27 May, 2008

Warrant-A Brief Introduction

Contributed by Dr.K.V.K.Santhy* & Deepak Miglani**
Warrant is a written order from a court to a police officer.
Warrant of arrest is a written order from a court to a police officer to arrest a person and produce him before the court.
Search warrant is a written order to a police officer to search the premises of a person for a particular thing or a document required by the court in connection with a case.
Contents of Warrant:-
It should contain the name of the accused and his father's name and the caste/tribe, nationally and residence of the person to be arrested, so as to place his identity beyond all doubt. The warrant should specify the offence charged and the name of the district and the court issuing it.
The presiding officer, who alone, can sign the warrant. He must be the officer who presides in the court at the time when the warrant comes to be signed. An arrest under the warrant duly signed but not sealed is an illegal arrest. The absence of a seal on a warrant of arrest renders it void and invalid and obstruction to the execution of such warrant of arrest is not punishable.
When Police may arrest without warrant :-
According to Section 41(1) of Criminal Procedure Code , any police officer may, without an order from the Magistrate and without warrant arrest any person-
1. If he is wanted in a cognizable offence or if there is a reasonable suspicion, complaint or information that he has committed a cognizable offence; or
2. If he possesses, without licence, implements of house-breaking; or
3. If he is proclaimed as an offender; or
4. If he possesses stolen property; or
5. If he obstructs a police officer on duty; or
6. If he tries to escape from illegal custody;
7. If he is a deserter from the army, navy or airforce;or
8. If he commits an offence when he is out of India, punishable under any extradition law; or
9. If he is a released convict who breaks the restrictions imposed by the court; or
10. If any requisition for his arrest has been received, oral or written from another police officer.
Warrants to whom directed:-
A warrant of arrest is ordinarily directed to one or more police officers. If the court issuing the warrant may, if its immediate execution is necessary and no police officer is immediately available, direct it to any other person. A police officer can not endorse a warrant to a private person.
Kinds of Warrants:- There are two types of warrants Bailable and Non Bailable.
Bailable Warrant If the offence committed is bailable the conditions for granting bail are given in the warrant itself, and the person to whom the warrant is issued can comply with those conditions and in all these cases the bail is granted by the police officer itself. This could also be issued in a non bailable offence.
Non Bailable Warrant If the offence committed is a non bailable one, the warrant issued to the accused is called Non Bailable warrant. Unlike in the Bailable warrant here it is mandatory for the person to come to the court. The basic purpose of issuing Warrant is to make a person to attend the court and participate in the court proceedings.
Search Warrant It is a written order given to the police officer by the court to search the premises of any person for specified things or documents relevant to conduct the Investigation or Trial. When the police officer shows the search warrant to the owner of the house he is under a duty to allow him into the premises and shall assist him in conducting the search. The police officer is not supposed to show any kind of harshness to the occupants of the house. He shall prepare a seizure list and get it signed by two respectable inhabitants from the same locality and also with the owner of the premises. A copy of the seizure memo shall be given to Owner. A search warrant can be issued to search a specific premises and it could be a general search warrant to search any premises and any person who ever is in possession of the documents or things.
Person arrested should be brought before Court without delay:-
The authorized person should bring the arrested person with in 24 hours before the Court without any unnecessary delay before which he is required by law to produce such a person.
Where warrant may be executed:-
A warrant can be executed at any place in India. The Extradition Act, 1903 must be followed to arrest a person out of India.

* Dr.K.V.K.Santhy,Asst.Professor,NALSAR University of Law ,Justice City, Shamirpet,Hyderabad. 500-027 Email id :- santhy.nalsar@gmail.com
** Deepak Miglani Advocate Delhi High Court Email id :-
deepakmiglani@hotmail.com
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22 May, 2008

हॉस्पिटल पैकेज डील से ज्यादा नहीं ले सकते

नई दिल्लीः स्टेट कंस्यूमर कोर्ट ने कहा है कि 'पैकेज डील' के तहत कोई हॉस्पिटल या मेडिकल सेंटर मरीज से तय रकम से ज्यादा पैसे नहीं ले सकता। कोर्ट ने कहा कि ऑपरेशन या ट्रीटमेंट के लिए मरीज को तय राशि का पैकेज बताकर इलाज के वक्त उससे ज्यादा रकम ऐंठने के मामले बढ़ रहे हैं। कई समस्याएं बताकर तय रकम से ज्यादा पैसे लिए जाते हैं। अगर कोई हॉस्पिटल, अस्पताल, नर्सिंग होम या मेडिकल सेंटर ऐसी हरकत करता है, तो उसे अनफेयर ट्रेड प्रैक्टिस कहा जाएगा। पीडि़त मरीज कंस्यूमर कोर्ट में इसकी शिकायत कर सकता है।
जस्टिस जे. डी. कपूर की अध्यक्षता वाली स्टेट कंस्यूमर कोर्ट ने जनहित में यह फैसला सुनाया। दिल्ली में मथुरा रोड, सरिता विहार स्थित अपोलो हॉस्पिटल में इलाहाबाद से इलाज के लिए आए मोहम्मद अजमल नामक मरीज ने कोर्ट का दरवाजा खटखटाया था। अजमल की शिकायत के मुताबिक मामला नवंबर 1996 का है। अजमल को पेट में तेज दर्द हुआ। इलाज के लिए वह अपोलो हॉस्पिटल आए। वहां जांच के बाद उन्हें इलाज के लिए 37,500 रुपये का पैकेज बताया गया, मगर ट्रीटमेंट के दौरान 1,60,000 हजार रुपये अधिक वसूल लिए गए। साथ ही दो ऑपरेशन नाकाम रहने पर तीसरा ऑपरेशन भी किया गया। उन्हें आर्थिक नुकसान के साथ मानसिक और शारीरिक पीड़ा भी झेलनी पड़ी।
जस्टिस कपूर ने अपोलो हॉस्पिटल को आदेश दिया कि वह पीडि़त मरीज को 5,00,000 रुपये अदा करे। यह राशि पीडि़त से पैकेज डील से अधिक राशि वसूलने और इलाज के दौरान उन्हें हुई परेशानी के बदले मुआवजे के रूप में देने को कहा गया। कोर्ट ने कहा कि यदि किसी मरीज का पैकेज डील के तहत इलाज किया जाता है तो यह संबंधित हॉस्पिटल या मेडिकल संस्थान की जिम्मेदारी बनती है कि उस वक्त ठीक से जांच कर उसे सही राशि बताएं। एक बार पैकेज बताने के बाद मरीज निश्चिंत हो जाता है कि अब इतने रुपये में उसे छुटकारा मिल जाएगा। जब ट्रीटमेंट के दौरान गंभीर समस्या बताकर उससे पैकेज से अधिक रुपये लिए जाते हैं तो उसे शारीरिक और आर्थिक रूप से झटका लगता है। ऐसा गलत प्रैक्टिस है।
कोर्ट ने कहा कि यदि एक बार किसी बीमारी के इलाज के लिए हॉस्पिटल और मरीज के बीच पैकेज डील हो गई तो ट्रीटमेंट के दौरान कितनी भी समस्याएं क्यों न आएं, हॉस्पिटल को उसी पैकेज के तहत मरीज का इलाज करना होगा। इमरजेंसी बताकर उससे अधिक रुपये नहीं ऐंठे जा सकते।
With Thanks from नवभारत टाइम्स
Source:-नवभारत टाइम्स ,22 May 2008, P.1 New Delhi

21 May, 2008

`Top executives liable for cheque bounce`

Top executives of a company, including the director or managing director in charge of the organisation, are liable for prosecution if a cheque signed by them bounces due to insufficient funds, the Supreme Court has said.
The liability can be fastened on the top executives when the complainant makes a specific averment (charge) against such individuals in his complaint, a bench of Justices Tarun Chatterjee and HS Bedi said.
The apex court passed the ruling while dismissing an appeal filed by the managing director of a company seeking to quash summons issued against him by a Maharashtra trial court in a cheque bounce case.
Tata Finance Ltd had filed cases against Paresh Rajda and Vijay Shroff, managing director and director of a company respectively, after a cheque of Rs 1 lakh issued by the duo bounced due to insufficient funds.
The Bombay High Court dismissed Rajda's plea to quash the summons, upon which he appealed in the apex court.
Interpreting Section 141 of the Negotiable Instruments (NI) Act and its earlier rulings, the apex court said it was necessary to specify in a complaint that at the time of the commission of the offence the person accused was in charge of the organisation and responsible for the conduct of its business.
"This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment, the requirements of Section 141 cannot be said to be satisfied," the apex court said recalling its observation in the SMS Pharmaceuticals case.
However, the apex court said, in a cheque bounce case a person is not liable for prosecution merely because he is a director in the company that issued the cheque.
A director in a company cannot be deemed to be in charge of and responsible for the conduct of the company's business, the bench said.
According to the apex court, in the present case the perusal of the complaint revealed that the accused were in charge and responsible for the conduct of the business and hence could not escape the liability for issuing a cheque that bounced due to insufficient funds.
"We are of the opinion that at a stage where the trial has not yet started, it would be inappropriate to quash the proceedings against them," the apex court observed while dismissing the appeal.
With Thanks from Buisness Standard
Source:- Business Standard 21st May 2008 New Delhi P. 1
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ऑपरेशन के बाद हुआ बच्चा, मुआवजा देगी सरकार

23 साल पहले एक महिला ने फैमिली प्लानिंग के लिए ऑपरेशन कराया। लेकिन ऑपरेशन नाकाम रहा और वह गर्भवती हो गई। उसने एमसीडी अस्पताल के खिलाफ कोर्ट का दरवाजा खटखटाया। अब कोर्ट ने सरकार से कहा है कि वह इस महिला को बतौर मुआवजा एक लाख रुपये का भुगतान करे। दिलचस्प बात यह है कि ऑपरेशन के बाद महिला को जो बच्चा हुआ, वह 21 साल का हो चुका है।
अडिशनल जिला जज कामिनी लॉ की अदालत ने फैसले में कहा कि अनचाहे गर्भधारण के कारण पैदा हुआ बच्चा (अब बालिग) यह न सोचे कि उसे अदालत यह कह रही है कि वह गलती से दुनिया में आ गया। लेकिन इतना तय है कि ऑपरेशन के बावजूद गर्भवती होने और बच्चा पैदा होने से महिला पर आर्थिक भार पड़ा। बच्चा जब तक बालिग हुआ तब तक पैरंट्स ने उसके खर्चे उठाएं हैं। पैरंट्स लोअर मिडल क्लास से ताल्लुक रखते हैं। बच्चे के लालन-पालन में पैरंट्स ने कुल 86 हजार रुपये खर्च किए हैं। गर्भधारण के कारण उन्हें दूसरी तकलीफों का भी सामना करना पड़ा। अदालत ने सरकार को निर्देश दिया कि वह महिला को अर्जी दाखिल किए जाने की तारीख से लेकर भुगतान की तारीख तक 10 फीसदी ब्याज के साथ बतौर मुआवजा एक लाख रुपये अदा करे।
जज कामिनी लॉ ने कहा कि महिला का सरकारी अस्पताल में लेप्रोस्कोपिक ऑपरेशन हुआ। इसके बावजूद उसे बच्चा हो गया। ऐसे में सरकार इस बच्चे की जिम्मेदारी से नहीं बच सकती। शिकायती के बयान से साफ है कि बच्चे की पढ़ाई आदि में हर महीने उसके 400 से 500 रुपये खर्च हुए हैं।
इसके पहले महिला ने अपनी अर्जी में कहा कि मैं अपने पति और तीन बच्चों के साथ सोनीपत में रहती हूं और लोअर मिडल क्लास फैमिली से हूं। सरकार ने छोटे परिवार का नारा दिया था। इसलिए मैंने सोचा कि दो बच्चों के बाद फैमिली प्लानिंग का ऑपरेशन करा लूं। मैं एमसीडी के अजमेरी गेट स्थित अस्पताल में गई, जहां 4 मार्च 1985 को स्टेरलाइजेशन (फैमिली प्लानिंग से संबंधित ऑपरेशन) किया गया। इस बाबत सर्टिफिकेट भी दिया गया। महिला ने कहा- बाद में मुझे लगा कि फिर से गर्भवती हो गई। इसके बाद जब अस्पताल गई, तो डॉक्टरों ने ध्यान नहीं दिया और लापरवाही दिखाई।
28 अगस्त 1987 को इस महिला ने एक लड़के को जन्म दिया। उसने अप्रैल 1989 में इस अस्पताल के खिलाफ अदालत का दरवाजा खटखटाया और मुआवजे की मांग की। ट्रायल कोर्ट ने सुनवाई के बाद एमसीडी अस्पताल को निर्देश दिया कि वह बतौर मुआवजा महिला को 10 हजार रुपये का भुगतान करे। महिला ने अडिशनल जिला जज की अदालत में अपील कर मुआवजे की राशि बढ़ाने की मांग की। अस्पताल ने भी ट्रायल कोर्ट के ऑर्डर को चुनौती दी।
Source:- नवभारत टाइम्स 20 May 2008 Delhi
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20 May, 2008

Court orders demolition of EC building

The Election Commision office was constructed ille- gally on a children's park
THE DELHI High Court on Monday ordered the demolition of an Election Commission office illegally constructed on a children's park in Green Park Extension in South Delhi.
Justice Kailash Gambhir also imposed a fine of Rs 25,000 on the MCD for not taking any action to demolish the structure despite repeated protests from the residents.
The DJB was to run a pump there but they had handed over the land to Election Commission after the pump became dysfunctional. The court asked the DJB to pay the Rs 11,000, received as licence fee, to the residents.
The total amount of Rs 36,000 will be handed over to the petitioner - Green Park Extension RWA - to restore the park by planting saplings in place of uprooted trees and purchasing of swings, which had been removed to make space for the building "Since the unauthorised construction has been raised in the green area, immediate steps shall be taken by the Office of the Chief Election Commission to remove it within one week and in case not demolished MCD shall demolish it within a period of one week thereafter," Justice Gambhir said.
"This is a classic case of ‘fence eating the grass'. It is beyond one's comprehension as to how DJB could allot the said site of pump house in favour of the office of the Chief Electoral Officer, more particularly when the site of pump house became non-functional and redundant," it said.
"The situation is more serious and alarming when you find that the law enforcing agencies themselves were indulging in such gross illegalities," said the judge.
Hindustan Times 20 May 2008 P. 3 New Delhi
With Thanks from the Hindustan Times
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Forces to disclose officers’ ratings

In what could open the floodgates for Right to Information (RTI) applications in the armed forces, the Central Information Commission has allowed disclosure of approach papers and notings that are placed before the review selection board of the defence services.
The notings, which include comments by superiors on officers being considered by the board, have been treated as confidential so far. In the light of the CIC order, there could be a spurt in RTI applications as well as litigation by disgruntled officers who might differ with a poor rating. The information commission has ordered that the documents be made public within 10 days. In his order, which adds up to defence officers accessing papers relating to their promotions, chief information commissioner Wajahat Habibullah reasoned that since reports relating to government’s department promotion committees (DPCs) were exempted under the RTI Act, the documents demanded by the appellant should be disclosed.
CIC had earlier ordered that proceedings of the DPCs, except those relating to annual confidential reports, be made public. In recent times, this has led to a flurry of applications from government officials, in many cases disgruntled, keen to know why they were bypassed for a promotion that they were hoping for.
Lucknow resident Col (retd) Inder Paul had appealed to the armed forces medical services (AFMS) — the medical wing of the defence forces — for approach papers related to review selection board meetings held on January 14 and August 8, 2003. The appeal was rejected by the first appellate authority on the premise that disclosure of the DPC would lead to disclosing of ACRs that was barred. Paul’s second appeal was also rejected on similar grounds following which he approached the CIC.
In the order, the CIC said that the documents should be given to Paul within 10 days. It, however, directed the ministry of defence to put forth any objections on record within the time limit since the ministry was not party to the hearing and has so far not been allowed to voice its opinion or consider the matter.

The Times of India 20 May 2008 P. 19 Delhi
With thanks from The Time of India
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Delhi HC to take up PIL on gay rights

Mumbai: In a tony neighbourhood in Andheri, Rahul, a 25-year-old IT professional, shares an apartment with Brian (27), who works at a multinational bank. For the last two years, their landlord and neighbours know them as perfect roommates, but to friends and a few family members they are a gay couple.
In a country where homosexual acts are punishable with life imprisonment, few like Rahul and Brian manage to make a home for themselves. A public interest litigation being heard in Delhi HC this week seeking to decriminalise homosexuality is being watched with bated breaths by the lesbian and gay community. ‘
‘Living with one’s partner is taken for granted by my straight friends, but I have to make sure who I tell about our relationship,’’ said Rahul, the more outspoken one who has also told his family about himself. Brian is still to decide what to tell his parents.
‘‘The Constitution guarantees the right to privacy and right to health, but the law treats gay people as criminals whose rights can be abrogated,’’ said Lesley Esteves, a lesbian activist and spokesperson for Voices Against 377 a coalition of LGBT, women’s and human rights activists. Voices is one of the organisations that has filed an intervention application in the high court seeking a ‘‘reading down’’ of the law.
Section 377 says ‘‘whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment of either up to 10 years or life’’. Enacted in 1860, it was more stringent than anti-sodomy laws that existed in English law of the time.
The section says, ‘‘Penetration is sufficient to constitute the carnal intercourse necessary for the offence. It includes a whole range of offences from mutual masturbation, to fellatio and anal sex.’’ The Law Commission in 2001 had recommended a repeal of Section 377, a move backed by the Union ministry of family and child welfare in 2006. The law, however, remains.
Gay activist and founder of NGO Humsafar Ashok Row Kavi explains that the PIL does not seek a repeal of Section 377. ‘‘The court has been urged to read down Section 377, so as to decriminalise homosexuality,’’ said Kavi, adding that more than legal repercussions, it is the social consequences that makes the law draconian.

The Times of India 20 May 2008 P. 16 Delhi
With thanks from The Time of India
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SC stays disqualification of Kerala CPM MLA on corruption charges

CPM MLA M J Jacob from Piravom assembly constituency earned a repreive on Monday when the Supreme Court stayed a Kerala high court order setting aside his election on the ground that he had indulged in corrupt electoral practices during the 2006 polls.
A vacation Bench comprising Justices C K Thakker and L S Panta, while allowing Jacob to participate in the assembly proceedings, barred him from casting his vote on any issue in the House.ss
The HC judgment had came on a petition filed by a voter, A Narayanan, who had alleged that Jacob and his agents had indulged in corrupt practices by publishing and distributing pamphlets containing false allegations against rival Democratic Indira Congress (Karunakaran) candidate T M Jacob. M J Jacob had defeaated T M Jacob by a margin of 5,150 votes in the election held on April 29, 2006.
Appearing for M J Jacob, senior advocate Shanti Bhushan said that it was a statutory appeal filed by the disqualified candidate and hence should be admitted for detailed hearing, to which the apex court agreed. Seeking interim relief, Bhushan contended that it had been the standard practice of the SC in such petitions involving elections to allow the disqualified MLA to participate in House proceedings. “Such persons are never barred from participating in debates in the assembly, as it would amount to shutting out a constituency from putting across its view through the elected representative,” he argued.
Appearing for Narayanan, advocate U U Lalit said that though the HC order could be stayed during the pendency of Jacob’s appeal, he should not be allowed to participate in the proceedings as his disqualification came on a serious charge of corrupt practices.

The Times of India 20 May 2008 P. 15 Delhi
With thanks from The Time of India
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HC: Separation not a ground for divorce

The Nagpur bench of Bombay high court dismissed a husband’s petition seeking divorce from wife living separately for last 19 years stating that it was not sufficient ground for a divorce. Single-judge bench of justice C L Pangarkar rejected the husband’s plea and said the petitioner ‘‘must first make out ground for divorce’’, just staying away for 19 years was not enough for judicial separation.
Petitioner Prabhakar Nikam is a resident of Bhalgaon in Buldhana and married Satyabhama on May 24, 1983. The couple have a son. In his petition, Prabhakar alleged that his wife did not desire to lead a happy life with him. ‘‘She was in the habit of frequently going to her parents’ house without any reason. She also used to pick quarrels and behave arrogantly with the inlaws,’’ the petition charged.
After meeting with an accident in 1989, Satyabhama went to her parents’ home and never returned, Nikam said adding that she treated him cruelly and drove him away when he tried to take her back. He asked for a relief under Section 13-A of the Hindu Marriage Act, 1955. However, Satyabhama categorically denied all the allegations. She claimed that it was Nikam who ill-treated her and forced her to bring dowry from her parents. She added that she had tried to end her life due to the ill-treatment meted out to her. She, however, did not disclose it to others as she did not want to severe the relations.
After hearing arguments, the court observed that a case for divorce was not made out and that Nikam had failed to prove the cruelty as well as desertion.

The Times of India 20 May 2008 P. 15 Delhi
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SC gives no relief to repeat child abuser

Emboldened by the light sentences he got for two earlier rapes, a serial child rapist went on to violate and kill two more minors in cold blood soon after he had served out the prison terms. The SC recently ruled that death was the only punishment for the pervert. Mohan Anna Chavan was no ordinary criminal. He was convicted in 1989 and sentenced to two years and 10 years by trial courts in Thane and Satara respectively for raping two minor girls in separate incidents. He came out of prison in July 1999 after serving the prison term, but without leaving behind his depravity.
In December 1999, five months after his release from prison, he set his eyes on two more young girls — Neelam and Gauri — and lured them to a secluded place promising them sweets. He raped the children and murdered them one after the other. He threw Neelam’s body into a well in a paddy field and concealed Gauri’s body after strangulating her.
The villagers, who had seen the children last in his company, spotted him the next morning and captured him. The police was called. The accused allegedly confessed to the crime and even helped recover the bodies.
Unlike the last time when he got away lightly, a Satara trial court considered the circumstancial evidence against Chavan to be a complete chain pointing to the guilt of the accused and awarded him death sentence classifying the case under “rarest of rare” category. The Bombay high court affirmed the death sentence finding the evidence strong enough to nail the convict for the ghastly crime.
Rejecting Chavan’s appeal against conviction and death sentence, a three-judge Bench of the apex court comprising Justices Arijit Pasayat, P Sathasivam and M K Sharma said, “The case at hand falls in the rarest of rare category. The past instances highlighted above, and the depraved acts of the accused call for only one sentence that is death sentence.” It said undue sympathy to impose adequate sentence would do more harm to the justice system and undermine public confidence in the efficacy of law. “It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed,” said Justice Pasayat, writing the unanimous judgment for the Bench.
The court said leniency in imposition of sentence without considering its effect on the social order could be a futile exercise. “The social impact of the crime, for example where it relates to crime against women other offences involving moral turpitude which have great impact on social order and public interest, cannot be lost sight of and require exemplary treatment,” the bench said.

The Times of India 20 May 2008 P. 15 Delhi
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19 May, 2008

Magistrate draws HC flak over ‘illegible’ NBW

The Delhi High Court has pulled up a city magistrate for issuing a non bailable warrant (NBW) in a case by scribbling the order in his own handwriting which was illegible.
‘‘The manner in which learned MM A K Chaturvedi has recorded the order in his hand leaves much to be desired. The order is hardly legible. The purpose of recording orders is not merely to make a record for the magistrate which he is able to read, but also for others to be able to read the same. It is expected that the MM shall in future take care to write orders in a legible handwriting,’’ Justice Vipin Sanghi observed on Thursday while quashing the NBW.
Apart from being criticized for penning down an illegible order, the MM was further faulted by for ‘‘mechanically issuing’’ the NBW, without specifying the reason. ‘‘It appears the MM has issued the NBW’s mechanically. There are no reasons given by him in the order,’’ HC added, citing SC rulings to re-iterate that a court is supposed to record its reasons for rejecting the explanation preferred by a lawyer for his client’s absence and why an NBW is therefore required.
Employees of a private firm had moved HC against the MM’s order which is hearing a dispute between the firm and DDA. The petitioners had already been grated conditional relief by HC two years ago exempting them from personal appearance before the MM’s court except at the time of framing of notice against them and at the time of recording of statement. The MM’s NBW came when they failed to appear for the latter.
According to lawyers for the employees, they were present in court on the stipulated date but the judge was on leave and the case was adjourned. Then the lawyer for the employees sought exemption on medical grounds and also attested a medical certificate which was summarily rejected by the MM. This is what prompted HC to quash the NBW as no reason was cited to disbelieve the medical certificate.

The Times of India 16 May 2008 P.7 New Delhi
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Don’t use force to recover loan, SC tells banks

ICICI Asked To Pay Litigation Bill
The Supreme Court on Thursday came down heavily on banks for engaging musclemen for recovering loans from their customers.
While dismissing a petition of ICICI Bank, a bench comprising Justice Tarun Chatterjee and Justice Dalveer Bhandari said: ‘‘We deem it appropriate to remind the banks and other financial institutions that we live in a civilised country and are governed by the rule of law.’’
It also asked ICICI Bank to pay Rs 25,000 as costs of litigation to the respondents.
According to the court, complaints received by Reserve Bank of India (RBI) regarding violation of guidelines and use of abusive practices followed by recovery agents would be viewed seriously.
The court said that RBI had expressed its concern about the number of litigations filed against the banks in the recent past for engaging recovery agents who have purportedly violated the law.
Reserve Bank of India in a letter accompanying its April 24, 2008 ‘Guidelines on Engagement of Recovery Agents’ had stated that it might consider imposing a ban on a bank from engaging recovery agents in a particular area, either jurisdictional or functional, for a limited period.
‘‘In case of persistent breach of above guidelines, the RBI may consider extending the period of ban or the area of ban. Similar supervisory action could be attracted when the High Courts or the Supreme Court pass strictures or impose penalties against any bank or its directors/ officers/ agents with regard to policy, practice and procedure related to the recovery process,’’ the apex court stated.

The Times of India 16 May 2008 P.4 New Delhi
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11-yr-old prefers rich dad to mom

When children speak, even judges listen. In a unique custody case, the Bombay high court removed a boy from his mother’s care after the 11-year-old told judges that although he loved both parents equally, he wanted to live with his father.
The division bench observed that in custody battles, the ‘‘wishes of the child must override all other considerations’’. Justice Ranjana Desai and R P Sondurbaldota interviewed the boy in their chambers and found that ‘‘for his age he showed a good amount of maturity’’. They also noticed how ‘‘stressed he was because of the discord between his parents’’. The boy’s name has been witheld to protect his identity.
The battle has been a bitter one. The mother, who has had custody of her son since her talaq in 1999, said the only reason he wanted to move was because the father was ‘‘extremely rich and offered him a very good lifestyle’’. The court acknowledged this and said that there was no doubt that the boy was drawn by the ‘‘comfortable lifestyle’’ of his father, a prominent real estate developer from Goregaon, but added that there were other reasons to be considered, such as the father-son bond. T
he mother also pointed out that there were a number of civil and criminal cases pending against the father and that he had even been in two weeks’custody for an economic offence. Moreover, she said that her exhusband was an Australian citizen and could easily take the boy out of the country and therefore should not be given custody.
The father, in his defence, said that he had been discharged from the cheating case and that the other matters were filed against him because he was the director of a real estate firm.
Father cites Muslim law to get son’s custody
Mumbai: In a unique custody case, the Bombay HC removed a boy from his mother’s care after the 11-year-old told judges that although he loved both parents equally, he wanted to live with his father.
The boy’s father, a prominent real estate developer in Mumbai, also sought to clinch his position by pointing out that under Muslim personal law, the guardian of a boy after he turns seven is the father.
The court was sympathetic to the mother, praised her for bringing up a child who ‘‘appeared well brought up and well groomed’’ and said no one could take a mother’s place in a child’s life. But the deal breaker was that the boy himself had asked to be with his father.
The mother will have access to her son on weekends while during school vacations the boy will divide his time equally between parents.
The father had first sought custody in 1999 but his plea was dismissed. This time it was different. ‘‘What has really weighed with us is the fact that the boy has said he wants to stay with his father...other things being equal we have no option but to direct that interim custody be given to father,’’ the order said.

The Times of India 16 May 2008 P.1 New Delhi
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CJI seeks to break norms for office space at home

Having acquired the Appu Ghar land to augment the Supreme Court premises, Chief Justice of India K G Balakrishnan is now trying to double the office space at his residence. This, even after New Delhi Municipal Council said rules of the elite Lutyens’ Bungalow Zone do not permit such additional construction.
The Times of India is in possession of the letter written by NDMC on April 10 expressing its inability to clear the building application which had been filed by Central Public Works Department on behalf of Justice Balakrishnan, the occupant of 5 Krishna Menon Marg. Unhappy with its decision, Justice Balakrishnan is learned to have summoned NDMC chairman Parimal Rai, to his residence on the evening of May 5, a Sunday. The secretary general of the Supreme Court registry, V K Jain, when contacted, pleaded ignorance about the May 5 meeting. ‘‘To the best of my knowledge, no such meeting took place,’’ Jain said.
Asked why the SC registry had made CPWD seek sanction for an impermissible addition to the existing building, Jain said, ‘‘We only expressed our need for more office space at the CJI’s residence. It is for them to see if that is permissible.’’ He added that he was yet to hear whether NDMC had granted sanction.
NDMC’S DILEMMA
CPWD writes to NDMC for expansion of office space at CJI’s bungalow at 5 Krishna Menon Marg At present, office space at his residence is 1,280 sq ft, already in excess of NDMC-stipulated 1,000 sq ft NDMC points to PMO, which must relax the norms and sanction the additional area in LBZ bungalow.
FIGHTING FOR ROOM
CJI may get more space if PM agrees
The Chief Justice of India is trying to double the office space at his residence, despite the fact that New Delhi Municipal Council says rules of the elite Lutyens’ bungalow zone do not permit such additional construction.
It was only two years ago that the urban development ministry issued the relevant office memorandum (OM) to all the occupants of Type VIII bungalows in LBZ. Given that all the SC judges stay in Type VIII bungalows, it is surprising that secretary general of the Supreme Court registry, V K Jain claims to be unaware of the 2006 OM fixing the plinth area norms for them. The OM shows that there is no way NDMC could have sanctioned the submitted plan for augmenting the office space because the plinth area of Justice Balakrishnan’s residence, 15,473 sq ft, is already far in excess of the maximum permissible limit, 9,175 sq ft. Since the existing office is 1,280 sq ft, the application to add an identical wing flew in the face of the OM’s stipulation that the office space in the residence cannot exceed 1,000 sq ft.
In the circumstances, CJI can hope to have more office space at home only if Prime Minister Manmohan Singh makes an exception in his case. For, NDMC’s letter states that ‘‘relaxation from PMO is required for construction of additional area beyond permissible’’. The rationale apparently is, the PM alone can authorize a deviation from the plinth norms as the guidelines contained in the 2006 OM had been issued with his approval.
In its letter dated April 10, NDMC told CPWD to resubmit its proposal with, among other things, the necessary clearance from the PM within 30 days. Justice Balakrishnan called the NDMC chief to his house five days before that deadline. It remains to be seen whether the CJI will still be able to cut through the elaborate safeguards meant to preserve the original character of LBZ, which has ‘‘a special historical significance’’ and ‘‘predominant green areas’’.

The Times of India 16 May 2008 P.1 New Delhi
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14 May, 2008

Supreme Court of India refuses to interfere with French law on Sikh rights

A Sikh forum on Tuesday presented an impossible task before the Supreme Court — to extend its jurisdiction to France to protect religious rights of the community, perceived to be under threat from a local law banning exhibition of religious symbols by citizens.
A bench comprising Chief Justice K G Balakrishnan and Justices R V Raveendran and Mukundakam Sharma chuckled at the suggestion but tried to reason it out with petitioner ‘Singh Legal Forum’ that it was a matter for the ministry of external affairs to take up with the French government and that the apex court had no role to play.
Petitioner’s counsel persisted with the plea for relief from the SC on the ground that there was no tangible help from the government and there had been no let up in the implementation of the rigorous French law, which was enacted in 2004 and was hurting the religious sentiments of a sizeable number of Sikhs in France. The bench, unable to make the petitioner see reason, said, “The government had taken up the matter with the French government and the SC can do little in this.”
The unrelenting petitioner angered the Bench. The bench said, “Then you go before the International Court of Justice or the European Human Rights Commission. We do not have jurisdiction over other countries.”
The petitioner NGO had first moved the Punjab and Haryana high court in 2005. The high court, after seeking replies from the Centre, had dismissed the petition saying the government had done its bit and the French government had clarified that the 2004 law applied to all religious communities equally and that there was no discriminatory application of the legislation banning exhibition of religious symbols in public.

With thanks from The Times of India 14 May 2008 P.9 Delhi
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HC grants custody of 2-yr-old boy to HIV+ mother

An HIV positive mother was restored the custody of her two-year- old child by Delhi High Court on Tuesday, which also asked a representative of NACO (National Aids Control Organisation) to counsel the woman so that she is able to take care of the child. Justice Geeta Mittal allowed Sunita Verma, an HIV positive patient to take custody of her child who was being brought up by Sunita’s in-laws after the death of the father from AIDS last year.
In proceedings held inside the judge’s chamber, attended by the aggrieved mother and her in-laws, the court directed the grandparents to hand over the custody of the child to the mother. Earlier, the Court had directed the grandparents to appear before it with the child, while observing that there was no law which could deprive a mother of her child because of AIDS. Justice Mittal also directed the Pediatrics department of All India Medical Institute to conduct medical examination of the child, and requested the NACO representative to ensure proper counselling of the mother after which the court will take stock of the situation on May 21.
Sunita, the 26-year-old mother, was allegedly thrown out of her in-laws home barely 13-days after her husband died due to AIDS and she was denied the custody of her child. The woman, now living with her old and ailing parents at Sagarpur in southwest Delhi, alleged that her son, who is not infected with HIV, was forcibly taken away by her inlaws, the day when the last rites of her husband were performed.
She was married to Satish Verma, a resident of Panipat in Haryana on June 20, 2005 and gave birth to the boy on July 20, 2006. She had then lodged an FIR against the in-laws for harassment and mental cruelty, which forced the latter to rush to HC for anticipatory bail. The court, after hearing the facts of the case, decided to suo moto broaden its intervention and ensure that the child’s interest are safeguarded. On the last date of hearing HC made it clear that Sunita cannot be deprived custody of her child and noted, ‘‘There is no law which can deprive a mother of her child because of AIDS.’’
The counsel for the in-laws, Ram Gopal Verma and Phoolwati, had contended that custody of the child cannot be given to their daughter-in-law as she was an AIDS patient. ‘‘You are only grandparents while she is the mother. She is already suffering, why do you want to make her suffer more by depriving custody of her child,’’ Justice Mittal had said.
The in-laws then alleged Sunita Verma, their daughter-in-law, was of bad character as she was suffering from the disease prior to marriage and it would have bad influence on the child. The court had however, taken strong exception to the allegations and told them the disease was not inflicted only through physical relation.
‘‘It is unfortunate that she has been deprived of her child. She cannot be deprived custody of her child just like a convicted father cannot be deprived custody of his child,’’ the court maintained.
With thanks from The Times of India 14 May 2008 P.7 Delhi
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सीए ही कर सकते हैं सेल्स टैक्स रिटर्न का सर्टिफिकेशन

सुप्रीम कोर्ट ने मंगलवार को कहा कि केवल चार्टर्ड अकाउंटेंट और कॉस्ट अकाउंटेंट ही सेल्स टैक्स रिटर्न का ऑडिट और सर्टिफिकेशन कर सकते हैं। इससे टैक्स चोरी रुकेगी। इस फैसले से सेल्स टैक्स कानूनों के जानकार वकीलों और पूर्व सेल्स टैक्स अफसरों पर असर पड़ेगा, जो सेल्स टैक्स प्रैक्टिशनर के तौर पर काम करते हैं।
जस्टिस एच. के. सेमा और जस्टिस मार्कंडेय काटजू की बेंच ने महाराष्ट्र के सेल्स टैक्स प्रैक्टिशनर्स असोसिएशन और बार काउंसिल ऑफ महाराष्ट्र की याचिकाओं को खारिज कर दिया। सुप्रीम कोर्ट ने बॉम्बे हाई कोर्ट के उस फैसले को सही ठहराया, जिसमें कहा गया कि सिर्फ चार्टर्ड अकाउंटेंट और कॉस्ट अकाउंटेंट ही सेल्स टैक्स रिटर्न सर्टिफाई कर सकते हैं। जस्टिस काटजू ने कहा कि हम इस मामले में हस्तक्षेप नहीं करेंगे। कानून में संशोधन के लिए विधायिका को कहा जाए।
हाई कोर्ट ने महाराष्ट्र वैट कानून में संशोधन को सही ठहराते हुए कहा था कि टैक्स चोरी बचाने में मदद करना ही इसका उद्देश्य है। यह एक्ट 40 लाख रुपये से अधिक सालाना बिक्री करने वाले सभी व्यापारियों के लिए अनिवार्य करता है कि वे सेल्स टैक्स रिटर्न को किसी चार्टर्ड या कॉस्ट अकाउंटेंट से सर्टिफाई कराएं। पहले व्यापारी सिर्फ टैक्स के वकीलों या पूर्व सेल्स टैक्स अफसरों की सेवाएं लेते थे। संशोधन में कहा गया कि ऑडिट सिर्फ सीए करेंगे। सेल्स टैक्स कमिश्नर और ट्रिब्यूनल के सामने व्यापारी का प्रतिनिधित्व वकील और सेल्स टैक्स प्रैक्टिशनर कर सकते हैं। हाई कोर्ट ने कहा कि एडवोकेट एक्ट के मुताबिक, एडवोकेट सिर्फ कानून में प्रैक्टिस कर सकते हैं, वे ऑडिटर नहीं हो सकते हैं।
याचिका दायर करने वालों ने कहा था कि बंदिश से संविधान में दिए गए बराबरी के अधिकार का हनन होता है। व्यापारियों को सीए या कॉस्ट अकाउंटेंट के लिए जेब ज्यादा ढीली करनी होगी। लेकिन हाई कोर्ट ने कहा कि ऑडिटिंग विशेषज्ञता का काम है। इसे वही कर सकता है, जो पेशेवर ढंग से ऐसा करने में प्रशिक्षित और सक्षम हो।
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Source:-नवभारत टाइम्स 14 May 2008 New Delhi

Bank ordered to pay compensation for forcibly seizing car

The state consumer commission has come down heavily on ABN Amro Bank for having forcibly seized a vehicle from a customer who had taken a loan from the bank to buy the vehicle and then selling the vehicle at a throwaway price. The bank will now have to pay a compensation of Rs 50,000 for the mental agony the consumer suffered. The complainant will also be refunded Rs 2.6 lakh, which was the margin money given by him, and the bank was asked to return all post-dated cheques submitted by the consumer.
Surender Chauhan, a resident of Gulabi Bagh and an advocate, had taken a loan of Rs 3.45 lakh for purchasing a Maruti Esteem in September 1995. By January 1998, he had already made a total payment of Rs 2.6 lakh to the bank. However in March, 1998 the bank forcibly seized the vehicle from outside the premises of Chauhan’s house, allegedly with the help of goons hired by it.
A report was lodged by the complainant in Pratab Nagar Police station. The car also contained Chauhan’s cell phone and stereo at the time that it was seized. Justice J D Kapoor observed that :‘‘The use of force through muscle men and recovering dues by publicly humiliating the debtor, beating him up and causing injuries is a serious violation of human rights. The method of recovery is illegal and not permissible under law.’’
Merely because, in the terms of the contract, the bank has the right to take back possession of the vehicle does not give it the right to do so by illegal methods. Justice Kapoor added :‘‘ Whenever the financer chooses to take possession of the vehicle through this method the consumer is entitled to get back all the margin money given by him as well as be returned the post dated cheques.’’

With thanks from The Times of India 14 May 2008 P.7 Delhi
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बच्चे का डीएनए तय करेगा मां का गुजारा भत्ता

पति-पत्नी के बीच गुजारे भत्ते को लेकर चल रही कानूनी लड़ाई में बच्चे के असली पिता का पता लगाने के लिए दिल्ली हाई कोर्ट ने छह साल के बच्चे का डीएनए टेस्ट कराने का आदेश दिया है। भरी अदालत में पति ने यह कहकर सभी को चौंका दिया कि उसकी पत्नी जिस बच्चे की परवरिश के लिए उससे भत्ता मांग रही है, वह उसकी संतान नहीं है।
जस्टिस विपिन सांघी ने रोहिणी निवासी पति की याचिका पर बच्चे का एम्स में डीएनए टेस्ट कराने का आदेश दिया है। अदालत ने कहा कि पिता बच्चे की परवरिश की जिम्मेदारी से उसी सूरत में बच सकता है, अगर यह साबित हो जाए कि वह उसका वास्तविक पिता (बॉयोलजिकल फादर) नहीं है। इससे पहले मैजिस्ट्रेट ने बच्चे का डीएनए टेस्ट कराने की याचिका खारिज कर दी थी। पति ने अदालत में कहा कि उसकी पत्नी से शारीरिक संबंध नहीं हैं।
लिहाजा जनवरी 2001 में जन्मा बेटा उसका नहीं है। उसने अपनी पत्नी पर विवाहेत्तर संबंध का भी आरोप लगाया और कहा कि उसकी पत्नी के अपने जीजा से अवैध संबंध हैं। अदालत में पेश तथ्यों के अनुसार दोनों का विवाह सितंबर 2000 में हुआ था। लेकिन शादी के कुछ दिन बाद ही उनमें अनबन हो गई। पति ने आरोप लगाया कि उसकी पत्नी की एक शादी पहले भी हुई थी और उसके पूर्व पति की संदिग्ध परिस्थितियों में मौत हो गई थी।
पहली शादी की बात उससे छुपाई गई। पहली शादी से उसकी पत्नी के पास एक बेटा भी है। मियां-बीवी जुलाई 2001 में अलग हो गए। पति द्वारा दायर याचिका में कहा गया कि अलग होते समय दोनों ने यह तय किया कि अपने सामाजिक स्तर को देखते हुए मामला अदालत में नहीं ले जाएंगे। लेकिन अगस्त 2006 में पत्नी ने सीआरपीसी की धारा 125 के तहत गुजारे भत्ते की अर्जी मैजिस्ट्रेट की अदालत में दायर की। जून 2007 में मैजिस्ट्रेट ने पति को पत्नी और बच्चे के रहन-सहन के लिए धनराशि देने का आदेश दिया।
हाई कोर्ट ने मैजिस्ट्रेट के आदेश को निरस्त कर दिया। एम्स के चिकित्सा अधीक्षक से कहा गया है कि खून के नमूने लेकर बच्चे का बॉयोलजिकल फादर तय किया जाए।
With Thanks from नवभारत टाइम्स
Source:-नवभारत टाइम्स 14 May 2008 P. 6 New Delhi

13 May, 2008

सरकारी कर्मी की गोपनीय रिपोर्ट बताना अनिवार्य

सुप्रीम कोर्ट ने कहा है कि सरकारी कर्मचारी की वार्षिक गोपनीय रिपोर्ट की जानकारी संबंधित कर्मी को देना अनिवार्य है। सार्वजनिक प्रशासन में पारदर्शिता और निष्पक्षता लाने के लिए यह जरूरी है।
जस्टिस एच. के. सेमा और जस्टिस मार्कन्डेय काटजू की बेंच ने बॉर्डर रोड इंजीनियरिंग सर्विस में अधिशासी अभियंता देव दत्त की याचिका पर यह फैसला दिया। सरकार का तर्क था कि कर्मचारी की गोपनीय रिपोर्ट में विपरीत टिप्पणी होने पर ही उसे इस बारे में अवगत कराया जाता है। अनुकूल टिप्पणी होने पर उसे इसकी जानकारी नहीं दी जाती। कार्मिक मंत्रालय के 1987 के निर्देशानुसार सिर्फ विपरीत टिप्पणी होने पर कर्मचारी को वार्षिक गोपनीय रिपोर्ट के बारे में बताया जाता है।
बेंच ने सरकार की इस कार्रवाई को मनमानीपूर्ण और समानता के सिद्धांत के खिलाफ कहा। बेंच की ओर से जजमेंट लिखते हुए जस्टिस काटजू ने कहा कि सरकारी कर्मचारियों को सामान्य रूप से पांच तरह के ग्रेड दिए जाते हैं- असाधारण, अति उत्तम, उत्तम, औसत, सामान्य और खराब। अगर असाधारण एंट्री के अलावा बाकी किसी भी तरह की ग्रेडिंग दी जाती है तो कर्मचारी को उसकी जानकारी देना इसलिए भी आवश्यक है कि वह अपनी शिकायत संबंधित अधिकारी को दे सके। अगर कर्मचारी को उसकी ग्रेडिंग नहीं बताई जाती तो इससे उसके प्रमोशन पर फर्क पड़ेगा। बेंच ने कहा कि ग्रेड वन को छोड़कर सरकारी कर्मचारी की सविर्स बुक में किसी भी तरह की अन्य प्रविष्टि को विपरीत टिप्पणी कहा जा सकता है।
याची देवदत्त के मामले में यही हुआ। लगातार पांच साल तक उसे अति उत्तम रैंक दी गई, लेकिन एक साल उसके कामकाज को उत्तम कहा गया। इसी कारण उसे सुपरिटेंडेंट इंजीनियर के पद पर प्रमोशन नहीं दिया गया। गोहाटी हाई कोर्ट ने देव दत्त की याचिका खारिज कर दी थी। लेकिन सुप्रीम कोर्ट ने कहा कि रिटायर्ड इंजीनियर को पेंशन का भुगतान आठ प्रतिशत ब्याज सहित दिया जाए। उसकी पेंशन प्रमोशन के वेतनक्रम के आधार पर तय की जाए। सुप्रीम कोर्ट ने कहा कि सेना को छोड़कर बाकी सभी विभागों के कर्मचारियों को उनकी सालाना गोपनीय रिपोर्ट से अवगत कराया जाए। सिविल, जुडीशियल और पुलिस सेवा में कार्यरत कर्मचारियों को उनकी वार्षिक रिपोर्ट की सूचना दी जाए।
With Thanks from नवभारत टाइम्स
Source:-नवभारत टाइम्स,13 May 2008,New Delhi, P.10
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04 May, 2008

Fake encounters worse than murder

Can't kill innocent for rewards:

SC In so called encounters justification offered by police on Nax- als is that if we don't kill them they will kill us. JUSTICE G.S. SINGHVI, Judge, Supreme Court

TERMING IT as "worse than cold-blooded murder", the Supreme Court on Tuesday condemned a section of the security forces who fake encounters to get gallantry awards and out-ofturn promotions. "Just for getting gallantry awards innocent people are termed as terrorists and killed in fake encounters in Jammu and Kashmir and the North East. It's worse than cold-blooded murder," Justice Aftab Alam said during the hearing of self-proclaimed godman Swami Shraddhananda's appeal against a Karnataka High Court verdict confirming his death penalty The court was hearing arguments of Karnataka's counsel Sanjay Hegde, who wanted the court to grant him death penalty. Hegde said the case fell within the category of 'rarest of rare' cases, as it was a pre-planned cold-blooded murder to get monetary benefit. Responding to Hegde's arguments, Justice Alam said: "Even fake encounters are pre-meditated...the whole thing is devilishly planned." Justice G.S. Singhvi, another Judge on the three-judge bench, supported Justice Alam's remarks, saying this was happening throughout the cotmtry and even the police personnel were guilty of it in nexus with Naxals. "In the so called encounters justification offered by police on Naxals is that if we don't km them they wn kill us," Justice Singhvi said. The bench headed by Justice B.N. Agrawal would further hear the case on Wednesday as the arguments remained inconclusive. The 'godman' was sentenced to death for murdering his wife Shakereh Namazi by burying her alive in the backyard of their Bangalore house in 1991. The high court confirmed the death sentence in September 2005.
With Thanks from the Hindustan Times
Source :- Hindustan Times 30th April 2008 P. 15 New Delhi

SC for strict law on acid attacks

Asking the Additional Solicitor General to examine the feasibil- ity of having a separate strin- gent penal law, the court told him to study a recent legislation of Bangladesh, which has come out with rigorous punishments for acid attackers.

THE CENTRE was on Monday directed by the Supreme Court to consider regulating the sale of acid and corrosive substances in the open market.
A bench headed by Chief Justice KG Balakrishnan gave the government two months to take a final decision and report back during the third week of July. Asking Additional Solicitor General Mohan Parasaran to examine the feasibility of having a separate stringent penal law, the court told him to study the recent legislation of Bangladesh, which has come out with rigorous punishments for acid attackers. The court said the government should bring in legislation on similar lines. The court's order to either have a separate law or introduce the provision in the Indian Penal Code against throwing acid on women was passed during the hearing of a PIL by a Delhi-based girl who is an acid attack victim. The petitioner has sought harsher punishment for the accused. Laxmi, 19, was attacked by a man who threw acid on her for refusing to marry him. The incident deformed the girl, leaving her arms, face and other body parts disfigured. Laxmi's counsel, Aparna Bhat, apprised the court about how even Bangladesh had a separate law to deal with acid attackers. She said under the present criminal law in India, an acid attacker is charged with merely inflicting grievous physical injuries that entails a maximum seven year jail term on conviction. Bhat pointed out the offence is bailable, which permits the accused to walk free even after arrest. She told the court Bangladesh also had an Acid Control Order, which regulated the sale of acid there. At this the bench asked the law officer why the government was not simply taking the Bangla Desh law and amending the Indian penal law appropriately, instead waiting for the reports of the Law Commission and NCW.

With Thanks from the Times of India
Source:- Hindustan Times 30th April 2008 P. 14 New Delhi

‘Wife' shame for judge

A JUDGE from Bobbili in Andhra Pradesh is in the dock after a woman, who claimed to be his wife, released to the media a video showing him in compromising position with her.

Madagi Harika learnt that G. Surya Prakashwas was going to marry another woman on April 30. Before releasing the video, she lodged a complaint against Prakash in a Visakhapatnam police station. She said Prakash had married her on November 4 and her family was witness. She alleged that he wanted her to keep the marriage under wraps till he convinced his family .
Harika, who is a graduate, said she came in touch with Prakash, a distant relative, over five years ago, after her first marriage ended in divorce.

She told police Prakash's mother had arranged the match, adding that her efforts to contact him had proved futile. She wanted the police to register a case of cheating and bigamy against him.
A JUDGE from Bobbili in Andhra Pradesh is in the dock after a woman, who claimed to be his wife, released to the media a video showing him in com- promising position with her. Madagi Harika learnt that G. Surya Prakashwas was going to marry anoth- er woman on April 30. Before releasing the video, she lodged a complaint against Prakash in a Visakhapatnam police station. She said Prakash had married her on November 4 and her family was witness. She alleged that he wanted her to keep the marriage under wraps till he convinced his family . Harika, who is a graduate, said she came in touch with Prakash, a distant relative, over five years ago, after her first marriage ended in divorce. She told police Prakash's mother had arranged the match, adding that her ef- forts to contact him had proved futile. She wanted the police to register a case of cheating and bigamy against him.
With Thanks from the Hindustan Times
Source:-Hindustan Times 30th April 2008 P. 13 New Delhi

16 years on, couple still not divorced

WHILE THE trial court passed a divorce decree in Jagdish Singh's favour, the HC reversed it holding that the lower court had erred in relying upon the husband's evidence NOW ON SC's order the case will be up for 'fresh disposal' before the HC
ESTRANGED FROM his wife for 24 years Jagdish Singh has been fighting a legal battle for a decree of divorce. But a technical flaw in the Allahabad High Court judgement has Singh in a fix. In fact following a trial court verdict granting him divorce in 1999 the high court had reversed the order in 2004. Singh suffered a set back yet again on Monday when the Supreme Court remitted the case back to the high court on the ground that it did not pass a reasoned order. Singh had challenged the high court's verdict in the apex court in 2005 hoping to get a favourable order. He wanted to end the 16-year-old litigation but was not granted any relief. The case will be up for "fresh disposal" before the high court that would decide the matter in accordance with law, after appreciating the evidence. A bench headed by Justice C.K. Thakker said: "When the law has conferred the power of re-appreciation of evidence on facts and on law on the first appellate court (Allahabad High Court), it would not be appropriate for this court to undertake that task." Asking the high court to record the reasons for passing its judgment, the bench directed it to give priority to Singh's case. However, it did not fix any timeframe for the high court to decide the case. Singh's marriage was solemnized on May 27, 1974 according to Hindu rites and rituals. Within six years of their marriage, the couple had a girl. In 1984 Singh's wife left him when the child was just four years old but filed a case against her husband seeking an order to restrain him from entering a second marriage. When Singh's persuasive efforts to bring back his wife failed, he moved the trial court in 1994 seeking divorce on the grounds of desertion and cruelty - his wife had even refused to attend their daughter's wedding, he had claimed. While the trial court passed a divorce decree in his favour, the high court reversed it holding that the lower court had erred in relying upon the husband's evidence.
With Thanks from the Hindustan Times
Source:-Hindustan Times 30th April 2008 P. 10 New Delhi

Judges can't escape RTI, says House panel

MPs trash CJI's views; fresh round of conflict between Parliament and judiciary When Constitutional authorities like the PM and Speaker were covered by the RTI, there was no question of any exemption. E.M.S. NATCHIAPPAN Constitutional MI functionaries are not covered under the Right to Information Act... and I am holding a constitutional office. -K.G. BALAKRISHNAN, CJI
PEOPLE HAVE every right to seek details of a judge's wealth, allegations of misconduct against him and appointments in the judiciary, according to a parliamentary panel. "Except judicial decision-making, all other activities of administration and persons included in the judiciary are subject to the RTI Act," said the report of the Parliamentary Standing Committee on Personnel, Law and Justice, tabled in the Rajya Sabha on Tuesday. The report opens a fresh round of conflict of views between the Parliament and the judiciary, which has made public its opposition to the idea of being scanned by the public. Ten days ago, Chief Justice K.G. Balakrishnan had said he was holding a constitutional office. "Constitutional functionaries are not covered under the RTI Act," he said. But the House panel said it had examined the law: "We have examined in detail every clause of the RTI Bill 2004, and it is clear that all three wings of State - executive, legislature and judiciary are fully covered under this Act." E.M. Sudarsana Natchiappan, who heads the panel, said: "When Constitutional authorities like the prime minister and Lok Sabha speaker were covered by the RTI Act, there was no question of any exemption for any other individual's office." Judicial decisionmaking doesn't come under the Act because decisions are pronounced in open courts and consultation between judges is a privilege, he said. Natchiappan said it was important to end the confusion prevailing on the matter, and after discussing the interpretation of various sections of the Act, "the committee was very clear that all Constitutional authorities came under the definition of public authority". "The pith and substance of this Act is to empower people by allowing them to seek information on those occupying high offices and making decisions which affect their lives. Any reluctance only amounts to dilution of people's right to know," Natchiappan said.
With Thanks from the Hindustan Times
Source:- Hindustan Times 30 April 2008 New Delhi
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It is for the workman to prove that his resignation was taken under duress

Contributed by Deepak Miglani

When an employee alleges that his resignation was obtained under duress, the burden of proof will lie upon him to support the allegation. He/she has to prove that resignation was taken under duress.

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No bonus on suspension allowance

Contributed by Deepak Miglani Legal Buddy

No bonus will be payable on the suspension allowance since the employee did not actually work during that period and also, the subsistence allowance cannot be considered as salary or wages.

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Co-operative Society can be treated as an establishment as defined under the ESI Act.

Contributed by Deepak Miglani Legal Buddy


The co-operative societies rendering services to the members are domestic in nature like operating lifts,watersupply,electricity,cleaning,sweeping and security , as such, these services are essential for the very existing and security of its members and society building cannot be said to economic activity. It can not be treated as establishment even though twenty or were employed for wages on any day of the preceding twelve months, as contemplated under the ESI Act hence unless extended and made applicable specifically by notification cannot be treated as an establishment as defined under the ESI Act.

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