Students’ body writes to CJI seeking SC intervention

A students’ body — Youth for Equality (YFE) — on Thursday sought the Chief Justice of India’s judicial intervention to deal with the highly volatile anti-north Indian sentiment fuelled by Raj Thackeray-headed MNS in Maharashtra.

Writing a letter to CJI K G Balakrishnan, YFE said the apex court, being the protector of fundamental rights of the citizens, needed to intervene urgently, seek action taken reports from the Maharashtra government and the Centre and pass appropriate directions to “control the violent campaign against the citizens of north India in the state”.

Terming the hate campaign against north Indians in Maharashtra by MNS as a blatant violation of the right to life and right to freedom of speech and movement guaranteed under Articles 21 and 19 of the Constitution, the letter said the violence has struck at the roots of the harmony among various sections of people within the society.

“What is most alarming is the total inertia of political and administrative system of the state and the failure of the Centre to take any action against perpetrators, allowing the situation to deteriorate,” it said, adding if the present situation continued, it would have grave consequences on the unity and integrity of the country.
The Times of India 31th October 2008 P. 11 New Delhi
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Unwrapping incest rape: DCW gives probe guidelines to HC

Task Necessitated As Kin Often Turn Hostile During Trial

Everyone knows incestual rape is a heinous crime, but none in the family is comfortable talking about it, forget complaining to police. Things may improve as the Delhi Commission for Women (DCW) has presented to the Delhi High Court an elaborate set of guidelines on investigation into these cases and rehabilitation of the victims.

The guidelines, which were framed by DCW in consultation with judicial officers, public prosecutors, doctors, police officers, bureaucrats representing social welfare, law and order, education and health, as well as community workers, social help groups and crises intervention centres, were presented to the HC by advocate Aparna Bhat.

The HC had entrusted the task to DCW as it learnt of high acquittal rate in incest rape cases, mainly because of the family members turning hostile during the trial to avoid social condemnation.

The Criminal Procedure Code (CrPC), which guides police investigation and trial proceedings, does not distinguish between rape and incestual rape, the latter varying greatly in circumstances in which a victim finds herself. If in a rape case, the victim — especially a child — finds solace in family support, it is virtually absent, rather against the victim, in an incest case, says Bhat.

The efforts of the HC Bench comprising Chief Justice A P Shaha and Justice S Muralidhar to formulate a special procedure for handling incest cases, both by the police and the trial courts, appear to have been driven by the number of incidents reported in Delhi alone in the year 2006.

According to National Crime Reports Bureau (NCRB) figures, Delhi topped the chart of incest cases among cities reporting 26 of the total 60 cases in 2006. In the break-up of 431 total incest rape cases reported in the country in 2006, Chhattisgarh has the highest number of incidents (97), followed by Jharkhand (94), Rajasthan (42), Maharashtra (36), Madhya Pradesh (29), Kerala (28), Gujarat (16), Assam (12) and Haryana (10).

In the DCW initiative to pierce the veil of secrecy created by the family members of the victim to avoid bad publicity, all the participants agreed that investigation had a prime role to play in bringing the accused to book.

A specially trained woman police officer should be present in all police stations and she alone should be incharge of the case to question and examine the victim and her family members, the DCW suggested.

‘‘The statement of the victim must be recorded in private in incest cases and the presence of family members should not be allowed as they may pressure the victim to change her statement or give a wrong version of the facts,'' it said, adding the victim be immediately medically examined after recording of her statement.

The victim should be kept in rehabilitation centres and family members could be allowed to meet her only in the presence of the staff of the shelter home and care should be taken to prevent them from influencing or coercing her to change her statement, DCW said.

Giving the woman police officer 30 days to complete investigation to file the chargesheet, the DCW also suggested that the trial be carried out on a day-to-day basis presided over by more experienced additional sessions judges.

‘‘Most participants agreed that the courtroom experience has been called the second assault, as she (the victim) may have to face the rapist in the courtroom and may face hostile questioning of a very personal and intimidating nature in a very public setting,'' the commission said.

To avoid this, DCW suggested: ‘‘All proceedings should be conducted in-camera and appropriate measures should be taken to ensure that the victim is not confronted with the accused. In all incest cases, there should be provision for video-conferencing to eliminate the victim's personal cross-examination by the accused.''

WHAT THE GUIDELINES SAY

A specially trained woman police officer should be present in all police stations and she alone should be incharge of the case to question and examine the victim and her family members.

The victim should be kept in rehabilitation centre and family members would be allowed to meet her only in the presence of the staff of the shelter home and care should be taken to prevent them from influencing or coercing her to change her statement

Trial should be carried out on a day-to-day basis presided over by more experienced additional sessions judges

All proceedings should be conducted in-camera and appropriate measures should be taken to ensure that the victim is not confronted with the accused .

In all incest cases, there should be provision for video-conferencing to eliminate the victim's personal cross-examination by the accused.

The Times of India 31th October 2008 P. 7 New Delhi
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From now, CIC(Central Information Commission) order review only in courts

In a move that smacks of bureaucratic red tapism, the Central Information Commission (CIC) will no longer allow review of its decisions. A recent change in the CIC (Management) Regulations, 2007, now makes it clear that CIC’s decision can only be reviewed through a writ filed in the high court and Supreme Court.

According to chief information commissioner Wajahat Habibullah, the rules were not in consonance with law. ‘‘We have changed the rules as under law a court cannot review its own decisions. The CIC does not have the review power unless there is an error of law or facts.’’ Habibullah said that applicants had misunderstood the rules and so a correction had been made. Information commissioners admit privately that the number of review applications had begun to rise and this was becoming difficult to handle.

The rule had earlier said that an appellant can make an application to the chief information commissioner for special leave to appeal or review of a decision or order of the case and mention the grounds for such a request. It was left on the discretion of the CIC to ‘‘consider and decide the matter as he thinks fit.’’ The decision has now been restricted to read — ‘‘A decision or an order once pronounced by the Commission shall be final’’.

RTI activists, on the other hand, have cried foul over the changes. Col Lokesh Batra said, ‘‘Now a complainant can no longer ask for special leave to review a decision.’’ Said Subhash Chandra Agarwal who has filed two review petitions that the decision will impact RTI. ‘‘In my application regarding information on Padma awardees, I had asked how it was possible for a jury spread across India to shortlist 100 names from the thousands in just one or two meetings. I had five queries but only one was answered,’’ he said. Agarwal said that there should be a provision within the rules for a review by a larger Bench. ‘‘This will cut down on litigation costs and also bring about a consistency in the performance of information commissioners,’’ he added.

The Times of India 30th October 2008 P. 13 New Delhi
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Judge can use mobile during a hearing

High Court Dismisses Argument That Judge Didn’t Apply Mind During Court Martial

Even in the face of overwhelming evidence against the accused, can a judge be said to have done complete justice if he was found to be sending SMSs during the hearing of arguments in the case?

This question came up before the Delhi high court as a naval officer questioned his conviction in a corruption case. In the face of voluminous evidence against him, the officer raised several grounds before Justice Sanjay Kishan Kaul to allege that the trial was vitiated.

One of the allegations was that the president of the court martial had not applied his mind judiciously to his case as it was found that during the hearing he had used his mobile phone extensively to send SMSes, though unrelated to the case, to others. After weighing the evidence, which was squarely and conclusively against the officer, Justice Kaul brushed aside all objections raised against the court martial proceedings, upheld his conviction and dismissed his appeal.

However, the question remained and would continue to haunt the judiciary and quasi-judicial bodies — can a judge during a hearing use his mobile phone and keep sending SMSes without it affecting his ability to grasp the arguments? Counsel Meet Malhotra, appearing for the court martial convicted M P Verma, produced before the HC voluminous records from MTNL showing the large number of SMSes sent by the president of the court martial proceedings.

He then asked the question: “Can the president of the court martial be said to have applied his mind to the case if throughout the proceedings he was sending SMSs to such a large extent? Does this not exhibit that he gave no attention to the trial?”

Convinced about the guilt of the accused, Justice Kaul was not to be distracted by the SMSs sent by the president of the court martial. He said: “The allegation that the president of the court martial had not applied his mind while holding the trial has not been substantiated.”

“Merely because some SMSes were sent by the president on a particular day or two would not reflect the non-application of mind by the president of the court martial, more so when the accused was duly represented by defence counsel who has cross-examined each and every witness throughout the trial and has made all objections whatever available to him while recording of the evidence of those witnesses,” Justice Kaul said.

The Times of India 30th October 2008 P. 9 New Delhi
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4 consumer forums non-functional

Swati Sharma

Chandigarh, October 25

Consumer forums becoming non-functional due to lack of members or presidents is not an unusual phenomenon. Four consumer forums in Haryana are not functioning due to which the state government has incurred a loss of around Rs 44 lakh.
According to information obtained by advocate G.D. Gupta of Jagadhri under the RTI Act from the PIO of the Haryana State Consumer Disputes Redressal Commission, four district forums in Hisar, Kurukshetra, Panipat and Yamunanagar are not functioning.
The post of the president of the district forum, Hisar, is vacant since January 6, while that of Kurukshetra is vacant since February 10.
The president’s post both at Panipat and Yamunanagar is vacant since January 6.
It is also stated by the PIO in his letter dated October 16 that a meeting of the statutory selection committee to hold interviews was held from August 25 to September 2. However, the appointments have not been made so far.
Thus, an aggregate expenditure of Rs 44,71,238 was wasted during the first four to six months. The backlog of cases added during the said period is in addition.
Thus, till date, on an average, an expenditure of Rs 1 crore has gone down the drain on account of laxity on the part of officers concerned to finalise the appointments of presidents of the above said four district forums.
Source:- http://www.tribuneindia.com/2008/20081026/haryana.htm#8

Law students attack Deputy High Commission

CHENNAI: A group of students of the Madras Law College attacked the Sri Lankan Deputy High Commission at Teynampet here on Thursday damaging property and injuring a staff member. They raised slogans condemning the killing of Tamils in Sri Lanka.
Deputy High Commissioner for Sri Lanka P.M. Amza told The Hindu that some youths attacked the security post and tried to forcibly enter the premises. They threw stones, one of which hit a staff member. “We have taken up the issue with the Indian authorities,” he said.
Seventeen students were arrested and later let on bail.
Source :- The Hindu Friday, Oct 24, 2008
http://www.hindu.com/2008/10/24/stories/2008102461121200.htm

To retain ill-gotten property, heirs need to pay market price - Supreme Court

The Supreme Court has added a stringent clause to the well-settled law that ill-gotten properties of a convicted corrupt public servant would be put up for public auction, proceeds of which go the government.

It said if the heirs of the convicted official want to retain the illgotten property, they have to pay its market price and not the cost price, or participate in the public auction and be the highest bidder.

One N Ramakrishnaiah was convicted under the P reve n - tion of C o r r u p - tion Act by a Hyderabad court and sentenced to undergo simple imprisonment for one year and pay a fine of Rs 20,000.

The trial court also identified four properties which were acquired through corrupt means and ordered their auction. The accused challenged this order before the Andhra Pradesh high court, which dismissed the appeal. However, during the pendency of the appeal before the HC, Ramakrishnaiah died and the sentence of imprisonment stood abated.

However, when the time came for public auction of the four properties, the son and daughter of the accused moved the HC pleading that they be permitted to deposit the entire amount of Rs 6.37 lakh and allowed to retain the house and other properties.

Source:- The Times of India 24 Oct. 08 P.13 New Delhi
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रेप के कारण प्रेगनंट हुई बच्ची को अबॉर्शन की इजाजत:Abortion was allowed to girl child who received pregnancy due to rape

मद्रास हाई कोर्ट ने अपने एक अहम फैसले में अपहरण और बलात्कार के बाद प्रेगनंट हुई 12 वर्षीय एक बलिका को अबॉर्शन कराने की अनुमति दे दी है।
जस्टिस के. मोहन राम ने नबालिग लड़की के पिता द्वारा दाखिल रिट याचिका पर यह अनुमति दी है। पीड़ित के पिता ने कोर्ट से अबॉर्शन कराने की अनुमति दिए जाने का आग्रह किया था क्योंकि बच्ची मात्र 12 साल की है और बच्चे को जन्म देने की स्थिति में नहीं है। जस्टिस ने वेल्लोर जिला निवासी याचिकाकर्ता को सहयोग के लिए मुख्य जिला चिकित्सा अधिकारी, जिला पुलिस अधीक्षक और वनियांबडी थाने के इंस्पेक्टर से संपर्क करने को कहा। याचिकाकर्ता ने अपनी याचिका में कहा था कि गत 14 मई को जब उसकी बेटी दुकान से सामान लाने गई थी तभी उसके एक पड़ोसी मुरगन ने उसका अपहरण कर लिया था। उसकी शिकायत पर गत 24 सितंबर को मुरगन को बेंगलुरु से गिरफ्तार किया गया और बच्ची को उसके कब्जे से मुक्त कराया गया। बाद में हुई मेडिकल जांच में पता चला कि बच्ची प्रेगनंट है और भ्रूण 12 सप्ताह का है। इसके बाद उन्होंने अबॉर्शन के लिए स्थानीय हॉस्पिटल में संपर्क किया लेकिन हॉस्पिटल अडमिनिस्ट्रेशन ने इससे मना कर दिया। इस संबंध में जब पुलिस से संपर्क किया गया तो उसने भी लाचारी जताई और कानूनी सहायता लेने की सलाह दी।
Source:- 24 Oct 2008, Navbharat Times

http://navbharattimes.indiatimes.com/articleshow/3635383.cms

Cybercrime, phishing flourish as financial markets falter

Contributed By Leslie D`Monte & Priyanka Joshi

Cybercrimes and phishing — emails aimed at stealing your online banking passwords — are on the rise on the back of the global financial meltdown.
Sample this. Five cyber-thieves, allegedly part of a network that hacked into the account of a Noida businessman, were nabbed today for a Rs 1.66 crore cyber hack.
They used internet banking to transfer the money from the businessman's account with the Punjab National Bank's Noida branch to their own account.
The police only recovered Rs 55 lakh, and have exhorted the public to change their online banking passwords frequently.
A report by MessageLabs, a leading security services company, indicates that phishing attacks rose 16 per cent between August and September and skyrocketed 103 per cent between September and October.
Most of the attacks were spoofs on the huge banks dominating the news in the wake of the financial crisis on Wall Street: Bank of America, Wachovia, Chase Manhattan, Washington Mutual, and even UK banks like Lloyds TSB and RBS.
The spam attacks are built around mortgages, debt consolidation, credit counselling and other financial advice.
"There is a distinct connection between the rise in phishing and the downward movement of the stock market," said Pavan Duggal, Supreme Court lawyer and cyberlaw expert. Duggal himself gets around seven phishing emails a day.
A recent report by security firm Symantec indicates that there were more than 400 unique phishing attacks on reputed Indian banks in the last six months of 2007. Out of these, some of the attacks involved the use of compromised ‘.gov’ servers to launch phishing attacks on other brands.
Scamsters are now using every avenue to milk the cow. Under normal circumstances, users are more alert. “But when there's a banking crisis, a simple email saying ‘you need to change your password to protect your account’ can unnerve a user and make him/her click on a link that can lead to hackers siphoning off the money online," Duggal explained.
Penetration testers, who work with bank clients, confirmed that the fragile state of the banking community is making it particularly easy to dupe anxious bank employees.
Palakirti Venu, sales director (India & SAARC), F-Secure, a penetration testing firm, argued that targeted electronic attacks like spear-phishing are simpler in this nervous financial climate.
"We do foresee a rise in phony emails about the latest news in the financial markets, as well as with links purportedly to information on how their bank is doing better than its competitors in this crisis," he said.
It's not just restricted to browser exploits or web-borne exploits, but also includes infected spreadsheet, PDF, and Word attachments supposedly providing information on the crisis or the bank.
Vijay Mukhi, chairman of Ficci’s IT Cell, agreed. "Cybercrimes do tend to rise during these times since people who are facing bad times would like to steal money by any means. Banks generally do not report such crimes since it can cause them embarrassment and strike fear as far as account holders go."
Kartik Shahani, regional director, McAfee (India), said with employees being laid off in large numbers, there is a stark possibility of a few transforming into spammers and cybercrime for the lure of money.
"Many of those who have been laid-off have the technical expertise and also know their organisation's security systems. The holiday season tends to be busy for socially engineered-types of malware," Shahani said, and added, "The economy is hurting people's finances and this could encourage criminals to up their efforts to gain more money through illicit means."
Scamsters are apparently attempting to manipulate the news to their advantage by asking end-users to revise their account details. “In some instances, they are tricking users into going to malware-laden websites, which resemble the legitimate sites," said Shahani.
"Phishing and social engineering attacks are the highest risk currently faced by the financial industry," Venu cautioned.
Source:- Business Standard October 24, 2008
http://www.business-standard.com/india/storypage.php?autono=338270

SC caught Centre’s doublespeak on Pota

Centre Shifted Stand, Backed Plea Of Accused Under The Act

The Supreme Court has caught the UPA government’s double speak on the binding nature of the recommendations given by POTA Review Committees on designated trial courts.

The Centre may have rejoiced at the vindication of its stand in Tuesday’s Supreme Court ruling that the committee’s recommendation for dropping POTA charges against all accused in Godhra train burning case was binding on the designated trial court, but it said something different before the Gujarat High Court in the same case.

In paragraph 19 of the judgment authored by Chief Justice K G Balakrishnan, writing for himself and Justice R V Raveendran, the judges said: “In so far as Union of India is concerned, we find that there is a slight shift from the stand taken before the high court.”

In the high court, the Centre had argued that the power of the review committee was subject to section 321 of the Criminal Procedure Code, under which it was for the public prosecutor alone to withdraw charges against an accused with the permission of the concerned government.

Justice Balakrishnan said the Centre’s stand was accepted by the HC, which said: “We are inclined to agree with the additional solicitor general that the impugned provision should be read in conjunction with the code and the same do not, in any manner, encraoch upon the judicial power of the state and that the opinion formed by the review committee on the prima facie nature of the case under POTA has to be given due weightage by the special court and accepted unless there are exceptional reasons for not doing so.” Without challenging the HC decision in the Supreme Court as was done by the Godhra case accused, the Centre shifted its stand and in principle supported the stand of the POTA accused that once the review committee recommended dropping of anti-terror law charges, it amounted to deemed withdrawal. The trial court was bound by it and the public prosecutor had no role, it had said.

Cong to Nanavati: Don’t release 2nd Godhra report:

Congress urged Justice G T Nanavati not to come out with a second report on the post-Godhra Gujarat riots in view of the SC verdict on Pota. Party spokesman Manish Tiwari said after the highest judiciary ruled out trial of the accused in the Godhra train burning case under Pota there was no reason for the panel to go ahead with its inquiry.

Source:- The Times of India 23 Oct. 08 P. 19 New Delhi
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SC declines CBI probe into nun’s rape case

Gives Orissa Slew Of Orders To Bring Back Normalcy

The Supreme Court on Wednesday refused to order a CBI probe into the nun’s rape case and asked as to why the victim was not participating in the test identification parade of the accused to nail the culprit despite having stated that she can identify the perpetrators. “If you do not cooperate with the police in investigating the case and finding out the truth, there is little this court can do,” the court told Archbishop Raphael Cheenath, who was virtually pleading on her behalf to say the victim had no faith in the state police. Except for refusing CBI probe into the rape case, the SC gave a slew of directions to the Naveen Patnaik government, all aimed at bringing back normalcy in the riot-hit areas and giving protection to the Christian community, which expressed apprehension of being targeted again during the coming Christmas festivities. Brushing aside the Centre’s reservations, a Bench comprising Chief Justice K G Balakrishnan and Justices P Sathasivam and J M Panchal ordered all the additional central paramiliatary forces, which were rushed to the state when rioting was at its peak, to remain stationed there till December-end. It also asked the state government to immediately pay compensation to the victims, give sufficient protection to all relief and rehabilitation workers, including those from Christian NGOs, working to provide succor to victims in relief camps in Kandhmal district and adjoining areas. On the contentious issue of Rs 3 crore demanded by petitioner and Archbishop Raphael Cheenath for rebuilding churches demolished and damaged by mobs, the apex court was at a loss to understand how grants could be given for rebuilding damaged orphanages, hospitals and schools run by the community, but not for the reconstruction of churches. Appearing for the state, senior advocate K K Venugopal said the Naveen Patnaik government was following a central guideline framed for the 1984 anti-Sikh riots when grants were given to charitable organisations run by the Sikh community but not for building damaged gurdwaras. However, he said the state was ready to contribute if the court so directs. The Bench asked the state government to generously consider providing grants for reconstruction of churches and encouraging inter-community meetings to bring back peace and normalcy in the riothit areas so that communal harmony prevails. The nun’s rape case was the focus of the proceedings that went on for more than two hours before the Chief Justice’s Bench. When the court wondered as to why the nun was not cooperating with the police in the investigation, senior advocate Colin Gonsalves, appearing for the petitioner, pooh-poohed the state’s claim of a fair investigation. He said the nun had alleged that after the rape she was in protection of policemen who did not do anything when a mob dragged her out, stripped her and paraded her in the entire village. No policeman has been punished for derelection in duty, he alleged. Venugopal pointed out that these allegations were not part of the original complaint. Gonsalves said this attitude of not trusting a rape victim had pained her immensely and she now felt that there was no point in pursuing the matter as the sinners would be punished in their next birth.

No faith in the panels probing riots: Archbishop

Archbishop Raphael Cheenath told the Supreme Court that the Christian community in Orissa has no faith in the ability of the two inquiry commissions headed by retired high court judges to find the truth in the communal riots of December 2007 and the August 2008. The Naveen Patnaik government had appointed the Justice Panigrahi Commission to probe the communal riots during Christmas of 2007 and has now appointed another inquiry commission headed by Justice S C Mohapatra to probe the riots that broke out after the killing of religious leader Swami Lakshmananand on August 23, 2008. Appearing for the Archbishop, senior advocate Colin Gonsalves said the commissions had refused to adjourn hearing even when riots were going on and the community was finding it difficult to arrange for advocates to present its case.
Source:- The Times of India 23 Oct. 08 P. 13 New Delhi
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SC notice to JNUSU on Lyngdoh guidelines

The Jawaharlal University Students’ Union (JNUSU) election process received a jolt on Tuesday when it received a notice from the Supreme Court seeking an explanation on why Lyngdoh Committee’s recommendations are not being adhered to during the students’ body election.

The notice was sent to the JNU administration and JNUSU, following a petition by Gopal Subramanium, additional solicitor general. JNUSU officials said the notice seeks explanation on three issues — why the recommended age limit has not been adhered to, on candidates with criminal record or acts of indiscipline and repeat candidates.

The election commission immediately convened an allparty meeting and is seeking legal opinion before facing the court on Friday morning. Meanwhile, the JNU administration too forwarded the notice to its legal cell. Ram Adhikari Kumar, rector, JNU said: ‘‘Our legal cell would reply to the notice on October 24. But JNU administration as a tradition doesn’t get involved in the students’ election process.”

Sandeep Singh, this year’s repeat presidential candidate from AISA said: ‘‘All parties are with the election commission which is going to place its case on behalf of the JNU students’ community. But we have to bear in mind that Lyngdoh Committees’ recommendations were primarily to arrest money and muscle power during students’ elections which JNU is free from. Also, the committee in its report praised JNU. And tempering of this ‘model’ would kill the very sanctity and vibrancy of the JNU elections.’’ All students’ organisation are now waiting for the Friday hearing’s decision as almost all are fielding repeat candidates.

According to Hafeezur Rahman, who is contesting for the fourth time, ‘‘JNU student community is strongly against the Lyngdoh recommendations as the report itself praised JNU as a role model. So to implement it in JNU is illogical.”
Source:- The Times of India 23 Oct. 08 P. 11 New Delhi
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HC: Shut down illegal dhabas in a month

Tells MCD To Get Its Act Together On Eateries

Taking a strong step against unlicensed roadside eateries, the Delhi High Court has directed MCD to close down all illegal dhabas within a month.

Asking the civic agency to crack the whip against all dhabas in the Capital, which do not possess a license, the High Court said, “It is directed that all dhabas on that road and for that matter throughout Delhi, running without licence, must be treated equally and all dhabas which are without license, being run in the municipal area, must be closed down forthwith.”

HC added, “The action of closure of these dhabas be taken within 30 days from October 16, 2008 and an affidavit in this respect be filed in the court, alongwith the names of all responsible officials of each area, who are liable to take the necessary action.”

HC pulled up MCD for failing to act on its own. “At first instance, no dhaba should be allowed to run without a licence. There is no reason why these unauthorised dhabas, hawkers, road encroachers should keep encroaching on public land, endangering public health by greasing palms of the concerned officials,” the court noted, adding, “If officials have little care about the health of the public and about the encroachment of public land, none of these dhabas, hawkers would come up at the first instance.”

The court took a serious view of the MCD’s decision to only close six illegal dhabas instead of closure of all illegal dhabas in Mandoli area of east Delhi in compliance with the court’s July order.

The court order came on a petition, filed by a dhaba owner, alleging that MCD had adopted a ‘pick-and-chose’ policy while closing the dhabas, running without licence in the area. He alleged that six dhabas, including his eating joint, were closed by the MCD on the ground that they have been serving non-vegetarian food, whereas other dhabas were left untouched on the ground that vegetarian food was served in them.

Rejecting this argument of MCD, HC noted, “No distinction can be made out on the ground that one dhaba is serving vegetarian food and the other is serving non-vegetarian food. The distinction can be drawn between licensed and unlicensed ones.”
Source:- The Times of India 23 Oct. 08 P. 7 New Delhi

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Pesky calls: ICICI faces HC music

Judge Refuses To Stay Contempt Charge, Says He Gets Calls Throughout Day

A furious Delhi High Court (HC) on Wednesday blasted ICICI Bank for making unsolicited calls despite a court ordered ban and said it should now ‘‘face the music’’ in contempt proceedings going on before State Consumer Commission.

Refusing to stay the proceedings, as sought by the bank in its petition, a division bench comprising Justice Vikramjeet Sen and Justice S L Bhayana trashed the banks’ claims that it was obeying courts directive. ‘‘You think you are above the law? Everyday we receive calls at all times of the day from ICICI for loans, credit cards...now you face the music,’’ the HC bench exclaimed when the counsel for the bank argued that the complainant in the case, advocate Nivedita Sharma, had no evidence to back up her claims of the bank still making pesky calls to customers.

The HC was hearing an application filed by the bank seeking the HC’s intervention and a stay on the contempt petition filed by Sharma before the State Commission, in which she complained that she had been receiving calls from the bank despite a direction from the commission to stop harassing consumers and even after TRAI (telecom regulator) created a ‘Do Not Call Registry’ where consumers can register themselves to avoid receiving calls. In her contempt plea, the lawyer complained that despite all these measures, the bank still made unsolicited calls to her and other customers.

On her complaint, the commission in December 2006 had imposed an exemplary cost of Rs 50 lakh on service provider Airtel and Cellular Operators Of India for their failure to control the pesky calls made by the telemarketers and banks.

The Commission had also imposed Rs 25 lakh penalty, to be jointly paid by the ICICI Bank and American Express Bank, for making repeated calls to the mobile users. This order was subsequently modified by HC, which lessened the fine amount but asked the companies to abide by commission orders and TRAI guidelines.

On Wednesday HC refused to expunge any remarks made by the commission in its verdict, as sought by the petitioners. In its order, the State Commission had agreed with Sharma’s characterisation of the bank, service provider and TRAI as the ‘‘unholy trinity’’ responsible for flooding a customer with pesky calls.

Speaking to TOI, Sharma maintained that she stood by her allegations and would pursue the contempt proceedings against the bank to its logical conclusion before the commission.

Source:- The Times of India 23 Oct. 08 P. 5 New Delhi

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Homosexuality is not a disease, says High Court

Centre: If Legalised, It’ll Bring Devastation To Society

Irritated by the government’s contradictory and unscientic stand on the issue of homosexuality, the Delhi high court on Monday told the government that the homosexual trait in a human being cannot be termed as a ‘‘disease’’ and objected to the contention that if legalised, homosexuality would bring ‘‘devastation’’ to society.

‘‘Show us one report which says that it is a disease. A WHO paper says that it is not a disease but you are describing it as a disease. It is an accepted fact that it is a main vehicle that causes (AIDS) disease but it is not a disease in itself,’’ a Bench headed by Chief Justice A P Shah remarked in response to Additional Solicitor General P P Malhotra’s harping on the point that homosexuality was a disease that is responsible for the spread of AIDS in the country.

‘‘AIDS is already spreading in the country and if gay sex is legalised then people on the street would start indulging in such practises saying that the High Court has given approval for it. Legalising it would send a wrong message to our youth,’’ Malhotra maintained, at which HC took strong exception and said the matter (pertaining to legalising gay sex) was still under consideration and the Centre should not make such a submission.

The Court was hearing a bunch of petitions filed by gay rights activists seeking decriminalisation of gay sex among consenting adults which, at present, is an offence. Section 377 of Indian Penal Code provides a punishment upto life imprisonment for indulging in gay sex.

Continuing with its opposition the government described homosexuality as ‘‘a most indecent behaviour’’ in society, pointing out that homosexuals comprise just 0.3% of the population and the interest of rest 99.7 per cent population ‘‘cannot be compromised’’ just to accomodate their rights.

‘‘Every citizen has the right to lead a decent and moral life in society and the right would be violated if such behaviour (gay sex) is legalised in the country,’’ Malhotra said arguing that an amendment in section 377 would mean subsequent tinkering around with marriage and divorce laws of each community as all have sodomy as a ground for divorce. The ASG claimed even section 375, which pertains to rape, would need an amendment to change definition of ‘‘consent’’ if homosexuality was legalised.

‘‘Our constitution does not talk about sexual orientation. We cannot impose other countries’ constitutions on us. Our moral and ethical values are different,’’ the ASG said while concluding Centre’s arguments.

Meanwhile, an independent party in the PIL, B P Singhal, who is opposing decriminalisation of gay sex started his arguments and described homosexuality as an ‘‘evil’’ exported from western countries.

‘‘If the court allows such acts then it would lead to male prostitution and the epidemic of AIDS would further spread. We would no longer be a country called India if Section 377 is removed and such behaviour (gay sex) is allowed,’’ Advocate H V Sharma appearing for the political leader said.

The Court, however, instructed him to ‘‘stick’’ to legal issues involved in the case and not raise political ones. Earlier, gay rights activists had contended that the government, by not decriminalising homosexuality, was infringing upon their fundamental right to equality on grounds of morality.

Times View

The government is taking a completely unscientific position while stubbornly opposing homosexuality among consenting adults. It has cited religious texts, advanced Victorian arguments, called homosexuality as being against nature and accused it of depraving society. What it has betrayed in the process is its deep-seated bias against this sexual minority. And the court has repeatedly ticked it off, asking it to provide scientific evidence to back its position. The government has preferred not to do so. Instead, it has tried to pass off age-old prejudices as a considered view. This will not do. If the government believes there is good scientific reason why gay sex should remain prohibited, it should provide evidence. If not, it should realise that outdated moral norms cannot be a basis for restricting individual choice.

Govt’s fancy claims, HC’s reality check

Excerpts of the strained logic used by the government in the course of the PIL proceedings for wanting to retain the Victorian vintage of Section 377 and the court’s pointed efforts to make it see reason

Govt:

‘‘Right to health of few persons cannot supersede Right to health of society. There has to be balance between them and it is for this purpose that Section 377 is there...Indian society strongly disapproves of homosexuality and disapproval is strong enough to justify it being treated as a criminal offence even where consenting adults indulge in it in private.’’

HC:

‘‘What is that compelling State interest to continue with such a provision like Section 377 (carrying a punishment of upto life sentence)? Such people suffer from indignity and discrimination in the society. If there is a stringent law prescribing punishment upto life imprisonment do you expect MSMs (man having sex with man) would come forward for their treatment of HIV? Gays are living under constant fear of being prosecuted.’’

Govt:

‘‘Gay sex is immoral and a reflection of a pervasive mind and its decriminalisation would lead to moral degradation of society..Homosexuality is a social vice and the state has the power to contain it. It (decriminalising homosexuality) may create breach of peace. If it is allowed then evils of AIDS and HIV would further spread and harm the people. It would lead to big health hazard. It would degrade moral values of the society.’’

Govt:

‘‘Gay sex is against the order of the nature. We will disturb the nature by allowing them to do so. In the compelling circumstances the State has to take the help of the law to maintain the public morality.’’

HC:

‘‘There is no doubt that gays are a high risk group, so you have to prove that allowing gay sex among consenting adults would increase the risk of HIV to an extent to criminalise it.’’ Govt: ‘‘Legalising homosexuality would further divide the country....it will send a wrong signal to youth of our country.’’

HC:

‘‘These are not arguments but comments on us. You are saying that we are dividing the nation by saying that they belong to minority group and then you are also saying that we are encouraging such practises!...Sexual minority means a group of people having different sexual preferences.’’

Govt:

‘‘No act of parliament can be struck down due to an affidavit or a minister’s statement. Since Parliament passed a law criminalising homosexuality, it represented the will of the people of this country.’’

HC:

‘‘It’s a strange situation. Your first affidavit (Home Ministry’s) is silent. There is not a single word on what you are saying while other affidavit (Health Ministry’s) is pointing out that the penal provision leads to marginalisation of HIV patients.’’ On government’s claim that legalising homosexuality would lead to spread of AIDS,

HC:

‘‘Please show material, research paper or any document even from other country to show that decriminalisation (of gay sex) would lead to spread of HIV....We won’t be first country to decriminalise in case we do. Show us that where homosexuality has been decriminalised there AIDS has spread. Place some authentic study like one backed by UN maybe.’’ On government citing a biblical research paper,

HC:

‘‘We should not accept religious literature instead of scientific report. In a secular country how can a government rely on a report which says that certain races contribute more to homosexuality? Is the Union of India supporting a document which does racial profiling?’’

Source:- The Times of India 21 October Delhi P.10
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Court tells eve-teaser to teach in blind school

New Delhi: A middle-aged man, who eve-teased a woman 11-years-ago, was on Monday ordered to help students of a blind school by a trial court as punishment for his act. Metropolitan magistrate Tarun Sehrawat let 30-yearold Asif off with a reformative punishment, instead of a penalty, after the accused pleaded guilty before the court and apologized to the woman. “The accused is directed to do some work for those with special needs (in this case the visually challenged) for a week so that he develops compassion towards people,” M M Sehrawat said.

The incident dates back to September 20, 1997, when the complainant Sonia (name changed), a resident of Nizamuddin, was going back home, in the evening, alongwith her family. According to the complainant, she had gone to buy medicines from a nearby medical store and was returning home when Asif, who was then 19-years-old, stopped her and grabbed her hand. The accused then passed some lewd remarks at her. The complainant then called out to her husband, who was walking ahead of her. The accused and her husband got into a scuffle.

A case was registered against Asif at the Nizzamuddin police station. The accused was booked under section 323, section 341 and section 354 of the IPC. The court observed although the offence was serious, yet, keeping in mind the fact that the duration of the case had prolonged beyond a decade and the accused deeply regretted his actions, a reformative punishment would do justice. M M Sehrawat, in his order, said, “At that point of time, the accused had a certain pattern of thinking and mindset, which made him behave disrespectfully towards the complainant. This mindset needs to be changed. Making him work with persons with special needs will create a cognitive dissonance in his mind, forcing him to question and rethink his own value system.”

Source:- The Times of India 21 October Delhi P.6
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Gzb magistrate arrested for assaulting wife

Ghaziabad: Former Ghaziabad city magistrate Manoj Kumar, at present posted as officer on special duty (OSD) at the Meerut Development Authority, was on Monday morning arrested for allegedly assaulting his wife, with the intention of forcing her to commit suicide. He was also booked for dowry harassment and criminal intimidation.

His wife Ranju showed police officers several recent contusions allegedly caused by beatings. According to Ghaziabad police chief L Ravi Kumar, Ranju also claimed to the police that her husband had extra marital affairs, though she did not mention it in her FIR. She alleged that her husband used to harass her for good postings in the state as she was well connected. The couple have been married for 10 years, and have an eight-year-old son. Manoj Kumar was city magistrate in Ghaziabad from June 11, 2007 to February 3, this year.

Bail rejected: A trial court on Monday denied bail to inter-state gangster Brijesh Singh, who is facing charges including murder and attempt to murder in over two dozen cases in various parts of the country. The accused had filed a bail application in an extortion case. Additional chief metropolitan magistrate Sanjeev Aggarwal refused to grant bail to Singh who has been brought here from Mumbai after being discharged in the 1992 J J Hospital shooting case. ‘

‘Keeping in view the fact that accused was involved in so many cases in UP and other places, I don’t find any ground for bail at this stage,’’ the court said. It refused Singh’s plea that the alleged offences that he is accused of committing do not carry a punishment of a jail term of more than three years. Singh also said that he was being implicated in the case.

Opposing Singh’s plea, Delhi Police claimed that the accused was a mafia don and if he released, he is likely to threaten witnesses and tamper the evidences. They also submitted that the accused was wanted in 28 cases in Uttar Pradesh and other states under various sections of the IPC including that of murder and attempt to murder.

Singh, who was allegedly working for the Dawood gang and was involved in the 1993 Mumbai serial blasts, is suspected to have international links as well.

Source:- The Times of India 21 October Delhi P.6
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गुलशन कुमार की केस फाइल

उनकी जिंदगी की कहानी फिल्म स्टोरी से कम नहीं है। सड़क किनारे जूस बेचने की दुकान से म्यूज़िक इंडस्ट्री में एक अंपायर खड़ा करना वाकई किसी कहानी सा लगता है। हालांकि कहानियां आमतौर पर सुखद अंत वाली होती हैं, लेकिन यह कहानी बताती है कि एक मोड़ पर कहानियों और रीअल लाइफ को अलग होना ही पड़ता है। बात हो रही है गुलशन कुमार की, जिनकी 11 साल पहले गोली मारकर हत्या कर दी गई थी। इस घटना ने पूरी एन्टरटेन्मेंट इंडस्ट्री को हिलाकर रख दिया और इसी के साथ चर्चा शुरू हो गई उनकी हत्या की वजह की। उनकी हत्या के शक के घेरे में अंडरवर्ल्ड डॉन अबू सलेम के साथ म्यूज़िक डाइरेक्टर नदीम का नाम सबसे ज्यादा उछला। पूछताछ के दौरान पता लगा कि अबू ने गुलशन से दस करोड़ की फिरौती की मांग की थी और इसके पूरे न होने पर उन्हें गोली से उड़ा दिया गया। गौर करने वाली बात यह है कि तब गुलशन की कंपनी इतना मुनाफा कमा रही थी कि उनके लिए इतनी फिरौती देना कोई बड़ी बात नहीं थी। इस बीच यह भी सामने आया कि म्यूज़िक डाइरेक्टर नदीम ने उनकी सुपारी दी थी। इस पूरे प्रकरण के दौरान नदीम विदेश में थे। इस वजह से और उनकी फोन डिटेल लेने पर उन पर शक गहराता चला गया। हालांकि उनके पार्टनर श्रवण उनके बचाव में खुलकर बोलते रहे, तो बॉलिवुड की कुछ हस्तियां भी नदीम के सपोर्ट में दिखीं। वैसे, इस हत्याकांड के शक के घेरे में प्रफेशनल दुश्मनी के चलते टिप्स कैसेट्स के मालिक रमेश तौरानी का नाम भी आया। दरअसल, गुलशन की सफलता से सबसे ज्यादा नुकसान उन्हीं को हुआ था। इस बारे में ऐक्टर दीपक तिजौरी का कहना है कि गुलशन जी की हत्या ने सभी को स्तब्ध कर दिया। सफलता की सीढि़यां चढ़ने के दौरान आप कितने दुश्मन पैदा कर लेते हैं, यह खुद आपको भी पता नहीं चलता। वाकई अंधेरी की जिस जगह पर गुलशन के शरीर में जिस बेरहमी के साथ 17 गोलियां दागी गईं, उस को चश्मदीद गवाह आज तक नहीं भूले हैं और डर की वजह से अभी भी वे इस बारे में खुलकर बात तक नहीं करते। बता दें कि उस दौर में गुलशन कुमार ने नए टैलंट को बहुत उभारा था। ऐसे कई नाम हैं, जिन्हें फर्श से उठाकर उन्होंने अर्श तक पहुंचाया। तब उनके हाथ में म्यूजिक इंडस्ट्री का 65 फीसदी हिस्सा था और किसी को भी स्टार बनाने की ताकत उनके पास थी। दरअसल उनके पास काम करने के नए आइडियाज़ थे और वह जोखिम लेने से भी नहीं घबराते थे। हालांकि उनकी यही क्वॉलिटी उनकी जान की दुश्मन बन गईं। तो कौन है उनकी मौत का जिम्मेदार- फिरौती मांगने वाला अंडरवर्ल्ड, उनकी सफलता से चिढ़े रमेश या फिर साथ काम करने के दौरान संगीतकार नदीम से हुई उनकी लड़ाई?

Source:-20 Oct 2008 Navbharat Times

http://navbharattimes.indiatimes.com/articleshow/3615225.cms

Partnership is not created

Partnership is not created by Status

Contributed by Deepak Miglani Advocate

Partnership is the form of business organization, where two or more persons can join together or jointly carrying on some business. It is an improvement over the 'sole-trade business', where one single individual with his own resources, skill and effort carries on his own business.
In a partnership, a number of persons could pool their resources and efforts and could start a much larger business. In case of loss also, the burden gets divided amongst various partners in a partnership.
According to Section 4 of the Indian Partnership Act, " The relation of partnership arises from contract and not from status; and , particular, the members of a Hindu undivided family carrying on a family business as such, or a Burmese Buddhist husband and wife carrying on business as such, are not partners in such business."
Partnership is the result of agreement. Agreement here means a contract. It arises from an agreement between two or more people. It cannot arise from status. The presence of agreement is a must. It indicates the voluntary contractual relationship of partnership.

For any query:- deepakmiglani@hotmail.com

Dismissal of frivolous or vexatious Consumer Complaints

Contributed by Deepak Miglani Advocate

Filing of case in civil court takes a long time and a lot of money. The Consumer Protection Act, 1986 has been enacted to provide for better protection of the interests of the consumers. It provides the speedy mechanism to redress the grievance of consumer. Some time people file the false complaint before the forum against the company.
To save the company from false and frivolous complaint , Section 26 has been inserted in The Consumer Protection Act,1986 in 1993. This section says , " Where a complaint instituted before District Forum, the State Commission or , as the case may be, the National Commission is found to be frivolous or vexatious, it shall, for reasons to be recorded in writing, dismiss the complaint and make an order that the complainant shall pay to the opposite party such cost, not exceeding ten thousand rupees, as may be specified in the order."
Where the complaint is mala fide, vexatious and frivolous and the opposite party has to incur expenses or contesting the complaint, the Redressal Forum should saddle the complainant with cost. Where the issue involved is a legal issue, the complaint can not be said to be frivolous.
For any query:- deepakmiglani@hotmail.com