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MONTHLY DIGEST – NOVEMBER – 2019

MONTHLY DIGEST- NOVEMBER 2019.

Habeas Corpus Petition – Madras High Court – Love Marriage – Major Girl – Set at Liberty:

While answering a Habeas Corpus Petition praying to produce the body or person of the detenu / petitioner’s daughter, namely, Saranya Devi, d/o.Pandi, aged about 24 years from the illegal custody of the third respondent and set her at liberty.

The HC held that, Since the detenue is a major and according to her, she, on her own volition, has left the parental home and married the third respondent, this Court does not find any illegal detention/custody.

Whether Oath is necessary for child Witnesses? Appreciation of Child Witness – explained by Hon’ble SC:

Answered in negative – Section 4 of the Oaths Act 1969 requires all witnesses to take oath or affirmation, with an exception for child witnesses under the age of twelve years. Therefore, if the court is satisfied that the child witness below the age of twelve years is a competent witness, such a witness can be examined without oath or affirmation. (Dattu Ramrao Sakhare v State of Maharashtra [(1997) 5 SCC 341])

HOW TO APPRECIATE CHILD WITNESS?

If the child understands the questions put to her/him and gives rational answers to those questions, it can be taken that she/he is a competent witness to be examined.

Company cannot be added as an accused if demand notice not served on the company:

The fact of this is, the appellant had borrowed a sum of Rs. 4,15,000/- “for his business development” and on the same day, the appellant issued a cheque drawn on Karnataka Bank, Hosadurga for an equivalent amount. When the cheque was presented on 26 December 2003 for encashment to the State Bank of Mysore, Beligere Branch, the bank returned the cheque with an endorsement on 29 December 2003 stating that funds were insufficient.

The complainant issued a notice to the appellant on 19 January 2004 which was served on 28 January 2004. Upon the failure of the appellant to pay the amount due under the cheque, a complaint was instituted. The Civil Judge, Junior Division, Tiptur took cognizance on 6 July 2004 and issued summons to the appellant. The appellant instituted a petition under Section 482 of the Code of Criminal Procedure, 1973 (“CrPC”) before the High Court of Karnataka. The cheque was not issued by the signatory in the appellant’s personal capacity. Hence, it was urged that the complaint ought to have been instituted against the company and its Directors and not against the appellant. The High Court by its order dated 24 January 2006 dismissed the petition.

The judgment of the High Court has been questioned on two grounds. Learned counsel appearing on behalf of the appellant submits that firstly, the appellant could not be prosecuted without the company being named as an accused.  Secondly, it was urged that the observation of the High Court that the company can now be proceeded against in the complaint is misconceived.

The SC held that,

The High Court was in error rejecting the petition of the appellant and hence the appeal is allowed and the judgment of the High Court is set aside.

In consequence, the complaint, being C.R.P No. 27/2004 shall stand quashed. During the pendency of these proceedings, this Court on 28 November 2008 recorded the statement of the appellant that he was willing to deposit the entire cheque, and hence issued the directions. In pursuance of the directions, the appellant deposited an amount of Rs. 4,15,000/- on 23 February 2009.  The amount shall be disbursed to the respondent against proof of identity. The criminal appeal is, accordingly, disposed of. Pending application(s), if any, shall also stand disposed of.

Question of Law: Whether re-open or alter power available under section 482 Cr.P.C & Probation of Offenders Act and its use of:

There is no power of review granted to the Courts under CrPC. As soon as the High Court had disposed of the original revision petition, upheld the conviction, reduced the sentence to the period already undergone and enhanced the fine, it became functus officio and, as such, it could not have entertained the petition under Section 482 CrPC for altering the sentence. The inherent power under Section 482 CrPC cannot be used by the High Court to reopen or alter an order disposing of a petition decided on merits.

Probation of Offenders Act – Reasons to be stated if High Court differs from Trial Court’s version- When the High Court was deciding the revision petition against the order of conviction, it could have, after calling for a report of the Probation Officer in terms of Section 4 of the Act, granted probation. Even in such a case, it had to give reasons why it disagreed with the trial court and the first appellate court on the issue of sentence. After the sentence had been imposed and served and fine paid, there was no question of granting probation.

Section 144 C.P.C – Explained by S.C:

Hon’ble Supreme court has cited its previous judgment to explain section 144 C.P.C Neelathupara Kummi Seethi Koya Phangal (Dead) by LRs vs. Montharapalla Padippua Attakoya & Ors – 1995 Supp (3) SCC 760; and  Murti Bhawani Mata Mandir Rep. through Pujari Ganeshi Lal (D) Through LR Kailash vs. Rajesh – 2019(3) SCC 707

Section 144 applies to a situation where a decree or order is varied or reversed in appeal, revision or any other proceeding or is set aside or modified in any suit instituted for the purpose -The principle of doctrine of restitution.

Ayodhya Dispute Verdict-S.C:

The sequence of the events as noticed above clearly indicates that faith and belief of Hindus were that birthplace of Lord Ram was in the three-dome structure Mosque which was constructed at the janamasthan. Suit of 1885 was filed seeking permission to construct a temple on the said Chabutra where worship was permitted by the British Authority. Faith and belief of the Hindus as depicted by the evidence on record clearly establish that the Hindus believe that at the birthplace of Lord Ram, the Mosque was constructed and three-dome structure is the birthplace of Lord Ram.

section 498-A IPC – Dying Declaration is of no use if the death was not in question – Madras H.C:

CRUELTY U.S 498-A IPC – a statement can be construed as a dying declaration, it can be done only when Shenbagavalli’s death comes into question and not for convicting the appellant under Section 498-A IPC. The solitary evidence of the deceased father does not inspire the confidence of this Court to sustain the charges under Section 498-A and Section 4(1) of the Tamil Nadu Prohibition of Harassment of Woman Act, 1998

CJI is Public Authority under RTI says S.C:

The Supreme Court of India and The Chief Justice of India are not two separate public authorities, says the SC.

The office of the Chief Justice or for that matter the judges is not separate from the Supreme Court and is part and parcel of the Supreme Court as a body, authority, and institution. To hold to the contrary would imply that the Chief Justice of India and the Supreme Court of India are two distinct and separate public authorities, and each would have their CPIOs and in terms of subsection (3) to Section 6 of the RTI Act

The SC upheld the decision of the Delhi High Court,

“The CPIO, Supreme Court of India to furnish information on the judges of the Supreme Court who had declared their assets.”

Sabarimala Issue – S.C referred to 7 Judge Bench:

The issues arising in the pending cases regarding the entry of Muslim Women in Durgah/Mosque (being Writ Petition (Civil) No.472 of 2019); of Parsi Women married to a non-Parsi in the Agyari (being Special Leave Petition (Civil) No. 18889/2012); and including the practice of female genital mutilation in the Dawoodi Bohra community (being Writ Petition (Civil) No.286 of 2017) may be overlapping and covered by the judgment under review. The prospect of the issues arising in those cases being referred to the larger bench cannot be ruled out. The SC also explained about the Bonafide criticism of judgment.

Non-Resident Indian can recover immediate possession of the building – East Punjab Urban Rent Restriction Act: SC

The SC upheld the Constitutional validity of Section 13-B of the East Punjab Urban Rent Restriction Act, 1949  and its extension to the Union Territory of Chandigarh by the Central Government vide Notification dated 09.10.2009 in the exercise of powers under Section 87 of the Punjab Reorganisation Act, 1966, but it cannot be treated as an arbitrary classification that infringes and violates Article 14 of the Constitution. The challenge predicated on the basis of the unconstitutionality of the classification is rejected.

The observation of the SC is that the requirement should arise from a genuine need of the Non-Resident Indian landlord or his dependent and the appeal by the tenants was dismissed.

The court cannot ignore the procedure to appoint the arbitrator when the same is specified in the contract: SC

Power of the court to appoint the arbitrator under Section11 (6) of the Arbitration and conciliation Act, 1996- the High Court was not justified in appointing an independent arbitrator without resorting to the procedure for appointment of an arbitrator which has been prescribed under Clause 64(3) of the contract under the inbuilt mechanism as agreed by the parties.

The SC held that the appointment of sole arbitrator to be invalid and upheld the appeal to the appointment of an arbitrator as per Clause 64 of the General Conditions Of Contract which stipulates that Railways’ Officers should be appointed as Arbitrator.

Issuance of citation to the legal heir need to contemplated according to the provisions of the Indian Succession Act: SC

The Hon’ble Supreme Court considered the question as to ‘whether sufficient grounds were made out in the application for revocation of probate filed by the appellant and the High Court committed an error in rejecting the application as well as dismissing the appeal?. The Division Bench of the High Court of Calcutta and the single Judge dismissed the application for revocation of probate on the ground for the delay in filing the application.

The SC court in this instant matter allowed the appeal and set aside the orders passed by the learned Single Judge as well as Division Bench of the Calcutta High Court. Further held that the application for revocation of probate is allowed. The court also cited the judgment in Shyama Charan Baisya vs. Prafull Sundari Gupta, AIR 1961 Cal 623.

Courts don’t have power to interfere in the selection procedures for promotions made to the IAS officer says SC:

The appeal was filed before the High Court of Madras to set aside the order of the tribunal for reviewing the promotions made to the Indian administrative service for the year 2004 and promote the respondent to the IAS from the date when his juniors were promoted with the benefits. The high court also held that as per the regulation 5(5), the classification of an individual by the selection committee is very crucial and in the year 2003, the first respondent was adjudged as “very good” by the committee and in 2004 select list he was downgraded in his overall rating without no specific reasons.

The court observed that the power to classify the candidates is the function of the selection committee and the selection committee is not required to record the reasons by assigning overall relative assessment in respect of the eligible officer or for selecting a junior officer, having higher merits in preference over that senior officer. In the case, R.S.DASS V. UNION OF INDIA AND OTHERS 1986 (Supp) SCC 617, the court held that amend regulations do not require the committee to record reasons. Thus in the present case, it was held that the High court was not right in holding that the selection committee has miserably failed to assess all the aspects of the case in their proper perspective.

AoA has the effect of undoing and abrogating the arbitration clause predicated in the Contract Agreement:

The court relies upon the Damodar Valley Corporation v. K. K. Kar,  where the court observed that where the dispute between parties is that the contract itself is substituted by a new contract or by a rescission or alteration, that dispute cannot be referred to the arbitration as the arbitration clause itself would perish if the averment is found to be valid. The case on hand is one such where the parties consciously and with full understanding executed AoA that included “that there will be no arbitration for the settlement of any claims by the contractor in future”.

The SC while setting aside the Delhi High Court judgment held that if the parties agree upon an arrangement to not include arbitration for settlement of any claims. However, the court insists that options are to be made available to take recourse to other remedies, to which the parties are free to adopt in accordance with the law.

Post-dated cheque as advance payment – legal proposition:

The only question that arises for consideration in this appeal by special leave is, whether the post-dated cheques issued by the appellants (hereinafter referred to as ‘purchasers’) as an advance payment in respect of purchase orders could be considered in discharge of legally enforceable debt or other liability, and, if so, whether the dishonour of such cheques amounts to an offence under Section 138 of the Negotiable Instruments Act.

Indus Airways Private Limited v. Magnum Aviation Private Limited – SAMPELLY SATYANARAYANA RAO vs. INDIAN RENEWABLE ENERGY DEVELOPMENT AGENCY LIMITED

The SC does not find any merit in this appeal and the same is dismissed. Since we have only gone into the question of whether on admitted facts, the case for quashing has not been made out, the appellant will be at liberty to contest the matter in the trial court in accordance with the law. The question has to be answered in favour of the respondent and against the appellant. Dishonor of cheque in the present case being for the discharge of existing liability is covered by Section 138 of the Act, as rightly held by the High Court.

Excuse of economic duress can be used to demerit the discharge of arbitration clause: Supreme Court

The appeal was filed against the decision of a single judge of the Bombay High Court, who allowed the respondent’s application under Section 11(6) of the Arbitration and Conciliation Act, 1996.

It was argued on behalf of the respondents, that it was subjected to economic duress and coercion which resulted in the signing of the discharge voucher, which could not preclude its invocation of the arbitration agreement. The appellant stated that, in the arbitration agreement itself that it had to explain the exact correctness of the allegation of coercion and duress with details and particulars about signing the discharge voucher. However, the fact remained that at the relevant time, it faced a crisis of existence. Its acceptance was under financial compulsion which amounted to economic coercion.

The court observed that when The coercion is subtle but very much real, the ‘accord’ is not by free consent. The arbitration agreement can thus be invoked to refer the disputes to arbitration. The court which is required to ensure that an arbitrable dispute exists has to be prima facie convinced about the genuineness or credibility of the plea of coercion. If the court was to take a contrary approach and minutely examine the plea and judge its credibility or reasonableness, there would be a danger of it’s denying a forum to the applicant altogether, because rejection of the application would render the finding final, thus, precluding the applicant of its right event to approach a civil court.

CHIT FUND FRAUD – SUPREME COURT CANCELLED BAIL:

Interim Bail canceled -Hon’ble Supreme Court canceled the bail granted by the High Court-Supreme Court observation during the investigation.

The plaintiff will not be entitled to succeed only on the basis of alleged registration of an agreement of marriage: SC

The honorable Supreme Court looked into the issue, whether there was a valid married between the plaintiff and the deceased? Under such valid marriage, only a widow of Hindu Undivided Family will get the partition on ancestral property.

The learned trial court held that the marriage of the plaintiff with the deceased is said to be proved but marriage is void ab initio under section 24 of the Special Marriage Act, 1954 as both have not attained the qualifying age for marriage and held that the defendants are entitled to 1/3rd of the total scheduled property. On appeal to the First Appellate Court, the learned Court held that in the absence of proof of date of birth the trial court committed an error in coming to the conclusion that the plaintiff has not attained the age of marriage. The honorable Supreme Court stated that since the entire claim is on the validity of the marriage of plaintiff with the deceased, the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence is the established principle of law

The SC allowed the present appeal in the instant case while restoring the judgment and decree of the learned Trial court as the High Court has committed illegality that on the failure of producing any evidence to prove the marriage.

‘ATTENDANCE IS MANDATORY CLAUSE’- Rule 12, BCI Rules of Legal Education, 2008 – Delhi HC

The contention made by the respondents/ students before the Single Judge in the writ petition to assail their detention order, the main pillar of the argument pivoted around the interpretation of Clause 9 and Clause 11.3(v) (i) of Ordinance 11 and the contention that since there was an ambiguity in the said Clauses, the benefit must go in favour of the students.

The Hon’ble High Court totally disagree with the judgment of the Single Judge and thus stated that the word “or” has been used twice in Clause 11.3(v) (ii) and on both occasions, a clear distinction has been drawn between disqualifying a student from being promoted to the next academic year which is either on the ground that there is a deficiency in the required credits as stipulated in Clause 11.3(v)(i) or on account of his detention in a particular year. The words “detention”/ “detained” have to be understood in the context of Clauses 9.2 and 9.3 where they have been mentioned. Clause 9.2 stipulates that a student, who has been ‘detained’ due to shortage of attendance, shall not be allowed to be promoted to the next academic year or semester and Clause 9.3 states that in the event any ‘detained student’ appears in a semester/supplementary examination, his result shall be treated as null and void. Thus, the Hon’ble High Court allowed both the appeal and the impugned judgment is quashed and set aside, without any orders as to costs.

Ecology outweighs TATA’s Housing Project for 95 MLA’s in the State of Punjab: SC:

Tata Housing Development Company Ltd, the appellant questioned the judgment and order dated12.04.2017 passed by the Delhi High Court. The order passed by the High Court of Punjab and Haryana on 26.03.2012 was set aside. The writ petition was restored; the matters were transferred for the decision to the High Court of  Delhi.

The Hon’ble Supreme Court dwelled into the Directive Principles Of State Policy, Fundamental Duties of the citizens and the general principles and good conscience pertaining to the preservation of ecology.

Landmark cases were cited- The HC of Punjab has failed to act on the basis of Doctrine of Public Trust- The duty is to preserve and not to pave way for destruction. Thus the appeal was dismissed by the Supreme court.

Section 149 IPC – Principles Explained by Apex Court:

Case of the prosecution as observed by the Hon’ble S.C – Section 149 IPC explained by the SC –  The application of the principle of vicarious liability under Section 149 IPC what is material to establish is that the persons concerned were members of an unlawful assembly, the common object of which was to commit a particular crime.

The High Court was not justified in granting benefit to those three accused. The presence of respondents in the house of the deceased; the fact that were armed; the fact that all of them entered the house around midnight and further fact that two out of those five accused used their deadly weapons to cause the death of the deceased was sufficient to attract the principles of vicarious liability under Section 149 IPC.

The ‘Seniority’ question between Promotees and Direct Recruits settled by upholding the former as superior:

The appellants petitioned by way of Special Leave Petition (C) No.19565-67 of 2019 to challenge the decisions of the High Court and the judgment order of this Hon’ble court came out in favour of the appellees upholding justice.

The learned single judge of the Manipur High Court interpreted the word “year” in all dimensions to conclude that it meant only financial year and not calendar year. The ratio in Jadish Chandra Patnaik V State Of Orissa was also relied upon to mark the end of judgment. Aggrieved by this declaration, the direct recruits filed a Writ Appeal No. 49 of 2017. This Appeal was transferred from Manipur High Court to Gauhati High Court. The Division Bench upheld the conclusion of the Single Judge Bench. They again filed a Review petition which was dismissed for non- prosecution on 10.04.2019 and another I.A Petition was also dismissed on 24.05.2019 owing to the reason for it being unmerited.  And now, they have approached the Hon’ble Supreme Court to challenge further.

The SC pronounced the judgment pertaining to an inter-se seniority dispute in the Manipur Police Service Grade-II officer’s cadre. The orders of the HC in the Writ Petition and the Writ Appeal are upheld.

Direction by the High Court to recommend a name by the State Screening Committee to UPSC was without jurisdiction says SC:

In the selection process, the Court could at the most have issued a direction to the State Screening Committee to reassess the names of all candidates by giving due consideration to all relevant documents. The Court observed that the direction issued by the High Court directing the State Screening Committee to recommend Respondent No. 1’s name to the UPSC was completely without jurisdiction. The crucial question of whether Respondent No. 1’s name was wrongly excluded by the departmental Selection Committee itself, on account of any bias, malice or arbitrariness. Thus finally the court allowed the instant appeals and therefore set aside the decision of the High Court.

Show-cause notice under Section 11A of Central Excise Act, 1944 is only a Prima facie View: SC

A Show Cause Notice was issued by the office of the Commissioner of Central Excise, Haldia to the respondent and the facts available on record appeared that manufacturing activity was being undertaken by the respondent without following due procedure and without paying any Excise Duty. The question was raised as to why the Central Excise Duty should not be demanded and recovered under the extended proviso to Section 11A of the said Act. It was alleged that the Show Cause Notice had been issued without deciding the preliminary objection of the petitioner. The Appellant, being aggrieved, filed an appeal before the Tribunal.

There was no assessment and computation of any duty element. The matter had not gone beyond the Show Cause Notice. The SC held that the respondents shall be entitled to respond to the said show cause notice within three weeks from the date of this judgment and shall be entitled to material evidence to place in reliance in support of the case.

‘NO EMBARGO’- ORDER VIII RULE 6A of CPC do not put bar on filing Counter-Claim after filing the written statement: SC

The issues considered before the honorable Supreme Court are whether Order VIII Rule 6A of the CPC mandates an embargo on filing the counter- claim after filing the written statement? And in case no bar is there in such filing, what are the restrictions on filing the counter- claim after filing of the written statement?

The Supreme Court observed the statutory provisions governing written statement, set- off and counter- claim under the Order VIII of the CPC. The time limitation for filing of the counter- claim is not explicitly provided by the legislature, rather only limitation as to the accrual of the cause of action is provided. It also found that Order VIII Rule 6A of the CPC does not put an embargo on filing the counter- claim after filing the written statement, rather restriction is only with respect to the accrual of the cause of action. There are some exceptional circumstances as per the view of the Hon’ble Justice Mohan M. Shantanagoudar

The Honorable bench stated that the instant Special Leave petition may be placed before an appropriate Bench after obtaining orders from the Hon’ble Chief Justice of India, for considering the case on merits.

‘OWNER’S RISK’ CLAUSES – THE HOTEL OWNER CANNOT ESCAPE FROM LIABILITY – SC:

The issues considered by the Honorable Supreme Court – complaint filed by the insurer as a subrogee – liability of hotels for theft or loss of vehicles of guests – the required degree of care under bailment – excluding liability by contract

The hotel-owner cannot contract out of liability for its negligence or that of its servants in respect of a vehicle of its guest in any circumstance. The burden of proving that such loss or damage was covered by the exemption clause will also be in the hotel. The honorable Supreme Court dismissed the present appeal.

u/s 301 Cr.P.C victim’s private counsel can only assist public prosecutor- SC:

The appellant made an application to the Additional District and Session Judge, Fast Track Court, Calcutta under section 301 read with proviso to section 24(8) of the code of Criminal procedure, 1973. They prayed for certain relief.

The learned Additional District and Session Judge rejected the said prayer and observed that section 301 of CrPC does not have an overriding effect over section 225, which mandates that the prosecution be conducted by the Public Prosecutor. The honorable High Court agreed upon the judgment passed by the learned Additional District and Session Judge and alluding to section 25 of the CrPC, it was held that it is mandated that a session trial shall be conducted by a Public prosecutor is unequivocal and cannot be diluted by the proviso to section 24(8) which allows the victim to engage a counsel to assist the prosecution.

The court stated that a mandate that allows the victim’s counsel to make oral arguments and cross-examine witnesses goes beyond a mere assistive role and constitutes a parallel prosecution proceeding itself. Given the primacy accorded to the Public Prosecutor in conducting a trial, as evident from section 225 and section 301(2), permitting such a free hand would go against the scheme envisaged under CrPC. The Supreme Court concluded that the High Court was correct in dismissing the application made by the appellant.

‘Delay in serving the notice’, cannot be a exception for Insurance Company in Accident cases: SC

In this case, the appellant’s owned a truck and it was damaged in a fire during the night of 1st/2nd June 2009 but the intimation to the respondent was given only on 3.6.2009 and a claim was raised for the same. The claim was, however, repudiated by the respondent-insurance company vide letter dated 9.9.2009 on the basis of a report of a Surveyor/Investigator that the fire was not natural.

The Appellant filed a consumer complaint before the State Consumer Disputes Redressal Commission, Lucknow, U.P. alleging deficiency on part of the respondent. “The opponent insurance company is hereby directed to pay the complainant 13,50,000 with 9% interest from the date of institution of the complaint till its payment within a period of one month. The opponent will also pay an Rs.10,000/- to the complainant as litigation expenses within the fixed period. If the above amount is not paid within the time fixed then the opponent will be liable to pay interest at the rate of 12% on the entire amount to the complainant. Both parties will bear their own litigation expenses.”

This aggrieved the Respondent and he filed First Appeal No.797 of 2015 before the National Commission. “On the basis of the above discussion, the first appeal No.797 of 2015 is partly allowed and the order of the State Commission is modified to the extent that instead of full IDV Rs.13,50,000/-, the appellant Company shall be liable to pay 60% of the IDV i.e. Rs.8,10,000/- (rupees eight lakh ten thousand only). This amount shall be paid by the Insurance Company along with 7% p.a. interest from the date of filing of the complaint. The litigation expenses of Rs.10,000/- awarded by the State Commission are maintained. The appellant is directed to comply with the order within 45 days from the date of service/receipt of this order.”

The SC held that the conclusions drawn and the directions issued by the State Commission were quite correct and did not call for any interference. Therefore the appeal is allowed and the view taken by the National Commission was set aside.

A medical trust rendering service to its nurses comes within the meaning of a ‘consumer’ – SC:

The case is that the Appellant trust took possession of 29 flats developed by the opposite party for provision of hostel facilities to nurses employed by Lilavati Hospital, which is run by the Appellant trust. The contractual formalities were satisfied. However, within 2-3 years of completion of the project, because of alleged poor building quality, the structure became dilapidated. The appellant vacated the flats in 2002 and since 2004, the flats are lying unused. In the meanwhile, an interim Board of Trustees was constituted which called for a structural report from M/s Raje Consultants and found that the cost of repairs would be more than the cost of reconstruction. The appellant also claims that Respondent No. 1 obtained the occupation certificate for the flats by playing fraud upon the local municipal corporation. Hence the appellant filed Consumer Complaint No. 117/2016 before the National Commission. The National Consumer Disputes Redressal Commission (‘National Commission’) dismissed the Appellant’s petition. This appeal in the Hon’ble Supreme Court arises out of judgment of the National Consumer. The broad principles enumerated can be culled out for determining whether an activity or transaction is ‘for a commercial purpose’ which in turn answers the question ‘who is a consumer?’. The appeal is allowed by the SC and the Judgment by the National Commission is set aside.

The Chit Funds (Amendment) Bill, 2019 – Passed in Lok Sabha:

The Chit Funds (Amendment) Bill which pended in the legislation was passed by the Lok Sabha on 20.11.2019. The Bill, 2019 amends the Chit Funds Act, 1982. The new Bill barricades the perimeters of rotational credit service for efficient use and curbs exploitation by cheat funders.  Chit funds are smart phones of above-average/middle- income groups, the metaphor stresses its necessity.

We know what a ‘Chit Fund’ is but what we actually ought to know is the ceiling amount and the substitution of words as proposed in the Amendment Bill,2019. The proposed Amendment is a guaranteed lamp to dovetail funds to derail the financial crisis.

DEFENDANT CANNOT BE DEPRIVED OF THE STATUTORY RIGHT MERELY ON THE GROUND THAT THE APPLICATION FILED UNDER ORDER IX RULE 13 CPC WAS EARLIER DISMISSED:

The appellant defendant filed an interim application under Section 5 of the Limitation Act to condone the delay of 276 days in filing the petition under Order IX Rule 13 CPC to set aside the exparte decree. The said petition was dismissed by the Additional District Judge and then the appellant has challenged the said order by filing a revision petition, the learned Single Judge also rejected the contention made by the appellant. The special leave petition preferred against the said order also came to the SC.

The honourable Supreme Court considering the facts and circumstances of the present case and in the interest of justice finds that the appellant deserves an opportunity to put forth his defence in the suit for recovery of money and held that the delay in filing the appeal is condoned.  It is also made clear that the criminal complaints filed under Section 138 of NI Act be proceeded on its own merits without being influenced by any of the views expressed by this Court or by the High Court.

‘Further Investigation’ u/s. 173(8) Cr.P.C permissible:

The fact of the case is, Chinnathambi, Sakthivel, and Natraj were convicted by the trial court for committing offenses u/s 449,457,302 r/w to 34,201,397 of IPC as they trespassed into the temple intending to commit robbery and thereby murdered the watchman. The culprits were not detected and the learned magistrate closed the case. Later on, after receiving some clues the investigating officer was granted permission to further investigate the case, as a result, the trial court convicted the accused. Chinnathambi filed an appeal challenging the order of his conviction.

In view of the judgment in Vinay Tyagi’s case the Hon’ble High court holds that it is not the case of review of an order, but a case of further investigation as contemplated under Section 173(8) of Cr.P.C. Therefore, for seeking permission for further investigation from the learned Magistrate, one need not challenge the earlier order of the learned Magistrate accepting the negative final report.

The Hon’ble supreme court held that both negative reports, as well as charge sheet, have to be considered as reports under sec 173(2)of Cr.P.C.This court has thereby overruled the judgment in K.K.S.S.Ramachandran’s case. The fingerprints obtained from the scene of occurrence did not match with that of the appellant and also it has not been established that the ornaments were in possession with the appellant as soon after the commission of the crime. Since there was absolutely no evidence against Chinnathambi, the Hon’ble High Court acquitted him.

POLICE SHALL NOT CHASE ANY TWO-WHEELER RIDERS WHO DON’T WEAR HELMET: HC of Kerala

The Hon’ble Justice RAJA VIJAYARAGHAVAN V. of Kerala High Court pronounced the order pertaining to the issue of bail to a person who commits the offense of rash driving and other consequent effects. The Motor Vehicles (Driving) Regulations, 2017, which replaced the Road Regulations, 1989, has given the manner in which vehicles are to be stopped by a Police officer in uniform or an authorized officer of the State Government. Rule 24 of the Driving Regulations is illuminating.  It speaks about mandatory orders.

The Hon’ble high court of Kerala granted bail to the appellant with a few conditions. The court observed that police shall not hot chase two-wheeler riders who don’t wear helmets but shall use the modern technologies to stop or to find the person committing.

PENNAIYAR RIVER DISPUTE -SC dismissed the IA filed by the government of Tamilnadu:

The Supreme Court demanded to show any communication where the plaintiff had invoked the power of the Central Government and sought the constitution of an Inter State River Water Disputes Tribunal to consider the present controversy. It accepted that there was no such express communication but submitted that the request ought to be inferred from various communications addressed by the plaintiff to the Central Government. Section 3 of the Act provides for an application to be made in the form and manner that may be prescribed, after which the Central Government may exercise the required power. Therefore, it will not be right for us to infer such an idea from the complainant’s communications to the second defendant and then find that the second defendant is guilty of not constituting a tribunal under the act.

 The SC held that there is no reason to entertain the present application. Therefore is dismissed. And the Suit is listed for further directions on 10th January 2020.

Grandson or granddaughter is excluded from heirs in Class ­I from claiming a share in the ancestral property.- SC.

The appellant asserted that she was entitled to a share in the suit property. The appellant’s father predeceased his father and grandfather thereby, his daughter claimed a share in the property which is now owned by her paternal uncle’s grandsons. The Trial Court after analyzing the evidence on record proceeded to dismiss the suit preferred by the appellant vide judgment and decree dated 24th November 2000. Being dissatisfied with the Trial Court’s order, the appellant filed an appeal in the Court of Additional District Judge, Shakti, District Bilaspur­Chhattisgarh. The Appellate Court, however, reversed the conclusion reached by the Trial Court and allowed the appeal vide judgment and decree dated 22nd January 2002. The respondents filed a second appeal before the High Court of Chattishgarh.

The consistent view of this court is the grounds urged by the appellant need to be rejected . Accordingly, the appeal was dismissed with no order as to costs.

REGULARISATION OF PAY SCALE OF SANITARY WORKERS EMPLOYED IN THE MUNICIPALITY:

A Writ Petition was filed before a single judge bench, seeking to quash the order of the State which rejected the plea to regularize the pay scale after completion of 3 yrs from the date of appointment. The petition was approved by the judge. The aggrieved state filed an appeal before a divisional bench which referred the judgment of another divisional bench of Municipal Administration and Water Supply Dept. The latter held to regularize the service of the writ petitioners on completion of 3 yrs. Further, an appeal was made to a Full judge Bench which held that the facts of the department are not applicable in this case and the sanitary workers are entitled to regularized pay only from 23.02.2006. A revision appeal was filed by the sate the recall the order of the divisional bench and by a sanitary worker to review the order of the full judge bench.

Having heard all the parties and analyzing the records the court is of the view that the mere overruling of the order of divisional bench by the Full Bench is not a ground for review. The SC in Kamlesh Verma V. Mayawati and others, laid down the circumstances when the court can review its own judgment.

The other reasons were interpreted in Chhajju Ram V. Nekand Moran Mar Basselios Catholicos V. Most Rev.Mar Poulosde Athanasius & others.

The regularization of the sanitary workers with time scale of pay should be within 3 yrs from appointment and not from 23.02.2006. Sanitary workers have to be treated alike in fixing the pay scales whether they work in Panchayats or Municipalities.

To understand the plight of the sanitary workers the court at this point referred to the SC judgment in Delhi Jal Board V. National Campaign for Dignity & Rights of Sewerage & Allied Workers.

Tamil Nadu Borstal Schools Act, 1925 – Limitations on Writ of Habeas Corpus:

Once Gowthaman was convicted and sentenced for imprisonment for life on 12.03.1999 by the Sessions Court and his appeals to the High Court and the Supreme Court were also dismissed. While so, Gowthaman gave a representation dated 08.10.2011 to the Director-General of Prisons, contending that as on the date of his conviction and sentence by the Sessions Court, he was 19 years and 9 months old and therefore, being an adolescent offender, he should have been sent to borstal school. The said representation was rejected by the Additional Director General of Prisons, challenging which W.P.No.31209 of 2015 was filed.

It was held that no Habeas Corpus Petitions can be maintained by a prisoner on the premise that he was not sent to borstal school by the convicting court, though he was an adolescent offender at the time of conviction. Similarly, a prisoner cannot make a petition to the Government under Section 10-A of the Borstal Schools Act, after he has crossed 21 years of age, for sending him to borstal school under Section 10-A of the Borstal Schools Act on the ground that he was an adolescent offender at the time of his conviction.  It is open to the Magistrates to remand the accused between the age group of 18 and 21 years to prisons and not to borstal schools.

_ Manusri.

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