LAWTELLER GETS INBA's AWARD During the year 2018, the Supreme Court has given many landmark verdicts like law upholding 'live band music', 'cabaret dance' and 'discotheque in restaurants; foreign law firms/lawyers cannot practice in India; medical reimbursement claim cannot be denied merely because the treatment was in non-empanelled hospital of central government; right to life under Art. 21 of the Constitution of India includes right to die with dignity; consent of family or community not necessary once two adult individuals agree to enter into wedlock; right to retire is not supreme than right to life; judges cannot take role of expert in academic matters and legislatures cannot be debarred from practising as advocates. The Supreme Court even in December 2018 held that "death row convicts should be allowed to meet with family, friends, lawyers and mental health professionals for a "reasonable period of time with reasonable frequency" like any other prisoner. The Court said, "prison manuals or laws depriving condemned prisoners of their basic rights should be nixed." Another judgment given is terming the rights of the rising elderly population of the country in an 'emerging situation' not envisaged even in the Constitution. The government also noted that there had been a steady rise in the population of senior citizens in India. It submitted in court that the number of elderly persons had increased from 1.98 crore in 1951 to 7.6 crore in 2001 and 10.38 crore in 2011. It is projected that the number of 60+ in India would increase to 14.3 crore in 2021 and 17.3 crore in 2026. December, 2018 election verdict has suf ficiently demonstrated to those in power, the diminishing return of fanaticism. The loss of 3 states in the Hindi heartland comes as a reality check for the ruling party. Congress has stormed to power in Madhya Pradesh, Chhattisgarh and Rajasthan largely on the back of farmer discontent against government. Farmers across the country are not happy with what has happened to their income and this is increasingly getting reflected in their protests, though the government describes the protests and farmers spilling milk and dumping onion on roads, as political drama; but price policy has its limitation. Lawteller enters into 27th year of publication. Indian National Bar Association in its 7th Annual International Conference held on 26th November, 2018 at New Delhi awarded Lawteller - The Prestigious Legal Magazine of the Year Award. Lawteller wishes its readers a very happy new year 2019! EDITOR
CRIMINAL LAWS
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TO CONSTITUTE OFFENCE UNDER CORRUPTION ACT THERE MUST BE RECEIPT OF GRATIFICATION
HE CASE OF THE PROSECUTION IS THAT PW4 SUMEET Asthana gave Ex.P1-complaint to Vigilance Officer, Indian Airlines, Hyderabad, stating that he had approached the Indian Airlines Office on 20.06.1995 for reservation of a seat in Flight I.C. No. 948 for his travel to Madras on 21.06.1995 but there was a long waiting list and that an employee of the Indian Airlines, whom he does not know, had told him contact Babji (A-1) of M/s Varun Movies at Srinagar Colony, Hyderabad. PW-4 had approached A-1 on 01.06.1995 and A1 told him that there was long waiting list but he can arrange a confirmed ticket and demanded Rs.2,100/- as against the actual fair of Rs. 1646/-. On receipt of the said complaint PW-1, the Manager, Vigilance, Indian Airlines, Hyderabad, gave report Ex.P-2 to the Superintendent of Police, CBI Hyderabad stating that A-1 and A-2 are cheating the public. Based on the evidence of PW -4 and PW-2 who accompanied PW-4, the Trial Court has convicted the appellant under Section 8 of the Prevention of Corruption Act (for short the 'Act') which was confirmed by the High Court. Against the judgement of the High Court special leave petition was filed. The Supreme Court accepted the appeal and acquitted the appellant.
The operative part of the judgment reads as under:In order to establish the offence under Section 8 of the Prevention of Corruption Act it must be proved: (i) That the accused accepted or obtained, or agreed to accept, or attempted to obtain, from someone; (ii) For himself or for some other person; (ii) Any gratification whatever; 4
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(iv) As a motive or reward for inducing by corrupt or illegal means any 'public servant' to do or forbear to do any official act or to show favour or render any service to any of the persons specified in the section. TTTTTTT
In order to constitute an offence under Section 8 of the Act, three things are essential. In the first place there must have been the solicitation or receipt of the gratification. Secondly, such gratification must have been asked for or paid as a motive or reward for inducing a public servant to do an act or do a favour or render some service as stated under Section 8 of the Act. In the present case, the evidence adduced by the prosecution is vague for whom the appellant had demanded the money and whether the person for whom the appellant demanded and received the money is a public servant. Though the receiver of the money, like in the present case may not be a public servant, the prosecution has to establish by convincing evidence that the amount must have been received for inducing a public servant for doing something by that public servant in his official capacity . So far as confirmation of the seat in the Indian Airlines, there may be persons in the middle who may be a public servant or a travel agency or others. In the absence of convincing evidence to show that the appellant had received the money from PW-4, to induce a public servant to get the confirmation of the ticket, the conviction of the appellant under Section 8 of the PC Act cannot be sustained. In the result the appeal is allowed and the appellant is acquitted. TTTTTTT
Reference : Supreme Court. Babji v. State of Andhra Pradesh, criminal appeal no. 2159 of 2009. ————— www.lawteller.com
FUNDAMENTAL RIGHT
PUBLIC LAW REMEDY REQUIRES GRANT OF COMPENSATION IN CASE OF UNNECESSARY ARREST
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HE APPELLANT, A SEPTUAGENARIAN, A FORMER SCIENTIST OF the Indian Space Research Organisation (ISRO), has assailed the judgment and order passed by the Division Bench of the High Court of Kerala whereby it has overturned the decision of the learned single Judge who had lancinated the order of the State Government declining to take appropriate action against the police officers on the grounds of delay and further remitted the matter to the Government. To say the least, the delineation by the Division Bench is too simplistic. The exposĂŠ of facts very succinctly put is that on 20.01.1994, Crime No.225/94 was registered at Vanchiyoor Police S tation against one Mariam Rasheeda, a Maldivian National, under Section 14 of the Foreigners Act, 1946 and paragraph 7 of the Foreigners Order. The investigation of the case was conducted by one S. Vijayan, the respondent no. 6 herein, who was the then Inspector , Special Branch, Thiruvananthapuram. Mariam Rasheeda was arrested and sent to judicial custody on 21.10.1994. Her custody was obtained by the Police on 03.11.1994 and she was interrogated by Kerala Police and Intelligence Bureau (IB) officials. Allegedly, during interrogation, she made certain 'confessions' which led to the registration of Crime No. 246/1994, Vanchiyoor Police Station on 13.11.1994 under Sections 3 and 4 of the Indian Official Secrets Acts, 1923, alleging that certain official secrets and documents of Indian Space Research Organisation (ISRO) had been leaked out by scientists of ISRO. Another Maldivian National Fousiya Hasan along www.lawteller.com
with Mariam Rasheeda was arrested in Crime No. 246/1994. On 15.11.1994, investigation of both the cases was taken over by the Special Investigation Team (SIT) headed by one Mr . Siby Mathews, respondent no. 1 herein, who was the then D.I.G . Crime of Kerala Police. On 21.11.1994, Sri D. Sasikumaran, a scientist at ISRO, was arrested and on 30.11.1994, S. Nambi Narayanan, the appellant herein, was arrested along with two other persons. Later, on 04.12.1994, consequent to the request of the Government of Kerala and the decision of the Government of India, the investigation was transferred to the Central Bureau of Investigation (CBI), the respondent no. 4 herein. After the investigation, the CBI submitted a report before the Chief Judicial Magistrate (CJM), Ernakulam, under Section 173(2) of Cr .P.C. stating that the evidence collected indicated that the allegations of espionage against the scientists at ISRO, including the appellant herein, were not proved and were found to be false. This report was accepted vide court's order dated 02.05.1996 and all the accused were discharged. That apart, in the said report, addressed to the Chief Secretary, Government of Kerala, the CBI, the respondent no. 4 herein, had categorically mentioned: "Notwithstanding the denial of the accused persons of their complicity , meticulous, sustain and painstaking investigations were launched by the CBI and every bit of information allegedly given by the accused in their earlier statement to Kerala Police/ IB about the places of meetings for purposes of espionage activities, the January 2019
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FUNDAMENTAL RIGHT possibility of passing on the drawing/ documents of various technologies, receipt of money as a consideration thereof etc., were gone into, but none of the information could be substantiated." The CBI in its report, as regards the role of the respondent no.1 herein, went on to state: "I, Sh. Siby Mathew was heading the Special Investigation Team and was, therefore, fully responsible for the conduct of investigation in the aforesaid two cases. Investigation conducted by the CBI has revealed that he did not take adequate steps either in regard to the thorough interrogations of the accused persons by Kerala Police or the verification of the so called disclosure made by the accused persons. In fact, he left the entire investigation to IB surrendering his duties. He ordered indiscriminate arrest of the ISRO scientist and others without adequate evidence being on record. It stressed that neither Sh. Siby Mathew and his team recovered any incriminating ISRO documents from the accused persons nor any monies alleged to have been paid to the accused persons by their foreign masters. It was unprofessional on his part to have ordered indiscriminate arrest to top ISRO scientists who played a key role in successful launching of satellite in the space and thereby caused avoidable mental and physical agony to them. It is surprising that he did not take any steps at his own level to conduct investigation on the points suggested by him. Since Sh. Mathew was based at Trivandrum, there was no justification for not having the searches conducted in the officials' residential premises of the accused Nambi Narayanan was arrested by the Kerala Police on 6
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30.11.1994. Vi. Shri Siby Mathew and his team miserably failed even in conducting verification of the records of Hotels viz., Hotel foret Manor , Hotel Pankaj, Hotel Luciya, etc., which were located at Trivandrum to ascertain the veracity of the statement of accused persons‌. The above facts are being brought to the notice of the competent authority for their kind consideration and for such action as deemed fit. On 27.06.1996, the State Government of Kerala, being dissatisfied with the CBI report, issued a notification withdrawing the earlier notification issued to entrust the matter to CBI and decided to conduct re-investigation of the case by the State Police. This notification for re-investigation was challenged by the appellant herein, before the High Court of Kerala, in O.P. No. 14248/1996-U but the notification was upheld by the High Court of Kerala vide order dated 27.11.1996. Against the order of the Division Bench special leave petition was filed. The Supreme Court accepted the appeal to the extent that a Committee should be constituted to take appropriate steps against the erring officials for the said purpose. The court constitute a Committee which shall be headed by former Judge of Supreme Court. The Central Government and the State Government were directed to nominate one officer so that apposite action can be taken. The Committee shall be provided with all logistical facilities for the conduct of its business including the secretarial staff by the Central Government.
The operative part of the judgment reads as under:As stated earlier, the entire prosecution initiated by the State police was malicious and it has caused www.lawteller.com
FUNDAMENTAL RIGHT tremendous harassment and immeasurable anguish to the appellant. It is not a case where the accused is kept under custody and, eventually , after trial, he is found not guilty. The State police was dealing with an extremely sensitive case and after arresting the appellant and some others, the State, on its own, transferred the case to the Central Bureau of Investigation. After comprehensive enquiry, the closure report was filed. An argument has been advanced by the learned counsel for the State of Kerala as well as by the other respondents that the fault should be found with the CBI but not with the State police, for it had transferred the case to the CBI. The said submission is to be noted only to be rejected. The criminal law was set in motion without any basis. It was initiated, if one is allowed to say , on some kind of fancy or notion. The liberty and dignity of the appellant which are basic to his human rights were jeopardized as he was taken into custody and, eventually, despite all the glor y of the past, he was compelled to face cynical abhorrence. This situation invites the public law remedy for grant of compensation for violation of the fundamental right envisaged under Article 21 of the Constitution. In such a situation, it springs to life with immediacy. It is because life commands selfrespect and dignity. TTTTTTT
In the instant case, keeping in view the report of the CBI and the judgment rendered by this Court in K. Chandrasekhar (supra), suitable compensation has to be awarded, without any trace of doubt, to compensate the suffering, anxiety and the treatment by which the quintessence of life and liberty under Article 21 of the Constitution withers away. TTTTTTT
There has been some argument that there has been no complaint with regard to custodial torture. When www.lawteller.com
such an argument is advanced, the concept of torture is viewed from a narrow perspective. What really matters is what has been stated in D.K. Basu v. State of W.B. [(1997) 1 SCC 416]. Emphasis has been laid on mental agony when a person is confined within the four walls of a police station or lock up. There may not be infliction of physical pain but definitely there is mental torment. TTTTTTT
Reputation of an individual is an insegregable facet of his right to life with dignity. Fundamental right of the appellant under Article 21 has been gravely affected. TTTTTTT
Appellant, a successful scientist having national reputation, has been compelled to undergo immense humiliation. The lackadaisical attitude of the State police to arrest anyone and put him in police custody has made the appellant to suffer the ignominy. The dignity of a person gets shocked when psycho-pathological treatment is meted out to him. A human being cries for justice when he feels that the insensible act has crucified his self-respect. That warrants grant of compensation under the public law remedy. TTTTTTT
We think it appr opriate to direct the State of Kerala to pay a sum of Rs. 50 lakhs towards compensation to the appellant and, accordingly, it is so ordered. The said amount shall be paid within eight weeks by the State. TTTTTTT
Authorities relied upon : 217 Ala. 16 (Ala. 1927). Reference : Supreme Court. S. Nambi Narayanan v. Siby Mathews & Others Etc., civil appeal nos. 66376638 of 2018. ————— January 2019
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CRIMINAL LAWS
HIGH COURT FAILED TO APPRECIATE CRUCIAL FACTORS, ORDER GRANTING BAIL SET ASIDE
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HE CASE OF THE PROSECUTION IN BRIEF, AS SEEN FROM THE first information report and the other connected material, is that on 26.10.2016 at about 09:00 a.m. while the deceased Mahendra Swain was heading to his office in his vehicle accompanied by the driver and his security guard, two unknown assailants hurled bombs on the vehicle, and when the inmates of the vehicle tried to escape, they opened indiscriminate firing on the deceased, leading to his death. According to the first information, the murder was committed at the behest of certain people including the respondent herein namely Mahimananda Mishra. The incident was mainly on account of business rivalry between the company of the deceased and the company of the respondent. The deceased was the Branch Manager of Seaways Shipping and Logistics Limited, Paradeep Branch. The respondent-accused is having a company, by name, Orissa Stevedores Limited. It has been alleged that the respondent had given death threats to the deceased directly and through the brother of the deceased. During the course of investigation, the police found that the respondent went away to Thailand travelling via Chennai, Delhi and Nepal, before he could be arrested. Only after a Look Out Circular was issued, he was traced to Thailand and was deported therefrom to India, after which he was arrested. During the course of investigation, the police have recovered certain weapons as well as the motorcycle used for commission of the murder. According to the State, the investigation records so far, prima facie, reveal that the respondent had paid certain amount of money as advance amount for commission of the murder. The State also relies upon a letter written by the deceased to the Inspector, Paradeep Police Station, stating that he fears for his life and the life of his family, inasmuch as the respondent may make an 8
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attempt to take their life. According to the State, the said letter may be treated as a dying declaration of the deceased. The police have filed a charge sheet against the respondent and others. However, four accused are absconding. Further investigation is being proceeded with with the permission of the Court. The State took the plea that the respondent is the kingpin of the conspiracy to murder the deceased and the murder has taken place as per his directions and plan. The preliminary charge sheet was filed for the offences punishable under Sections 302 and 120B of the Indian Penal Code, read with Sections 25(1)(B) and 27 of the Arms Act, as also under Sections 3 and 4 of the Explosive Substances Act. They further brought to the notice of the Court that the respondent, being a powerful and rich person, may go to any extent to influence the witnesses by intimidating them. The very fact that he discreetly went outside India to avoid arrest would, prima facie, reveal that he is a person who can take the law into his hands. He may even abscond in the future, which may delay the process of justice. According to them, the witnesses are already frightened and consequently may not go before the Court to depose against the accused, in which event justice may suffer. Per contra, Shri Ranjit Kumar, learned Senior Advocate appearing on behalf of the accused argued in support of the judgment of the High Court. He contended that though the respondent was released on bail in May 2018, absolutely no allegations are forthcoming by the police that the respondent has since tried to tamper with the evidence by intimidating the witnesses. There is also no allegation of abscondence against the respondent. Merely on apprehension of the police, without any prima facie proof, the liberty of the respondent cannot be curtailed. He further submitted www.lawteller.com
CRIMINAL LAWS that any additional condition may be imposed on the respondent by the Supreme Court. It is brought to the notice of the Court by the learned Advocate for the State that though the impugned judgment of the High Court of Orissa granting the order of bail in favour of the respondent was passed as far back as 16.05.2017, the respondent was actually released from custody with effect from May 2018, inasmuch as he was in custody in two other cases till then. The High Court proceeded to grant bail to the respondent on the ground that there is no prima facie material against the respondent to establish his involvement in the conspiracy to murder the deceased, that the undated letter of the deceased addressed to the police showing apprehension to his life cannot be treated as a dying declaration; the material on record does not indicate any motive on the part of the respondent to conspire towards the commission of murder in question, and that the confessions of the co-accused cannot be made used of against the respondent at this stage, inasmuch as they are admissible only to the extent that they lead to recoveries under Section 27 of the Indian EvidenceAct. The Supreme Court accepted the appeals, the impugned judgement of the High Court granting bail was set aside.
The operative part of the judgment reads as under:High Court was not justified in going into the evidence on record in such a depth which amounts to
ascertaining the probability of the conviction of the accused. On the other hand, the High Court has failed to appreciate several crucial factors that indicate that it was highly inappropriate to grant bail in favour of the respondent. TTTTTTT
Since the respondent is an influential person in his locality, in terms of both money and muscle power, there is a reasonable apprehension that he might tamper with or otherwise adversely influence the investigation, which is still going on qua some of the co-accused in the case, or that he might intimidate witnesses before or during the trial. The High Court in observing that there was no possibility of the respondent's absconding in light of his being a local businessman, not only completely overlooked his past attempt to evade the pr ocess of law , but also overlooked the implications of the clout enjoyed by him in the community. TTTTTTT
Having regard to the totality of the facts and circumstances of the case and for the reasons mentioned supra, the impugned judgment of the High Court granting an order of bail in favour of the respondent herein is liable to be set aside. Accordingly, the same is hereby set aside. TTTTTTT
Authorities relied upon : 2018 (12) SCC 129. Reference : Supreme Court. The State of Orissa v. Mahimananda Mishra, criminal appeal no. 1175 of 2018 [arising from SLP (Criminal) No. 5440/2017]. —————
Don't try to instruct your lawyer. If you do, you've got the wrong lawyer. —JOHN T. NOLAN
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PROPERTY LAWS
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NO CLEAR AVERMENTS AS TO ENCROACHMENT, SUIT DISMISSED
AVINDER KAUR (THE RESPONDENTSPLAINTIFF) HAS purchased the suit property admeasuring an extent of 852-1/3 sq. yards by a sale deed dated 6th September, 1978. Alleging that the appellantdefendant has taken forcible possession of the suit property , the respondents-plaintiff has filed the suit for declaration and possession. The trial court decreed the suit in favour of the respondents-plaintiff holding that the vendor of the plaintiff had appeared and testified about sale deed dated 6th September, 1978 that physical possession of the property covered under the sale deed was delivered to them.
852-1/3 sq. yards. As pointed out by the First Appellate Court that after the local inspection of the suit property the Local Commissioner in his Report, Ex.D1/K, has observed that the respondents-plaintiff is in possession of 955 sq. yards of the land though she (Ravinder Kaur) actually purchased 852 sq. yards only and the said Report was not challenged by the respondents-plaintiff. As pointed out by the First Appellate Court when the Local Commissioner's report was not challenged by the plaintiff, the oral testimony of Sajjan Singh (PW-2), vendor of the plaintiff, and her husband, Ripudaman Singh (PW- 1), Being aggrieved, the appellant herein filed appeal before the does not substantiate the claim of the plaintiff that the Appellate Court which was allowed. After referring to the appellants have encroached upon the suit property. The Report of the Local Commissioner that the respondents- claim of the respondents-plaintiff that the appellant has plaintiff is in actual possession of 955 sq. yards as against encroached upon the property and took forcible possession under the garb of temporary injunction in the 852-1/3 sq. yards purchased by them and that the consolidation records are missing and also that there was earlier suit remains unsubstantiated. Further there are no no pucca burji, the First Appellate Court reversed the clear averments as to the alleged date of encroachment and the steps then taken by the respondents-plaintiff. In judgment of the trial court thereby dismissing the respondents-plaintiff's suit. In the second appeal, the High our considered view the High Court has not considered Court has reversed the judgment of the First Appellate Court the findings recorded by the First Appellate Court which and held that the Local Commissioner has not verified the is based upon the appreciation of the evidence and Report available map with the Patwari and that based on the Local of the Local Commissioner. TTTTTTT Commissioner's Report, the FirstAppellate Court ought not That apart in the second appeal, no question of law to have reversed the judgment and decree of the trial court. Against the judgement of the High Court special leave much less substantial question of law arose and the petition was filed. The Supreme Court accepted the appeal, substantial question of law framed by the High Court the judgement of the FirstAppellate court was restored and is not a substantial question of law but purely a resultantly the suit of the respondents-plaintiff was question of fact in dispute between the parties. The impugned order of the High Court in Regular Second dismissed. Appeal No.859 of 1988 is not sustainable and is he operative part of the judgment reads as under:accordingly set aside. As seen from the sale deed filed (Annexure CA-1 of the TTTTTTT paper book), the respondents-plaintiff has purchased the Reference : Supreme Court. Kalyan Singh v. Ravinder property, an extent of 852-1/3 sq. yards in Khasra No.316/ Kaur (D) Thr. Lrs., civil appeal no. 9332 of 2018 [arising 1. As per the evidence of the respondents-plaintiff-vendor, out of SLP (C) No. 34460 of 2016]. the respondents-plaintiff was put in physical possession ————— on the land covered under the sale deed viz. an extent of
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SERVICE & LABOUR LAWS
WHETHER BACK WAGES CAN BE CLAIMED AS A MATTER OF RIGHT, HELD NO
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HE SHORT QUESTION, WHICH ARISES FOR CONSIDERATION IN this appeal, is whether the Courts below, namely, the High Court and the Labour Court were justified in awarding full back wages to the 37 workmen represented by Workmen Union after setting aside their dismissal order holding it to be bad in law being in contravention of Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as "I.D. Act") and, in consequence, directing reinstatement of these workmen in services of the appellant in their Public Health and Engineering Department (PHED). The Management of Regional Chief Engineer P.H.E.D. Ranchi (the appellant) is the Department of the State of Jharkhand [Public Health and Engineering Department (PHED)] whereas the respondent is the Workmen Union representing the interest of the workmen working in the Public Health and Engineering Department (PHED). The State made a reference under Section 10 of the I.D. Act to the Labour Court, Ranchi at the instance of the respondent-Union to decide the following dispute: "Whether the dismissal and non absorption of 37 acting daily wages Hastrashid employees as mentioned in schedule "K" in work charged establishment by Public Health Engg. Division, East Ranchi (Department of PHED, Jharkhand) is lawful. If not, what other reliefs their employees are entitled to?" By award dated 29.06.2005, the Labour Court (Annex.P1) answered the reference in respondent-Union's favour and directed re-instatement of 37 workmen with payment of full back wages in Reference Case No.6 of 2002. The appellant (employer), felt aggrieved by the award www.lawteller.com
of the Labour Court, filed writ petition in the High Court of Jharkhand. The Single Judge of the High Court, by order dated 08.07.2008, dismissed the writ petition filed by the appellant and affirmed the award passed by the Labour Court. Being aggrieved by the order of the Single Judge, the appellant filed intra court appeal. By impugned order, the Division Bench of the High Court dismissed the appeal and upheld the order of the Single Judge, which gave rise to filing of this appeal by way of special leave by the appellant-employer in Supreme Court. Against the judgement of the Division Bench the Management filed special leave petition. The Supreme Court did not concur with directions of the courts below awarding full back wages to the workman which in their opinion, has certainly caused prejudice to the appellant/employer. The Supreme Court thus considered it just and proper and in the interest of justice to award to these 37 workmen 50% of the total back wages. The appeal thus succeeds in part, impugned order was modified to the extent indicated above.
The operative part of the judgment reads as under:-
A workman has no right to claim back wages from his employer as of right only because the Court has set aside his dismissal order in his favour and directed his reinstatement in service. TTTTTTT
It is necessary for the workman in such cases to plead and prove with the aid of evidence that after his dismissal from the service, he was not gainfully employed anywhere and had no earning to maintain himself or/and his family. The employer is also entitled to prove it otherwise against the employee, namely, that the employee was gainfully employed during the relevant period and hence not entitled to claim any January 2019
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SERVICE & LABOUR LAWS back wages. Initial bur den is, however, on the employee.
award of the back wages enabling the Court to award the back wages.
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We find that neither the Labour Cour t and nor the High Court kept in consideration the aforesaid principles of law . Similarly , no par ty to the proceedings either pleaded or adduced any evidence to prove the material facts required for
Reference : Supreme Court. The Management of Regional Chief Engineer P.H.E.D. Ranchi v. Their Workmen Rep. by District Secretary, civil appeal no. 9832 of 2018 [arising out of SLP (C) No. 25965 of 2018]. —————
GLOBAL GLIMPSE SINGAPORE SC ALLOWS GAY MAN TO ADOPT BIOLOGICAL SON Singapore's Supreme Court allowed a gay man to adopt his biological son. The son was conceived through a surrogate mother and born in the US. The man paid the surrogate mother USD $200,000 to carry and deliver the baby after learning that he and his partner would not be allowed to adopt in Singapore due to their sexual orientation. In its ruling, the court found that the child's adoption "would be for the welfare of the Child" as required by their adoption laws. The court also addressed the public policy considerations, establishing "a two-step analytical framework for taking public policy into account in a case such as the present." First, the court determined whether the relevant public policies existed. Second, the court employed a balancing exercise "in which the court considers the weight to be given to the value underlying the claimed right and to the countervailing public policy consideration, and then reasons towards an outcome" with proper balance. In the end, the court balanced "the concern to protect the welfare of the Child" with "the concern not to violate the public policy against the formation of same-sex family units." The court reasoned that the welfare of the child "would be significantly advanced by" approving the adoption order and that this outweighed "the public policy against the formation of same-sex family units".
NEW ZEALAND PASSES NEW MEDICAL CANNABIS LAW The government of New Zealand passed a law that removes many restrictions on medical cannabis. While it will take up to a year for the new regulations and licensing policies established by the Misuse of Drugs (Medicinal Cannabis) Amendment Bill to be rolled out, the law also establishes an exception and statutory defense for people who are terminally ill to possess and use cannabis that will take ef fect immediately. Additionally, the law fully decriminalizes cannabidiol (CBD) products, allows medical marijuana products to be manufactured in New Zealand and empowers the Governor-General to establish regulatory standards for cannabis products. According to the Health Committee Report, commenters overwhelmingly supported permitting terminally ill patients access to cannabis products, with 96 percent of them in support of the implementation of quality standards. Such regulations could pave the way for local and international companies to enter the New Zealand medical cannabis market. The national government is expected to hold a referendum on recreational marijuana in the next two years. 12
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CRIMINAL LAWS
DEFAULT SENTENCE CANNOT RUN CONCURRENTLY WITH A SUBSTANTIVE SENTENCE
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HIS APPEAL CHALLENGES THE DECISION DATED 17.12.2013 passed by the High Court of Bombay in Criminal Appeal No.906 of 2006 affirming the conviction and sentence of the appellant (original accused No.6) for offences punishable under the Indian Penal Code (IPC, for short) as well as the Maharashtra Control of Organised Crime Act, 1999 (hereinafter referred to as the MCOC Act). Since the emphasis in the present appeal was placed on the nature of default sentences passed against the appellant, we confine ourselves to bare outline of facts. The appellant along with other co-accused was tried and convicted by the Special Judge [the MCOC Act] Thane in M.C.O.C. Special Case No.3 of 2002 vide judgment dated 20.10.2005. The relevant portion of the order of sentence passed by the Special Judge reads as under: "Accused Nos.1 to 6 namely, Sanjay Kisan Mohite, Sudish Maniken, Maniken Nair , Pramod Shankar Jadhav, Santosh Manohar Deshmukh, Chandrakant Balkrishna Shegde and Sharad Hiru Kolambe are convicted for offence punishable under Section 364A of Indian Penal Code read with Section 34 of the Indian Penal Code and sentenced to suffer life imprisonment and to pay fine of Rs.1,000/ - each. In default to suffer imprisonment for three months. The accused Nos.1 to 6 are convicted for offence punishable under Section 395 of Indian Penal Code and sentenced to suffer imprisonment for seven years and to pay fine of Rs.1,000/- each. In default, to suffer imprisonment for three months. The accused Nos.1 to 6 are convicted for offence punishable under Section 397 of Indian Penal Code and sentenced to suffer www.lawteller.com
imprisonment for seven years and to pay fine of Rs.1,000/- each. In default, to suffer imprisonment for three months. The accused Nos.1 to 6 are convicted for offence punishable under Section 387 of Indian Penal code read with Section 34 of the Indian Penal Code and sentenced to suffer imprisonment for five years and to pay fine of Rs.1,000/- each. In default, to suffer imprisonment for three months. The accused Nos.1 to 6 are convicted for offence punishable under Section 342 of Indian Penal Code read with Section 34 of the Indian Penal code and sentenced to suffer imprisonment for one year. The accused Nos.1 to 6 are convicted for offence punishable under Section 3(1)(ii) of Maharashtra Control of Organised Crime Act and sentenced to suffer imprisonment for ten years and to pay fine of Rs.5,00,000/- (Rupees Five lacs) each. In default, to suffer imprisonment for three years. The accused Nos.1 to 6 are convicted for offence punishable under Section 3(2) of Maharashtra Control of Organised Crime Act and sentenced to suffer imprisonment for ten years and to pay fine of Rs.5,00,000/- (Rupees Five Lacs) each. In default, to suffer imprisonment for three years. The accused Nos.1 to 6 are convicted for offence punishable under Section 3(4) of Maharashtra Control of Organised Crime Act and sentenced to suffer imprisonment for ten years and to pay fine of Rs.5,00,000/- (Rupees Five Lacs) each. In default, to suffer imprisonment for three years. All the sentences shall run concurrently. January 2019
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CRIMINAL LAWS The accused persons are entitled for set off under Section 428 of the Criminal P.C. for pretrial detention period. Accused No.7 Avinash Shrikrishna Dugad and accused No.8 Tanaji Nanu Birade are acquitted of all the offences. Their bail bonds stand cancelled." The decision so rendered by the Special Judge was questioned by all the convicted accused by filing criminal appeals in the High Court of Bombay. The High Court by its judgment and order under appeal set aside the conviction and sentence of original accused No.5. It, however, dismissed all the other appeals. The conviction and sentence in so far as the appellant is concerned thus stood affirmed. It may be mentioned that the appellant was arrested on 26.08.2001 and was never released during the trial as well as during the pendency of the appeal. He thus completed 14 years of actual sentence on 25.08.2015. By order dated 04.03.2017 passed by the Government of Maharashtra in exercise of powers conferred under Sections 432 and 433 of Criminal Procedure Code (hereinafter referred to as the Code), the appellant was directed to be released on completion of 14 years of actual sentence. However, since the appellant has not paid the amount of fine as directed, he is presently undergoing the sentence in default as awarded by the Courts below. It must further be mentioned that on 03.06.2017, the District Probation Officer, District Women and Child Welfare Department, Raigad, Alibaug submitted a Home Inquiry Report wherein it was noted that the appellant's family was in a state of starvation. In the aforesaid factual context, Mr. Colin Gonsalves, learned Senior Counsel appearing for the appellant advanced following submissions: a. The cumulative fine imposed upon the appellant under various counts of punishment was Rs.15,04,000/- and the default sentence in case of non-payment was 14
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cumulatively 10 years. For a person whose family was reduced to a state of starvation, it was impossible to deposit payment of fine as directed. Resultantly, the appellant would have to suffer default sentence of 10 years. Though the substantive sentence stood remitted and the appellant was directed to be released on completion of 14 years of actual sentence, the appellant would still be inside till he completes 24 years. b. Since the trial court had directed "all sentences shall run concurrently", all default sentences must also run concurrently inter se. Thus the maximum default sentence would be 3 years and not 10 years. c. In the present case the default sentences so directed would be unconscionable and excessive. He thus submitted that either default sentences be directed to run concurrently or the default sentences be reduced to the one already undergone and the appellant be set at liberty. The learned Senior Counsel relied on the decisions of the Supreme Court rendered in Palaniappa Gounder v. State of Tamil Nadu and Others [1977 (2) SCC 634], Shantilal v. State of M.P. [(2007) 12 SCC 243] and Shahejadkhan Mahebubkhan Pathan v. State of Gujarat [(2013) 1 SCC 570] in which the Supreme Court after considering the standing of the person, nature of crime and the financial capacity had reduced the quantum of default sentence. Mr. Nishant R. Katneshwarkar , learned Counsel appearing for State of Maharashtra however relied upon certain observations made by the Supreme Court in V.K. Bansal v. State of Haryana and Another [(2013) 7 SCC 211] and a decision of the Full Bench of Madras High Court in case of Donatus Tony Ikwanusi v. The Investigating Officer, NCB [2013 (1) MWN (Cr.) 175 (FB)] to submit that default sentences for nonpayment of fine could not be ordered to run concurrently. The learned Counsel however fairly submitted that www.lawteller.com
CRIMINAL LAWS considering the financial capacity of the appellant, the quantum of default sentences under each of the counts could certainly be reduced as the Supreme Court may deem appropriate.
to the substantive sentence to which an offender may have been sentenced or to which he may be liable under commutation of a sentence.
In the circumstances, the Supreme Court rejected the submission regarding concurrent running of default sentences, as in the considered view default sentences, inter se, cannot be directed to run concurrently.
The reading of Section 31 makes it clear that unless the Court directs that punishments for such two or more offences at same trial should run concurrently, the normal principle is that the punishments would commence one after the expiration of the other. The provision thus gives discretion to the Court to direct running of such punishments either concurrently or consecutively. Similar discretion is available in Section 427 which deals with cases where a person already undergoing a sentence is later imposed sentence in respect of an offence tried at subsequent trial. These two provisions namely Sections 31 and 427 thus deal with discretion available to the Court to specify whether the substantive sentences should run concurrently or consecutively.
The operative part of the judgment reads as under:-
Section 63 of IPC generally lays down that fine should not be excessive wherever no sum is expressed to which the fine may extend. Naturally, in cases where the concerned provision itself indicates a sum to which the fine may extend, or prescribes a minimum quantum of fine, such element may not apply. In cases covered by Section 64 of IPC the Court is competent to impose sentence of "imprisonment for non-payment of fine" and such sentence for non-payment of fine "shall be in excess of any imprisonment" to which the offender may have been sentenced or to which he may be liable under commutation of a sentence. Sections 30 and 429(2) of the Code also touch upon the principle that default sentence shall be in addition to substantive sentence. In terms of said Section 30(2) the default sentence awarded by a Magistrate is not to be counted while considering the maximum punishment that can be substantively awarded by the Magistrate, while under Section 429(2), in cases where two or more substantive sentences are to be undergone one after the other, the default sentence, if awarded, would not begin to run till the substantive sentences are over. Similarly, under Section 428 of the Code, the period undergone during investigation, inquiry or trial has to be set off against substantive sentence but not against default sentence. The idea is thus clear, that default sentence is not to be merged with or allowed to run concurrently with a substantive sentence. Thus, the sentence of imprisonment for nonpayment of fine would be in excess of or in addition www.lawteller.com
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If the term of imprisonment in default of payment of fine is a penalty which a person incurs on account of non-payment of fine and is not a sentence in strict sense, imposition of such default sentence is completely different and qualitatively distinct from a substantive sentence. We must hasten to add that it is not the case of the appellant that default sentences awarded to him must run concurrently with substantive sentence imposed on him. His case is that all default sentences must inter se run concurrently. Imposition of fine, especially when certain minimum quantum is prescribed and/or mandatory imposition of fine is contemplated, has some significance. Theoretically, if the default sentences awar ded in respect of imposition of fine in connection with two or more offences are to be clubbed or directed to run concurrently, there would not be any occasion for the persons so sentenced to deposit the fine in respect of the second or further offences. It would effectively mean imposition of one single or combined sentence of fine. Such an exercise would render the very idea January 2019
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CRIMINAL LAWS of imposition of fine with a deterrent stipulation while awarding sentence in default of payment of fine to be meaningless. For example, in the present case, in respect of three distinct offences punishable under the provisions of the MCOC Act, fine came to be imposed. Such fine going by the relevant provisions had to be at a minimum scale of Rs.5 lakhs. If the default sentences awarded in respect of each of those three counts under the MCOC Act are directed to run concurrently, the accused may not be inclined to deposit fine in respect of two out of those three counts. If imposition of fine and prescription of mandatory minimum is designed to achieve a specific purpose, the very objective will get defeated if the default sentences were directed to run concurrently. It is precisely for this reason that unlike Sections 31 and 427 of the Code, which specifically empower the concerned court to direct concurrent running of substantive sentences, Section 64 of the IPC does not stipulate such discretion. The language of said Section 64 rather mandates that the sentence awarded for non-payment of fine "imprisonment shall be in excess of any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of a sentence". Similar is the
intent in Sections 30, 428 and 429(2) of the Code as discussed above. The rigour of the provisions is such that even if a person gets the benefit of commutation of a sentence, the sentence in default of payment of fine shall be in excess or in addition. TTTTTTT
In the circumstances, we reject the submission regarding concurrent running of default sentences, as in our considered view default sentences, inter se, cannot be directed to run concurrently. TTTTTTT
However, considering the financial condition of the appellant, a case is certainly made out to have a sympathetic consideration about the quantum of default sentence. TTTTTTT
Authorities relied upon : 2013 (1) MWN (Cr.) 175 (FB), 1990 MLJ (Cri) 534, 1977 (2) SCC 634,AIR (1926) Bom. 62. Reference : Supreme Court. Sharad Hiru Kolambe v. State of Maharashtra and others, criminal appeal no. 1209 of 2018 [arising out of SLP (Criminal) No. 8067 of 2018]. —————
GLOBAL GLIMPSE POLAND REVERSES LAW ON JUDICIARY PURGE, ABIDING BY EU ORDER Polish President Andrzej Duda signed a bill that reinstates Supreme Court judges whose forced removal was deemed as a serious violation of democratic standards by the EU. In April, Poland passed a law that lowered retirement age from 70 to 65 and led to a forced early retirement of 27 of the 72 Supreme Court judges, including the court's president, Malgorzata Gersdorf. This law was condemned by many international actors, including the European Court of Human Rights and the European Commission. The forced retirements of the judges was perceived as undermining judicial independence because it put the judiciary under the unprecedented control of the legislative and executive branches of government. Consequently, in July, the European Commission imposed Article 7 sanctions, ordering Poland to reverse the controversial legislation and reinstate the Supreme Court judges. This measure was followed by an interim verdict issued in October by the EU Court of Justice. Finally, in late November, the Polish Parliament passed a new law that enables the judges to return to the Supreme Court. The legislation was backed by 215 deputies, while 161 were against and 24 abstained. 16
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LAW FOR YOU NO DECREE FOR EVICTION CAN BE PASSED UNLESS DETERMINATION UNDER S. 13(3) TAKES PLACE Use of the word 'shall' in S. 13(3) of Rajasthan Premises (Control of Rent and Eviction) Act (17 of 1950) puts a mandatory obligation on the Court to fix provisional rent within three months of the filing of the written statement but before framing of the issues. The language of the Section is mandatory and places a duty on the court to determine the provisional rent irrespective of any application or not. If the rent so determined by the court is paid by the tenant as provided under S. 13(4), no decree for eviction of the tenant can be passed on the ground of default under S. 13(1)(a) in view of S. 13(6) of theAct. It is thus clear that unless the determination under S. 13(3) takes place, S. 13(6) cannot be complied with and a valuable right given to a tenant would be lost. High Court, has rightly held S. 13(3) of the Act to be mandatory. Reference: SC. Ram Pratap v. Anand Kanwar and others, civil appeal no. 8504 of 2018 [arising out of SLP (Civil) No. 21338 of 2017].
DIRECTION PERTAINING TO FAMILY WELFARE COMMITTEE, HELD AGAINST STATUTORY FRAMEWORK On a perusal of directions issued inAIR 2017 SC 3869, it is found that Court has taken recourse to fair procedure and workability of a provision so that there will be no unfairness and unreasonableness in implementation and for said purpose, it has taken recourse to path of interpretation. Core issue is whether the Court in AIR 2017 SC 3869 could, by method of interpretation, have issued such directions. On perusal of directions, it is found that Court has directed constitution of Family Welfare Committees by District Legal Services Authorities and prescribed duties of Committees. Prescription of duties of Committees and further action therefor, are beyond Code and same does not really flow from any provision of Code. There can www.lawteller.com
be no denial that there has to be just, fair and reasonable working of a provision. Legislature in its wisdom has made offence under S. 498-A cognizable and nonbailable. Fault lies with investigating agency which sometimes jumps into action without application of mind. Directions issued in AIR 2014 SC 2756 are in consonance with the provisions contained in Ss. 41 and 41-A of Criminal P.C. Similarly, guidelines stated in AIR 1994 SC 1349 andAIR 1997 SC 610 are within framework of Code and power of superintendence of authorities in hierarchical system of investigating agency. Purpose has been to see that investigating agency does not abuse power and arrest people at its whim and fancy. In AIR 2017 SC 3869, there is introduction of third agency which has nothing to do with code and that apart, Committees have been empowered to suggest report failing which no arrest can be made. Directions to settle a case after it is registered is not correct expression of law. Criminal proceeding which is not compoundable can be quashed by High Court under Section 482 of Criminal P.C. When settlement takes place, then both parties can file petition under S. 482 Criminal P.C. and High Court, considering bona fide of petition, may quash same. Power rests with High Court. Though AIR 2017 SC 3869 takes note of 2012AIR SCW 5333, yet it seems to have it applied in different manner. Seminal issue is whether these directions could have been issued by process of interpretation. Supreme Court, in furthermore of fundamental right, has issued directions in absence of law. In obtaining factual matrix, there are statutory provisions and judgements in field and, therefore, directions pertaining to constitution of Committee and conferment of power on said Committee is erroneous. However, directions pertaining to Red Corner Notice, clubbing of cases and postulating that recovery of disputed dowry items may not by itself be ground for denial of bail would stand on different footing. Direction Nos. 19(iv) and (v) states that if a bail application is filed with at least one clear day's notice to Public Prosecutor/complainant, same may be decided as far as possible on same day. Recovery of disputed January 2019
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LAW FOR YOU dowry items may not by itself be ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected. Needless to say that in dealing with bail matters, individual roles, prima facie truth of allegations, requirement of further arrest/ custody and interest of justice must be carefully weighed, and that in respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be routine. They are protective in nature and do not sound discordant note with Code. When application for bail is entertained, proper conditions have to be imposed but recovery of disputed dowry items may not by itself be a ground while rejecting application for grant of bail under S. 498-A. That cannot be considered at that stage. Therefore, there is nothing erroneous in direction Nos. 19(iv) and (v). So far as direction Nos. 19(vi) and 19(vii) are concerned, which states that it will be open to District Judge or designated senior judicial officer nominated by District Judge to club all connected cases between parties arising out of matrimonial disputes so that holistic view is taken by Court to who all such cases are entrusted; and personal appearance of all family members and particularly outstation members may not be required and trial court ought to grant exemption from personal appearance or permit appearance by video conferencing without adversely affecting progress of trial, an application has to be filed either under S. 205 or S. 317 of Criminal P.C. depending upon the stage at which exemption is sought. Thus, while declaring directions pertaining to Family Welfare Committee and its constitution by District Legal Service Authority and power conferred on Committee is impermissible, Investigating Officers must be careful and guided by principles stated in AIR 1994 SC 1349, AIR 1997 SC 610,AIR 2014 SC 187 andAIR 2014 SC 2756. It is directed to ensure that investigating officers who are in charge of investigation of cases of offences under S. 498-A should be imparted rigorous training with regard to principles stated relating to arrest. Directions contained in 19(i) pertaining to constitution of Family 18
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Welfare Committee is not in accord with statutory framework and direction issued in para 19(ii) pertaining to investigation shall be read in conjunction with directions given above. Direction 19(iii) which states that in cases where settlement is reached, it will be open to District and Sessions Judge or any other senior Judicial Officer nominated by him in district to dispose of proceedings including closing of criminal case if dispute primarily relates to matrimonial discord is modified to extent that if settlement is arrived at, parties can approach High Court under S. 482 of Criminal P.C. and High Court keeping in view of 2012AIR SCW 5333 shall dispose of same. Reference: SC. Social Action Forum for Manav Adhikar and another v. Union of India Ministry of Law and Justice and others, Writ Petition (Civil) No. 73 of 2015 with Criminal Appeal No. 1265 of 2017 and Writ Petition (Criminal) No. 156 of 2017.
REJECTION OF EVIDENCE AS A WHOLE BY GIVING IMPORTANCE TO TRIVIAL TECHNICAL ERROR, NOT PERMISSIBLE While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole inspires confidence. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error without going to the root of the matter would not ordinarily permit rejection www.lawteller.com
LAW FOR YOU of the evidence as a whole. Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the police are meant to be brief statements and could not take place of evidence in the court. Small/Trivial omissions would not justify a finding by court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it. Reference: SC. Smt. Shmim v. State (GNCT of Delhi), criminal appeal no. 56 of 2018.
LEVY OF STAMP DUTY NOT NECESSARY FOR ENFORCEMENT OF FOREIGN AWARD Expression 'award' has never included a foreign award from the very inception till date. Consequently, a foreign award not being includible in Schedule I of the Indian Stamp Act, 1899, is not liable for stamp duty. If stamp duties are leviable in India on foreign awards, the imposition should not be substantially more onerous than the stamp duty that is imposed on recognition or enforcement of domestic arbitral awards. For Article III of New York Convention to apply, stamp duty must first be leviable on a foreign award, which is not the case. Equally, reliance upon the 194th Law Commission of India Report, insofar as stamp duty on domestic awards is concerned, would again have little bearing, in view of Supreme Court's finding that under the present state of the law, foreign awards are not liable to stamp duty under the Indian Stamp Act, 1899. Plea of respondent that S. 47 of Arbitration and Conciliation Act 1996 requires three things and only three things to be produced before the Court for enforcement of a foreign www.lawteller.com
award, and that therefore, stamp duty not being one of the three things required, cannot ever be levied would not be tenable. All that S. 47 of 1996 Act deals with is production before the Court of proof of the fact that a foreign award is sought to be enforced. In no manner does S. 47 1996 Act interdict the payment of stamp duty if it is otherwise payable in the law. Further plea that under S. 48(2)(b) of 1996 Act , even if stamp duty is payable on a foreign award it would not be contrary to the public policy of India, must also be rejected. Reference: SC. M/s. Shriram EPC Limited v. Rioglass Solar SA, civil appeal no. 9515 of 2018 [arising out of SLP (Civil) no. 13913 of 2018].
DIFFERENTLY ABLED PERSONS SHOULD NOT BE DEPRIVED OF BENEFIT OF UTILITY UNDER RTI ACT In view of proviso to S. 6(1) of Right to Information Act 2005, it is obligatory on the part of the Central Public Information Officer or State Public Information Officer to render all reasonable assistance to the persons making the request orally to reduce the same in writing. S. 6(3) of the Act takes care of the apprehension of the persons for whose cause the petitioner espouses, by making the provision pertaining to appropriate competent public authority. On a careful reading of the same, we do not find that there can be any difficulty for any person to find out the public authority as there is a provision for transfer. Thus, assistance has to be rendered under S. 6(1) of the Act to the persons who are unable to write or have difficulty in writing. Several States provide information in Braille since the year 2012. Every time the authority receives an RTI application seeking information in Braille, it prepares a reply in the printed format and forwards it to the National Institute for the Visually Handicapped where it is converted to Braille. The visually impaired citizens of Bihar were the first in the country to get copies under the Right to Information (RTI) Act and the Rules made by the State Government for its implementation in Braille script. January 2019
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LAW FOR YOU Audio files are also being prepared. No further direction needs to be issued except granting liberty to the petitioner to submit a representation to the competent authority pointing out any other mode(s) available for getting information under the Act. If such a representation is submitted, the same shall be dealt not only with sympathy but also with concern and empathy. We say so as differently abled persons, which include visually impaired persons, should have the functional facility to receive such information as permissible under the Act. They should not be deprived of the benefit of such a utility.
Resultantly, it is not necessary to dilate on the question as to whether the nature of duty of the legislators is such that it entails into a full-time engagement and that the person concerned will not be in a position to pay full attention towards the legal profession. That is a matter for the Bar Council to consider. No other express provision in Act of 1961 or the Rules to restrict to elected people's representatives to continue to practice as an advocates. In absence of an express restriction it is not open for Court to debar elected people's representatives from practicing during the period when they are MPs/MLAs/MLCs.
Reference: SC. Aseer Jamal v. Union of India and others, Writ Petition (C) No. 137 of 2018.
Reference: SC. Ashwini Kumar Upadhyay v. Union of India and another, Writ Petition(Civil) No. 95 of 2018.
LEGISLATORS CANNOT BE DEBARRED FROM PRACTISING AS ADVOCATE Legislator cannot be styled as full-time salaried employees. Status of Legislator is of member of house. No relationship of employer and employee. Merely drawing of salary or different allowances not resulted in creation of relationship of employer and employee between Government and Legislators. Legislators deemed to be public servant. Their status is sui generis and not of full time salaried employee of any person, Govt., firm and corporation. Even the expansive definition of term "person" in the General Clauses Act will be of no avail. Legislators being elected people's representatives occupy seat in Parliament/Legislatives occupy seat in Parliament/Legislative Assembly or Council as its members but are not in employment and occupy a special position till dissolution of house. Disciplinary or privilege action can be initiated against them by Speaker of House does not mean that they can be treated as full-time salaried employees. Participation of Legislators in House for conduct of its business, cannot be considered as service rendered to an employee. By no standards, therefore, Rule 49 as a whole can be invoked and applied to the legislators. 20
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ONCE CONVICTION STAYED, DISQUALIFICATION WILL NOT OPERATE UNDER REPRESENTATION OF THE PEOPLE ACT Appellate Court has the power, in an appropriate case, to stay the conviction under S. 389 Criminal P.C. besides suspending the sentence. The power to stay a conviction is by way of an exception. Before it is exercised, the appellate court must be made aware of the consequence which will ensue if the conviction were not to be stayed. Once the conviction has been stayed by the appellate court, the disqualification under subsections 1, 2 and 3 of S. 8 of the Representation of the People Act will not operate. Under Art. 102(1)(e) and Art. 191(1)(e), the disqualification operates by or under any law made by Parliament. Disqualification under the above provisions of S. 8 follows upon a conviction for one of the listed offences. Once the conviction has been stayed during the pendency of an appeal, the disqualification which operates as a consequence of the conviction cannot take or remain in effect. The authority vested in the appellate court to stay a conviction ensures that a conviction on untenable or frivolous grounds does not operate to cause serious prejudice. www.lawteller.com
LAW FOR YOU Reference: SC. Lok Prahari, through its General Secretary S.N. Shukla v. Election Commission of India and others, Writ Petition (Civil) No. 330 of 2016.
OBJECT OF RESERVATION IS TO SEE THAT BACKWARD CLASSES OF CITIZENS MOVE FORWARD EQUALLY Whole object of reservation is to see that backward classes of citizens move forward equally with other citizens of India. This will not be possible if only the creamy layer within that class bag all the coveted jobs in the public sector and perpetuate themselves, leaving the rest of the class as backward as they always were. When a Court applies the creamy layer principle to Scheduled Castes and Scheduled Tribes, it does not in any manner tinker with the Presidential List underArticle 341 or 342 of the Constitution of India. The caste or group or sub-group named in the said List continues exactly as before. It is only those persons within that group or sub-group, who have come out of untouchability or backwardness by virtue of belonging to the creamy layer, who are excluded from the benefit of reservation. Even these persons who are contained within the group or sub-group in the Presidential Lists continue to be within those Lists. It is only when it comes to the application of the reservation principle under Articles 14 and 16 that the creamy layer within that sub-group is not given the benefit of such reservation. When Arts. 14 and 16 are harmoniously interpreted along with Arts. 341 and 342, it is clear that Parliament will have complete freedom to include or exclude persons from the Presidential Lists based on relevant factors. Similarly, Constitutional Courts, when applying the principle of reservation, will be well within their jurisdiction to exclude the creamy layer from such groups or sub-groups when applying the principles of equality under 14 and 16 of the Constitutional of India. Case of Nagraj applied the creamy layer test to Scheduled Castes and Scheduled Tribes in exercise of www.lawteller.com
application of the basic structure test to uphold the constitutional amendments leading to Articles 16(4-A) and 16(4-B), it did not in any manner interfere with Parliament's power under Art. 341 or Art. 342. It does not need to be referred to a seven-Judge Bench. However, the conclusion in Nagaraj case that the State has to collect quantifiable data showing backwardness of the Scheduled Castes and the Scheduled Tribes, being contrary to the nine-Judge Bench in Indra Sawhney case is held to be invalid to this extent. Reference: SC. Jarnail Singh and others v. Lachhmi Narain Gupta and others, special leave petition (civil) no. 30621 of 2011.
DOCTRINE OF PROGRESSIVE REALIZATION OF RIGHTS Rationale behind doctrine of progressive realization of rights is dynamic and ever growing nature of Constitution under which rights have been conferred to citizenry. Constitutional courts have to recognize that constitutional rights would become dead letter without their dynamic, vibrant and pragmatic interpretation. Therefore, it is necessary for constitutional courts to inculcate in their judicial interpretation and decision making sense of engagement and sense of constitutional morality so that they, with aid of judicial creativity, are able to fulfill their foremost constitutional obligation, that is, to protect rights bestowed upon citizens of our country by Constitution. It is not only interpretation of Constitution which needs to be pragmatic, due to dynamic nature of Constitution, but also legal policy of particular epoch must be in consonance with current and present needs of society, which are sensible in prevalent times and at same time easy to apply. This also gives birth to equally important role of State to implement constitutional rights effectively. And of course, when it is State, it includes all three organs, that is, legislature, executive as well as judiciary. State has to show concerned commitment which would result in concrete action. State has January 2019
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LAW FOR YOU obligation to take appropriate measures for progressive realization of economic, social and cultural rights. Doctrine of progressive realization of rights, as natural corollary, gives birth to doctrine of non-retrogression. As per this doctrine, there must not be any regression of rights. In progressive and ever-improving society, there is no place for retreat, society has to march ahead. Doctrine of non-retrogression sets forth that State should not take measures or steps that deliberately lead to retrogression on enjoyment of rights either under Constitution or otherwise. Thus, there is manifest ascendance of rights under Constitution which paves way for doctrine of progressive realization of rights as such rights evolve with evolution of society. This doctrine, as natural corollary, gives birth to doctrine of non-retrogression, as per which there must not be atavism of constitutional rights. In light of same, accepting view in AIR 2014 SC 563, it would tantamount to retrograde step in direction of progressive interpretation of Constitution and denial of progressive realization of rights. Reference: SC. Navtej Singh Johar and others v. Union of India Thr. Secretary Ministry of Law and Justice, Writ Petition (Criminal) No. 76 of 2016 with Writ Petition (Civil) No. 572 of 2016, Writ Petition (Criminal) Nos. 88,100, 101 and 121 of 2018.
LIVE STREAMING OF COURT PROCEEDINGS Streaming of Court proceedings has potential of throwing up an option to the public to witness live court proceedings which they otherwise could not have due to logistical issues and infrastructural restrictions of Courts; and would also provide them with a more direct sense of what has transpired. Introducing and integrating such technology into the courtrooms would give the viewing public a virtual presence in the courtroom and also educate them about the working of the court. Courts in India are 22
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ordinarily open to all members of public, who are interested in witnessing the court proceedings. By providing "virtual" access of live court proceedings to one and all, it will effectuate the right of access to justice or right to open justice and public trial, right to know the developments of law and including the right of justice at the doorstep of the litigants. Open justice, after all, can be more than just a physical access to the courtroom rather , it is doable even "virtually" in the form of live streaming of court proceedings and have the same effect. Live streaming of court proceedings in the prescribed digital format would be an affirmation of the constitutional rights bestowed upon the public and the litigants in particular. In terms of S. 327 of Cr.P.C. and S. 153-B of C.P.C., only court-directed matters can be heard in camera and the general public can be denied access to or to remain in the court building used by the Court. By virtue of live streaming of court proceedings, it would go public beyond the four walls of the court room to which, in a given case, the party or a witness to the proceedings may have genuine reservations and may claim right of privacy and dignity. Such a claim will have to be examined by the concerned Court and for which reason, a just regulatory framework must be provided for, including obtaining prior consent of the parties to the proceedings to be live streamed. It should not interfere with the administration of justice or the dignity and majesty of the Court. Before the commencement of first phase of the project, formal rules will have to be framed. In recognizing that court proceedings ought to be live streamed, Court is mindful of and has strived to balance the various interests regarding administration of justice, including open justice, dignity and privacy of the participants to the proceedings and the majesty and decorum of the Courts. Reference: SC. Swapnil Tripathi v. Supreme Court of India, Writ Petition (Civil) No. 1232 of 2017 with 66, 861 and 892 of 2018. ooooooo www.lawteller.com
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SC RESTORED THE ORDER OF TRIAL COURT DISMISSING SUIT AS BARRED BY TIME
HE APPELLANTS ARE THE PLAINTIFFS WHEREAS THE respondents are the defendants in a civil suit out of which this appeal arises. The short question involved in this appeal is whether the High Court was justified in allowing the defendants' first appeal and thereby dismissing the appellants' (plaintiffs) suit as barred by time. The appellants (plaintiffs) filed a civil suit against the respondents (defendants) in relation to the suit property, as detailed in Para 1 of the plaint, for claiming the reliefs mentioned in para 26(3) of the plaint which reads as under: "26. Plaintiffs humbly pray that: 1. Decree for declaration of title be passed in favour of plaintiffs and against the defendants that property as described in Para No.1 of this suit belongs to Sh. Oswal Singh Sabha, Jodhpur and defendants Sh. Kishan Singh does not have any kind of ownership rights over it. 2. Decree for permanent injunction be passed in favour of plaintiffs and against the defendants that defendants be restrained from making any kind of claim or from carrying out any kind of proceeding and interfering in the possession of disputed property forever. 3. Possession of above property be provided to the plaintiff from the receiver. 4. Cost of this suit be also provided to the plaintiffs from the defendants. 5. Other relief, which this Hon'ble Court may deem fit, be also provided to the plaintiffs." www.lawteller.com
The respondents (defendants) filed the written statement and joined issues on facts and law by denying the material allegations made in the plaint. The respondents, inter alia, also raised an objection that the suit is barred by limitation. The Trial Court, by judgment/decree answered all the issues on facts and law including the issue of limitation in appellants' favour and against the respondents and accordingly decreed the suit. It was held that the appellants are the owners of the suit property; they are entitled to claim possession of the suit property from the respondents; and lastly, the suit is within limitation. The respondents (defendants) felt aggrieved and filed first appeal in the High Court of Rajasthan at Jodhpur. By impugned judgment, the Single Judge allowed the appeal and set aside the judgment and decree of the Trial Court and, in consequence, dismissed the suit only on the ground that the suit is barred by limitation. In other words, the High Court upheld all the factual findings of the Trial Court in appellants' (plaintiffs') favour but reversed the finding on the issue of limitation and held that since the suit is hit by the period of limitation prescribed under the Indian Limitation Act, 1963, it is liable to be dismissed on the ground of limitation. In this view of the matter, the defendants' appeal was allowed and the suit was dismissed as being barred by limitation having been filed beyond the period prescribed under the Limitation Act giving rise to filing of the present appeal by way of special leave in the Supreme Court by the plaintiffs. The Supreme Court accepted the appeal, impugned judgement in so far as it holds that the appellants' (plaintiffs') suit is dismissed as being barred by limitation was set aside. As a result, the judgment and January 2019
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LIMITATION decree of the Trial Court was restored in favour of the appellants.
The operative part of the judgment reads as under:As per the allegations in the plaint, the defendants' possession, according to the plaintiffs, became adverse when the defendants in Section 145 of the Cr.P.C. proceedings asserted their right, title and interest over the suit property to the knowledge of the plaintiffs for the first time and which eventually culminated in passing of an attachment order by the City Magistrate on 23.12.1966. This action on the part of the defendants, according to the plaintiffs, cast cloud on the plaintiffs' right, title and interest over the suit property and thus furnished a cause of action for claiming declaration of their ownership over the suit property and other consequential reliefs against
the defendants in relation to the suit property. TTTTTTT
In our opinion, the plaintiffs, therefore, rightly filed the civil suit on 19.12.1978 within 12 years from the date of attachment order dated 23.12.1966. The assertion of the right, title and interest over the suit property by the defendants having been noticed by the plaintiffs for the first time in proceedings of Section 145 of the Cr.P.C. before the City Magistrate, they were justified in filing a suit for declaration and possession. It was, therefore, rightly held to be within limitation by the Trial Court by applying Article 65 of the Limitation Act. TTTTTTT
Reference : Supreme Court. Ghewarchand & Ors. v. M/s Mahendra Singh & Ors., civil appeal no. 5870 of 2015. —————
GLOBAL GLIMPSE FORMER PAKISTAN PM SENTENCED TO 7 YEARS IN PRISON FOR CORRUPTION Former Pakistan Prime Minister Nawaz Sharif has been sentenced to seven years in prison after he was found guilty of owning assets "disproportionate to his known sources of income." An anti-corruption court in the country's capital Islamabad imposed a fine of USD $25 million on Sharif. It also disqualified him from holding public office for 10 years. The disqualification will go into effect after he has served his seven-year prison sentence. Sharif was found guilty under section 9(a)(v) of Pakistan's National Accountability Ordinance. According to the ordinance, a public office holder has committed the offense of corruption if the person or any of his dependents own, possess, or have any right or title in any property or pecuniary resource disproportionate to the known sources of income and when such a situation cannot be reasonably accounted for by the accused. The National Accountability Bureau had filed three cases, theAvenfield properties case, the Flagship Investment case and the Al-Azizia steel mills case against Sharif, following a judgment by the Supreme Court of Pakistan that disqualified him from holding the office of prime minister for being "dishonest" in terms of Article 62(1)(f) of the Pakistani Constitution. While Sharif was handed a prison term of 11 years earlier this year in the Avenfield properties case, Judge Muhammad Arshad Malik had reserved the verdict in the other two cases. The judge acquitted Sharif in the Flagship Investment case but held the 69-year old former premier guilty of corruption in the Al-Azizia steel mills case. 24
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ARBITRATION
CLEAR ASSERTION IN PETITION THAT DISPUTES HAVE ARISEN AND REMAIN UNSETTLED, ARBITRATOR APPOINTED
M
/S TRANS ASIAN SHIPPING SERVICES (PVT.) LTD. (THE petitioner) by this petition under Section 11(9) of the Arbitration and Conciliation Act, 1996 (for brevity, 'the Act'), has prayed for appointment of arbitrator as per Clause 5(1) of the Agency Agreement dated 31.03.2010 between M/s Trans Asian Shipping Services (Pvt.) Ltd. and M/s Beacon Shipping Lines Ltd.
petitioner has prayed for appointment of a sole arbitrator.
The petitioner is an Indian company and the respondent company is registered in Bangladesh. It is averred that the petitioner is a multinational company having operations in the Indian SubContinent, Middle East and South East Asia and is actively engaged in diversified activities with its core business being shipping especially transportation of containerized cargo. Its activities are related to various shipping operations all over the world and, therefore, it engages agents in various countries to undertake for and on behalf of it such functions. It involves their combined transport operations in the name of "Trans Asia Line". It is urged that the valid subsisting agreement renewed from 31st March, 2010 was terminated only on 31st March, 2012 with respect to the combined transport operations. It is asserted that the respondent committed breach of various terms and conditions of the agency agreement leading to disputes between the parties. The petitioner is entitled to recover dues of USD 134875.8829. Various documents have been filed to show how the amount is due. It is asserted that though the petitioner company sent arbitration notice to the respondent requesting the latter to nominate the arbitrator within 15 days of the receipt of the same so that the arbitration board could deal with the disputes, yet there was no response from the respondent. Under these circumstances, the
"18. GOVERNING LAW This Agreement shall be governed by and construed in accordance with the Indian Law. 19. DISPUTES AND ARBITRATION Any dispute or difference arising under and or out of or in connection with and/or relating to this Agreement, which cannot be settled amicably between the parties, shall be determined by arbitration and shall be governed by the law of India. Each party shall appoint one arbitrator with power to such arbitrators to appoint, if necessary, an umpire. The language for arbitration shall be English, and shall be governed by the Indian Law." The Registry was directed to send copy of the order to the sole arbitrator. The arbitration petition was accordingly allowed.
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Despite service of notice, there has been no appearance on behalf of the respondent no. 1 and other respondents who are the Managing Directors and Directors of the respondent no. 1 company. The Supreme Court noted Clauses 18 and 19 of the agreement,. The said claus reads as under:
The operative part of the judgment reads as under:On a perusal of the aforesaid Clauses, there can be no trace of doubt that an arbitration clause exists and the same clearly stipulates that any dispute or difference arising under and/or out of or in connection with and/or relating to the Agreement unless amicably settled shall be determined by arbitration. The assertions in the petition clearly state that disputes January 2019
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ARBITRATION have arisen and remain unsettled. In the obtaining factual matrix and keeping in view the existence of arbitration clause meant for determination of dispute by arbitration, we appoint Justice Gyan Sudha Misra, formerly a Judge of this Court, to act as the arbitrator to determine the dispute between the parties.
Reference : Supreme Cour t. M/s Trans Asian Shipping Services (Pvt.) Ltd. v. M/s Beacon Shipping Lines Ltd. Represented by Mr. Mohammed S. Aslam Managing Director & others, arbitration petition (civil) no. 20 of 2012.
TTTTTTT
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GLOBAL GLIMPSE HUNGARY PARLIAMENT RELAXES LABOR CODE IN FAVOR OF EMPLOYERS The Hungarian government passed a suite of amendments to the nation's labor laws that will significantly benefit employers despite vocal protests on the Parliament floor. The new laws increase the number of overtime hours that employers can require employees to work per year from the code's previously allowed 250 hours to 400 hours. The length of time that employers have to pay workers for overtime was also extended from one to three years and employers can of fer payment in the form of salary or vacation. Another controversial aspect of the new laws is the possibility they create for direct arrangements between employers and individual workers, undermining the role of unions and collective bargaining in the employment process. MPs from Orbán's Fidesz' leading party proposed the amendments to Hungarian labor law at the end of November with the aim of addressing the issues of labor shortage, attracting investors, and improving economic growth. Opposition MPs disrupted the Parliament's plenary sessions with shouts and whistles when their attempt at filibuster failed. Protests continued during voting, but the measure passed with 130 votes in favor, 52 against and one abstention. The amendments have also caused discontent among many citizens and trade unions. Socialist leader Bertalan Tóth called the session "scandalous and illegitimate," claiming that the MPs could vote without their IDs, which he emphasized was "against all rules."
PRESIDENT TRUMP SIGNS THE SYRIA GENOCIDE RELIEF AND ACCOUNTABILITY ACT OF 2018 INTO LAW President Trump signed the Iraq and Syria Genocide Relief and Accountability Act of 2018 into law. The bill establishes "US policy to ensure that humanitarian, stabilization, and recovery assistance for nationals and residents of Iraq or Syria, and of communities from those countries, is directed toward ethnic and minority individuals and communities with the greatest need, including those individuals and communities that are at risk of persecution or war crimes." President Trump noted in his remarks during the signing ceremony that the "bill continues [his] administration's efforts to direct U.S. assistance toward persecuted communities, including through faith-based programs. It also allows the government agencies to assist a range of entities in investigating and prosecuting ISIS's despicable acts." The new law will enable the federal government or other entities, including faith-based groups, to provide financial and technical assistance for the humanitarian, stabilization, and recovery needs of current and former religious minority nationals or residents of Iraq and Syria. 26
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CRIMINAL LAWS
SECTION 167 Cr.P.C. MANDATES, INVESTIGATION BE COMPLETED WITHIN THE PERIOD PRESCRIBED
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IR NO.16 OF 2018 WAS REGISTERED ON 24.03.2018 WITH Police Station Baharwanda Kalan, Distt. Sawai Madhopur for offences punishable under Sections 143, 341, 323, 452, 336, 302 read with Section 149 of the Indian Penal Code against 18 persons. The appellants were named as Accused Nos.1 and 2 in said crime and came to be arrested on 08.04.2018. They were subsequently remanded to police/magisterial custody from time to time. Later, Criminal Misc. Petition No.3517 of 2018 was filed by the complainant praying for fair and impartial investigation in the matter, in which an order came to be passed by the High Court on 03.07.2018. Said order recorded the submission of the Public Prosecutor as under: "The learned Public Prosecutor for the State, to allay the apprehension of the petitioner, at the outset, has submitted that not only fair investigation shall be conducted by a gazetted police officer, not below the rank of Additional Superintendent of Police but the report of the investigation along with the opinion of the Investigating Officer shall be submitted in the concerned Court within a period of two months from the date of receipt of certified copy of this order by the Investigating Officer." The petition was disposed of in terms of the submissions so recorded. Since the appellants had been in custody from 08.04.2018, the investigation, in terms of Section 167 of the Code of Criminal Procedure (the Code for Short) had to be completed by 07.07.2018. On 05.07.2018 a report under Section 173 of the Code was filed by the police before the concerned Judicial www.lawteller.com
Magistrate. Since said report was filed by a police officer lower in rank than an ASP and was thus contrary to the order passed by the High Court on 03.07.2018, an application was filed by the complainant placing certified copy of the aforesaid order dated 03.07.2018. The Magistrate having noted the contents of said order, returned the chargesheet with certified copy of the order dated 03.07.2018 to the police for due compliance. Thus as on the expiry of 90th day i.e. on 07.07.2018 no report under Section 173 of the Code was on record with the Magistrate. Immediately after the expiry of 90 days the appellants filed an application for bail under the provisions of Section 167(2) of the Code. The Judicial Magistrate, Khandar , Distt. Sawai Madhopur by his order dated 09.07.2018 rejected the prayer for benefit under Section 167(2) of the Code. It was observed that since the charge-sheet filed on 05.07.2018 was not in compliance of the order passed by the High Court, the charge-sheet was returned due to technical fault. It was further observed that the effect of the order dated 03.07.2018 passed by the High Court was extension of period within which the investigation could be completed. The rejection as aforesaid came to be challenged by filing SB Crl. Misc. Bail No.9035 of 2018 and the High Court while rejecting said petition on 23.07.2018 stated as under: "No case for grant of bail under Section 167(2) Cr.P.C. is made out, as the time was extended by the High Court in Criminal Miscellaneous (Petition) No.3517 of 2018 and Investigating Officer was afforded two months time to file charge-sheet. It is also important to note that the Investigating Officer had produced the charge-sheet January 2019
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CRIMINAL LAWS before the concerned Court prior to 90 days but the same was returned in view of the order of the High Court." Against the judgement of the High Court special leave petition was filed. The Supreme Court accepted the appeal, and directed that the appellants are admitted to bail in terms of Section 167(2) of the Code on such conditions as the trial Court may deem appropriate.
The operative part of the judgment reads as under:The letter of and spirit behind enactment of Section 167 of the Code as it stands thus mandates that the investigation ought to be completed within the period prescribed. Ideally, the investigation, going by the provisions of the Code, ought to be completed within first 24 hours itself. Further in terms of sub-section (1) of Section 167, if "it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57" the concerned officer ought to transmit the entries in the diary relating to the case and at the same time forward the accused to such Magistrate. Thereafter, it is for the Magistrate to consider whether the accused be remanded to custody or not. Sub-Section (2) then prescribes certain limitations on the exercise of the power of the Magistrate and the proviso stipulates that the Magistrate cannot authorize detention of the accused in custody for total period exceeding 90 or 60 days, as the case may be. It is further stipulated that on the expiry of such period of 90 and 60 days, as the case may be, the accused person shall be released on bail, if he is prepared to and does furnish bail. TTTTTTT
In the present case as on the 90th day, there were no papers or the charge-sheet in terms of Section 173 of the Code for the concerned Magistrate to assess the situation whether on merits the accused was required to be r emanded to fur ther custody. Though the charge-sheet in terms of Section 173 came to be filed on 05.07.2018, such filing not 28
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being in terms of the order passed by the High Court on 03.07.2018, the papers were returned to the Investigating Officer. Perhaps it would have been better if the Public Prosecutor had informed the High Court on 03.07.2018 itself that the period for completing the investigation was coming to a close. He could also have submitted that the papers relating to investigation be filed within the time prescribed and a call could thereafter be taken by the Superior Gazetted Officer whether the matter required further investigation in terms of Section 173(8) of the Code or not. That would have been an ideal situation. But we have to consider the actual effect of the circumstances that got unfolded. The fact of the matter is that as on completion of 90 days of prescribed period under Section 167 of the Code there were no papers of investigation before the concerned Magistrate. The accused were thus denied of protection established by law. The issue of their custody had to be considered on merits by the concerned Magistrate and they could not be simply remanded to custody dehors such consideration. TTTTTTT
In our considered view the accused having shown their willingness to be admitted to the benefits of bail and having filed an appropriate application, an indefeasible right did accrue in their favour. TTTTTTT
We, therefore, allow this appeal and direct that the appellants are entitled to be admitted to bail in terms of Section 167(2) of the Code on such conditions as the trial Court may deem appropriate. TTTTTTT
We now turn to the subsidiary issue, namely, whether the High Court could have extended the period. The provisions of the Code do not empower anyone to extend the period within which the investigation must be completed nor does it admit of any such eventuality. There are enactments such as the T errorist and Disruptive Activities (Prevention) Act, 1985 and www.lawteller.com
CRIMINAL LAWS Maharashtra Control of Organised Crime Act, 1999 which clearly contemplate extension of period and to that extent those enactments have modified the provisions of the Code including Section 167. In the absence of any such similar provision empowering the Court to extend the period, no Court could either directly or indirectly extend such period. In any event of the matter all that the High Court had recorded in its order dated 03.07.2018 was the submission that the investigation would be completed within two months by a Gazetted Police Officer. The order does not indicate that it was brought to the notice of the High Court that the period for completing the
investigation was coming to an end. Mere recording of submission of the Public Prosecutor could not be taken to be an order granting extension. We thus reject the submissions in that behalf advanced by the learned Counsel for the State and the complainant. TTTTTTT
Authorities relied upon : 2007 (5) SCC 773, 2001 (5) SCC 453. Reference : Supreme Court. Achpal @ Ramswaroop & Another v. State of Rajasthan, criminal appeal no. 1218 of 2018 [arising out of SLP (Criminal) No. 6453 of 2018]. —————
GLOBAL GLIMPSE LAW AGAINST 'ENCOURAGING' OR 'INDUCING' UNLAWFUL IMMIGRATION STRUCK DOWN The US Court of Appeals for the Ninth Circuit struck down a federal law that prohibits "encouraging" or "inducing" unlawful immigration on First Amendment grounds. The court examined whether the law "permits a felony prosecution of any person who 'encourages or induces an alien to come to, enter, or reside in the United States' if the encourager knew, or recklessly disregarded 'the fact that such coming to, entry, or residence is or will be in violation of law.'" In its decision, the court focused on interpreting "encourages" or "induces" before finding the statute in violation of First Amendment free speech protections. The court found the statute to be: "unconstitutionally overbroad in violation of the First Amendment because it criminalizes a substantial amount of protected expression in relation to its narrow band of legitimately prohibited conduct and unprotected expression." The court requested amicus briefs before coming to their decision. One brief expressed concerns over organizations and individuals being prosecuted for that "moral and ethical advocacy, such as providing objective legal advice with respect to immigration law, explaining immigration procedures, laws and status, expressing views about immigration policy, and even advocating on behalf of immigrants regarding education, employment and housing conditions. Criminalizing such conduct and speech cannot be tolerated under the First Amendment and fundamental notions of fairness and public welfare." The case was on appeal on behalf of Evelyn Sineneng-Smith, who was convicted of three counts of encouraging or inducing unlawful immigration for private financial gain and three counts of mail fraud in 2010. Singeneng-Smith operated an immigration consultation business for Filipino health care worker immigrants and fraudulently encouraged them to apply for permanent residence through the expired Labor Certificate Process. She collected $3.3 million dollars from clients between August 2004-2007.
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PANCHAYAT
MANDATORY PROVISION REQUIRES STRICT COMPLIANCE, SUBJECT TO EXCEPTIONS
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N 30.01.2014, THE APPELLANT ALONG WITH SEVEN MEMBERS of Masughat Gaon Panchayat submitted a No Confidence Motion against the President, respondent no. 6 herein, and for requisition of a special meeting to prove the majority of Gaon Panchayat President as per Section 15(1) of the Assam Panchayat Act, 1994 (for brevity, "the Act ). On 15.02.2014, the Secretary, Masughat Gaon Panchayat forwarded the said requisition to the President, Borkhola Anchalik Panchayat stating therein that the matter had already been put up before the President, Masughat Gaon Panchayat on 07.02.2014 for taking necessary action but she asked to wait due to some legal complications. Since the stipulated period of calling a special meeting was over, the petition was being referred for taking necessary action as per provisions of the Act. By virtue of letter dated 26.02.2014, the Block Development Officer (BDO), Borkhola Development Block referred the matter to the Deputy Commissioner, Cachar, Silchar stating that he had already put the matter before the President of the concerned Panchayat on 20.02.2014; that she stated to wait and that since the stipulated period for calling a special meeting was over , the matter was being referred to him for taking necessary action as per the Act. On 17.03.2014, the Additional Deputy Commissioner, Cachar, Silchar sent a communication to the BDO, Borkhola Development Block which is as follows: "No. CDO.1/2014/11 Dated, Silchar, the 17th March, 2014 To, The Block Development Officer, Borkhola Development Block. Sub. Special Meeting of No Confidence Motion against the President Masughat GP. 30
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Ref.BDE/E-11/92-98/Pt.II/AP Establishment, Dated: 26-02-2014 I am to return herewith the proposal submitted by you for convening a special meeting of No Confidence Motion against the G.P. President Masughat G.P. and request you to take necessary action as per provision laid down in the Assam Panchayat Raj Act, 1994 Sec. 15(1). The extract copy of relevant portion of the said Act Sec. 15(1) is enclosed herewith for favour of your kind necessary action. Encl: As stated above A.R. Sheikh, ACS Addl. Deputy Commissioner (Dev.) Chchar, Silchar" In compliance of the above communication, on 21.03.2014, the BDO wrote to the President, Masughat Gaon Panchayat informing her to attend the special meeting of No Confidence to be convened on 31.03.2014 at 12:30 p.m. in the office of the BDO. On 31.03.2014, the meeting was presided over by BDO. In the meeting, nine members cast their votes in favour of the No Confidence Motion and one member cast vote against the No Confidence Motion. Thus, the President, respondent no. 6 herein, lost her Presidentship and the Vice President, appellant herein, was directed to function as incharge President of the concerned Panchayat for the time being. Being aggrieved by the passing of the No Confidence Motion against her, the respondent no. 6 herein filed a writ petition, being Writ Petition (Civil) No. 2051 of 2014, before the Gauhati High Court. In the writ petition, she challenged the legal acceptability and validity of the resolution expressing want of www.lawteller.com
PANCHAYAT confidence against her in a special meeting held on 31.03.2014. The learned single Judge of the High Court, vide judgment and order dated 09.08.2016, allowed the writ petition on the ground that vide letter dated 17.03.2014, the Deputy Commissioner, instead of taking action in the matter, merely wrote back to the BDO to take steps in accordance with Section 15 of the Act and there was no delegation of authority to the BDO to preside over the meeting. No document had been produced showing delegation of authority. It was the Deputy Commissioner who ought to have taken steps in terms of the provisions of the Act by convening a meeting. A meeting convened and presided over by an authority alien to the mandate postulated in Section 15 of the Act could not sanctify the proceeding of a meeting. On this foundation, the resolution adopted expressing no confidence against the President was set aside and declared null and void. Being grieved by the judgment and order of the learned single Judge, the appellant filed Writ Appeal (Civil) No. 310 of 2016 before the Division Bench of the High Court which, by the impugned judgment and order dated 24.11.2017, dismissed the Writ Appeal. The Division Bench held that it is only the Deputy Commissioner who can convene the meeting within seven days from the date of receipt of the information and Section 15 does not authorize the Deputy Commissioner to delegate his power of convening the meeting to the BDO. The BDO can preside over the meeting being a Gazetted officer only when the Deputy Commissioner is unable to preside over the meeting and it is so conveyed by him. The appellate Bench opined that as per Section 15 of the Act, the meeting was to be convened by the Deputy Commissioner and no one else and when law provides to do a certain thing in a certain way, the thing must be done in that way or not at all. Being of this view, it concurred with the opinion expressed by the learned single Judge and dismissed the intra
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court appeal. Against the judgement of the High Court special leave petition was filed. The Supreme Court accepted the appeal, set aside the order passed by the Single Judge as well as the Division Bench.
The operative part of the judgment reads as under:The meeting was held to discuss the Motion of NoConfidence. The respondent no. 6 who was a beneficiary attended the meeting and voting had taken place. It is well settled in law that a mandatory provision of law requires strict compliance but there are situations where even if a provision is mandatory, non-compliance would not result in nullification of the act. There are certain exceptions. One such exception is, if a certain requirement or condition is provided in a statute for the benefit or interest of a particular person, the same can be waived by him if no public interest is involved. The ultimate result would be valid even if the requirement or condition is not performed. We are disposed to think that in the obtaining fact situation, no public interest was affected. The BDO presided over the meeting and every one knew that the meeting was called for passing a resolution either in favour of or against the No Confidence Motion. The respondent no. 6 knowing fully well participated in the meeting and the resolution was passed against her. After losing in the voting process, the assail was made to the procedure of calling the meeting. We are inclined to think, had the respondent no. 6 not participated in the meeting, the matter would have been absolutely different. Having participated, it has to be held that the respondent no. 6 had waived the condition precedent. TTTTTTT
Reference : Supreme Court. Padmini Singha v. The State of Assam & Others, civil appeal no. 4677 of 2018 [arising out of SLP (Civil) No 33637 of 2017]. ————— January 2019
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MAINTENANCE
HUSBAND RESIDENT OF CANADA NOT TAKING WIFE TO CANADA, HAS TO PAY MAINTENANCE
T
HERE IS A CHEQUERED HIST ORY OF LITIGATION BETWEEN THE parties. Shorn of unnecessary details, the relevant facts for determination of the present appeal are that the appellant and the respondent got married on 24th March, 2002, according to Hindu rites and ceremonies at Infantry Hostel, Delhi Cantonment, Delhi. The respondent, being a permanent resident of Canada, had assured the appellant that he would take her with him to Canada on 28th March, 2002 on a Tourist Visa. However, soon after the marriage, relations between the appellant and the respondent became strained. The respondent, being a permanent resident of Canada, returned to Canada without making any arrangements to take the appellant to Canada even on a Tourist Visa, as assured. Rather, he caused impediments in issuance of the Tourist Visa to the appellant, by giving an application in writing in that behalf to the Canadian Immigration Department. As relations between the appellant and the respondent became strained, the appellant filed a complaint before the Women Cell against the respondent and her inlaws. On 16th July, 2003, she also filed an application under Section 125 of the Code of Criminal Procedure for grant of maintenance of Rs.2 lakh per month from the respondent before the Chief Metropolitan Magistrate, Delhi. Be it noted that during the pendency of the said application, interim maintenance amount was fixed, which issue travelled upto the Supreme Court by way of Criminal Appeal Nos.23472349/2014, which was disposed of by the Supreme Court on 28th October, 2014 on the finding that the cause of justice would be subserved if the appellant was granted a sum of Rs.20,000/ per month as interim maintenance commencing from November 1, 2014. However, for the reasons stated by the Family Court in its judgment dated 28th January, 2015, the final maintenance amount 32
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was fixed at Rs.10,000/ per month starting from 17th July, 2003 till 8th December, 2010 and no maintenance was granted with effect from 8th December, 2010. The application for maintenance, filed in 2003, was finally disposed of on 28th January, 2015 in the following terms: "Relief: In view of my finding on issue no.1 above the petition u/s125 Cr.P.C. is partly allowed and the respondent is directed to pay maintenance to the petitioner as under: 1. From the date of filing of the petition i.e. 17.07.2003 till 08.12.2010, @ of Rs.10,000/ per month. 2. With effect from 08.12.2010 onwards the petitioner is not entitled to any maintenance and her claim in this respect stands dismissed. The respondent shall clear off the arrears of maintenance if any, within three months from the date of order. Any payment made towards interim maintenance during the pendency of the present petition and any maintenance paid for the concurrent period, as per the order passed by any other competent court in any other proceeding/litigation between the parties, the money already deposited by the orders of the Superior Courts or by the order of the predecessor of this court, by the respondent shall be adjusted, if required. No orders as to costs. File be consigned to recordroom." Against this decision, the appellant filed a revision petition before the High Court being Revision Petition (Criminal) No.204 of 2015, which has been partly www.lawteller.com
MAINTENANCE allowed on the following terms: "85. Consequently, the impugned order dated 28.01.2015 is setaside to the extent of non granting the maintenance in favour of the petitioner /wife from 09.12.2010 onwards. However, the impugned maintenance in favour of the petitioner/wife till 08.12.2010 at the rate of Rs. 10,000/ per month is upheld. The respondent is directed to pay maintenance amount of Rs.9,000/ per month from 09.12.2010 onwards. Hence, the present revision petition is allowed. The arguments of the learned counsel for the respondent and the judgments relied upon by the respondent are of no help.
(ii) Appellant's Evidence, Affidavit of Financial Status Exhibited proves that Respondent owns vast capital assets including 26.50 bigha (6.625 hectare) agricultural land in Meerut, UP; (iii) Respondent [B.Com, MA (Economics) & MBA from USA] has worked in USA, Dubai, Canada for nearly 20 years and hence can be presumed to be gainfully occupied, a fact which he is concealing, besides having savings, investments, social & medical security and insurance of Canada Govt.; and
The respondent has not filed any independent petition to assail the judgment of the High Court rather, it is the appellant who has questioned the correctness of the quantum of maintenance amount as determined by the Family Court and the High Court, by filing the present appeal. As a result, the sole question to be decided in the present appeal is regarding the quantum of monthly maintenance amount payable by the respondent to the appellant.
(iv) Respondent's last disclosed salary for the year 2010, on the basis whereof quantum could have been calculated. As per the last disclosed salary of Cad $48,372.34 p.a. (equal to Rs.21,28,368/ @Rs.44 per Cad.$), monthly salary comes to Rs.1,77,364/. Even if minimum increase @ 5% per annum is added to salary of base year i.e. 2010, Respondent's monthly salary would be Rs.2,51,800/. In absence of disclosure, this is a reasonable presumption for increase in salary. On adding Rs.50,000/ per month agricultural income, Respondent's monthly income can be presumed to be Rs.3 Lakh.
According to the appellant, the High Court in the impugned judgment has inter alia overlooked the following points while determining the monthly maintenance amount payable by the respondent to the appellant:
The respondent, on the other hand, has supported the decision of the High Court but at the same time, by way of counter affidavit filed to oppose this appeal, has urged that the impugned judgment suffers from flawed reasoning on the following counts:
(i) Order dt. 28.10.2014 passed by this Court in Criminal Appeal no.234749 of 2014 filed by Appellant against reduction & nonpayment of interim maintenance, whereby this Court granted Rs.20,000/ interim maintenance, cannot be reduced as there has been no change in circumstances of parties since then. Rather, it can only be increased in final maintenance;
(a) The High Court does not deal with the reasoning of appreciation of evidence.
86. The present petition is allowed and disposed of in the above terms."
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(b) The High Court does not notice that the Family Court, after a trial, has had an opportunity to observe the demeanour of the parties and has commented on it. (c) In Paragraph 38 of the judgment, the High Court doesn't overturn the reasoning of the
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MAINTENANCE reduction of the interim maintenance from Rs.25,000/ (Rupees Twenty Five Thousand Only). (d) The High Court does not overturn the reasoning that she has not established anywhere that she, as a lawyer and an admittedly well educated and competent professional, is unable to maintain herself. (e) The High Court also noted the scandalous allegations made by the Petitioner, against the Respondent's family which would reinforce his allegation of the Petitioner's vindictiveness. (f) The High Court has noted judgments of various High Courts wherein the principle laid down is that the laws of maintenance are supposed to support but not enrich; payments cannot continue adinfinitum. (g) The wife, too, is expected to mitigate her own losses by showing at least some semblance of effort at work and earning. (h) The maintenance should be in accordance with tenure of marriage, meaning thereby that long tenure marriages with children or even with just a long term investment of time, loss of earnings and so on can be computed monetarily, but not so a 4 day marriage resulting in a 15 year litigation, driven by a desire for vengeance with a motive to harass. As aforesaid, the sole question is about the quantum of monthly maintenance amount payable by the respondent to the appellant. In that, the Family Court has unambiguously held that the respondent neglected to maintain the appellant, for the elaborate reasons recorded in its judgment dated 28th January, 2015. That finding of fact has been upheld by the High Court vide the impugned judgment. The Family Court has also found as a fact that the appellant was
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unemployed, though she is an MA in English and holds a Postgraduate Diploma in Journalism and Mass Communication and is also a Law Graduate enrolled with the Bar Council of Delhi. The High Court has not disturbed that finding recorded by the Family Court. Resultantly, both the Courts have concurrently found that, in law, the respondent was obliged to maintain the appellant. The Family Court, however, restricted the liability of the respondent to pay maintenance amount only between 17th July, 2003 and 8th December, 2010, which view did not commend to the High Court. The High Court, instead directed the respondent to pay a monthly maintenance amount to the appellant even after 9th December, 2010, but limited the quantum to Rs.9,000/ per month. The High Court has recognized the fact that the appellant was not in a position to maintain herself but it restricted the maintenance amount to Rs.9,000/ per month on the finding that the respondent was unemployed and had no source of income. However, having found that the respondent was well-educated and an ablebodied person, the High Court went on to hold that he was liable to maintain his wife. The High Court further noted that the respondent had failed to produce any evidence regarding his unemployment or that he had no source of income. Resultantly, the High Court posed a question as to how the respondent was able to manage his affairs after his return from Canada, since 2010. Therefore, the High Court applied notional income basis to arrive at his (respondent's) minimum income of Rs.18,332/ as per the current minimum wages in Delhi, as a person possessing qualifications of B.Com., MA (Eco.) and MBA from Kentucky University, USA, and on that basis, directed the respondent to pay Rs.9,000/per month to the appellant from 9th December, 2010 onwards until further orders. The Supreme Court directed the respondent to pay the enhanced maintenance amount, as determined in terms of this order, to the appellant after duly adjusting the www.lawteller.com
MAINTENANCE amount already deposited in Court/paid to the appellant till date.
December, 2010 onwards until further orders.
The operative part of the judgment reads as under:-
Be that as it may, the High Court took into account all the relevant aspects and justly rejected the plea of the respondent about inability to pay maintenance amount to the appellant on the finding that he was well educated and an ablebodied person. Therefore, it was not open to the respondent to extricate from his liability to maintain his wife.
Having found that the respondent was well-educated and an ablebodied person, the High Court went on to hold that he was liable to maintain his wife. The High Court further noted that the respondent had failed to produce any evidence regarding his unemployment or that he had no source of income. Resultantly, the High Court posed a question as to how the respondent was able to manage his affairs after his return from Canada, since 2010. Therefore, the High Court applied notional income basis to arrive at his (respondent's) minimum income of Rs.18,332/ as per the current minimum wages in Delhi, as a person possessing qualifications of B.Com., MA (Eco.) and MBA from Kentucky University, USA, and on that basis, directed the respondent to pay Rs.9,000/per month to the appellant from 9th
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TTTTTTT
The view so taken by the High Court is unassailable. Indeed, the respondent has raised a plea to question the correctness of the said view, in the reply affidavit filed in this appeal, but in our opinion, the finding recorded by the High Court is unexceptionable. TTTTTTT
Reference : Supreme Court. Reema Salkan v. Sumer Singh Salkan, criminal appeal no. 1220 of 2018 [arising out of SLP (Crl.) No. 5495 of 2018]. —————
GLOBAL GLIMPSE AUSTRALIA PARLIAMENT APPROVES BILL GIVING LAW ENFORCEMENT ACCESS TO ENCRYPTED DATA After contentious debate, the Australian Labor Party (ALP) backed down and voted to pass an encryption bill. Deemed the "Assistance and Access" Bill, the legislation makes changes to Australia's telecommunication laws by allowing police and security agencies to issue notices to tech companies forcing them to allow access to necessary encrypted data for investigations. Under the bill, the government can issue three different types of notices requesting data using interception capabilities or building new methods of interception that could undermine encryption and potentially install backdoors. Tech companies who refuse to cooperate could face legal consequences and huge fines. The bill is meant to help law enforcement track criminals including terrorists and sex offenders, but critics are worried about the ramifications of the bill's vague language.The bill's language defines an intended communication provider as "the person provides an electronic service that has one or more end-users in Australia" which covers almost every website accessible in Australia. The broad language used throughout the bill was criticized by ALP members as potential for legal loopholes. Critics also feared that the Australian government would now be susceptible to data hacks with this new reservoir of information from tech companies. Along with this massive change, it now sets a path for other countries to follow in Australia's footsteps by giving their governments authority to gain access to secured information for the sake of national security. www.lawteller.com
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FLASH POINTS SC WARNS HIGH COURTS OVER VACANCIES The Supreme Court cautioned the States and the High Courts that it would resort to a "centralised selection mechanism" if they did not act promptly to fill the over 5,000 judicial posts lying vacant in the lower judiciary. The Bench said the States and the High Courts were under its "constant gaze" on this issue. "We will do it ourselves," the Chief Justice warned them in a suo motu hearing on the vacancies in the subordinate courts. The court had in a judgment given a time frame of one year for completing the recruitment of additional district judges and nine months for civil judges, junior division. The remarks from the Bench came after it perused the records of various High Courts, which make the appointments to the subordinate judiciary for each State. The court said their attitude towards filling the vacancies was at best "casual". "All High Courts and the Public Service Commission are very casual," the court observed. "The most important part is infrastructure. If there are 22,036 sanctioned posts, the infrastructure provided must be able to maintain the functioning of those judges. If the infrastructure - like courtrooms and support staff - are only for 18,000 or 19,000 posts, how will they function? This is where the role of the State governments comes in," the court observed. The Bench found that in Haryana, the advertisement for filling 60 posts of judges was announced in 2015 and 19,000 law graduates applied, but the exam was cancelled. When a fresh advertisement was issued in 2018, 13,000 more candidates applied. But the website crashed.
SUPREME COURT BECOMES SPOT FOR TOURIST ATTRACTION The Supreme Court, one of independent India's first major buildings to be designed by an Indian architect, has opened its doors for guided tours. Chief Justice of India Ranjan Gogoi launched the project at a small function held at the Judges' Lounge in the court. He 36
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said the idea behind the venture was that "a public institution should be opened up in a limited way." An in-house think tank was also launched to strengthen the court's knowledge infrastructure. The tours are free of charge and will be conducted between 10 a.m. and 1 p.m. every Saturday, except on declared holidays. The excursion will be rounded off with a visit to the Supreme Court museum. A guide will educate batches of 20 visitors on historic cases and the architecture of the building. The tour will culminate in a short film about the court. Visitors will have to comply with the tour rules, which include a ban on smoking, bringing eatables, tobacco items, cameras and backpacks. "Being the highest legal authority of the nation, it is imperative that visitors maintain proper decorum commensurate with the dignity of the esteemed establishment," a statement issued by the court said. Visitors can book their tour online. Once they arrive, they will be ushered through the majestic courtrooms and the plush Judges' Library and introduced to the imposing structure in all its glory. According to the book Courts of India Past to Present, compiled by an editorial board, led by Justice S.A. Babde, the Supreme Court structure is unlike the President's House and the Parliament Building, which hark back to the colonial period and were designed by British architects. Designed by the architect Ganesh Bhikaji Deolalikar, the court, with its pillared portico and the front verandah, is in the neo-classical style of architecture. An aerial view of the building reveals that the architecture symbolises the scales of justice. The dome crowning the central wing roofs the court of the Chief Justice of India, the largest courtroom in the building. In the middle of the interior lawn and amid ornamental shrubs is the sculpture of a mother and son, made by modernist sculptor Chintamuni Kar. According to Courts of India, it represents Mother India embracing her son, the Indian republic. The book in the son's hand is the law of the land. Overlooking the front steps leading to the First Court is a statue of Mahatma Gandhi, the Father of the Nation, in a sitting position, deep in thought. www.lawteller.com
FLASH POINTS RELIEF FOR ASSAM RESIDENTS The Supreme Court came on the same page as the government, allowing more than 40 lakh people left out of the draft National Register of Citizens (NRC) in Assam to use five additional documents, including the ration card, to claim their Indian legacy. Consequently, the court extended the last date for filing of claims and objections from November 25 to December 15. The deadline for issuing notices to claimants, after digitisation and completion of all formalities, is January 15, 2019. The verification of their claims would begin. Further details of the time schedule, including the time for completion of verification/enquiry of the claims, will follow at the appropriate time. In a major relief to claimants who did not find a place in the final draft of the NRC released, a Special Bench allowed them to use any of the five documents - the NRC, 1951; the names in the electoral rolls up to March 24, 1971; citizenship certificate; refugee registration certificate; certified copies of the pre-1971 electoral rolls, particularly those issued from the State of Tripura; and ration card. The Bench disagreed with NRC Co-ordinator Prateek Hajela's conclusion in his October 4 report that since these five documents could be easily forged, they should not be permitted to be used. "We do not think you are right, Mr. Hajela," Justice Nariman told him. "We are of the view that objection of Mr. Hajela to the five documents in question and specifically with regard to the documents listed at Serial Nos. (i) and (ii) i.e. names in NRC, 1951; and names in Electoral Roll up to 24th March, 1971 is based entirely on a possibility of abuse which, however, strong, cannot be an acceptable reason in law to exclude the documents from consideration," Chief Justice Gogoi observed order for the Bench. The court had been worried about how fail-safe these documents would prove to be. Chief Justice Gogoi had orally wondered whether these documents could be 'manufactured.' Mr. Hajela's negative report had confirmed the court's apprehensions. He had advised against the use of the
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five documents. Instead, the court struck a balance. It said the answer lay in allowing the use of these five records, subject to additional and thorough verification. It asked Mr . Hajela to prepare the groundwork for fool-proof verification of claims. The court directed Mr. Hajela to submit a report. The five documents are part of a total of 15 listed by the Centre in its draft Standard Operating Procedure (SoP) for vetting the claims and objections of over 40 lakh people excluded from the final draft of the NRC. The court went on to approve the modified SoP . All through, the Centre has vociferously supported the inclusion of the five documents.
BOFORS: SC REJECTS CBI PLEA The Supreme Court refused to entertain a CBI appeal to revive charges against the Hinduja brothers in the Rs. 64-crore Bofors guns payoffs case. The Bench said the court was not "convinced" by CBI's explanations for the "inordinate delay" of 12 years to file an appeal against a Delhi High Court order discharging the three Hindujas in May 2005. The usual time limit for filing an appeal is 90 days. This appeal was filed in February 2018. "We are not convinced... we do not like to entertain [the appeal]," Chief Justice Gogoi addressed Attorney-General K.K. Venugopal, representing the CBI. In its appeal, the CBI blamed the UP A-I government for the delay. Incidentally, the agency filed the appeal against the legal advice of Mr. Venugopal. In his written advice, the Attorney-General had shot down the idea of moving the court after 12 years without a convincing reason. The country's top law officer had even foretold that the court would dismiss the appeal for the reason of delay alone. Dismissing the appeal, the Bench, however, drew the CBI's attention to the pendency of an identical appeal filed by a private person, advocate Ajay Agarwal, against the High Court order. The court pointed out that the CBI was named a party in Mr. Agarwal's appeal and could use the opportunity to argue its case against the Hindujas. Incidentally, this January 2019
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FLASH POINTS too had been part of Mr. Venugopal's legal advice to the agency. The Delhi High Court terminated proceedings against Europe-based industrialist brothers S.P. Hinduja, G.P. Hinduja, P.P. Hinduja and M/s. Kartongen Kemi Och Forvaltning AB (formerly M/s AB Bofors) in the Bofors scam. The case had rocked the Rajiv Gandhi government and involved the purchase of 400 155mm FH 77-B guns, equipment, ammunition and so on from the Swedish company for Rs. 1,473.72 crore in 1986-87.
COURTS SHOULDN'T HELP MAKE HALF-BAKED DOCTORS Courts should not play a role in the making of "halfbaked doctors" by allowing unequipped medical colleges to carry out admissions, the Supreme Court has cautioned in a recent verdict. The Bench dealt with the admission of over 500 students to four private medical colleges in Kerala, which were found to have poor infrastructure. The State High Court had set aside the decisions of the Medical Council of India and the government to bar admissions to these colleges in 2018-19. It gave the colleges a second chance to remove the deficiencies and asked the MCI to carry out fresh inspections. It said the MCI could take "appropriate action" if the defects continue to remain. Quashing the High Court order, the Supreme Court held that admissions of students should not be on such conditional basis. Why had the High Court allowed the admissions to be carried on despite knowing very well that the colleges were substandard? "Such orders may ruin the entire career of the students. Once permission to admit students is granted, it should not be such conditional one," Justice Mishra wrote in his 37-page judgment for the Bench. "Half-baked doctors cannot be let loose on society like drones and parasites to deal with the lives of patients in the absence of proper educational training." "It would be dangerous and against the right to life itself in case unequipped medical colleges are 38
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permitted to impart substandard medical education without proper facilities and infrastructure," the Supreme Court observed.
ORDER ENHANCING LIFE TERM TO DEATH RECALLED The Supreme Court has recalled its 2009 judgment converting life imprisonment for three persons, found guilty of rape and murder, to death. The Review Bench found that the three convicts did not have a lawyer to defend them in the apex court during the hearing of an appeal filed by the Maharashtra government for enhancement of their sentence. Deciding their review petition against the 2009 judgment, the Bench allowed the three men to file fresh appeals. These appeals would now be heard by an appropriate Bench of the apex court. "They have been deprived of an opportunity of engaging counsel and of urging such submissions as they may have been advised to urge in defence to the appeals filed by the State for enhancement," the Supreme Court held in an order on October 31. The Bench also threw a life-line to three other co-accused in the case. These three had already been sentenced to death by the lower courts. They had separately approached the Supreme Court for a stay of their impending execution. In 2009, the Supreme Court had dismissed their appeals against their death penalty. Now, almost nine years later, the court reasoned that since the first three men have been granted an opportunity to file fresh appeals, their coaccused should also be given the same chance before the Supreme Court.
LONG COHABITATION IS PRESUMED MARRIAGE The Supreme Court has upheld the "presumption" that a couple who live together as husband and wife are legally married and the woman can claim maintenance under Section 125 of the Code of Criminal Procedure. www.lawteller.com
FLASH POINTS The Bench observed that it is "fairly well settled that the law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for a number of years". Citing past judgments of the apex court, the Bench quoted that "where a man, who lived with a woman for a long time and even though they may not have undergone legal necessities of a valid marriage, should be made liable to pay the woman maintenance if he deserts her". "The man should not be allowed to benefit from the legal loopholes by enjoying the advantages of a de facto marriage without undertaking the duties and obligations. Any other interpretation would lead the woman to vagrancy and destitution, which the provision of maintenance in Section 125 is meant to prevent," the court said in a recent judgment. The judgment was based on an appeal filed by a woman against a Karnataka High Court decision of June 2009. The High Court set aside a family court order, directing the man she lived with since 1998, and had two children by, to pay maintenance. Their relationship had been solemnised in a temple. He had later abandoned the family. The family court had ordered him to pay the woman Rs. 3000 and the children Rs. 2500 each on a monthly basis. The court said they were accepted as husband and wife by society . The man had, however, moved an appeal in the High Court, which pronounced that there was no proof that she was his legally-wedded wife.
'NO DOUBLE JEOPARDY BAR IF THERE WAS NO TRIAL' The bar of double jeopardy does not arise if an accused was discharged of a criminal offence, even before the commencement of trial, on the basis of an invalid sanction for prosecution, the Supreme Court has held. Article 20 (2) of the Constitution mandates that a person cannot be prosecuted or punished twice for the same offence. The Bench held in an judgment that if an "accused has not been tried at all and www.lawteller.com
convicted or acquitted, the principles of double jeopardy cannot be invoked at all." If an earlier order of sanction was found to be invalid, there is no bar for the competent authority to issue a proper order of sanction for prosecution, Justice Banumathi, who wrote the verdict for the Bench in a case under the Prevention of Corruption Act, observed. "The courts are not to quash or stay the proceedings under the Act merely on the ground of an error, omission or irregularity in the sanction granted by the authority unless it is satisfied that such error , omission or irregularity has resulted in failure of justice," the Supreme Court observed. The judgment is based on an appeal filed by the State of Mizoram against an order passed by the Gauhati High Court in August 2015, upholding a Special Court decision to decline to entertain a second chargesheet filed in a corruption case against the accused, Dr. C. Sangnghina, on the ground of double jeopardy.
'DO YOU VIEW UNDERTRIAL PRISONERS AS HUMANS?' The Supreme Court asked the government whether it viewed undertrial prisoners and children who suffered primeval conditions in jails and observation homes as "human beings." Undertrial prisoners accounted for 62% of India's prison population, against the world average of 18-20%, the court said. The statistic raised questions about the humaneness of our system, it said. The Bench said officials hardly went out of their offices to visit these prisons or observation homes. It took two Supreme Court judges to visit the Faridabad jail and observation home to understand the full horror of the living conditions of the inmates. "Just go and have a look‌ Your officials do not know because they have never been to a jail or observation home. They do not step out. Taps are leaking, no whitewash, clogged sewage, toilets not working‌ The situation is very pathetic. That's why two judges of the Supreme Court got very agitated when they saw...what is January 2019
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FLASH POINTS happening," Justice Lokur addressed Additional Solicitor-General Aman Lekhi, for the Centre. The two judges informed the court of their visit, and the court took cognisance of the letters. "The whole thing has become a joke‌ Do these people have no rights? Are they even seen as human beings. These are children‌ Are these children not citizens of our country? Please visit these jails and observation homes," Justice Lokur said. The court compared the condition of the undertrial prisoners and the juveniles in observation homes with that of influential prisoners who watched TV shows on sofas and "enjoy life" in prisons. "Is there a parallel system running in jails? Do they [the influential prisoners] have special rights? What have you done about Tihar Jail," Justice Lokur asked Mr. Lekhi, showing him media reports and pointing to one, saying "he [the prisoner] is enjoying TV and God knows what all he is enjoying."
Investigation's only CFSL has 87 vacancies out 184 total sanctioned posts. Justice Gupta highlighted how 40% of the total 7,582 sanctioned posts in the 31 forensic labs across various States are vacant. This makes it 3,685 vacancies in States' FSLs. In Uttar Pradesh's single State Forensic Science Laboratory (SFSL), of 1,132 sanctioned posts, 830 are vacant. "That makes it an 80% vacancy ," Justice Lokur remarked. Likewise, Bihar's SFSL has 126 vacancies out of a total sanctioned strength of 191 posts, while Tamil Nadu's lab has 124 vacancies out of a total sanctioned strength of 496. In Delhi, there are 78 vacancies out of 318 sanctioned posts. "Surely these are not vacancies for peons. Officers ensure they have at least four peons to one of ficer. These vacancies are for higher officers," Justice Gupta orally observed. "And people are dying in jails... how long will it be like this?" Justice Lokur added.
VACANCIES IN THE FORENSIC LABS ALARMING
SC DECLINES TO EXAMINE TRIPLE TALAQ ORDINANCE
A Ministry of Home Affairs document in the Supreme Court shows that vacancies in the country's forensic labs are alarmingly high even as cases pile up in trial courts and undertrial prisoners languish in jails. The forensic laboratories, at both the Central and State levels, are used to examine crucial evidence which could decide between life and death in many criminal cases. The role of the laboratories have expanded lately with the emergence of cybercrime and drugrelated offences. They also play a major role in using medical evidence to crack sex crimes. However , responding to the report, a Bench described the situation in these labs as "utter chaos, utter chaos". The document of November 20 shows that 164 posts out of total 450 in the six Central Forensic Science Laboratories (CFSLs) under the Directorate of Forensic Science Services are lying vacant. These labs are located in Bhopal, Chandigarh, Guwahati, Hyderabad, Kolkata and Pune. In fact the Central Bureau of
The Supreme Court declined to examine the legality of an ordinance, promulgated on September 19, declaring triple talaq a crime. The Bench said two months have already passed since the promulgation of the ordinance, which has even otherwise a life of only six months unless ratified by Parliament. The Chief Justice left it to Parliament to debate the constitutionality of the ordinance, saying the winter session is shortly to commence. "We don't like to interfere," Chief Justice Gogoi addressed the lawyers for Samastha Kerala Jamiathul, one of the biggest religious organisations of Sunni Muslim scholars and clerics in Kerala, which had challenged the ordinance. Senior advocate Raju Ramachandran said the very promulgation of the ordinance is a "fraud on the Constitution". But Chief Justice Gogoi restrained the line of argument, saying it was not necessary to "go so high". The court allowed the petitioner to withdraw the plea. The Jamiathul said the only objective of the
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FLASH POINTS ordinance is "to punish Muslim husbands." The Women (Protection of Rights on Marriage) Ordinance, 2018 imposes a maximum sentence of three-year imprisonment when a husband pronounces triple talaq.
TO RESIGN IS A RIGHT OF THE EMPLOYEE To resign is a right of an employee and he cannot be forced to continue, the Supreme Court has said in a recent order. An employee cannot be compelled to serve in case he is not willing "until and unless there is some stipulation in the rules or in the terms of appointment or disciplinary proceedings is pending or contemplated which is sought to be avoided by resigning from the services." The Bench made the observations while allowing the appeal of a former Air India engineer, who was refused his dues by the Central government carrier. Sanjay Jain served in Air India for the stipulated minimum five-year period before he resigned and served his 30-day notice. He joined a private airline and later approached his former employer to pay his dues, Provident Fund, gratuity and unpaid wages. Air India said it had refused to accept his resignation and asked him to re-join duty. The Bombay High Court dismissed his petition in September 2010. Subsequently, Mr. Jain moved the Supreme Court. Setting aside the High Court's decision, the Supreme Court ruled that Mr. Jain had "rightly terminated the relationship by serving the requisite notice for his resignation."
CHANGES IN PC ACT CHALLENGED The Supreme Court ordered the government to respond to a petition challenging two amendments to the Prevention of Corruption Act. The amendments were the introduction of S. 17 A (1) by which prior permission for investigation of corruption offences was required from the government and the removal of S. 13 (1) (d) (ii) (criminal misconduct) from theAct. The
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latter provision had earlier made it an offence for a public servant to abuse his position to give pecuniary or other advantage to a third party. The Bench asked the government to file a response in six weeks. "We think you are entitled to a hearing," Chief Justice Gogoi addressed advocate Prashant Bhushan, who appeared for the petitioner NGO, Centre for Public Interest Litigation (CPIL). Mr. Bhushan said the removed provision of 'criminal misconduct' was used in most prosecutions of public servants under the Act in cases where there might not be a charge of directly accepting bribes. In this context, he referred to the prosecution of officials in the coal scam where officials gave leases to companies who they knew were not eligible. As for the new provision of Section 17(A), CPIL said that seeking sanction before commencement of investigation in a corruption case "not only takes away the element of secrecy and surprise but introduces a period of delay during which vital evidences can be manipulated or destroyed". "It gives time to the accused to lobby by employing various means for denial of permission. The seeking of permission in itself becomes a cause for corruption as it introduces yet another discretion, at the crucial stage of commencement of investigation," the petition said.
AGE BAR FOR NEET QUASHED The Supreme Court allowed candidates aged 25 years and above to apply and appear in the NEET-UG 2019 examination. The three-judge Bench observed that "If they are allowed to appear in the examination, they shall take the examination provisionally subject to the final outcome of these matters (case)". The court directed the National Testing Agency (NTA), set up to conduct the NEET exams, to keep its portal open for a week to enable candidates to apply for the exam. The court further impleaded NTA as a party in the case, asking it to file its response in four weeks and posted the case for January. ooooooo January 2019
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LAND LAWS
WHEN LAW PRESCRIBES PROCEDURE, THAN THAT PROCEDURE HAS TO BE FOLLOWED
T
HE SHORT QUESTION WHICH ARISES IN THESE APPEALS IS whether the Special Tahsildar (Land Acquisition), Cochin Refineries Limited, Ernakulam, Vytilla, Cochin-19 [hereinafter referred to as "the Special Tahsildar (LA), K.R.L."] was empowered to act as Collector under the Land Acquisition Act, 1894 (hereinafter referred to as "the Act"), in respect of lands acquired by the State for an Infopark. On 05.12.2005, the Government of Kerala accorded administrative sanction to acquire 177.79 acres of land in Ernakulam district for the purpose of the Infopark. The Government also accorded sanction to invoke the urgency clause under Section 17(1) of the Act. Thereafter, on 15.12.2005, the District Collector , Ernakulam issued a Government Order appointing the Special Tahsildar (LA), K.R.L. as the Land Acquisition Officer for the acquisition of land for the Infopark. Thereafter, a notification was issued under Section 4(1) of the Act. In the said notification, it is mentioned that in view of the order of the Government, application of Section 5(A) of the Act has been exempted by invoking the powers under Section 17(4) of the Act. According to the appellants 23.92 acres of land belonging to them was sought to be acquired along with the land of others. The appellants filed objections under Section 5A(1) of the Act. According to them no action was taken on their objections and, thereafter, they filed Writ Petition No.9735 of 2008 in the High Court of Kerala seeking various reliefs including quashing of the notification issued under Section 4(1) and 17(4) of the Act. The main ground raised was that the Special Tahsildar (LA), K.R.L. was not entitled to perform the functions of Collector under the Act. The stand of the State was that the Special Tahsildar (LA), K.R.L. was entitled to act as Collector for the entire Ernakulam District and was therefore empowered to 42
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act as Collector even in relation to land acquired for the Infopark. The writ court dismissed the writ petition in so far as this objection was concerned. The appellants filed Writ Appeal No.2446 of 2008 which was also dismissed on 06.01.2009. Against the judgement of the High Court special leave petition was filed. The Supreme Court accepted the appeal, the judgements and orders of the High Court in Writ Appeal No.2446 of 2008 dated 06.01.2009 andWrit Petition No.9735 of 2008 dated 25.11.2008 were set aside.
The operative part of the judgment reads as under:-
On perusal of the notification it is apparent that by the said notification the Government of Kerala had appointed an officer by the name of Special Tahsildar (LA), K.R.L., to perform the functions of a Collector under the Act only within the area of Ernakulam District, only in respect of any land within his jurisdiction for the acquisition of which a notification under sub-section (1) of Section 4 of the Act has been published. TTTTTTT
On a careful analysis of the notification, in our opinion, the State has empowered the specified officer i.e. the Special Tahsildar (LA), K.R.L. only in respect of the land for which the notification under subsection (1) of Section 4 had already been issued. The Special Tahsildar (LA) K.R.L. was not empowered by the notification of 21.08.1989 to issue any fresh notification in respect of other land. Though the explanatory note may not be part of the notification the same can definitely be used to resolve the ambiguity, if any, in the notification. The explanatory note clearly indicates that the notification has been issued only to empower the officer to act as Collector in respect of 320 acres of land. TTTTTTT
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LAND LAWS We make it clear that if any land owners have, without any objection to the authority of the Special Tahsildar (LA) K.R.L., accepted the award of the Collector or have filed objections with regard to quantum and area only and have not disputed the authority of the Special Tahsildar (LA) K.R.L. to act as Collector, such land owners cannot take benefit of this decision. As far as this decision is concerned it will only enure for the benefit of the appellants before us. TTTTTTT
The High Court took the view that since public interest is concerned a liberal view has to be taken and when acquisition proceedings are completed or going on for acquiring large portions of lands required for public purpose, such acquisition cannot be stopped on "cryptic hyper technical ground". We are not at all in agreement with this view of the High Court. It is a settled position of jurisprudence that when the law prescribes a procedure to be followed for doing any act or thing then that procedure has to be followed and any violation of such procedure would make the act voidable, if not void. There is no doubt that the State is empowered to appoint any officer other than a Collector or Deputy Commissioner to act as Collector. However, the notification should be clear as to for what purpose such Collector is being appointed. As far as the present case is concerned the Special Tahsildar
(LA), K.R.L. was appointed as Collector only in respect of acquisition of land relating to Cochin Refineries Limited within Ernakulam District. If the State wanted him to act as Collector in respect of other acquisitions, nothing prevented the State from issuing a fresh notification in this regard, but relying upon the notification dated 21.08.1989 the Special Tahsildar (LA), K.R.L. cannot act as Collector in respect of other acquisitions. This is not a hyper technical ground. When the State wants to acquire the property of a citizen which is a constitutional right of any citizen under Article 300(A) of the Constitution of India it must strictly follow the procedure prescribed by law. It cannot urge that because the acquisition is in public interest a more liberal view is to be taken. There is no question of taking a liberal or conservative view. The only view which has to be taken is the legal view. In our considered opinion the Special Tahsildar (LA), K.R.L. was not authorized to act as Collector for the entire District of Ernakulam and is empowered only in respect of acquisitions for which notification had already been issued for acquiring land for the Cochin Refineries Limited. TTTTTTT
Reference : Supreme Court. E.A. Aboobacker & Ors. v. State of Kerala & Ors., civil appeal no. 2772 of 2011. —————
GLOBAL GLIMPSE FEDERAL APPEALS COURT ALLOWS DEPORTATION OF IRAQI NATIONALS The US Court of Appeals for the Sixth Circuit ruled 2-1 that the district court lacked jurisdiction over the removal and detention claims raised to prevent the deportation of Iraqi nationals. This decision affects the deportation of Iraqi nationals who committed criminal offenses while in the US. Prior to 2017, Iraq did not facilitate repatriation efforts, leaving these individuals under the supervision of US Immigration and Customs Enforcement. Since then, eight Iraqi nationals have been deported and arrangements made for 200 more deportees.The arrest of these 200 individuals by Immigration and Customs officials in preparation of deportation initiated the case before the district court in Michigan. The majority in the appeals court argued that not only was the district court acting out of its scope of jurisdiction when it halted the removal of Iraqi nationals, but case law "unambiguously strips federal courts of jurisdiction to enter class-wide injunctive relief for … detention-based claims." www.lawteller.com
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PRACTICE & PROCEDURE
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REMAND WOULD NOT ENTITLE DEFENDANTS TO FILE CROSS OBJECTIONS
HE APPELLANT IS THE PLAINTIFF WHEREAS THE RESPONDENTS are the defendants in the civil suit out of which this appeal arises. The appellant (plaintiff) claiming to be the landlord of a shop situated in holding No.257 (old)/58 (new) at Tulapatty Silchar Town (hereinafter referred to as "suit premises") filed a Civil Title Suit No.189/1977 against one Deo Chand Sarda (Respondent No.1) in the Court of Munsiff No.1 Cachar at Silchar. The suit was filed for claiming arrears of rent and eviction from the suit premises.
and if so whether defendant No.1 is a defaulter in payment of rent since August 1977? 5. Whether the plaintiff is entitled to a decree as prayed for? 6. To what relief/reliefs the parties are found entitled to?"
The Trial Court on the basis of the pleadings framed following issues:
Parties adduced their evidence. The Trial Court by judgment/decree dated 23.12.1999 dismissed the suit. So far as issue No.1 is concerned, the Trial Court answered in favour of the plaintiff by holding that the suit is maintainable. So far as issue No.2 is concerned, it was also answered in plaintiff's favour by holding that the suit is not bad for non-joinder of necessary parties and maintainable. So far as issue No.3 is concerned, it was answered against the plaintiff by holding that there was no cause of action to file a suit. So far as No.4 is concerned, it was divided in two parts. So far as first part is concerned, it was answered in plaintiff's favour wherein it was held that defendant No.1 was the plaintiff's tenant in respect of the suit premises. In other words, it was held that the relationship of the landlord and tenant is established between the plaintiff and defendant No.1 in relation to the suit premises. So far as second part of issue No.4 is concerned, it was held against the plaintiff by answering that defendant No.1 is not a defaulter in payment of rent to the plaintiff. By answering these four issues, the Trial Court dismissed the plaintiff's suit.
"1. Whether the suit is maintainable in fact and law? 2. Whether the suit is bad for non joinder of necessary parties? 3. Whether there is cause of action for this suit? 4. Whether the defendant No.1 is a tenant under the plaintiff in respect of the suit house
The plaintiff felt aggrieved and filed first appeal before the Civil Judge No.1 (Silchar), Cachar being Title Appeal No.14/2000. It is pertinent to mention here that the defendants did not file any cross objection under Order 41 Rule 22 of Code of Civil Procedure (hereinafter referred to as "the Code") against any of the findings recorded by the Trial Court against the defendants in the appeal.
According to the appellant (plaintiff), respondent No.1 was the appellant's tenant on a monthly rent. It was averred that respondent No.1 paid some money in advance to the appellant, which the appellant adjusted against the rent ending July 1977. It was averred that the respondent thereafter failed to pay rent from August 1977 despite repeated demands and hence the suit was filed to claim arrears of rent and the eviction of the respondent as defaulter in payment of rent. The suit was filed under the provisions of Assam Urban Areas Rent Control Act (for Short 'The Act'). Defendant No.2 got himself impleaded in the suit claiming to be the necessary party. It was permitted. The respondents filed the written statement and denied the material averments of the plaint.
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PRACTICE & PROCEDURE By judgment dated 14.08.2002, the first Appellate Court dismissed the appeal. The plaintiff felt aggrieved and filed revision in the Gauhati High Court. By impugned order, the High Court (Single Judge) dismissed the plaintiff's revision and affirmed the judgment of the First Appellate Court which gives rise to filing of the present appeal by way of special leave by the plaintiff in Supreme Court. Against the judgement of the High Court special leave petition was filed. The Supreme Court accepted the appeal, impugned order and the judgement of the First Appellate Court were set aside. The case was remanded to the First appellate Court for deciding the plaintiff's first appeal afresh.
The operative part of the judgment reads as under:-
This question, i.e., first part of issue No.4 was decided by the Trial Court in plaintiff's favour wherein it was held that defendant No.1 was the plaintiff's tenant. So far as second part of issue No.4 is concerned, it was in relation to the question as to whether defendant No.1 was a defaulter in payment of rent to the plaintiff. This question was answered by the Trial Court against the plaintiff and in defendant No.1's favour wherein it was held that defendant No.1 did not commit any default in payment of rent to the plaintiff. It is for this reason, the suit was dismissed. TTTTTTT
The plaintiff in his first appeal did not challenge the finding of the Trial Court recorded on the first part of issue No.4 and rightly so because it was already answered by the Trial Court in his favour. The First Appellate Court, therefore, could not examine the legality and correctness of this finding in plaintiff's appeal unless it was challenged by the defendants by filing cross objection under Order 41 Rule 22 of the Code in the appeal. TTTTTTT
As mentioned above, the defendants though suffered the adverse finding on first part of issue No. 4 but did not file any cross objection questioning its legality. www.lawteller.com
In the light of these admitted facts arising in the case, the First Appellate Court had no jurisdiction to examine the legality and correctness of the finding on first part of issue No. 4 in plaintiff's appeal and reverse it against the plaintiff. TTTTTTT
Second, the High Court also committed the same mistake by not noticing the aforesaid jurisdictional error committed by the First Appellate Court. The High Court, in plaintiff's revision again, went into the legality of the findings of first part of issue No.4 on merits and affirmed the finding of the First Appellate Court. This finding ought to have been set aside by the High Court only on the short ground that the First Appellate Court had no jurisdiction to examine it in plaintiff's appeal. TTTTTTT
In our opinion, the High Court should have noticed the aforementioned mistake and remanded the case to the First Appellate Court for deciding the plaintiff's appeal afresh on merits confining its enquiry by the First Appellate Court to decide only the legality and correctness of those issues, which were decided by the Trial Court against the plaintiff and which led to the dismissal of suit. TTTTTTT
In our opinion, in the light of what we have held above, we have no option but to set aside the impugned order and also the judgment of the First Appellate Court and remand the case to the First Appellate Court to decide the first appeal filed by the plaintiff (appellant herein) afresh on its merits only to examine the legality and correctness of the issues which were decided against the plaintiff by the Trial Court such as issue No. 3 and second part of issue No. 4. TTTTTTT
Reference : Supreme Court. Biswajit Sukul v. Deo Chand Sarda & Ors., civil appeal no. 9956 of 2018 [arising out of SLP (C) No. 15192 of 2014]. ————— January 2019
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ACCIDENTAL CLAIM
DURING FIRST APPEAL, PARTIES HAVE RIGHT TO BE HEARD BOTH ON QUESTION OF LAW AND ON FACTS
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HE APPELLANT HEREIN WAS THE CLAIMANT BEFORE THE Tribunal whereas respondent-owner of the vehicle (motorcycle) was the non-applicant No.1 and the Insurance Company was non-applicant No.2 in the appellant's claim petition.
interest payable at the rate of 7% per annum under various heads.
On 31.10.2012, the appellant-claimant with one Dipak Kumar Pradhan was going on a motorcycle bearing No.OR-07 S 3133 from Baisinga to Baripada on National Highway 18 in the State of Orissa. The abovesaid Motorcycle met with an accident with a Mini Truck (407) wherein the appellant-claimant suffered severe injuries. The motorcycle was owned by Jayanta Kumar Mohanty (respondent No.1 in CA 3798/2016 & respondent No.2 in CA No.3799/2016) and was insured with the National Insurance Company Ltd. (respondent No.2 in CA 3798/2016 & respondent No.1 in CA 3799/ 2016).
So far as M.A.C.A.No.690/2014 is concerned, it was filed by the appellant-claimant for enhancement of the amount awarded by the Tribunal whereas so far as M.A.C.A.No.839/2014 is concerned, it was filed by the Insurance Company against the award challenging therein the quantum of compensation to be on a higher side.
According to the appellant-claimant, he was in the age group of 25-27 years at the time of accident and suffered the disease of "paraplegia" (injury in spinal cord) as a result of the abovesaid accident. The appellant-claimant, therefore, filed a claim petition before the Tribunal, Mayurbhanj Baripada (Orissa) under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the MV Act") against the respondents (owner of the motorcycle and the Insurance company) and claimed reasonable compensation for the injuries sustained by him and other statutory compensation payable under the MV Act for causing such injuries. The respondents contested the claim petition. By award dated 17.05.2014, the Tribunal allowed the appellant's claim petition in part and holding the respondents (non-applicants) liable for payment of the compensation to the appellant-claimant jointly and severely awarded a total sum of Rs.24,62,065/- with 46
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The appellant-claimant and the Insurance Company both felt aggrieved by the award, filed appeals in the High Court of Orissa at Cuttack.
By impugned order, the High Court allowed the appeal filed by the Insurance Company (M.A.C.A.No.839/ 2014) in part and accordingly reduced the compensation from Rs.24,62,065/- to Rs.20,00,000/-.As a result of the main order passed in favour of the Insurance Company in their appeal, the appeal filed by the appellant-claimant (M.A.C.A. No.690/2014) seeking enhancement in the quantum of compensation was dismissed as having rendered infructuous. The appellant-claimant felt aggrieved by the order of the High Court filed two appeals by way of special leave in the Supreme Court. One is filed against an order by which the claimant's appeal for enhancement in the quantum of compensation was dismissed as having rendered infructuous and the other is filed against an order by which the Insurance Company's appeal was partly allowed by reducing the quantum of compensation from Rs.24,62,065/- to Rs.20,00,000. It may be mentioned that so far as the Insurance Company is concerned, they have not filed any appeal against the order of the High Court. In other words, the Insurance Company seems satisfied with the quantum of compensation amount of Rs.20,00,000/awarded by the High Court by the impugned order. www.lawteller.com
ACCIDENTAL CLAIM The short question, which arises for consideration in these two appeals, is whether the High Court was justified in allowing the Insurance Company's appeal (M.A.C.A. No.839/2014) and was, therefore, justified in reducing the quantum of compensation amount from Rs.24,62,065/- to Rs.20,00,000/- and, in consequence, was justified in dismissing the claimant's appeal for enhancement of the quantum of compensation as having rendered infructuous. The Supreme Court remanded the appellant-claimant's appeal (M.A.C.A. 690 of 2014) to the High Court for deciding the question as to whether any case was made out for further enhancement from Rs. 24,62,065/ - awarded by the Tribunal and, if so, on what grants.
The operative part of the judgment reads as under:High Court neither set out the facts of the case of the parties in detail, nor dealt with any of the submissions urged except to mention them, nor took note of the grounds raised by the claimant and nor made any attempt to appreciate the evidence in the light of the settled legal principles applicable to the issues arising in the case and proceeded to allow the appeal filed by the Insurance Company and reduced the compensation from Rs.24,62,065/- to Rs.20,00,000/-. TTTTTTT
The High Court only observed "Considering the submissions of the learned counsel for the parties" and "I feel that compensation should have been awarded as Rs.20,00,000/- and not Rs.24,62,065/-". No reasons were given by the High Court as to why the amount of compensation should be reduced from Rs.24,62,065/- to Rs.20,00,000/- and why it cannot be enhanced. Since the appellant-claimant had also filed appeal for enhancement of the compensation, the entire controversy was again open for decision before the High Court at the instance of the claimant and Insurance Company.
choose to file any special leave to appeal in this Court against the impugned order of the High Court. The effect of non-filing of appeal is that the Insurance Company has in principle accepted the High Court's order. TTTTTTT
This Court having allowed the claimant's appeal and setting aside the impugned order, it results in dismissal of the appeal filed by the Insurance Company (M.A.C.A. No.839 of 2014) and allowing of the appeal (M.A.C.A.No.690/2014) filed by the claimant. Had the Insurance Company filed special leave to appeal against the impugned order in this Court seeking further reduction in the compensation awarded by the High Court like what the Insurance Company did when they had filed appeal before the High Court questioning inter alia the quantum of compensation being on higher side, the Insurance Company too would have been entitled to prosecute their appeal on merits after remand before the High Court in terms of this order. It was, however, not done by the Insurance Company. TTTTTTT
In this view of the matter, the appellant-claimant alone will have a right to prosecute his appeal (M.A.C.A. No.690 of 2014) on merits before the High Court after remand of the case by this Court wherein the High Court will examine the question as to whether any case for further enhancement in the quantum of compensation awarded by the Tribunal is made out or not and, if so, on what grounds. TTTTTTT
Authorities relied upon : 2005 (12) SCC 303, 2005 (10) SCC 243, 2004 (13) SCC 680, 2000 (10) SCC 198,AIR 1969 Kerala 316.
TTTTTTT
Reference : Supreme Court. Sudarsan Puhan v. Jayanta Ku. Mohanty & Ors., civil appeal nos. 37983799 of 2016.
As mentioned above, the Insurance Company did not
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SPECIFIC PERFORMANCE
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SPECIFIC PERFORMANCE OF CONTRACT, PLAINTIFF HAS TO PROVE HIS READINESS AND WILLINGNESS
HE FACTS OF THE CASE INA NUTSHELL ARE AS FOLLOWS. THE appellants-defendant and the respondent-plaintiff had entered into an agreement for sale on 9th November, 2007 in respect of a shop for a total sale consideration of Rs.26,00,000 (Rupees twenty six lakhs). Rs.4,00,000/- (Rupees four lakhs) was paid by the respondent-plaintiff to the appellantsdefendant as earnest money and the remaining amount of Rs.22,00,000/- (Rupees Twenty Two Lakhs) was to be paid on 31st March, 2008 that is the date fixed for executing the registration of the sale deed.Admittedly, both the parties went to the concerned Sub-Registrar's Office on 31st March, 2008; but the sale deed was not executed. The respondent-plaintiff filed a suit on 29th April, 2008 for specific performance. The appellantsdefendant contested the suit contending that the respondent-plaintiff was not ready and willing to perform his part of the contract. Upon consideration of oral and documentary evidence, the Trial Court dismissed the suit for specific performance filed by the respondent-plaintiff holding that the respondent has failed to prove his readiness and willingness to perform the contract. In appeal, preferred by the respondent-plaintiff, the First Appellate Court set aside the judgment of the Trial Court and allowed the first appeal thereby granting specific performance in favour of the respondent-plaintiff. The judgment of the First Appellate Court was affirmed by the High Court, as aforesaid in para (1). Against the judgement of the High Court special leave petition was filed. The Supreme Court accepted the appeal.
The operative part of the judgment reads as under:In order to obtain a decree for specific performance, 48
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the plaintiff has to prove his readiness and willingness to perform his part of the contract and the readiness and willingness has to be shown through out and has to be established by the plaintiff. In the case in hand, though the respondent-plaintiff has filed the suit for specific performance on 29th April, 2008, the respondent-plaintiff has not shown his capacity to pay the balance sale consideration of Rs.22,00,000 (Rupees Twenty Two Lakhs). In his evidence, the respondent-plaintiff has stated that he has borrowed the amount from his friends and kept the money to pay the balance sale consideration. As rightly pointed out by the Trial Court, the respondent-plaintiff could not produce any document to show that he had the amount of Rs.22,00,000 (Rupees Twenty Two Lakhs) with him on the relevant date; nor was he able to name the friends from whom he raised money or was able to raise the money. Further more, as rightly pointed out by the Trial Court, the respondent-plaintiff could have placed on record his Accounts Book, Pass Book or the Statement of Accounts or any other negotiable instrument to establish that he had the money with him at the relevant point of time to perform his part of the contract. We are, therefore, in agreement with the view taken by the Trial Court that the respondentplaintiff has not been able to prove his readiness and willingness on his part. TTTTTTT
The relief for specific performance is purely discretionary. Though the respondent-plaintiff has alleged that he was ready and willing to perform his part of the contract, the First Appellate Court ought to have examined first whether the respondentplaintiff was able to show his capacity to pay the balance money. In our considered view, the First Appellate Court as well as the High Court has not www.lawteller.com
SPECIFIC PERFORMANCE properly appreciated the evidence and the conduct of the parties. The First Appellate Court as well as the High Court, in our view, was not right in reversing the judgment of the Trial Court and the impugned order cannot be sustained and liable to be set aside. TTTTTTT
Considering the relief to be granted to the respondent-plaintiff, admittedly the respondentplaintiff had paid an earnest money of Rs.4,00,000/(Rupees Four Lakhs) to the appellants-defendant and that has to be necessarily paid back to the respondent-plaintiff, of course with interest at the rate of 12% per annum (from the date of Agreement to Sell i.e. 9th November, 2007 till date i.e. 3rd October, 2018) and thereafter at the rate of 10% per annum
till the date of releasing the payment. Ordered accordingly. The amount of Rs.4,00,000/- (Rupees Four Lakhs) along with interest, as above, be paid by the appellants-defendant by way of Demand Draft in favour of the respondent within eight weeks from today. Further, the respondent-plaintiff is permitted to withdraw Rs.22,00,000/- (Rupees Twenty Two Lakhs) deposited by him before the First Appellate Court along with the interest, if any accrued on the same. TTTTTTT
Reference : Supreme Court. Vijay Kumar & Ors. v. Om Parkash, civil appeal no. 10191 of 2018 [arising out of SLP (C) No. 3768 of 2016]. —————
GLOBAL GLIMPSE JPMORGAN AGREES TO $135 MILLION SETTLEMENT FOR IMPROPER HANDLING OF ADRs The US Securities and Exchange Commission (SEC) announced that JPMorgan Chase Bank N.A. has agreed to pay a $135 million settlement for char ges related to improper handling of "pre-released" American Depository Receipts (ADR). The SEC found that JPMorgan had improperly provided ADRs in pre-release transactions, despite neither the broker nor customers having the requisite foreign shares to support the new ADRs. The SEC further noted that: "Such practices resulted in inflating the total number of a foreign issuer's tradeable securities, which resulted in abusive practices like inappropriate short selling and dividend arbitrage that should not have been occurring." JPMorgan has agreed to pay the settlement without responding to the charges the SEC has brought against them. JPMorgan marked the fourth depository bank that the SEC has brought such charges or findings against.
US SC DENIES TRUMP REQUEST TO ENFORCE NEW ASYLUM RULE The US Supreme Court denied a request by the Trump administration to enforce new asylum rules. The new immigration rule, made via Presidential Proclamation November 9, sought to immediately deny asylum to migrants who illegally cross the southern border into the US. In Trump's application for the Supreme Court to stay the Ninth Circuit's decision, White House Solicitor General Noel Francisco argued that the new rules were "designed to channel asylum seekers to ports of entry, where their claims can be processed in an orderly manner; deter unlawful and dangerous border crossings; and reduce the backlog of meritless asylum claims." Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh indicated they would grant the application for a stay. The high court's denial means a November district court decision and the subsequent Ninth Circuit decision upholding it will stand. www.lawteller.com
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ETHICS
DID YOU KNOW?
A lawyer charged a man $500 for legal services. The man n paid him with crisp new $100 bills. After the client left, the lawyer discovered that two bills had stuck together — he’d been overpaid by $100. The ethical dilemma for the lawyer: Should he tell his partner?
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ARGUMENT Two schoolgirls were having an argument. “My dad’s better than your dad. He’s a carpenter and makes buildings.” The other girl replied, “My dad does better than that. He’s a lawyer, and makes loopholes.”
It's illegal for parents to give their children under the age of 18 even a sip of alcohol. New Hampshire, U.S. It is illegal to inhale bus fumes with the intent of inducing euphoria.
LAST ADVICE Despite his best ef forts, the lawyer ’s client was convicted of murder and sentenced to die in the electric chair. On the eve of his execution, the convict called his attorney for last-minute advice. He was told, “Don’t sit down.”
New Jersey, U.S.
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Nevada Nevada,, U.S. It's still legal to hang someone for shooting your dog on your property.
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Nebraska, U.S. Barbers are forbidden from eating onions between 7am and noon.
Disclaimer - Lawteller Team is not responsible for the actuality of the above information as available in the public domain.
PREDESTINATION Believing in predestination, a new father set out three objects on the dining room table in preparation for his son’s arrival home from school. The first object was a $100 bill. “That represents high finance. If he takes this, he’s go into business.” The second object was a Bible. “If he takes this one, he’ll be a man of the cloth.” The third object was a bottle of cheap whiskey. “If he goes for this one, he’ll be a drunkard!” The father and his wife then hid where they could see their son’s approach. Soon, the son entered the room and examined each article briefly. He then checked to make sure that he was alone. Not seeing anyone, he stuffed the money in his pocket, put the Bible under his arm, and strolled out of the room draining the whiskey. The father looked at his wife and beamed, “How about that! He’s going to be a lawyer!” 50
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"Ofcourse I'm good. Look at all of these law books!" Courtesy - www.pinterest.com
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