Legal Talks by Desikanoon

Difference between Municipal Law and International Law | Monism and Dualism in International Law

suyashverma@hotmail.com (Suyash Verma) — Mon, 3 Jul 2023 18:24:25 +0000

This episode discusses the concepts of Monism and Dualism and also the differences between Municipal Law and International Law. Sources of International Law - https://youtu.be/xxCGE8fpVE0

Law of Treaties Simplified

suyashverma@hotmail.com (Suyash Verma) — Sat, 1 Jul 2023 08:20:24 +0000

Opinio Juris - https://www.youtube.com/watch?v=TkR4j43Qmms

Pacta Sunt Servanda - https://www.youtube.com/watch?v=CPftp4WnmVQ

Sources of International Law - https://youtu.be/xxCGE8fpVE0

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Sources of International Law Explained

suyashverma@hotmail.com (Suyash Verma) — Thu, 29 Jun 2023 13:03:19 +0000

Opinio Juris - https://www.youtube.com/watch?v=TkR4j43Qmms

Pacta Sunt Servanda - https://www.youtube.com/watch?v=CPftp4WnmVQ

Telegram: https://t.me/Legal_Talks_by_DesiKanoon

What is Jus Cogens in International Law?

suyashverma@hotmail.com (Suyash Verma) — Tue, 27 Jun 2023 18:10:30 +0000

This episode discusses the concept of Jus Cogens in International Law.

What is Pacta Sunt Servanda?

suyashverma@hotmail.com (Suyash Verma) — Tue, 27 Jun 2023 17:55:58 +0000

This Episode explains the meaning of the Oldest Doctrine in Public International Law, Pacta Sunt Servanda, its relevance and exceptions.

What is the Meaning of Opinio Juris in International Law?

suyashverma@hotmail.com (Suyash Verma) — Fri, 23 Jun 2023 17:20:44 +0000

Latin Term – Meaning – “Opinion that an act is necessary by rule of law” or opinion of law. It is considered to be a belief that the practice is obligatory. This belief in the mandatory nature the conduct or practice may be termed Opinio Juris.

Importance and Relevance – To decide whether a custom has become a source of International Law or not.

What is Custom?

‘Custom’ is one of the many sources of International Law. It means a long established and commonly adopted practice that has acquired the force of law.

Also finds mention in Article 38 (b) of the ICJ Statute that states that International Courts must apply international customs in their decisions, wherever possible and wherever it is a general practice accepted as law either in domestic laws or treaties or international agreements.

Three types – general, regional and local.

General Customs are followed in most of the places and jurisdictions.

Regional Customs are followed in a particular region. North America may have its own Regional Customs distinct from South America or Asia.

Local Customs have limited influence in a geographical area. India Pakistan and Sri Lanka may have a local custom that may not be followed anywhere else.

The existence of a custom can be deduced from the practice and behaviour of states. Such custom becomes part of International Law when it is a State Practice and opinio juris.

State Practice + Opinio Juris = New Customary Rule of International Law

Four Steps

1. Establish existence usage of a practice or conduct.

2. Existence of State Practice

3. Existence of Opinio Juris

4. 1 +2 + 3 = New Custom

If all three are present, the practice or conduct becomes a new customary rule of International Law.

1. Step 1 - How to establish existence of usage of a practice or conduct? When a country contends existence of a practice or conduct, it usually gives evidence in form of newspaper reports, statements by government leaders, mentions particular provisions in some law.

2. Step 2 - If such an existence is established, then the next step is to look into State Practice. State Practice simply means how states behave in practice. This practice can be found in their legislation, judicial decisions, administrative acts, official publications, treaties etc. Basically, it covers any act or statements by a state from which its existence as a customary law may be inferred.

3. Step 3 - Once State Practice is established, then the presence of opinio juris is to be seen. To ascertain such presence of Opinio Juris, the behaviour of the state towards that conduct or practice is seen. If the states make that practice or conduct legally obligatory or codify it or make it a legal right, then that conduct, or practice can be said to satisfy the ingredients of ‘Opinio Juris’

4. Step 4 - If existence of usage of a practice or conduct satisfies the dual requirements of State Practice and Opinio Juris, it becomes a valid ‘custom’ in International Law and the Court may decide accordingly.

Issues faced by the Court in deciding presence of Opinio Juris

1. Countries may exert pressure to make a practice a custom but views of countries with greater power does carry greater weight as politics or power cannot be divorced from law.

2. Unsubstantiated and unilateral claim by a state regarding existence of a custom cannot be accepted. It is the international context that plays a vital role in the creation of custom.

3. Unsubstantiated and unilateral claim by a state regarding the existence of a custom are not accepted. It is the international context that plays a vital role in the creation of custom.

4. In new areas of law, Opinio Juris may be quickly or even instantaneously established because of the newness of the situation involved and lack of contrary rules. However, in traditional areas of law, it is more difficult to establish a custom as it has to be done through series of usages. Custom should mirror the perception of the majority of states.

Important Case Laws

1. Lotus Case

2. North Sea Continental Shelf Cases

3. Nicaragua v. United States

4. Germany v. Italy

5. Asylum Case (Peru v. Colombia)

Important International Organizations and Treaties of 20th Century

suyashverma@hotmail.com (Suyash Verma) — Fri, 23 Jun 2023 04:57:00 +0000

1. 1958 – The United Nations Office for Outer Space Affairs (UNOOSA) is an office of the U.N. Secretariat that promotes and facilitates peaceful international cooperation in outer space. It is part of the UN that was established in the year 1945. If aliens actually visit the Earth, this will be the competent organization to deal with the same. Visionary approach of United Nations.

2. 1960 – Establishment of Latin American Free Trade Association (LAFTA) by the Treaty of Montevideo. This treaty provided for new foreign investment rules and restrictions on operations of foreign firms in Latin American countries. It was later transformed into Latin American Integration Association. Currently, it has 13 member states.

3. 1967 – Establishment of Association of Southeast Asian Nations (ASEAN) initially as a security association since at that point of time, entire Southeast Asia was beset with conflicts. It is currently a political and economic union of 10 member states including Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines and Singapore.

4. 1967 – Signing of the Outer Space Treaty or the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies. Currently, there are 113 parties to this convention. Key provisions of the Outer Space Treaty include prohibiting nuclear weapons in space; limiting the use of the Moon and all other celestial bodies to peaceful purposes; establishing that space shall be freely explored and used by all nations; and precluding any country from claiming sovereignty over outer space or any celestial body.

5. 1969 – Adoption of Vienna Convention on the Law of Treaties (VCLT) that introduced the concept of ‘jus cogens’ in International Law. VCLT is one of the most important treaties in International Law. Currently, there are 116 parties to this convention.

6. 1972 – United Nations Conference on the Human Environment at Stockholm, Sweden. The United Nations Environment Programme (UNEP) was created as a result of this conference. Around 122 countries attended it. Its success lies in the fact that in 1972, environmental governance was not seen as an international priority and still it was able to bring on board so many countries.

7. 1979 – Signing of the Moon Treaty or the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies. Currently, 18 states are parties to the treaty. Its primary objective of is to provide the necessary legal principles for governing the behavior of states, international organizations, and individuals who explore celestial bodies other than Earth, as well as administration of the resources that exploration may yield.

8. 1985 – Establishment of the South Asian Association for Regional Cooperation (SAARC). It is a regional intergovernmental organization and geopolitical union of states in South Asia aiming to accelerate the process of economic and social development in its member states through increased intra-regional cooperation. Its member states are Afghanistan, Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan, and Sri Lanka.

9. 1991 – Birth of Mercosur, a South American trade bloc established by the Treaty of Asunción. Mercosur's purpose is to promote free trade and the fluid movement of goods, people, and currency. Its members are Argentina, Brazil, Paraguay, and Uruguay.

10. 1995 – Birth of World Trade Organization (WTO) through the Marrakesh Agreement. It replaced the General Agreement on Tariffs and Trade (GATT) that was established in 1948. It is an intergovernmental organization that regulates and facilitates international trade. Currently, it has 164 member states.

11. 1996 – Formation of Shanghai Five that later on succeeded as Shanghai Cooperation Organization (SCO) in the year 2001. It is a political, economic and security organization. Its member states are China, India, Kazakhstan, Kyrgyzstan, Pakistan, Russia, Tajikistan and Uzbekistan.

12. 1998 – The International Criminal Court (ICC) is established under the Rome Statute, adopted by 120 States on 17 July 1998 during the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court in Rome and enters into force on 1 July 2002.

History of Modern International Law in 19th and 20th Centuries

suyashverma@hotmail.com (Suyash Verma) — Wed, 21 Jun 2023 17:37:28 +0000

1. 1815 – Congress of Vienna – Series of international diplomatic meetings to discuss a new European order post the downfall of Napoleon that led to agreements on national boundaries within Europe, Neutrality Pacts, freedom of navigation.

2. 1823 – Monroe Doctrine by James Monroe, then President of US - Any intervention by external powers in the politics of the Americas is a potentially hostile act against the US.

3. 1824 – Calvo Doctrine – Jurisdiction in international investment disputes lies with the country in which the investment is located. (Carlos Calvo, Argentine Jurist). Used mostly in International Investment Law.

4. 1842 – Treaty of Nanking – Ended the First Opium War between Britain and Qing Dynasty – Its provisions involved cession of Hong Kong to the crown. Was considered an unequal treaty.

5. 1864 – First Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field.

6. 1865 – Establishment of International Telegraph Union to deal with international interconnection, standardization of equipment, tariffs etc.

7. 1871 – Sino-Japanese Friendship and Trade Treaty – Mutual pledge for friendship and cooperation, exchange of ambassadors, trade related provisions.

8. 1899 – First Hague Peace Conference – Establishment of Permanent Court of Arbitration.

9. 1914-1918 – First World War

10. 1919 – Treaty of Versailles – Disarmament of Germany, payment of reparations by Germany, territorial concessions etc.

11. 1920 – Paris Peace Conference – Establishment of League of Nations – a worldwide intergovernmental organization to maintain world peace.

12. 1920 - Establishment of Permanent Court of International Justice.

13. 1923 - Establishment of the Hague Academy of International Law

14. 1928 – Kellogg-Briand Pact – International Agreement on peace – was aimed at preventing the second world war.

15. 1939-1945 – Second World War

16. 26.06.1945 – Signing of Charter of United Nations

17. 18.04.1946 – Replacement of Permanent Court of International Justice by International Court of Justice.

18. 10.12.1948 – Adoption of Universal Declaration of Human Rights by UN GA.

History of Modern International Law - Part I

suyashverma@hotmail.com (Suyash Verma) — Tue, 20 Jun 2023 18:02:59 +0000

History of Modern International Law till the end of 18th century

Authority of the Organized Church was beginning to be challenged as there were constant struggles between religious authorities and rulers known as Crusades (12th and 13th centuries).
Introduction of Modern Printing in the 15th Century disseminated knowledge undermining feudalism.
Renaissance – 15th Century
Treaty of Tordesillas – 1493 – Between Isabella I of Castile, Ferdinand II of Aragon and John II, King of Portugal establishing a new boundary or demarcation line.
Development of Concept of ‘Sovereignty’ by scholars like Bodin, Machiavelli, Hobbes etc. (15th and 16th centuries).
Increase in the number of independent states led to formation of customary rules of International Law involving diplomatic relations. Earlier, International Law was called ‘Law of Nations’.
Treaty of Amasya establishing peace – 1555 – Between Ottomans and Safavids after their war.
International Law was influenced by Natural Law (Inherent Law or Higher Law based on God, Nature and Reason) (15th and 16th centuries). Important scholars like Vittoria, Belli, Brunus, Suarez, Gentilis were present during this period.
Formation of Dutch East India Company – 1602 – Colonial Expansion.
Establishment of lex mercatoria by Britain as international trade was increasing at a frantic pace.
The greatest of the early writers is Hugo Grotius and is often called the father of International Law (16th and 17th centuries).
De Jure Belli ac Pacis (1625) by Grotius dealt with actual customs that were followed by the states of the day.
The concept of Freedom of Seas was also explained and put forth by Grotius through his work Mare Liberum (1609).
Peace of Westphalia – 1648 – Two treaties signed in the Westphalian cities of Osnabruck and Munster ending the thirty years war that brought peace to the Holy Roman empire.
Peace of Utrecht – 1715 – Series of treaties – Between Great Britian, France, Portugal and Spain for end of War of the Spanish Succession.
1758 – Scholar Emer De Vattel published the famous work of ‘The Law of Nations’.
4th July 1776 – US Declaration of Independence – Brought the concept of ‘self-determination’ to the world stage.

Early History and Roots of International Law

suyashverma@hotmail.com (Suyash Verma) — Mon, 19 Jun 2023 17:34:34 +0000

S. No.	Timeline	Treaty Between/Reign	Treaty Regarding/Remarks
1.	2600 BC	Rulers of Ancient Sumerian Cities of Lagash and Umma (Modern Iraq)	Border treaty defining boundary marks, found on a stone block.
2.	1200 BC	Egyptian–Hittite Peace Treaty between Pharaoh Ramesses II of Egypt and King Ḫattušili III of the Hittites	Establishment of Peace, Respect for Territorial Integrity, No State Aggression, Defensive Alliance
3.	800 BC	Prophet Isaiah of Ancient Israel	He said that Agreements must be respected, even when made with the enemy.
4.	Around same time	Hellenistic/Greek Civilization	Numerous treaties linked the city-states together in a network of commercial and political associations
5.	Around 30 BC to 476 AD	Roman Empire	Jus civile – Early Law that applied only to Roman citizens. Jus gentium – Simplified rules to govern the relations between foreigners and citizens. (Instrument – Preator Peregrinus) Later on, jus gentium became the norm and jus civile took the backseat. Natural Law was incorporated in the Roman Law to serve as the ultimate justification for jus gentium (rational principles common to all civilized nations). Legal Compilation – Corpus Juris Civilis – It contained the classical rules of Roman Law.
6.	1000 AD	Early Islamic World	Dar al-Islam – It is term used by Islamic Scholars that literally means house of Islam. It connotes all the countries that were under Muslim Sovereignty. Abu Hanifa is generally considered as the founder of this concept. In order to be a part of Dar al-Islam, certain requirements were laid down. Aman – The law dealing with hospitality and safety of diplomats and foreigners.

Theory of Consent/Auto-Limitation/Self-Limitation & Theory of Consensus in Public International Law

suyashverma@hotmail.com (Suyash Verma) — Sun, 18 Jun 2023 12:29:01 +0000

Theory of Auto-Limitation/Self-Limitation or Consent Theory

“The states could only be obliged to comply with international legal rules if they had first agreed to be so obliged.”

this theory has been criticized on the ground that: -

a. It fails to explain why international law is regarded as binding.

b. It also fails to take into account the growth that has taken place in international institutions, rules and regulations.

c. “To accept consent as the basis for obligation in international law begs the question as to what happens when consent is withdrawn.” Breach of Agreement may lead to violation of International Law (violation of pacta sunt servanda).

Doctrine of Consensus

Art. 161 of UNCLOS defines ‘consensus’ as “absence of any formal objection.” It may be of two types, active and passive.

This theory represents the current trend. It reflects the influence of the majority in creation of new norms of international law and acceptance of such new rules by other states.

Still consent plays an importance in International Law as States expressly agree to specific normative standards by entering into various treaties. “Each individual state, of course, has the right to seek to influence by word or deed the development of specific rules of international law, but the creation of new customary rules is not dependent upon the express consent of each particular state.”

What is the Difference between International Law, International Comity and International Morality?

suyashverma@hotmail.com (Suyash Verma) — Sat, 17 Jun 2023 13:09:03 +0000

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What is the Basic Meaning of Public International Law?

suyashverma@hotmail.com (Suyash Verma) — Fri, 16 Jun 2023 14:59:52 +0000

00:00 Introduction

01:03 Meaning of Law

03:10 International Law and its Types

03:42 Private International Law

05:40 Meaning of Public International Law

07:40 Example

08:30 Outro

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Things to Remember before Purchasing Property through Power of Attorney [HINDI]

suyashverma@hotmail.com (Suyash Verma) — Mon, 2 May 2022 12:50:19 +0000

मेरा नाम सुयश वर्मा है, और आज मैं आपसे किसी एजेंट या पावर ऑफ अटर्नी holder के जरिए प्रॉपर्टी खरीदते या बेचते समय क्या-क्या ध्यान में रखना चाहिए, यह चर्चा करूंगा । इस सवाल का जवाब, सुप्रीम कोर्ट ने कुछ दिन पहले, उमादेवी नांबियार विरुद्ध थामारसेरी एवं अन्य नामक केस में दिया था ।

Today, I will talk about an interesting case in which a person sold a property that it did not own. I know that it is hard to believe this that how can a person sell a property that it does not own but imagine a situation where a person executes a power of attorney in favour of another person to rent out a property or mortgage it, but instead the power of attorney holder sells that property without the permission of the actual owner. Is such a sale of property valid?

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Things to Remember before Purchasing Property through Power of Attorney

suyashverma@hotmail.com (Suyash Verma) — Thu, 28 Apr 2022 15:34:21 +0000

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अदालतें जमानत या बेल कब देती है ? [HINDI]

suyashverma@hotmail.com (Suyash Verma) — Mon, 25 Apr 2022 10:37:36 +0000

आज मैं आपसे Y विरुद्ध स्टेट ऑफ राजस्थान नामक केस की चर्चा करूंगा जिसमें कि जमानत के आवेदन पर निर्णय लेते समय कौन से तत्व विचार किए जाने चाहिए, उन पर चर्चा करी है ।

Today, I will talk about the case of Y v. State of Rajasthan, 2022 SCC OnLine SC 458, wherein the Hon’ble Supreme Court discussed the important factors that ought to be considered while deciding an Application for Grant of Bail.

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How are Bail Applications Decided in India? [ENGLISH]

suyashverma@hotmail.com (Suyash Verma) — Fri, 22 Apr 2022 17:41:16 +0000

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Restitution या प्रत्यास्थापन का कानूनी सिद्धांत एवं धारा 144 CPC [HINDI]

suyashverma@hotmail.com (Suyash Verma) — Sun, 17 Apr 2022 15:48:46 +0000

आज मैं आपसे मेखा राम एवं अन्य विरुद्ध स्टेट ऑफ राजस्थान एवं अन्य नामक केस की चर्चा करूंगा जिसमें कि restitution या प्रत्यास्थापन का कानूनी सिद्धांत समझाया गया है । प्रत्यास्थापन का सिद्धांत सिविल प्रक्रिया संहिता की धारा 144 में दिया गया है । धारा 144 द्वारा पक्षकारों को कोई भी मामला दायर करने के पहले की स्थिति में वापस लाने की शक्ति सिविल कोर्ट को दी गई है ।

Today, I will talk about the case of Mekha Ram and Others v. State of Rajasthan and Others, 2022 SCC OnLine SC 372, wherein the Hon’ble Supreme Court discussed the Doctrine or the Principle of Restitution in the context of Section 144 of the Code of Civil Procedure.

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Principle of 'Restitution' and S. 144 of CPC [ENGLISH]

suyashverma@hotmail.com (Suyash Verma) — Sun, 17 Apr 2022 15:29:25 +0000

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One Rank One Pension/वन रैंक वन पेंशन (OROP) का अर्थ एवं उसकी संवैधानिकता [HINDI]

suyashverma@hotmail.com (Suyash Verma) — Sat, 2 Apr 2022 14:18:49 +0000

आज में आपसे इंडियन एक्स-सर्विसमेन मूवमेंट एवं अन्य विरुद्ध यूनियन ऑफ इंडिया एवं अन्य, नामक केस की चर्चा करूंगा । इस केस में माननीय सुप्रीम कोर्ट ने OROP (One Rank One Pension) का मतलब और इसकी कानूनी वैधता के बारे में चर्चा करी है ।

Today, I will talk about the case of Indian Ex-Servicemen Movement & Others v. Union of India & Others, 2022 SCC OnLine SC 333, wherein the Hon’ble Supreme Court discussed the concept of OROP (One Rank One Pension) and its legal validity.

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What is 'One Rank One Pension' (OROP) and is it Constitutionally Valid? [English]

suyashverma@hotmail.com (Suyash Verma) — Fri, 1 Apr 2022 11:28:27 +0000

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What is Public Interest Litigation (PIL) ? (जनहित याचिका क्या होती है?)

suyashverma@hotmail.com (Suyash Verma) — Thu, 31 Mar 2022 07:22:06 +0000

आज मैं आपसे एस्टीम प्रॉपर्टीस प्राइवेट लिमिटेड विरुद्ध चेतन कांबले एवं अन्य नामक केस की चर्चा करूंगा । इस केस में माननीय सुप्रीम कोर्ट ने भारत में जनहित याचिकाओं (पीआईएल) के सैद्धांतिक महत्व एवं अवधारणा पर परिचर्चा करी है ।

Today, I will talk about the case of Esteem Properties Pvt. Ltd. v. Chetan Kamble & Others, 2022 SCC OnLine SC 246, wherein the Hon’ble Supreme Court discussed the concept and the importance of Public Interest Litigations (PILs) in India.

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Hindi - Meaning of 'Obiter Dictum' (ओबीटेर डिक्टम का अर्थ)

suyashverma@hotmail.com (Suyash Verma) — Mon, 28 Mar 2022 14:46:31 +0000

Today, I will talk about the case of Jarnail Singh v. Lacchmi Narain Gupta, 2022 SCC OnLine SC 96, wherein the Hon’ble Supreme Court discussed the meaning of ‘obiter dictum’.

आज मैं आपसे जरनैल सिंह विरुद्ध लक्ष्मी नारायण नामक केस की चर्चा करूंगा । इस केस में माननीय सुप्रीम कोर्ट ने ‘ओबीटेर डिक्टम’ नामक महटवपूर्ण कानूनी-सिद्धांत का अर्थ समझाया है ।

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Hindi - What are the Different Types of Judgments (जज्मन्ट/कानूनी-निर्णय के प्रकार)

suyashverma@hotmail.com (Suyash Verma) — Sun, 27 Mar 2022 08:53:59 +0000

Today, I will talk about the case of Shyam Sel Power Limited & Another v. Shyam Steel Industries Limited, 2022 SCC OnLine SC 313, wherein the Hon’ble Supreme Court discussed the types or kinds of judgments, that are prevalent.

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What are the Different Types of Judgments?

suyashverma@hotmail.com (Suyash Verma) — Sun, 27 Mar 2022 08:39:35 +0000

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What is Letters Patent?

suyashverma@hotmail.com (Suyash Verma) — Wed, 16 Mar 2022 11:41:02 +0000

Today, we will talk about the concept of ‘Letters Patent’ and what it means. We hear the term Letters Patent quite often but most of us may not be familiar with its true purport and meaning.

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How to File Criminal Complaint before Magistrate under Section 156 (3) of CrPC?

suyashverma@hotmail.com (Suyash Verma) — Fri, 11 Mar 2022 12:34:47 +0000

Today, I will talk about the case of Babu Venkatesh and Others v. State of Karnataka and Another, 2022 SCC OnLine SC 200, wherein the Hon’ble Supreme Court discussed the manner in which an Application, or Criminal Complaint under S. 156 (3) of the Code of Criminal Procedure, 1973 (CrPC) is to be preferred before a Magistrate.

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Role of Mens Rea in Civil Offences or Breaches

suyashverma@hotmail.com (Suyash Verma) — Thu, 10 Mar 2022 10:05:17 +0000

Today, I will talk about the case of Horticulture Experiment Station Gonikoppal, Coorg v. Regional Provident Fund Organization, 2022 SCC OnLine SC 223, wherein the Hon’ble Supreme Court examined whether mens rea is an essential element for imposing penalty for breach of civil obligations.

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Differences between Seniority-Cum-Merit and Merit-Cum-Seniority

suyashverma@hotmail.com (Suyash Verma) — Tue, 8 Mar 2022 13:36:59 +0000

Today, I will talk about the case of Rama Negi v. Union of India & Others, 2022 SCC OnLine SC 251, wherein the Hon’ble Supreme Court discussed the difference between the principles of Merit-cum-Seniority and Seniority-cum-Merit.

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Scope of Judicial Review in Government Tenders and Public Auctions

suyashverma@hotmail.com (Suyash Verma) — Sat, 5 Mar 2022 11:20:47 +0000

Today, I will talk about the case of State of Punjab & Others v. Mehar Din, Civil Appeal No. 5861 of 2009, wherein the Hon’ble Supreme Court discussed the scope of Judicial Review in the matters of Government Tenders and Public Auction.

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What is Public Interest Litigation (PIL)?

suyashverma@hotmail.com (Suyash Verma) — Fri, 4 Mar 2022 08:59:46 +0000

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Can Doctors Accept Freebies or Gifts from Pharma Industry in India and What are its Tax Implications?

suyashverma@hotmail.com (Suyash Verma) — Thu, 3 Mar 2022 10:09:14 +0000

Today, I will talk about the case of Apex Laboratories Pvt. Ltd. v. Deputy Commissioner of Income Tax, 2022 SCC OnLine SC 221, wherein the Hon’ble Supreme Court inter alia discussed why the expenses incurred by pharmaceutical entities for distribution of incentives or freebies to medical practitioners, are ineligible for any taxation related benefit.

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Ukraine Conflict : What is the Minsk Agreement?

suyashverma@hotmail.com (Suyash Verma) — Wed, 2 Mar 2022 09:35:09 +0000

Today, I will talk about the Minsk Agreement. The Minsk Agreement is a set of Agreements that have received a lot of media attention of late due to the ongoing conflict that is going on in the State of Ukraine and the Region of Donbas.

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What is the Doctrine or the Rule of Implied Prohibition?

suyashverma@hotmail.com (Suyash Verma) — Tue, 1 Mar 2022 09:04:07 +0000

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What is the Meaning of 'Obiter Dictum' or 'Obiter Dicta'?

suyashverma@hotmail.com (Suyash Verma) — Tue, 1 Feb 2022 06:59:16 +0000

Today, I will talk about the case of Jarnail Singh v. Lacchmi Narain Gupta, 2022 SCC OnLine SC 96, wherein the Hon’ble Supreme Court discussed the meaning of ‘obiter dictum’.

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Power of the Court to Issue Mandamus to the State for Providing Reservation

suyashverma@hotmail.com (Suyash Verma) — Sat, 29 Jan 2022 13:52:16 +0000

Today, I will talk about the case of State of Punjab v. Anshika Goyal & Others, 2022 SCC OnLine SC 86, wherein the Hon’ble Supreme Court discussed the power of the Courts to issue directions to the State to provide for reservation for a particular community in educational or governmental services.

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Importance of 'Reason' in Judicial, Quasi-Judicial and Administrative Decisions

suyashverma@hotmail.com (Suyash Verma) — Sat, 22 Jan 2022 12:56:50 +0000

Today, I will talk about the case of Brijmani Devi v. Pappu Kumar & Another, 2021 SCC OnLine SC 1280, wherein the Hon’ble Supreme Court discussed about the duty to accord reasons for a decision arrived at by a court or an authority.

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Brief Overview of Sources of Hindu Law

suyashverma@hotmail.com (Suyash Verma) — Thu, 20 Jan 2022 14:28:31 +0000

Today, I will talk about the case of Arunachala Gounder (dead) by LRs. v. Ponnusamy & Others, Civil Appeal No. 6659 of 2011, wherein the Hon’ble Supreme Court discussed the various sources of the Hindu Law.

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Right to Representation through Counsel or Agent in Departmental Proceedings of an Employee

suyashverma@hotmail.com (Suyash Verma) — Tue, 18 Jan 2022 13:29:18 +0000

Today, I will talk about the case of Rajasthan Marudhara Gramin Bank (RMGB) and Another v. Ramesh Chandra Meena and Another, 2022 SCC OnLine SC 9, wherein the Hon’ble Supreme Court discussed the right of an employee to be represented through counsel or agent in the Departmental Proceedings.

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What is the Legal Definition of 'Dowry' in India?

suyashverma@hotmail.com (Suyash Verma) — Sun, 16 Jan 2022 14:59:19 +0000

Today, I will talk about the case of State of Madhya Pradesh v. Jogendra & Another, 2022 SCC OnLine SC 33, wherein the Hon’ble Supreme Court discussed the meaning and the definition of ‘dowry’.

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What are 'Vested Rights' and can such Rights be Divested Retrospectively?

suyashverma@hotmail.com (Suyash Verma) — Fri, 14 Jan 2022 15:38:29 +0000

Today, I will talk about the case of Punjab State Cooperative Agricultural Development Bank Ltd. v. Registrar, Cooperative Societies and Others, 2022 SCC OnLine SC 28, wherein the Hon’ble Supreme Court discussed the concept of vested or accrued rights of an employee and “whether such vested or accrued rights can be divested with retrospective effect by the rule making authority.”

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Repatriation of Prisoners from a Foreign State to India

suyashverma@hotmail.com (Suyash Verma) — Wed, 12 Jan 2022 13:44:00 +0000

Today, I will talk about the case of Union of India & Anr. v. Shaikh Istiyaq Ahmed & Ors., Criminal Appeal No. 71 of 2022, wherein the Hon’ble Supreme Court discussed the Repatriation of Prisoners Act, 2003, that deals with the detention of foreign prisoners in India and the Indian prisoners detained in foreign countries.

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When is a Person Ineligible to be Appointed as an Arbitrator?

suyashverma@hotmail.com (Suyash Verma) — Tue, 11 Jan 2022 15:21:39 +0000

Today, I will talk about the case of Ellora Paper Mills Ltd. v. State of Madhya Pradesh, 2022 SCC OnLine SC 8, wherein the Hon’ble Supreme Court discussed Section 12 (5) of the Arbitration & Conciliation Act, 1996, that is a non-obstante clause providing for the ineligibility criteria for appointment of an arbitrator.

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What is 'Act of God' or 'Vis Major' in Legal Parlance?

suyashverma@hotmail.com (Suyash Verma) — Mon, 10 Jan 2022 14:20:39 +0000

I will talk about the case of State of UP v. Mcdowell & Co. Ltd., 2022 SCC OnLine SC 15, wherein the Hon’ble Supreme Court discussed the concept of ‘Act of God’ or vis major. We hear this term frequently and it is often used as an excuse for not doing something.

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What is 'Common Intention' under Section 34 of the Indian Penal Code (IPC)?

suyashverma@hotmail.com (Suyash Verma) — Mon, 10 Jan 2022 14:10:01 +0000

Today, I will talk about the case of Gulab v. State of Uttar Pradesh, 2021 SCC OnLine SC 1211, wherein the Hon’ble Supreme Court discussed Section 34 of the Indian Penal Code, 1860, that deals with criminal acts done by several persons in furtherance of common intention.

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What is the Manner of Proving a 'Will' before the Court?

suyashverma@hotmail.com (Suyash Verma) — Tue, 14 Dec 2021 10:24:17 +0000

Today, I will talk about the case of Murthy and Others v. C. Saradambal and Others, 2021 SCC OnLine SC 1219, wherein the Hon’ble Supreme Court discussed the manner in which a ‘Will’ could be proved.

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To know more about Wills, please visit my earlier show accessible at https://www.desikanoon.co.in/2021/10/what-is-meaning-of-unprivileged-will-in.html

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Basics of the Doctrine of Stare Decisis

suyashverma@hotmail.com (Suyash Verma) — Mon, 13 Dec 2021 17:10:20 +0000

Today, I will talk about a very important principle of law, the principle of stare decisis. I will discuss the same with a jurisprudential perspective to provide conceptual clarity in relation to the doctrine of stare decisis.

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Doctrine of 'Contra Proferentem' and Its Application in Insurance Contracts

suyashverma@hotmail.com (Suyash Verma) — Sat, 11 Dec 2021 18:14:32 +0000

Today, I will talk about the case of Manmohan Nanda v. United India Assurance Co. Ltd. & Anr., Civil Appeal No. 8386/2015, wherein the Hon’ble Supreme Court inter alia discussed the Doctrine of Contra Proferentem in the field of statutory interpretation and Insurance Contracts.

To know more about Insurance Contracts, please visit my earlier show the link for which is https://www.desikanoon.co.in/2021/12/what-are-rules-for-drafting-and-filling.html

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What are the Rules for Drafting and Filling Up an Insurance Proposal?

suyashverma@hotmail.com (Suyash Verma) — Fri, 10 Dec 2021 14:34:50 +0000

Today, I will talk about the case of Manmohan Nanda v. United India Assurance Co. Ltd. & Anr., Civil Appeal No. 8386/2015, wherein the Hon’ble Supreme Court discussed the basic rules to be observed in making a proposal for insurance.

In an earlier post, I had discussed the importance of good faith in a Contract of Insurance. To know more about it, please visit the link at https://www.desikanoon.co.in/2021/11/supreme-court-on-contract-of-insurance.html

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'Consecutive Sentences', 'Concurrent Sentences' and Section 427 of the Code of Criminal Procedure (CrPC)

suyashverma@hotmail.com (Suyash Verma) — Wed, 8 Dec 2021 15:20:31 +0000

Today, I will talk about the case of Mohd. Zahid v. State through NCB, Criminal Appeal No. 1457 of 2021, wherein the Hon’ble Supreme Court discussed Section 427 of the Code of Criminal Procedure, 1973 (CrPC), that deals with the sentencing of an offender who has already been sentenced for another offence.

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What is the Meaning of 'Issue of Process' under the Code of Criminal Procedure (CrPC)?

suyashverma@hotmail.com (Suyash Verma) — Mon, 6 Dec 2021 14:16:55 +0000

Today, I will talk about the case of Sunil Todi and Others v. State of Gujarat and Another, 2021 SCC OnLine SC 1174, wherein the Hon’ble Supreme Court discussed about issuance of process and its postponement as enshrined under the Code of Criminal Procedure, 1973 (CrPC). On the present show, I will discuss Sections 202, 203 and 204 of CrPC.

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What is 'Cognizance' under the Code of Criminal Procedure (CrPC)?

suyashverma@hotmail.com (Suyash Verma) — Sat, 4 Dec 2021 13:59:41 +0000

Today, I will talk about the case of Pradeep S. Wodeyar v. the State of Karnataka, Criminal Appeal No. 1288 of 2021, wherein the Hon’ble Supreme Court discussed the concept of “cognizance” as enshrined under the Code of Criminal Procedure, 1973 (in short, “CrPC”).

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Doctrine of Res Ipsa Loquitur and Medical Negligence

suyashverma@hotmail.com (Suyash Verma) — Fri, 3 Dec 2021 16:30:20 +0000

Today, I will talk about the case of Bombay Hospital & Medical Research Centre v. Asha Jaiswal and Others, 2021 SCC OnLine SC 1149, wherein the Hon’ble Supreme Court discussed the Doctrine of Res Ipsa Loquitur, that literally means that ‘the thing speaks for itself’, in the context of Medical Negligence.

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What is Section 465 of the Code of Criminal Procedure (CrPC)?

suyashverma@hotmail.com (Suyash Verma) — Thu, 2 Dec 2021 13:27:29 +0000

Today, I will talk about the case of Pradeep S. Wodeyar v. the State of Karnataka, Criminal Appeal No. 1288 of 2021, wherein the Hon’ble Supreme Court discussed S. 465 of the Code of Criminal Procedure (CrPC) that provides for when a finding or a sentence would be reversible by reason of error, omission or irregularity.

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What is 'Attempt to Murder' under Section 307 of Indian Penal Code (IPC)?

suyashverma@hotmail.com (Suyash Verma) — Mon, 29 Nov 2021 14:17:04 +0000

Today, I will talk about the case of Surinder Singh v. State (Union Territory of Chandigarh), Criminal Appeal No. 2373 of 2010, wherein the Hon’ble Supreme Court discussed Section 307 of the Indian Penal Code (IPC) that deals with the offence of attempt to murder.

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'Possibility of Reformation and Rehabilitation of Death Convicts' as a Mitigating Circumstance

suyashverma@hotmail.com (Suyash Verma) — Sat, 27 Nov 2021 15:16:16 +0000

Today, I will talk about the case of Mofil Khan & Another v. the State of Jharkhand, Criminal Appeal No. 1795 of 2009, wherein the Hon’ble Supreme Court discussed the importance of the possibility of reformation and rehabilitation while awarding death sentence to a convict.

To know more about it, please visit https://www.desikanoon.co.in/2021/11/possibility-of-reformation-and.html

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Res Judicata in PILs (Public Interest Litigations) - Views of the Supreme Court

suyashverma@hotmail.com (Suyash Verma) — Fri, 26 Nov 2021 12:47:57 +0000

Today, I will talk about the case of National Confederation of Officers Association of Central Public Sector Enterprises and Others v. Union of India and Others, 2021 SCC OnLine SC 1086, wherein the Hon’ble Supreme Court discussed the applicability of the Principle of Res Judicata to Public Interest Litigations (PILs) in India.

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Meaning of 'Falsus in Uno Falsus in Omnibus' - Views of the Supreme Court

suyashverma@hotmail.com (Suyash Verma) — Wed, 24 Nov 2021 16:14:22 +0000

Today, I will talk about the case of Arvind Kumar v. State of Rajasthan, 2021 SCC OnLine SC 1099, wherein the Hon’ble Supreme Court discussed the Latin Maxim “Falsus in Uno-Falsus in Omnibus” which is a rule of caution in Indian Criminal Jurisprudence.

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'Ejusdem Generis', Interpretation and Supreme Court

suyashverma@hotmail.com (Suyash Verma) — Tue, 23 Nov 2021 16:08:14 +0000

Today, I will talk about the case of Union of India v. Manraj Enterprises, 2021 SCC OnLine SC 1081, wherein the Hon’ble Supreme Court discussed the rule of ejusdem generis in the field of statutory interpretation.

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Sexual Assault, POCSO and Skin to Skin Contact - Views of the Supreme Court

suyashverma@hotmail.com (Suyash Verma) — Fri, 19 Nov 2021 13:26:43 +0000

Today, I will talk about the case of Attorney General for India v. Satish & Another, Criminal Appeal No. 1410 of 2021, wherein the Hon’ble Supreme Court discussed the requirement of ‘skin to skin’ contact of the victim and the accused to attract Section 7 of the Protection of Children from Sexual Offences Act, 2012 that provides for the definition of ‘sexual assault’ (in short, “POCSO”).

To know more about it, please visit https://www.desikanoon.co.in/2021/11/sexual-assault-pocso-and-skin-to-skin.html

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What is the Difference between ‘Acquiescence’, ‘Delay' and Laches’?

suyashverma@hotmail.com (Suyash Verma) — Thu, 18 Nov 2021 15:32:42 +0000

Today, I will talk about the case of the Chairman, State Bank of India & Another v. M.J. James, Civil Appeal No. 8223 of 2009, wherein the Hon’ble Supreme Court discussed the differences between ‘acquiescence’, ‘delay and laches’.

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RERA is Retroactive and not Retrospective - Views of the Supreme Court

suyashverma@hotmail.com (Suyash Verma) — Mon, 15 Nov 2021 12:17:23 +0000

Today, I will talk about the case of Newtech Promoters and Developers Pvt. Ltd. v. State of UP & Others, 2021 SCC OnLine SC 1044, wherein the Hon’ble Supreme Court discussed about the constitutional validity of the Real Estate (Regulation and Development) Act, 2016 (in short, “RERA”).

To know more about it, please visit https://www.desikanoon.co.in/2021/11/rera-is-retroactive-and-not.html

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Can a Foreigner or a Foreign Citizen file a Consumer Complaint in India?

suyashverma@hotmail.com (Suyash Verma) — Sat, 13 Nov 2021 15:57:25 +0000

Today, I will discuss whether a foreign national or a foreigner or a citizen of a country other than India, can prefer a Consumer Complaint in India or not.

To know more about it, please visit https://www.desikanoon.co.in/2021/11/can-foreigner-or-foreign-citizen-file.html

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Judicial Review in Departmental Enquiries - Views of the Supreme Court

suyashverma@hotmail.com (Suyash Verma) — Fri, 12 Nov 2021 16:25:06 +0000

Today, I will talk about the case of Union of India & Others v. Ex. Constable Ram Karan, Civil Appeal Nos. 6723 of 2021, wherein the Hon’ble Supreme Court discussed the general principles that govern the scope of judicial review in departmental enquiries in service jurisprudence.

To know more about it, please visit https://www.desikanoon.co.in/2021/11/judicial-review-in-departmental.html

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How can a Company File a Complaint under S. 138 for Dishonor of Cheque?

suyashverma@hotmail.com (Suyash Verma) — Thu, 11 Nov 2021 15:22:43 +0000

Today, I will talk about the case of Bhupesh Rathod v. Dayashankar Prasad Chaurasia & Another, Criminal Appeal No. 1105 of 2021, wherein the Hon’ble Supreme Court discussed the manner in which a Company could institute a Complaint under S. 138 of the NI Act in relation to dishonour of Cheque.

To know more about it, please visit https://www.desikanoon.co.in/2021/11/how-can-company-file-complaint-under-s.html

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Preventive Detention and Article 22 of the Constitution of India - Views of the Supreme Court

suyashverma@hotmail.com (Suyash Verma) — Mon, 8 Nov 2021 12:13:18 +0000

Today, I will talk about the case of Sarabjeet Singh Mokha v. District Magistrate, Jabalpur & Others, 2021 SCC OnLine SC 1019, wherein the Hon’ble Supreme Court discussed the law relating to Preventive Detention in India in the context of Article 22 of the Constitution of India.

To know more about it, please visit https://www.desikanoon.co.in/2021/11/preventive-detention-and-article-22-of.html

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What is 'Divorce by Mutual Consent' under the Hindu Marriage Act?

suyashverma@hotmail.com (Suyash Verma) — Fri, 5 Nov 2021 12:24:02 +0000

Today, I will talk about Section 13-B of the Hindu Marriage Act, 1955, that deals with Divorce by Mutual Consent.

To know more about it, please visit https://www.desikanoon.co.in/2021/11/what-is-divorce-by-mutual-consent-under.html

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Supreme Court on Contract of Insurance and its Interpretation

suyashverma@hotmail.com (Suyash Verma) — Tue, 2 Nov 2021 16:33:27 +0000

Today, I will talk about the case of Life Insurance Corporation of India & Another v. Sunita, 2021 SCC OnLine SC 1013, wherein the Hon’ble Supreme Court discussed the importance of good faith in a Contract of Insurance.

To know more about it, please visit https://www.desikanoon.co.in/2021/11/supreme-court-on-contract-of-insurance.html

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What is the Meaning of 'Unprivileged Will' in India and Can it be Revoked?

suyashverma@hotmail.com (Suyash Verma) — Sun, 31 Oct 2021 07:59:53 +0000

Today, I will discuss about revocation of Unprivileged Wills. This issue was also considered in the latest case-law of Badrilal v. Suresh, 2021 SCC OnLine SC 1001.

To know more about it, please visit https://www.desikanoon.co.in/2021/10/what-is-meaning-of-unprivileged-will-in.html

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Cheque issued as 'Security' and S. 138 of the NI Act - Views of the Supreme Court

suyashverma@hotmail.com (Suyash Verma) — Fri, 29 Oct 2021 15:28:02 +0000

Today, I will talk about the case of Sripati Singh (since deceased) through His Son Gaurav Singh v. State of Jharkhand & Another, SLP (C) No. 252-253/2020, wherein the Hon’ble Supreme Court discussed whether a Cheque issued towards ‘security’ attracts the provisions of Section 138 of the Negotiable Instruments Act, 1881, or not.

To know more about it, please visit https://www.desikanoon.co.in/2021/10/cheque-issued-as-security-and-s-138-of.html

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Pegasus, Privacy and Surveillance - Views of the Supreme Court

suyashverma@hotmail.com (Suyash Verma) — Thu, 28 Oct 2021 16:35:10 +0000

Today, I will again talk about the case of Manohar Lal Sharma v. Union of India & Others, Writ Petition (Criminal) No. 314 of 2021, wherein vide Order dated 27.10.2021, the Hon’ble Supreme Court inter alia discussed the contours of the right to privacy in the context of a cyber-weapon by the name of ‘Pegasus’ that was allegedly used for spying on private individuals by various governments across the world.

To know more about it, please visit https://www.desikanoon.co.in/2021/10/pegasus-privacy-supreme-court.html

To know more about the Pegasus Judgment, please visit my earlier show at https://www.desikanoon.co.in/2021/10/pegasus-national-security-supreme-court.html

Telegram: https://t.me/Legal_Talks_by_DesiKanoon

YouTube Channel: https://www.youtube.com/channel/UCMmVCFV7-Kfo_6S42kPhz2w

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Pegasus, National Security and Judicial Review

suyashverma@hotmail.com (Suyash Verma) — Wed, 27 Oct 2021 16:26:38 +0000

Today, I will talk about the case of Manohar Lal Sharma v. Union of India & Others, Writ Petition (Criminal) No. 314 of 2021, wherein vide Order dated 27.10.2021, the Hon’ble Supreme Court inter alia discussed the scope of judicial review in matters pertaining to national security. This was done in the context of a software by the name of ‘Pegasus’ that was allegedly used for spying on private individuals by various governments across the world.

To know more about it, please visit https://www.desikanoon.co.in/2021/10/pegasus-national-security-supreme-court.html

Telegram: https://t.me/Legal_Talks_by_DesiKanoon

YouTube Channel: https://www.youtube.com/channel/UCMmVCFV7-Kfo_6S42kPhz2w

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Can Anticipatory Bail be Granted to a 'Proclaimed Offender' or an 'Absconder' under CrPC?

suyashverma@hotmail.com (Suyash Verma) — Tue, 26 Oct 2021 14:53:28 +0000

Today, I will talk about the case of Prem Shankar Prasad v. State of Bihar & Another, 2021 SCC OnLine SC 955, wherein the Hon’ble Supreme Court discussed whether a person who has been declared as an absconder or a proclaimed offender under Section 82 of the Code of Criminal Procedure, 1973 (CrPC) is entitled for grant of anticipatory bail or not.

To know more about it, please visit https://www.desikanoon.co.in/2021/10/can-anticipatory-bail-be-granted-to.html

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YouTube Channel: https://www.youtube.com/channel/UCMmVCFV7-Kfo_6S42kPhz2w

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What is the Difference between 'Parole' and 'Furlough'?

suyashverma@hotmail.com (Suyash Verma) — Sat, 23 Oct 2021 14:13:04 +0000

Today, I will talk about the case of State of Gujarat and Another v. Narayan, 2021 SCC OnLine SC 949, wherein the Hon’ble Supreme Court discussed the differences between ‘parole’ and ‘furlough’. We hear these terms quite often, but their meaning is unclear to many.

To know more about it, please visit https://www.desikanoon.co.in/2021/10/what-is-difference-between-parole-and.html

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YouTube Channel: https://www.youtube.com/channel/UCMmVCFV7-Kfo_6S42kPhz2w

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The Curious Case of 'Casus Omissus'

suyashverma@hotmail.com (Suyash Verma) — Fri, 22 Oct 2021 12:51:50 +0000

Today, I will talk about another interesting concept of law, casus omissus. It is a Latin term that means “case omitted.” Basically, casus omissus is “a matter which should have been but has not been provided for in a statute.”

To know more about it, please visit https://www.desikanoon.co.in/2021/10/the-curious-case-of-casus-omissus.html

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YouTube Channel: https://www.youtube.com/channel/UCMmVCFV7-Kfo_6S42kPhz2w

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Doctrine of Precedent and Stare Decisis - An Overview

suyashverma@hotmail.com (Suyash Verma) — Thu, 21 Oct 2021 16:29:00 +0000

Today, I will talk about two very important concepts, precedent and stare decisis. We have heard these terms quite often and I am sure that many of you would already be aware about their respective meanings.

To know more about it, please visit https://www.desikanoon.co.in/2021/10/doctrine-of-precedent-and-stare-decisis.html

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Supreme Court on 'Mens Rea' and its Importance in Criminal Jurisprudence

suyashverma@hotmail.com (Suyash Verma) — Wed, 20 Oct 2021 15:20:18 +0000

Today, I will talk about the case of Bharath Booshan Aggarwal v. State of Kerala, 2021 SCC OnLine 881, wherein the Hon’ble Supreme Court discussed the importance of mens rea in establishing the guilt of an accused.

To know more about it, please visit https://www.desikanoon.co.in/2021/10/supreme-court-on-mens-rea-and-its.html

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YouTube Channel: https://www.youtube.com/channel/UCMmVCFV7-Kfo_6S42kPhz2w

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Supreme Court on the Effect of Playing 'Fraud' on Judicial Proceedings

suyashverma@hotmail.com (Suyash Verma) — Tue, 19 Oct 2021 15:01:51 +0000

Today, I will talk about the case of Smriti Madan Kansagra v. Perry Kansagra, 2021 SCC OnLine SC 909, wherein the Hon’ble Supreme Court discussed the consequences of obtaining a decree or an order by playing ‘fraud’ over the Court.

To know more about it, please visit https://www.desikanoon.co.in/2021/10/supreme-court-on-effect-of-playing.html

Telegram: https://t.me/Legal_Talks_by_DesiKanoon

YouTube Channel: https://www.youtube.com/channel/UCMmVCFV7-Kfo_6S42kPhz2w

Apple Podcasts: https://podcasts.apple.com/us/podcast/legal-talks-by-desikanoon/id1510617120

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Supreme Court on First Appeals under Section 96 of CPC

suyashverma@hotmail.com (Suyash Verma) — Mon, 18 Oct 2021 16:18:55 +0000

Today, I will again talk about the case of V. Prabhakara v. Basavaraj K. (Dead) by Lr. & Another, 2021 SCC OnLine SC 896, wherein the Hon’ble Supreme Court inter alia discussed the powers of the First Appellate Court as enshrined under Section 96 of the Code of Civil Procedure, 1908 (CPC).

To know more about it, please visit https://www.desikanoon.co.in/2021/10/supreme-court-on-first-appeals-under.html

To know about Second Appeals, please visit https://www.desikanoon.co.in/2021/09/second-appeal-section-100-cpc-civil-procedure.html and https://www.desikanoon.co.in/2021/09/section-103-cpc-second-appeal-fact.html

Telegram: https://t.me/Legal_Talks_by_DesiKanoon

YouTube Channel: https://www.youtube.com/channel/UCMmVCFV7-Kfo_6S42kPhz2w

Apple Podcasts: https://podcasts.apple.com/us/podcast/legal-talks-by-desikanoon/id1510617120

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Supreme Court on the Importance of 'Pleadings' in Civil Cases

suyashverma@hotmail.com (Suyash Verma) — Sat, 16 Oct 2021 16:53:26 +0000

Today, I will talk about the case of V. Prabhakara v. Basavaraj K. (Dead) by Lr. & Another, 2021 SCC OnLine SC 896, wherein the Hon’ble Supreme Court discussed the importance of pleadings in civil cases

To know more about it, please visit https://www.desikanoon.co.in/2021/10/https://www.desikanoon.co.in/2021/10/supreme-court-on-importance-of.html

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Supreme Court on Power of Lok Adalats to Decide Cases before it on Merits

suyashverma@hotmail.com (Suyash Verma) — Fri, 15 Oct 2021 17:05:53 +0000

Today, I will talk about the case of Estate Officer v. Colonel H.V. Mankotia (Retired), 2021 SCC OnLine SC 898, wherein the Hon’ble Supreme Court discussed the powers of the Lok Adalats to decide the cases before it on merits.

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Supreme Court on the Period of Limitation for Revising an Order of Assessment under the Income Tax Act

suyashverma@hotmail.com (Suyash Verma) — Thu, 14 Oct 2021 14:50:22 +0000

Today, I will talk about the case of Commissioner of Income Tax, Chennai v. Mohammed Meeran Shahul Hameed, 2021 SCC OnLine SC 901, wherein the Hon’ble Supreme Court interpreted S. 263 (2) of the Income Tax Act, 1961 that provides for the period of limitation for revising an order of assessment.

To know more about it, please visit https://www.desikanoon.co.in/2021/10/limitation-period-.html

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Supreme Court on Joint Trials and Separate Trials under CrPC

suyashverma@hotmail.com (Suyash Verma) — Wed, 13 Oct 2021 15:58:45 +0000

Today, I will talk about the case of Nasib Singh v. State of Punjab & Another, 2021 SCC OnLine SC 924, wherein the Hon’ble Supreme Court discussed the concept of Joint Trials and Separate Trials as enshrined under the Code of Criminal Procedure, 1973 (CrPC).

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Supreme Court on Condonation of Delay under S. 5 of Limitation Act

suyashverma@hotmail.com (Suyash Verma) — Tue, 12 Oct 2021 13:53:33 +0000

Today, I will talk about the case of Dr. Yashwantrao Bhaskarrao Deshmukh v. Raghunath Kisan Saindane, 2021 SCC OnLine SC 914, wherein the Hon’ble Supreme Court discussed the important points that are to be considered while deciding an Application under Section 5 of the Limitation Act, 1963 seeking condonation of delay.

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Supreme Court on the Principle of Coram Non Judice

suyashverma@hotmail.com (Suyash Verma) — Mon, 11 Oct 2021 13:11:40 +0000

Today, I will talk about the case of Milkhi Ram v. Himachal Pradesh State Electricity Board, Civil Appeal No. 1346 of 2010, that was decided on 08.10.2021, wherein the Hon’ble Supreme Court discussed the principle of coram non judice with respect to the Industrial Disputes Act.

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Supreme Court on Liability of Directors of Companies in Cheque Dishonor Cases

suyashverma@hotmail.com (Suyash Verma) — Sat, 9 Oct 2021 16:42:08 +0000

Today, I will talk about the case of Ashutosh Ashok Parasrampuriya & Another v. M/s Gharrkul Industries Pvt. Ltd., SLP (C) No. 7573/2014, wherein the Hon’ble Supreme Court discussed the basic ingredients of offence punishable under S. 141 of the Negotiable Instruments Act, 1881 (in short, “NI Act”) that deals with offences by companies in relation to dishonour of cheques.

To know more about it, please visit https://www.desikanoon.co.in/2021/10/section-138-141-negotiable-instruments-cheque-director.html

To know more about Section 141 and Section 138 of the NI Act, please refer to my earlier post accessible at https://www.desikanoon.co.in/2021/07/cheque-dishonour-bounce-138-section-negotiable-instrument-supreme-court.html

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Can the National Green Tribunal (NGT) exercise Suo Motu Jurisdiction under the NGT Act?

suyashverma@hotmail.com (Suyash Verma) — Fri, 8 Oct 2021 15:52:18 +0000

Today, I will talk about the case of Municipal Corporation of Greater Mumbai v. Ankita Sinha & Others, Civil Appeal Nos. 12122-12123 of 2018, wherein the Hon’ble Supreme Court considered whether the National Green Tribunal (NGT) has the power to exercise suo motu jurisdiction in discharge of its functions under the National Green Tribunal Act, 2010 (NGT Act) or not.

To know more about it, please visit https://www.desikanoon.co.in/2021/10/ngt-national-green-tribunal-suo-motu-jurisdiction.html

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Supreme Court on 'Honourable Acquittal' and its Effect in Service Jurisprudence

suyashverma@hotmail.com (Suyash Verma) — Thu, 7 Oct 2021 14:01:03 +0000

Today, I will talk about the case of Union of India and Others v. Methu Meda, Civil Appeal No. 6238 of 2021, wherein the Hon’ble Supreme Court discussed the concept of ‘Honourable Acquittal’ in Service and Criminal Jurisprudence.

To know more about it, please visit https://www.desikanoon.co.in/2021/10/honourable-acquittal-service-criminal-law-jurisprudence.html

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Supreme Court on Pendente Lite Interest in Arbitration Matters

suyashverma@hotmail.com (Suyash Verma) — Wed, 6 Oct 2021 14:03:33 +0000

Today, I will talk about the case of Garg Builders v. Bharat Heavy Electricals Limited, 2021 SCC OnLine SC 855, wherein the Hon’ble Supreme Court discussed the concept of pendente lite interest in the context of Arbitral Proceedings.

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Supreme Court on Extension of Period of Limitation due to Covid-19 Pandemic - Part III

suyashverma@hotmail.com (Suyash Verma) — Mon, 4 Oct 2021 14:47:51 +0000

Today, I will talk about the case of In Re: Cognizance for Extension of Limitation, Miscellaneous Application No.665/2021, wherein vide Order dated 23.09.2021, the Hon’ble Supreme Court discussed the issue relating to period of limitation prescribed under various laws in light of the Covid-19 Pandemic.

To know more about it, please visit https://www.desikanoon.co.in/2021/10/extension-limitation-covid-19-relaxation.html

I had discussed this issue in our earlier shows as well, the links for which could be accessed in the description below.

1. https://www.desikanoon.co.in/2021/03/supreme-court-period-computation-limitation-negotiable-instruments-arbitration-extension-suspended-india-disaster-management.html

2. https://www.desikanoon.co.in/2021/05/supreme-court-period-computation-limitation-negotiable-instruments-arbitration-extension-suspended-india-disaster-management-further.html

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What is the Difference between 'Voluntary Resignation' and 'Voluntary Retirement'?

suyashverma@hotmail.com (Suyash Verma) — Sat, 2 Oct 2021 15:51:40 +0000

Today, I will talk about the case of Union of India & Another v. Abhiram Verma, Civil Appeal No. 1027 of 2020, wherein the Hon’ble Supreme Court discussed the difference between ‘voluntary resignation’ and ‘voluntary retirement’.

To know more about it, please visit https://www.desikanoon.co.in/2021/10/voluntary-retirement-resignation-superannuation-difference.html

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Supreme Court on Retrospective Seniority or Notional Seniority

suyashverma@hotmail.com (Suyash Verma) — Thu, 30 Sep 2021 13:40:47 +0000

Today, I will talk about the case of State of Bihar & Others v. Arbind Jee, Civil Appeal No. 3767 of 2010, wherein the Hon’ble Supreme Court discussed the concept of Retrospective Seniority or Notional Seniority.

To know more about it, please visit https://www.desikanoon.co.in/2021/09/retrospective-notional-seniority.html

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Supreme Court on the Doctrine of Approbate-Reprobate

suyashverma@hotmail.com (Suyash Verma) — Wed, 29 Sep 2021 14:57:12 +0000

On today’s show, we will talk about the case of Adani Gas Limited v. Union of India and Others, SLP (C) Nos. 28192-28193 of 2018, wherein the Hon’ble Supreme Court inter alia discussed the Doctrine of Approbate-Reprobate.

To know more about it, please visit https://www.desikanoon.co.in/2021/09/approbate-reprobate-estoppel-election-meaning-doctrine.html

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Supreme Court on Appointment of Arbitrator under Section 11 of the Arbitration Act

suyashverma@hotmail.com (Suyash Verma) — Tue, 28 Sep 2021 13:00:59 +0000

Today, I will discuss the case of DLF Home Developers Limited v. Rajapura Homes Private Limited & Another, 2021 SCC OnLine SC 781, wherein the Hon’ble Supreme Court discussed Section 11 of the Arbitration & Conciliation Act, 1996 (in short, “Arbitration Act”), that deals with appointment of arbitrators. The facts of the case are not necessary for the purposes of this show and hence, the same are not being discussed here.

To know more about it, please visit https://www.desikanoon.co.in/2021/09/section-11-arbitration-act-appointment-arbitrator.html

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Supreme Court on the Doctrine of Res Judicata

suyashverma@hotmail.com (Suyash Verma) — Mon, 27 Sep 2021 13:24:35 +0000

Today, I will talk about the case of Jamia Masjid v. K.V. Rudrappa (since dead) by Lrs. & Others, 2021 SCC OnLine SC 792, wherein Hon’ble Supreme Court discussed the Doctrine of Res Judicata in detail.

To know more about it, please visit https://www.desikanoon.co.in/2021/09/res-judicata-section-11-code-civil-procedure-cpc.html

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Supreme Court on Imposition of Costs in Civil and Commercial Litigations

suyashverma@hotmail.com (Suyash Verma) — Wed, 22 Sep 2021 17:22:38 +0000

Today, I will discuss the case of Uflex Ltd. v. Govt. of Tamil Nadu & Others, 2021 SCC OnLine SC 738, wherein the Hon’ble Supreme Court discussed the concept of awarding costs in civil and commercial litigations.

To know more about it, please visit https://www.desikanoon.co.in/2021/09/imposition-costs-cpc-35a-35b-civil-procedure.html

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Supreme Court on Reinstatement of Contractual Employee due to Illegal Termination

suyashverma@hotmail.com (Suyash Verma) — Wed, 22 Sep 2021 13:44:47 +0000

Today, I will talk about the case of Ram Manohar Joint Hospital and Others v. Munna Prasad Saini and Another, Civil Appeal No. 5810 of 2021, wherein the Hon’ble Supreme Court discussed whether a contractual employee working in a government establishment is entitled for reinstatement on account of his illegal termination or not.

To know more about it, please visit https://www.desikanoon.co.in/2021/09/reinstatement-regularization-industrial-disputes.html

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What is the Doctrine of Constructive Notice

suyashverma@hotmail.com (Suyash Verma) — Mon, 20 Sep 2021 13:33:44 +0000

Today, I will discuss the Doctrine of Constructive Notice in the context of a latest judicial pronouncement by the Hon’ble Supreme Court, namely, Salim D. Agboatwala & Others v. Shamalji Oddhavji Thakkar & Others, Civil Appeal No. 5641 of 2021.

To know more about it, please visit https://www.desikanoon.co.in/2021/09/doctrine-constructive-notice-actual-implied.html

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Supreme Court on Abetment of Suicide under Section 306 of IPC

suyashverma@hotmail.com (Suyash Verma) — Sat, 18 Sep 2021 12:13:16 +0000

Today, I will discuss the case of Kanchan Sharma v. State of Uttar Pradesh & Another, Criminal Appeal No. 1022 of 2021, wherein the Hon’ble Supreme Court discussed Section 306 of the Indian Penal Code (IPC) that provides for punishment in relation to abetment of suicide.

To know more about it, please visit https://www.desikanoon.co.in/2021/09/section-306-ipc-penal-code-suicide-abetment.html

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Supreme Court on Negative Kompetenz-Kompetenz, Interim Measures and S. 9 of Arbitration Act

suyashverma@hotmail.com (Suyash Verma) — Fri, 17 Sep 2021 14:55:00 +0000

Today, I will discuss the case of Arcelor Mittal Nippon Steel India Ltd. v. Essar Bulk Terminal Ltd., 2021 SCC OnLine SC 718, wherein the Hon’ble Supreme Court discussed whether the Courts have the power to entertain an application under Section 9 (1) of the Arbitration and Conciliation Act, 1996 (in short, “Arbitration Act”), once an Arbitral Tribunal has been constituted.

To know more about it, please visit https://www.desikanoon.co.in/2021/09/section-9-arbitration-interim-measures-interpretation.html

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Supreme Court on Life Imprisonment and Rigorous Imprisonment

suyashverma@hotmail.com (Suyash Verma) — Thu, 16 Sep 2021 18:05:29 +0000

Today I will discuss the case of Md. Alfaz Ali v. The State of Assam, Special Leave Petition (Crl.) No. 6220 of 2018, wherein the Hon’ble Supreme Court discussed whether imprisonment for life means rigorous imprisonment for life.

To know more about it, please visit https://www.desikanoon.co.in/2021/09/life-imprisonment-rigorous-naib-godse.html

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Supreme Court on Irretrievable Breakdown of Marriage and Mental Cruelty

suyashverma@hotmail.com (Suyash Verma) — Tue, 14 Sep 2021 17:35:52 +0000

Today, I will discuss the case of Sivasankaran v. Santhimeental, Civil Appeal Nos. 5984-4985 of 2021, wherein the Hon’ble Supreme Court discussed the broad contours under which a Decree of Divorce could be passed directly by the Supreme Court of India, without referring the parties to the Family Court, in exercise of powers under Article 142 of the Constitution of India.

To know more about it, please visit https://www.desikanoon.co.in/2021/09/article-142-divorce.html

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Supreme Court on Medical Negligence

suyashverma@hotmail.com (Suyash Verma) — Mon, 13 Sep 2021 14:31:52 +0000

Today, I will discuss the case of Dr. Harish Kumar Khurana v. Joginder Singh & Others, 2021 SCC OnLine SC 673, wherein the Hon’ble Supreme Court discussed about the basic principles that a Court ought to keep in mind while deciding cases relating to medical negligence.

To know more about it, please visit https://www.desikanoon.co.in/2021/09/medical-negligence-2021.html

To read more on Medical Negligence, please visit the following links: -

https://www.desikanoon.co.in/2012/08/judicial-interpretation-of-medical.html

https://www.desikanoon.co.in/2019/05/nand-kishore-mohib-medical-negligence-doctor-compensation-ncdrc-patna-.html

https://www.desikanoon.co.in/2013/10/latest-supreme-court-judgment-on.html

https://www.desikanoon.co.in/2013/10/latest-supreme-court-judgment-on_27.html

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YouTube Channel: https://www.youtube.com/channel/UCMmVCFV7-Kfo_6S42kPhz2w

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Supreme Court on Section 103 of CPC and Findings of Fact in Second Appeals

suyashverma@hotmail.com (Suyash Verma) — Sat, 11 Sep 2021 11:09:55 +0000

Today, I am going to discuss the case of K.N. Nagarajappa & Others v. H. Narasimha Reddy, 2021 SCC OnLine SC 694, wherein the Hon’ble Supreme Court discussed Section 103 of the Code of Civil Procedure, 1908 (in short, “CPC”) that talks about power of the High Court to determine issues of fact in Second Appeals.

To know more about it, please visit https://www.desikanoon.co.in/2021/09/section-103-cpc-second-appeal-fact.html

To watch our earlier episode on S. 100 of CPC and Second Appeals, please visit https://www.desikanoon.co.in/2021/09/second-appeal-section-100-cpc-civil-procedure.html

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Supreme Court on Fraudulent Appointments in Public Employment

suyashverma@hotmail.com (Suyash Verma) — Fri, 10 Sep 2021 16:49:02 +0000

Today I am going to discuss the case of M/s. Bharat Coking Coal Ltd. v. Workmen, 2021 SCC OnLine SC 671, wherein the Hon’ble Supreme Court discussed about the consequences of fraudulent appointment in governmental services.

To know more about it, please visit https://www.desikanoon.co.in/2021/09/fraudulent-appointment-public-employment.html

Telegram: https://t.me/Legal_Talks_by_DesiKanoon

YouTube Channel: https://www.youtube.com/channel/UCMmVCFV7-Kfo_6S42kPhz2w

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Supreme Court on What is a Judgment and its Meaning

suyashverma@hotmail.com (Suyash Verma) — Thu, 9 Sep 2021 14:26:44 +0000

On today’s show, we will discuss the case of Shakuntala Shukla v. State of Uttar Pradesh and Another, 2021 SCC OnLine SC 672, wherein the Hon’ble Supreme Court discussed the meaning of “judgment” at length.

To know more about it, please visit https://www.desikanoon.co.in/2021/09/judgment-meaning-supreme-court.html

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Supreme Court on Seeking Declaration of Title in a Suit for Permanent Injunction

suyashverma@hotmail.com (Suyash Verma) — Wed, 8 Sep 2021 13:10:41 +0000

On today’s show, we will discuss the case of Kayalulla Parambath Moidu Haji v. Namboodiyil Vinodan, Civil Appeal Nos. 5575-5576 of 2021, wherein the Hon’ble Supreme Court discussed whether a suit simpliciter for permanent injunction without claiming declaration of title is maintainable or not?

To know more about it, please visit https://www.desikanoon.co.in/2021/09/declaration-title-permanent-injunction-perpetual.html

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Supreme Court on Distinction between 'Royalty' and ' Tax'

suyashverma@hotmail.com (Suyash Verma) — Tue, 7 Sep 2021 14:28:00 +0000

On today’s show, we will discuss the case of M/s. Indsil Hydro Power and Manganese Limited vs. State of Kerala and Ors., Civil Appeal Nos. 9845-9850 of 2016, wherein among other things, the Supreme Court considered whether imposition of ‘royalty’ by the Respondent State on use of water by the Appellants is justified or not.

To know more about it, please visit https://www.desikanoon.co.in/2021/09/difference-royalty-tax-supreme-court.html

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YouTube Channel: https://www.youtube.com/channel/UCMmVCFV7-Kfo_6S42kPhz2w

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Supreme Court on Second Appeals Under Section 100 of CPC

suyashverma@hotmail.com (Suyash Verma) — Sat, 4 Sep 2021 16:31:23 +0000

On today’s show, we will discuss the case of Balasubramanian and Another v. M. Arockiasamy (Dead) Through Lrs., 2021 SCC OnLine SC 655, wherein the Hon’ble Supreme Court discussed the scope of Section 100 of the Code of Civil Procedure, 1908 (in short, “CPC”) that deals with Second Appeal in civil matters.

To know more about it, please visit https://www.desikanoon.co.in/2021/09/second-appeal-section-100-cpc-civil-procedure.html

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Supreme Court on Doctrine of Harmonious Construction

suyashverma@hotmail.com (Suyash Verma) — Fri, 3 Sep 2021 17:51:40 +0000

On today’s show, we will discuss the case of Sanjay Ramdas Patil v. Sanjay & Others, 2021 SCC OnLine SC 650, wherein the Hon’ble Supreme Court discussed the Doctrine of Harmonious Construction.

To know more about it, please visit https://www.desikanoon.co.in/2021/09/harmonious-construction-justice-gavai-.html

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Supreme Court on Oral Orders Granting Interim Protection from Arrest to Accused Persons

suyashverma@hotmail.com (Suyash Verma) — Thu, 2 Sep 2021 16:34:59 +0000

On today’s show, we will discuss the case of Salimbhai Hamidbhai Menon v. Niteshkumar Maganbhai Patel & Another, 2021 SCC OnLine SC 647, wherein the Hon’ble Supreme Court discussed a matter in which through an Oral Order, a High Court had granted interim protection against arrest of Respondent No. 1 in Section 482 proceedings. To know more about Section 482 of CrPC, you may visit my earlier post for which the link is provided in the description.

On today’s show, we will discuss the case of Ashwini Kumar Upadhyay v. Union of India & Another, 2021 SCC OnLine SC 629, wherein the Hon’ble Supreme Court inter alia discussed about the misuse of Section 321 of the Code of Criminal Procedure, 1973 (in short, “CrPC”) by Prosecutors. Section 321 of CrPC deals with the power of the Prosecutors to withdraw from the Prosecutions.

To know more about it, please visit https://www.desikanoon.co.in/2021/09/interim-oral-482-order-arrest-protection.html

To know more about Section 482, kindly visit https://www.desikanoon.co.in/2021/07/neeharika-principles-interim-protection-section-482-crpc-code-criminal.html

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What is the Meaning of Withdrawal from Prosecution under Section 321 of CrPC?

suyashverma@hotmail.com (Suyash Verma) — Wed, 1 Sep 2021 15:39:18 +0000

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Supreme Court on Rejection of Plaint under O.7 R.11 of CPC due to Res Judicata

suyashverma@hotmail.com (Suyash Verma) — Tue, 31 Aug 2021 16:49:54 +0000

On today’s show, we will discuss the case of Srihari Hanumandas Totala v. Hemant Vithal Kamat and Others, 2021 SCC OnLine SC 565, wherein the Hon’ble Supreme Court discussed Order VII Rule 11 (d) of the Code of Civil Procedure, 1908 (in short, “CPC”) that deals with the contingencies under which a Plaint could be rejected by the Trial Court where the suit appears from the statement in the plaint to be barred by any law. To read further about it, kindly refer to my earlier post in the year 2018 at the link pasted in the description.

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To read further about rejection of plaint, please visit https://www.desikanoon.co.in/2018/04/supreme-court--rejection-of-plaint-order-vii-rule-11-cpc-code-civil-chhotanben-thakkar-limitation.html

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Can 'Creamy Layer' be Determined Solely on the Basis of Income?

suyashverma@hotmail.com (Suyash Verma) — Mon, 30 Aug 2021 17:38:24 +0000

On today’s show, we will discuss the case of Pichra Warg Kalyan Mahasabha Haryana (Regd.) and Another v. State of Haryana & Another, 2021 SCC OnLine SC 635, wherein the Hon’ble Supreme Court discussed the concept of ‘creamy layer’ in relation to Haryana Backward Classes (Reservation in Services and Admission in Educational Institutions) Act, 2016.

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Supreme Court on Arrest at the Time of Filing of Chargesheet under S. 170 of CrPC

suyashverma@hotmail.com (Suyash Verma) — Sat, 28 Aug 2021 06:54:35 +0000

On today’s show, we will discuss the case of Siddharth v. State of Uttar Pradesh & Another, 2021 SCC OnLine SC 615, wherein the Hon’ble Supreme Court interpreted Section 170 of CrPC that provides for forwarding an accused to the Magistrate at the time of filing of chargesheet.

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Supreme Court on Poor State of Affairs Prevalent in Consumer Bodies in India

suyashverma@hotmail.com (Suyash Verma) — Tue, 24 Aug 2021 15:57:48 +0000

On today’s show, we will discuss the case of In Re: Inaction of the Governments in Appointing President and Members/Staff of Districts and State Consumer Disputes Redressal Commission and Inadequate Infrastructure Across India v. Union of India and Others, 2021 SCC OnLine SC 602, wherein the Hon’ble Supreme Court discussed the state of affairs prevalent in the Consumer Forums across the country due to existing vacancies for the post of President and Members that have not been fulfilled since last many years.

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Supreme Court on Powers of Governor to Grant Pardon or Remit Sentences

suyashverma@hotmail.com (Suyash Verma) — Sat, 21 Aug 2021 11:13:24 +0000

On today’s show, we will talk about the case of State of Haryana v. Raj Kumar alias Bittu, 2021 SCC OnLine SC 539, wherein the Hon’ble Supreme Court discussed the scope of power of the Governor to grant pardons and remit sentences.

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Supreme Court on Compassionate Appointment and Part-Time Employment

suyashverma@hotmail.com (Suyash Verma) — Fri, 6 Aug 2021 13:29:34 +0000

On today’s show, we will talk about the case of State of Uttar Pradesh & Others v. Uttam Singh, Civil Appeal No. 4575/2021, wherein the Hon’ble Supreme Court discussed a matter relating to Compassionate Appointment under the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974.

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Supreme Court on Giving False Evidence before a Court

suyashverma@hotmail.com (Suyash Verma) — Thu, 5 Aug 2021 14:32:36 +0000

On today’s show, we will talk about the case of N.S. Nandiesha Reddy v. Kavitha Mahesh, 2021 SCC OnLine SC 538, wherein the Hon’ble Supreme Court discussed when prosecutions should be initiated in cases of giving false evidence before a Court.

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Supreme Court on the Law of Preventive Detention

suyashverma@hotmail.com (Suyash Verma) — Wed, 4 Aug 2021 18:15:00 +0000

On today’s show, we will discuss the case of Bankha Sneha Sheela v. State of Telangana & Others, 2021 SCC OnLine SC 350, wherein the Hon’ble Supreme Court discussed the circumstances under which a person could be preventively detained by the State.

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Supreme Court on Appropriate Behavior by Judicial Officers

suyashverma@hotmail.com (Suyash Verma) — Tue, 3 Aug 2021 18:22:40 +0000

On today’s show, we will discuss the case of Neeraj Garg v. Sarita Rani & Others, Civil Appeal Nos. 4555-4559 of 2021, wherein the Supreme Court discussed about judicial restraint and use of intemperate language in orders by the Courts.

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Supreme Court on Power of a Magistrate under S. 156 (3) of CrPC to Order Investigation

suyashverma@hotmail.com (Suyash Verma) — Mon, 2 Aug 2021 15:17:06 +0000

To read more about it, please visit our Blog https://www.desikanoon.co.in/2021/08/anticipatory-bail-438-issue-process-202-200-complaint-order-magistrate-investigation-156-crpc.html

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Supreme Court on the Meaning of Seniority-cum-Merit Principle

suyashverma@hotmail.com (Suyash Verma) — Sat, 31 Jul 2021 11:00:39 +0000

On today’s show, we will discuss the case of Tek Chand and others v. Bhakra Beas Management Board and Others, Civil Appeal No. 4482/2021, wherein the Hon’ble Supreme Court explained the meaning of Seniority-cum-Merit Principle in Service Jurisprudence.

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Supreme Court on Binding Nature of a Letter of Intent

suyashverma@hotmail.com (Suyash Verma) — Thu, 29 Jul 2021 17:52:28 +0000

On today’s show, we will talk about the case of South Eastern Coalfields Ltd. and Others v. S. Kumar's Associates AKM (JV), 2021 SCC OnLine SC 486, wherein the Court discussed whether a Letter of Intent executed between the parties to enter into a Contract could be construed as binding or not.

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Supreme Court on Regularization of Daily Wage Earners

suyashverma@hotmail.com (Suyash Verma) — Wed, 28 Jul 2021 15:06:24 +0000

On today’s show, we will discuss the case of Vice Chancellor Anand Agriculture University v. Kanubhai Nanubhai Vaghela and Another, 2021 SCC OnLine SC 491, wherein the Hon’ble Supreme Court discussed whether the daily wagers are entitled for regularization of their services.

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Supreme Court on Importance of Ocular Evidence in Criminal Cases

suyashverma@hotmail.com (Suyash Verma) — Tue, 27 Jul 2021 17:28:07 +0000

On today’s show, we will discuss the case of Pruthviraj Jayantibhai Vanol v. Dinesh Dayabhai Vala & Others, Criminal Appeal No. 177 of 2014, wherein the Hon’ble Supreme Court discussed about the importance of Ocular Evidence in Criminal Cases.

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Supreme Court on Testimony of Injured Eye-Witness

suyashverma@hotmail.com (Suyash Verma) — Mon, 26 Jul 2021 11:54:50 +0000

Today we will talk about the case of Lakshman Singh v. State of Bihar (now Jharkhand), Criminal Appeal No. 606 of 2021, wherein the Hon’ble Supreme Court inter alia discussed the importance of testimony of injured eyewitnesses in criminal cases.

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Supreme Court on Section 197 of CrPC

suyashverma@hotmail.com (Suyash Verma) — Sat, 24 Jul 2021 14:32:01 +0000

On today’s show, we will discuss the case of Indra Devi v. State of Rajasthan & Another, Criminal Appeal No. 593 of 2021, wherein the Hon’ble Supreme Court discussed Section 197 of the Code of Criminal Procedure, 1973 (in short, “CrPC”) that deals with sanction or permission for prosecution of public servants.

To read more about it, please visit our Blog https://www.desikanoon.co.in/2021/07/sanction-prosecution-197-crpc-criminal.html

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Impermissibility to give Criminal Color to a Civil Dispute and Neeharika Principles

suyashverma@hotmail.com (Suyash Verma) — Fri, 23 Jul 2021 14:17:03 +0000

On today’s show, we will discuss the case of A.P. Mahesh Cooperative Urban Bank Shareholders Welfare Association v. Ramesh Kumar Bung and Others, 2021 SCC OnLine SC 475, wherein the Supreme Court discussed a case wherein interim protection in the form of stay on criminal proceedings, was granted by a High Court to accused persons, in certain criminal proceedings.

In the instant matter, the Supreme Court extensively referred to its earlier judicial pronouncement of Neeharika Infrastructure Pvt. Ltd. versus State of Maharashtra and Others, 2021 SCC OnLine SC 315, that provided guidelines in relation to grant of interim protection in criminal Case. To know more about it, you can watch our earlier show in relation to grant of interim reliefs in criminal cases by visiting http://www.desikanoon.co.in/2021/06/section-482-code-criminal-procedure-crpc-guidelines-directions-supreme-court.html

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Supreme Court on Suits By or Against Minors

suyashverma@hotmail.com (Suyash Verma) — Thu, 22 Jul 2021 13:27:04 +0000

On today’s show, we will discuss the case of K.P. Natarajan v. Muthalammal and Others, 2021 SCC OnLine SC 467, wherein the Hon’ble Supreme Court discussed Order XXXII of the Code of Civil Procedure, 1908 (in short, “CPC”) that deals with Suits by or against Minors and Persons of Unsound Mind.

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Supreme Court on Enhancement of Age of Retirement or Superannuation

suyashverma@hotmail.com (Suyash Verma) — Wed, 21 Jul 2021 17:47:16 +0000

On today’s show, we will discuss the case of New Okhla Industrial Development Authority and Another v. B.D. Singhal and Others, 2021 SCC OnLine SC 466, wherein the Supreme Court examined the correctness of a decision by the State of UP to give prospective effect to the enhancement in the age of superannuation from 58 years to 60 years.

To read more about it, please visit our Blog https://www.desikanoon.co.in/2021/07/enhancement-age-superannuation-retirement-policy-matter.html

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Supreme Court On Study Leave by a Doctor During Covid-19

suyashverma@hotmail.com (Suyash Verma) — Tue, 20 Jul 2021 18:32:00 +0000

On today’s show, we will discuss the case of Dr. Rohit Kumar v. Secretary, Office of Lt. Governor of Delhi & Others, 2021 SCC OnLine SC 468, wherein the Supreme Court discussed whether a doctor could pursue higher studies at the time of Covid-19 Pandemic or not.

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MP High Court on Black-Marketing of Remdesivir

suyashverma@hotmail.com (Suyash Verma) — Mon, 19 Jul 2021 18:20:23 +0000

On today’s show, we will discuss two judicial pronouncements of Hon’ble High Court of Madhya Pradesh, namely, Sonu Bairwa v. State of M.P. & Others, 2021 SCC OnLine MP 1212, and Hariom v. State of Madhya Pradesh, M.Cr.C. No. 33471 of 2021. The first Judgment was pronounced by the Division Bench of Hon’ble Shri Justice Sujoy Paul and Hon’ble Shri Justice Anil Verma and was authored by Hon’ble Shri Justice Sujoy Paul, and the second Order was pronounced and authored by the Single Bench of Hon’ble Shri Justice Anil Verma. Vide such Orders, the Hon’ble High Court of Madhya Pradesh dealt with the important issue of black-marketing of life saving drugs like Remdesivir etc.

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What is Horizontal Reservation and How it Applies?

suyashverma@hotmail.com (Suyash Verma) — Sat, 17 Jul 2021 18:04:13 +0000

On today’s show, we will discuss about horizontal reservation. We hear this term very often and many a times, people get confused between horizontal and vertical reservation. Let us understand its meaning.

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Supreme Court on the Limits on Judges

suyashverma@hotmail.com (Suyash Verma) — Fri, 16 Jul 2021 18:19:56 +0000

On today’s show, we will discuss the case of State of Uttar Pradesh and others v. Dr. Manoj Kumar Sharma, 2021 SCC OnLine SC 460, wherein the Supreme Court reprimanded the practice of certain High Courts to seek personal appearance of officers and exert pressure on them.

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Supreme Court on Revision of Pay Scale and Financial Difficulties of Employer

suyashverma@hotmail.com (Suyash Verma) — Thu, 15 Jul 2021 16:40:01 +0000

On today’s show, we will discuss the case of Punjab State Co-operative Milk Producers Federation Ltd. and Another v. Balbir Kumar Walia and Others, 2021 SCC OnLine SC 461, wherein the Hon’ble Supreme Court discussed an important question relating to the financial difficulties faced by an employer and its effect on the wages of the employees, specifically in the context of governmental establishments.

To read more about it, please visit our Blog http://www.desikanoon.co.in/2021/07/payment-revised-pay-scale-financial-burden-administrative-employer-article-12.html

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Supreme Court on Payment of Compensation in Bail Matters

suyashverma@hotmail.com (Suyash Verma) — Wed, 14 Jul 2021 14:17:50 +0000

On today’s show, we will discuss the case of Dharmesh and Another v. State of Gujarat, 2021 SCC OnLine SC 458, wherein the Hon’ble Supreme Court discussed whether a condition to deposit monetary compensation for grant of bail is justified or not.

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Supreme Court on Legislative Privilege

suyashverma@hotmail.com (Suyash Verma) — Mon, 12 Jul 2021 18:27:33 +0000

On today’s show, we will discuss the case of Ajit Mohan and Others v. Legislative Assembly National Capital Territory of Delhi and Others, 2021 SCC OnLine SC 456. We had discussed this case on the last show regarding the observations of the Hon’ble Supreme Court in relation to wastage of judicial time. Today we will discuss the issue of legislative privilege that was discussed in this case.

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Supreme Court on Wastage of Judicial Time

suyashverma@hotmail.com (Suyash Verma) — Sat, 10 Jul 2021 19:41:41 +0000

On today’s show, we will discuss certain excerpts of a judgment wherein Hon’ble Justice Sanjay Kishan Kaul of the Hon’ble Supreme Court of India, wrote a postscript highlighting the tedious and the time-consuming nature of proceedings that transpires in our Courts.

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Supreme Court on Public Mischief and S.153A of IPC

suyashverma@hotmail.com (Suyash Verma) — Fri, 9 Jul 2021 17:13:25 +0000

On today’s show, we will discuss the case of Patricia Mukhim v. State of Meghalaya & Others, 2021 SCC OnLine SC 258, wherein the Supreme Court quashed a case under S.153A of IPC that deals with promoting enmity between different groups and doing acts prejudicial to maintenance of harmony.

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Supreme Court on Joint Liability in Cheque Dishonour Cases

suyashverma@hotmail.com (Suyash Verma) — Thu, 8 Jul 2021 14:56:03 +0000

On today’s show, we will discuss the case of Alka Khandu Avhad v. Amar Syamaprasad Mishra & Another, 2021 SCC OnLine SC 189, wherein the scope of S.138 and S. 141 of the Negotiable Instruments Act, 1881, (NI Act) in relation to joint liability was discussed by the Hon’ble Supreme Court.

To read more about it, please visit our Blog http://www.desikanoon.co.in/2021/07/cheque-dishonour-bounce-138-section-negotiable-instrument-supreme-court.html

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Supreme Court on Drunk Driving and Insurance Claims

suyashverma@hotmail.com (Suyash Verma) — Wed, 7 Jul 2021 17:17:15 +0000

On today’s show, we will discuss the case of IFFCO TOKIO General Insurance Company Ltd. v. Pearl Beverages Ltd., 2021 SCC OnLine SC 309, wherein the Hon’ble Supreme Court discussed the influence of liquor on driving and its legal implications.

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Supreme Court on Retrospective Application of Prospective Amendments

suyashverma@hotmail.com (Suyash Verma) — Tue, 6 Jul 2021 16:42:11 +0000

On today’s show, we will discuss the case of Puneet Sharma and Others v. Himachal Pradesh State Electricity Board Ltd. and Another, 2021 SCC OnLine SC 291. In this case, the Hon’ble Supreme Court discussed whether clarificatory amendments can operate retrospectively or not. It is pertinent to note that we had discussed this case yesterday as well to understand the difference between a Degree and a Diploma.

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Supreme Court on Difference between a Degree and a Diploma

suyashverma@hotmail.com (Suyash Verma) — Mon, 5 Jul 2021 15:29:41 +0000

On today’s show, we will discuss the case of Puneet Sharma and Others v. Himachal Pradesh State Electricity Board Ltd. and Another, 2021 SCC OnLine SC 291. In this case, the Hon’ble Supreme Court discussed whether a Degree in a particular discipline is technically a higher qualification than a Diploma in that discipline.

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Supreme Court on Family Reunion under Hindu Law

suyashverma@hotmail.com (Suyash Verma) — Sat, 3 Jul 2021 16:45:05 +0000

On today’s show, we will again discuss the case of R. Janakiammal v. S.K. Kumarasamy (Deceased) through Legal Representatives and Others, Civil Appeal No. 1537/2016, that we had discussed yesterday in relation to Compromise Decree. Today, we will discuss this very case to understand the concept of Reunion in Hindu Law.

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What is a Compromise Decree and Can it be Challenged in an Appeal?

suyashverma@hotmail.com (Suyash Verma) — Fri, 2 Jul 2021 17:21:13 +0000

Today, we will discuss the case of R. Janakiammal v. S.K. Kumarasamy (Deceased) through Legal Representatives and Others, Civil Appeal No. 1537/2016. In this case, the Hon’ble Supreme Court of India discussed the meaning and the scope of a Compromise or a Consent Decree in terms of Order XXII Rule 3 of the Code of Civil Procedure, 1908 (in short, “CPC”).

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Supreme Court on Covid-19 Relief Package by the Government

suyashverma@hotmail.com (Suyash Verma) — Thu, 1 Jul 2021 17:41:06 +0000

On today’s show, we will discuss the case of Reepak Kansal v. Union of India and Others, Writ Petition (Civil) No. 554 of 2021, wherein the Hon’ble Supreme Court of India, interpreted S. 12 of the Disaster Management Act that provides for ex gratia assistance to sufferers of a disaster, in light of the Covid-19 pandemic. Ex gratia literally means “by favour.”

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Supreme Court on Reservation in Promotion for Persons with Disability

suyashverma@hotmail.com (Suyash Verma) — Wed, 30 Jun 2021 17:25:43 +0000

On today’s show, we will discuss the case of the State of Kerala & Others v. Leesamma Joseph, Civil Appeal No. 59 of 2021, wherein vide Judgment dated 28.06.2021, the Hon’ble Supreme Court of India decided the question whether persons having physical disability could be granted reservation in promotion.

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Supreme Court on Welfare of Migrant Workers during Covid-19 Pandemic

suyashverma@hotmail.com (Suyash Verma) — Tue, 29 Jun 2021 13:36:25 +0000

On today’s show we will discuss another latest judicial pronouncement, namely, Bandhua Mukti Morcha v. Union of India & Others, Suo Motu Writ Petition (Civil) No. 6 of 2020, wherein the Hon’ble Supreme Court of India, vide Judgment dated 29.06.2021, passed certain directions for the welfare and well-being of the migrant workers and unorganized labourers of India.

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What is Provisional Attachment under the Law of GST?

suyashverma@hotmail.com (Suyash Verma) — Mon, 28 Jun 2021 14:33:50 +0000

On today’s show, we will discuss the case of Radha Krishnan Industries v. State of Himachal Pradesh and Others, 2021 SCC OnLine SC 334, wherein the Supreme Court, dealt with the interpretation of Section 83 of the Himachal Pradesh GST Act that provides for provisional attachment of property, and consequently, also discussed the scope of Article 226 of the Constitution of India in relation to cases where an alternative efficacious remedy exists.

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Supreme Court on Disclosure of Financial Information by RBI under the RTI Act

suyashverma@hotmail.com (Suyash Verma) — Sun, 27 Jun 2021 14:32:30 +0000

On today’s show, we will discuss a case that has a chequered history. The name of the Case is Reserve Bank of India v. Jayantilal N. Mistry & Another, 2021 SCC OnLine SC 348, involving questions relating to disclosure of financial information under the RTI Act. In order to understand the matter, let us go through the chronology of events that has transpired in relation to this case.

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Supreme Court on Grounds of Appeal in Acquittal Cases

suyashverma@hotmail.com (Suyash Verma) — Sat, 26 Jun 2021 09:16:20 +0000

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Supreme Court on Judicial Review of Administrative Actions

suyashverma@hotmail.com (Suyash Verma) — Thu, 24 Jun 2021 09:22:04 +0000

Today we will discuss the case of Utkal Suppliers v. Maa Kanak Durga Enterprises & Others, 2021 SCC SC OnLine SC 301, wherein the Supreme Court discussed about the judicial review of administrative actions, specifically in the context of Governmental Tenders.

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OBSERVATIONS OF THE COURT

Firstly, it was observed that “what is reviewed is not the decision itself but the manner in which it was made. The writ court does not have the expertise to correct such decisions by substituting its own decision for the decision of the authority.” Here the Supreme Court is talking about when an administrative decision could be interfered with.

Secondly, the Supreme Court discussed the case of Tata Cellular v. Union of India, (1994) 6 SCC 651, wherein it was held that “the terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts.” It was further observed that the decision of the administrative authorities must be tested on the anvil of Wednesbury Principle of Reasonableness, and it must be kept into mind that “quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.”

Thirdly, the Court discussed earlier landmark case-laws such as RD Shetty v. International Airport Authority of India, (1979) 3 SCC 489 and Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818, wherein it was held that “the words used in the tender documents cannot be ignored or treated as redundant or superfluous — they must be given meaning and their necessary significance.” It was further observed that the makers of the tender documents are the best persons to understand the requirements in a contract and even if an interpretation that may not be found to be acceptable to the Courts is given by the makers, but that by itself would not be a reason for interfering with such an interpretation.

Fourthly, the Court perused the case of Galaxy Transport Agencies v. New J.K. Roadways, 2020 SCC OnLine SC 1035, wherein it was observed that “judicial interpretation of contracts in the sphere of commerce stands on a distinct footing than while interpreting statutes” and the author of a document is generally in a better position to appreciate and interpret such document.

And lastly, the Supreme Court held that second guessing an administrative authority’s decision is impermissible unless it is arbitrary, perverse or mala fide. Such case of arbitrariness or mala fide would have to be made out and mere allegations would not be enough.

Those were the observations of the Court. So, what are my concluding remarks?

CONCLUSION

Judicial Review of Administrative Decision is a tight rope on which our Courts have to walk. Though the rule to be followed is that only the manner in which a decision has been taken is susceptible to judicial and not the decision itself, yet it is easier said than done. The Courts have to look at the totality of circumstances and evidence brought before it, to ascertain if there is a case of arbitrariness, unreasonableness or mala fide. It is often difficult to make out such cases and as has been seen in this case as well, the Courts tend to give the benefit of doubt to the makers of the contractual document or the tender document. The Courts are wary of the administrative burden that might accumulate if overturn an administrative decision. I find it be a meaningful approach. If the Courts start to second guess every administrative decision, then it would become next to impossible to carry on any administrative work as every administrative decision would be challenged by the opposing parties before the Courts. Thus, to close the flood gates of undesirable litigation, the Courts have adopted such an approach.

What is Framing of Charges under CrPC?

suyashverma@hotmail.com (Suyash Verma) — Wed, 23 Jun 2021 13:10:44 +0000

On today’s show, we will discuss the case of State of Rajasthan v. Ashok Kumar Kashyap, 2021 SCC OnLine SC 314, wherein the Hon’ble Supreme Court discussed the law relating to framing of charges under the Code of Criminal Procedure, 1973.

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Before adverting any further, let us discuss S. 227 and S. 228 of CrPC that are provided in Chapter XVIII (Trial before a Court of Session) of CrPC.

Section 227 provides for

“Discharge.—If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.”

And Section 228 provides that if after hearing the accused at the stage of framing of charges, the judge is of the opinion that accused has committed an offence, then he may frame charges against such accused. Further, similar and corresponding provisions are also there in Section 239 and Section 240 of CrPC that deal with Trial of Warrant Cases by Magistrates.

OBSERVATIONS BY THE COURT

Now, let us discuss the observations made by the Court in the present case in relation to discharge of an accused.

Firstly, it was observed that “at the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused.”

Secondly, the Court opined that only such evidence, that has been recorded by the Police or documents that have been produced before the Court, which ex facie disclose suspicious circumstances against the accused, are to be considered at the stage of framing of charges.

Thirdly, it was further observed that “if the Judge comes to a conclusion that there is sufficient ground to proceed, he will frame a charge under Section 228 Cr.P.C., if not, he will discharge the accused.”

Fourthly, the Court cautioned that while applying judicial mind at the stage of framing of charges, the Court need not enter into the merits of the matter or weigh the evidence and probabilities. Such exercise should be undertaken when the trial commences.

Fifthly, it was laid down that at the stage of framing of charges, the Court must presume that the material available on record by the prosecution is true and if the same is taken at face value, whether it fulfils the necessary ingredients of an offence or not. This is all that the Court is required to see.

Sixthly, the Court clarified that at the stage of framing of charges, the probative value of the material available on record has to be looked into by the Court and there is no need to answer whether such material is sufficient for conviction or not. The Court is only required to see if a prima facie case is made out against the accused and even if there is a slight probability in the mind of the judge that the accused might have committed the offence, then it may frame the charges against the accused.

And lastly, the defence of the accused on merits is not required to be considered at the stage of framing of charges as a Mini Trial is not permissible at such stage. This is very important that the defence of the accused is not to be looked into at this stage.

Those were the observations of the Court in the present case. So, what are my concluding remarks?

CONCLUSION

In conclusion, it could be said that the stage of framing of charges is a preliminary stage in criminal proceedings and the evidence brought out by the prosecution against the accused is to be seen by the Court. If such evidence does not disclose commission of any offence, then the Court must discharge the accused but even if there is an iota of evidence against the accused that fulfils the ingredients of an offence, then charges ought to be framed in such cases. Thus, we see that the application of mind is quite limited at the stage of framing of charges and the Hon’ble Supreme Court has categorically observed that no mini trial could be conducted at such stage.

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Supreme Court on Grant of Interim Protection in S.482 Cases

suyashverma@hotmail.com (Suyash Verma) — Tue, 22 Jun 2021 16:29:46 +0000

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Supreme Court quashed Criminal Cases against Italian Marines in India

suyashverma@hotmail.com (Suyash Verma) — Mon, 21 Jun 2021 09:44:21 +0000

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On today’s show, we will discuss a latest judicial pronouncement by the Hon’ble Supreme Court of India, namely, Massimilano Latorre and Others versus Union of India and Others, 2021 SCC OnLine SC 428, wherein an unfortunate incident that took place in the year 2012, leading to death of two Indian fishermen due to firing from an Italian vessel M.V. Enrica Lexie, will be discussed.

BACKGROUND

The brief facts of the case are that on the fateful day of 15.02.2012, M.V. Enrica Lexie was sailing from Singapore to Egypt and while it was around 20.50 Nautical Miles off the Indian coast, within the Contiguous Zone of India’s Exclusive Economic Zone (EEZ), some shots were fired from the said Italian Vessel, leading to death of two Indian Fisherman, aboard the Indian boat, St. Antony.

In this regard, two Italian Special Corps/Marines, Massimiliano Latorre and Salvatore Girone, aboard M.V. Enrica Lexie were arrested by the Indian authorities on the charges of Murder under Section 302 of the Indian Penal Code.

However, in both the Indian Courts and the International forums, the Italian Government claimed that India has no jurisdiction to try the matter or conduct investigation in the case, since the incident had occurred on the international waters that is beyond the territory of India.

Subsequently, the matter came up before the Permanent Court of Arbitration, located in the Hague, Netherlands under the Convention accepting the Jurisdiction of the International Tribunal for the Law and the UN Convention on the Law of the Sea. The Permanent Court of Arbitration held in the year 2020 that the Italian Marines are entitled to immunity in relation to the acts committed by them during the incident, and India is precluded from exercising its jurisdiction over the marines. Further, it was also held that the India is entitled to payment of compensation in connection with loss of life, physical harm, material damage to property and moral harm suffered. The said Arbitral Tribunal pronounced its Award on 21.05.2020 wherein Italy’s commitment of resuming criminal investigation against the marines in their country was recorded and a total compensation of ₹10 Crores would be given to the family members of the deceased fishermen and the owner of the boat, St. Antony.

PROCEEDINGS BEFORE THE SUPREME COURT

The Indian Courts continued to exercise jurisdiction and ultimately, the matter came up before the Supreme Court in relation to maintainability of proceedings. The Italian Marines argued that India and Italy are signatories to UNCLOS (UN Convention on the Law of the Sea) and had agreed to resolve the dispute in terms of binding dispute resolution mechanism provided in Annexure VII to the UNCLOS, before an Arbitral Tribunal that is the Permanent Court of Arbitration. This Tribunal has duly pronounced its Award.

The legal heirs and the owner of the boat also gave their consent to accept the amount of compensation offered and it was prayed that the criminal proceedings against the Italian Marines be quashed in exercise of the powers under Article 142 of the Constitution of India.

It is pertinent to note that the amount of ₹10 Crores as compensation is over and above to what has been paid as ex gratia sum to the kith and kin of the deceased fishermen. The Court observed that the Union of India, relatives of the deceased, owner of the boat, government of Italy, all seem to have accepted the Award dated 21.05.2020 and the amount of compensation seems to be satisfactory. Hence, the Hon’ble Supreme Court was of the view that the present case is a fit case to close all the proceedings in India including criminal proceedings and quashed the same.

CONCLUDING REMARKS

Many people are saying that in this case, the Supreme Court has introduced the concept of blood money in India and any foreigner can kill any Indian and later on, get exonerated by paying handsome compensation. I beg to differ with such a reasoning because, the Permanent Court of Arbitration categorically observed that piracy at sea constitutes an international crime and it specifically stated that “the Marines did not target the “St. Antony” as a fishing vessel, but on the suspicion that it was a pirate vessel intending to board the “Enrica Lexie”.” In order to substantiate this finding, the Permanent Court of Arbitration determined that the action of the Marines to protect Enrica Lexie did not result in a breach of Italy’s obligation of ‘due regard’ for the sovereign rights of India; however, the same did result into “St. Antony” being prevented from navigating its intended course.

My point in explaining all this is that the dispute at hand involved elements of International Law as well and to say that it is pure and simple ‘blood money’ approach, is something entirely wrong and misconceived in my humble opinion.

We must not forget Article 73 (1) (b) of the Constitution of India that provides that the Central Government has the power to exercise rights and authority that are provided under a treaty to which we are a signatory. We are a signatory to the UNCLOS. Similarly, Article 253 of the Constitution of India provides power to the Parliament to make laws for giving effect to international covenants. Under such laws and others, India is bound by many principles of customary international law. Therefore, to contend that India should not have left the Italian Marines is a misplaced argument. India, like other countries, is bound by the International Treaties.

And lastly, it is not the case that the Italian Marines have been left scot-free. They will face trial in their respective country based on the laws that apply to them. Further, though compensation is never sufficient to replace a deceased person, yet it serves as a mark of gratitude and compassion to the legal heirs of the deceased. Thus, I feel that the Supreme Court rightly interpreted the obligations of India in relation to the UNCLOS and other international treaties. The incident that took place in the year 2012 was an unfortunate one but there is no point in dragging the same in contravention of the established tenets of International Law. Those were my views on this case.

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Supreme Court on Delay in Cheque Dishonour Cases (S.138)

suyashverma@hotmail.com (Suyash Verma) — Sat, 19 Jun 2021 18:26:50 +0000

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Therefore, let us understand the observations made by the Supreme Court in this regard. The Court started by discussing the scheme of the NI Act and stated that as on 31.12.2019, “the total number of criminal cases pending was 2.31 crores, out of which 35.16 lakh pertained to Section 138 of the Act.”

The Court also observed that there are various reasons for such delay in the trials such as issues in service of summons, mechanical conversion of summary cases to summons cases, prolonged mediations, jurisdictional issues etc.

Hence, let us discuss the directions given by the Supreme Court to curb the delay in cases relating to the NI Act.

Firstly, the High Courts were requested to make sure that the Magistrates record reasons before converting trial of complaints under Section 138 of the NI Act from summary trial to summons trial. Such reasons must be recorded to in writing.

Secondly, it was directed that a Preliminary Inquiry must be conducted in Section 138 (Cheque Dishonor) cases to arrive at “sufficient grounds to proceed against the accused, when such accused resides beyond the territorial jurisdiction of the court.”

Thirdly, the Court mandated that when an accused resides beyond the territorial jurisdiction of a Magistrate and an inquiry in this regard is conducted, evidence of complainant witnesses shall be permitted to be taken on affidavit and the Magistrate can restrict the inquiry to examination of documents. This step would save a lot of time as travelling time of the witnesses could be cut substantially.

Fourthly, Section 219 of the Code of Criminal Procedure, 1973, was discussed that provides that a person cannot be tried for more than three offences in a single Trial. The Court observed that suitable amendments are required to be carried out in this section to increase the limit of offences that could be tried at once in a given trial, as many a times, in cases of cheque dishonours, other offences such as forgery, criminal breach of trust, cheating etc. are also involved. So, there are multiple offences.

Fifthly, it was directed that wherever there are multiple complaints under Section 138 forming part of the same transaction or arising out of same transaction, the High Courts should issue practice directions to the Trial Courts to treat service of summons in one case under Section 138, as deemed service in respect of all the other complaints filed before the same court that are linked to the same transaction or cause of action. So, if there are multiple cheques that have been dishonoured in a case and there are multiple cases of section 138 pending before the same court, in such cases, service in one case could be treated as deemed service in all the other cases.

Sixthly, the Supreme Court reiterated its earlier order that “there is no inherent power of Trial Courts tor review or recall the issue of summons.” Many a times in cases of section 138, multiple summons are issued and the court recall their summons. So, in order to cure such problems, the Court issued this direction.

And lastly, there was a Committee that was constituted to look into the delay in Section 138 cases. The Court directed it to further deliberate and discuss the other issues at length.

So, what are my concluding remarks?

I feel that pendency of Cheque Dishonour cases is one of the biggest issues that has been haunting the Indian Judiciary since quite some time. The guidelines provided by the Supreme Court that we just discussed would be quite profitable to solve this issue to a certain extent. I hope that the High Courts and the Trial Courts implement the same in proper perspective and as expeditiously as possible.

Supreme Court on Environmental Protection of Great Indian Bustard and Lesser Florican

suyashverma@hotmail.com (Suyash Verma) — Fri, 18 Jun 2021 16:02:42 +0000

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Supreme Court on Delay in Execution of Decrees

suyashverma@hotmail.com (Suyash Verma) — Thu, 17 Jun 2021 18:52:55 +0000

In this case, the Supreme Court discussed the constant abuse of procedural provisions that defeat justice, such as putting up frivolous objections or setting up third parties to contest for the sake of delaying the outcome in a case.

BACKGROUND

Let us discuss the brief background of this case.

The facts of the case at hand are not relevant for the purposes of this show and we just need to know that there was a case that was being contested since last more than two decades and despite having judgment of the Court, the same was not getting implemented because of continuous objections that were raised by the parties and hence, the execution or implementation of the decree was stalled.

OBSERVATIONS OF THE COURT

Hence, let us understand the observations of the Court.

It was observed that as on 31st December 2018, there were 11,80,275 Execution Applications pending in various courts of India and according to the Court, “the execution proceedings which are supposed to be handmaid of justice and sub-serve the cause of justice are, in effect, becoming tools which are being easily misused to obstruct justice.”

Further, the Court discussed the scheme of the Code of Civil Procedure, 1908, and the manner in which its provisions are being misused by the litigating parties. However, according to the Court, the Code of Civil Procedure (CPC) intends that all questions that may arise in a suit, must be decided in the same trial itself, so as to avoiding multiplicity of proceedings.

DIRECTIONS OF THE COURT

Therefore, the Court felt that it was constrained to issue certain directions to all the Trial Courts that are dealing with Civil Suits and Execution Proceedings.

Firstly, it was directed that in suits relating to delivery of possession, the Trial Court must examine the parties in relation to disclosure of any third-party interest in the suit-property and seek production of documents upon oath. This would ensure that later on third parties do not spring up to cause a delay in the litigation.

Secondly, wherever required, a commissioner could be appointed to assess the accurate description and status of the property so that the cases do not get delayed on account of these petty issues.

Thirdly, after examination of parties or production of documents or the report of the Commissioner, as the case may be, the Trial Court must add the necessary parties that have not yet been impleaded to the suit, so as to avoid delay and multiplicity of proceedings.

Fourthly, under Order 40 of CPC, “a Court Receiver can be appointed to monitor the status of the property in question as Custodia Legis (In custody of Law) for proper adjudication of the matter.”

Fifthly, the decrees that are passed must be unambiguous as to the description and the status of the property.

Sixthly, in money suits, before settling the issues, the Defendant may be required to disclose his assets on oath to the extent of his liability in the suit and under Order 40 Rule 11 of CPC, the Court should ensure immediate execution of decree for payment of money on Oral Applications itself. This would ensure that in the garb of seeking time for drafting of Applications, no delay could be sought.

Seventhly, in Execution Proceedings, the Execution Courts must not issue notice at the behest of third parties in a mechanical manner and no issues ought to be taken up that have already been taken up by or ought to have been take up before, the Trial Court.

Eighthly, taking of evidence in Execution Proceedings should be done only in exceptional cases where other methods could not be resorted to, and where frivolous issues are raised in Execution Proceedings, compensatory costs under Section 35A of CPC should be granted to the other party.

Ninthly, Execution Proceedings should be decided expeditiously within six months and any further delay should be supported by reasons to be recorded to in writing. Police assistance could also be sought wherever necessary.

And lastly, “under Section 60 of CPC, the term “…in name of the judgment-debtor or by another person in trust for him or on his behalf” should be read liberally to incorporate any other person from whom he may have the ability to derive share, profit or property.”

So, these were the directions that were issued by the Supreme Court in relation to delay in Execution Proceedings and Civil Suits. Further, the Court also directed the High Courts to update all their rules in relation to Execution Proceedings, within one year, and till such exercise is completed, the directions that we discussed shall remain enforceable.

CONCLUSION

To sum up, it could be said that delay in civil suits is not a new phenomenon and whenever such issues come up before the Supreme Court, it tries to do something constructive to curb this menace. These directions should prove to reduce the pendency in the Execution Courts and in the Civil Suits. I hope that both the Advocates and the Trial Courts work hand in hand, in enforcement of these directions to reduce delay and prolonged litigations.

Supreme Court on Protection of Children during Covid-19

suyashverma@hotmail.com (Suyash Verma) — Wed, 16 Jun 2021 14:48:59 +0000

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DIRECTIONS OF THE COURT

Let us discuss the directions given by the Court in this case on 7th June 2021.

The Court stated that there are close to 30,071 children who have become orphans or have lost one parent or abandoned.

To be precise, there are 3,621 orphans, 26,176 children who have lost one parent and 274 children who have been abandoned.

Firstly, the States were directed to continue identifying the children who have become orphans or lost a parent after March 2020, either due to Covid-19 or otherwise and update such data on the website of National Commission for Protection of Children Rights without delay.

Secondly, the Court directed the Child Welfare Committees (CWCs) to ensure that since such children require financial assistance, food provisions, it should pass appropriate orders in this regard, without delay.

Thirdly. The Court directed that there should be a follow up with such children to ascertain their well-being and accordingly take steps under the Juvenile Justice (Care and Protection of Children) Act, 2015.

Fourthly, it was also directed that after the identification of the children who have become orphans or lost one parent, prompt action has to be taken to provide the basic needs of the children and the various benefits under the schemes such as Integrated Child Protection Scheme should be immediately disbursed to them.

Fifthly, the District Child Protection Officers (DCPOs) in every District should act swiftly to contact the child on receipt of information about the loss of the parent/parents of the child.

Sixthly, the States were directed to continue identifying the children who have become orphans or lost a parent after March 2020, either due to Covid-19 or otherwise and such data has to be updated on the website of National Commission for Protection of Child Rights without delay.

And seventhly, the State Governments were also directed to make provisions for continuance of education of the children both in Government as well as in private schools.

Eighthly, it was ordered that stern action is to be taken against those NGOs or individuals who are indulging in illegal adoptions.

Ninthly, the Court also observed that the States should give wide publicity to the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015, for the welfare of children.

And lastly, in order to have a comprehensive coverage, it was directed that all such exercises that were just mentioned, are also to be undertaken at the Gram Panchayat Level to monitor the welfare of the disconsolate children.

CONCLUSION

I think that Covid-19 has wreaked havoc on children. They are the ones who seemed to have suffer a lot. And being minors, there voice is mostly unheard. The Supreme Court has passed comprehensive guidelines for welfare of children and now, it is the responsibility of the states to implement the guidelines in letter and spirit. I hope that the same is done as quickly as possible.

What is the meaning of Sui Generis?

suyashverma@hotmail.com (Suyash Verma) — Tue, 15 Jun 2021 15:27:18 +0000

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Important Judicial Precedents

Paramjit Kaur v. State of Punjab, (1999) 2 SCC 131 –

In this case, it was observed that the concept of sui generis is applied generously in the adjudication of disputes related to International Law to ascertain whether a particular law or a treaty covers “any area territorially or any subject topically” or not. If not, the adjudicating body devises its sui generis or “one of a kind” method to resolve such disputes. The Court, while delving on the question that whether the National Human Rights Commission of India (NHRC) is a sui generis body or not, in respect of a task assigned to it, namely, to look into flagrant human rights violations in a particular matter, opined that the NHRC became a sui generis body as soon as the Supreme Court directed it by way of a Judicial Order to carry out certain tasks at its behest. Thus, to carry out those certain tasks, the NHRC did not require any jurisdiction to be conferred on it from any statute or that any statute could not have limited its jurisdiction to carry out those tasks and could have acted sui generis that is in a unique manner in order to fulfil the task assigned to it.

Rajendra v. State of Maharashtra – (2021) 2 Mah LJ 457 –

In this case, the Court was looking into question of “what could be a small and what could be a large gathering.” According to the Court, the general classifications of gatherings like funerals and marriages have nothing in common and are of entirely different character and hence, the principle of sui generis could have no applicability in such certain circumstances where each situation (gathering) is of a different character and there could be no straight-jacket formula to make specific classifications. A marriage or a funeral could have a small gathering or a large gathering, depend upon a number of factors. Same is true for any general species of public gatherings.

Therefore, we see that the concept of sui generis has no applicability in situations where no specific categorization exists and that its applicability is limited to identify the uniqueness of an object from a large set where a precise taxonomy exists. This could be a reason that it is used heavily in academic literature.

K.C. Vasanth Kumar v. State of Karnataka, 1985 Supp SCC 714 –

In this case, the Hon’ble Supreme Court explained the sui generis status of the Constitution of India. According to the Court, Constitution of India is inherently sui generis since it is born in specific circumstances. It has a geography, history, economics etc. different from other countries and does not fit into a water-tight compartmentalization. Therefore, it would be utterly improper to apply the general rules of statutory interpretation to interpret it.

The Court asserted that even our Indian Constitution Makers were not concerned merely with the words and their arrangement in the Constitution, rather their emphasis was on “the philosophy and the pervading “spirit and sense” of the Constitution, so elaborately exposed for our guidance in the Directive Principles of State Policy and other provisions of the Constitution.”

Therefore, in this context, sui generis would mean the specific nature of the Constitution of India and that there is no classification where the Constitution of India could fit necessitating adoption of a sui generis approach for its interpretation.

Federation of Hotel & Restaurant Assn. of India v. Union of India, (1989) 3 SCC 634 –

In this case, the Supreme Court held that if a tax is imposed under the residuary powers of the Central Government and such a tax does not fall within any other classification, then it could be termed as sui generis or nondescript tax and could be held to be valid. It was beautifully quoted that “the point of the reference is emphatically not to seek a pattern to which a due exercise of the power must conform.” I think this is precisely the purpose of the principle or the concept of sui generis. A lack of discernible pattern makes an object or a situation to be sui generis. Another takeaway from this Judgment is that sui generis also means nondescript.

Mehar Singh Saini, In re., (2010) 13 SCC 586 –

Section 317 of the Constitution of India provides that the members of the Public Service Commissions could be removed from their office only by the President of India, after an Inquiry by the Supreme Court. The manner or the nature of the Inquiry has not been specified. Therefore, in this case, it was observed that the Supreme Court is free to devise its own sui generis procedure to conduct an Inquiry in terms of Article 317 to suit the facts of a given matter at hand and to ensure justice. The Court also observed that there are various degrees of proof that are required in various laws such as service law works on the principle of preponderance of probability and the criminal law works on the principle of proving beyond reasonable doubt. The very fact that the Constitution Makers inserted Article 317 in the Constitution of India and used open ended words to grant powers to the Supreme Court to conduct Inquiries under it, postulates that it intended the Supreme Court to adopt a sui generis approach that is different from the service law or the criminal law.

Thus, we see that, here sui generis means non-adoption of an already known approach and adoption of a case-specific approach to conduct an Inquiry , by the Supreme Court.

Daroga Singh v. B.K. Pandey, (2004) 5 SCC 26 –

In this case, the Supreme Court discussed an offence that is sui generis. The offence is that of criminal contempt of court. Just like Article 317, the contempt laws of India provide power to the judge who initiates the criminal contempt proceedings “to remain in full control of the hearing of the case.” The Court discussed that in other criminal offences, specific procedures are followed but in case of criminal contempt, custom-made procedure by the particular judge could be devised to conduct the proceedings, making criminal contempt an offence sui generis.

Conclusion

Sui generis is an interesting term having limitless utility both in the field of law and otherwise. The Courts have used this term in situations where there has been a lack of classification in realms where otherwise the classification is stark or unambiguous. In legal parlance, the principle of sui generis entails a comparative approach. First an object or a situation is to be differentiated from the existing classification and then it could be called as sui generis.

What is the Legal Meaning of Expunging or Expunction of Adverse Remarks?

suyashverma@hotmail.com (Suyash Verma) — Mon, 14 Jun 2021 13:18:22 +0000

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Dictionary Meaning

Black’s Law Dictionary, Eighth Edition (2004), defines as follows: -

1. Expunge –

a. To erase or destroy;

b. To declare null and outside the record, so that it is noted in the original record expunged, and redacted from all future copies;

c. rescind.

2. Expunction –

Where it is desired not only to rescind an action but to express very strong disapproval, legislative bodies have voted to rescind the objectionable action and expunge it from the record. When a record has been expunged, the chief legislative officer should cross out the words or draw a line around them in the original minutes and write across them the words, ‘Expunged by order of the Senate (or house), giving the date of the order.

3. Expungement of record –

The removal of a conviction from a personal’s criminal record.

Thus, the plain meaning of ‘expunge’ is to rescind or erase or destroy. Let us now understand the meaning and the effect of expunging or expungement or expunction with the help of Judicial Precedents.

Important Judicial Precedents

1. B.C. Dwivedi v. State of Gujarat, 1995 SCC OnLine Guj 190 - If any adverse material is taken into consideration against a government servant to his/her detriment and such material has later on become non-existent, then his/her case is entitled to be reconsidered on the ground that Article 16 of the Constitution of India mandates fair consideration.

2. M. Paramsivam v. Union of India, 2008 SCC OnLine Mad 721 –

In case of a matter relating to promotion, tenable explanation or statement is required from the Competent Authority as to how the expunction of adverse remarks had no consequence on grading already made in relation to the government servant whose promotion is in question.

3. U.S. v. Abilene & Southern Railway Company, 265 US 274 –

“It is a denial of due process for a commission to rest on conclusion upon facts of which he takes judicial notice, where the facts are unknown and there is no way to find them out such facts being withheld from the record”.

4. Purshottam Dass Gupta v. Union of India, 1999 SCC OnLine Del 420 –

“The authority exercising quasi judicial power is under an imperative constitutional obligation with a sense of official responsibility for impartial with objective consideration of materials available on record.”

5. U.P. Jal Nigam v. S.C. Atri, (1999) 1 SCC 241 –

The effect of the order allowing the expunction of the adverse entry would be that on the date on which the government servant was considered for promotion, there existed no adverse entry in his/her character roll. Subsequently, it cannot be said that such government servant was not promoted on account of his unsuitability.

6. Baijnath Rajput v. State of M.P., 2005 SCC OnLine MP 324 –

If the adverse Annual Confidential Reports (ACRs) are expunged, it would mean that they were not in existence. An employee is entitled for the benefit after the expunction of his adverse ACRs, otherwise there would be no use for expunging his adverse ACRs. The legal effect of setting aside of adverse remarks would be that the remarks must be treated as non-existent in the eye of law.

Conclusion

We see that an employee is entitled to claim benefits of the expunging of adverse remarks. However, cogent reasons will have to be cited for expunging of adverse remarks and it would have to be explained how those remarks will affect the career progression of the concerned employee.

Similarly, in legislatures too, sometimes certain remarks are made that should otherwise not have been made. Expungement of record is a valuable tool in such situations in the hands of the legislature to strike off such remarks from the record as though they never existed.

What is the Doctrine of Functus Officio?

suyashverma@hotmail.com (Suyash Verma) — Sat, 12 Jun 2021 16:23:56 +0000

Plain Meaning of functus officio

1. Black’s Law Dictionary, Eighth Edition (2004), defines functus officio as: -

“having performed his or her office (of an officer or official body) without further authority or legal competence because the duties and functions of the original commission have been fully accomplished.”

2. P. Ramanatha Aiyar's Law Lexicon provides its meaning as: -

“A term applied to something which once has had a life and power, but which has become of no virtue whatsoever. Thus, when an agent has completed the business which he was entrusted his agency is functus officio.”

3. Wharton's Law Lexicon, Fourteenth Edition, defines it as: -

“a person who has discharged his duties, or whose office or authority is at an end.”

4. Trayner's Latin Maxims, Fourth Edition, explains it as: -

“Having discharged his official duty. This is said of any one holding a certain appointment, when the duties of his office have been discharged. Thus a Judge, who has decided a question brought before him, is functus officio and cannot review his own decision.”

5. Corpus Juris Secundum defines it as: -

“literally having discharged his duty. Having fulfilled the function, discharged the office, or accomplished the purpose, and therefore, of no further force or authority”.

Hence, the plain meaning of functus officio is that when an office or a position ceases to have any functionality or when its functions are completed. Let us also understand its meaning with the help of judicial precedents of India.

Judicial Precedents on the Doctrine of functus officio

1. Lalit Narain Mishra v. State of Himachal Pradesh and Others, 2016 SCC OnLine HP 2866 - In this case, the Petitioner was seeking the writ of mandamus in a matter that had already been decided by the Court. The Court denied such relief and observed that: -

“19. “Functus officio” is a Latin term meaning having performed his or her office. With regard to an officer or official body, it means without further authority or legal competence because the duties and functions of the original commission have been fully accomplished.

20. “Functus” means having performed and “officio” means office…..

….

25. In other words, the authority, which had a life and power, has lost everything on account of completion of purpose/activities/act.

26. Notably, what the petitioner is seeking is virtually a writ of mandamus in a decided case, which is legally impressible.”

2. Bhupendra Kumar Dash v. State of Odisha and Others, AIR 2016 Ori 167 – In this case, it was observed that once a District Tender Committee approves a Tender, it becomes functus officio and in the same manner, when an Arbitrator pronounces its award, it becomes functus officio.

3. Smt. Tara Devi v. State of UP through Secretary, Panchayati Raj, Lucknow and Others, 2010 SCC OnLine All 3016 – In this case, it was observed that a Returning Officer who had formally declared the results of an Election becomes functus officio and has no further power left to rectify the errors in the Electoral Process. It was further observed that if this Doctrine is applied to an officer whose term has expired, it would mean that he has no official authority left to discharge any function.

4. B.M. Jain and Sons Co. P. Ltd. v. Bombay Cable Car Co. P. Ltd., 2009 SCC OnLine CLB 71 – If a Court disposes of a Petition with a certain direction, then till such direction is complied with or becomes complete, the Court continues to have jurisdiction and cannot be considered to have become functus officio.

5. V.G. Naidu v. Pahlajraj Gangaram, 2016 SCC OnLine Mad 9710 – This was a case in relation to Order XXI of the Code of Civil Procedure, 1908 relating to Execution Proceedings and the Court observed that till the time of limitation subsists, there could be any number of Execution Applications and if the statute provides power to correct certain kinds of errors, then the Doctrine of Functus Officio would be subject to such qualifications and its applicability would depend “upon the nature and extent of power conferred on the authority functioning.” It was also observed that: -

“The principle of finality is attached to the doctrine of functus officio, but, there are exceptions to the principle of finality. However, the Court's inherent power to set aside a judgment will only be invoked in exceptional circumstances to avoid a miscarriage of justice. Fraud is a genuine, albeit limited, exception to the important principle of finality of litigation.”

6. SBI v. S.N. Goyal, (2008) 8 SCC 92 – Order XX of the Code of Civil Procedure, 1908 was discussed that deals with Judgments and Decrees. It was observed that Order XX Rule 1 (3) provides that a judgment may be dictated in open court and its transcript forms a part of the record of the case, after making such corrections as may be necessary. And Order XX Rule 3 provides that once a judgment has been pronounced and signed, it shall afterwards be altered or added to only according to law. Hence, mere dictation does not amount to pronouncement and “therefore, a Judge becomes functus officio when he pronounces, signs and dates the judgment (subject to Section 152 and power of review).” It was further observed that the situation might be slightly different for quasi-judicial authorities and “when an order is made in an office noting in a file but is not pronounced, published or communicated, nothing prevents the authority from correcting it or altering it for valid reasons. But once the order is pronounced or published or notified or communicated, the authority will become functus officio.”

7. Komal Chand v. State of Madhya Pradesh, 1965 SCC OnLine MP 31 – In this case, it was observed that “the Court had no power to recall and impound a certificate of sale after executing it and delivering it to the purchaser, or to reopen a case and impound documents proved after signing the decree, or to impound an instrument admitted in evidence after delivery of judgment.” The Court further observed that in the same manner when a Sub-Registrar registers a document, it becomes functus officio and thereafter it has no power to impound the same.

8. Govt. of U.P. v. Raja Mohd. Amir Ahmad Khan, (1962) 1 SCR 97 – The Supreme Court observed that once a Collector determines the Stamp Duty to be paid on an Instrument, it becomes functus officio and it could not impound the Instrument thereafter.

Concluding Remarks

We see that the Doctrine of Functus Officio is a doctrine of wide application, and it could be applied to both the judicial and the quasi-judicial authorities. I feel that it also acts as a matter of propriety that once an Order or a Decision has been pronounced, the authorities or the judges cannot take back the same. If the Doctrine of Functus Officio is not applied, then it would mean chaos for the Applicants and the litigating parties since the authorities, or the judges would be able to change their Orders at whim and there would be no certainty left with respect to any Order passed by any authority or Court.

Remarks by Madras High Court on Election Commission and Free Press – Views of Supreme Court

suyashverma@hotmail.com (Suyash Verma) — Fri, 11 Jun 2021 17:34:21 +0000

What the Court predominantly did in this Judgment was to reiterate the principles of Open Court, Judicial Restraint and Free Press. Usually, a case like this could have been dismissed in limine since the EC was seeking the relief that the media should be allowed to report only what forms the record of court proceedings and nothing else such as oral remarks. I feel that there is a need to understand that Media cannot be seen in abstract terms. It is comprised of the citizens of India. These citizens may talk with each other as they wish to. It could be done on social media or in person or any other platform. Today’s media is not the one that used to exist 30 years ago. Every citizen who is on social media may be considered to be a part of the Media today.

Facts in Brief

It was alleged that the Madras High Court while hearing a matter in relation to maintenance of Covid Protocols in Polling Booths in April 2021, had orally observed that “the EC is ‘the institution that is singularly responsible for the second wave of COVID-19’ and that the EC ‘should be put up for murder charges.’

These remarks were widely circulated in the media and the Election Commission (in short, “EC”) sought a direction that the media may be allowed to report only the proceedings that are on record and not oral remarks. It was further prayed that the Police may be restrained from registering any Murder Case in relation to the oral observations made by the Madras High Court.

The Madras High Court did not consider grant of such relief and the EC approached the Supreme Court seeking relief that media reporting of only what forms a part of the judicial record before the Madras High Court and not the oral observations of the judges, may be done and no coercive action may be taken against it in respect of a Criminal Complaint lodged against it at Kolkata.

Observations of the Court

1. If an FIR has been lodged in Kolkata, then there are other remedies that could be resorted to under the Code of Criminal Procedure, 1973 such as seeking quashing under Section 482 and directly coming to the Supreme Court is misconceived.

2. The Open Court Proceedings ensure that information regarding judicial process is available in public domain and subject to public scrutiny, as the “citizens have a right to know about what transpires in the course of judicial proceedings.”

3. The exceptions to Open Court Proceedings are matters that involve right to privacy of an individual and fair in trial such as sexual assault case etc. but apart from it, “public scrutiny of the court process remains a vital principle for the functioning of democracy.”

4. The case of Express Newspaper (P) Limited v. Union of India, 1959 SCR 12, was cited to explain the mandate of Article 19 (1) (a) of the Constitution of India that provides for right to freedom of speech and expression. This case explained that Press Freedom is of two types: -

a. Freedom From – “A free press is free from compulsions from whatever source, governmental or social, external or internal.”

b. Freedom For – “A free press is free for the expression of opinion in all its phases. It is free for the achievement of those goals of press service on which its own ideals and the requirements of the community combine, and which existing techniques make possible.”

5. In the present case, the Court acknowledged that internet has refashioned and revolutionized the means through which information is relayed and the world is adopting to technology at a pace “which is often difficult to catalogue.” Hence, preventing new forms of media from reporting on the Courts would not be prudent. The Court cited the example of England wherein the British Court had observed that media may report on court proceedings using text-based communications (including Twitter) without making an Application to the Court. Various case-laws were also cited explaining that the Courts too must become tech-savvy and accept the new reality. Interestingly, it was also observed that “our public constitutional institutions must find better responses than to complain.”

6. Though the oral remarks made by the Madras High Court have been impugned by the EC, but the Madras High Court had not been impleaded as a party to the proceedings giving it no opportunity of hearing. Hence, the Court noted that it would be unable to comment on the same. It also observed that unless proceedings and its archival becomes a reality, “the absence of records of oral proceedings would continue to bedevil the system.”

7. The Court also made some interesting remarks explaining the working of the Courts in the following manner: -

“40. The manner in which judicial proceedings are conducted, especially in our superior courts, is unique to each judge and holds great weight in the dispensation of justice. The issues raised or comments made by the Bench during an oral hearing provide clarity not just to the judges who adjudicate upon the matter, but also allow the lawyers to develop their arguments with a sense of creativity founded on a spontaneity of thought. Many a times, judges play the role of a devil's advocate with the counsel to solicit responses which aid in a holistic understanding of the case and test the strength of the arguments advanced before them. That is where the real art of advocacy comes to play. The order or judgment of the court must indicate a process of reflection and of the application of mind of the judge to the submissions of opposing parties.”

8. In this regard, the Court cautioned that the judges must exercise judicial restraint, “before using strong and scathing language to criticize any individual or institution.” The case of AM Mathur v. Pramod Kumar Gupta, (1990) 2 SCC 533, was cited, wherein it was observed that “respect to those who come before the court as well to other co-ordinate branches of the State, the executive and the legislature” and “derogatory remarks ought not to be made against persons or authorities whose conduct comes into consideration unless it is absolutely necessary for the decision of the case to animadvert on their conduct.”

9. According to the Supreme Court, if at all such remarks were made, “the remarks of the High Court were harsh. The metaphor inappropriate.” Despite these observations, the Court stated that since those purported remarks were anyways not part of the record; therefore, there is no question of expunging them.

10. The Petition filed by the EC was disposed of on these terms that we just discussed.

Concluding Remarks

In the present case, one constitutional body (EC) approached another constitutional body (Supreme Court) to seek relief against the purported oral remarks made by another constitutional body (Madras High Court). None of the reliefs sought by the EC seems to have been granted by the Court.

I think that the EC has a very onerous task at hand i.e., to conduct elections. What the citizens of India want to talk about should be left to them. Though it was a delight to read this Judgment by the Supreme Court, yet as the Court said, I sincerely hope that “our public constitutional institutions must find better responses than to complain.” This applies to all the other constitutional bodies as well.

What is the Meaning of Prima Facie and Prima Facie Case?

suyashverma@hotmail.com (Suyash Verma) — Thu, 10 Jun 2021 18:13:53 +0000

Introduction

The term prima facie is a term of wide amplitude, and it has acted as a potent tool for the courts to ascertain whether a case is worth listening to or not. It is also useful in the law of evidence wherein for specific purposes such as framing of charges or temporary injunction, a prima facie case is required to be established.

Usually, these terms are taken for granted and their dictionary meaning though explains what they mean, yet the dictionary meaning is not sufficient in order to understand and ascertain the application of terms like prima facie. Hence, there is a conscious need to look into the various case-laws as well that elucidate the importance of these terms.

Plain Meaning of Prima Facie

Black’s Law Dictionary, Eighth Edition (2004), defines prima faciein three ways: -

1. Prima Facie (adjective) – Sufficient to establish a fact or a raise a presumption unless disproved or rebutted.

2. Prima facie (adverb) – At first sight; on first appearance but subject to further evidence or information.

3. Prima facie case – The establishment of a legally required rebuttable presumption; a party’s production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party’s favour.

Now let us understand the meaning of prima facie and prima facie case as has been discussed by the Indian Courts.

Indian Courts on Prima Facie and PrimaFacie Case

1. Pranballav Saha v. Smt. Tulsibala Dassi, AIR 1958 Calcutta 713 – In this case, ejectment from suit-property was sought on the ground of using it for immoral purposes. It was observed by the Court that: -

“The question then is what a prima facie case is. All the evidence of reputation from family physician, executors, trustees, local residents is there. It is surely prima facie evidence. The distinct charge in the evidence from the witness box is (l) that the defendant is a prostitute and carries on prostitution and (2) that she took the house on rent to run a brothel there. That is the prima facie case. She does not come herself nor calls any witness to deny these serious allegations of fact. Whether the Judge should believe one witness or another or one case or another in such a context of facts is not then a question of prima facie case. It is then a question of the weight of evidence and its credibility. Prima facie case is not the conclusive case, and the learned Judge mistook the one for the other in his judgement. The very fact that the defendant neither came to the box herself nor called any witness to contradict evidence given on oath against her shows that these facts cannot be denied. What was prima facie against her became conclusive proof by her failure to deny.”

2. Anil Kapoor v. Finance-cum-Health Secretary Chandigarh Administration, 1974 Cri L J 862, Punjab and Haryana High Court –

“According to Webster's Third International Dictionary (1961 Edition), “prima facie case means a case established by “prima facie evidence” which in turn means “evidence sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted.”

3. Shankarlal v. State of M.P., 1978 MPLJ 419, High Court of Madhya Pradesh, Per Justice G.P. Singh –

“Although it is often said that plaintiff must show a prima facie case in support of the right claimed by him in the suit before he can be granted temporary injunction, the real thing to be seen is only that plaintiff's claim is not frivolous or vexatious; in other words that there is a serious question to be tried. Plaintiff is not required to make out a clear legal title but has to satisfy the Court that he has a fair question to raise as to the legal right claimed by him in the suit. It is not the function of the Court at that stage to resolve disputed questions of fact or difficult questions of law which should be left to be decided at the conclusion of the trial.”

4. Pirtha Singh v. Laxman Singh, 1999 SCC OnLine Raj 106 – In the context of civil cases, it was observed by the Court that: -

“It has been held that prima facie implies the probability of the plaintiff obtaining a relief on the materials placed before the Court at that stage.”

5. Bank of Baroda v. Appellate Tribunal for Foreign Exchange, 2005 SCC OnLine Del 231 – In this case, it was held that a prima facie case “refers to an arguable or triable case.”

6. Commissioner of Income-Tax v. McDowell and Co. Ltd., 2006 SCC OnLine Kar 796 –

“The dictionary meaning of “prima facie” is “at first sight”; “on the first appearance”; “on the face of it”….. What is required to be seen is a prima facie consideration for the purpose of allowance or disallowance [of the case] depending upon the material placed on record.

…..

We also deem it proper to say at this juncture that prima facie case is not to be understood as a proof of obligation by way of evidence, etc, prima facie consideration has to be prima facie or to use the dictionary meaning “at the first sight” or “the first impression”. It may be that impression may be varied/modified or even destroyed at the stage of final hearing. That-final hearing approach has not to be the approach at the first impression, namely, prima facie impression.”

Concluding Remarks

I hope that with the help of these case-laws, the meaning and amplitude of the term prima facie is clear to everyone.

Supreme Court on Transfer of Criminal Cases

suyashverma@hotmail.com (Suyash Verma) — Wed, 9 Jun 2021 17:25:44 +0000

Facts in Brief

In this case, transfer of a Criminal Trial from the Court at Salem (Tamil Nadu) to Patiala House Court, New Delhi, was sought by the Petitioner. A private complaint was filed before a Magistrate in respect of illegal use of a Trademark and in the said Criminal Trial, the evidence of prosecution witnesses was over, and the matter was fixed for appearance of the accused.

Some civil suits were also filed in the said trademark dispute matter by the Respondents and the same were transferred by the Supreme Court from Salem to Delhi in the year 2018.

Provision of Law Involved

406. Power of Supreme Court to transfer cases and appeals.

(1) Whenever it is made to appear to the Supreme Court that an order under this section is expedient for the ends of justice, it may direct that any particular case or appeal be transferred from one High Court to another High Court or from a Criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court.

(2) The Supreme Court may act under this section only on the application of the Attorney- General of India or of a party interested, and every such application shall be made by motion, which shall, except when the applicant is the Attorney- General of India or the Advocate- General of the State, be supported by affidavit or affirmation.

(3) Where any application for the exercise of the powers conferred by this section is dismissed, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider appropriate in the circumstances of the case.

Grounds of the Petitioner

1. Point involved in the Criminal Case is similar to one in the Civil Suits that are now being contested under the jurisdiction of the Delhi Courts.

2. Proceedings in Salem are conducted in Tamil language that the Petitioner does not understand.

3. It would be more convenient for both the parties if the criminal matter is also heard in Delhi.

4. There is a distance of 2000 km from Salem to Petitioner’s place of residence at Indore (MP) and there is no direct connectivity between two places.

5. The case of Mridum M. Damle v. CBI, (2012) 5 SCC 706, was also cited to buttress the submission that when a number of witnesses are gravely inconvenienced due to large distance between their place of residence and the place of trial, then there could be deleterious effects on the conduct of the trial and in such cases, a criminal case may be transferred.

6. Respondents have influence in Salem and there is apprehension that the Petitioner may not a fair Trial at Salem.

Grounds of the Respondents

1. There is delay by the Petitioner in approaching the Supreme Court as the Trial that commenced in the year 2018 has already reached the stage of leading of evidence.

2. Personal appearance of the Petitioner in the Criminal Trial has been dispensed with by the Trial Court at Salem.

3. A criminal case cannot be equated and mixed with a civil case. And there is no bar in law that civil and criminal proceedings cannot go on simultaneously.

4. The case of Umesh Kumar Sharma v. State of Uttarakhand, 2020 SCC OnLine SC 845, was cited to argue that mere apprehension that the Petitioner would not get a fair trial at Salem is not enough and he must bring credible evidence or material to support his contention. No such material or evidence has been brought by the Petitioner in the present case.

Held by the Court

1. Even if it is conceded that the civil cases would have points which could overlap with those involved in the criminal case, yet the same would not justify the transfer. And two different judicial fora are hearing the civil and criminal cases respectively.

2. Substantial progress has been made in the criminal case.

3. The apprehensions and allegations of the Petitioner do not show any unjust influence of the Respondents in respect of the criminal case at Salem. Therefore, the Petitioner’s case of having a possible tainted trial is unfounded.

4. Problem in understanding the language is in itself not a ground for transfer of a case. It may be a weighing factor when the decision to transfer has already been taken by the Court.

5. Power under Section 406 of CrPC to transfer a case is to be sparingly used and cannot be exercised on mere apprehensions of one of the parties.

6. If the Court hearing a case has jurisdiction to hear the matter, then grounds such as unfamiliarity with the language of the Court cannot be a ground for transfer. Aid of translator could be sought in this regard.

7. Convenience of one of the parties cannot be a ground for transfer and powers under Section 406 of CrPC can be exercised only when it is “expedient for the ends of justice.” The present case is not the one.

8. The case of Mridul M. Damle (supra) is of no help to the Petitioner as in that case, 88 out of 92 witnesses were from different parts of Maharashtra and it was difficult for them to travel to Delhi.

9. The Court cited the case of Rajesh Talwar v. CBI, (2012) 4 SCC 217, wherein it was held that often one of the parties have to travel in a case to reach the court and if the plea of inconvenience is accepted every time, then the contents of Section 406 of CrPC would have no meaning left. It was further stated that “convenience or inconvenience are inconsequential so far as the mandate of law is concerned.”

10. Therefore, the Transfer Petition was dismissed.

Concluding Remarks

Section 406 of CrPC shall come into effect only when it is expedient for the ends of justice. But what is justice? I think in terms of Section 406 of CrPC, justice would mean anything that does not lead to some serious financial disadvantage or evidence regarding possibility of a mistrial or loss of rights or other such issues, to any of the parties. If the mere location of a Court is leading to any of the above, then it would not be expedient for the ends of justice to continue the criminal trial at such a place.

Suppose a person is hand to mouth and he is asked to travel long distances, then I think that it would be a travesty of justice in such a case and the case must be transferred in order to do justice to such a person. In the present case, the parties were well-off. Both of them had engaged Senior Advocates and the dispute between them had commercial origins. Further, the Petitioner failed to bring on record any evidence that would justify his apprehensions of not having a fair Trial.

I concur with the reasoning of the Court that issues like language and convenience are quite trivial in nature when it comes to transfer of cases. The Code of Criminal Procedure has granted jurisdiction to a particular criminal court to hear and try the matter. Such jurisdiction cannot be taken away so lightly. There must be cogent reasons for doing so.

Further, equating civil and criminal cases is never a good idea. Both of them have different courts, different grounds, different procedure and different law that governs them. Just because a criminal matter and a civil matter stem from the same subject-matter, that by itself cannot mean that a transfer of criminal case to the place of the civil case would be justified.

Wealthy parties waste a fortune in contesting such frivolous simply because of petty ego issues. I consider such kind of litigation wasteful, not for the advocates but for the parties themselves. I feel that lack of efficacious and speedy modes of alternate dispute resolution is one of the reasons for litigating for the sake of litigating. People think that they can achieve anything with the help of law, but they cannot for law takes its own course and take into consideration the larger picture.

Supreme Court on Release of Prisoners due to Covid-19 and Prison Reforms

suyashverma@hotmail.com (Suyash Verma) — Tue, 8 Jun 2021 14:25:38 +0000

Background

In this case, the Court discussed that on 16.03.2020, it had sought response from the Government Officials in relation to the immediate measures to be adopted for the welfare of prison inmates and juveniles lodged in remand homes.

Vide Order dated 23.03.2020, various High-Powered Committees were set up and on the basis of their recommendations, lot of prisoners were released either on Interim Bail or Parole. Parole is temporary release of prisoner before completion of a sentence, on the promise of good conduct.

When the active cases reduced, those prisoners were asked to report and close to 90% of them have returned to the prisons. The recent spike in Covid-19 cases in India concerned the Court regarding the spread of the Covid-19 disease in the already overcrowded prisons that lack basic sanitation, hygiene and medical amenities.

The Court observed that there are close to four lakh prison inmates in India and rights of the accused persons must be taken into account by effectively managing the Covid situation in the Prisons across India.

Directions by the Court

1. No automatic arrests in cases of Section 498A of IPC (Husband or relative of husband of a woman subjecting her to cruelty) and arrests to take place only after compliance of Section 41 of CrPC that provides for when the Police may arrest without a warrant.

2. The mandate of Section 41 of CrPC needs to be complied with. When the accused is produced before the Magistrate, he shall peruse the Report furnished by the Police and only after recording its satisfaction, the Magistrate will authorize detention.

3. Even the decision not to arrest needs to be forwarded to the Magistrate within two weeks from the date of institution of the case.

4. Notice of appearance under Section 41A of CrPC (Notice of appearance before police officer) needs to be served on the accused within two weeks of the institution of the case.

5. Failure in compliance of these directions shall render the concerned officials liable for departmental action and contempt of court before the concerned High Court. In the same manner, authorizing detention without recording of reasons shall render the concerned Magistrates liable for departmental action.

6. All these directions will be applicable on all the offences that are punishable with imprisonment for a term that is seven years or less than that.

7. The High-Powered Committees shall consider release of prisoners either on Interim Bail or Parole based on the earlier guidelines framed.

8. All the prisoners that were released pursuant to the Order dated 23.03.2020, should be released by imposing appropriate conditions, in order to save valuable time.

9. Prisoners who were granted parole earlier in the year 2020 should be granted a parole for a period of 90 days in order to reduce spread of Covid cases.

10. The decisions of the High-Powered Committees and the prison occupancy status needs to be updated on the concerned websites to “enable effective dissemination of information.”

11. Not all prisoners would want to get released owing to their social status and fear of contracting Covid-19. The concerns of such prisoners need to be considered in proper perspective by the authorities.

12. The prisoners who are still imprisoned must be provided proper medical facilities and spread of disease should be controlled in prisons by proper testing and immediate treatment.

13. Daily hygiene and sanitation is required to be maintained and considering the lockdown and curfew situation, appropriate steps for transportation of released inmates shall be taken.

Concluding Remarks

I find it to be a much-needed Order by the Supreme Court. Ideally speaking, when the High-Powered Committees have already been constituted, they could have taken this decision on their own. But such is the dire state of affairs that the Court was required to intervene to look after the welfare of the prison inmates.

Rights of the accused persons and prisoners cannot be taken lightly. Such persons are a part of the society that we live in and many of them are languishing in jail in respect of cases in which they might be finally acquitted in the future. Some of them are languishing in jails because of want of proper legal aid. It the responsibility of the State to take care of all the prisoners and such responsibilities have been statutorily provided. It is high time that prison reforms become a reality in India. And not just prison reforms, the Trials need to be expedited too. All the concerned stakeholders must put their petty differences aside and implement the countless directions passed by the Supreme Court in this regard.

I think if the directions passed by the Supreme Court are implemented in proper perspective and within time, then it would provide a big relief to the prisoners and their families. It is not just the prisoners whose lives are stake. Those prisoners have families and many of them are required to be with their families due to the pandemic situation. Since close to a month has already passed when this Order was dictated by the Court, I hope that the States and the Union Territories have implemented these directions by now.

For more on Reforms in Criminal Trials, please visit my earlier posts at

YouTube Links

https://www.youtube.com/watch?v=Wa27kDr-Wrk&t=2s

https://www.youtube.com/watch?v=i1AAie57gb0&t=1s

Desi Kanoon Blog Links

http://www.desikanoon.co.in/2021/05/supreme-court-draft-criminal-rules-2020-2021-reforms-criminal-trial.html

http://www.desikanoon.co.in/2021/05/supreme-court-draft-criminal-rules-2020-2021-reforms-criminal-trial-ii.html

Disgraceful Conduct of the Institute of Chartered Accountants of India

suyashverma@hotmail.com (Suyash Verma) — Mon, 7 Jun 2021 15:18:39 +0000

Facts in Brief

The Petitioner was a Chartered Accountancy (CA) aspirant. On 20.11.2020, concerned with the pandemic situation, she wrote an Email to the functionaries of the Institute of Chartered Accountants of India (ICAI) cautioning that if the CA Exams are held during the time of Covid-19 pandemic, it will lead to exponential growth in number of Covid cases and sought development of online infrastructure for conducting CA Exams.

Later on, during 22.01.2021 to 07.02.2021, she had appeared for Intermediate Exams of CA. On 22.02.2021, she received an Email from ICAI informing that her result had been put on hold because of the derogatory remarks made by her in the Email dated 20.11.2020 and she was asked to explain why disciplinary proceedings should not be initiated against her. The Petitioner immediately issued an unconditional apology on 22.02.2021 itself whereafter she was asked to personally appear before the Examination Committee of ICAI on 10.03.2021 at Jaipur. She appeared on the said date but the Order/Result of the same was not informed to her. When the results were announced on 26.03.2021, the Petitioner found out that her result was cancelled under caption “ADOPTED UNFAIR MEANS. LETTER FOLLOWS.”

On 30.03.2021, the Respondents (ICAI) informed her that she was guilty of making derogatory remarks in the captioned examination and therefore, her result was cancelled. Hence, a Petition was preferred before the Hon’ble High Court of Judicature for Rajasthan.

Arguments of the Petitioner

1. The action of the Respondents is against Regulations 41 and 176 of the Chartered Accountants Regulations, 1988 (in short, “CA Regulations”) as the Examination Committee can adjudge conduct of a candidate in or near an Examination Hall only whereas the Letter dated 20.11.2020 was written months before the Exam and not during the time of the Exam.

2. The Email dated 20.11.2020 cannot be said to be derogatory. Though there were certain strong remarks, yet the same were only due to the anxiety of the Petitioner to request the ICAI to develop online infrastructure.

3. The Reply to the Email dated 22.02.2021 by the Petitioner is reflective of the pressure that she is facing from the ICAI.

4. The ICAI failed to show grace and despite nothing derogatory in the Email dated 20.11.2020, it did not close the matter.

5. The phrase “adopted unfair means” was prima facie factually incorrect and only shows the vindictiveness of the ICAI.

Arguments of the Respondents

1. There is an efficacious alternative remedy of filing a review before the Council against the decision of the Examination Committee. Hence, the Writ Petition is not maintainable.

2. The cancellation of result has not been challenged and hence, the relief of declaration of result is not maintainable.

3. There was disorderly behaviour on part of the Petitioner and doubts should not have been raised with respect to Institute’s preparation in conducting the exams.

4. The Email dated 20.11.2020 related to exams and hence, the Examination Committee had jurisdiction to look into the matter.

Observations of the Court

The Court observed that the initiation of proceedings against the Petitioner were without jurisdiction, arbitrary, capricious and against the principles of natural justice. It was further observed that the Email dated 20.11.2020 was addressed to the office bearers of the ICAI and not to the Examination Committee.

It was the opinion of the Court that the Email contained nothing derogatory and any action in this regard is unwarranted, uncalled for and high-handed. The Court also stated that the Institute of Chartered Accountants of India pushed the Petitioner to brink and subjugated her to the extent that she had to write in her Reply that she is ashamed of herself.

The Court found it disturbing that the Petitioner was personally heard on 10.03.2021, yet no order was ever communicated to her, and her exam result was cancelled in an arbitrary manner vide Communication dated 30.03.2021.

Regarding existence of alternate remedy, the Court observed that availability of alternate remedy is a rule of discretion and the present case smacks of abuse of authority leading to infringement of fundamental rights of the Petitioner. According to the Court, the conduct of the Respondents is such that the alternate remedy was “to challenge Caesar’s order before Caesar’s wife” and cancellation of Petitioner’s result “is nothing short of colourable exercise of powers.”

A Notice dated 22.11.2020 was also sent to the Petitioner wherein it was stated that the Petitioner is to refrain from addressing any such communication (like the Email dated 20.11.2020) to any body failing which the ICAI shall be constrained to initiate appropriate legal proceedings against her. Hence, according to the Court, the Respondents were estopped from initiating any action against the Petitioner since she did not make any communication as they had asked for.

The Court also cited the case of Gorkha Security Services v. Govt. of NCT, Delhi, (2014) 9 SCC 105, wherein it was held that “a show cause notice should necessarily state the action which is proposed to be taken against the noticee.” Since such mandate was also not followed by the ICAI; therefore, the impugned Order of cancelling the result was held to be illegal.

Going into the question that whether the ICAI could still initiate disciplinary proceedings against the Petitioner, it was held by the Court that as per Regulation 41 of the CA Regulations, the Examination Committee could act only “if a candidate behaves in a disorderly manner in or near an examination hall or has resorted to unfair means.” Such was clearly not the case and hence, the proceedings were void ab initio.

The Court also found that the Petitioner had cleared the CA Intermediate Examination. Thus, the Writ Petition was allowed by the Court.

Concluding Remarks

This case reflects the high-handedness with which the authorities work in general. Be it professional bodies like the ICAI or be it any other authority, the entire system seems to have become rotten and stale. The mentality of the persons officiating on high posts has become menial and deprecating. Many public servants consider themselves to be nothing less than a demigod and suffer from God’s Syndrome.

I think it is high time that such pathetic officers are stripped of their ranks and services. But who will do it when from the top to the bottom, the entire system has become crooked? Suppressing the voices of the people is a task in which the authorities of present day excel at. It is most depressing to see that for trivial issues where one is not even at fault, the Courts are to be approached.

Justice is truly a rare commodity these days and for seeking every kind of justice, usually, one has to approach the Courts, and nothing could be expected from the authorities in this regard. Not everybody is so well-informed or resourceful to afford an advocate of their choice or let alone know about their rights. People usually do not approach the Courts out of fear of vindictive attitude of the authorities.

I am glad the Petitioner in the present case knocked the doors of justice and got what rightfully belonged to her. All I can say is that don’t be afraid. Times are such that people will have to fight for their rights. We are being pushed to the brink but don’t be afraid, the truth shall prevail.

Supreme Court on Interpretation of Insolvency and Bankruptcy Code

suyashverma@hotmail.com (Suyash Verma) — Sun, 6 Jun 2021 17:43:30 +0000

Brief Background

In the present case, a Notification dated 15.11.2019 issued by the Central Government was challenged. Vide this Notification, certain provisions of the IBC were brought into force only as far as they relate to personal guarantors of corporate debtors, under the exercise of powers under Section 1 (3) of the IBC. Section 1 (3) states that: -

“It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint:

Provided that different dates may be appointed for different provisions of this Code and any reference in any such provision to the commencement of this Code shall be construed a reference the commencement of that provision.”

The impugned Notification provided for as follows: -

“NOTIFICATION

New Delhi. the 15th November, 2019

S.O. 4126(E).- ln exercise of the powers conferred by sub-section (3) of section I of the Insolvency and Bankruptcy Code. 2016 (31 of 2016). the Central Government hereby appoints the 1st day of December, 2019 as the date on which the following provisions of the said Code only in so far as they relate to personal guarantors to corporate debtors. shall come into force:

(1) clause (e) of section 2;

(2) section 78 (except with regard to fresh start process) and section 79;

(3) sections 94 to 187 (both inclusive);

(4) clause (g) to clause (i) of sub-section (2) of section 239;

(5) clause (m) to clause (zc) of sub-section (2) of section 239;

(6) clause (zn) to clause (zs) of’ sub-section (2) of section 240; and

(7) Section 249.

[F. No. 30/21/2018-Insolvency Section]

GYANESHWAR KUMAR SINGH, Jt. Secy.”

Important Grounds of the Petitioners

It was pleaded that the impugned Notification suffers from the vice of excessive delegation and bringing into force certain provisions only in relation to personal guarantors is ultra vires the powers granted to the Central Government.

It was also contended that the power delegated under S. 1 (3) is with respect to the points in time when different provisions of the IBC can be brought into effect and there is no power to the Government to notify parts of provisions of the Code or to limit the application of the provisions to certain categories of persons.

Basically, certain provisions of Part III of the IBC and other parts were made applicable to personal guarantors of corporate debtors only. The heading of Part III of the IBC is “INSOLVENCY RESOLUTION AND BANKRUPTCY FOR INDIVIDUALS AND PARTNERSHIP FIRMS.” It was contended that: -

“There is no intelligible differentia or rational basis on which personal guarantors to corporate debtors have been singled out for being covered by the impugned provisions, particularly when the provisions of the Code do not separately apply to one sub-category of individuals, i.e., personal guarantors to corporate debtors. Rather, Part III of the Code does not apply to personal guarantors to corporate debtors at all.”

It was further argued that Section 1 (3) merely empowers the Central Government to bring into force the provisions of the IBC on such date by a Notification in the Official Gazette and the Proviso specifically provides that different dates may be appointed for bringing different provisions into force. There is no scope for amending any provision or curtailing the powers of any provision under Section 1 (3). The only function assigned to the Central Government under S. 1 (3) is to bring the law into operation at such as it might decide. Exercise of power in any other manner would mean unconstitutional delegation of power.

Another argument was that by applying the provisions only to personal guarantors to corporate debtors, the impugned Notification has the effect of modifying the text of the actual provisions of the IBC.

Various landmark case-laws such as Delhi Laws Act, 1912, In re v. Part ‘C’ States (Laws) Act, 1950, 1951 SCR 747, Hamdard Dawakhana v. Union of India, (1960) 2 SCR 671, State of Bombay v. Narothamdas Jethabhai, (1951) 2 SCR 51 etc., were cited to buttress the above-stated submissions.

Important Grounds of the Respondents

The Central Government argued that the IBC was amended in the year 2018 wherein the class of personal guarantors to corporate debtors was introduced. The purpose was to distinguish personal guarantors to corporate debtors from others and “the result of the amendment is that when a corporate debtor faces insolvency proceedings, insolvency of its corporate guarantor too can be triggered. Likewise, a personal guarantor to a corporate debtor, facing insolvency, can be subjected to insolvency proceedings.”

The Respondents also relied upon the meaning of the expression “provision” as provided in the case of Chettian Veettil Amman v. Taluk Land Board, (1980) 1 SCC 499: -

“A provision is therefore a distinct rule or principle of law in a statute which governs the situation covered by it. So an incomplete idea, even though stated in the form of a section of a statute, cannot be said to be a provision for, by its incompleteness, it cannot really be said to provide a whole rule or principle for observance by those concerned. A provision of law cannot therefore be said to exist if it is incomplete, for then it provides nothing.”

According to the Respondents, the provisions of the IBC brought into force were complete in itself and therefore, they were brought into force. Bennion on Statutory Interpretation was also relied upon to explain that the executive has the power to bring into force any one provision of a statute at different times for different purposes.

It was also argued that there needs to be a purposive construction of Section 1 (3) of the IBC to determine the scope of the power conferred on the Central Government.

Observations of the Court

Apart from other things, the Court discussed the background in which the IBC was enacted by the Parliament. The Court also discussed its scheme. While discussing the scheme, the Court observed that Section 5 (22) of the IBC defines personal guarantor as: -

“an individual who is the surety in a contract of guarantee to a corporate debtor.”

Various provisions of the Indian Contract Act, 1872, relating to ‘Surety’ were also cited in the Judgment. It was also discussed as to how guarantors cannot escape their liability.

Further, Section 234 (2) of the IBC was also cited: -

“234 (2) The Central Government may, by notification in the Official Gazette, direct that the application of provisions of this Code in relation to assets or property of corporate debtor or debtor, including a personal guarantor of a corporate debtor, as the case may be, situated at any place in a country outside India with which reciprocal arrangements have been made, shall be subject to such conditions as may be specified.”

Based on the above and other reasons, the Court opined that the “parliamentary intent was to treat personal guarantors different from other categories of individuals.” Thus, according to the Court, “the intimate connection between such individuals and corporate entities to whom they stood guarantee, as well as the possibility of two separate processes being carried on in different forums, with its attendant uncertain outcomes, led to carving out personal guarantors as a separate species of individuals, for whom the Adjudicating authority was common with the corporate debtor to whom they had stood guarantee.”

Thus, according to the Court, personal guarantors stand on a different footing and their case cannot be equated with other classes of individuals or persons.

Held by the Court

Hence, upon cumulative consideration of all the arguments and circumstances, it was held by the Court that the impugned Notification is valid and there is no legislative exercise carried out by the Central Government holding their exercise of power in issuing the impugned Notification under Section 1 (3) of the IBC not to be ultra vires. It was also observed by the Court that: -

“There is no compulsion in the Code that it should, at the same time, be made applicable to all individuals, (including personal guarantors) or not at all. There is sufficient indication in the Code-by Section 2(e), Section 5(22), Section 60 and Section 179 indicating that personal guarantors, though forming part of the larger grouping of individuals, were to be, in view of their intrinsic connection with corporate debtors, dealt with differently, through the same adjudicatory process and by the same forum (though not insolvency provisions) as such corporate debtors.”

There were other IBC related issues dealt with in the case but the same are not relevant for our discussion and hence, are not being discussed here.

Concluding Remarks

To be honest, I find this Judgment by the Hon’ble Supreme Court to be a strange one. I have many reasons for saying so. S. 1 (3) of the IBC seems quite clear in its purport. It unequivocally states that “different dates may be appointed for different provisions of this code.” Now, how hard could it be to ascertain the meaning of this Proviso? As far as I know, when the literal meaning of a text is plain and simple, then that meaning is to be resorted to and only when the literal meaning is leading to absurdity, can the other modes of construction such as the rule of purposive construction could be resorted to. It is not a matter of convenience that sometimes the rule of literal interpretation would be used and sometimes the rule of purposive construction. Recently, the Hon’ble Supreme Court in the case of National Highways Authority of India v. Pandarinathan Govindarajulu and Another, 2021 SCC OnLine SC 28, had held that: -

“9. It has been repeatedly held by this Court that where there is no ambiguity in the words, literal meaning has to be applied, which is the golden rule of interpretation. The words of a statute must prima facie be given their ordinary meaning.”

In my humble opinion, as rightly pointed out by the Court, a provision could include the parts of a section of a clause as well and under S. 1 (3), such parts of various sections of the IBC could be notified at different dates. I also find it reasonable that the personal guarantors have been put at a different footing in the IBC. But what seems odd is the observation of the Hon’ble Court in Para 124 and others that certain provisions indicate that the personal guarantors were to be dealt with differently and this indication is sufficient to supplement the wordings of S. 1 (3) to mean that provisions could be notified exclusively for personal guarantors to corporate debtors. Even S. 234 of the IBC that was cited by the Court is limited in its application to any place outside India.

Thus, I find it quite troubling that when the bare provisions of the statute are not intended to be made applicable to only to the personal guarantors to corporate debtors. Simply because personal guarantors are treated differently under the IBC should not ipso facto mean that the provisions of the IBC could be selectively made applicable on them depending upon the whims and fancies of the Executive.

The Hon’ble Supreme Court relied upon a Report of the Working Group in relation to the IBC. But when the wordings of a statute are crystal clear then is there a need to look into the Reports to ascribe meaning to a text? I most humbly and respectfully state that I have divergent views in relation to the interpretative process that needs to be carried out in relation to Section 1 (3) of the IBC and that its meaning is plain and clear leaving no scope for any purposive interpretation.

Vinod Dua v. Union of India - What is Sedition?

suyashverma@hotmail.com (Suyash Verma) — Sat, 5 Jun 2021 18:25:15 +0000

Facts in Brief

A bare perusal of the relevant excerpts of the Complaint based on which the FIR was registered would be sufficient to explain the background of the case. The same is as follows: -

“The Vinod Dua Show on YouTube, has made unfounded and bizarre allegations (details of particular moments are provided below) by stating following facts at 5 minutes and 9 seconds of the video, he has stated that Narendra Modi has used deaths and terror attacks to garner votes. At 5 minutes and 45 seconds of the video, he claims that the government does not have enough testing facilities and has made false statements about the availability of the Personal Protective Kits (PPE) and has stated that there is no sufficient information on those. Further, he also went on to state that ventilators and sanitizer exports were stopped only on 24th March 2020…..Unless strict action is taken, it will result in unrest in public and go against public tranquillity. Hence, you are requested to take strict appropriate legal action against Mr. Vinod Dua and punish him accordingly.”

I think that the contents are self-explanatory. Mr. Vinod Dua made certain comments in relation to Mr. Narendra Modi and the Government. Those comments were considered to have potential to create “unrest in public” and “against public tranquillity” by the Complainant and an FIR was registered. Mr. Vinod Dua approached the Court for quashing of this FIR against him.

Important Observations of the Court with respect to S. 268, 501 and 505 of IPC

1. With respect to Section 268 (Public Nuisance) of IPC, it was held by the Court that Section 268 merely provides for the definition of “Public Nuisance” and is not a penal provision in in itself and further, no case has been made out involving element of Public Nuisance.

2. With respect to Section 501 (Printing or engraving matter known to be defamatory) of IPC, it was held by the Court that: -

a. Cognizance with respect to Chapter XXI of the IPC wherein S. 501 lies can only be taken by a Court upon a Complaint made by the person aggrieved and even otherwise, there is nothing defamatory in the statements made by Mr. Vinod Dua.

b. The Court went on to hold that the statements of Mr. Vinod Dua would be covered by the 2nd and 3rd exceptions to S. 499 of IPC. The 2nd exception provides that expressing opinion about public conduct of public servants is not defamation. The 3rd exception provides that it is not defamation to express any opinion with respect to conduct of any person touching any public opinion.

3. The case of Kedar Nath Singh v. State of Bihar, (1962) Supp. 2 SCR 769, was cited by the Court to explain that every citizen has a right to criticize the steps taken by the Government and its functionaries, as long as such person does not incite people to violence against the Government or with an intention to create public disorder. The words or expressions used must have a pernicious tendency or intention of creating public disorder to attract Section 505 of IPC. Hence, according to the Court, ingredients of Section 505 were not made out in the present case.

Observations of the Court relating Section 124A (Sedition)

Before adverting any further, let us peruse S.124A of IPC: -

“Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.

Explanation 1.—The expression “disaffection” includes disloyalty and all feelings of enmity.

Explanation 2.—Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

Explanation 3.—Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.”

The Court cited various case-laws on S. 124 such as Kedar Nath Singh (supra) wherein it was observed that: -

“The time is long past when the mere criticism of Governments was sufficient to constitute sedition, for it is recognized that the right to utter honest and reasonable criticism is a source of strength to a community rather than a weakness….”

“Sedition……embraces all those practices, whether by word, deed or writing, which are calculated to disturb the tranquillity of the State and lead ignorant persons to subvert the Government…... the very tendency of sedition is to incite the people to insurrection and rebellion……”

“The provisions of the Sections read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence.”

“Comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal.”

The Court also cited various other cases that explained the importance of Free Speech and Article 19 of the Constitution of India. Thereafter the Court itself pointed out that considering the size of the population of India, the testing facilities were not adequate and disruption of supply chains due to blockage of roads was real. The Court also highlighted the problem of migrant workers and shortage of food at the time when Lockdown was imposed all over India. According to the Court, the statements made in this regard by Mr. Vinod Dua “can neither be taken to be an attempt to incite migrant workers to start moving towards their hometowns or villages nor can it be taken to be an incitement for causing any food riots.”

Hence, it was observed by the Court that going by the allegations in the FIR and other attending circumstances, no offence is made out under S. 124A of IPC and “any prosecution in respect thereof would be violative of the rights of the petitioner guaranteed under Article 19(1)(a) of the Constitution.”

Held by the Court

Upon cumulative consideration of the above, the Court quashed the FIR against Mr. Vinod Dua and any proceedings arising therefrom. Another prayer was made in this case that no FIR be registered against a person belonging to media with at least 10 years of standing unless cleared by a Committee of Experts. Such prayer was declined by the Court as it was totally outside the purview of statutory framework and any direction with respect to the same would amount to encroaching upon the domain of the Legislature.

Concluding Remarks

Time and again, matters are coming up wherein S.124A (Sedition) of IPC is involved. S. 124A of IPC is a valid piece of law and must be treated as such by the Prosecution Agencies. Like any other provision of IPC, in S.124A too, it is required to be shown that its ingredients are being made out. Mere allegations are not enough and in order to carry out a Trial, it is required that the charges are prima facie made out.

The present case seems like one where the Prosecution Agencies did not apply much mind. Section 268 (Public Nuisance) of IPC was invoked against Mr. Vinod Dua that merely provides for definition and is not a penal cause. This is clearly a lacuna in the Prosecution. In the same way, Sections 501 and 505 of IPC were invoked without any application of mind. Before registering any FIR, the Prosecution Agencies are required to carry out due diligence with respect to making out the ingredients of the offence. It seems that in the present case, such exercise was not carried out properly or this situation would not have arisen.

Simply expressing opinions that are critical of the government cannot mean that a citizen is attempting to incite violence. Just the way a citizen congratulates the government for the good work done, in the same way, a citizen has the right to criticize the government when he is not satisfied. After all, the citizens are the real beneficiaries of the Constitution of India. The Government, the Legislature and the Judiciary, are required to function in tandem to secure the rights of the citizens of this country. Such rights include the right to criticize as well. Rather than curtailing the same, it would be much better if the State protects such rights and allows its citizens to criticize itself as much as possible. If everything done by the State would be considered to be rosy, then where would be the scope for improvement. The State would functions according to its own whims and fancies and without communication with the citizens, it would never know whether its schemes and plans are having any real ground effect or not.

The second prayer of Mr. Vinod Dua in this case was interesting. He tried to draw parallels with doctors that like doctors, journalists too need protection in respect of lodging of FIRs against them. However, in case of the doctors, the Court rightly pointed out that they stand at a different footing altogether and there is a full-fledged statutory framework in their favour. Though Journalists are specialists, but their nature of work is quite different from doctors.

Supreme Court on Dowry Deaths

suyashverma@hotmail.com (Suyash Verma) — Thu, 3 Jun 2021 19:06:10 +0000

Provisions of Law

Section 304-B of the Indian Penal Code, 1860

“Dowry death. —(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called ‘dowry death’, and such husband or relative shall be deemed to have caused her death.

Explanation. —For the purpose of this subsection, ‘dowry’ shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.”

Section 113B of the Indian Evidence Act, 1872

“Presumption as to dowry death.— When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

Explanation. - For the purpose of this section, “dowry death” shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860).”

Interpretative Observations of the Court

1. In the case of Major Singh v. State of Punjab, (2015) 5 SCC 201, essential ingredients of S.304B were laid down: -

A. Death should be caused by burns or bodily injury or otherwise than under a ‘normal circumstance’.

B. Death should have occurred within seven years of marriage.

C. Woman must have been subjected to cruelty or harassment by husband or husband’s relatives.

D. Cruelty or harassment should have a connection with demand of dowry.

E. Cruelty or harassment should have meted out soon before the woman’s death.

2. The phrase “soon before” used in S.304B does not mean “immediately before” rather the determination of the same has been left to the Courts and “the factum of cruelty or harassment differs from case to case.” It was further observed that “what is pivotal to the above determination, is the establishment of a “proximate and live link” between the cruelty and the consequential death of the victim.”

3. When all the above-stated ingredients are satisfied, then “a presumption of causation arises against the accused under Section 113-B of the Evidence Act. Thereafter, the accused has to rebut this statutory presumption.”

4. In such cases, in exercise of the powers under Section 313 of the Code of Criminal Procedure, 1973 (in short, “CrPC”) that talks about the powers of the Court to examine the accused, the Court must question the accused putting incriminating circumstances in front of him and seek his response. According to Section 313 of CrPC, the Court may put such questions to the accused as it considers necessary, and the answers given by the accused may be taken into consideration in the Trial. The Court may even permit the accused to file a written statement in response to its questions.

5. The Court also discussed the rights of the accused that are provided under Section 233 of CrPC when the Trial Court decides that the accused is not eligible to be acquitted in terms of Section 232 of CrPC. Section 233 provides certain rights to the accused such as he may file a written statement, seek attendance of any witness or production of any document etc.

6. Apart from the above, upon cumulative consideration of the situation, the Court laid down certain guidelines of which the pertinent ones are as follows: -

a. S.304B must be interpreted keeping in mind the legislative intent to curb the social evil of bride burning and dowry demand.

b. S.304B does not take a pigeonhole approach in categorizing death as homicidal or suicidal or accidental. The reason for such non categorization is due to the fact that death occurring “otherwise than under normal circumstances” can, in cases, be homicidal or suicidal or accidental.

c. Section 313 of CrPC “incorporates the valuable principle of natural justice “audi alteram partem” as it enables the accused to offer an explanation for the incriminatory material appearing against him.”

d. A duty is also cast on the counsel of the accused to prepare his defense since the inception of the Trial with due caution, keeping in consideration the peculiarities of Section 304-B, IPC read with Section 113-B, Evidence Act.

e. Other important considerations such as right to speedy trial, adopting a cautious approach in not roping the relatives of the husband unnecessarily and appropriate sentencing and punishment, must be taken into account.

Concluding Remarks

In this case, the Court made an attempt to distinguish S.304B from homicidal or suicidal or accidental deaths. It also explained the connection between S.304B of IPC and S.113B of the Indian Evidence Act. The purpose of the Court was to sensitize the Courts below, the Advocates and the public in general, about the importance of the provisions relating to Dowry Death.

The Court also clarified the meaning of the “soon before” and explained that the discretion has been left to the Courts to ascertain the time period depending upon the facts and circumstances of each case. Further, the Court also made efforts to secure the rights of the accused under Section 233 of CrPC so that a fair Trial takes place.

The Court also passed an interesting guideline in relation to Section 313 of CrPC wherein it stated that the Trial Courts must question the accused confronting him with the evidence available on record. I think this is very important and the Court rightly pointed out that this exercise is often skipped by many Courts, and this leads to confusion at the later stages of the Trial. Overall, I find it be a welcome judgment that beautifully interprets Section 304B keeping in mind the legislative objectives, the needs of the society and the literal meaning of its text.

Supreme Court on Anticipatory Bails

suyashverma@hotmail.com (Suyash Verma) — Wed, 2 Jun 2021 17:35:53 +0000

Without going into the specific facts of the case, the crux of the matter is that the High Court of Judicature at Allahabad passed an Order wherein it was breathing hot and cold at the same time. Vide the same Order, on one hand, it rejected the Application for Anticipatory Bail under S. 438 of CrPC and on the other hand, it directed the Applicant to “….appear and surrender before the court below within 90 days from today and apply for bail, their prayer for bail shall be considered and decided as per the settled law… Till then, no coercive action shall be taken against the applicants.”

This Order passed by the High Court was challenged before the Supreme Court on the ground that once the final relief of pre-arrest was declined to the Applicants, there is no protection available to the Applicants under S. 438 of CrPC and hence, the High Court could not have contemplated grant of any such protection. Thus, the moot question to be answered by the Court was as follows: -

“Whether the High Court, while dismissing the anticipatory bail applications of the respondents, could have granted them protection from arrest?”

Extent of Power Exercisable by the Courts under S. 438 of CrPC

The Supreme Court discussed the case of Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1, wherein following propositions were laid down: -

1. Grant of Anticipatory Bail under S. 438 of CrPC is ordinarily not limited to a fixed time period and should enure in favour of the accused till the conclusion of the Trial.

2. Normal conditions under S. 437 (3) read with S. 438 (2) should be imposed while granting Anticipatory Bail and if there are specific facts and circumstances, it is open for the Courts to impose any appropriate condition or introduce any peculiar features depending upon the necessity.

Section 438 of CrPC

“Section 438. Direction for grant of bail to person apprehending arrest

(1) Where any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:—

…..

either reject the application forthwith or issue an interim order for the grant of anticipatory bail:

Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-Section or has rejected the application for grant of anticipatory bail, it shall be open to an officer incharge of a police station to arrest, without warrant, the applicant on the basis of the accusation apprehended in such application.

(2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including -

….

(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1).”

What Happens when Application under S. 438 is Rejected?

According to the Court, when an Application under S. 438 of CrPC is rejected, it is open to the Police to arrest the Applicant and the Proviso to S. 438 (1) of CrPC does not create any restrictions on the same rather it is merely clarificatory in nature that unless an individual has obtained some protection from the Court, the police may arrest him.

The Hon’ble Court also observed that grant or rejection of an Application under S. 438 has a direct bearing on the fundamental right to life and liberty of an individual under Article 21 of the Constitution of India and therefore, the provision “needs to be read liberally, and considering its beneficial nature, the Courts must not read in limitations or restrictions that the legislature have not explicitly provided for. Any ambiguity in the language must be resolved in favour of the applicant seeking relief.”

Coming to the question relating to the provision of law under which the Court may issue relief to an Applicant after dismissing their Anticipatory Bail Application, the Court observed that such a power does exist and Section 482 of CrPC “recognizes the High Court's inherent power to pass orders to secure the ends of justice. This provision reflects the reality that no law or rule can possibly account for the complexities of life, and the infinite range of circumstances that may arise in the future.”

It was further opined by the Court that it cannot remain oblivious to the peculiar situations that may arise and “there may be circumstances where the High Court is of the opinion that it is necessary to protect the person apprehending arrest for some time, due to exceptional circumstances, until they surrender before the Trial Court.” In such cases, even if a case for Anticipatory Bail is not made out, then also the Court has powers to pass appropriate orders. Similar power is also vested with the Supreme Court of India under Article 142 of the Constitution of India.

Thereafter the Court passed a word of caution that “such discretionary power cannot be exercised in an untrammelled manner” and the Court must necessarily narrowly tailer the Order to protect the interests of the Applicant while taking into consideration the concerns of the Prosecution and such an order must be a reasoned one.

Held by the Court

The Court finally held that the Order passed by the High Court of Judicature at Allahabad wherein it rejected the Application under S. 438 of CrPC but granted protection from arrest to the Applicant without assigning any reasons for the same, fails to withstand the legal scrutiny for want of reasons and non-consideration of the concerns of the Prosecution/Investigating Agency. Further, it was also held that the period of 90 days granted to the Applicant cannot be considered to be a reasonable one in the facts of the case. Hence, the Order passed by the High Court was set aside to the extent of granting protection for 90 days to the accused persons.

Concluding Remarks

I feel that this case emphasizes the importance of Section 482 of CrPC. Even in the earlier post, we discussed that even in relation to orders framing charges or refusing to discharge, the High Court has the power to look into the same both under S. 397 and S. 482 of CrPC. Thus, where no power could be traced in relation to an exercise of power, then such power could always be traced under S. 482 of CrPC provided that the exercise of power is in a just and reasonable manner.

Through this case, the Supreme Court also made clear that even if an Application for Anticipatory Bail is rejected, then also the High Courts are not precluded from granting tailored protection to accused persons. The life and liberty of a person has been put at a higher pedestal by the Supreme Court than the rights of the Prosecution to investigate into the matter. According to the Court, there must be a semblance of balance between the two while passing of any such Order.

There are countless situations where the accused persons may take benefit of this Order. For example, if a person is apprehending arrest but is about to get married, then he can approach the Court and even if his case does not fall within the strict contours of S. 438 of CrPC, the High Court may grant him interim protection till the time he gets married. Or if there is a death in the family of a person apprehending arrest, then also the benefit of the culmination of the interpretative process that has transpired in this case could be taken. Life is complex and so are its needs. I agree with the underlying reasoning of the Court that there cannot be a straightjacket formula and when the statute itself confers inherent powers on the High Court, then the same must be exercised beneficially in favour of the individuals though an inane approach bereft of reasoning must be avoided.

Discharge of Accused and Power of Revision in Criminal Cases

suyashverma@hotmail.com (Suyash Verma) — Mon, 31 May 2021 19:44:10 +0000

Facts in Brief

In the instant case, the accused had moved an Application seeking discharge under Section 239 of CrPC contending that he has been falsely implicated. However, his application was dismissed by the Trial Court on the ground that the merits of the case can be gone into only at the later stages of trial. The accused moved the High Court under its revisionary jurisdiction of Section 397 of CrPC but the High Court also declined to entertain the Revision Petition observing that interference in the order framing charges or refusing to discharge is called for in rarest of rare case only to correct the patent error of jurisdiction and the present case is not the one.

Important Provisions

Section 239. When accused shall be discharged.— If, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.

Section 397. Calling for records to exercise of powers of revision — (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

Precedents Discussed by the Court

The Court discussed the case of Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau of Investigation, (2018) 16 SCC 299, that was relied upon by the High Court to dismiss the Revision Petition of the accused. The High Court had relied upon the following excerpt: -

“37. Thus, we declare the law to be that order framing charge is not purely an interlocutory order nor a final order. Jurisdiction of the High Court is not barred irrespective of the label of a petition, be it under Sections 397 or 482 CrPC or Article 227 of the Constitution. However, the said jurisdiction is to be exercised consistent with the legislative policy to ensure expeditious disposal of a trial without the same being in any manner hampered. Thus considered, the challenge to an order of charge should be entertained in a rarest of rare case only to correct a patent error of jurisdiction and not to reappreciate the matter…..”

The Hon’ble Supreme Court of India reconciled the interpretations provided in Asian Resurfacing (supra) and the case of Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551, and observed that the “orders framing charges or refusing discharge are neither interlocutory nor final in nature and are therefore not affected by the bar of Section 397 (2) of CrPC.”

Further, it was observed that the High Court has inherent powers under Section 482 and other provisions of CrPC to prevent abuse of process or to secure ends of justice. According to the Court, though such discretion is to be exercised carefully yet it does not mean that a hyper technical approach is to be adopted.

Held by the Court

The Court concluded by stating that: -

“17. Further, it is well settled that the trial court while considering the discharge application is not to act as a mere post office. The Court has to sift through the evidence in order to find out whether there are sufficient grounds to try the suspect. The court has to consider the broad probabilities, total effect of evidence and documents produced and the basic infirmities appearing in the case and so on. [Union of India v. Prafulla Kumar Samal]. Likewise, the Court has sufficient discretion to order further investigation in appropriate cases, if need be.”

Therefore, it was held by the Court that the High Court had committed jurisdictional error in the present case by not entertaining the Revision Petition of the accused and “overlooking the fact that ‘discharge’ is a valuable right provided to the accused.” Hence, the case was remanded back to the High Court for its reconsideration in accordance with law.

Concluding Remarks

Since my college days, I had been reading and hearing about the Madhu Limaye (supra) case from my professors and friends. Even when I joined litigation, this case continued to influence the revision petitions in which I was involved. Madhu Limaye (supra) is a 1977 Judgment and more than 4 decades have passed since then yet the same question relating to the distinction between interlocutory order and final order in relation to Section 397 of CrPC keeps coming up and time and again, the Hon’ble Supreme Court of India has to again reiterate that Madhu Limaye (supra) is still a good law.

I think there is a tendency to adopt hyper-technical approach by many judges and advocates. No doubt that Section 397 talks about revisionary powers of the High Court and no doubt that S. 397 (2) seeks to bar its applicability against interlocutory orders, but the fact of the matter is that there are other provisions as well in the Code of Criminal Procedure, 1973. One cannot simply overlook Section 482 of CrPC or the other provisions that provide the entire scheme of Criminal Trials. It is a cardinal principle of interpretation that the provisions of any statute have to be construed harmoniously and cannot be looked at into in complete isolation. A level of exactitude is desirable in the legal process but not at the cost of absurdity.

Without lowering the majesty of the High Courts, I think it is high time that the ratio of Madhu Limaye (supra) is applied in its proper perspective in revision petitions and such disastrous situations wherein the right of the accused to seek discharge is completely annihilated does not ever arise. The closing remarks of the Hon’ble Supreme Court in this case are quite pertinent wherein it said that the High Court committed an error by “overlooking the fact that ‘discharge’ is a valuable right provided to the accused.” I sincerely hope that this is the last judgment wherein the Hon’ble Supreme Court of India had to reiterate that Madhu Limaye (supra) still holds the field.

Supreme Court on How to Interpret a Contract

suyashverma@hotmail.com (Suyash Verma) — Sat, 29 May 2021 11:50:16 +0000

Facts in Brief

The facts in brief are that an Agreement was executed between two parties relating to a Business of the stationery in the name of “Karandikar Brothers” in which the two main clauses were: -

“A. The Stationery Shop by name “Karandikar Brothers” belonging to you of the stationary materials which is situated in the premises described in Para 1 (a) above and in which the furniture etc. as described in Para 1 (b) above belonging to is existing is being taken by me for conducting by an agreement for a period of two years beginning from 01.02.1963 to 31st January 1965.

B. The rent of the shop described in Para 1 (a) above is to be given by you only to the owner and I am not responsible therefor. I am to pay a royalty amount of Rs. 90 for taking the said shop for conducting, for every month which is to be paid before the 5th day of every month.”

This Contract was novated and extended from time to time till 1980 whence a Legal Notice to vacate the above-stated premises of land was given by the Appellant to the Respondent to conduct her own business. The Respondent replied by stating that the Contract was a Rent Agreement, and the sale of business was incidental. It was contended by the Respondent that the receipt of payment that was made by him to the Appellant mentioned the term “rent received” and therefore, the Contract was, primarily, a Rent Agreement and not a Contract to conduct business for a specified period and therefore, all the laws and procedures relating to Tenancy Law would be applicable rather than the general principles of Contract. Thereafter the matter traversed to the Trial Court and then to the various Appellate Courts reaching ultimately to the Hon’ble Supreme Court of India.

Important Provisions of Law

“Section 92 of the Indian Evidence Act, 1872 –. Exclusion of evidence of oral agreement — When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:

Proviso 6 – Any fact may be proved which shows in what manner the language of a document is related to existing facts.”

“Section 95 of the Indian Evidence Act, 1872 – Evidence as to document unmeaning in reference to existing facts — When language used in a document is plain in itself, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense.”

Observations by the Court

According to the Hon’ble Court, it is usual that businessmen often do not sit over the nitty-gritty in a Contract and in any Contract, the language used by the parties is susceptible to have more than one meaning thereby making it the responsibility of the Court to decipher the meaning of the words used in a Contract, “having regards to a meaning reasonable in the line of trade understood by parties.” Interestingly, the Court also observed that “the path and the development of the law of interpretation has been a progress from a stiff formulism to a strict rationalism.”

With respect to the above-stated Sections 92 and 95 of the Indian Evidence Act, it was, thusly, observed by the Court that: -

“14. It is manifest from these two sections that it is only in cases where the terms of the document leave the question in doubt, then resort could be had to the proviso. But when a document is a straightforward one and presents no difficulty in construing it, the proviso does not apply. In this regard, we may state that Section 95 only builds on the proviso 6 of Section 92.”

It was further observed by the Court that “Section 92 specifically prohibits evidence of any oral agreement or statement which would contradict, vary, add to or subtract from its terms.” Thus, according to the Court: -

“In line with the law laid down, it is clear that the contract mandated continuation of the business in the name of ‘Karandikar Brothers’ by paying royalties of Rs. 90 per month. Once the parties have accepted the recitals and the contract, the respondent could not have adduced contrary extrinsic parole evidence, unless he portrayed ambiguity in the language.”

Held by the Court

Hence, according to the Court, any emphasis on the term “rent received” was misplaced as the language of the Contract was clear and unambiguous and the impugned Contract was a license for continuing existing business and there could be no question of applicability of the Bombay Rent Act. The Learned Trial Court in the present case had ordered the Respondent to hand over the suit-property to the Appellant herein and such Order/Judgment was upheld by the Hon’ble Supreme Court of India.

Concluding Remarks

Whenever I see any judgment that deals with arrangements or contracts that are decades old, it truly fascinates me. Deciding age-old disputes and bringing them to their logical conclusion is one task that is often neglected. New cases keep coming up and the old casefiles are just kept in the record room for rotting. The parties too become wary and start losing interest in such matters. It brings immense joy to my heart when I see the Apex Court taking up such old disputes and setting a good precedent for the Courts of this country to follow their suit in deciding the old cases. This is especially relevant in today’s times as in the garb of Covid-19 pandemic, it is my considered opinion that the civil cases have been unduly neglected by the Courts all over. In most of the Courts, only criminal matters and that too, only bail matters are being heard. Bail matters are no doubt important and deserve priority over other matters but that does not mean that the other matters cannot be devoted time.

An unsolicited suggestion perhaps but when the Health Professionals and the Police are clocking in extra hours these days for the well-being of the citizens of this country, then in a similar manner, I think that the Courts could extend their work-timings (virtual mode) and start devoting, at least, some time to civil cases as well, especially the old ones. It is pertinent to note that in ignoring the old cases, the collateral damage is suffered by the senior citizens of this country since mostly and invariably, it is their disputes who are treated as coldly as possible by the Judiciary. By stating this, I do not mean to lower the majesty of the Courts in any manner and in fact, I respect the Courts so much that I not only think that they are capable of clocking in extra hours (through virtual mode) for old civil cases but also despite all the difficulties, the bail matters in this country are being heard unfettered all over. It is a welcome move and I salute the sincerity and commitment of the Judicial Officers as well the persons involved in the Judicial Registries of this country in this regard.

Coming back to the present case, I am happy to say that the Hon’ble Supreme Court of India evinced exemplary interpretational virtuoso in this case. The case looks simple at first blush but the argument of the Respondent relating to the “rent received” has the capability of confusing any Judge and anyone not well-versed with the canons of the law of the evidence would not be able to fathom the depths to which the interpretative process was involved in the present case. Section 92 and Section 95 complicated as well as simplified the matter in my opinion. Proviso 6 of Section 92 categorically provides that “Any fact may be proved which shows in what manner the language of a document is related to existing facts” and this provided a potent tool in the hand of the Respondent to sway the opinion of the Court as to the importance of the term “rent received” in the secondary documents that were not per se part of the Contract between the parties. In my humble opinion, the Court very rightly interpreted that when the wordings of the Contracts are themselves unambiguous, then the interpretational propriety demands that such document ought not to be given any credence at all. Such is the mandate of Sections 92 and 95. For the purposes of interpretation in this particular case, it is as if such a document containing the term “rent received” never existed. It is these simple yet delicate interpretative processes that make reading the Judgments of the Hon’ble Supreme Court of India a true delight. The Contract clearly suffused the intention of the parties in an unequivocal manner that the Contract was, primarily, one of “a license for continuing existing business” and nothing more or nothing less. That is the level of exactitude that a well-conducted interpretative exercise is capable of. I also hope that this Judgment by the Hon’ble Supreme Court of India would prove to be a beacon of light for all such old and subsisting Contracts in the times to come.

In conclusion, the answer to the question put forth in the beginning that whether the meaning of a Contract could be culled out solely with reference to the language used in the Contract or could the extrinsic evidence be utilized before adducing proper meaning to the Contract is that the wordings of the Contract are to be looked into and if the meaning of the words is exact, then there is no need to utilize any extrinsic evidence to ascertain the proper meaning to the terms of the Contract.

Supreme Court on Reduction of Fees by the Schools due to Covid-19

suyashverma@hotmail.com (Suyash Verma) — Thu, 6 May 2021 16:04:40 +0000

There were two sets of petitions. In the first set of Petitions, private unaided schools had assailed the validity of the Rajasthan Schools (Regulation of Fee) Act, 2016 (in short, “Act of 2016”) and in the second set of Petitions, Orders directing deferment of collection of school fees including reduction of fees limited to 70% of Tuition Fees by CBSE Schools and 60% from Rajasthan Board Schools, in view of reduction of syllabus by the respective Boards due to the Covid-19 Pandemic.

FIRST SET OF PETITIONS

Grounds of Challenge to the Rajasthan Schools (Regulation of Fee) Act, 2016

1. Arbitrarily restricting the autonomy of the School to determine fee is violative of Article 19 (1) (g) of the Constitution of India.

2. The Constitution of School Level Fee Committee (SLFC) under the Act of 2016 wherein the School Management has only one representative against five parents, three teachers and one principal, restricts the autonomy of the School Management to regulate fees. Such parents could also be of those wards who are availing free education under the Right of Children to Free and Compulsory Education Act, 2009 (in short, “RTE Act”) and thereby have no stakes at all in relation to the School Fees.

3. The Division Fee Regulatory Committee (DFRC) and the Revision Committee constituted under the Act of 2016 have powers to issue summons, search, seizure and penalties thereby considering School Fees to be res extra commercium (thing that is outside purview of commerce) and endlessly embroiling the School in the process of appeal, revision and judicial proceeding putting their financial future in jeopardy.

4. The process of determining fees is a dynamic exercise and the factors enumerated under the Act of 2016 are vague, subjective and irrelevant. In TMA Pai Foundation & Ors. v. State of Karnataka & Ors., (2002) 8 SCC 481, it was observed that it is in the interests of the general public that autonomy and non-regulation of the school administration will ensure that more good quality schools will get established.

5. It was also urged that the field of regulation of fees of schools is already occupied by the RTE Act and the State Legislature cannot enact a law on the same subject.

Grounds taken by the State in relation to the Act of 2016

1. The State/Respondent cited various cases such as Modern Dental College and Research Centre & Ors. v. State of Madhya Pradesh & Ors., (2016) 7 SCC 353, wherein identical provisions enacted by various states in relation to fixation of fee by external committees were upheld.

2. Article 19 (1) (g) of the Constitution of India is not an absolute right and the State has the power to regulate such rights.

Observations by the Court in relation to the Act of 2016

1. It is not open to argue that the Government cannot provide for external regulatory mechanism for determination of school fees. The real question is whether the Act of 2016 stands the test of reasonableness and rationality and balances the rights of the School under Article 19 (1) (g).

2. The Court also considered the ground that the RTE Act already occupies the field and observed that the purpose of the RTE Act is completely different since it talks about free and compulsory education to the children of the age of 6-14 years and otherwise has no connection with the fee structure that is adopted by the Schools.

3. The Court considered the Act of 2016 in great depth and upheld the validity of the Act of 2016; however, it read down the following provisions: -

a. Section 4 that talks about lottery system was read down wherein even the parents of the wards admitted under the RTE Act could become a part of the SLFC. The Court held that the parents who are part of the SLFC must be willing, well-informed and capable of having a meaningful discourse on the proposal of fee structure. Such eligibility ought to be specified in the Act.

b. Section 7 was also read down to the extent that the constitution of DFRC under it must ensure that only those parents who wards are actually studying in the School at that point of time are a part of it and such parents should not be the members of SLFC of any school within the divisional area. Further, such parents should have basic knowledge about functioning of the Schools and that their ward should not have secured admission under the RTE Act.

c. Section 10 was also read down that deals with the Revision Committee wherein the decisions of the DFRC could be assailed, to the extent that in the Revision Committee as well, the stipulations contained in point b. hereinabove are followed.

SECOND SET OF PETITIONS

In the second set of Petitions, Orders were passed by the Rajasthan Government directing deferment of collection of school fees including reduction of fees limited to 70% of Tuition Fees by CBSE Schools and 60% from Rajasthan Board Schools, in view of reduction of syllabus by the respective Boards due to the Covid-19 Pandemic. Those Orders were upheld by the Division Bench of the Rajasthan High Court taking the view that such Orders could also be even in exercise of powers under the Disaster Management Act, 2005 (in short, “Act of 2005” of “DM Act”)

According to the Schools, they were already following the mandate of the Act of 2016 and the Fee was fixed by the SLFC and there is no provision under the Act of 2016 that permits such interference by the State Authorities in respect of School Fees. Further, it was urged that the Disaster Management Act has no applicability in the facts of the present case as it has nothing to do with regulation of fees.

According to the Hon’ble Supreme Court, the Disaster Management Act, 2005 provides for preparation of a plan for disaster management by concerned authorities and “it is the direct effect of disaster that is required to be mitigated and not indirect hardship caused to individuals much less in respect of contractual matters” and “in the scheme of the Act of 2005, there is nothing to indicate that the Authorities can interfere with contractual matters or indirect hardships — such as inability of parents to pay school fees due to pandemic situation. The Director, Secondary Education, in no way, is concerned with the preparation of a disaster plan or its enforcement and implementation under the Act of 2005.”

The State of Rajasthan also tried to invoke the Rajasthan Epidemic Disease Act, 2020, to justify its Orders. Section 4 of the said Act talks about permitting the government to regulate the functioning of offices, governmental, private and educational, but according to the Hon’ble Supreme Court, the same gives no authority to the State Government to decide about the fee structure of unaided private schools.

The Hon’ble Supreme Court also observed that the State Government cannot issue directions in respect of commercial or economic aspects of legitimate subsisting contracts (Contract between Students/Parents and Schools) between two private parties with which the State has no direct causal connection. It was further observed that “in the guise of management of pandemic situation or to provide “mitigation to one” of the two private parties “at the cost of the other”. This is akin to – rob Peter to pay Paul.”

More strong remarks were made by the Hon’ble Supreme Court and it was stated that in the guise of curbing profiteering, the State “cannot transcend the line of regulation and impinge upon the autonomy of the school to fix and collect “just” and “permissible” school fees from its students” and “it is certainly not an essential commodity governed by the legislation such as Essential Commodities Act, 1955 empowering the State to fix tariff or price thereof.”

Another interesting argument that was taken by the Government/Respondent was that it was regulating the Fees while exercising the powers under Article 162 of the Constitution of India. Article 162 provides that the Executive/Government has the powers to make laws on all matters to which the Legislature of the State has power to make laws. On this argument, it was the view of the Hon’ble Supreme Court that plethora of cases decided earlier have held that determination of school fee structure is the exclusive prerogative of the School Management running a private unaided school and hence, in such cases, it is not open to the Legislature to make a law touching upon that aspect. In words of the Court, “Ex consequenti, the State Government also cannot exercise power under Article 162 of the Constitution in that regard.”

The Hon’ble Court stressed on the fact that the Disaster Management Act is not a panacea for all difficulties much less not concerning disaster management as such. While holding that the Government has no power reduce fees of the Schools, the Hon’ble Court also observed that this does not mean that the Schools have a Carte Blanche to be oblivious to the conditions of the Pandemic and the School Managements should “reschedule payment of school fee in such a way that not even a single student is left out or denied opportunity of pursuing his/her education, so as to effectuate the adage “live and let live”.”

Further, the Hon’ble Court also observed that the Schools can collect fees only in respect of activities and facilities which they are providing and demanding fees in respect of overheads that are not being incurred by them would be “nothing short of indulging in profiteering and commercialization.”

According to the Hon’ble Court, since the schools were not allowed to be open for a substantial period of time due to the Pandemic, they must have saved overheads and recurring costs on various items such as fuel, maintenance, water, stationery etc. Due to lack of empirical data in this regard, the Court observed that despite lack of mathematical exactitude, it would assume that the Schools must have saved around 15% of the annual school fees fixed by them for the relevant period.

In light of the above-stated reasoning, it was held by the Hon’ble Court that: -

1. The Schools shall provide a minimum of 15% deduction on the annual school fees to the students.

2. The amount so payable shall be paid in six equal monthly instalments before 05.08.2021.

3. No student shall be debarred or withheld from attending either online/physical classes on account of non-payment of fees and request to remit fees should be considered sympathetically by the Schools.

4. Such arrangement mentioned hereinabove will not affect the collection of fees for the academic year 2021-22.

OPINION AND CONCLUDING REMARKS

I have mixed feelings about this Judgment. On the one hand, the Hon’ble Court has artistically brought down every non-sensical argument of the Government/State to hold that regulation of fee is a private affair in case of private unaided schools but on the other hand, the Court went ahead with providing deduction in respect of fees that is to be collected by the Schools. Further, the students cannot be debarred by the Schools if their parents fail to deposit fees in respect of academic year 2020-21.

I think the overall winners in this entire battle of regulation of fees are the students and quite rightly so. They are the ones who would suffer most if the education were not imparted to them. But, in the garb of imparting education to the students, I respectfully submit that that the Hon’ble Court has left the parents without any consequences. I think it would be better if some form of mandatory direction with respect to the parents is also given that makes sure that the parents who are in a position to pay must pay the fees and failure to do so would entail liabilities not for their kid but directly on them. A small window of opportunity has been given to the unscrupulous parents who despite having the paying capacity may end up taking undue advantage of the leniency shown to them by the Court.

But be that as it may, Hon’ble Courts can do only so much in such uncertain times. The best part of the Judgment is that the Hon’ble Court considered each, and every argument advanced by all the sides in proper spirit and perspective and did not allow high-handedness or callousness to prevail.

I can just hope that our respective governments also start taking the matters at hand in a serious and a responsible manner, as is expected from every legitimate government. It is too bad that for every little thing, painstaking efforts have to be made by the Courts to balance the rights of the people vis-à-vis the powers of the government whereas such situations ought not to arise ever if the governments adopt a rational and a sympathetic view to the legitimate plights of the citizens of this country.

Supreme Court on Extension on Period of Limitation - Part II

suyashverma@hotmail.com (Suyash Verma) — Tue, 4 May 2021 20:10:38 +0000

Observations by the Court

Before proceeding any further, it would be pertinent to note that on 23.03.2020 and 27.03.2020, the Hon’ble Supreme Court had extended “the period of limitation prescribed under the general law or special laws whether compoundable or not with effect from 15.03.2020 till further orders.” Thereafter on 08.03.2021, the Hon’ble Supreme Court passed a subsequent Order stating that since the country is returning to normalcy and the Courts have started functioning physically as well, the extension of limitation earlier granted was regulated and brought to an end.

Now, the Covid-19 situation is again haunting the entire country and thus, vide Order dated 27.04.2021, the Hon’ble Supreme Court passed an Order providing for the following: -

1. The Court took judicial notice of the fact that there has been a steep rise in Covid-19 cases in the entire country and this situation requires extraordinary measures to minimize the hardship of the litigants.

2. The Hon’ble Supreme Court restored the “order dated 23rd March, 2020 and in continuation of the order dated 8th March, 2021 direct that the period(s) of limitation, as prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings, whether condonable or not, shall stand extended till further orders.”

3. The Court also clarified that the period of 14th March 2021 till further orders shall also stand excluded in computing the periods of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.

4. Interestingly, the Court also observed that it is passing the Order dated 27.04.2021 in exercise of powers under Article 142 read with Article 141 of the Constitution of India thereby making it a binding order within the meaning of Article 141 on all the Courts, Tribunals and Authorities of the country.

Concluding Remarks

This was a much-needed Order and shows the uncertainty that is prevailing under the current circumstances. Suspending the periods of limitation should provide a breather to the litigants who are not in a position to pursue their respective judicial proceedings.

However, I would have appreciated this much more had this Order or directive come from the Legislature or the Executive. The Hon’ble Supreme Court is literally doing the work of the Executive and the Legislature by suspending the periods of limitations temporarily. Suspending the periods of limitation means that the relevant provisions of the various laws of this country will remain ineffective for the time being. It may seem a small thing to a layman but in legal terms, this is akin to imposition of stay on the relevant provisions of law relating to periods of limitation.

People have to move the Supreme Court to secure such Orders and it is clearly a blot on the functioning of the Executive and the Legislature that they failed to do so and therefore, the people had to take trouble to make such applications before the Hon’ble Supreme Court. Still the time is not lost and I urge the Executive and the Legislature of this country to wake up from their slumber with respect to the periods of limitation and pass a statutory instrument to this effect indicating in concrete terms, the time for which the periods of limitation shall remain suspended. Any such law passed by the Parliament of India would have a positive effect and the litigants would be able to plan their legal proceedings in much better and effective manner.

Reforms in Criminal Trials - Part II

suyashverma@hotmail.com (Suyash Verma) — Mon, 3 May 2021 11:51:36 +0000

1. In the case of Bipin Shantilal Panchal v. State of Gujarat, (2001) 3 SCC 1, practices with respect to objections regarding questions to be put to witnesses were enunciated and it was directed that the Court must record answers to all questions, regardless of objections. However, this may lead to prolonged and lengthy cross examination, and more often than not, irrelevant facts having no bearing on the charge or the role of the accused, are brought on record, which often result in great prejudice.

2. The Hon’ble Court considered the mandate of Bipin Shantilal (supra) and observed that under Section 148 of the Indian Evidence Act, 1872, the Court has the power to decide when questions shall be asked and when witnesses can be compelled to answer. The Court, further, observed that under Section 149-154 of the Indian Evidence Act, 1872, the basic rules of cross-examination have been provided and in order to ensure that the record is not cluttered with irrelevant details that could be distracting and prejudicial to the accused, the Presiding Office should decide objections to questions, during the course of the proceeding or failing it at the end of the deposition of the concerned witness. It may have a salutary effect of preventing frivolous objections. Thus, the case of Bipin Shantilal (supra) was modified in above-stated terms.

3. It was also argued before the Court that though from time to time, directions have been issued to conduct day-to-day hearing of criminal trials, yet the same is not possible due to non-availability of witnesses in many cases. Thus, in order to redress this grievance, the Hon’ble Court observed that “the courts in all criminal trials should, at the beginning of the trial, i.e. after summoning of the accused, and framing of charges, hold a preliminary case management hearing. This hearing may take place immediately after the framing of the charge.” In this hearing, the court should consider the total number of witnesses, and classify them accordingly. A date could also be fixed for admission and denial of documents in relation to the accused. The schedule of recording of witnesses should then be fixed, by giving consecutive dates. Each date so fixed, should be scheduled for a specific number of witnesses.

4. In relation to other modalities contained in “Draft Rules of Criminal Practice, 2020”, the Court observed that the Draft Rules of 2021 are annexed with the instant Order and all High Courts and States should take expeditious and appropriate steps to incorporate the same as part of the Rules governing the Criminal Trials. Further, relevant amendments need to be carried out in Police Manuals of various states to bring them in synchrony with the Draft Rules of 2021.

Opinion

In my considered view, these proceedings that were taken up by the Hon’ble Supreme Court will, if implemented properly, provided a much-needed reform that was long due in criminal proceedings and trials. The Criminal Trials are marred by delay and lethargy leading to loss of faith in the judicial system. The changes suggested by the Court and the Draft Rules are calibrated as at on the one hand, they are bringing much-needed reforms to the system and on the other hand, such changes are easy to implement and are in complete synchrony with CrPC and existing Criminal Procedure Laws.

I hope that the High Courts as well the State Governments take up this issue in a serious manner and swiftly implement the Draft Rules of 2021 so that expeditious criminal trials become a reality in India.

Reforms in Criminal Trials and Supreme Court of India

suyashverma@hotmail.com (Suyash Verma) — Sun, 2 May 2021 09:50:56 +0000

The Hon’ble Supreme Court had taken up this issue earlier in the year 2017 and upon years of deliberation and consultation, “Draft Rules of Criminal Practice, 2020” was formulated. Accordingly, to the Court, such Rules are no in no way repugnant to the existing criminal procedure laws.

Before adverting further, let us understand the “Draft Rules of Criminal Practice, 2020.” It has provided for the following important points: -

1. Body Sketch to accompany Medico-Legal Certificates, Post-mortem Report and Inquest Report.

2. Photography and Videography of Post-mortem in certain cases.

3. Spot Panchnama of the place of occurrence shall also contain a Site Plan indicating various details such as place where was body was found, source of light, elevation of structures etc.

4. The accused is to be supplied with statements of witnesses recorded under S. 161 and S. 164 of the Code of Criminal Procedure, 1973 (in short, “CrPC”) along with the documents under S. 173, 207 and 208 of CrPC.

5. The Order framing charges shall be accompanied by a formal charge in Form 32, Schedule II of CrPC.

6. The deposition of witnesses shall be translated into English and will be read over mandatorily by the Presiding Office in Court and a free true copy of the same shall be supplied to the accused, the witness, and the prosecution on the very date of recording.

7. The Record of Depositions shall indicate the date of the chief examination, cross examination and re-examination and can be done in question-and-answer format, if found necessary. Further, any objections while recording of evidence shall be reflected in the recording of the evidence and decided expeditiously.

8. The Exhibit Number shall further show the Witness Number after the Exhibit Number.

9. After framing of charges, the accused persons shall be referred to only by their ranks in the array of accused and not by their names. Even the Exhibits and the deposition of Witnesses shall be referred to by their numbers and not by names or other references.

10. Relevant portions of statements under S. 161 or 164 of CrPC or Exhibits used for contradicting or corroborating the respective witnesses shall be extracted and indicated in the deposition and admissible portion under S. 8 or 72 of the Indian Evidence Act shall be marked and extracted on a separate sheet and given an Exhibit Number.

11. Every judgment shall contain the details as provided in the Format appended to the Rules and contain the list of witnesses, exhibits and material objects.

12. All judgments shall contain the points for determination, the decision and its reasons and in case of conviction, it shall separately indicate the offence and the sentence therein. In case of acquittal, a direction shall be given to set the accused at liberty unless such accused is in custody in any other case.

13. Even in judgment, names shall not be used and only numbers and the nomenclatures indicated hereinabove shall be used.

14. Bails must ordinarily be disposed of within a period of 3 to 7 days from the date of first hearing and reasons for any such delay must be mentioned in the Order itself. Copy of the Order and the Bail Application must be furnished to accused on the date of pronouncement of Order itself.

15. More advocates should be appointed to assist the Prosecution.

16. Day to day hearing of all trials should be conducted and any delay in terms of Section 309 (1) of CrPC must be recorded. If the witnesses are in attendance, no adjournment shall be granted except for special reasons to be recorded to in writing.

17. Sessions cases should be precedence over all other work and no other work should be taken up on sessions days until sessions work for the day is completed.

More about this shall follow in the next post.

Supreme Court on Computation of Limitation Period during Covid-19 Pandemic

suyashverma@hotmail.com (Suyash Verma) — Thu, 11 Mar 2021 15:24:39 +0000

Vide Order dated 27.03.2020 in the instant, the Hon’ble Supreme Court had extended “the period of limitation prescribed under the general law or special laws whether compoundable or not with effect from 15.03.2020 till further orders.”

The Court also observed that though the end of the pandemic remains to be seen yet there seems to be considerable improvement in the state of affairs and it is of the opinion that the Order extending the period of limitation has served its purpose.

Important Directions

Thus, following important directions have been issued by the Court: -

1. “In computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 till 14.03.2021 shall stand excluded. Consequently, the balance period of limitation remaining as on 15.03.2020, if any, shall become available with effect from 15.03.2021.”

2. “In cases where the limitation would have expired during the period between 15.03.2020 till 14.03.2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 15.03.2021. In the event the actual balance period of limitation remaining, with effect from 15.03.2021, is greater than 90 days, that longer period shall apply.”

3. Such exclusion of period of limitation is also applicable on S.23(4), 29A of the Arbitration & Conciliation Act, 1996 and Provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881.

4. The State shall allow regulated movement for legal, medical, educational, and employment related requirements.

Concluding Remarks

Though this is a small and laconic Order yet its significance is immense. There is a lot of confusion among the litigants as well as the legal fraternity regarding the computation of period of limitation in various cases. This conundrum started with the Order dated 24.03.2020 that was passed by the Ministry of Home Affairs, in exercise of the powers under Section 6 (2) (i) and 10 (2) (l) of the Disaster Management Act, 2005 (in short, ‘Act of 2005’). This lockdown was extended from time to time and after few months, the government started calling the same guidelines as ‘Unlock’ guidelines. The present Order provides much needed relief and clarity to every by making it amply clear that the period of last one year shall be excluded for the purposes of computing the period of limitation.

Another significant aspect of the instant Order is that the Court has directed the State allow regulated movement for legal, medical, educational, and employment related requirements. I think this has a lot of significance and can be used by common people as a shield against the atrocities and excesses committed by the State in various places. Getting a job and securing employment is equally important as breathing air or drinking water. It is high time that the State starts playing a proactive role in alleviating the agony of its citizens.

What is the meaning of Family Settlement in India?

suyashverma@hotmail.com (Suyash Verma) — Thu, 25 Feb 2021 17:02:46 +0000

Earlier Judgments on Family Settlement

The Court started by citing Ram Charan Das v. Girjanandini Devi, (1965) 3 SCR 841, to explain the concept of family that could enter into a family settlement. According to the Court, “every party taking benefit under a family settlement must be related to one another in some way and have a possible claim to the property or a claim or even a semblance of a claim.” Further, it was observed that “all that is necessary is that the parties must be related to one another in some way and have a possible claim to the property or a claim or even a semblance of a claim on some other ground as, say, affection.”

Another case of Kale v. Deputy Director of Consolidation, (1976) 3 SCC 119, was cited by the Court to understanding the meaning of the term ‘family.’ The Court also explained the object of a family settlement. According to the Court: -

“The object of the arrangement is to protect the family from long-drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. Today when we are striving to build up an egalitarian society and are trying for a complete reconstruction of the society, to maintain and uphold the unity and homogeneity of the family which ultimately results in the unification of the society and, therefore, of the entire country, is the prime need of the hour. A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice. That is why the term “family” has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes successionis so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits.”

Other Important Observations

The Court also gave a word of caution that family settlements are governed by principles that are not applicable to any dealings between the strangers and while considering a family settlement, the Court takes into account the interest of families and examines the arrangements/conditions that are exclusively conducive for family settlements.

The Court also cited Kale v. Deputy Director of Consolidation to lay down essentials of a family settlement in the following manner: -

1. The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;

2. The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;

3. The family arrangement may be even oral in which case no registration is necessary;

4. Registration would be necessary only if the terms of the family arrangement are reduced into writing;

5. The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement;

6. A bona fide family arrangement which is fair and equitable is final and binding on the parties to the settlement.

In order to understand the rights of the legal heirs of a female in a family settlement, the Court perused Section 15 of the Hindu Succession Act, 1956 which is reproduced hereinbelow: -

“15. General rules of succession in the case of female Hindus.—(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,—

(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;

(b) secondly, upon the heirs of the husband;

(c) thirdly, upon the mother and father;

(d) fourthly, upon the heirs of the father; and

(e) lastly, upon the heirs of the mother.”

Thus, even the heirs of the father are covered in the heirs, who could succeed. According to the Court, “when heirs of father of a female are included as person who can possibly succeed, it cannot be held that they are strangers and not the members of the family qua the female.”

This case involved another interesting question relating to registration of documents which will be discussed in the subsequent post.

Concluding Remarks

Civil Litigation is a complex field and the litigants as also the advocates, sometimes, take things for granted while dealing with the civil suits. Family arrangements or settlements are important tools that could help the parties settle their decades long disputes and bring peace. In this case, the Court traced the jurisprudence behind family settlements and used the same to understand whether the parties in the present case are related or not. In the next post, we shall discuss about the remaining aspects of this case.

Modification in a Consent Decree by the Court

suyashverma@hotmail.com (Suyash Verma) — Tue, 23 Feb 2021 17:30:36 +0000

Consent Decree

A Compromise between the parties to a litigation is generally recorded under O.23 R.3 of the Code of Civil Procedure, 1908 that states as under: -

“3. Compromise of suit— Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties or where the defendant satisfied the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise satisfaction to be recorded, and shall pass a decree is accordance therewith so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit:

Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but not adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.

Explanation—An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule;”

Further, in the case of Ruby Sales and Services (P) Ltd. v. State of Maharashtra, (1994) 1 SCC 531, it was observed that: -

“Merely because an agreement is put in the shape of a consent decree it does not change the contents of the document. It remains an agreement and it is subject to all rights and liabilities which any agreement may suffer. Having a stamp of court affixed will not change the nature of the document. A compromise decree does not stand on a higher footing than the agreement which preceded it. A consent decree is a mere creature of the agreement on which it is founded and is liable to be set aside on any of the grounds which will invalidate the agreement.”

Observations by the Court

According to the Court, the Consent Decrees are intended to create estoppels by judgment against the parties, thereby putting an end to further litigation between the parties. Therefore, normally, the Courts are hesitant to unilaterally interfere in, modify, substitute or modulate the terms of a consent decree, unless it is done with the revised consent of all the parties thereto.

However, the Court further observed that this is not an absolute rule and cited the case of Byram Pestonji Gariwala v. Union Bank of India & Ors., (1992) 1 SCC 31, wherein it was held that “a consent decree would not serve as an estoppel, where the compromise was vitiated by fraud, misrepresentation, or mistake. Further, this Court in the exercise of its inherent powers may also unilaterally rectify a consent decree suffering from clerical or arithmetical errors, so as to make it conform with the terms of the compromise.”

Held by the Court

Upon considering the above-stated position of law, the Court held that though it would be cautious in exercising its inherent powers to interfere in a Consent Decree, yet in the present case, upon perusing the entire record, the Court was of the view that there are errors and inconsistencies in the Consent Decree that are apparent on the face of the record. Hence, the Court found this case a fit one to exercise the inherent jurisdiction to correct the terms of the consent decree, to bring it in conformity with the intended compromise and directed the parties to comply with the Consent Decree.

Concluding Remarks

In the instant case, the Court explained its power to rectify a Consent Decree in order make it conform with the terms of the Compromise. Though it is true that no modification in a Consent Decree should be made without revised consent of all the concerned parties, yet in situations, where there is a deadlock that has arisen due to an error apparent on the face of the record in the Consent Decree, the Court can very well modify the terms of the Consent Decree to do complete justice. Civil litigations usually take decades to reach to an end point and a Consent Decree in such cases is a valuable tool to preserve the precious judicial time of this country. Mere clerical or arithmetical errors should never come in the way of dispute resolution and the Courts should keep an open mind to correct such errors.

Condition to Pre-Deposit Money to Prefer an Appeal and its Validity

suyashverma@hotmail.com (Suyash Verma) — Mon, 22 Feb 2021 16:06:46 +0000

Important Legal Provision

Section 21 of the Recovery of Debts and Bankruptcy Act, 1993 – “Deposit of amount of debt due, on filing appeal - Where an appeal is preferred by any person from whom the amount of debt is due to a bank or a financial institution or a consortium of banks or financial institutions, such appeal shall not be entertained by the Appellate Tribunal unless such person has deposited with the Appellate Tribunal fifty per cent of the amount of debt so due from him as determined by the Tribunal under section 19:

Provided that the Appellate Tribunal may, for reasons to be recorded in writing, reduce the amount to be deposited by such amount which shall not be less than twenty-five per cent. of the amount of such debt so due to be deposited under this section.”

Observations by the Court

According to the Court, S. 21 “employs the phrase “appeal shall not be entertained” indicates that it injuncts the Appellate Tribunal from entertaining an appeal by a person from whom the amount of debt is due to the Bank, unless such person has deposited with the Appellate Tribunal, fifty percent of the amount of debt so due from him as determined by the Tribunal under Section 19 of the Act. The proviso to the said Section, however, grants the discretion to the Appellate Tribunal to reduce the amount to be deposited, for reasons to be recorded in writing, but such reduction shall not be less than twenty-five per cent of the amount of such debt which is due. Hence”

Therefore, considering the above, the Court opined that “the High Court does not have the power to waive the pre-deposit in its entirety, nor can it exercise discretion which is against the mandatory requirement of the statutory provision as contained in Section 21.” Thus, any waiver of pre-deposit to the entire extent by the High Court would be against the statutory provisions and, therefore, not sustainable in law.

Held by the Court

In order to further explain S. 21, the Court considered an analogous provision contained in Section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 relating to pre-deposit in order to avail the remedy of appeal and considered its interpretation in the case of Narayan Chandra Ghosh v. UCO Bank, (2011) 4 SCC 548. The summation of reasoning is provided as under: -

1. There is an absolute bar to entertainment of an appeal unless the condition precedent i.e., the condition of pre-deposit, as stipulated, is fulfilled. The language of the provision is clear and admits of no ambiguity.

2. “It is well-settled that when a Statute confers a right of appeal, while granting the right, the Legislature can impose conditions for the exercise of such right, so long as the conditions are not so onerous as to amount to unreasonable restrictions, rendering the right almost illusory.”

3. No court, much less the Appellate Tribunal, a creature of the Statute itself, can refuse to give full effect to the legal provisions.

4. A total waiver would be against the statutory provisions.

Concluding Remarks

This is another case by the Supreme Court wherein it had to conduct an interpretative exercise to understand the true purport of a legal provision. Condition of pre-deposit is something that may act as a technical barrier against the right of appeal of a litigant if the bar of deposit is too high. However, DRT and DRAT are tribunals that deal exclusively with financial and banking disputes wherein money is of prime importance. It is equally true that unscrupulous parties try to take advantage of the legal proceedings to shy away from paying the banks their lawful dues. Thus, a holistic view would suggest that as long as the condition of pre-deposit is onerous, it is to be sustained by the Courts.

Though I concur with the reasoning of the Court, yet the legislature must consider bringing about a change in S. 21 of the Recovery of Debts and Bankruptcy Act, 1993 and further reduce the bar in relation to pre-deposit. Due to Covid-19, many people are suffering immense financial hardships and the legislature must be cognizant of this fact. The financial power of people in general has diminished considerably and in such a scenario, the pre-condition of deposit of 50% of the amount due or even 25% is something that may be excessive for a person on the verge of bankruptcy. For the time being, it would be appropriate if the legislature can reduce this bar to 10% or even lesser.

Refund of Court Fees - Latest Case Law

suyashverma@hotmail.com (Suyash Verma) — Sat, 20 Feb 2021 18:21:56 +0000

Important Legal Provisions

Section 69-A of the Tamil Nadu Court Fees and Suit Valuation Act, 1955

“69-A. Refund on settlement of disputes under section 89 of Code of Civil Procedure.—Where the Court refers the parties to the suit to any of the modes of settlement of dispute referred to in section 89 of the Code of Civil Procedure, 1908 (Central Act V of 1908), the fee paid shall be refunded upon such reference. Such refund need not await for settlement of the dispute.”

Section 89 of the Code of Civil Procedure, 1908

“89. Settlement of disputes outside the Court.—(1) Where it appears to the Court that there exist elements of a settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the Court may reformulate the terms of a possible settlement and refer the same for:—

(a) arbitration;

(b) conciliation;

(c) judicial settlement including settlement through Lok Adalat : or

(d) mediation.

…..”

According to the Court, S. 89 of CPC “must be understood in the backdrop of the longstanding proliferation of litigation in the civil courts, which has placed undue burden on the judicial system, forcing speedy justice to become a casualty.” Similar is the purport of S.69A of the Tamil Nadu Court Fees Act that further encourages settlements by providing for refund of court fee.

Important Case Laws

Directorate of Enforcement v. Deepak Mahajan, (1994) 3 SCC 440 - “24…Though the function of the Courts is only to expound the law and not to legislate, nonetheless the legislature cannot be asked to sit to resolve the difficulties in the implementation of its intention and the spirit of the law. In such circumstances, it is the duty of the court to mould or creatively interpret the legislation by liberally interpreting the statute.”

Shailesh Dhairyawan v. Mohan Balkrishna Lulla, (2016) 3 SCC 619 - “33.…Though the literal rule of interpretation, till some time ago, was treated as the “golden rule”, it is now the doctrine of purposive interpretation which is predominant, particularly in those cases where literal interpretation may not serve the purpose or may lead to absurdity. If it brings about an end which is at variance with the purpose of statute, that cannot be countenanced.”

Considering the above, the Court was of the view that it may, “in order to avoid any difficulty or injustice resulting from inadvertent ambiguity in the language of a statute, mould the interpretation of the same so as to achieve the true purpose of the enactment. This may include expanding the scope of the relevant provisions to cover situations which are not strictly encapsulated in the language used therein.”

Important Observations by the Court

According to the Court, such an interpretation denying the party that is taking the lead in settling a dispute amicably and expeditiously, leads to an absurd and unjust outcome and a literal or technical or strict interpretation, in this background, would only lead to injustice and render the purpose of the provisions nugatory.

The Court also cited judgments by various high courts that have also taken the view that the provisions relating to refund of Court Fees in various state legislations read with S.89 of CPC encourages speedy resolution of disputes and keeping in view the huge pendency of cases, there is a need to adopt purposive and progressive interpretation of such legal provisions.

It was further observed by the Court that refund of Court Fees on account of settlement, whether it is through any of the modes including understanding arrived at privately by the parties having stamp of approval by the Court, is a sort of incentive to the party who has approached the Court to resolve the dispute amicably and obtain a full refund. The modes of settlement provided in S.89 of CPC are not exhaustive and such settlements can be done through myriad methods and would include the settlements that have taken place out of the Court.

It was also the view of the Court that Court Fees Acts are taxing statutes that are be construed strictly and benefit of any ambiguity in any provision has to go in favour of the parties and not to the states. Provisions like Section 69A are like reward to the parties who wish to withdraw their litigations in favour of more conciliatory dispute settlement mechanisms, saving the time of the Court. In such cases, though the Registry/State Government loses one-time court fee in the short term, but they are saved the expense and opportunity cost of managing an endless cycle of litigation in the long term.

Thus, the Court concluded by holding that S.89 of CPC and S.69A of the Court Fees Act are to be interpreted liberally and constructed purposively extending their mandate to “all methods of out-of-court dispute settlement between parties that the Court subsequently finds to have been legally arrived at.”The Respondent was held to be entitled for refund of Court Fee.

Concluding Remarks

The interpretative exercise conducted by the Supreme Court is in line with the need of the hour that is speedy disposal and resolution of the disputes. The State and the Courts end up expending more money on the litigations than the entire worth and value of those litigations. Such situations must be avoided at all costs as it is nothing but a wasteful expenditure. Encouraging parties to go for out of court settlement is a nice strategy and incentivizing the same in the form of refund of Court Fee would go a long in reducing the pendency of cases in the Indian Courts.

Freezing of Bank Accounts under Prevention of Money Laundering Act

suyashverma@hotmail.com (Suyash Verma) — Fri, 19 Feb 2021 16:26:01 +0000

In the present case, the Appellant had approached the Court alleging that since its bank accounts are frozen illegally by the Respondents, it is not able to clear the statutory dues that it otherwise would have cleared. In response, the Enforcement Directorate (ED) did concede that while freezing the bank accounts, it did not comply with the mandate of Section 17 of PMLA. According to the ED, the apparent purpose to freeze the bank accounts is to stop the further layering/division of proceeds of crime and to safeguard the proceeds of crime.

Section 17 of PMLA and Section 102 of CrPC

The Court explained Section 17 of PMLA as under: -

“Under Section 17 of the PMLA, the pre-requisite is that any authorized officer should on the basis of information in his possession to be recorded to in writing, have reason to believe that such person has committed acts relating to money laundering and there is need to seize any record or property found in the search. Such officer also has the power to freeze such record or property if it is not possible to seize the same. After issuance of the Freezing Order, the authorized officer shall forward a copy of the reasons along with the materials in possession to the Adjudicating Authority. The Officer who had seized or frozen any record or property shall have to file an application requesting for retention of such record/property before the Adjudicating Authority. This procedure also has to be filed in case of a Bank Account. In the present case, this procedure was not followed and hence, the freezing or the continuation thereof is without due compliance of the legal requirements and unsustainable.”

The procedure relating to search and seizure under Section 102 of the Code of Criminal Procedure, 1973, was also differentiated by the Court and it was observed that the scheme of the PMLA is entirely different and when the power is available under a special enactment (PMLA), the question of resorting to the power under the general law does not arise.

Thereafter the Court considered the question relating to Section 102 of CrPC that provides certain powers to the investigating agencies. The Court cited the case of Mohinder Singh Gill & Another vs. The Chief Election Commissioner, New Delhi & Ors., (1978) 1 SCC 405, that provides that: -

“8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji:

(1) Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.

Orders are not like old wine becoming better as they grow older:”

The Court also observed that the arguments relating to Section 102 of CrPC has been taken at a belated stage that cannot be accepted now.

Interpretative Process

While explaining Section 17 of PMLA and Section 102 of CrPC, the Court also conducted an interpretative exercise and cited the case of Chandra Kishor Jha vs. Mahavir Prasad and Ors. (1999) 8 SCC 266, wherein it was held that: -

“It is a well settled salutary principle that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner.”

The Court opined that if the above-stated salutary principle is to be taken recourse to, then it would mean that though the Authorized Officer under Section 17 of PMLA is vested with sufficient powers, yet such power is also circumscribed by the very same provision and the statute. Any other manner of exercise of power except as contemplated under PMLA would mean that due process of law has not been complied with, before and after freezing the bank accounts.

Concluding Remarks

The Court finally directed the Respondents (ED etc.) to defreeze the bank accounts and honour the payments advised by the Appellants towards the statutory dues.

I find this to be a welcome judgment and the reasoning adopted by the Courts seems to be in consonance with its earlier decision wherein the procedure prescribed under a special statute has been given due regard. The officers of many investigative agencies have become like bloodhounds and sometimes, in the name of implicating a person or a body, some officials go too far and act in utter disregard of the procedural formalities. Freezing bank accounts is a serious affair for any business entity and it is akin to cutting the financial bloodline of any such entity. Such measures should not be taken as a matter of routine recourse but should be taken only after compliance of all the procedural formalities as contemplated in the parent statute are done.

Time Limit for Arbitral Award and Appointment of Arbitrator in India

suyashverma@hotmail.com (Suyash Verma) — Sun, 7 Feb 2021 14:08:55 +0000

Time Limit for Arbitral Award

Before adverting any further, let us peruse the relevant excerpts of Section 29A of the Arbitration and Conciliation Act, 1996.

“29A. Time limit for arbitral award.—(1) The award shall be made within a period of twelve months from the date the arbitral tribunal enters upon the reference.

Explanation.— For the purpose of this sub-section, an arbitral tribunal shall be deemed to have entered upon the reference on the date on which the arbitrator or all the arbitrators, as the case may be, have received notice, in writing, of their appointment.

….

(4) If the award is not made within the period specified in subsection (1) or the extended period specified under sub-section (3), the mandate of the arbitrator(s) shall terminate unless the Court has, either prior to or after the expiry of the period so specified, extended the period:

Provided that while extending the period under this sub-section, if the Court finds that the proceedings have been delayed for the reasons attributable to the arbitral tribunal, then, it may order reduction of fees of arbitrator(s) by not exceeding five per cent for each month of such delay.

….

(6) While extending the period referred to in sub-section (4), it shall be open to the Court to substitute one or all of the arbitrators and if one or all of the arbitrators are substituted, the arbitral proceedings shall continue from the stage already reached and on the basis of the evidence and material already on record, and the arbitrator(s) appointed under this section shall be deemed to have received the said evidence and material.”

This provision provides that an Arbitral Award has to be made within a period of 12 months from the date of reference and if the same is not done so by the Arbitrator, his mandate shall terminate. The Court has the power to extend the mandate of the Arbitrator and even substitute the Arbitrators if it so thinks fit.

The Court perused the relevant portions of Section 29A of the Arbitration and Conciliation Act, 1996, more specifically, Section 29A (6) that has been mentioned here and appointed a former Supreme Court Judge as the substitute arbitrator, who would conduct the proceedings in continuation from the stage arrived at and pass the Award within a period of 6 months. Further, the Arbitrator may direct the parties to address final arguments and take him through the entire record of the case.

Appointment of Impartial Arbitrator

Apart from it, the Court also scrutinized the constitution of the existing Arbitral Tribunal that had a Nominee Arbitrator who had worked for one of the parties to the instant case. The Court observed that such appointment of the said Nominee Arbitrator would be invalid under Section 12(5) of the Arbitration and Conciliation Act, 1996 read with the Seventh Schedule. The relevant portion is as follows: -

“Section 12 (5) - Notwithstanding any prior agreement to the contrary, any person whose relationship, with the parties or counsel or the subject-matter of the dispute, falls under any of the categories specified in the Seventh Schedule shall be ineligible to be appointed as an arbitrator:

Provided that parties may, subsequent to disputes having arisen between them, waive the applicability of this sub-section by an express agreement in writing.”

“Item 5 of the Seventh Schedule of the Act – Arbitrator’s relationship with the parties or counsel

5. The arbitrator is a manager, director or part of the management, or has a similar controlling influence, in an affiliate of one of the parties if the affiliate is directly involved in the matters in dispute in the arbitration.”

Section 12 (5) read with item 5 of 7th Schedule of the Act of 1996 provide that any person who is an employee of the parties or their counsel is ineligible to be appointed as an arbitrator.

The Court further observed that Section 12(5) read with the Seventh Schedule is a mandatory and non-derogable provision of the Act. Hence, the Nominee Arbitrator who was in the employment of one of the parties would be ineligible to be appointed as an Arbitrator, since he would have a controlling influence on the said party/Appellant being a nodal agency of the State.

The Court concluded with a cautious note that “the appointment of the Sole Arbitrator is subject to the declarations being made under Section 12 of the Arbitration and Conciliation Act, 1996 with respect to independence and impartiality, and the ability to devote sufficient time to complete the arbitration within the period of 6 months.”

Concluding Remarks

It is a welcome judgment and appointment of Arbitrators who are directly associated with the parties or work under them is an issue that is quite often faced in Indian Arbitrations, even more so in cases where one of the parties to Arbitration is the State. The Arbitration Clause in such cases is couched in such a language that at the time of entering into the Arbitration Agreement, the parties ignore the implications that may arise with respect to appointment of a partial Arbitrator and the State being the State always has a dominating hand in awarding of the Contracts. Many times, the Contractor, simply to appease the officials of the State, ignore such Arbitration Clauses and later on, end up in trouble with no fair dispute resolution for them. I am surprised that despite the efforts of the legislature to curb such menace and despite existence of an explicit provision to this effect, such problems are still heard. I hope that this Judgment would serve as a beacon of guiding light to all such people involved in Arbitrations.

Permissible Style of Writing Names for an Advocate in India

suyashverma@hotmail.com (Suyash Verma) — Sun, 31 Jan 2021 13:30:28 +0000

Important Legal Provisions

Order IV Supreme Court Rules, 2013 – Advocates

Rule 13(1) – An advocate-on-record or a firm of advocates may employ one or more clerks to attend the registry for presenting or receiving any papers on behalf of the said advocate or firm of advocates…

Rule 22 – Two or more advocates on record may enter into a partnership with each other, and any partner may act in the name of the partnership provided that the partnership is registered with the Registrar…..

Rule 23 – Two or more advocates not being senior advocates or advocates on record, may enter into partnership and subject to the provision contained in rule 1(b), any one of them may appear in any cause or matter before the Court in the name of the partnership.

Rule 1(b) – No advocate other than the Advocate-on-Record for a party shall appear, plead and address the Court in a matter unless he is instructed by the Advocate-on-Record or permitted by the Court.

Reasoning by the Court

It was observed by the Court that: -

1. The Supreme Court of India on being established under Article 124 of the Constitution of India framed its Rules in exercise of powers conferred by Article 145 of the Constitution. Such Rules owe their history to the Federal Court Act, 1941 and the Government of India Act.

2. If the partnership firm can be registered and operated, it may also be permitted to do as a Sole Proprietor. However, if different styles of writing names are to be permitted for Advocates on Record, that can only by an exercise to amend the Rules since legal profession is not a business but a profession.

3. The expression “Law Chambers” has a history from England and also in India because we borrowed a considerable jurisprudence from England where it is a reference to a particular lawyer in whose chambers people may be working and carrying on the legal practice. Effectively this style only records the practice of the chamber which is a sole proprietorship.

Held

Upon cumulative consideration of the facts, the Court held that that writing “Law Chambers of Siddharth Murarka, Sole Proprietor Siddharth Rajkumar Murarka, Advocate on Record, Supreme Court of India AOR NO. 2151, M: 9324175774/1” is permissible style of putting on the letter head and in the Vakalatnama.

Concluding Remarks

The issue involved in the present case is a problem that is faced quite often by the Advocates. In Indian context, it would not be out of place to say that the functioning of a law office/chamber is such that most of the work is being done in the name of one person only to whom that chamber, or office belongs. The juniors or the associates working in a law office/chamber often face difficulty before the Registry, the Clients and sometimes the Courts, in explaining their footing and identity. The practice of writing the name of the Law Chambers would strengthen the role of juniors and associates who in fact are the backbone of any law office/chamber. The Hon’ble Supreme Court in this case empathetically considered the plight of the Petitioner, who is also an advocate, and showed a large heart by permitting him to do something as a matter of right rather than denying the same to him on the ground of procedural technicalities.

Supreme Court of India on the Probation of Offenders Act

suyashverma@hotmail.com (Suyash Verma) — Sun, 31 Jan 2021 13:13:55 +0000

Facts in Brief

The Appellants were youngsters (19-20 years of age) at the time of commission of offence under Section 397 (Robbery, or dacoity, with attempt to cause death or grievous hurt) of the Indian Penal Code, 1860 (in short, “IPC”). They were convicted under the said provisions and sentenced to undergo Rigorous Imprisonment of 7 years each.

Section 397 of IPC reads as under: -

“If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.”

Thus, the minimum sentence prescribed under Section 397 is 7 years. Before the Hon’ble Supreme Court of India, it was contended by the Appellants that they should be given the benefit of Probation of Offenders Act as they have already served close to half of their respective sentences.

Scheme of Probation of Offenders Act and Observations by the Court

The Court inaugurated its reasoning by discussing According to the Statement of Objects and Reasons of the said Act, it is an Act to give the benefit of release of offenders on probation of good conduct instead of sentencing them to imprisonment. Thus, the emphasis is on reformation and rehabilitation of offenders as useful members of the society without subjecting them to the deleterious and negative effects of a jail life.

Further, the Court took recourse to the case of Ramji Missar v. State of Bihar, AIR 1963 SC 1088, wherein it was held that Section 6 of the Act of 1958 provides a restriction on imprisonment of offenders who were under twenty-one (21) years of age on the date of sentencing and not on the date of commission of offence. If the Court thinks otherwise and thinks that there is a need to imprison such persons, it shall have to call for a Report from the Probation Officer. According to the Court, since at the time of sentencing, the offenders in the present case had crossed the age of 21 years, therefore, it will not be possible to give them the benefit of Section 6.

Thereafter the Court perused Section 4 of the Probation of Offenders Act that provides for power of the Court to release certain offenders on probation of good conduct. Section 4 (1) of the Act of 1958 reads as under: -

“When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour:

Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.”

Hence, where the Court after considering the totality of circumstances of a case thinks that an offender should be released on probation of conduct, then it may do so by imposing the above-stated conditions.

The Court also discussed the case of Ishar Das v. State of Punjab, (1973) 2 SCC 65, wherein it was observed that the non-obstante clause in Section 4 reflects the legislative intention to have an overriding effect over other provisions of law and Probation of Offenders Act being a beneficial legislation should be so construed. The case of CCE v. Bahubali, (1979) 2 SCC 279, was also discussed wherein it was opined that the Probation of Offenders Act may not apply to cases wherein any special legislation has a non-obstante clause and provides for a mandatory minimum sentence.

Held

Upon perusing the discussed case-laws and legal provisions, the Court came to the conclusion that the offenders have been convicted under the Indian Penal Code, 1860, which is not a special legislation and though minimum sentence is prescribed under Section 397 of IPC, yet the totality of facts and circumstances of the present has to be considered such as: -

1. The offenders were 19-20 years of age at the time of commission of offence.

2. The offenders have already served around half of their sentences i.e., around 3.5 years.

3. The victim in the present case appears to have forgiven the offenders.

4. There is no adverse report against the offenders about their conduct in the jail.

Therefore, the Court was of the view that the present case is a fit case wherein the benefit of probation can be extended to the Appellants/Offenders in light of Section 4 and relevant judicial pronouncements. Hence, the Appellants were released with an undertaking that they shall maintain peace and good behaviour for the remaining part of their sentence.

Concluding Remarks

I concur with the reasoning of this judgment as the legislative intent of Section 6 makes it clear that its benefit could be extended where the offenders are less than 21 years of age at the time of sentencing and not at the time of commission of offence. Yet the Court exercised its discretion and beneficially interpreted Section 4 of the Probation of Offenders Act and considering the facts and circumstances, gave its benefit to the Appellants/Offenders. The purpose of criminal justice system is to reform the offenders and not adopt a retributive approach wherein simply for the sake of sentencing, offenders are sentenced harshly.

Supreme Court of India on Consensual Affairs and Kidnapping

suyashverma@hotmail.com (Suyash Verma) — Fri, 22 Jan 2021 11:03:09 +0000

The Prosecution attempted to establish that the Accused had repeatedly raped the Prosecutrix and was forcibly taken away to perform marriage with the Accused.

The defence of the Accused was that both the Accused and the Prosecutrix were allegedly in love and had consensual physical relations since long before the date of the incident. It was further contended that the Prosecutrix ran away on her own without any enticement being on the side of the Accused. Thus, no charges relating to kidnapping and rape are made out in such cases of love affairs.

The Trial Court convicted the Accused under all the afore-stated provisions of law whereas during the Appellate Stage, the High Court observed that since the factum of love affair has been established beyond any doubt, the Appellant was not held guilty of Rape under S. 375 of IPC; however, since the Prosecutrix being a minor was taken away from her parents’ lawful custody, the Appellant’s conviction under S. 363 and 366 was sustained.

The important questions before the Hon’ble Supreme Court of India were that: -

“Whether a consensual affair can be a defence against the charge of kidnapping a minor?

Whether the punishment awarded is just, and ought there be leniency given the unique circumstances?”

Important Legal Provisions

Section 361 of the IPC – Kidnapping from lawful guardianship.—Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.

Explanation.—The words “lawful guardian” in this section include any person lawfully entrusted with the care or custody of such minor or other person.

Section 366 of the IPC - Kidnapping, abducting or inducing woman to compel her marriage, etc.—Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid.

Whether a consensual affair can be a defence against the charge of kidnapping a minor?

According to the Court, under S.361 of IPC, it is necessary that there be an act of enticing or taking, in addition to establishing the child’s minority (16- Boys, 18 – Girls) and care of a lawful guardian. However, mere recovery of a missing minor from the custody of a stranger would not ipso facto establish the offence of kidnapping and it also needs to be proved that such incident of removal was committed by or at the instigation of the accused.

The Court also discussed the case of Varadarajan v. State of Madras, (1965) 1 SCR 243, wherein it was held that the following needs to be established to acquit an accused under S.366 of IPC: -

1. Knowledge and capacity with the minor of her actions.

2. Voluntary abandonment on part of the minor.

3. Lack of inducement by the accused.

In the present case, the Court observed that there is ample evidence to suggest that the Appellant/Accused had drawn the Prosecutrix out of the custody of her parents. Further, the material available on record suggests that the minor had not thought her actions through fully. Hence, the conviction of the accused S. 366 of IPC was sustained.

Whether the punishment awarded is just, and ought there be leniency given the unique circumstances?

The Court considered the following factors in relation to the punishment awarded to the accused: -

1. The Court considered the case of State of Madhya Pradesh v. Surendra Singh, (2015) 1 SCC 222, and observed that there cannot be any mechanical reduction of sentences unless all relevant factors have been weighed. There was no force used in the present case.

2. Accused himself was young, around 18-19 years, at the time of commission of crime. Such actions ought to be treated with hope for reform, and not punitively.

3. The Trial has been protracted and delayed at different levels, and more than 22 years elapsed before the matter came up for hearing before the Supreme Court. Both the accused and the victim have their respective families now and no purpose would be served by relegating the accused back to jail now.

4. The present crime was one of passion and the accused had no criminal antecedents. Therefore, the possibility of recidivism is quite low now.

5. There is no grotesque misuse of power, wealth or status in the present case. The Prosecutrix and the accused lived in the same vicinity and were socially at par. The present offence is mala prohibita and not mala in se.

Thus, the Court was of the view that though the conviction under S. 363 and 366 is sustained yet a more equitable sentence ought to be awarded to the accused. The sentence of five years’ rigorous imprisonment awarded to the accused was found to be disproportionate and it was reduced to the period of sentence already undergone by him.

Concluding Remarks

I find it to be a well-reasoned judgment as the Court after looking into the conspectus of facts interpreted S. 361 of IPC in a way that is required in criminal jurisprudence. If a provision of law provides for a definition that convicts a person no matter how much sympathy is evoked, then it is best to subscribe to the plain meaning of the legal provision only. But sentencing is something that definitely required a revisit in the present case and the Court succinctly laid down strong grounds to reduce the quantum of punishment awarded to the accused.

Is Filing of Second FIR based on the same Cause of Action Permissible in India?

suyashverma@hotmail.com (Suyash Verma) — Wed, 20 Jan 2021 20:13:42 +0000

In the celebrated case of Lalita Kumari v. Govt. of U.P., (2014) 2 SCC 1, following important points were explained: -

1. The First Information Report is in fact the “information” that is received first in point of time, which is either given in writing or is reduced to writing. It is not to be confused with the Case Diary wherein the “substance” of the FIR (First Information Report) and other related documentations, is to be entered in a diary maintained by the Police under Section 44 of the Police Act, 1861 or Section 172 of CrPC or under any other local provision.

2. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

3. Every information received relating to commission of a non-cognizable offence also has to be registered under Section 155 of the Code of Criminal Procedure, 1973.

Before adverting any further, let us peruse Section 300 of the Code of Criminal Procedure, 1973, provides as follows: -

“300. Person once convicted or acquitted not to be tried for same offence.—(1) A person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of Section 221, or for which he might have been convicted under sub-section (2) thereof.”

Important Case Laws

Amitbhai Anilchandra Shah v. CBI, (2013) 6 SCC 348 – In this case, it was observed that “if an offence forming part of the second FIR arises as a consequence of the offence alleged in the first FIR then offences covered by both the FIRs are the same and, accordingly, the second FIR will be impermissible in law. In other words, the offences covered in both the FIRs shall have to be treated as a part of the first FIR.” Thus, the charge-sheet in pursuance of the second FIR may be treated as a supplementary charge-sheet in the first FIR.

Arnab Ranjan Goswami v. Union of India and Others, 2020 SCC OnLine 462 – It was held that successive FIRs/complaints founded on the same cause of action are not maintainable since the investigation covers within its ambit not just the alleged cognisable offence, but also any other connected offences that may be found to have been committed. It was further held that “subjecting an individual to numerous proceedings arising in different jurisdictions on the basis of the same cause of action cannot be accepted as the least restrictive and effective method of achieving the legitimate state aim in prosecuting crime.”

Prem Chand Singh v. State of Uttar Pradesh & Another, (2020) 3 SCC 54 – In case of an acquittal or conviction in the earlier FIR, Section 300 of the Code of Criminal Procedure, 1973, would come into play and any subsequent prosecution, if the substratum of the two FIRs is common, would be unsustainable.

Babubhai v. State of Gujarat, (2010) 12 SCC 254 – The general rule is that with respect to same cause of action or same facts, subsequent/successive/second FIR is impermissible; however in cases, where “there are rival versions in respect of the same episode, the investigating agency would take the same on two different FIRs and investigation can be carried under both of them by the same investigating agency and thus, filing an FIR pertaining to a counterclaim in respect of the same incident having a different version of events, is permissible.”

Suresh v. Mahadevappa Shivappa Danannava & Another, (2005) 3 SCC 670 – Delay or laches in filing of the second FIR is also a relevant factor to be considered. Undue delay or laches makes the second FIR unsustainable.

Surender Kaushik v. State of U.P., (2013) 5 SCC 148 – Where there is a counter-FIR or there are rival versions in respect of the same incident that may take different shapes, lodgement of two FIRs is permissible.

P. Sreekumar v. State of Kerala, (2018) 4 SCC 579 – When the Second FIR relates to the same incident for which the first FIR was filed but if the second FIR is in the nature of a counter-complaint, then the same is legally maintainable and could be entertained for being tried on its merits.

Varshaben Kantilal Purani v. State of Gujarat, (2019) 11 SCC 774 – “Second FIR/subsequent FIR is permissible where the conspiracy discovered later is found to cover a much larger canvas with broader ramifications and it cannot be equated with the earlier conspiracy which covered a smaller field of narrower dimensions.”

Concluding Remarks

Thus, we see that there is no straitjacket formula that has been devised by our Courts with respect to filing of a Second FIR or Complaint. As and when, such matters come up, the same have to be judged on their own merits. The view of the Courts is clear that even if the second FIR is in relation to the same incident but if it unfolds a larger conspiracy or brings out additional versions of the story, then the same is permissible.

To curb misuse of FIRs, the Courts have also adopted a cautious view that second FIRs should be permitted to withstand only when the above-stated criteria are satisfied else not since life and liberty of individuals is directly involved.

Supreme Court of India on Arbitrability of Fraud

suyashverma@hotmail.com (Suyash Verma) — Sat, 16 Jan 2021 15:40:04 +0000

Validity of an Unstamped Arbitration Agreement

There are many agreements wherein the Stamp Act of a particular state requires payment of stamp duty. The Court discussed the jurisprudence behind an Arbitration Agreement and analysed the various judicial precedents in this regard. After doing so, the Court held that: -

a. The Court held that “an arbitration agreement is distinct and independent from the underlying substantive commercial contract. Once the arbitration agreement is held to have an independent existence, it can be acted upon, irrespective of the alleged invalidity of the commercial contract.”

b. It was further held that in cases of Applications under S.8 (Power of the Court to refer the parties to Arbitration), S. 9 (grant of interim relief before or during the Arbitral Proceedings) and S.11 (Appointment of Arbitrator), of the Arbitration & Conciliation Act, 1996, the Court can proceed with the Applications to safeguard the subject-matter of the arbitration; however, then the substantive/original contract would have to be impounded and the concerned party is to be directed for payment of the requisite stamp duty in accordance with the relevant local laws. The bottom-line is that deficiency in payment of stamp duty is a curable defect and a chance ought to be provided to the concerned party to cure such defect. The assessment of the stamp duty is generally made by the Collector under the local laws and as such, the findings relating to same could be challenged in separate proceedings as per law.

c. In case where the Arbitrator has already been appointed consensually, the Arbitrator would be obligated to impound the contract/instrument and direct the concerned party to pay the requisite stamp duty.

d. SMS Tea Estates Pvt. Ltd. v. Chandmari Tea Co. Pvt. Ltd., (2011) 14 SCC 66, was overruled and the findings of Garware Wall Ropes Limited v. Coastal Marine Constructions and Engineering Limited, (2019) 9 SCC 209, as also, Vidya Drolia v. Durga Trading Corporation, C.A. No. 2402/2019, were found to be erroneous in relation to existence of an Arbitration Agreement.

Is ‘Fraud’ an Arbitrable Dispute?

The Court discussed various case laws and made a distinction between cases where there are allegations of serious fraud and fraud simplicitor. It held that mere allegations of fraud simplicitor are not a sufficient ground to decline reference to arbitration and there is no express bar in the Arbitration Act with respect to arbitrability of disputes involving allegations of fraud. Therefore, discarding the archaic view that fraud is non-arbitrable and holding it to be obsolete, the Court observed that the civil aspect of fraud can be adjudicated by an arbitral tribunal; “however, the criminal aspect of fraud, forgery, or fabrication, which would be visited with penal consequences and criminal sanctions can be adjudicated only by a court of law, since it may result in a conviction, which is in the realm of public law.”

Maintainability of Writ Petitions under Articles 226 and 227 of Constitution of India in relation to Section 8 of the Arbitration Act

The Court cited Section 37 (1) (a) of the Arbitration Act and Section 13(1A) of the Commercial Courts Act, 2015, which read as under: -

“Section 37 of the Arbitration Act

Appealable orders.— (1) An appeal shall lie from the following orders (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order, namely:—

(a) Refusing to refer the parties to arbitration under section 8; …”

“Section 13 (1A) of the Commercial Courts Act

13. Appeals from decrees of Commercial Courts and Commercial Divisions.-(1) Any person aggrieved by the judgment or order of a Commercial Court below the level of a District Judge may appeal to the Commercial Appellate Court within a period of 60 days from the date of judgment or order.

(1A) Any person aggrieved by the judgment or order of a Commercial Court at the level of District Judge exercising original civil jurisdiction or, as the case may be, Commercial Division of a High Court may appeal to the Commercial Appellate Division of that High Court within a period of sixty days from the date of the judgment or order:

Provided that an appeal shall lie from such orders passed by a Commercial Division or a Commercial Court that are specifically enumerated under Order XLIII of the Code of Civil Procedure, 1908 (5 of 1908) as amended by this Act and Section 37 of the Arbitration and Conciliation Act, 1996 (26 of 1996).”

Thus, the Court held that where is there is availability of a statutory remedy, the Writ Petitions under Articles 226 and 227 would be non-maintainable and liable to set aside.

Concluding Remarks

Though I have summarized the findings of the Court in this case, yet the Court drew a lengthy judgment and made painstaking efforts to explain the entire jurisprudence behind the existence of arbitration act and arbitrability of dispute. I find it to be a path-breaking case-law that provides much needed respite to the parties who wish to get their disputes arbitrated. Fraud is a touchy issue and countless number of judicial pronouncements had only complicated the matter to understand its arbitrability. The present judgment by the Court is unequivocal in its approach and succinctly puts across the point that the disputes relating to fraud are indeed arbitrable as long as the aspects of penal consequences are not involved.

With respect to unstamped arbitration agreements too, the Court observed that deficiency in payment of stamp duty is a separate issue and must be dealt as such and as long as the deficiency in payment of stamp duty is cured by the parties within time, it would not invalidate the arbitration agreement itself.

Lastly, the unscrupulous habit of the litigants to approach the High Courts under Articles 226 and 227 would also receive a blow by way of this judgment. There is one small caveat that I wish to add. Though fraud in civil domain has been held to be arbitrable yet parties may try to cleverly bypass the same by invoking frivolous criminal proceedings to oust the arbitrability of fraud. But I guess nothing much could be done about such people except initiate proceedings for malicious prosecution. All in all, it is a ground-breaking judgment and I hope that it would encourage the arbitration scenario in India.

Supreme Court of India Stays the Implementation of Three Farm Laws

suyashverma@hotmail.com (Suyash Verma) — Thu, 14 Jan 2021 21:40:16 +0000

Important Observations by the Court

1. The petitions before the Hon’ble Supreme Court revolved around the validity of three farm laws, namely, (1) Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020; (2) Essential Commodities (Amendment) Act, 2020; and (3) Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020.

2. The Hon’ble Court observed that several rounds of negotiations have taken place between the Government of India and the Farmers’ bodies, but no solution seems to be in sight. The Hon’ble Court also observed that senior citizens, women and children are present at the site and are at a risk of catching cold and covid. Also. many people have died due to illnesses and by way of suicide. The Court further lauded the farmers that their agitation has been peaceful so far but also observed that there is also an averment supported by the Government that some organization that has been banned for anti-India secessionist movement is financing the agitation.

3. The Hon’ble Court granted stay on the implementation of the farm laws and provided inter alia the following observations in this regard: -

“8. Be that as it may, the negotiations between the farmers' bodies and the Government have not yielded any result so far. Therefore, we are of the view that the constitution of a Committee of experts in the field of agriculture to negotiate between the farmers' bodies and the Government of India may create a congenial atmosphere and improve the trust and confidence of the farmers. We are also of the view that a stay of implementation of all the three farm laws for the present, may assuage the hurt feelings of the farmers and encourage them to come to the negotiating table with confidence and good faith.

….

10. Though we appreciate the aforesaid submission of the learned Attorney General, this Court cannot be said to be completely powerless to grant stay of any executive action under a statutory enactment. Even very recently this Court passed an interim Order in Dr. Jaishri Laxmanrao Patil v. The Chief Minister (Civil Appeal No. 3123 of 2020) directing that admissions to educational institutions for the Academic Year 2020-21 and appointments to public services and posts under the Government shall be made without reference to the reservation provided under the impugned legislation.”

4. Thus, the Court thought it appropriate to order a stay on the implementation of the three farm laws until further orders and ordered a Four Member Committee to look into the grievances of the farmers and make recommendations within two months from the date of the first sitting. Further, the Court also passed an Interim Order stating that the Minimum Support Price System (MSP) shall be maintained until furthers orders and no farmer shall be dispossessed or deprived of his title as a result of any action taken under the Farm Laws.

5. Lastly, the Court concluded by stating the following: -

“15. While we may not stifle a peaceful protest, we think that this extraordinary order of stay of implementation of the farm laws will be perceived as an achievement of the purpose of such protest at least for the present and will encourage the farmers bodies to convince their members to get back to their livelihood, both in order to protect their own lives and health and in order to protect the lives and properties of others.”

Analysis and Concluding Remarks

In my humble opinion, it is a peculiar Order by the Hon’ble Supreme Court as it clearly expressed its concern about the ongoing situation in relation to the farmers’ agitation. Stay on the implementation of any law is hard to find in judicial pronouncements but be that as it may, such power vests with the Hon’ble Supreme Court. The Court also cited the case of Dr. Jaishri Laxmanrao Patil v. The Chief Minister, wherein a question has arisen with respect to providing of reservation in excess of 50% by way of Socially and Educationally Backward Classes (SEBC) Act, 2018, in Maharashtra, which is in transgression of the 50% ceiling limit fixed by the case of Indra Sawhney v. Union of India, 1992 Supp. (3) 217 and reaffirmed in the case of M. Nagaraj v. Union of India, (2006) 8 SCC 212. In the said, the Court also observed that the Indra Sawhney (supra) Judgment needs a revisit in light of the 102nd and 103rd Constitutional Amendments. Thus, expounding the principles of interim injunction, the Court opined that if it is convinced that a statute/legislation is ex facie unconstitutional and factors such as: -

1. Balance of Convenience

2. Irreparable Injury

3. Public Interest

are in favour of passing an interim Order, the Court can grant interim relief. The Court also observed that there is always a presumption in favour of constitutional validity of a legislation but there is no absolute rule to restrain interim orders being passed in terms of the above.

Hence, the observations in the Dr. Jaishri Laxmanrao Patil (supra) may give us a fair idea about the reasoning adopted by the Hon’ble Supreme Court while imposing a stay on the implementation of the three farm laws and directing that no farmer shall be dispossessed of his land under the three Farm Laws. I think that Irreparable Injury and Public Interest could have been the pre-dominant reasons in passing of such Interim Orders; however, what is interesting to note is that the Hon’ble Supreme Court did not deal with the question of unconstitutionality of the three farm laws. Let us hope that the current deadlock is resolved soon.

Supreme Court on Law of Contract and Acceptance of a Conditional Offer

suyashverma@hotmail.com (Suyash Verma) — Sun, 10 Jan 2021 06:47:47 +0000

Important Provisions of Law

In order to answer the above, the Court first discussed Section 4 and Section 7 of the Indian Contract Act, 1872. The same have been reproduced as under: -

“4. Communication when complete.—The communication of a proposal is complete when it comes to the knowledge of the person to whom it is made.

The communication of an acceptance is complete,—

as against the proposer, when it is put in a course of transmission to him, so as to be out of the power of the acceptor;

as against the acceptor, when it comes to the knowledge of the proposer.

The communication of a revocation is complete,—

as against the person who makes it, when it is put into a course of transmission to the person to whom it is made, so as to be out of the power of the person who makes it;

as against the person to whom it is made, when it comes to his knowledge.”

“7. Acceptance must be absolute.—In order to convert a proposal into a promise the acceptance must—

(1) be absolute and unqualified;

(2) be expressed in some usual and reasonable manner, unless the proposal prescribes the manner in which it is to be accepted. If the proposal prescribes a manner in which it is to be accepted, and the acceptance is not made in such manner, the proposer may, within a reasonable time after the acceptance is communicated to him, insist that his proposal shall be accepted in the prescribed manner, and not otherwise; but, if he fails to do so, he accepts the acceptance.”

Observations by the Court

Thus, the Court observed that existence of offer and acceptance of an offer must be absolute, and it must be founded on three components: -

1. Certainty

2. Commitment

3. Communication

In case, the acceptor puts in a new condition while accepting the contract that has already been signed by the offerer, the Contract will not get completed until the offerer accepts the new condition.

Important Cases Discussed

While explaining the jurisprudence behind acceptance of a contract, the Court started with the case of Raghunandhan Reddy v. The State of Hyderabad thr. The Secretary to Government Revenue Department, AIR 1963 AP 110, wherein the Court expounded in following terms: -

“8. It is a well-established principle of law that only when an offer is accepted that the contract is concluded and binds the parties. It is equally well-settled that before an offer is accepted, the offerer can withdraw his offer, but if the acceptance is conditional or is not final, then there is no concluded contract.”

In the case of Haridwar Singh v. Bagun Sumbrui and Ors., AIR 1972 SC 1242, it was observed by the Court that an acceptance with a variation is no acceptance and is simply a counter proposal that is required to be accepted in toto by the original proposer, before a contract is made.

Further, the Court cited the case of Union of India v. Bhim Sen Walaiti Ram, (1969) 3 SCC 146, wherein it was held that “acceptance of an offer may be either absolute or conditional. If the acceptance is conditional, offer can be withdrawn at any moment until absolute acceptance has taken place.”

Concluding Remarks

The Court concluded by stating that in response to an offer, where there is conditional acceptance which is not agreed upon by the offerer unconditionally, then it could not be said that there was a concluded contract. And when there is no concluded contract, there is no question of any breach of that contract.

In find it to be a welcome judgment as in the business world, there are constant negotiations going on between the parties who wish to enter into a contract. Such parties must remain cautious as until there is a concluded contract, it cannot be enforced, and no question of any breach would arise.

It also gives an important lesson that acceptance of any offer has to be unconditional and till that happens, the parties must not assume that there exists a concluded contract. Hence, with respect to the question stated at the outset of this article is answered in negative and it could be said that the acceptance of a conditional offer with a further condition does not result in a concluded contract, irrespective of whether the offerer accepts the further condition proposed by the acceptor.

Supreme Court on the Management of Covid-19 Pandemic in India

suyashverma@hotmail.com (Suyash Verma) — Wed, 6 Jan 2021 12:52:08 +0000

Directions in relation to Fire Safety

The Court also acknowledged the steps taken by the Union of India, States and Union Territories in this respect. Further, the Court holistically looked at the situation and passed certain directions in relation to ‘Fire Safety’ in Covid Hospitals that are provided as under: -

1. All States/Union Territories should appoint one nodal officer for fire safety for each Covid Hospital and a Committee is to be constituted to carry their Fire Audits at regular intervals for taking follow-up action.

2. The Covid Hospitals are to apply for obtaining NOC (No Objection Certificate) from the Fire Departments of the States after which appropriate action is to be taken against the errant Covid Hospitals.

Duties and Responsibilities of the Governments and the Administrations

1. Right to health is a fundamental right guaranteed under Article 21 of the Constitution of India and it includes right to affordable treatment. The State is to make provisions for affordable treatment and if required, there should be a cap on the fees charged by the private hospitals by exercising the powers under the Disaster Management Act, 2005.

2. “More and more police personnel shall be deployed at the places where there is likelihood of gathering by the people, such as, Food Courts, Eateries, Vegetable Markets (Wholesale or Retail), sabzi Mandies, bus stations, railway stations, street vendors, etc.”

3. As far as possible, no permission is to be granted by the local administrations for celebrations/gatherings even during the day hours and where permission is granted, strict compliance of SOPs is to be ensured.

4. The Court also observed that “there shall be more and more testing and to declare the correct facts and figures.” And further, the people are not be misled otherwise they might become negligent.

5. Guidelines under the Disaster Management Act, 2005, in relation to keeping private hospital’s beds free must be strictly complied with and helpline numbers in this regard must be setup.

6. “Curfew on weekends/night be considered by States where it is not in place.” Any decision relating to curfew must be announced long in advance to give time to people to make provisions.

7. To cut the chain of transmission in areas where number of cases are on higher scale, sealing and lockdown should be done.

8. Political parties must follow the guidelines issued by the Election Commission of India in relation to Covid-19.

9. Some mechanism may be required for the doctors, nurses and the health workers to give them intermittent rest, as they are already exhausted physically and mentally.

Other Observations by the Court

The Court also observed that people too have a duty to perform their fundamental duties and they must follow the rules made by the governments “very strictly” failing which they cannot be permitted to infringe the rights of other citizens which includes the right to health. It further acknowledged that “It cannot be disputed that for whatever reasons the treatment has become costlier and costlier and it is not affordable to the common people at all. Even if one survives from COVID-19, many times financially and economically he is finished…”

Interestingly, the Court also stated as under: -

“5. Due to unprecedented Pandemic, everybody in the world is suffering, one way or the other. It is a world war against COVID-19. Therefore, there shall be Government Public Partnership to avoid world war against COVID-19.”

Concluding Remarks

The Order pronounced by the Supreme Court explains the profound and the dire state of affairs prevalent everywhere. I too acquiesce to the fact that people are confused, require guidance and need some respite. I think one of the most important observations by the Court is that there is a need to devise some mechanism to provide rest to the health workers since they are the ones at the forefront and are truly exhausted. I wish to conclude by saying that these are tough times for everyone, and we must show patience, faith and courage in our common knowledge and wisdom in such times.

Supreme Court on pasting posters on the houses of Covid-19 patients in India

suyashverma@hotmail.com (Suyash Verma) — Mon, 4 Jan 2021 21:08:33 +0000

Facts

The Petitioner questioned the decision taken by the various States and Union Territories to affix posters outside the residences of persons who have been tested Covid-19 positive and are required to undergo home isolation. Many arguments in this regard were advanced by the Petitioner.

It was prayed by the Petitioner inter alia to issue directions to stop publishing the names of Covid-19 Positive persons/patients by the officials of the States and the Union Territories. It was further prayed to stop freely circulating their names in welfare associations of colonies and apartment complexes as the same constitutes serious violation of fundamental rights, right to privacy and dignity.

Important Observations

After hearing all the parties, the Court observed that the Union of India has not issued any guidelines for pasting or affixing of posters or other signage outside the residence of Covid-19 Positive persons.

It was also observed that the guidelines pertaining to Covid-19 are referable to exercise of powers by the authority under the Disaster Management, 2005 and the same do not contain any requirement of pasting of posters against the houses of Covid-19 patients.

Final Observations and Held

In view of the above, it was finally observed by the Court that “no State or Union Territory is required to paste posters outside the residence of Covid-19 positive persons, as of now.”

It was further held in unequivocal terms by the Court that the State Governments and Union Territories can resort to the exercise of posting posters against the houses of Covid-19 patients only when any direction is issued in this regard under the Disaster Management Act, 2005.

Analysis

The final observations of the Court are quite interesting. On the one hand, the Court made it amply clear that currently, there is no requirement of pasting posters against the houses of the Covid-19 patients and on the other hand, the Court did not close that option or did not held the pasting of posters to be a violation of fundamental rights or illegal per se.

Thus, the question whether posters would be required to be affixed against the houses of Covid-19 patients or not in the future has been left wide open by the Court and in a way, the Court refused to venture into this question since in the considered opinion of the Court, it is the job of the authorities under the Disaster Management Act, 2005.

Concluding Remarks

The Disaster Management Act, 2005 is the main law under which the Union Government has been making endeavours to manage the Covid-19 pandemic. Everything relating to management of the Covid-19 pandemic is being handled by the Union Government under the Disaster Management Act, 2005.

I concur with the methodology of the Court that when something is not required currently (pasting of posters against the houses of Covid-19 patients), then it is not necessary to venture into the question of its legality or illegality. At the present moment, it is an academic question at best. But the Court did not stop here since it very well understands the hazards of a pandemic like Covid-19. By giving this judgment, the Court acknowledged that it is not an expert on Covid-19 pandemic, and it left its manner of management to be decided by the experts and competent authorities.

Supreme Court of India on Homeopathy and its relevance in Covid-19

suyashverma@hotmail.com (Suyash Verma) — Sun, 3 Jan 2021 20:44:33 +0000

Introduction

In the present case, Dr. AKB Sadbhavna Mission School of Homeo Pharmacy v. Secretary, Ministry of Ayush & Others, Civil Appeal No. 4049/2020, a question arose before the Supreme Court of India as to the relevance of homeopathic system and medicine for the treatment of Covid-19. Let us understand the same.

Pleadings and Facts

1. The Government of India issued Advisory dated 06.03.2020 (in short, “Homeopathic Advisory”) in relation to usage of Homeopathic medicines and AAYUSH medicine system to all the states, in relation to the ongoing pandemic of Coronavirus (Covid-19).

2. It was pleaded that the State of Kerala did not take steps to implement the abovementioned Homeopathic Advisory.

3. The Petitioner pleaded that Homeopathic System would have been able to control the spread of Covid-19 through its immunity boosting medicines and had it been distributed earlier, the Covid-19 would not have spread like it has.

4. The Petitioner sought the following relief: -

“To issue a Writ of Mandamus or any other Writ or Order directing the third respondent to ensure that the Homeopathic practitioners are immediately allowed to perform in accordance with the Exhibit P-1 notification.”

Homeopathic Advisory dated 06.03.2020

This advisory provided that certain homeopathic medicines could be taken in consultation with qualified AYUSH physicians for prevention, prophylaxis, symptomatic management, add on intervention to conventional care.

Homeopathic Practitioners (Professional Conduct, Etiquette and Code of Ethics) Regulations, 1982

The Court cited Regulation 6 of the above-stated Regulations states that any form of advertising by homeopathic practitioners is unethical and should not allow any other person to advertise in a manner that may result into self-aggrandisement. Further, homeopathic practitioners are not allowed to publicize themselves by publishing cases or letter of thanks from patients in non-professional newspapers or journals.

Final Observations by the Court

1. In light of the statutory regulations prohibiting advertising, the Homeopathic medical practitioners cannot advertise that they are competent to cure Covid-19 disease and “homeopathy does not cure the disease, but it cures the patients.”

2. The Homeopathic Advisory dated 06.03.2020 by the Ministry of AYUSH makes it clear that the Homeopathy has been envisaged as a therapeutic aid and specifically states that “the prescription has to be given only by institutionally qualified practitioners.”

3. No medical practitioner can claim that it can cure COVID-19 and there is no such claim in other therapy including allopathy.

4. Homeopathic medical practitioners have to follow the Homeopathic Advisory dated 06.03.2020 as well as guidelines for Homeopathic medical practitioners for COVID-19, issued by Government of India, Ministry of AYUSH.

Concluding Remarks

There is a lot of confusion prevalent with respect to the Covid-19 disease. In such uncertain times, the number of medical quacks who dupe people is on a rise. It is certainly a welcome judgment for both the homeopathic as well as non-homeopathic practitioners. The Court adopted a scientific approach and rightly said that the claim to cure Covid-19 cannot be made by anybody and the scientists all over the world are working to find a solution. I hope that people follow the guidelines issued by the doctors and medical institutions in letter and spirit and do not fall prey to quackery and superstition.

Supreme Court on Installation of CCTV Cameras in Police Stations

suyashverma@hotmail.com (Suyash Verma) — Sat, 2 Jan 2021 21:39:31 +0000

Introduction

In the present case of Paramvir Singh Saini v. Baljit Singh & Others, SLP (Criminal) No. 3543/2020, vide Judgment dated 02.12.2020, it was directed that State Level Oversight Committees and District Level Oversight Committees should be setup to look after the installation of CCTV Cameras in the Police Cameras, its budgetary allocation, continuous monitoring, inspection, grievance redressal and review CCTV footage to check for any human rights violation that may have occurred but not reported.

Backdrop

In the judgment of Shafhi Mohammad v. State of Himachal Pradesh, (2018) 5 SCC 311, it was directed that a Central Oversight Body (COB) be setup by the Ministry of Home Affairs to implement the plan of action with respect to the use of videography in the crime scene during the investigation.

Later on, the Court issued notice to the Union of India on the question of audio-video recordings of Section 161 of the Code of Criminal Procedure (in short, “CrPC”) and installation of CCTV Cameras in Police Stations.

It has also been held in the Paramvir Singh Saini (supra) Judgment that the duty for the working, maintenance and recording of CCTVs shall vest with the SHO of the police station concerned and he shall coordinate with the District Level Oversight Committees in this regard. Such CCTVs are to be installed at: -

1. All entry and exit points of the Police Station;

2. Main gate of the Police Station;

3. All lock-ups, corridors, lobby/reception, verandas and outhouses;

4. Inspector, sub-inspector and duty officer’s room and areas outside the lock-up room;

5. Station Hall, in front of the Police Station Compound, outside washroom and toilets and back part of the Police Station.

The Court further directed that the CCTVs must have night vision, audio-video recording, continuous electricity supply and internet connections. Such recording is to be preserved for a period of 18 months and in any case, not below one year.

Taking a step further, it has also been directed that in case, there is complaint of force being used at the Police Stations resulting into serious injury or custodial death, then the persons are free to complaint for redressal of the same. In this regard, the Court also directed the state to setup Human Rights Court in each and every district of the country so that such Court can immediately summon CCTV footage as and when required. Further all the above-stated directions shall also be made applicable to the offices of: -

(i) Central Bureau of Investigation (CBI)

(ii) National Investigation Agency (NIA)

(iii) Enforcement Directorate (ED)

(iv) Narcotics Control Bureau (NCB)

(v) Department of Revenue Intelligence (DRI)

(vi) Serious Fraud Investigation Office (SFIO)

(vii) Any other agency which carries out interrogations and has the power of arrest.

Further, the Court also directed that all the police stations and the investigating agencies shall prominently display at the entrance and inside their campus about the coverage of the concerned premises by CCTV and also mention that a person has right to complain about human rights violations. The same has to be done by large posters in English, Hindi and Vernacular language.

Concluding Remarks

I think that it is one of the most important judgments of this decade by the Hon’ble Supreme Court of India. Its importance cannot be overstated since flagrant abuse of rights of the people is very common in the Police Stations across India.

Mandatory installation of CCTVs would ensure that the errant Police Officials are not able to get away without any consequences. What remains to be seen is the actual implementation of this Judgment by the concerned states and the Union of India.

A common plea that is taken in such matters by the State is that there are not enough funds to carry on such an exercise and implementation is something that cannot be done by the Courts. It is purely the domain of the executive/state. Nevertheless, such directions would increase the pressure upon the states and the Union to carry on this exercise as expeditiously as possible.

Further, this Judgment will have long term consequences in protecting the rights of the people as since this judgment has been pronounced by the Court, it is only a matter of time that it will be implemented. The State cannot get away for too long. During the time of Covid-19, we have seen countless uses of disproportionate force being used by the Police on the people of this country. With such directions in place, I hope that use of force at Police Stations will stop in the times to come.

Supreme Court on Senior Citizens Act, Domestic Violence Act and their Interpretation

suyashverma@hotmail.com (Suyash Verma) — Sat, 2 Jan 2021 21:24:30 +0000

Introduction

First of all, farewell to the yester year and with the beginning of this new year, let us remember the people who lost their lives protecting us and fighting for us. Let us also hope that this year brings hope and prosperity to the oppressed and the marginalized sections of society and that their dignity and honour remains intact. A happy new year to all of you.

In the present post, we shall discuss a latest judicial pronouncement by the Hon’ble Supreme Court of India, S. Vanitha v. Deputy Commissioner, Bengaluru Urban District and Others, 2020 SCC OnLine SC 1023, wherein the scheme of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (in short, “Senior Citizens Act”) and how the same has to be construed qua other enactments, was discussed by the Court.

Facts

In the present case, an Application was filed by the parents of a person who sought to evict his estranged wife and children from a residential house belonging to the parents (mother). Such Application was allowed by the Courts below and thereafter the matter traversed to the Hon’ble Supreme Court of India.

Chief Contentions of the Appellant/Estranged Wife

1. The Appellant/Estranged Wife is residing in her matrimonial home, which is a shared household, as a lawfully wedded spouse of the son of the parents who moved the Application under the Senior Citizens Act, 2007, and she cannot be evicted in view of the protection offered by Section 17 (Right to reside in a shared household) of the Protection of Women from Domestic Violence Act, 2005 (in short, “Domestic Violence Act”).

2. The Appellant/Estranged Wife has no other place to live except the suit premises and relied upon Section 17 of the Domestic Violence Act urging that the Senior Citizens Act cannot be invoked to evict her.

Chief Contentions of the Parents/Respondent

1. Parents/Respondents are Senior Citizens, and the suit premises was constructed by their ancestors.

2. There are concurrent findings by all the Courts below who have directed for eviction of the Appellant and restoration of their possession.

Observations by the Court

Brief Scheme of the Senior Citizens Act, 2007

Provision	Crux
Section 2 (b)	“Maintenance” includes provisions for food, clothing, residence and medical attendance and treatment.
Section 2 (f)	“Property” means property of any kind, whether movable or immovable, ancestral or self-acquired, tangible or intangible and includes rights or interests in such property.
Section 3	It provides that this Act shall have an overriding effect on the other enactments/Acts.
Section 4	It recognises an entitlement of maintenance to inhere in parents and senior citizens.
Section 5	It lays down the procedure by which an application for maintenance can be made.
Section 6	It elucidates provisions governing jurisdiction and procedure.
Section 7	It contains stipulations for the constitution of a Maintenance Tribunal.
Section 8	It envisages a summary procedure for making an inquiry.
Section 9	Monthly allowance can be fixed by the Tribunal for the maintenance of the senior citizen.
Section 10	The above-stated monthly allowance can be altered upon a change in circumstance.
Section 11	It provides for the enforcement of an order of maintenance.
Section 23	If a senior citizen gifts any property to any person subject to the condition that such person shall take care of the basic needs of the senior citizen and when such person does not provide for and take care of the basic needs of the senior citizen, then the said transfer of property shall be deemed to have been made by fraud or coercion or undue influence and can be declared void by the Tribunal. It further provides that where a Senior Citizen has a right to receive maintenance out of a property if the transferee has notice of the right and the transfer of such property is without consideration.

‘Means and Includes’ Approach and the Interpretative Process

This is relevant for enactments wherein a definition has been provided that involves usage of means and includes. ‘Principles of Statutory Interpretation’ by Justice G.P. Singh observes as under: -

“The Legislature has the power to define a word even artificially. So the definition of a word in the definitions section may either be restrictive of its ordinary meaning or it may be extensive of the same. When a word is defined to ‘mean’ such and such, the definition is prima facie restrictive and exhaustive.”

“Whereas, where the word defined is declared to ‘include’ such and such, the definition is prime facie extensive. When by an amending Act, the word ‘includes’ was substituted for the word ‘means’ in a definitions section, it was held that the intention was to make it more extensive…..”

This ‘means and includes’ approach has been discussed in plethora of cases earlier and in Jagir Singh v. State of Bihar, AIR 1976 SC 997, it was observed as under: -

“Further, a definition may be in the form of ‘means and includes’, where again the definition is exhaustive.”

A Woman’s Right of Residence

Section 2 (s) of the Domestic Violence Act defines ‘shared household’ as under: -

“‘shared household’ means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a house hold whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household;”

Thus, by taking recourse to the ‘means and includes’ approach, it was observed by the Court that the definition of ‘shared household’ cannot be read to mean only that household which belongs to the husband or of which the husband is a member and can even include the household belonging to any relative of the husband with whom in a domestic relationship the woman has lived.

Harmonizing the Senior Citizens Act and the Domestic Violence Act

Section 36 of the Domestic Violence Act provides that the provisions of the Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force. Therefore, the Domestic Violence is in addition to other remedies and does not displace or override them. However, Section 3 of the Senior Citizens Act is unequivocal in its approach that the Senior Citizens Act shall have an overriding effect over all the other enactments.

The Court observed that both the Senior Citizens and the Domestic Violence Act are welfare legislations and there is a need to harmoniously construe them. It was further observed that a shared household would have to be interpreted to include the residence where the woman/wife had been jointly residing with her husband. Merely because the ownership of the property does not vest with the husband or that the estranged spouse is living separately, is no ground to deprive the wife/woman of the protection that was envisaged under the Domestic Violence Act.

Held

The Court finally held that whether the suit premises constitutes a ‘shared household’ within the meaning of the Domestic Violence or not would have to be determined by the appropriate forum and such a claim cannot simply be obviated by evicting the appellant/wife in exercise of the summary powers entrusted by the Senior Citizens Act 2007. Even the parents/Respondents were given the liberty to move a subsequent Application under the Senior Citizens Act. Finally, exercising the powers under Article 142 of the Constitution of India, the Court concluded by holding that the Appellant/wife shall not be forcibly dispossessed from the suit premises for a period of one year, to enable the Appellant/wife to pursue her remedies in accordance with law.

Concluding Remarks

I have my own reservations with the reasoning of the judgment. The Court made a substantial effort to balance the rights of the wife and the in-laws/senior citizen and left the question open for the appropriate forums to decide. The Hon’ble Court did acknowledge in Para 36 of the judgment that though Section 36 of the Domestic Violence Act is not a non-obstante clause yet the same has to be construed harmoniously with Section 3 of the Senior Citizens Act. I think that it is a settled principle of law that the principle of harmonious construction or looking into the purpose of the legislation becomes relevant only when there is ambiguity in the text of the legislations or when the same is leading to any manifest absurdity. In the present case, the texts of the legislations i.e., Section 36 of the Domestic Violence Act and Section 3 of the Senior Citizens Act, are amply clear and there seems to be no ambiguity arising out of a bare textual reading of these two provisions. Senior Citizens Act is a subsequent legislation and its Section 3 clearly provides for an overriding effect. The entire purpose of enacting Section 3 would be defeated if the overriding effect that it seeks to have is not given effect to. Whether there exists a manifest absurdity exists in the reading and construction of the above-stated provisions is something that requires further scrutiny in my humble opinion. I hope that further clarity emerges in this aspect in the times to come.

What do the Courts say in relation to Theft occurring on the Trains/Railways?

suyashverma@hotmail.com (Suyash Verma) — Wed, 30 Dec 2020 21:40:38 +0000

Liability of the Railways in relation to Theft occurring on the Trains/Railways

In the earlier post, we talked about the possible immediate steps that could be taken in case a theft occurs inside a train/railway. In the present post, we shall endeavour to under the relevant legal provisions and judicial pronouncements in this respect.

Important Legal Provisions

Section 100 of the Railways Act, 1989

“Responsibility as carrier of luggage - A railway administration shall not be responsible for the loss, destruction, damage, deterioration of non-delivery of any luggage unless a railway servant has booked the luggage and given a receipt therefore and in the case of luggage which is carried by the passenger in his charge, unless it is also proved that the loss, destruction, damage or deterioration was due to the negligence or misconduct on its part or on the part of any of its servants”.

Duties of the TTEs and Railway Staff in relation to Theft

The relevant Circular issued by the Railways can be read here.

1. In case of any theft occurring on the train, the Superintendent/TTEs on train are required to guide the passenger to the GRP Escort Party, if travelling by the Train or else make a blank FIR and submit the same to the first GRP Post (Railway Police) available at the scheduled stoppage of the train for further action.

2. TTEs are required to be presented at the allotted coach and if more than one coach is to be manned, give frequent visits to all such coaches.

3. The TTEs/Superintendents must report to their superiors about any person who is causing any trouble or is not performing his/her duties properly. He shall also be vigilant in ensuring “Customer Satisfaction.”

4. The TTEs/Superintendents shall maintain a Complaint Book and make the same available to the passengers, as and when required.

5. It is the duty of the Train Superintendents/TTEs to make sure that no unauthorized hawking and begging takes place on the Train.

6. The Train Superintendent/TTEs should also ensure that the reserved coaches are secured and latched when on the run and the vestibule doors are bolted at night and supervised.

7. It is the responsibility of the Train Superintendent to ascertain the details of the staff working on the train and ensure that they perform their duties properly.

Important Case-Laws

Northern Railways v. Balbir Singh, First Appeal No. 311/2014, State Consumer Disputes Redressal Commission, Union Territory, Chandigarh

In reserved coaches, it is the duty of the TTE to ensure that no intruder enters the reserved compartment of the Railways. In this case, theft of two suitcases took place from a reserved compartment and the Hon’ble Commission said that it cannot be ruled out that “some intruder must have entered the reserved compartment who committed the theft of the suitcases. Had the TTE of the Railways been vigilant and careful then the entry of the intruders/some unauthorized persons must have been prevented in the coach during the night and the complainant did not have to face the mental agony and harassment due to the theft of his suitcases.”

Hence, it was held that the TTE of the train failed to perform his duties, which amounted to negligence and also deficiency in service, as per codified duties of the TTE.

P.A. Narayanan v. Union of India, (1998) 3 SCC 67

The Court observed that breach of common law duty of reasonable care lies upon all carriers including the Railways. In such cases, it cannot be said that the omission on the part of the railway officials can be said to be wholly unforeseen or beyond their control. Such standard of care is strict, and fault based. Such a liability is not inconsistent with the scheme of the Railways Act of 1890.

Station Master, Indian Railway & Anr. v. Sunil Kumar, 2018 SCC OnLine NCDRC 440

A person travelling on reserved berths in a reserved coach after paying the fares and purchasing the tickets is right in “agitating that the railways was responsible for safety and security of person and hand-held baggage, including from unknown persons who gained entry unauthorizedly and committed theft (the railways was undoubtedly responsible for theft of hand-held baggage from running train)….. It would undoubtedly be self-evident (to one and all) that safety and security of person and hand-held baggage in running train is a fundamental concern of each and every passenger - consumer.”

It was further stated that a reasonable man would rightly assume that his person and luggage are safe and secure in running trains especially in reserved coaches.

Union of India v. Ajay Kumar Agarwalla, 2015 SCC OnLine NCDRC 2956

It is the duty of the TTE to make sure that the doors of the reserved coaches are latched at night and if the same is not the case, then it is a possibility that “since the doors of the coach i.e. main entrance doors were not kept latched during night, some unauthorized person entered the coach in which the complainants were travelling, committed theft of their suitcases and then left the coach either through a main entrance door when the train stopped at a railway station or he was able to move to another compartment through the vestibule doors which had not been locked.”

Union of India v. Syed Mubuddin Rizvi, 2016 SCC OnLine NCDRC 2196

When there is no evidence that the doors of the coaches have actually been closed except at the railway stations and where neither the TTE nor the Coach Conductor were present in the coach, it could be said that there is negligence on part of the railways if any theft occurs and the railways is liable to compensate for the loss sustained by the passenger.

General Manager, South Central Railway v. Jagannath Mohan Shinde, 2012 SCC OnLine NCDRC 183

If any unauthorized person is permitted to be present on the reserved compartment of a train, then Section 100 of the Indian Railways Act would not be of any help to the Railways in absolving them from any liability since anyways the Railways is responsible as a carrier of luggage if it is proved that their negligence on its part.

General Manager (General) Northern Railway v. Lakhanji Purwar, 2016 SCC OnLine NCDRC 2515

If a TTE is not present in a reserved coach of a train and if any theft occurs in such reserved coach, “then the theft of the articles of the complainant happened solely on account of the deficiency on the part of the Indian Railways in rendering services to him by not deputing a TTE to remain present in the coach throughout the journey.”

Concluding Remarks

We see that there are ample of responsibilities that have been casted upon the railway authorities not just by the Courts but also the various legal provisions. Hence, do not be afraid in telling the same to the railway authorities in case a theft occurs on a Train. It is their legal responsibility to take all the above-mentioned steps. You are paying for the ride and you have all the right to avail the reasonable services that could be expected from any carrier and assert the same to them.

What are the possible steps that could be taken in case a theft occurs on a Train/Railways in India?

suyashverma@hotmail.com (Suyash Verma) — Tue, 29 Dec 2020 18:23:41 +0000

Introduction

It is a common affair to hear that theft has occurred on a Train. We read it in the newspapers, we hear about it from our acquaintances etc. And what does the person who loses his/her articles in the theft get? In 99% of the cases, nothing. It is a pity to say that there are near to negligible efforts by the Indian Railways in relation to the safety and security of the passengers.

In this backdrop, it becomes imperative that the people should know the remedies and the legal juxtaposition in this regard.

Possible Immediate Steps

1. If there are any injuries, seek medical assistance from the nearby passengers and as soon as possible, make efforts to intimate the TTE and if he could not be traced, intimate any Train Staff who is available in the vicinity.

2. Inspect whether the latches of the doors of the coach are in place or not and inform the TTE of the Theft, the articles lost and any consequent wrongdoing that has occurred with you.

3. Apart from it, lodge complaint on the Railway Helpline Numbers or Social Media Handles or their Email Addresses. Make sure that you keep a record of the same.

4. Wherever you get down, make sure to inform about the same to the Railway Police Station and they shall register the complaint.

Facts that could be brought to the knowledge of the Police

1. Whether the TTE or the Railway Staff was present in the Coach or the Train in which the alleged incident occurred.

2. Whether the latches of the doors of the coach in which the incident took place are in place or not.

3. Whether the Railway Staff/TTE was cooperative with you.

4.Whether there were any unauthorized passengers visible to you in the Train or in your Coach.

After this, gather all the receipts and evidence in relation to the all the articles lost and the harm suffered. Approach a lawyer as soon as possible and do not forget to prefer a Consumer Case against the Railways to seek compensation and damages.

In the next post, I will provide the relevant judicial pronouncements in relation to responsibility of the Railways in cases of Thefts in Trains and Consumer Disputes.

Stay tuned!

What is the meaning of Dying Declaration and how reliable is it considered by the Courts?

suyashverma@hotmail.com (Suyash Verma) — Mon, 28 Dec 2020 19:13:36 +0000

Meaning of Dying Declaration

Indian Laws do not provide a definition of dying declaration but the same could be understood by perusing a Law Dictionary. Before adverting any further, an earlier post by me in relation to credibility of dying declaration could also be perused. Black’s Law Dictionary (8th Edition) defines ‘dying declaration’ as under: -

“A statement by a person who believes that death is imminent, relating to the cause or circumstances of the person’s impending death.

The statement is admissible in evidence as an exception to the hearsay rule.”

The relevant provision of law in this regard is Section 32 of the Indian Evidence Act, 1872, which reads as under: -

“Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured, without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases: --

(1) when it relates to cause of death. - When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.

……..”

Important Judicial Precedents in relation to Reliability of Dying Declaration

K. Ramachandra Reddy v. Public Prosecutor, (1976) 3 SCC 618 – Once the court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration.

Khushal Rao v. State of Bombay, AIR 1958 SC 22 – In this case, some important postulates were laid down with respect to reliability of dying declarations: -

1. There cannot be an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated and that is a weaker kind of evidence.

2. Each case is to be judged on its own merits and circumstances.

3. Dying declaration stands on the same footing as another piece of evidence and has to be judged in light of the circumstances.

4. “A dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character.”

5. The circumstances like the opportunity of the dying man for observation, whether the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it and whether the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties, have to be kept in mind while testing the reliability of a dying declaration.

Tapinder Singh v. State of Punjab, (1970) 2 SCC 113 – “It is true that a dying declaration is not a deposition in court and it is neither made on oath nor in the presence of the accused. It is, therefore, not tested by cross-examination on behalf of the accused. But a dying declaration is admitted in evidence by way of an exception to the general rule against the admissibility of hearsay evidence, on the principle of necessity. The weak points of a dying declaration just mentioned merely serve to put the court on its guard while testing its reliability, by imposing on it an obligation to closely scrutinise all the relevant attendant circumstances.”

Lallubhai Devchand Shah v. State of Gujarat, (1971) 3 SCC 767 – The person who recorded the dying declaration must be satisfied that the deceased was in a fit state of mind.

Kundula Bala Subrahmanyam v. State of A.P., (1993) 2 SCC 684 – The Court stated that a dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement and such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration. If there are more than one dying declarations, then the court has also to scrutinise all the dying declarations to find out if each one of these passes the test of being trustworthy.

Rule of Caution and Reliability of Dying Declarations

Time and again, the Hon’ble Courts have iterated that ‘Rule of Caution’ must be exercised in order to test the veracity and the reliability of dying declarations. What is this “Rule of Caution?” The same could be understood by perusing a catena of judgments of the Hon’ble Supreme Court.

Govindappa v. State of Karnataka, (2010) 6 SCC 533 – “…. What is essentially required is that the person who recorded the dying declaration must be satisfied that the deceased was in a fit state of mind. The certification by the doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature of the declaration can be established otherwise…..”

Sher Singh v. State of Punjab, (2008) 4 SCC 265 – “….The court should ensure that the statement was not as a result of tutoring or prompting or a product of imagination….. What is essential is that the person recording the dying declaration must be satisfied that the deceased was in a fit state of mind….. A certificate by the doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature of a statement can be established otherwise.”

Laxman v. State of Maharashtra, (2002) 6 SCC 710 – “…… Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.”

Concluding Remarks

The above-stated case-laws explain the test of reliability in relation to dying declarations in a succinct manner. It could be summarized as under: -

1. Dying Declaration is admissible in evidence as an exception to the hearsay rule.

2. Section 32 of the Indian Evidence Act, 1872, provides that statements, written or verbal, are themselves relevant facts when such statement is made by a person in relation to his death.

3. Conviction can be made solely on the basis of a reliable dying declaration.

4. Dying declaration stands on the same footing as another piece of evidence and has to be judged in light of the circumstances.

5. If there are more than one dying declarations, then the court has also to scrutinise all the dying declarations to find out if each one of these passes the test of being trustworthy.

6. Rule of Caution in relation to a dying declaration means that the Courts need to ensure that the statement is not a result of tutoring and the person recording the same must be satisfied that the deceased was in a fit state of mind.

Will a vote by an MLA be counted in Rajya Sabha Elections if he is disqualified hours after he has casted his vote?

suyashverma@hotmail.com (Suyash Verma) — Sun, 27 Dec 2020 14:46:46 +0000

Case Citation

Pradeep Kumar Sonthalia v. Dhiraj Prasad Sahu & Another, 2020 SCC OnLine SC 1039, authored by Hon’ble C.J. S.A. Bobde on 18.12.2020.

Subject Matter

Whether the vote cast by a Member of the Legislative Assembly in an election to the Rajya Sabha, in the forenoon (9:15 AM) on the date of election, would become invalid, consequent upon his disqualification, arising out of a conviction and sentence imposed by a Criminal Court, in the afternoon (2:30 PM) on the very same day?

Important Provisions of Law

Article 191 of the Constitution of India

Article 190 of the Constitution of India

Section 8 (3) of the Representation of the People Act, 1951

Important Precedents Discussed

Jyoti Basu v. Devi Ghosal – “An election dispute lies in a special jurisdiction and hence it has to be exercised without importing concepts familiar to common law and equity, unless they are ingrained in the statute itself.”

Pashupati Nath Singh v. Harihar Prasad Singh – Wherever the statute uses the words “on the date”, it should be taken to mean “on the whole of the day” and that law disregards as far as possible, fractions of the day. It would lead to great confusion if it were held that a candidate would be entitled to qualify for being chosen to fill a seat till the very end of the date fixed for scrutiny of nominations which may even mean that a candidate could ask the Returning Officer to wait till 11.55 p.m. on the date fixed for the scrutiny to enable him to take the oath.

Crux of the Legal Reasoning

The Court observed that:

“13. It is clear as daylight that the event which causes the disqualification under Article 191(1)(e) read with Section 8(3) is a conviction of a person for any of the specified offences. The consequence of such disqualification is that the seat becomes vacant. Obviously therefore, a Member of the Legislative Assembly who has become disqualified and whose seat has become vacant is not entitled to cast his vote for electing a representative from his State under Article 80(4) which provides that the representatives of each State “shall be elected by the elected members”. His name is liable to be deleted from the list of members of the State Legislative Assembly maintained under Section 152 of the Representation of the People Act, 1951. He ceases to be an elector in relation to election by assembly member and cannot cast his vote.”

The Court harmoniously construed the case of Pashupati Nath Singh (supra) in relation to the facts of the present case and observed that: -

“25….. If the date on which scrutiny was taken up can be held to have ended at the time when the event of scrutiny was taken up, we should, by the very same logic, hold that the date of commencement of an event such as conviction and the consequent disqualification should also begin only from the time when the event happened.”

Thus, based upon the above stated conspectus of law, the Court held that to hold that an MLA stood disqualified even before he gets convicted would grossly violate his substantive right to be treated as innocent until proven guilty and there is no precedent to suggest that a conviction may take effect even a minute prior to itself. To fortify this observation, the Court relied upon the dictionary meaning of “date” and observed that “date” could also be used to denote a point of time.

The Court acknowledged that there is a legislative silence and observed that “Legislative silences create spaces for creativity” and that “between interstices of legislative spaces and silences, the law is shaped by the robust application of common sense.” Therefore, it was opined that “conviction is the cause and disqualification is the consequence. A consequence can never precede the cause.”

The Court concluded by quoting Justice Oliver Wendell Holmes, Jr. in Henry R Towne v. Mark Eisner, as under: -

“A word is not a crystal, transparent and unchanged; it is the skin of a living though and may vary greatly in colour and content according to the circumstances and tie in which it is used”

Hence, it was finally held that the vote cast by the returning candidate at 9:15 AM (23.03.2018) was rightly treated as a valid vote and to hold otherwise would mean that the Returning Officer ought to have foresighted about the outcome of a criminal case and would result into creating endless confusion and needless chaos.

Concluding Remarks

The Court acknowledged that there existed a legislative vacuum and used the interpretative tools at its disposal in magnificent and clever manner to remove the absurdity and conundrum that could have taken place in the times to come. The reasoning of the Judgment is in itself crystal clear that a person cannot know what is about to happen the future and hence, any such expectation is farcical.

Brief Analysis of Disaster Management Act, 2005 of India

suyashverma@hotmail.com (Suyash Verma, Saurabh Kumar) — Tue, 28 Apr 2020 18:21:00 +0000

At the outset, it is apologized that the notes of this episode are not as comprehensive as it should be. However, further episodes shall have detailed episode notes.

Introduction of Contributors

Suyash Verma is a Lawyer and a Freelance writer. He completed B.B.A. LL.B. (Constitutional Law Honours) from National Law University, Jodhpur in 2012 and LL.M. in International Trade Law from National Law University, Jodhpur in 2015. Presently, he is practising as an Advocate in the High Court of Madhya Pradesh at Jabalpur. He has a keen interest in Constitutional Law, International Trade Law and Jurisprudence. His other interests include On-line Gaming and reading.

Saurabh Kumar is an Advocate Practicing Law since July 2010. He is LL.M. (Trade & Investment Laws) & B.B.A. LL.B. (Honors in Trade Related Laws and WTO) from National Law University, Jodhpur. He is also pursuing his Doctoral Studies in the Laws of Outer Space, apart from advocacy. He holds Observer status at The Hague International Space Resources Governance Working Group, Universitiet Leiden. Whatever spare time he gets, he devotes it to blogging and reading about Law.

Important Provisions of Disaster Management Act, 2005

Definition of Disaster – S. 2 (d)

It sets up various authorities at four levels.

1. National Authority (NDMA) [S.2(j) & S.3]

2. State Authority [S.2(q) & S.14]

3. District Authority [S.2(f) and S. 31]

4. Local Authorities [S.2(h)]

Powers and functions are defined under S. 6.

In case of a disaster, it was the intention of the Parliament of India that the Disaster Management Act, 2005 may occupy the field at once. It is extremely exhaustive and contains detailed provisions and mandatory guidelines for governments at all levels to be followed.

The scheme of the Act makes it amply clear that there is no need to adopt a scattered approach by any of the governments or authorities and all they need to do is peruse and follow this Act to letter in letter and spirit.