30 June, 2008

Offence and Atrocities against member of Scheduled Castes and Scheduled Tribe

Contributed by Deepak Miglani Adv. and Dinesh Miglani Adv.
Despite various measures to improve the socio-economic conditions of the Scheduled Castes and the Scheduled Tribes, they remain vulnerable. They are denied number of civil rights. They are subjected to various offences, indignities, humiliations and harassment. They have, in several brutal incidents, been deprived of their life and property. Serious crimes are committed against them for various historical, social and economic reasons. Under the circumstances the Protection of Civil Rights Act, 1955 and the normal provisions of the Indian Penal Code have been found to be inadequate to check these crimes. A special legislation to check and deter crimes against them committed by non-Scheduled Castes and non-Scheduled Tribes has, therefore, become necessary. So, The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989 was enacted to prevent the commission of offences of atrocities against the members of the Scheduled Caste and the Scheduled Tribes.
OFFENCES OF ATROCITIES
Section 3 of the above mentioned act explain the type of atrocities which can be committed against the scheduled caste and scheduled tribe by the person whoever not the member of the Scheduled Caste and Scheduled Tribe.
Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, commits the following acts:-
1.Forces to eat any inedible or obnoxious substance:- Who ever forces a member of a Scheduled Caste or Scheduled Tribe to drink or eat any inedible or obnoxious substance;
2. Dumping excreta, waste matter, carcasses and any other obnoxious substance:- Who ever acts with intent to cause injury , insult or annoyance to any member of a Scheduled Caste or Scheduled Tribe by dumping excreta, waste matter, carcasses or any other obnoxious substance in his premises or neighbourhood;
3. Forcibly remove clothes and paraded naked or with painted face:- Who forcibly removes clothes from the person of a member of a Scheduled Caste or Scheduled Tribe or parades him naked or with painted face or body or commits any similar act which is derogatory to human dignity;
4. Wrongfully occupies or cultivates any land:- Who ever wrongfully occupies or cultivates any land owned by, or allotted to , or notified by any competent authority to be allotted to , a member of a Scheduled Caste or Scheduled Tribe or gets the land allotted to him transferred;
5. Wrongfully dispossess from land:- Wrongfully dispossess a member of a Scheduled Caste or a Scheduled Tribe from his land or premises or interferes with the enjoyment of his rights over any land, premises or water;
6. Compel or entices to beggar:-Whoever compel or entices a member of a Scheduled Caste or Scheduled Tribe to do “beggar” or other similar forms of forced or bonded labour other than any compulsory service for public purposes imposed by Government;
7. Force or intimidates to vote or not to vote:-Forces or intimidates a member of a Scheduled Caste or Scheduled Tribe not to vote or to vote to a particular candidate or to vote in a manner other than that provided by law;
8. Institutes false, malicious or vexatious suit:- Who ever institutes false, malicious or vexatious suit or criminal or other legal proceedings against a member of a Scheduled Caste or Scheduled Tribe;
9. Gives any false or frivolous information to any pubic servant to use his lawful power to use his lawful power to the injury or annoyance :- Who ever gives any false or frivolous information to any public servant and thereby causes such public servant to use his lawful power to the injury or annoyance of a member of a Scheduled Caste or Scheduled Tribe;
10.Intentiaionally insults or intimidates to humiliate:- Who ever intentionally insults and intimidates with intent to humiliate a member of Scheduled Caste or Scheduled Tribe in any place within public view;
11. Assaults or uses force to any woman with intent to dishonour or outrage her modesty:-Who ever assaults or uses force to any woman belonging to a Scheduled Caste or Scheduled Tribe with intent to dishonour or outrage her modesty;
12.Dominate the will of a woman to exploit her sexually:- Who ever being in position to dominate the will of woman belonging to a Scheduled Caste or Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed;
13.Corrupts or fouls the water of any spring, reservoir or any other source:-Who ever corrupts or fouls the water of any spring , reservoir or any other source ordinarily used by members of the Scheduled Caste or Scheduled Tribe so as to render it less fit for the purpose for which it is ordinarily used.
14.Denies any customary right of passage to place of public resort or obstruct member from using and having access:- Who ever denies a member of a Scheduled Caste or Scheduled Tribe any customary right of passage to place of public resort or obstruct such member so as to prevent him from using or having access to place of public resort to which other members of public or any section thereof have a right to use or access to ;
15.Force or causes to leave house, village or other place of residence:-Forces or causes a member of a Scheduled Caste or Scheduled Tribe to leave his house, village or other place of residence
shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine.
Whoever, not being a member of a Scheduled Caste or Scheduled Tribe,-
(i)Gives and fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any member of a Scheduled Caste or Scheduled Tribe to be convicted of an offence which is capital by the law for the time being in force shall be punished with imprisionment of life and with fine; and if an innocent member of a Scheduled Caste or Scheduled Tribe be convicted and executed in consequence of such false or fabricated evidence, the person who gives or fabricates such false evidence, shall be punished with death;
(ii)Gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any member of a Scheduled Caste or Scheduled Tribe to be convicted of an offence which is not capital but punishable with imprisonment for a term of seven year or upwards , shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to seven years or upwards and with fine;
(iii)Commits mischief by fire or any explosive substance to cause damage to any property:- Who ever commits mischief by fire or any explosive substance intending to cause or knowing it to be likely that he will thereby cause damage to any property belonging to a member of a Scheduled Caste or Scheduled Tribe, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to seven year and with fine;
(iv)Commits mischief by fire or any explosive substance to cause damage to any property which ordinarily used as a place of worship or as a place of human dwelling etc:-Who ever commits mischief by fire or any explosive substance intending to cause or knowing it to be likely that he will thereby cause destruction of any building which is ordinarily used as a place of worship or as a place for human dwelling or as a place for custody of the property by a member of a Scheduled Caste or Scheduled Tribe , shall be punishable with imprisonment for life and with fine;
(v)Commits any offence under the Indian Penal Code(45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property :- Who ever commits any offence under the Indian Penal Code(45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine;
(vi)Causes any evidence to disappear with the intention of screening the offender from legal punishment:- Who ever knowingly or having reason to believe that an offence has been committed under this chapter , causes any evidence of the commission of that offence to disappear with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false, shall be punishable with the punishment provided for that offence;or
(vii)Public servant who ever commits any offence under this section :-Who ever being a public servant, commits any offence under this section, shall be punishable with imprisonment for a term which shall not be less that one year but which may extend to the punishment provided for that purpose.
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18 June, 2008

Wealth no criterion to get child’s custody :हिंदू मैरिज एक्ट घरों को तोड़ रहा है! -SC

SC: Wealth no criterion to get child’s custody

The Supreme Court on Tuesday said the wealth gap between estranged parents or the promise of a luxurious lifestyle and quality education for their children could not be the primary factor in deciding custody battles, even as it lamented the growing divorce rate in the country.

A Bench comprising Justices Arijit Pasayat and G S Singhvi said that courts looked for guarantee of all-round welfare of the child when they assigned the task of bringing him up to one parent, while giving visitation rights to the other.

The remarks came during the hearing on the 10-yearold fight between estranged partners Gaurav and Sumedha over who gets custody of their only son. In the first round, Gaurav got custody of their son with the Supreme Court ruling in his favour when the child was less than three years old.

The battle was revived when Sumedha approached the High Court afresh, complaining that she was abused and even assaulted whenever she visited her estranged husband’s house to fetch the child. Gaurav, who was penalised by the high court, rushed to the apex court to appeal against the punishment.

The issue also saw the SC Bench express concern over the rising number of divorce cases. “The Hindu Marriage Act has broken a lot of homes. Courts never intend to break homes. But people these days seem adamant to seek divorce at every excuse,” the Bench said.

During the hearing, Gaurav’s counsel, senior advocate Shanti Bhushan, said that there had been no violation of the visitation rights of the mother and that the father, belonging to a business family, was looking after the son very well and had even put him in the most expensive school in Delhi, which was fully airconditioned.

What the father intended to inform the apex court was that he had the money to take good care of his son. The apex court said that neither of the estranged parents should flaunt his or her riches to seek custody of the child.

“Ultimately, it is the child who suffers. We are not so much concerned about the individual riches or the ego of the estranged parents. No amount of luxury or riches can give the child the affection and love of the father or the mother. We are more concerned about the human angles involved in such tricky problems,” the Bench said.

The Bench kept the matter for hearing on Wednesday seeking suggestions from both the father and the mother for an amicable settlement of the issue and stressed that for both, the child’s welfare should be of paramount consideration, as it was for the court.
With thanks from The Times of India 18 June 2008 P.1 7Delhi
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हिंदू मैरिज एक्ट घरों को तोड़ रहा है!

तलाक के बढ़ते मुकदमों के मद्देनजर सुप्रीम कोर्ट ने कहा है कि हिंदू मैरिज एक्ट परिवारों को जोड़ने के बजाय तोड़ने का काम कर रहा है। जस्टिस अरिजीत पसायत और जस्टिस जी . एस . सिंघवी की बेंच ने एक बच्चे की कस्टडी को लेकर पति और पत्नी के बीच चल रहे मुकदमे की सुनवाई के दौरान यह टिप्पणी की। बेंच ने कहा कि तलाक के बढ़ते मामलों का सीधा और बुरा असर बच्चों पर पड़ता है। अदालत ने कहा कि 1955 में बने कानून में कई बार संशोधन किया गया है। तलाक और दांपत्य जीवन बहाल करने का यह कानून अंग्रेजों के कानून पर आधारित है। बेंच ने तल्ख लहजे में कहा कि आजकल शादी के समय ही अग्रिम तलाक याचिका तैयार कर ली जाती है। अदालत का मत था कि बच्चे की खातिर मां - बाप को अपने अहं किनारे कर देने चाहिए। आपसी मतभेद भुलाकर बच्चे के भविष्य पर ध्यान केंद्रित करना चाहिए। अदालत ने साफ कहा कि अलग हुए पति - पत्नी की इच्छा के मुकाबले बच्चे का भविष्य ज्यादा महत्वपूर्ण है। अदालत बच्चे के भविष्य को ध्यान में रखकर ही अपना फैसला सुनाएगी। अदालत ने कहा कि मियां - बीवी की लड़ाई में खामियाजा बच्चे को भुगतना पड़ता है। अगर संतान लड़की है तो उसे अधिक पीड़ा से गुजरना पड़ता है। पैरंट्स से अलग हुई लड़की की शादी में कठिनाई आती है। सुप्रीम कोर्ट ने कहा कि कुष्ठ और मानसिक बीमारी से ग्रस्त होने के कारण तलाक का प्रावधान है। लेकिन इस प्रावधान का दुरुपयोग भी बहुत है। हमारे पुराने लोगों के सामने इस तरह की समस्या नहीं आती थी। वैवाहिक झगड़े घर की चारदीवारी के अंदर ही सुलझा लिए जाते थे। मौजूदा मामले में गौरव नागपाल ने अपने 11 साल के बेटे की कस्टडी के लिए याचिका दायर की है। ट्रायल कोर्ट और दिल्ली हाई कोर्ट ने बच्चे की कस्टडी उसकी मां सुमेधा नागपाल को सौंपने का आदेश दिया था। सुनवाई के दौरान भी पति ने बातचीत के जरिए मामला सुलझाने की कोशिश की। लेकिन पत्नी ने भरी अदालत में इस प्रस्ताव को ठुकरा दिया। सुमेधा ने पति पर मारपीट का आरोप लगाया। बेंच ने कहा कि अलग हुए पति - पत्नी के अलावा बच्चे से भी चैंबर में बात की जाएगी। मामले की अगली सुनवाई बुधवार को होगी।
With Thanks from the नवभारत टाइम्स
Source:-18 Jun 2008 नवभारत टाइम्स Delhi P. 1

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Misuse of PIL

HC fines ex-IA pilot for misuse of PIL
Delhi High Court has decried litigants who resort to filing PILs as a tool to settle personal scores or for publicity. Dismissing a PIL filed by a former Indian Airlines pilot claiming that unsafe landing procedure is thrust on IA pilots resulting in aircraft being flown in a hazardous manner, a division Bench of Justice Manmohan Sarin and Justice Manmohan recently slapped a cost of Rs 10,000 on him and termed it as a misuse of PIL.
‘‘The present petition is without merit and is a misuse of public interest litigation,’’ HC noted while refusing to intervene on one Captain P N Sharma’s PIL relating to the emergency landing procedure of A-320 Bogie aircraft of IA. The court added, ‘‘All the different agencies, authorities and the manufacturers have found the aircraft (A-320) airworthy and the suggestions made by the petitioner are neither feasible nor acceptable....The suggestions of the petitioner had been given due consideration by the manufacturer Airbus Industrie, who after a comprehensive evaluation of the suggestions found that these were not practically feasible.’’
HC was clear that since the landing procedure had been certified as correct and safe by the experts in the filed petition, the matter need not be pursued further. ‘‘We are of the view that the matter must rest with the finding and opinion of the above experts and not permitted to be agitated any further.’’
The petition was dismissed after the airlines convinced the judges that Sharma, who claimed to have 30 years experience of 16,000 flying hours, flying on various aircraft such as DC-3, AVRO, Boeing 737, Airbus A 320, had moved this PIL because he entertained a sense of grievance against it and its staff. The airlines stated in the court that Sharma’s ‘‘professional background has been such that he has tried to implicate his seniors who had found his job performance to be unsatisfactory.’’
Citing a Supreme Court judgement, IA reminded HC that ‘‘attractive brand name of PIL should not be allowed to be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta.’’
Taking into account Sharma’s attitudinal problem and depression, the Bench refrained from imposing any hefty penalty on him and restricted itself to slapping a token cost of Rs 10,000 on Sharma. ‘‘In these circumstances we would give to the petitioner the benefit of doubt that it may be the action of a person who misdirected him.’’
While dealing with the case it emerged that Sharma had also filed a civil suit against IA and its top honchos and demanded a compensation of Rs 2.6 crores for cutting short his career by 10 years by ‘‘relentless harassment at work place’’. The Bench made it clear that its observations in Sharma’s PIL would have no effect on the civil suit.
With thanks from The Times of India 18 June 2008 P. 7Delhi
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Freedom fighter battling for pension since 1974

Notice To Centre On Plea Of Aggarwal Who Went To Jail In ’46
More than 60 years ago, septuagenarian Suresh Prakash Aggarwal, went to jail fighting for independence from British rule. For the last 34 years, he is waging a fight for the freedom fighter’s pension, now from an old-age home in Delhi as his son has thrown him out of his house. Moved by the pitiable state of Aggarwal, a post-graduate in physics who retired as a school teacher from a private school, the Supreme Court on Monday issued notices to the Centre and the UP government on his petition.
He was sentenced to one year imprisonment for participating in the freedom struggle and was lodged in Central Jail, Bareilly, in December 1946 along with Mukandi Lal and Kunwar Bhagwan Singh, who went on to represent Pilibhit in the 1st Lok Sabha and UP Assembly respectively. While on one hand he failed to move the bureaucracy to grant him the paltry f re e d o m f i g h t e r ’s pension, on the other, despite having a post-graduation degree in physics, he retired as a s ch o o l teacher from a private school, a nonpensionable service.
Unable to earn anything after retirement, his only son found the father a burden and threw him out of the house, which he had purchased in his son’s name in 1970. When the son closed the doors of the house on him on April 2, 2008, Aggarwal had no option but to move into an old age home at Asola, Fatehpur Beri, New Delhi.
Asked as to why he moved the court so late, his counsel Pradeep Gupta said as his client was working as a teacher in a private school he waited patiently since 1960 for 48 years for grant of the freedom fighter’s pension.
Aggarwal in his petition said: ‘‘I have no immovable property or bank balance or any other source of income and now that I am without a house or income, I have no option but to move the Supreme Court for my legitimate dues for which I waited for 48 years.’’
He also annexed with his petition a letter from the ministry of home affairs dated May 5, 1977, informing him that ‘‘The President in exercise of powers under Central Scheme 1972, is pleased to sanction Freedom Fighters Pension to Shri Suresh Prakash Aggarwal of Mohalla Habibullah Khan, Shumali Bilaspur, District Pilibhit, with effect from the date of receipt of application by the state government along with 9% annual interest on the past arrears.’’
Complaining that he had still not received a penny from the state, Aggarwal pleaded with the court for a direction to grant pension as well as the arrears.

With thanks from The Times of India 17 June 2008 P. 16 Delhi
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11 June, 2008

‘Coroner’ could ensure doubt-free autopsies

Crucial they might be, post-mortem reports in India are often the weakest and the most suspicious link in cases involving death. But this may no longer be the case.
If the Law Commission’s recommendations to enact a Coroners Act is heeded to by the government, post-mortem reports would not be subject matter of any controversy as there would be a designated officer in each area to take care of this legal necessity.
The recommendation, on the line of a similar British law, was handed over to the law ministry on Tuesday by Commission chairman Justice A R Lakshmanan.
Admitting that “divergent post-mortem reports and statements of witnesses have led to an alarming rate of acquittal in criminal cases”, the commission has suggested appointment of a coroner for each district and also for each Union territory. The coroner will have jurisdiction over a dead body found within his territorial jurisdiction, whether the death occurs in any part of the country or abroad. The commission took note of the recent abnormal spurt in unnatural deaths, especially in places like hospitals, in police firings, railways and other vehicles, and even in the households by way of dowry deaths before deciding to recommend the new law.
The panel examined the Coroners Act, 1871, the Coroners Act, 1988 (UK), relevant provisions of the Code of Criminal Procedure, 1973, and the Indian Penal Code, 1860, keeping in view the scope of Article 21 of the Constitution, so as to include the right to know the correct cause of death of any person, especially when the death is unnatural or suspicious.
With thanks from The Times of India 11 June 2008 P. 17 Delhi
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HC puts 4 docs in dock for negligence

Refuses To Quash FIR; Child With Brain Haemorrhage Was Given Wrong Treatment
Anirudh is admitted on August 25, 2005. Saroj Hospital doctors diagnose him as suffering from T B Meningitis On August 30, his condition deteriorates and Rakesh Sharma is advised to take his child to an “advanced” hospital. Ganga Ram doctors says Anirudh is down with brain haemorrhage. Anirudh dies later After complaints to the police and MCI yield token results, Sharma approaches Rohini court
Four senior doctors, including the medical superintendent of a Rohini hospital, will face criminal proceedings for causing the death of a child by wrong diagnosis, after Delhi High Court on Monday refused to quash the FIR lodged against them for medical negligence.
Justice Manmohan declined the plea by four doctors of Saroj Hospital and Heart Institute to quash FIR registered against them. They had approached HC, challenging the order of a Rohini court, directing registration of an FIR against the doctors, who claimed before HC that they had already been exonerated by the Medical Council of India.
HC, though, did give them some leeway in the form of instructions to the police to inform the doctors three days in advance that they were being arrested, so that they could approach a suitable court for anticipatory bail relief.
A Rohini metropolitan magistrate (MM) Vinod Yadav had recently ordered the cops to lodge an FIR against medical superintendent P K Bharadwaj, Gereesh Manwani, Jaideep Bansal, Surbhi Garg Kaushik and one Ravin Sharma, all doctors, working in this Rohini-based hospital. The decision to launch a criminal probe against them came on a complaint filed by the father of the child, Rakesh Sharma, whose repeated requests to the police had been of no avail. Sharma moved court last month and sought criminal action against those responsible for the death of his child Anirudh.
According to Rajesh, his son was admitted to Saroj Hospital on August 25, 2005, when he woke up with a severe headache and nausea. After being treated in the ICU, Anirudh was diagnosed as suffering from T B Meningitis and was accordingly given medication for four days. When his condition deteriorated further, a distraught father was asked to shift his child to a better hospital, forcing him to rush Anirudh to Sir Ganga Ram Hospital. Doctors at Ganga Ram told Sharma that his son was suffering from brain haemorrhage and despite their best efforts, Anirudh passed away on September 5, 2005. The father then lodged a complaint with Ashok Vihar police station and MCI, which zeroed in on Jaideep Bansal and removed him from its rolls for a week as penalty.
Arguing before HC through counsels Vijay Aggarwal, Nitin Ahlawat and Rakesh Makhija, the doctors said the MM order of lodging an FIR was passed almost two years after the incident just to harass the doctors. Lawyers claimed their clients were not liable in any way as one of the doctors, Jaideep Bansal, had already been punished and the others exonerated by MCI. S N Misra, general secretary, Indian Medical Association, said, “Though I am not completely aware of facts of the case, an error of judgement is a possibility. It should not be held against the doctors. It is not medical negligence per se.”
With thanks from The Times of India 11 June 2008 P. 2 Delhi
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‘Govt buses must have 3rd-party insurance’

The maximum penalty for rash or drunken driving, as per Section 304A of IPC, seems inadequate at a time when road accidents are spiralling.
What can make the current laws appear even more is that the punishment is more often than not much lower than the maximum punishment of two years. To overcome this laxity in law, the Law Commission has decided to suggest an amendment to the Indian Penal Code in order to treat death caused by rash and negligent driving as a heinous offence, punishable with a maximum prison term of 10 years. The commission has also suggested that cameras be placed at strategic positions on major roads in every city so that the police can track down the offender. While the footage would make it difficult to tamper with evidence, the realisation of having been caught on the camera may deter drivers from running away after an accident and instead encourage to help the injured, if only to minimise his culpability. The Commission feels that hoardings are a major distraction for drivers and that speed breakers are major impediments in the smooth flow of traffic. It also believes that most accident deaths on city roads are because of overspeeding by contract carriages or state government buses.
“No city transport bus be allowed to ply without being fitted with speed governors,” it has recommended. Most buses plying in cities are not insured for accidents, resulting in long litigation by the kin of the deceased for compensation.
The Commission has, therefore, recommended that every corporation or government bus must be insured for third-party accident claims so that in case of a death due to rash and negligent driving, the kin of the deceased are not left to wage a long legal battle to claim compensation. The Commission feels lax policing is one of the main reasons for rash and negligent driving and has asked for constant drives against drunk driving. It has also recommended strict action, even seizure of vehicles using cooking gas (LPG) cylinders as a substitute for fuel. This would, however, not affect those vehicles plying with company-fitted LPG kits.
With thanks from The Times of India 11 June 2008 P. 17 Delhi
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Proposal of 10 Yrs Jail For Running Over People While Driving Drunk

Panel seeks to hammer in traffic sense
GETTING TOUGH
  • Maximum prison term for death by rash and negligent driving to be enhanced from 2 years at present to 10 years
  • Cameras to be fitted at strategic positions on roads to help cops nab culprits who speed away after running over people
  • No speed breakers or hoardings on highways to ensure smooth traffic
  • All city transport buses will have to be fitted with speed governors
  • Each city transport bus to be insured to enable victim’s kin to get compensation early
Finally, there is a serious effort to discipline our traffic. The Law Commission has prepared a report on traffic discipline that sets down stringent penalties and exacting norms to straighten out India’s notoriously indisciplined roads.
The Commission report has recommended a crackdown on drunken, rash and negligent driving by proposing that the maximum jail term for death caused by drunk or rash driving should be enhanced from two to 10 years. If the proposal is accepted, drunken or careless driving may become as much of a no-no in India as it is in the West.
While this is possibly the most dramatic recommendation made by the commission, headed by Justice A R Lakshmanan, there are a number of others that aim to make public transport more secure, heighten surveillance on roads, discourage distractions to drivers like cellphones or giant hoardings, and, generally speaking, minimise risks to public safety.
Among the other recommendations are positioning cameras on all major intersections and arterial roads in cities, doing away with speed breakers and hoardings on highways, intensive patrolling to deter drunken driving and use of mobiles while driving, and mandatory speed governors in city buses.
“I am giving the final touches to the recommendations which would address a lot of questions being asked by public about the leniency in legal provisions on rash and negligent driving,” Justice Lakshmanan told TOI.
By pitching for a zero tolerance regime against rash, negligent or drunk driving, the commission has effectively sought to transform the nature of the offences — from a minor infringement to a serious crime and a huge risk to public safety.
At present, in a majority of rash or drunken driving cases, the offender is booked by the police under Section 304A of the Indian Penal Code. The provision says: “Whoever causes the death of any person by doing a rash or negligent act not amounting to culpable homicide (murder), shall be punished with imprisonment of either description for a term which may extend to two years or with fine, or both.”
With thanks from The Times of India 11 June 2008 P. 1 Delhi
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10 June, 2008

Surrender First, Then Seek Bail-Supreme Court

‘Pre-arrest bail most abused provision’
The pre-arrest bail provision in the Criminal Procedure Code, inserted to save the innocent from harassment at the hands of the police, is the most abused, the Supreme Court said on Monday.
Its anguish stemmed from the fact that a discretionary power vested with the high courts and sessions courts was being repeatedly invoked by persons accused of heinous offences, which was not the intent of the relief-giving provision.
Exasperated by the large number of pre-arrest bail petitions flooding the HCs and even the Supreme Court, a vacation bench comprising Justices Arijit Pasayat and P P Naolekar said: “Now rapists, triple murder accused and most corrupt have started seeking anticipatory bail making the provision one of the most abused sections of the Criminal Procedure Code.”
The bench passed a standard order in all anticipatory bail petitions — let the accused surrender before the trial court and then seek bail. However, it also asked the trial court to hear the bail petition on the day it was filed before it.
Section 438 of CrPC, which deals with pre-arrest bail, provides: “When any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the high court or the court of session; and that court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.”
The section mandates that all prearrest bails would have at least three conditions attached to it — the accused should cooperate in investigation, not tamper with evidence or influence the witness, and not leave the country without prior permission of the court.
The Law Commission of India, in its 203rd report to the law ministry, had extensively dealt with the practicality of an amendment to the pre-arrest bail provision brought in under the CrPC (Amendment) Act, 2005, which had made it mandatory for the person seeking pre-arrest bail to be present before the court during the final hearing of his application. The commission had opined against the provision. However, Chief Justice of India K G Balakrishnan had recently made a grievance of pre-arrest bail petitions flooding the HCs because Section 438 of CrPC gave concurrent jurisdiction to both HCs and sessions courts.
Justice Balakrishnan had said: “As the court of sessions has the power to deal with sessions cases resulting in the imposition of death sentence or imprisonment for life, there is no reason why such a court could not be considered adequate to deal with applications for grant of anticipatory bail. Needless time of the high court would be spent in dealing with applications for grant of bail.” “We, therefore, recommend that Section 438 of the CrPC be suitably amended restricting the power of granting anticipatory bail to the court of sessions,” he had said.

With thanks from The Times of India 10 June 2008 P. 11 Delhi
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Sexual Harassment can be a misconduct outside workplace also

In a landmark judgement, the Delhi High Court has said an office could also mean an employee’s place of residence because in a changing environment people have started working from home. The High Court order came on a petition filed by suspended Director of National Academy of Audit and Account (NAAA) S.K.Mallick, against whom a departmental inquiry was in progress for alleged sexual harassment of senior woman colleague. Mallick has argued that he could not be accused of sexual harassment at the workplace as the alleged misconduct took place at an official mess where the woman official was staying. While rejecting Mallick’s appeal for stay on the departmental proceedings against him, the court in its order of May 9 2008 took the view that sexual harassment at the workplace included misconduct outside office premises. The court said advances in information technology had enabled senior private sector officials to do office work at home. “An officer or teacher may work from the accommodations allotted to him. He would not be allowed to say that it is not a workplace,” a bench headed by Justice A.K. Sikri said . According to the court, if an officer indulged in an act of sexual harassment with an employee, it would not be open for him to say that he had not committed the act at the workplace but at his residence. The court order found support from sections of the corporate world.
Definition of Offence
Supreme Court says sexual harassment includes
-Physical Contact
-A demand or request for sexual favours
-Sexually-coloured remarks
-Showing pornography
-Any other physical, verbal or non-verbal conduct of a sexual nature
Vishaka & Ors vs State of Rajasthan & Ors., 1997 LLR 991 (SC)
When it takes place
-Subjects another person to an unwelcome act of physical intimacy, like grabbing , brushing, touching and pinching
-Makes an unwelcome demand or request for sexual favours, and makes it a condition for employment
-Makes an unwelcome remark with sexual connotations such as sexually explicit compliments
-Shows a person any sexually explicit visual material
-Engages in unwelcome conduct of a sexual nature, verbal or non-verbal
Work Place Scope Enlarged
-Court refers to recent phenomenon of senior officials in the private sector running business from their residences with the advancement in information technology.
-An officer or teacher may work from the accommodations allotted to him. He would not be allowed to say that it is not a “workplace”. Bench says body cannot be a accused of sexual harassment of an officer senior to him.
-The Conduct Rules clearly stipulate that a government servant not indulge in any act of sexual harassment of any workman at workplace. The expression ‘any woman’ is broad enough to include a woman who may be senior in status as well” Court says.
-“If an officer indulges in an act of sexual harassment with an employee, it would not be open for him to say that he had not committed the act at workplace but at his residence and get away with it,” a Bench of Justices A.K. Sikri and Vipin Sanghi said.
Courtesy:- Labour Law Reporter June 2008
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06 June, 2008

Income Tax department can attach property of defaulters-Supreme Court

‘Auction Sale Sacrosanct, Can’t Be Questioned’
If you are in the habit of defaulting in paying income tax and ignoring the I-T department’s notices, then this Supreme Court judgment will serve as a warning, for you may stand to lose your properties.
The Income Tax department is well within its right to attach the defaulter’s property and put it up for auction sale to recover the dues, a bench comprising Justices Ashok Bhan and Dalveer Bhandari said in a recent judgment.
Dismissing an appeal against the sale of landed property through public auction, the bench answered in the affirmative the self-posed question: “Whether the Income Tax department is justified in auctioning the attached property for recovery of debt?”
In the appeal filed by Janatha Textiles, a partnership firm of Radhey Shyam Modi, Pawan Kumar Modi, Padmadevi Modi and Indira Chirmar, it was stated that the firm was in arrears of tax for the assessment years 1985-86, 1986-87, 1987-88 and 1989-90. Though demands pertaining to assessment years 1986-87 to 1989-90 had been stayed by the appellate authorities, the department went ahead and took recovery proceedings for the dues for the assessment year 1985-86.
The main contention of the partners was that the Andhra Pradesh High Court erred by not taking into account the fact that the nature of their lands were wrongly mentioned as dry lands in the auction sale notice.
“In fact the said lands were a mango orchard also having building structure would have attracted a much higher value,” the petitioners said and argued that the auction sale would be vitiated by the wrong evaluation of the property.
While affirming the action of the I-T department to auction sale the property to recover the dues, the Bench said auction sale by authorities were sacrosanct and could not be interfered with unless grave irregularities in the process were pointed out by the aggrieved party.
The apex court said the law gives complete protection to the ownership right of a stranger over the auctioned property irrespective of the outcome of the dispute between the defaulters and the recovery authority.
“Unless protection is extended to them, the court sales would not fetch market value or fair price of the property,” the Bench said dismissing the appeal filed by Janatha Textiles and its partners.
With thanks from The Times of India 6 June 2008 P. 12 Delhi
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How to avoid lawyers?

Abraham Lincoln 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 neighbour once went to Lincoln to secure his services. But Lincoln told him; “Now, if you go on with this , it will cost both of your farms, and will entail an enmity that will last for generations and perhaps lead to murder. The other man has just 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 you from and 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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04 June, 2008

‘Law for landlords, tenants not same’

Tenants Shouldn’t Be Saddled With Arbitrarily High Rents To Stay Eviction: SC
Everybody has a right to appeal in the high courts questioning the correctness of a trial court’s order rejecting a plea. Probably all such petitioners would be treated, they being equal in the eye of law. But expect different interim reliefs from the high court, depending upon whether you are a tenant or a landlord. This is what the Supreme Court ruled in a recent judgment.
If a trial court dismisses a landlord’s plea, he is entitled to move the HC with a writ petition seeking eviction of the tenant. The HC, while accepting the landlord’s plea for hearing, cannot direct the tenant to pay higher rent during the pendency of the petition, said a Bench comprising Justices R V Raveendran and L S Panta. Consider the opposite scenario, where the trial court allows the landlord’s plea and directs eviction of the tenant, the latter can move an appeal before the HC seeking stay of the trial court order.
In this case, the HC while entertaining the tenant’s appeal and staying the eviction can direct the tenant to pay higher rent, said the Bench.
“To sum up, in writ petitions by landlord against rejection of eviction petitions, there is no scope for issue of any interim direction to the tenant to pay higher rent. But in writ petitions by tenants against eviction, the HC may, as a condition of stay, direct the tenant to pay higher rent during the pendency of the writ petition,” said the Bench.
Setting aside an Allahabad HC order directing a tenant, Niyas Ahmad Khan, to pay a rent of Rs 12,050 per month as per the prevailing market rate, the Bench said: “Adopting some arbitrary figure as the prevailing market rent without any basis and directing the tenant to pay absurdly high rent would be considered oppressive and unreasonable even when such direction is issued as a condition for stay of eviction.”
Where the HC chooses to impose any condition while granting stay of eviction of the tenant, such condition should not be unreasonable and oppressive, it said.

With thanks from The Times of India 4 June 2008 P. 9 Delhi
With thanks from The Time of India
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Happy couple gets divorce shock

Hisar: Virender Verma and Meena got the shock of their lives when a local court recently stated that the happilytogether couple got a ‘divorce’ 10 years ago. Married in 1989 and parents of two children, the two came to know about their separation on May 26. The couple accused Virender’s advocate brother for forging their divorce documents.
‘‘The matter came to our notice when Meena filed a petition under Protection of Women from Domestic Violence Act 2005 against her inlaws. The respondents informed the protection officer that Meena wasn’t entitled to file the petition since she had divorced me,’’ Virender told TOI. He has been recuperating from a back injury since 2000 and the family depends on Meena’s meagre income she earns by way of doing embroidery work.
‘‘The ‘divorce’ case pertains to when Meena and I were contemplating filing a criminal complaint against my brother and parents for cruelty and harassment for dowry. It seems the ‘divorce’ was doctored to defeat Meena’s possible complaint,’’ Virender added.
The couple moved the district sessions court under section 340 CrPC, praying action for false evidence, fabricating evidence and forgery against several persons, including Surinder Verma and four advocates who represented the parties in the divorce proceedings. The court has adjourned the hearing till July 19. Surinder Verma denied the allegations. ‘‘Virender has a property dispute with his parents and has been living separately. We never tried to fabricate their divorce documents. I am going to sue Virender, Meena and their advocate for defamation,’’ he said.
On April 15, Meena filed a petition under section 18 of Protection of Women from Domestic Violence Act against her father-in-law Ram Gopal, mother-in-law Parvati, brother-in-law Rajiv, besides advocate Surinder Verma. Additional chief judicial magistrate, Hisar, JB Gupta referred the matter to protection officer Poonam Raman.
When protection officer Poonam Raman called the opposite party to present its reply, Surinder reportedly produced a court document claiming Meena was no longer Virender’s wife. ‘‘A perusal of court records revealed that a petition for restoration of conjugal rights under section 9 of the Hindu Marriage Act was filed on behalf of Virender Verma against Meena in the court of district judge, Hisar” said the couple’s counsel.

With thanks from The Times of India 3 June 2008 P. 11 Delhi
With thanks from The Time of India
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02 June, 2008

ऑफिस में स्मोकिंग बॉस की जेब पर पड़ेगी भारी

ऑफिस में सिगरेट पीना अब आसान नहीं होगा, क्योंकि अब ये बॉस की नजरों में खटकेगा। नए नियम के मुताबिक सार्वजनिक जगहों में स्मोकिंग पर लगे बैन में ऑफिस भी शामिल होगा। ऑफिस में स्मोकिंग पर बैन लगाने वाले नए नियम के प्रभावी होने पर होटल, एअरपोर्ट, रेस्टोरेंट और तो और ड्राइंग रुम मे भी धुआं नहीं उड़ाया जा सकेगा।
सार्वजनिक जगहों पर धूम्रपान निषेध के नियम 2008 को तंबाकू नियंत्रण अधिनियम में संशोधन के रुप में लागू किया जाएगा। इसकी परिधि में होटल, रेस्टोरेंट, एअरपोर्ट, बैंक्वेट हॉल, डिस्कोथेक, पब, कॉफी हाउस और शॉपिंग माल होंगे जहां पर स्मोकिंग पर बैन होगा।
यहां तक कि ड्रॉइंग रूम भी नॉन-स्मोकिंग जगहों में शामिल होगा क्योंकि घर में काम करने वाली बाई भी कर्मचारी की कैटेगरि में आती है।
नियमों के अनुसार इन सभी जगहों में कोई स्मोकिंग न करे यह पक्का करना वहां के मालिक की जिम्मेदारी होगी।
नियमों का उल्लंघन होने पर मालिक, मैनेजर या सुपरवाइजर को जुर्माना अदा करना होगा। संस्थानों को सामने की ओर नो स्मोकिंग का बोर्ड भी लगाना होगा।
देश में तंबाकू के बढ़ते प्रयोग पर लगाम लगाने का यह सरकारी प्रयास है। इसी तरह के प्रयास के अंतर्गत केंद्रीय स्वास्थ्य मंत्री अंबुमणि रामदास ने सिगरेट और बीड़ी के पैकेट पर चित्र के रुप में चेतावनी छापने का अभियान चलाया था.। विश्व स्वास्थ्य संगठन (डब्ल्यूएचओ) की एक रिपोर्ट के अनुसार धूम्रपान करने वाले दुनिया के दस प्रतिशत लोग भारत में रहते हैं। संगठन ने सचेत किया है कि तंबाकू की आदत महामारी की तरह फैल रही है और इस सदी के अंत तक यह अरबों जिंदगियां लील लेगी।
रिपोर्ट के अनुसार भारत में युवा लड़कियों में तंबाकू का प्रयोग 9.7 फीसदी बढ़ा है। डब्ल्यूएचओ ने अनुशंसा की है कि तंबाकू उत्पादों के विज्ञापनों पर सौ प्रतिशत प्रतिबंध लगाया जाना चाहिए।

With Thanks from नवभारत टाइम्स
Source:-नवभारत टाइम्स 2 June 2008, Page10 New Delhi
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