its express terms, or by usage of trade, be extended so as to protect the assured against losses on inland waters or on any land risk which may be incidental to any sea voyage - warehouse risks, combined with voyage and other marine risks, are considered as part of marine insurance policies in India(Paragraph 19).

Insurance Law - Exclusion of liability in insurance policies - as a matter of general principle, it is well established that if one party, otherwise liable, wishes to exclude or limit his liability to the other party, he must do so in clear words; and that the contract should be given the meaning it would convey to a reasonable person having all the background knowledge which is reasonably available to the person or class of persons to whom the document is addressed (Paragraph 19).

Insurance Law - Double Insurance - where an entity seeks to cover risks for the same or similar incidents through two different - overlapping policies - two or more insurers must have insured the same assured in respect of the same risk on the same interest in the same subject-matter - once the first insurer has paid a complete indemnity to the assured, the second insurer would be entitled to decline liability - in the case of specific risks, such as those arising from loss due to fire, etc., the insured cannot profit and take advantage by double insurance(Para 46 and 47).

Monday, May 9, 2022

No vicarious liability under Section 141 -Section 138 NI Act - merely because a person was partner at firm which took loan: Supreme Court

The Supreme Court on 09-05-2022 held that criminal liability for cheque bounce cases under Section 138 of the Negotiable Instruments Act (NI Act) cannot be fastened on a person merely because he was a partner at the firm that had taken the loan or that he stood as a guarantor for such a loan.

"Vicarious liability under sub-section (1) to Section 141 of the NI Act can be pinned when the person is in overall control of the day-to-day business of the company or firm. Vicarious liability under sub-section (2) to Section 141 of the NI Act can arise because of the director, manager, secretary, or other officer's personal conduct, functional or transactional role, notwithstanding that the person was not in overall control of the day-to-day business of the company when the offence was committed. Vicarious liability under sub-section (2) is attracted when the offence is committed with the consent, connivance, or is attributable to the neglect on the part of a director, manager, secretary, or other officers of the company." 
"Therefore, unless the company or firm has committed the offence as a principal accused, the persons mentioned in sub-section (1) or (2) would not be liable and convicted as vicariously liable. Section 141 of the NI Act extends vicarious criminal liability to officers associated with the company or firm when one of the twin requirements of Section 141 has been satisfied, which person(s) then, by deeming fiction, is made vicariously liable and punished."

The Supreme Court at the outset noted that it was "an admitted case of the respondent Bank that the appellant had not issued any of the three cheques, which had been dishonoured, in his personal capacity or otherwise as a partner."

In the absence of evidence to establish that the appellant was responsible for the conduct of affairs at the firm towards the issuance of the cheques, the Bench noted that as per the Supreme Court decision in Girdhari Lal Gupta vs DH Mehta and Another, the conviction has to be set aside.

Sunday, May 8, 2022

Malicious prosecution by police - Madhya Pradesh High Court awards ₹42 lakh compensation to ST medical student who spent 13 years in jail

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A Bench of Justices Atul Sreedharan and Sunita Yadav passed the order on finding that the police had carried out the investigation to falsely implicate the appellant accused, and the prosecution had been malicious.

The case reveals a sordid saga of manipulative and preconceived investigation followed by a malicious prosecution, where the police have investigated the case with the sole purpose of falsely implicating the Appellant and perhaps, deliberately protecting a prosecution witness who may have been the actual culprit.

The fundamental right to a fair and unbiased trial was discussed, and in relation to this several cases were examined. A recent order of the Supreme Court in Nambinarayanan v Siby Mathew was considered, where compensation of ₹50 lakh was granted to former ISRO scientist Nambinarayanan, indicted by the Kerala Police and exonerated by the Central Bureau of Investigation.