27 February, 2008

Where is Afzal’s mercy petition?

The Times of India 25th Feb 2008 Page 11 Delhi
The mercy plea of Mohammad Afzal, a death row convict in the 2001 Parliament attack case, does not find mention in a home ministry document, sent after a Right to Information request. Interestingly, among the cases enumerated, it shows that one mercy plea by a MP convict was disposed of within a week.
In reply to a Right to Information application of a Delhi resident Subhash Chandra Agrawal wherein he had sought details on mercy pleas pending till date before the President, the home ministry came up with a list of 24 death row convicts, but there is no reference to Afzal. A Jaish-e-Mohammad activist, Afzal had approached former President A P J Abdul Kalam in late 2006, seeking clemency after the Supreme Court upheld his death sentence on August 4, 2005, and subsequently dismissed his review and curative petition.
In reply to Agrawal’s RTI plea filed on December 17, 2007, the pendency list named 24 convicts including those in connection with Rajiv Gandhi’s assassination — Murugan, Santhan and Arivu — crucially misses out on the name of Mohammad Afzal.

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Westfort Hospital rights issue gets SC nod

The Economic Times, New Delhi 25 Feb 2008 P 20

THE Supreme Court has ruled that mere unfairness does not constitute oppression, to claim relief under the provision of Companies Act. When the shareholders of a company are given right to subscribe to the rights issue along with others in the same proportion, no prejudice is caused warranting relief under the provision of the Act, said the apex court. It termed grant of relief in such case, by the Company Law Board, as illegal. A bench comprising Justice Tarun Chatterjee and Justice P Sathasivam said: “The CLB missed a most basic principle of Section 397 (of the Companies Act), namely, that mere unfairness does not constitute oppression.”
Chapter VI of the Companies Act deals with prevention of oppression and mismanagement. Section 397 deals with relief in cases of oppression.
The court said that when shareholders were given the right to subscribe to the rights issue along with all others in the same proportion, no prejudice, whatsoever, could have been caused to them.
The court decided a bunch of appeals with similar issues. In one such case, Mr V S Krishnan and five others were collectively holding in excess of one-tenth of the issued share capital of Westfort Hi-Tech Hospital. Alleging oppression and mismanagement in the affairs of the company, they had approached the CLB’s additional principal bench at Chennai for redressal of their grievances under the provisions of the Act. They alleged that the issue of further shares on right basis, transfer of shares and other instances like manipulation of minutes of meetings were illegal. The Board had held further issue of shares of the company as illegal and void. Aggrieved by it, the company and its chairman K Mohandas moved Kerala High Court. On November 14, 2006, the high court partially set aside the order of the Board. The high court had said that the issuance of right shares needs no interference and CLB went wrong. We order that petitioners (before CLB) and other NRI shareholders shall be given one month’s time to accept the rights shares offered and it is for them to accept the offer or not, the high court had said. It was challenged by Mr Krishnan and others in the apex court. Royalty part of import price
The Supreme Court in a ruling has said that pricing arrangement between a foreign collaborator and an importer is a clue to decide the contentious issue of technical know-how fees and royalty. For such levy, examination of technical assistance and trademark agreement (TAA) between the licensor and licensee is not enough, said the apex court. A bench comprising Justice SH Kapadia and Justice BS Reddy said: “In addition to the price for the imported goods, the buyer incurs royalty and licence fee costs. These are paid to the foreign supplier for using information, patent, trademark and know-how in the manufacture of the licensed product in India.” “Rule 9(1)(c)of the Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 stipulates that payments made towards technical know-how must be a pre-requisite condition for the supply of imported goods by the foreign supplier and if such condition exists, then such royalties and fees have to be included in the price of the imported goods,” the court said. M/s Ferodo India, the buyer which was the manufacturer of brake liners and brake pads in India had entered into TAA with UK-based M/s T & N International. Customs officials held that the technical knowhow fees and royalty were related to the imported goods and were a condition of sale for the import. Therefore, the knowhow fees and royalty was added to the CIF value of the imported goods.
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Willful defaults on rise; bankers blame archaic legal system

Financial Express 22 Feb. 08 New Delhi P 4

A significant rise in default cases has led to a surge in the level of non-performing assets (NPAs) in the banking sector. Interestingly, cases of willful default are much less compared to fraud ones. This has put the finance ministry under severe pressure to initiate a full investigation into the matter. In a recent meeting with finance minister P Chidambaram, PSU bank CEOs pointed out that the legal system in the country is not only archaic but also ambiguous and needed to be reformed at the earliest.

“Legal reforms are not keeping pace with the dynamics of the banking rules and until both are in sync, problems relating to NPA and other issues would come up,” a PSU bank chairman said, adding that the Reserve Bank of India (RBI) and the government must address the issue.
The central bank has already issued several caution advice notes to banks, stressing that fraud cases are on the rise. Due to the archaic and ambiguous legal framework in the country, impersonation and multiple title deeds are common which have had adverse financial implications on the banking system. Sources said banks could not seek recourse under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interests (SARFAESI) Act, as it provides legal recourse only in cases of willful default. “It does not come into play in case of frauds,” a senior banker pointed out.

Though Chidambaram has asked the banks to increase focus on raising personal, automobile and even housing loans, bankers said cautious steps would be taken to ensure that default cases are reduced. With the increase in provisioning norms for various segments including home and personal loan, banks finds it difficult to meet stiff targets.

Chidambaram said banks must focus on the credit delivery mechanism. He pointed out that there has been decline in credit towards segments like housing and consumer durables. Chidambaram has also urged banks to soften interest rates.

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Som Mittal loses court plea

Financial Express 22 Feb. 08 New Delhi Front Page

The Supreme Court on Thursday refused to quash the proceedings in a trial court against former Hewlett Packard GlobalSoft managing director Som Mittal. Som, now president of National Association of Software and Services Companies (Nasscom), has been held liable for not providing security to a woman employee of HP, who was raped and murdered in 2005 by a cab driver on her way back from work at night.
“The judgement sends a strong signal on corporate social responsibility, though the penalty is only Rs 1,000 in the event of a criminal liability,” says Sanjay Hedge, standing council for the State of Karnataka. A statement from HP, however, insists, “The Supreme Court has not expressed any opinion on the merits of the case. It has only directed Mr Mittal to urge all the contentions as available under law.”
Mittal had challenged the dismissal of his petition against the case, registered by the state government, by the Karnataka High Court.
The case has ignited a debate on the safety of BPO employees working in night shifts. Close to half of the over seven lakh employees in the BPO sector are women. There is also a related issue of how far a company management be held responsible for issues like this, which are an obvious failure of law and order.
Sulajja Firodia Motwani, MD, Kinetic Motor Company, believes that while the head of the company can’t be held responsible for the safety of all employees at all times, the company in this case should be made to compensate in some way to the family and the cab driver given exemplary punishment so that the industry becomes more sympathetic to women’s issues. “The BPO industry in particular is in a unique situation because of the unearthly work hours, which exposes women to higher risks,” she says.

Outsourcing industry majors, however, feel that their industry is being singled out and the government and Companies across sectors need to work jointly to evolve a broad set of guidelines for tighter security measures. “It’s also a law and order situation and security has to be a joint effort with the state government,” says Pramod Bhasin, president and CEO, Genpact.
Law requires Companies to provide adequate security and transportation to workers during night shift. Most BPO majors today ensure that women don’t travel alone in cabs and do reference check on drivers and some have also deployed GPS systems to track their cars.
“The issue is much larger,” says Poonam Barua of Forum for Women & Leadership
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26 February, 2008

Facing Harrassment at Work. Noida Techie Surrenders

Contributed by Nupur Pandey

Three senior executives of a leading software firm in Noida were accused of sexual harassment and criminal initimidation by a female colleague. One of the three accused is a senior HR professional working for the company.(Times of India Saturday February 16, 2008)

This case brings in light again the cases of sexual harassment in work cultures. Under day to day circumstances I have seen that when it comes to discussing sexual harassment we as individuals aint very comfortable with the issue. When i read this piece of article in Newspaper, I thought it would be a good opportunity to discuss this case in my group of friends and professionals so along with the news clipping I mailed it to some 25 people seeking their comments. Its been a week and till date I have received some 7 responses to my mail. Two of my professionals colleagues actually appreciated my effort and discussed what they had to say about it. One more positive response was from the CE of my previous organization who initiated a discussion on the same with his team and wanted to really bring about changes in the organization. However other interesting responses were "this case is for NGOs or human rights commission to deal with." another response was "India is a shitty place, yahan kuch nahi hone wala. We need a revolution. debates se kuch nahi hoga." some people who werent very comfortable talking about the issue said... we already have a policy so i dont think me or my company needs to think about it and finally another who said "forget it, i dont want to talk abt it"

My purpose of carrying out this discussion was so that whereever in which ever position an individual is working he had the capacity to affect change with in that particular scenario. So why not do it. WHy wait for somebody else to make the change.

For any query:-
Nupur Dwivedi Pandey
09215396762
nupurpandey@gmail.com

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The views expressed by the authors are their own and not that of the owner, moderator, editor or editorial board of Legal Point. Views are not a substitute for professional advice, acting on them will be the reader’s sole responsibility. While every effort is made to have no mistake in post, errors do occur. Legal Point do not own any responsibility for the losses or damages caused to any one due to such omissions or errors
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24 February, 2008

How to avoid lawyers????

Contributed by Deepak Miglani

Abraham Lincoin advised lawyers to discourage litigation. “As a peacemaker , the lawyer has a superior opportunity of becoming a good man. There will always be enough business. Never stir up litigation. A worse man can scarcely be found than one who does this. Who can be more nearly a fiend than he who habitually overhauls the register of deeds in search of defects in titles, whereon to stir up strife and put money in his pocket? A moral tone ought to be infused into the profession which should drive such men out of it.”
Lincoln practiced what he preached. A farmer who got into a boundary dispute with a neighbor one went to Lincoln to secure his services. But Lincoln told him; “Now, if you go on with this, it will cost bother of your farms, and will entail an enmity that will last for generations and perhaps lead to murder. The other man has lust been here to engage me. Now, I want you two to sit down in my office while I am gone to lunch and talk it over, and try to settle it. And, to secure your from any interruption, I will lock the door.’ As the farmer told it, Lincoln did not return for the rest of the afternoon, and “we two men, finding ourselves shut up together, began to laugh. This put us in good humour, and by the time Mr. Lincoln returned, the matter was settled.”
Courtesy: Lawyers Update, August 05
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20 February, 2008

SBI employee accused of Rs 90-lakh swindle

Mail Today 18th Feb 2008 P 6
The assistant manager of the bank’s credit card division is absconding
Showing how vulnerable credit card holders have become, an assistant manager of State Bank of India (SBI) cards has pulled off a massive Rs 90-lakh fraud. He transferred into his bank account funds from SBI card holders with high credit limits.Ironically, Ajay Shoken — the man identified as the employee who carried out the fraud and who was a resident of Paschim Vihar in West Delhi — was overseeing fraud control measures in SBI cards. He used his position to identify card holders with a large balance in their accounts and over five years, enriched himself by transferring huge sums into his bank accounts and those of his mother Shanti Devi, sister Amita Shoken and wife Rakhi Shoken.Shoken is on the run now, having dropped out of sight on February 5, and his employers believe he could try to flee the country.An FIR has been lodged by the assistant vice-president of the SBI Cards and Payment Services Private Limited at Delhi’s Parliament Street Police Station on February 8.The case came to light when HDFC Bank informed the SBI Cards that a “suspicious transaction” was detected in Shoken’s account. The matter was investigated further and it was found that the accused had used a highly unusual procedure to transfer funds directly from one credit card holder’s account to his own HDFC card. Probably his own handling of the fraud control mechanism at the SBI Cards helped him more in such a transaction.In the FIR, it has been alleged that Ajay Shoken, who was working with the company since 2003 as an assistant manager, used his position to commit the fraud. Since he was overseeing fraud control measures at SBI Cards, he could access confidential information regarding the clients.He diverted funds of various SBI card holders into his account and the accounts of his family members. SBI cards suspects that the scam may also go up to crores if further investigations are made into the matter involving more persons.Investigations by the company confirmed that money has been transferred from 13 various account holders. Further enquiry by the bank also revealed that there were six more credit card accounts of various banks where the funds were diverted by Shoken.When the SBI cards fraud control and investigation team carried out internal audit of the transactions, it discovered that there were about 100 transactions on various SBI cards of customers which amounted to more than Rs 90 lakh. For the last five years, the company was unaware of the ongoing fraud as Shoken had blocked sending options of credit card statements to the existing customers.Shoken would obtain demand drafts from various SBI card holders account and had them issued in favour of his relatives including his mother, Shanti Devi, sister, Amita Shoken and wife, Rakhi Shoken to the tune of lakhs of rupees.To ensure the fraud went undetected, Shoken created false entries and electronic records to show fraudulent permanent account reversal entries in the statements of different SBI card holders. When the investigations were carried out by the company, Shoken handed over his resignation. The company did not accept it but Shoken has been absconding since February 5, and the company fears that he might leave the country to escape the law.In order to save himself, he not only used his account, but also the accounts of his wife, sister and mother to transfer the huge funds. There were around six bank accounts of Shoken into which he transferred the balance from the different SBI cards. He did not send the bills that were generated to the SBI card holders from whose accounts he transferred the balance amounts.praveen.kumar@mailtoday.in

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19 February, 2008

Organ transplant law unable to break donor-broker-doc nexus

The Times of India Delhi 18th Feb 2008 Page 17

Had there been a ‘mercenary course’ for cocking a snook at the Transplantation of Human Organs Act, 1994, Amit Kumar aka ‘Kidney Kumar’ would have been a gold medalist. The Act restricts organ donation to a patient only by his close relatives. A stranger can donate his organs to a patient only if his consideration is nothing but ‘‘affection”. These provisions, along with the enforcing authorities, were taken for a ride by Kumar, who reportedly claimed before Nepal Police shortly after his arrest that he had conducted 3,000 kidney transplant operations in the last 15 years at his state-ofthe-art hospital functioning from residential premises. He also claimed he rendered a service to society by saving many persons, awaiting death while in an advanced stage of renal failure, by providing them with kidneys, and of course, by giving the poor donors a few bundles of cash. The Organs Act came into force on February 4, 1995, to regulate removal, storage and transplantation of human organs for therapeutic purposes and for prevention of commercial dealings in human organs. Section 9 of the Act deals with ‘‘restriction on removal and transplantation of human organs.’’ Section 9(1) says: ‘‘No human organ removed from the body of the donor before his death shall be transplanted into a recipient unless the do-nor is a near relative of the recipient.’’ Section 9(2) says if the donor is not a near relative, then the former has to mention in his application, consenting to donate the organ, that he is doing so because of his love and affection for the patient or ‘‘any other special reason.’’ Dealing with a kidney donation case, the SC, in its judgment on March 31, 2005, said the foundation of the laudatory law was to stop ‘‘shocking exploitation of abject poverty of many donors for even small sums of money’’. Since the object of the statute was crystal clear that it intended to prevent commercial dealings in human organs, the ‘‘special reasons’’ could, by no stretch of imagination, encompass commercial element, the court had said. The authorization committees, set up by every state which adopted the central law, should expeditiously investigate the real purpose of the organ donation before okaying it, the court had said and added to the statute a m a n d at o r y clause seeking disclosure of donor’s earnings for three preceding years from the date of consent to donate. Has the law made any difference to the prevailing situation? ‘Kidney Kumar’ has provided the answer. The donorbroker-doctor nexus has hoodwinked the legal requirements and bypassed the committees set up to inquire the real reason behind donation. All this was done in active connivance with the law enforcing machinery — the police. In India, more than 95% of end-stage renal disease patients die either because they cannot afford dialysis nor get an affectionate donor, who would gift a kidney. Can one fault a patient, who is fully aware that he is going to die if he does not get a kidney for a price he can shell out and who knows that he can not afford the repeated dialysis, for going to ‘Kidney Kumars’ who dish out instant donors? Would he be bothered whether the provisions of the Act had been complied with or not? Heightening this uncertainty is the manner in which the authorization committees function. Whether a donor’s application goes through it or not and whether the patient lives till it decides the application are major considerations that need a fresh look. If the government wants to stop commercialization of organ trade, does it have enough kidneys in the organ banks in hospitals? As long as there is a shortage of kidneys, there would always be a price for it. Till all these basic points get resolved, desperate people will continue to go to ‘Kidney Kumars’. If they follow the law strictly, they would be awaiting a call from God. And as long as the poverty stricken mass can be cowered into silence with coercion or bundles of money, there is little the Kidney Kumars need to be afraid of.

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Goa govt will issue notice to Manyata

The Times of India Delhi 18th Feb 2008 Page 11
Panaji: After deciding to put the registration of Sanjay Dutt’s marriage in Goa on hold, the state government on Sunday said it would issue a showcause notice to Manyata. Manyata will be asked to withdraw a residence certificate she submitted to register the marriage, said Salcete taluka’s senior revenue official Paresh M Fal Dessai. South Goa district collectorate is inquiring into the validity of the residence certificate. According to officials, Manyata gave a certificate signed by a a lower level revenue official instead of a senior official, who is authorized to issue a residence certificate. There have also been doubts whether Manyata has stayed in Goa for six months as stated in an affidavit given by her landlord in South Goa. ‘‘Manyata will be issued a show cause notice asking her to withdraw the certificate,’’ said Dessai. The notice will be issued to Manyata by early next week, officials said. The state government has suspended the lower level revenue official who issued the residence certificate. State law minister Dayanand Narvekar said registration the marriage was not possible until the couple submitted all the documents.

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ATM details not under RTI: CIC

The Times of India Delhi 18th Feb 2008 Page 11

Citizens cannot invoke their right to information to compel commercial banks to share details on operation of their ATMs. The Central Information Commission made the observation as it turned down an RTI application seeking information from the country’s biggest lender, SBI, about the operation of its ATMs.
“Information concerning operation of ATMs is really a matter of commercial confidence and as a matter of fact, lot of security is involved in such a procedure and such information can not be given to any outsider,” information commissioner Padma Balasubramanian said in a recent order.
The order came on the plea of G Ramachandra Rao, of Kurnool in Andhra Pradesh, who had approached SBI with a list of queries ranging from defective disbursement of its ATMs to seeking copies of guidelines framed by RBI and Indian Banks’ Association on maintenance of the automated teller machines.

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14 February, 2008

1993 blasts: SC denies bail to Rubina Memon

The Times of India Delhi 13th Feb 2008 Page 15
Allows Yusuf Memon To Undergo Fresh Medical Checkup

The acquisition of Pakistani passports by Rubina Memon, sister-in-law of Tiger Memon, who was sentenced for life in Mumbai bomb blasts case, snuffed out her chance of getting bail from the Supreme Court on Tuesday. However, another lifer, Yusuf Memon, lodged at Aurangabad Central Jail, was ordered to be examined afresh by a medical board at JJ Hospital in Mumbai after his counsel Harish Salve sought bail for him on medical grounds saying he was a known schizophrenic. The court asked the Maharashtra government to constitute a medical board and submit a report on Yusuf’s illness. It would hear his bail plea after getting the medical report on February 22. Rubina’s counsel, advocate A M Singhvi, forcefully contended that she was residing in Dubai at the time of the blasts and could not have been a party to the conspiracy. But the court put searing questions to him about her acquiring two Pakistani passports. The counsel argued that Rubina’s husband was acquitted and that she, being a normal housewife eager to take care of her two daughters, should be granted bail on humanitarian grounds. Additional solicitor general Gopal Subramaniam pointed out that she had gone to Pakistan immediately after the blasts and had acquired two Pakistani passports with which she travelled to Bangkok. The court reserved its order on bail petition of another lifer, Sardar Shahwali Khan but rejected similar pleas of other lifers, Muzanil Umar Kadri and Zamir Sayed Ismail Kadri. Several other convicts who were awarded various terms of imprisonment, were granted bail by the court.

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Does the government hold absolute copyright over appellations “Indian” and “National” when it comes to using them for educational institutions?

The Times of India Delhi 13th Feb 2008 Page 13

The issue has been thrown up by a fiat by the All India Council of Technical Education (AICTE), the apex regulatory body for engineering and technical education in India, prohibiting private institutions from using these two words. Worse, AICTE wanted all institutions having names containing “Indian” and “National” to drop these to comply with its directive. Many, fearing derecognition, fell in line and got their signboards repainted. So did Selvam Educational and Charitable Trust. It changed the name of its engineering college but decided to contest the move. Opposing the 2002 decision of AICTE, Selvam Trust on Monday tossed a question for a SC bench comprising Justices Altamas Kabir and J M Panchal to mull — can there be a state monopoly over the words “Indian” and “National”. Arguing for the Trust, senior advocate Arun Jaitley said that AICTE’s order marked a major anomaly where all kinds of commercial establishments — from shopping malls to restaurants — were free to use “Indian” or “National” while a private engineering or technical institution could not do the same even if it had a reputation for excellence. The Trust, through advocate G Balaji, put another poser — did not the AICTE’s decision conflict with the Emblems and Names (Prevention of Improper Use) Act that does not prohibit the use of the word “Indian” by any firm or company. While issuing notice to AICTE, the Bench stayed its controversial notification of 2002 till further orders, clearing the way for private institutions to use the appellations in dispute. The Selvam Trust had set up ‘The Indian Engineering College’ in 1984, which was recognized by the Tamil Nadu government and even granted minority status. However, when the notification prohibiting use of the words “Indian”, “National”, “All India”, “All India Council”, “Commission” in part of the name of the technical institution came, the Trust was forced to change the name of its institute to escape being derecognised. The institute was renamed ‘Rajaas Engineering College’. But Trust decided to challenge the directive and did not give up despite the Madras HC rejecting its plea. The AICTE directive prohibits private institutes from using names whose acronyms sound similar to “IIM”, “IIT”, “IISc”, “AICTE” or “UGC”. The AICTE justified its decision saying that it was meant to protect students from being duped. The order is, however, being opposed by those who feel that it marked a throwback to the age when government exercised all-pervasive control over citizens’ lives, and was out of sync with prevailing ethos.

Times View The notion that the state should have the exclusive rights to use the word ‘Indian’ when it comes to naming educational institutions betrays a deeper malaise — the mindset that confuses the state with the nation. It would be an unacceptable reduction that the word ‘Indian’ refers to things that are owned by the government. The AICTE seems to believe that students might be fooled into believing that an educational institution is stateowned or state-run if it has the word Indian in its name. This is an insult to the intelligence of those who are seeking professional education in India. It should, even at this stage, recognize the error in its mindset and acknowledge that the word Indian belongs to all Indians, individually and collectively.

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No trace of two illegal colonies, govt tells SC

The Times of India Delhi 13th Feb 2008 Page 6

The Delhi government, keen to regularise 1,432 unauthorised colonies, is facing an unusual impediment — it cannot trace two of them. In an affidavit before the Supreme Court, the DJB, tasked with providing drinking water and sewerage facilities to these colonies, expressed its inability to trace the two colonies, which appear to have vanished after the list of these colonies were supplied to it. ‘‘The urban development department gave a list of 1,432 colonies as submitted by the Residents’ Welfare Associations indicating the status of water supply and sewerage services. Out of 1,432 colonies, two colonies are not traceable and two others fall in the New Delhi Municipal Council area,’’ the DJB said. This apart, the Delhi government faces an uphill task in meeting the Apex court’s direction not to regularise any of the unauthorised colonies without first providing basic amenities. It its February 14, 2006 order, the court had said: ‘‘In case the state or the authorities are not in a position to make available basic services whereof it is admitted that there are severe limitations, there shall be no regularisation of unauthorised colonies. In other words, it means that the regularisation should be made only if it is possible for the respondents to make available basic services.’’ In response to this, the DJB in its affidavit said it has provided piped water supply only in 370 unauthorised colonies and is in a position to extend this service to 127 more colonies taking the total to a mere 492. The Apex court on Wednesday will hear petitions challenging the notifications stalling the sealing drive in unauthorised colonies and commercial establishments.

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Plea in HC to shift Games Village site

The Times of India Delhi 13th Feb 2008 Page 6

The land near Safdarjung Airport as an alternate site for the Games village and an area near Anand Vihar bus depot for a Metro yard — suggested ecologists opposing the ongoing construction for Commonwealth Games near Yamuna river on Tuesday as alternate sites to Delhi High Court. Claiming before a division bench comprising Justice A K Sikri and Justice Rekha Sharma that the Delhi Development Authority ignored Safdarjung Airport as an alternative site for the proposed Commonwealth Village Games village, the petitioners maintained that an Expert Appraisal Committee (EAC) of the Ministry of Environment and Forest (MoEF) had recommended Safdarjung Airport instead of the area near Yamuna riverbank.
It is on record that the EAC of the MoEF had on finding serious environment problems with the site in the riverbed, suggested the Safdarjung Airport as an alternative, the lawyer for the petitioners said. He also told the Bench that the said area near the airport consists of 200 acres of land and was not being used for any purpose. Besides being suitable it already was equipped with a sports complex, the petitioners argued, wondering how a planning body like the DDA ignore the suitability of the Safdarjung Airport and its environ for developing the games village.
The counsel for petitioners pointed out that existing connectivity between Safdarjung Airport and Jawahar Lal Nehru Stadium made it a suitable venue for an athlete’s village since there was a ring rail between the two. ‘‘The road connection is also straight and is less than 15 minutes in distance,’’ he added. Pressing for a shift in Games site to save the river, the petitioners pleaded that this would ensure the riverbed would not be damaged and the games village would come up in a raised, safe, secure and in an undisturbed site and truly central location in the city. For a new Metro line to feed the Games Village, the petitioners have suggested vacant land in Anand Vihar area where they said a Metro rail depot, yard and residential complex for the DMRC personnel can come up.

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Another DU professor is facing charges of sexual harrasment

The Times of India Delhi 13th Feb 2008 Page 6
‘Made Advances’ Towards Student, Probe On

There has been yet another complaint of sexual harassment in Delhi University. This time the man facing the allegation of making sexual advances towards his student is a senior professor in the department of geology. The complainant, a research student who was working with the professor, has said that she was forced to endure repeated sexual advances by the teacher.
Gurmeet Singh, proctor, admitted that they received the complaint a week ago. ‘‘An inquiry will be ordered before any action is taken,’’ he said. He refused to comment any further, saying it would be unfair to both parties to do so before the inquiry was conducted. He added that the matter would be referred to the sexual harassment committee in due course. Sources in the proctor’s office, meanwhile, confirmed that the complaint is being looked into by a proctorial committee, which will conduct the initial investigations. ‘‘Thereafter, the complaint will be sent to the sexual harassment committee which will decide on the punishment,’’ added the source.
According to sources, while the proctorial committee has talked to the professor, it is yet to talk to the girl. ‘‘The committee had fixed a meeting but she didn’t turn up for it. Now someone will be sent to her house so that another meeting can be set up,’’ added the source. The professor claims he is innocent and that the complaint was an act of vengeance since he had dismissed the student from a project. Speaking to TOI, the professor said: ‘‘The allegations are all baseless. The inquiry should be conducted as soon as possible so that the girl can be punished for libel.’’
It’s not the first time that a serious charge like sexual harassment has been levelled against a DU teacher. Earlier last year, two DU professors, one each from the Punjabi and Mathematics department, were dismissed from service on being found guilty of sexual harassment by the apex complaints committee of DU. Again, in October 2007, Prof. Bidyut Chakravarty was found guilty of the same and stripped of his post at Gandhi Bhavan in DU.

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12 February, 2008

Kiss row: Gere seeks stay on warrant, SC issues notices

The Times of India Delhi 12 February 2008 Page 17

Hollywood star Richard Gere wants to visit India in March but is wary of being nabbed either by the Rajasthan or UP police, who are still armed with arrest warrants issued by courts for his controversial kiss with actress Shilpa Shetty at an AIDS awareness function last year.
On Monday, he requested the Supreme Court to stay the execution of arrest warrants and a guarantee from the state governments that his exit from India, after the completion of his engagements, would be hassle free. Shetty supported Gere’s plea through her counsel Anand Grover, but a Bench comprising Chief Justice K G Balakrishnan and Justices R V Raveendran and L S Panta only issued notices to respondents on his plea. The Bench pointed out that the proceedings before the trial courts had already been stayed by the apex court. Gere’s counsel Indira Jaising said that though the proceedings were stayed, the actor apprehends that the police could still attempt to execute the arrest warrants that could cause immense harassment to him.
Shetty was the first to approach the apex court, immediately after the courts in Rajasthan and UP took cognisance of complaints accusing her and Gere of indulging in obscene acts in public that hurt the sentiments of people apart from violating several provisions of Indian Penal Code. After the SC stayed the proceedings before the trial courts, Gere followed suit and got similar protection.

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10 February, 2008

In RTI :- Why did law minister visit London in ’05?

The Times of India 9 Feb 2008 P 11 Delhi

A stop over in London in October 2005 could well become a headache for law minister H R Bharadwaj. It is undisputable that he was returning to India from Ghana after attending the Commonwealth Law Ministers meeting (October 17-20). But, what did he do in London as India’s law minister is shrouded in mystery.
An application under the Right to Information Act has brought this out withcompletely different versions of official business the minister carried out in London during his three-day stop over.
On November 5, 2007, the government told RTI applicant Dev Ashish Bhattacharya that Bharadwaj took an overview of the pending arbitrational proceedings involving government of India in London. “On his return journey, the minister also visited London to have discussions with counsels/solicitors engaged by the government of India to represent/defend Union of India in various arbitration cases pending before Arbitrators in London,” said the government.
Bhattacharya was curious to elicit more information and appealed against the scanty information relating to the minister’s visit to London. He appealed seeking more information not being satisfied with the first dose. The second version of the purpose behind the London visit, supplied to Bhattacharya on January 2 this year, read: “On his return journey from Ghana, the minister of law and justice along with law secretary visited UK (London) during October 22-24, 2005 to discuss the issues relating to legal profession of both countries on an invitation from the chairman of the Bar Council of England.” The conflicting versions are intriguing enough.
But what is even more curious is that the minister’s London visit is tantalisingly close to the decision of UK authorities to de-freeze the accounts of Bofors accused Ottavio Quattrocchi in January 2006. That followed a visit by law officer Bhagwan Datta who told the Crown Prosecution Service that there was no case against Quattrocchi.
The differing versions have been brought to the notice of the appellate RTI authority in the Department of Legal Affairs, which has passed an order asking concerned officials to recheck/reconcile the information given about the purpose of Bharadwaj’s London visit in October 2005. The authorities have to do quite a job to reconcile the two versions of purposes for which the law minister visited London.

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SC: YSR move to free lifers illegal


The Times of India 9 Feb 2008 P 11 Delhi

Says Premature Release Dangerous To Society

In a warning to governments not to indulge in political gimmickry at the expense of the common citizen’s life and security, the Supreme Court stalled the Andhra Pradesh government’s controversial decision to release lifers before they complete the mandatory 14 years in prison. The SC came down heavily on what it felt was an illthought out proposal to release hardened criminals in society, imperilling the lives of ordinary people, and terned the AP government’s move illegal. Though it allowed the Y S Rajasekhara Reddy government to go ahead with release of those convicted for offences other than heinous crimes like murder, the court was categoric that enlarging hardcore criminals, much before they served the mandatory prison term, would be perilous to society. On the stalled decision to release 1,500-odd prisoners on Independency Day last year, a Bench comprising Chief Justice K G Balakrishnan and Justice R V Raveendran said: “This is wholesale release of prisoners without applying mind to the crime for which they have been convicted. We cannot allow such wholesale release of criminals into society. People have a right to live peacefully in the society.” The view of the court seems to have been that keeping murderers in jail was a good way of reducing crime, or at least not adding to it. The SC’s remarks came on a petition filed by advocate R Chandrashekar Reddy who had challenged the AP government’s decision. His counsel, senior advocate P S Mishra, said the government was proposing release of lifers even though many of them had served just six to seven years in prison. He said Section 433A of the Criminal Procedure Code clearly mandates that no person convicted for life imprisonment would be released by the state government, which decides to remit his rest of the sentence, before completing a minimum of 14 years in prison. Counsel for the state government, senior advocate T R Andhyarujina, said the statutory bar did not apply as it was a decision taken by the governor in exercise of his constitutional powers to grant remission of sentence. This argument seeking to make statutes succumb to the governor’s constitutional power annoyed the court no end. The CJI said: “Can the power of the governor be exercised contrary to law? Life imprisonment means the person has to spend his entire life in prison. He could be released after spending 14 years in prison if granted remission by the governor.” When Andhyarujina pressed for superiority of the governor’s constitutional powers and tried to distinguish it from the statutory provisions, the Bench said: “All constitutional powers are to be exercised in conformity with law.” Making it amply clear that the court would not shy away from discharging its duty to test the legality of the governor’s exercise of remission powers for premature release of prisoners, the Bench said: “Let the governor exercise the powers under the Constitution. We will see whether he can act contrary to law.”
Apex court raps state for branding lawyer a Maoist
Advocate R Chandrashekar Reddy was branded a Maoist sympathiser and ordered to be put under surveillance by the Andhra Pradesh police soon after he moved the Supreme Court challengimg the state’s decision to release 1,500-odd prisoners much before they served their sentence. Seeking the state’s response to the allegations, a Bench headed by Chief Justice K G Balakrishnan said: “Somebody files a PIL, the court issues interim order and the very next day you brand him a Maoist sympathiser and put him under surveillance?” the court asked state’s counsel T R Andhyarujina. The state denied this and said police protection had already been given to the PIL petitioner. However, the court issued notice to the state and asked it to file its affidavit responding to the charges levelled by Reddy.
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ICICI Bank fined Rs 10L for credit card rejection

The Times of India 9 Feb 2008 P 10 Delhi

Had Put Lawyer In Negative List

Faulting the ICICI Bank for denying a credit card to a practising advocate in the Capital on the ground that the profession fell in the ‘negative profile’ the Delhi State Consumer Disputes Redressal Commission, has slapped a fine of Rs 10 lakh on the bank. The commission in a recent order slammed, what it termed ‘‘cavalier conduct and unpardonable negligence’’ on behalf of the bank and said this merited a ‘‘punitive damage of Rs 10 lakh... for not extending financial facility or even credit card on the premise that ‘Designation’ of an advocate has a negative profile.’’ The commission awarded the complainant Nivedita Sharma, a compensation of Rs 50,000 for the mental torture she had to face. According to the complainant, she was offered a credit card by the customer care executive of the ICICI bank and once she agreed to take the card, she was made to fill an application form and provide adequate papers including income tax returns which made her eligible for the credit facility. However, her application was rejected and returned with a note stating, ‘‘Designation — negative profile.’’ Pulling up the bank, the commission, in its order hit out at this practice and said that the complainant was asked to apply but when the column regarding her profession caught the eye of the bank official, he ‘‘rejected it with one stroke of a pen, ‘‘Designation — negative profile’’ throwing the RBI guidelines and other relevant, rational criterion to the wind without batting an eye-lid and little realizing the irreparable damage it would inflict upon the complainant and the practitioners of legal profession by demeaning it.’’ The bank contended that it was not their policy to refuse credit cards to lawyers and denial was case specific. It maintained that there were conditions which must be fulfilled by the applicant and that the legal fraternity has never been denied any facility. ‘‘There is no negative marking at least for lawyers,’’ the bank said. The commission however, took into consideration the word, ‘Designation’ used in the note by the bank. ‘‘The word ‘designation’ has mainly two components. First, it flows from the profession of a person like advocates, engineers.Other source of ‘designation’ is an office held by a person either in private organization or in the government organization. No profession except impermissible by law is a negative profile,’’ the commission said, adding it amounted to ‘corporate authoritarianism.’
Times View
We wholeheartedly support consumer rights and commend the commission for the enthusiasm displayed by it for an important cause. However, we believe that banks must have the right to decide whom they want to issue credit cards to, provided it is purely a business decision based on the applicant’s risk profile. After all, if any credit card user defaults, it is the issuing bank that will end up losing money. If a bank is not convinced about an applicant’s creditworthiness, it should not be forced to issue a card to that person.
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Justice takes 20 years but pays Rs 2 crore

The Times of India 9 Feb 2008 P 1 Delhi

A man failed to pay back a loan of Rs 8,400 in 1977, leading to the auction of his 9,200-square-yard plot on the outskirts of Ahmedabad for a sum of Rs 89,000 four years later. A long legal fight to win back possession consumed the man and his widow battled on. So far, this sounds like a common-enough story. But the finale of the saga is quite another matter. The widow won the case in the Supreme Court, but would have to shell out Rs 50 lakh to get back the land. And, what is even more surprising, the deal would still be worth it as the plot now costs Rs 2 crore. There could hardly be better vindication of the old-time Bollywood cliche, “insaaf ki chakki dheere pisti hai, par bareek pisti hai (the wheels of justice grind slowly, but grind fine)”, as the widow, Madhuben, would now get to own the land at Bavla village 30 years after her husband lost its possession. The Supreme Court quashed the auction of the land, executed in 1981, after persuading both parties to reach a compromise, under which Madhuben would pay Rs 50 lakh to the purchaser and he would return the plot to the widow. Based on the compromise, the bench comprising Justices Tarun Chatterjee and H S Bedi set aside the 27-year-old auction purchase after the widow’s counsel, H A Raichura, said it was unfair on the part of the authorities to auction the entire property when part sale of the huge tract of land could have satisfied the debt. The SC’s intervention ensured that the widow and her children who had been shortchanged by the authorities were able to get the just dues. Apart from once again highlighting the lengthy judicial process spanning more than two decades, the episode saw the widow’s counsel virtually mounting a mercy plea as the auction had been held valid by different judicial forums.
Under deal, SC helps widow win back land for Rs 50 lakh
The Supreme Court quashed the auction of the land, executed in 1981, after persuading both parties to reach a compromise, under which Madhuben would pay Rs 50 lakh to the purchaser and the plot would be returned to her. Madhuben’s husband could not pay back a loan of Rs 8,400 he had taken from one Vadilal Maganlal. Maganlal got a decree from the civil judge at Dholka in 1977 against her husband. The court passed an order for attachment of his property soon after he died. The widow and her minor children, though brought on record, could understand little of the prolonged litigation till their landed property was auctioned in 1981. The land was then purchased in auction for Rs 89,000 by one Thakkar Govindlal Balchandbhai. Madhuben’s counsel, H A Raichura, pointed out that the widow and her sons kept fighting the legal battle from the lowest forum till the high court, but surprisingly kept losing primarily because their lawyers remained absent, leading to dismissal of their pleas by default. However, the Bench was able to persuade the parties to reach a compromise taking into account the manner in which the widow and her children were done out of their land. On the basis of the compromise, the court directed setting aside of the auction sale on the condition that the widow and her children would deposit Rs 50 lakh before the district judge of Ahmedabad Rural at Mirzapur. If the money was not deposited as directed, then the widow and her children would return possession of land to the auction purchaser within one month of their failure to pay the amount, the court ordered.

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08 February, 2008

Fight over ‘Parle’ biscuits reaches HC

The Times of India Delhi 8 February 2008 Page 27

It’s a bitter fight to protect their sweets. On Thursday it just got prolonged a bit. Claiming proprietary rights over the Parle trademark, Ajay and Vijay Chauhan’s Parle Products has dragged Prakash Chauhan’s Parle Agro to the Bombay high court. Apparently, to prevent the latter from selling biscuits or confectionery under the ‘Parle’ or ‘Parle Confi’ mark. The company, which has a large share of the biscuit market is sour that Parle Agro, which deals in bottled water and beverages is entering their turf. Ajay’s company is demanding damages worth Rs 20 crore for the loss caused to it by the other Parle company.
On Thursday when the matter came up for the hearing before the Bombay high court, Justice D Y Chandrachud said he would like to hear it at one go. But it has now been deferred to February 25 as hearing took too long. The biscuit makers said that the ‘Parle’ trademark has come to be ‘‘exclusively associated with them by the public’’. They said that their ‘‘enviable reputation’’ and decades of goodwill is being ‘‘maliciously’’ misused by the other company. They were ‘‘shocked’’ to learn that recently the beverage makers entered their domain of biscuit making under the trade mark ‘Parle Confi’ without their ‘‘consent’’ and began ‘‘passing-off ’’ their new biscuits on the longstanding goodwill of the original biscuit-makers. ‘‘If any adverse publicity is generated from poor quality of the defendant’s good, it is bound to spoil the impeccable reputation of Parle Products,’’ they complained. Parle Products has asked HC to appoint, as an interim measure, a court receiver ‘‘with all the powers to enter any premises, if required to destroy the biscuits from Parle Agro premises.’’


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07 February, 2008

Delhi court to hear all cases against Husain

The Hindu 6 February 2008

The Supreme Court has transferred a criminal case pending against artist M. F. Husain, for allegedly hurting the religious sentiments of Hindus, from a court in Pandharpur, Maharashtra, to a court in the Patiala House here.
A Bench consisting of Chief Justice K.G. Balakrishnan and Justices C.K. Thakker and R.V. Raveendran, after hearing senior counsel Harish Salve and Mukul Rohatgi on Monday, ordered the shifting of the case on a petition filed by Mr. Husain. Already six cases against him are pending in a Patiala House court.
The apex court on October 5, 2007 stayed the Pandharpur court order issuing a non-bailable warrant and the criminal proceedings against the painter, and issued notice to Dwaipayan Venkateshacharya Warkhedkar, on whose complaint the trial court initiated the proceedings.
The complainant referred to a book Anti-Hindus, published in 2003, which mentioned Husain’s paintings that allegedly denigrated Hindu deities and Bharata Mata.
Mr. Salve said these were abstract paintings for which captions were not given by Mr. Husain.
However, the artist expressed apology but cases were filed in various courts in the country, accusing him of hurting religious sentiments, promoting enmity among different religious groups and promoting obscene material.
http://www.hindu.com/2008/02/06/stories/2008020652140900.htm


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High Court confirms life term for couple guilty of infanticide

6 February 2008 The Hindu
They had administered poison to their girl child in August 2001 They buried the body near their house
Prosecution provides clinching evidence
The Madras High Court has confirmed the life imprisonment awarded to a couple, which had administered ‘madar’ (erukkam) poison to their newborn girl baby.
Lamenting the wide prevalence of infanticide, a Division Bench comprising Justice D. Murugesan and Justice V. Periya Karuppiah said the offence committed by Anjala and Gopal of Namakkal district did not deserve any lesser punishment.
The couple administered ‘madar’ poison to the newborn in August 2001, as it was their third girl child.
They buried the baby near their house. It came to light after the village administrative officer lodged a complaint nearly a week after the incident. The body was exhumed and the post-mortem conducted in the presence of the Tiruchengode tahsildar.
The offence was conclusively proved by a forensic examination. The Namakkal Fast Track Court sentenced the couple to life in 2005, holding them guilty of murder.
Relying on clinching circumstantial evidence, the Judges noted that the claim that Anjala did not conceive was strong evidence in support of the prosecution case. Secondly, the accused had buried the child near their house, that too without informing any villager.
Additional evidence
The conduct is also additional evidence to the prosecution case, the Judges said.
Referring to the opinion of the forensic expert, the Judges said there was absolutely no evidence to dispute the findings. They added that the evidence of an expert was admissible under Section 45 of the Evidence Act.
The Bench also referred to the submissions of other witnesses such as the village health nurse and neighbours.Before directing the Fast Track Court to take steps to secure the parents to serve the remaining period of sentence, the Bench observed, “It is unfortunate that for one reason or the other, the practice of female infanticide still prevails…A child, being supremely important national asset, should be nurtured. This is more so in the case of a female child.”
http://www.hindu.com/2008/02/06/stories/2008020654410100.htm


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Women on night duty: case reopened

The Hindu 6 February 2008

The Supreme Court on Tuesday reopened the case relating to dismissal of the petition filed by Som Mittal, Managing Director of Hewlett Packard Global Soft Ltd, seeking quashing of the FIR lodged against him by the Karnataka police alleging that his company had violated a State government order prohibiting night shift for women.
After the rape and murder of Pratibha Srikant Murthy, an employee, on December 13, 2005, the police had filed an FIR accusing the BPO chief of violating statutory orders. Mr. Mittal’s plea for quashing of FIR was rejected by the Karnataka High Court. On January 29, an apex court Bench of Justice H.K. Sema and Justice Markandey Katju dismissed Mr. Mittal’s appeal.
However, in the same judgment, Mr. Justice Katju had recommended to the Uttar Pradesh government to issue an ordinance to restore the provision for anticipatory bail to an accused. The U.P. government had amended the Criminal Procedure Code in 1976 to withdraw this provision in the State.
Subsequent to the judgment, Mr. Justice Sema in a brief reference order said: “The appeal [of Mr. Mittal] is dismissed in terms of the signed judgments. Since there is difference of opinion [between the two judges] on the legal issue, let the matter be placed before the Chief Justice of India for appropriate orders.”
Accordingly, a Bench of Chief Justice of India K.G. Balakrishnan, Justice R. V. Raveendran and Justice J.M. Panchal reserved the verdict after hearing senior counsel K.K. Venugopal, appearing for Mr. Mittal, and counsel Sanjay Hegde, for Karnataka.
During the hearing, the CJI pointed out to Mr. Venugopal that since both Mr. Justice Sema and Mr. Justice Katju had dismissed the appeal, the matter could not be reopened.
However, Mr. Venugopal argued that the “legal issue” mentioned in the reference would include whether the criminal proceedings ought to have been quashed or not.
Mr. Justice Raveendran told counsel that the only legal issue referred was whether a single judge (Mr. Justice Katju) could give a judgment (directing the U.P. government to restore anticipatory bail provision) within a judgment and the appeal itself could not be reopened. The Bench, however, reserved verdict on the reference.
http://www.hindu.com/2008/02/06/stories/2008020660441200.htm
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Cheque bounce case: Cop(Constable) declared proclaimed offender

The Times of India Delhi 6th Feb 2008 Page 4
In what might be seen as a huge embarrassment for Delhi Police, a city court on Wednesday declared one of its constables a proclaimed offender (PO) in a case of cheque bounce. The complainant in the case, who is also a head constable with the Delhi police, has alleged that the constable who has been declared PO is with the Paschim Vihar police station and is currently attached to the Summon Pool branch of the Delhi police under the Kirti Nagar police station.
Metropolitan magistrate Sanjay Bansal declared the police constable Laxmi Narayan a PO after taking into consideration the execution of the process under the relevant sections of the Criminal Procedure Code(CrPC). ‘‘The process under sections 82 of CrPC...has been validly executed. Accused constable Laxmi Narayan is declared a PO,’’ the court said. The court also directed a copy of the order to be sent to the concerned DCP. According to the complainant’s counsel, advocate Tarun Rana, his client, head constable Mukesh Giri, who is with the police station at Sadar Bazar, had extended a loan of Rs 40,000 to constable Narayan. A cheque subsequently issued in return by Narayan in favour of the complainant in June 2005 was dishonoured by the bank due to insufficient funds.
A legal notice was then sent to Narayan but the complainant has said that even after the notice had been served, the accused had failed to make the payment in the stipulated period of time. The complainant then moved the court, after which the accused was served with summons. Later, bailable and non-bailable warrants were issued. Interestingly, during the hearing in the case on Tuesday, the counsel of the complainant told the court that the constable declared proclaimed offender is currently working with the Paschim Vihar police station and is attached to the Summon Pool branch of the Delhi police under police station Kirti Nagar but the police have still not been able to trace him.

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