31 August, 2008

THE LEGAL HIERS OF A DRIVER ABSCONDING WITH THE VEIHICLEL ARE NOT ENTITLED TO COMPENSATION

Facts of the Case:-
Bipul Gogoi was appointed as a driver of a vehicle bearing Registration No. AS- 09/2289 by the third respondent.
He reported to his duty at about 9.30 A.M. on 9.10.1996. He was since then not heard by the members of his family or by his employer.
The officer-in-charge of the Bokajan Police Station registered a case against Bipul Gogoi and a charge sheet was filed in connection with the said case before the Judicial Magistrate stating that the driver has absconded with the vehicle on 23.7.1999.
Parents of Bipul Gogoi meanwhile filed an application under the Workmen’s Compensation Act, 1923 for payment of compensation, of a sum of Rs 4,48,000 before the Commissioner of Workmen’s Compensation, Golaghat for death of their son in course of his employment.
Notices were issued to the appellant. It denied and disputed the said claim, inter alia, contending that no compensation in terms of the Workmen’s Compensation Act was payable , only on a presumption that the said Bipul Gogoi had died.
The owner of the vehicle being the third respondent, however, contended that some miscreants have taken away the vehicle with the driver which could not be searched out by the police.
The vehicle was not traced. No dead body was found. Whether the said Bipul Gogoi was dead or alive was not certain.
Decision of Commissioner:-
The driver has not been traced, since 8.10.1996 till date, i.e. for more than seven years. There fore, in view of Section 108 of the Evidence Act, it is presumed that the driver is dead. Therefore, the claimant is entitled to get compensation under the Workmen’s Compensation Act.
A sum of Rs. 2,24,000 was awarded against the employer.
Agreeived by the decision of the commissioner the appellant filed an appeal before the Hon’ble High Court and the same was dismissed.
Section 3 of Workmen’s Compensation Act, 1923
say, “If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter.”
Section 147 of the Motor Veichles Act, 1988 provides for mandatory insurance cover by the owner of a vehicle. Provided that a policy shall not be required-
I. to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of person insured by the policy or in respect of a bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen’s Compensation Act, 1923 in respect of the death of , or bodily injury to any such employee-
(a) engaged in driving the vehicle, or
(b) if it is public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle , or
(c) if it is a goods carriage, being carried in the vehicle , or
II. to cover any contractual liability.”
For invoking this section it is necessary that employee must be engaged in driving the vehicle. Death or bodily injury must occur arising out of or in course of his employment.
Section 108 or 109 of Indian Evidence Act are founded on the presumption that things once proved to have existed in a particular state are to be understood as continuing in that state, until contrary is established by evidence, either direct or circumstantial. The said provision can be invoked in a legal proceeding by the death of a person may be an issue. The Section does not say that presumption would be applicable in all situations. It shall not apply in respect of a person who absconds from justice or evades a trial or is otherwise charged for commission of a grave offence.
The expression “accident” means an untoward mishap, which is not expected or designed.
The words ‘in the course of the employment’ means ‘in the course of the work, which the workman is employed to do and which is incidental to it’.
The words ‘arising out of employment’ are understood to mean that ‘ during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owning to the master, it is reasonable to believe that workman would not otherwise have suffered’. In other words there must be a casual relationship between the accident and the employment.
View of the Hon’ble Supreme Court regarding the Sections 108 and 109 of the Indian Evidence Act:-
The Hon’ble Supreme Court held that the Section does not say that presumption would be applicable in all situations. It shall not apply in respect of a person who absconds from justice or evades a trial or is charged for commission of grave offence as he in that situation may not communicate with his relations.
Furthermore in a case of his nature, it is also difficult to rely upon self-serving statements made by the claimants that they had not heard of their son for a period of seven years.
Final Decision of the Hon'ble Supreme Court:-
The Hon'ble Supreme Court held that:
“The Commissioner of Workmen’s Compensation or the High Court did not assign any reason as to why the fact disclosed in the charge sheet that Bipul Gogoi himself had run wary with the vehicle would not be a relevant fact particularly, when cognisance had been taken by a competent court of law on the basis thereof.
Under Section 3 (1) of the Workmen’s Compensation Act, 1923 it has to be established that there was some causal connection between the death of the workman and his/her employment. If a workman dies as a natural result of a which he/she was suffering or while suffering from a particular disease he dies of that disease as result of wear and tear of the employment , not liability would be fixed upon the employer.
But if the employment is a contributory cause or has accelerated the death, or if the death was not due only to the disease but also the disease coupled with the employment, then it can be said that the death arose out of the employment and the employer would be held liable.
The rights of the parties are required to be determined as on the date of the incident. It is, therefore, difficult to hold that a subsequent event and that too by raising a presumption in terms of Section 108 of the Evidence Act can give rise to fructification of claim save and except in very exceptional cases.”
There the appellants succeeded and no compensation was awarded to the respondents , the parents of the driver.
Courtesy:- LEGAL NEWS AND VIEWS 2008
For any query:- legalpoint@aol.in

NHRC issues notice to AIIMS(http://timesofindia.indiatimes.com)

29 Aug 2008 The Times of India NEW DELHI: The National Human Rights Commission (NHRC) has issued a showcause notice to the health ministry and the All India Institute of Medical Sciences (AIIMS) over the deaths of 49 infants during clinical trials, even as the nationally renowned institution defended the experiments.
"This is a show cause notice. We have sought comments from the secretary of the health ministry and the AIIMS director on a complaint filed with the NHRC within four weeks," a commission official said.Rahul Verma of the NGO ‘Uday Foundation' had submitted a petition to the NHRC, alleging violation of right to life under Article 21 of the Constitution.
In a statement, the institute said the drugs used in the tests were safe and the children were not selected from a particular socio-economic group. It added that none of the 49 deaths were due to the treatment modalities under trial. The drugs studied had been found safe in earlier studies, and were not known to have fatal complications. In fact, the deaths were due to high risk and serious disease conditions which the children suffered from.
The statement said: "Only six of the 42 trials done were funded by the pharmaceutical industry and involved about 5% of all enrolled children. All the study protocols were approved by the nationally acclaimed Ethics Committee of AIIMS in which half of the members are from outside, including one eminent jurist. The mandatory permissions of the Drugs Controller General (India) were duly obtained for all these studies. There were no deaths in these six studies."
It added, "In one of the six above mentioned studies, immunogenicity of an indigenously manufactured DTPw-Hib tetravalent vaccine was tested. For the other five studies, AIIMS was one of the many centres in these multi-country, multi-site drug trials which included a significant number of children from US, Europe and Russia and several sites in India. Altogether, only 25 children were enrolled at AIIMS. It is emphasized that none of these trials were done exclusively on Indian children. None of the drugs were tested on healthy children."
The statement then went on to say, "The medicines for treatment of high BP, namely - valsartan and olmesartan - have been marketed in India for over three years. These drugs have relatively much less side-effects than other drugs for blood pressure.
This group of medicines has been safely and effectively used with children having high blood pressure worldwide. The 49 deaths reported occurred in children with sepsis, and those with respiratory failure receiving life support. The deaths were due to the natural history of the severe diseases the children suffered from."
Source:- http://timesofindia.indiatimes.com/Delhi/NHRC_issues_notice_to_AIIMS/articleshow/3418981.cms

Contempt Notice to Mumbai Music School(www.dnaindia.com)

Friday, August 29, 2008
Boss music school members issued contempt notice
NEW DELHI: Taking strong exception to the insinuation by members of Boss music school against Bombay high court judges, the Supreme Court on Friday issued contempt notice to them with a warning that failure to respond within 10 days would lead to their arrest.
“The allegations made (against the judges) are per se contempt of court. We are issuing notice why contempt of court proceedings not be initiated against you,” a bench headed by chief justice KG Balakrishnan said.
Leila David and Annette Kotian, members of Vasai-based Boss Music School, had filed petitions seeking arrest of 10 HC judges for allegedly not hearing their matter “in a free and fair manner”.
“If you don’t reply on or before September 10 you will be arrested and produced before the court and you will not be released,” the bench said. The two women, who argued their case themselves, refused to withdraw the charges against the judges.
“We are not going to withdraw the allegation,” 23-year-old Kotian said. She was supported in her submission by her elderly colleague David.
The judges also took exception to their plea that the CJI should withdraw from the bench hearing their petition. “That I will decide. Choose your words carefully otherwise you have to face the consequences,” CJI Balakrishnan told them.
“We have perused the allegations which are very serious in nature. We have spent time on the two petitions. The allegations amount to contempt of court,” the CJI added.
Source:-http://www.dnaindia.com/report.asp?newsid=1186603

Bangalore: Language Policy - Supreme Court Upholds HC Verdict(http://www.daijiworld.com)

Saturday, August 30, 2008 1:02:50 PM
Bangalore, Aug 30: The state government's efforts to put its language policy on a firm footing by extracting a stay order from the Supreme Court for the state High Court verdict, has come to naught. The three-member bench of the supreme court headed by Chief Justice K G Balakrishnan, at the hearing of the special leave petition filed against the High Court judgement by the government on Friday August 29, refused to consider the government's pleas for issuing a stay order.
The court ordered issuance of notices to managements of private unaided schools in the state, to respond to the SLP within three weeks. President of Karnataka Unaided Schools Management Association G S Sharma said that the association will study the petition and respond to it suitably. He expressed the belief that the court will not come in the way of the liberty the parents enjoy as far as choosing the kind of education and medium of instruction their wards need to have.
Earlier, the High Court had upheld the right of the private unaided schools in the state to choose the medium of the instruction of their liking, duly quashing a part of the government order making it compulsory for the schools to adopt Kannada as the medium of instruction.

Source:-
http://www.daijiworld.com/news/news_disp.asp?n_id=50462&n_tit=Bangalore%3A+Language+Policy+-+Supreme+Court+Upholds+HC+Verdict

High Court adjourns percentile case for a week(http://www.expressindia.com)

Express News Service
Posted online: Sunday , August 31, 2008 at 03:35:13
Mumbai, August 30 The Bombay High Court on Saturday adjourned for a week the petition challenging the percentile system introduced by the state government in June. The court asked all the parties, including the state government to file their submissions and rejoinders before the next hearing. A third judge had started hearing the petition challenging the percentile system on Friday.
Justice J N Patel started hearing the case following a split verdict by the High Court earlier this week after Chief Justice Swatanter Kumar favoured the petitioners and quashed the government resolution. But, Justice A P Deshpande upheld the GR.
The court was hearing a public interest litigation filed by a parent of an ICSE student, aggrieved by the newly implemented normalisation policy for the admission to junior colleges.
Chief Justice Kumar in his judgement had restrained the government from acting upon the resolution, but stated that the admissions already given on the basis of the formula should not be disturbed.
Justice Deshpande, on the other hand, said that “the introduction of the statistical formula of “percentile” goes to achieve normalisation of percentage of marks secured by the students of different boards and hence it’s not violative of article 14 of the constitution”.
Source:-http://www.expressindia.com/latest-news/High-Court-adjourns-percentile-case-for-a-week/355571/

HC order to be challenged in apex court(http://www.expressindia.com)

Express News Service Sunday , August 31, 2008
Chandigarh, August 30 The Punjab and Haryana High Court will shortly file a special leave petition (SLP), challenging its own ruling with regard to the reinstatement of 31 Punjab Civil Services (Judicial) officers. A decision to this effect has been taken by the administrative wing of the High Court after an in-house consensus on the issue.
The order in question was pronounced on May 27 this year by its Full Bench comprising the then Chief Justice Vijender Kumar Jain, Justice H S Bhalla and Justice Rajesh Bindal.
It had ordered reinstatement of the 31 judicial officers who were dismissed during the tenure of the controversial Punjab Public Service Commission (PPSC) chairman Ravi Sidhu.
The High Court will challenge the order on the ground that since the entire selection is under scanner, it is not possible to segregate tainted officers from the non-tainted ones and that the entire selection process is vitiated.
The Punjab government had earlier refused to challenge the order but the Haryana government had given its opinion that the order of the Full Bench could be challenged in the Supreme Court.
Six years after a five-judge panel of the High Court had terminated the selection of 1998-2001 batches of subordinate judges owing to their involvement in the infamous PPSC scam, the Full Bench of the HC held the 31 candidates innocent and ordered their reinstatement.
As many as 36 lower court judges, whose services were terminated on charges of corruption, had moved the High Court demanding reinstatement. While 31 had got the order in their favour, the petitions of four candidates had been dismissed as investigations against them were pending.
All the candidates had lost their jobs after Sidhu was arrested by the Punjab Vigilance on charges of taking crores of rupees from 1998 to 2001 batch officers for appointing them as judges.
The 'tainted' candidates had moved the Supreme Court, which set aside their termination and sent the case back to the High Court in 2006 for segregation of tainted judges from the non-tainted ones.
On the orders from the Supreme Court, a three-judge panel comprising Justice K S Garewal, Justice Jasbir Singh and Justice Ashutosh Mohunta was constituted in 2006. While Justice Garewal had said it was not possible to segregate the tainted from the non-tainted, the other members had given their finding that the entire selection system from 1998 to 2001 was so vitiated that the services of all candidates should be immediately terminated.
Though the termination was stayed by the Supreme Court, they were not allowed to re-join the service.
The officers then moved the High Court.
Ordering the reinstatement of 31 judges, the Full Bench observed that two judges in the committee did not adhere to the Supreme Court directions.

Judges feel bugged(http://www.tribuneindia.com)

Saurabh Malik Tribune News Service
Chandigarh, August 30
The judges of the Punjab and Haryana High Court believe that someone has been eavesdropping on them.
Available information suggests the judges are of the belief that “some state agency” has not only placed their incoming and outgoing numbers under surveillance, but is also listening to their conversations.
These apprehensions have already sent alarm bells ringing. The issue has become the talk of the high court, and was only recently discussed by a number of judges at a meeting.
The judges decided to hang up on the existing service provider, and to go in for new numbers from a different service provider. In fact, the judges have zeroed in on the BSNL.
The matter is now expected to be placed before the committee concerned of two judges for the implementation of the decision. Meanwhile, the BSNL officers say they are in touch with the high court.
The judges of the superior judiciary, and also of the subordinate courts, have for long been apprehensive about their phones being tapped. Similar apprehensions have also been aired time and again by advocates handling "anti-establishment" cases.
The issue was first raised by the judges about a month ago. As many as 15 judges penned down their apprehensions in a letter to the then Chief Justice and demanded a probe by an independent agency. They insist that illegal tapping of phone is a "serious offence" and the matter needs thorough investigation.
Supreme Court’s senior advocate K.T.S. Tulsi, who appeared in the apex court in the Amar Singh phone-tapping controversy, seems to agree.
He says phone tapping is “serious invasion of right to live with dignity and honour, and also right to privacy, which forms part of Article 21 of the Constitution of India”.
Tulsi says the violation of these rights of the judges can lead to sense of insecurity among people. In India, individuals, firms or agencies, without license and proper official documents, are barred from tapping any private or public phone. As per the license conditions, telecom companies, too, are not allowed to indulge in illegal phone tapping. The security agencies can tap phone lines, but the reason has to be valid and in larger public and national interest.
“It can be resorted to only when the national security is involved, and that also with the prior permission of the homes secretary,” Tulsi adds.
Phone tapping is easy, but it is extremely hard to clamp down on agencies snooping on the GSM cellular phones. All that an agency requires is equipment costing about Rs 25 lakh. It is a small electronic device not bigger than a personal computer, and enables anyone using it to set himself up as a private detective.

30 August, 2008

Ensure free movement on Durgapur Expressway: HC to NHAI

30 Aug 2008 The Times of India
KOLKATA: Calcutta High Court has stepped in to clear the clogged lifeline of south Bengal — Durgapur Expressway. For the past five days, the indefinite dharna in Singur by Trinamool Congress has not only brought traffic to a standstill on the highway, it has also stranded thousands of trucks carrying essential goods.
Acting on a writ petition by Calcutta Goods Transport Association and others, the court on Friday directed the National Highways Authority of India (NHAI) to ensure free movement of vehicles on Durgapur Expressway in accordance with law, without any further hindrance. Justice Nadira Patherya also suggested that if necessary, the NHAI authorities could take help from the state authorities in clearing the highway from any obstruction.
The petitioners contended that they had lodged complaints with the director-general of police about the blockade for the past five days, but little was done to clear the mess. So they moved high court, seeking its intervention to end the deadlock.
Appearing for the police, junior standing counsel Subrata Mukhopadhyay with Suman Ghosh submitted before the court that the force was ready to take any sort of action necessary. But since the issue was a sensitive one, the police had not taken any stern action so far.
Advocate Kalyan Banerjee, appearing for Trinamool Congress as an added party, submitted that Trinamool was not obstructing the expressway deliberately. The party was holding an agitation in Singur, because of which many people had assembled at the spot and as a consequence there was disruption on the road, he said. The matter will come up for hearing after four weeks. Reacting to the court's directions, chief secretary Amit Kiran Deb said they were yet to receive a copy of the order. IG (law and order) Raj Kanojia echoed him.
Besides the writ petition, a public interest litigation had also been moved before Calcutta High Court on the same issue by city resident Rana Pratap Sarkar, seeking removal of obstructions from Durgapur Expressway. During the day, the division bench of Chief Justice S S Nijjar and Justice Dipankar Dutta directed the state government to file an affidavit within two weeks.
In his petition, Sarkar had alleged that Trinamool's protest against land acquisition was blocking the road for the past five days.
The state government as well as the NHAI authorities had failed to ensure normal flow of traffic and thousands of trucks were stranded and essential commodities were rotting, Sarkar had said in his petition.

Source:- http://timesofindia.indiatimes.com/India/Ensure_free_movement_on_Durgapur_Expressway_HC_to_NHAI/articleshow/3423736.cms

28 August, 2008

Govt. to issue Sixth Pay Commission notification tomorrow (www.khabrein.info)

By Khabrein.Info Correspondent
New Delhi, Aug 28: The Union government is set to issue the notification of the Sixth Pay Commission’s recommendation tomorrow. This would be the final stamp on sixth pay commission recommendations and it would come into effect.

Around 5.5 million central government employees have been anxiously waiting for the day to come. It has been a long and eventful journey for the sixth pay commission and besides hope gave several anxious moments to a number of people.
But finally it is all set to be implemented, thankfully it will be done tomorrow.
Sixth pay commission has been waited like no other pay commission. At the time of increasing inflation and unprecedented price rise, the recommendations give hope to hundreds of thousands of government employees. It increases the pay package of government employees by approximately 25 percent.
The notification will not only clear the air but the central government employees will also be in a better position to figure out the details and will know precisely what they are going to get as their final payments.
Besides they would be able to know clearly the allowances and other benefits that sixth pay commission awards them.
The final draft that the union cabinet approved on 14th August had been improved upon by the government. Several grouses of different sections of the employees were taken into account, particularly the grouses of army officials were considered and anomalies removed.
The reports point out that the first installment of arrears will be paid to central government employees in September itself giving a much needed relief to hundreds of thousands of central government employees.
The wage hike would increasee the financial implication for the Centre by Rs 17,798 crore annually and the arrears with effect from January 2006 would cost Rs 29,373 crore, Information and Broadcasting Minister P R Dasmunsi told reporters after the Cabinet meeting. The financial implication of Pay Commission on the General Budget would be Rs 15,717 crore and Rs 6414 crore on Railway Budget in 2008-09. The government’s present salary bill is over Rs 70,000 crore and the pension bill is over Rs 30,000 crore.
6th Pay Commission Highlights
The Union Cabinet has given its approval for implementation of the recommendations of the Sixth Central Pay Commission. The revised pay scales will come into effect from 1/1/2006 and revised rates of allowances from 1/9/2008. The Cabinet has also decided that arrears will be paid in cash in two instalments – first instalment of 40% during the current year (2008-09) and the remaining 60% in the next financial year (2009-10).
6th Pay Commission: govt. employees in Chattisgarh to go on strike
Salient features of 6th Pay Commission
2. The Cabinet has broadly accepted the recommendations of Sixth CPC with some modifications in the wake of representations received from various sections/Associations of Central Government employees. The new system of four Pay Bands with 20 Grade Pays recommended by the Commission has been accepted with some minor modifications.
3. The minimum Basic Pay for a Government servant has been increased to Rs.7000 from Rs.6660 recommended by the Sixth CPC. Consequently, the total emoluments of an employee at the lowest level will exceed Rs.10,000 p.m., including allowances.
4. The other highlights of the Cabinet decision covering all Government employees including the Defence Forces are:-
(i) Enhancement in the fitment in revised pay bands, which was recommended by the Sixth CPC to be based on multiplication factor of 1.74 to 1.86. This would result in increased emoluments for Government employees.
(ii) Increase in the rate of annual increment from 2.5% to 3%.
(iii) Removal of Campus restriction for grant of Transport Allowance.
(iv) Increase in Transport Allowance at the lowest level to Rs.600 (from Rs.400 in A-1/A class cities recommended by the Sixth CPC) and Rs.400 (from Rs.300 in other cities recommended by the Sixth CPC).
(v) At least three promotions have been assured for all Defence Forces’ personnel and civilian employees under the modified Assured Career Progression (ACP) Scheme. While the civilians would get it after 10, 20 and 30 years of service, the Defence Forces Jawans would get ACP in 8, 16 and 24 years.
5. For the Armed Forces personnel, the Commission, for the first time recommended a Military Service Pay (MSP). The Cabinet has increased the rate of MSP for PBORs to Rs.2000 from Rs.1000 recommended by the Commission. The Officers of the Defence Forces would get an MSP of Rs.6000 over and above their Pay.
6. The middle level officers of the Defence Forces namely Colonels and Brigadiers have been placed in the highest Pay Band of PB-4.
7. Senior Lt. Generals overlooked for promotion as Army Commanders due to lack of residual service would now get the grade of Army Commander (Secretary’s grade). In the case of existing Major Generals/Lt. Generals, MSP will be taken into account notionally for fixation of pay on 1/1/2006.
8. As replacement of the pay scale of Rs.24050-26000, a separate pay scale has been carved for DGPs, PCCFs, GM (Railways), members of the Boards of Income Tax, Customs & Central Excise, Postal and Ordnance Factories, among others, who were in this pre-revised scale. This would take them to the level of Rs.80000 in two years as against three years in the pre-revised scale.
9. Further, the IPS Pay Rules and the Indian Forest Service Pay Rules will be appropriately modified to provide in each State cadre one post of DGP and one post of PCCF at the apex level of Rs.80000 for heading their respective Forces.
10. Middle level Police and Civilian officers i.e. DIGs, Conservator of Forests, Scientists E & F, Superintending Engineers, Directors, Additional Commissioners of Income Tax and Central Excise and posts in equivalent grades have also been placed in PB-4.
11. Other salient decisions taken by the Cabinet are:-
(i) The lower limits of Disability Pension for Defence personnel to be doubled from Rs.1550 to Rs.3100. War Disability Pension to be granted at 60%;
(ii) The rates of Special Forces Allowance for Army and Air Force to be equated with navy’s Marine Commando Allowance;
(iii) For the officers of Central Para Military Forces, all the posts of Additional DIG upgraded to DIG level by the Pay Commission to continue to be manned by the cadre officers of CPMFs;
(iv) For the Railway employees who are in receipt of Running Allowance, this allowance will be taken into account while fixing their pay in revised pay bands;
(v) Government has continued the present position of granting Group A scale to Group B officers after 4 years of service and these officers would be placed in PB-3 instead of PB-2 recommended by the Sixth CPC. This would benefit Group B officers of the Railways, Accounts Services, CSS, CSSS and DANICS & DANIPS.
(vi) For Doctors, the Cabinet has approved promotions under the Dynamic ACP Scheme upto Senior Administrative Grade (Joint Secretary level) for Doctors with 20 years of service. Counting of Dearness Allowance (DA) on Non-Practicing Allowance (NPA) as on 01.01.2006 for fixing their pay in revised pay bands has also been approved;
(vii) For the scientists, continuation of the existing system of grant of Special Pay of Rs.2000 p.m. to Scientists G on promotion and doubling of the amount to Rs.4000 p.m. in Departments of Space and Atomic Energy and Defence Research & Development Organisation (DRDO) has been recommended.
12. The financial implications in 2008-09 on account of the implementation of the recommendations of the Sixth Central Pay Commission as modified by the Cabinet will be around Rs.15700 crore on the Central Budget and Rs.6400 crore on the Railway Budget.
For any query:- legalpoint@aol.in

16 August, 2008

Criminal Liability of Minor

Contributed by Deepak Miglani Advocate
Secs. 82-83 of Indian Penal Code , there is an absolute incapacity for crime under seven years of age. According to Sec. 82, an act of a child under seven years is no offence. It is to be noted that this immunity is not confined to offences under the Code only , but extends to offences under any special or local law. An infant is , by presumption of law, doli incapax i.e. not endowed with any discretion so as to distinguish right from wrong, thus, the question of criminal intention does not arise. Where persons get crimes committed through children below 7 years, they will be held liable while the child will be exempted. According to Sec. 83 , acts done by children above seven and below 12 will be protected if it is shown that the child in question has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion. It is to be noted that there is complete liability to punishment after twelve years of age. Where a child of 9 years of age stole a gold necklace and sold it to B for half a rupee only. The boy would be liable if he was proved to be of sufficient maturity of understanding. The Maxim militia supplet oetatem ( malice supplies defect of years) applies to Sec. 83. The circumstances of a case may disclose such a degree of malice as to justify the maxim.
For any query:- legalbuddy@gmail.com


12 August, 2008

Keep travel papers in order: CONSUMER RIGHTS

Pushpa Girimaji

THERE have been innumerable cases of passengers getting stranded in a foreign country because either the travel agent or the airline failed to inform them about certain travel regulations. In the case of Air India vs Kamdar, for example, the travel agent issued Kamdar and his friends confirmed tickets to travel to Moscow and return in six days, while, according to the rules governing the excursion tickets sold to them, they had to stay in Moscow for a minimum of 10 days to utilise the return tickets. This they came to know only when they arrived at Moscow airport for their return journey and were refused passage.
Similarly, passengers have had to return—after several hours of travel—without reaching their destinations because they were not informed of the transit visa requirements of certain countries. In the case of Harjinder Singh Bajwa vs Thai International, the travel agent who booked the tickets of three senior citizens from Delhi to Vancouver did not inform them that they would need a transit visa for the stopover in the US. The flight had two stopovers—one at Bangkok and the other at Seattle. The airline obviously did not check their visas properly and allowed them to travel to Bangkok.
At the time of boarding at Bangkok airport, they were refused passage on the ground that they did not have a transit visa for Seattle, and were sent back to Delhi.
Here is a case where a passenger, all set to travel to Dubai, was turned back at the international airport. This time it was not the travel agent or the airline that was to blame but the passport officer. Now, the ticket to your travel abroad is the passport. Without it, you cannot step outside the boundaries of your country, nor can you get the visa to enter another country.
In this age of terrorism, where passports are put under a microscope and scrutinised for any signs of forgery or fraud, it is absolutely necessary that your passport is without any blemish.
Given this scenario, imagine landing in a foreign land with a passport that is not even validated by the passport issuing authority with the required signature. The officer issuing the passport had forgotten to put his signature on the seal, and since a person obtaining a passport may not be aware of these requirements, it was never noticed.
Anuradha Gopinath even applied for a visa to travel to Dubai on that passport and was granted the visa.
However, on the day of travel, when she arrived at the international airport and showed her passport, the airline spotted the lacuna and said she could not travel. Imagine a person’s frustration—you make all arrangements for travel, buy your ticket, foreign exchange, pack your bags and then at the time of boarding, you are told that you cannot travel because of a mistake made by a passport officer.
Anuradha then field a complaint before the consumer court in Bangalore, which awarded her Rs 10,000 as compensation and Rs 2,000 as costs. This was, however, contested by the passport office before the higher courts on the ground that the issuance of the passport did not constitute ‘service’ as defined under the Consumer Protection Act. In its revision petition before the National Consumer Disputes Redressal Commission, the passport authority argued that the passport officer was exercising a sovereign function and that courts had no jurisdiction to adjudicate over such complaints.
It also argued that no payment was made to the officer towards issue of passport and, therefore, it did not become a consumer case at all. Dismissing such arguments, the apex court pointed out that the passport officer was not exercising any sovereign function, but discharging a statutory duty. Besides, since a fee was charged for issuing a passport, it constituted a ‘service’ as defined under the Consumer Protection Act, and consumers could seek redressal for any deficiency or negligence in that service.
Said the commission: "A passport, which is issued without the signature of the competent authority, is on the face of it invalid. It would have placed the complainant in a precarious position and she might have been hauled up for various offences if she had tried to go abroad on that passport. Such lapse amounts to a serious deficiency in discharge of duties, which is in the nature of rendering of service. Hence, the complaint is maintainable".
Source:- The Tribune 10 August 2008 Spectrum
For any query:- legalpoint@aol.in

03 August, 2008

Married man’s sex with woman is rape, rules SC

Press Trust of India

Posted online: Tuesday , July 15, 2008 at 08:37:09

Updated: Tuesday , July 15, 2008 at 08:37:09

New Delhi, July 15: Love-making by a married man with a woman after making her believe that he was unmarried or on the promise of marriage is rape, the Supreme Court has ruled.

“Since, he was already married, the subsequent marriage, if any, has no sanctity in law and is void ab-initio (illegal from the inception),” a bench of Justices Arijit Pasayat and P Sathasivam observed in a judgement.

The apex court rejected the argument of the convict Bhupinder Singh, an employee of the State Bank of Patiala, that since the victim Manjit Kaur had consented to sex despite knowing his marital status, the ingredients of Section 376 (rape) would not apply in his case.

In this case, a sessions court in Chandigarh had convicted and sentenced Bhupinder Singh to seven years RI and a fine of Rs 10,000 on Bhupinder Singh on charges of fathering Kaur’s child despite the fact that he was already married and having kids.

It was the case of the victim that she had married Singh after the latter made her believe that he was unmarried and fathered her child.

But later she came to know that he was already married and had kids through his first wife.

Singh on his part denied having married Kaur, but on the basis of the various documents, the sessions court sentenced him to seven years RI.

He appealed in the Punjab and Haryana High Court which upheld the conviction but reduced the sentence to three years on the premise that Kaur had consented to sex, knowing fully well that Singh was married.

The High Court had also ordered him to pay Rs one lakh compensation to the victim, failing which he would have to serve the original sentence imposed by the Sessions court.

Dissatisfied with the relief granted by the High Court, Singh had filed an appeal in the apex court, which rejected his plea.

Source:- http://www.expressindia.com/latest-news/Married-mans-sex-with-woman-is-rape-rules-SC/335956/

For any query:- legalpoint@aol.in

02 August, 2008

Sexual harassment: CIC fails to follow SC order

An RTI query has revealed that the Central Information Commission has so far not put in place a mechanism to deal with sexual harassment cases, a measure that was mandated by Supreme Court.
According to a reply furnished to an RTI application, CIC has admitted that it doesn’t yet have a committee to deal with complaints of sexual harassment. The answer was given in response to an RTI query filed by Gloria Kumar, former regional passport officer of Delhi, who has levelled allegations of ‘‘gender bias and perverted overtones’’.
Kumar in her RTI had sought the status report of her complaint lodged with the commission alleging she was subjected to harassment by an information commissioner and had to face ‘‘sexually coloured remarks’’, forcing her to report this behaviour to the Chief information Commissioner. Her RTI also demanded to know if any sexual harassment committee had been formed by CIC to look into her grievances, and if yes, what was the conclusion of the report.
The CIC, in its reply sent in June this year, informed Kumar that her complaint was being examined by the Chief Information Commissioner Wajahat Habibullah who has decided to hear her case himself. Though conceding that no committee as such had been formed to deal with cases of sexual harassment within CIC, the commission’s reply assured Kumar that her case will be heard and disposed of soon.
With thanks from The Times of India 1 August 2008 P. 6 Delhi
©All rights reserved with the Bennett Coleman & Co. Ltd
For any query:- legalpoint@aol.in

01 August, 2008

Right to privacy is primary:SC reflects Times View on pesky calls :Suggests ‘Call Me’ Registry

Those pesky calls may finally dry up. Reacting to a common complaint of millions, the Supreme Court on Thursday maintained that the year-old National Do-Not-Call Registry (NDNCR) has just not worked as telemarketers have continued to breach the citizen’s right to privacy, and suggested that NDNRC should be replaced by a “call registry” — that is, those wishing to receive telemarketers’ calls should register themselves for the purpose.
Remarkably, a little over eight months ago, this newspaper in its Times View had made precisely this suggestion. On the front page on November 18, 2007, we had said, ‘‘There’s a better way out of this mess than trying to make the do-not-call registry work — have a “call registry” instead. In other words, the default option should be that telemarketers cannot make unsolicited calls. Those who wish to receive calls can register themselves on the call register.’’
In response to the suggestion of a bench comprising Justices A K Mathur and Dalveer Bhandari, additional solicitor general Gopal Subramaniam said the Centre would consider it in all seriousness and get back to the court within six weeks. Subramaniam appeared to have been impressed by the suggestion, which he termed as ‘‘weighty’’.
On the issue of pesky calls, the SC has not just been concerned but proactive. Last year it had virtually forced the government to operationalize the “do-not-call registry” while dealing with a PIL filed by one Harsh Pathak accusing service providers of selling their data base to telemarketers who made unsolicited calls.
“In the last one year, we have experienced such calls galore. At least we are victims of it. A year back, you (the Centre) were not willing to implement the regulations. They were implemented after we threatened to do it through our order. After one year, we feel something more needs to be done,” the court said.
CALL DROPPED A year after the “do-notcall registry” got under way, nearly 8.3m cellphone users have registered Yet pesky calls continue. It’s time to launch a new registry of people who wish to receive commercial calls, says the Supreme Court Govt says it is difficult to take action against telemarketers not registered with DoT
SC asks govt to bar unregistered telemarketers from operating
Right to privacy is primary: SC
The SC on Thursday maintained that the yearold ‘National Do-Not-Call Registry’ (NDNCR) has just not worked as telemarketers have continued to breach the citizen’s right to privacy. ‘‘It is time to rechristen the ‘Do-Not-Call Registry’ as ‘Call Receivers Registry’,’’ said the court and explained that those who registered in the latter would only be entitled to receive calls from telemarketers. “Persons interested in commercial calls must volunteer and get registered. Those who do not wish to register should not be disturbed,” it said.
Additional solicitor-general Gopal Subramaniam said the government was finding it difficult to take action against many telemarketers, who were not registered with the telecom department and continued to escape the rigours of the rule banning unsolicited commercial calls. On this, the SC directed the government to stop the operations of unregistered telemarketers right away. When the government informed the court that till date, nearly 8.3 million mobile phone subscribers have registered in NDNCR, it wondered how could these pesky calls be still so rampant and bother so many people.
Subramaniam said the government has control over registered telemarketers, who come under the purview of penal regulations for making unsolicited calls. So it was imperative that no telemarketer be allowed to operate unless it is registered, he said. Considering the impact of the SC’s views on their marketing strategy, banks and service providers were adequately represented before the court. Their counsel, senior advocates T R Andhyarjuna and C S Vaidyanathan, informed the SC that the position was not as bad as was being projected. Till date, about 13,600 telemarketing operators have registered with the government, they said. They relied on figures to argue that through telemarketing, a lot of business has come to people. The court disagreed and asked: “For your business, do we have to suffer?” Vaidyanathan joined issue and said imposing a total ban on telemarketing would be at cross with the constitutional provision. But the SC rejected the argument, saying right to privacy always gets primacy.
With thanks from The Times of India 1 August 2008 P. 1 Delhi
©All rights reserved with the Bennett Coleman & Co. LtdFor any query:- legalpoint@aol.in