Daily Legal News 8/9.10.2008

CM’s statement amounts to obstructing justice: Khaidem Mani
IMPHAL, Oct 8: The statement of state chief minister O Ibobi Singh on the floor of the state Assembly on October 6 on the matter of the inquiry report on Maibam Naobi Chanu case amounts to obstructions of justice said advocate Khaidem Mani counsel of case.Speaking at a press conference Mani said the statement given by the chief minister in the house while replying to the question raised by the opposition member RK Anand of MPP on October 6 was a very unfortunate.There can be no questions of subjudice or prejudice indiscussing the report by the state government as court cases in connection had already been concluded after they were withdrawn by the petitioner on May 17 last year.Mention may be made that chief minister had said that the inquiry reports of Maibam Naobi Chanu has already been submitted to the state government but the report could not be considered for discussion ascases on the matter are pending in several courts of law.He also observed that discussing the report would amount to subjudice as there are pending cases in Guwahati High Court and District Judge, Manipur East Advocate Mani reacting to the statement observed the chief minister should only said the report had been submitted by concerned officials of law department and home department. He should not have misled the House by citing the possibility of subjudice.This deliberate misleading of the House should have serious consequences.Citing the chronology of events in teh case Mani said, she was arrested by a team of Thoubal police commandos led by ASI Laishram Chaoba Singh in the afternoon of February 21, 2006 from Kahngabok areas on suspect.She was later produced before Chief Judicial Magistrate CJM, Thoubal and remanded to police custody till March 3, 2006. She was again produced before the same court on March 2, 2006 by the police and she was released by the court from the case.In the meantime, Naobi alleged of excessive torture and physical harassment including molestation while she was in the police custody lodged a complaint with the Manipur Human Rights Commission MHRC, he recounted.MHRC, on March 3 of the same year directed for medical examinations of the victim and same has been done on the same day, the spokesman said.Within the short period of time there were pressures from various womenfolk, human rights activists and students bodies to conduct a judicial enquiry. As a result the state government on March 17, 2006 instituted a commission of enquiry head by retired justice Rajkhowa to inquire into the facts and circumstances leading to the detention and brutal torture of Naobi by the Thoubal police while she was in the police custody.The advocate further recalled that when the commission of enquiry was active the secretary Nongpok Leingak Nupi Lup, Phanjoubam Sakhi Devi with one Y Mema Devi, a of the member of the same body filed a PIL to the Guwahati High Court Imphal bench on March 27 for prosecution of the alleged police personnel involved in the inhuman torture and disregarding treatment towards Naobi Chanu with a demand for payment of compensation to her.By the time, the commission of enquiry submitted its reports to the state government on August 5, 2006 but the Guwahati High Court, Imphal bench as per the PIL filed by Sakhi Devi and Y Mema Devi has directed the district judge, Manipur east to conduct an enquiry into the matter but the directive of the High Court did not give any restrictions to the state government to consider the inquiry reports submitted by the commission of inquiry, he added.Apart from this the two petitioners on April 4, last year filed a writ petition with a misc. application to Guwahati High Court, Imphal Bench withdrawing the PIL . As a result of it, the court passed an order dismissing the case. The order was passed in the presence of the government advocate, Mani added.Mani further said despite of having proper status of the court case in connection with the Naobi issue, deliberations of blunder statement by the state chief minister in the House of the Assembly should not be taken lightly by the people of the state and the questions of privilege of house for his misinformation.
The Imphal Free Press

Maharashtra’s DGP appointment quashed
The Central Administrative Tribunal on Wednesday quashed the appointment of AN Roy as Maharashtra’s Director General of Police on the ground that he had superseded three IPS officers.
A division bench of CAT ruled that the state government was bound to consider the three officers — S.S. Virk, J.D. Virkar and Suprakash Chakravarti — who were senior to Roy, a 1974 batch officer, for the DGP’s post.
“The whole process of selection and appointment of Roy is untenable in law and on facts,” said bench members Sudhakar Mishra and Jog Singh.
The bench directed the state to hold a review selection process/department promotion committee within a month by taking into consideration the three senior officers who were eligible as on February 29 this year and taking a fresh decision to appoint one of them as the DGP.
Until then, the four incumbents may be continued in their respective posts, the bench ruled.
In another development, the Bombay High Court, hearing a PIL filed by journalist R.R. Tripathi on same issue, dismissed it, holding that it was not a subject fit for PIL.
Chakravarti, Director General (Home), had filed an application before the tribunal challenging Roy’s appointment on March 1 before the CAT.
He contended that as per Supreme Court’s directions in earlier judgment, the three senior-most officers should have been considered for state DGP post, and Roy being junior to Chakravarti (1972), Virk (1970) or Virkar (1972), should not have been considered.
As per the CAT’s order, state erred in not considering Virk among the three senior-most officers.
Sunil Shivdasani, Hindustan Times
Mumbai, October 08, 2008

High Court has powers to review acquittal orders, says SC
New Delhi, Oct 9 (PTI) The Supreme Court has ruled that the High Court dealing with an appeal has full powers to re-appreciate, review and reconsider the evidence against an acquittal order passed by the trial court.”When such an appeal is filed, the High Court has full power to re-appreciate, review and reconsider the evidence at large, the material on which the order of acquittal is founded and to reach its own conclusions on such evidence,” a bench of Justices Arijit Pasayat and Mukundakam Sharma observed.The apex court said that both questions of fact and of law are open to scrutiny by the High Court in an appeal against an order of acquittal.”It cannot, however, be forgotten that in case of acquittal, there is a double presumption in favour of the accused,” the bench said.It explained that firstly the presumption of innocence is available to him/her under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless he is proved to be guilty by a competent court of law.”Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the trial court,” the bench said.The bench passed the ruling and observations while dismissing the appeal by Murgan and another accused in an attempt to murder case. PTI

De-reservation of SC/ST jobs ends
NEW DELHI: In a bid to discourage undermining of quotas for the underprivileged, the Cabinet on Wednesday decided to end de-reservation of posts meant for Scheduled Castes and Scheduled Tribes in central government jobs. At a meeting chaired by Prime Minister Manmohan Singh, the Cabinet approved enactment of a law to enforce job reservation for SCs/STs by stipulating penalties on offices which did not implement them effectively. Finance minister P Chidambaram said the Cabinet approved the Scheduled Castes and Scheduled Tribes (Reservation in Posts and Services) Bill 2008. ”Posts reserved for SCs and STs will not be de-reserved and they (vacancies) will be carried over,” he said, adding that the proposed bill would contain provisions for penalties on offices which did not implement the job quota. Chidambaram said the proposed legislation would contain provisions to impart training to SCs and STs to enable them to compete for jobs. The bill also proposed that those candidates who qualify on merit would not be considered under the quota, he said. ”The proposed law will create an unambiguous, coherent and authentic framework for implementing reservation for SCs and STs in central government services,” Chidambaram said. The proposed law would bring in ”interpretative clarity about various facets of the policy on reservation in central government jobs and infuse greater confidence in the minds of the SCs and STs,” he added.
9 Oct 2008, 0234 hrs IST

New Bill for SC/ST reservations
The Union Cabinet today approved new legislation that would seek imposition of penalty on officers who are found guilty of not filling the quota for the scheduled tribes and scheduled castes in the central government. The Cabinet approved the introduction of a new Bill in Parliament to his effect.
This Bill is aimed at helping the SC and ST communities in a major way as the proposed law would seek to create “unambiguous, coherent and authentic framework for the implementation of reservations for the SC and ST” in the central government services.
The Bill approved by the Union Cabinet in its meeting today, comes after shocking revelations that a large chunk of reserved jobs for the two communities were lying vacant for years together.
The Cabinet also decided to withdraw an earlier Bill that was placed in the Rajya Sabha in 2007.
BS Reporter / New Delhi October 09, 2008, 1:26 IST

Amended Bill to deal with cases of corruption in higher judiciary
New Delhi, October 8 A newer version of Judges (Inquiry) Bill would be tabled in the coming session of Parliament. The Cabinet meeting on Wednesday decided to introduce the Judges (Inquiry) Amendment Bill, 2008 and withdraw the Judges (Inquiry) Bill, 2006, which was introduced in Lok Sabha on December 19, 2006.
The 2006 Bill had drawn criticism from the Parliamentary committee and many retired jurists for lacking the teeth to to deal with cases of corruption in higher judiciary.
The new Bill provides for establishing a National Judicial Council (NJC) to undertake investigation and inquire into allegations of misbehaviour or incapacity of a judge of the Supreme Court or of a High Court as well as regulate the procedure for investigation and inquiry in such cases.
The NJC can also recommend suitable action after following the prescribed procedure. Sources, however, informed that under the new law, removal of a judge would be through impeachment by Parliament. Sources also added that the Cabinet decision was taken on the basis of a note submitted by the Ministry of Law and Justice on the issue. A similar note on the proposed law had been placed before the Cabinet earlier too but no decision could be taken owing to opposition by some ministers.
Express news service Posted: Oct 09, 2008 at 0026 hrs IST

RNRL files part of family MoU in HC
Anil Ambani-controlled Reliance Natural Resources (RNRL) today submitted a copy of the relevant parts of the memorandum of understanding (MoU) signed between the two brothers.
Reliance Industries’ counsel Harish Salve opposed the court taking the MoU on record and stated that he was reserving his right to cross examine. Ram Jethmalani, counsel for RNRL, read out the contents of the affidavit and said that the portions of the MoU submitted were only to enable the court to effectively deal with the frivolous grievances argued by RIL on non-production of MoU.
Still, the two counsels united in saying that the contents of the documents should not be made public. The MoU records the arrangement between the two brothers as part of the demerger scheme and also notes what needs to be done in future. The court has adjourned the hearing of the case till October 15. According to ADAG, RIL had contracted to supply 12 mmscmd of gas per day to state-run NTPC at $2.34 per unit , and it was agreed that if the gas was not supplied, it would be sold to RNRL.
Jethmalani will continue his submissions in the next hearing on 15 October. Justice JN Patel, who is hearing the case, announced that the court would sit on Saturday (October 18), as it would like to complete the hearing before the Diwali vacation and use the Diwali vacation for drafting the judgement.
BS Reporter / Mumbai October 09, 2008, 0:56 IST

Sexual dysfunction: Denied job, woman moves Delhi HC
New Delhi, October 8: A woman who aspires to join Sashastra Seema Suraksha Bal (SSSB) but suffers from congenital anomaly, has approached the Delhi High Court alleging that she was denied employment on the basis of sexual dysfunction.
Admitting the plea of Noorie (name changed) recently, a Division Bench of Justice Sanjay Kishan Kaul and Justice Mool Chand Garg observed ‘one cannot be refused opportunity of employment on the basis of sexual dysfunction unless a reasonable nexus is proven between the requirement of the job and the inability of the candidate due to the sexual disability’.
Appearing for 22 year-old Noorie, her counsel Geeta Luthra contended that she fulfilled mandatory requirements and qualified all the requisite examinations, however, she was declared medically unfit by a medical panel on the ground that Noorie suffers from Pseudo hermaphroditism (person born with secondary sex characteristics) which is a congenital anomaly.
Terming the medical panel’s report as arbitrary and discriminatory, the counsel argued that the decision is against her fundamental right to equal employment.
Stating that the people who suffer from pseudo hermaphroditism some time are subjected to public harassment, sexual abuse and even violence, the lawyer submitted before the Bench that five years ago Noorie had undergone a surgery known as gonadectomy which is surgical removal of an ovary or testis.
“Independent doctors have declared Noorie as medically fit and said she is physically, emotionally and psychologically a woman. Though she cannot conceive a baby, she is capable of a successful married life,” the lawyer claimed.
Citing the Gender Recognition Act (GRA) of UK, Noorie’s counsel sought a direction to the Central government for an appropriate law. He said that the English law provides such people a legal recognition in their acquired gender but there is no legislation on these lines in our country.
Following the counsel’s submissions, the High Court Bench sought the Central government’s response and directed the lawyer to furnish all the medical reports by the next date of hearing of the matter.
Posted: Oct 08, 2008 at 1524 hrs IST

HC issues notice to state
BANGALORE: The Karnataka High Court has issued an emergent notice to the state government regarding the handing over of Gokarna Mahabaleshwar temple to Ramachandrapura mutt.
After hearing a public interest litigation filed by a city resident MS Muralidhar and others, a vocation bench headed by Justice Ashok B. Hinchigeri has issued the notice to revenue secretary, Commissioner of Religious and Charitable Endowment, and District Commissioner of Dakshina Kannada. After the submission of the petitioners’ counsels, the Court adjourned the matter to October 10 and directed all the respondents to file objections if there be any.
The petitioners’ counsel appealed to the court that the Government’s order on August 12 related to the handover of the temple was illegal. After handing over the temple, it was shown in revenue records that the temple was an ancient property of Ramachandrapura Mutt. The government action was contrary to law and arbitrary. Hence a CBI inquiry was needed, the petitioners’ counsel said.
DNA Correspondent
Wednesday, October 08, 2008 14:41 IST

HC reprieve for Prakasam kiln owners
HYDERABAD: About 150 brick kiln owners in Prakasam district on whom the state slapped notices of evacuation have obtained a reprieve from the Andhra Pradesh High Court. Following objections from the residents and the subsequent notice from the tahsildar and a resultant legal battle, nearly 150 owners of brick kilns in Addanki village expressed their readiness to shift their units to a far away place if given some time to do so. The kilns were set up there about 10 years ago much before residential houses came up. A division bench of the high court comprising Chief Justice Anil R Dave and Justice R Subhash Reddy, which heard a batch of petitions was convinced of the intentions of the kiln owners and allowed them the time they sought to shift to a distant place. The HC chief justice made an arrangement following the averments made by the kiln owners. “Since they do not manufacture bricks till December 2008, they will be given six months time from then till June 2009 to shift to a new place on their own,” he said. On its part, the bench pronounced a safeguard to the kiln owners that since their industry is not a pollutant industry, the pollution control board has no business or control over them. The bench also found fault with the Tahsildar of Addanki who straight away served an ultimatum on the kiln owners to remove their kilns from there without giving any prior show cause notice to them and said this method is not proper on his part.
8 Oct 2008, 0725 hrs IST,TNN

HC directs ED to return Pune builder’s passport
Mumbai, Oct 8 (PTI) Bombay High Court today directed the Enforcement Directorate (ED) to return the passport of a Pune-based builder.Avinash Bhosale’s passport had been confiscated by the Customs authorities last year after he was arrested at the international airport here for not declaring certain dutiable goods.A Division Bench of Chief Justice Swatanter Kumar and Justice A P Deshpande directed that the builder’s passport be returned in 15 days on the condition that Bhosale would furnish information regarding all his bank accounts.Subsequent to Bhosale’s arrest by Customs, ED had launched its own investigation into his foreign bank accounts and took possession of his passport. PTI

Three-judge panel arrives to probe cash-at-judge’s door scam http://www.hindu.com/thehindu/holnus/002200809281968.htm
Chandigarh (PTI): A three-judge panel set up by the Chief Justice of India K G Balakrishnan arrived here on Sunday to look into the alleged involvement of a judge of the Punjab and Haryana High Court in the cash-at-judge’s door scam.
The panel consisting of Allahabad High Court’s Justice Hemant Laxman Gokhale, Jammu and Kashmir High Court’s Justice K S Radhakrishnan and Delhi High Court’s Justice Madan B Lokur was set up by the CJI on August 26 this year.
However, Justice Gokhale who heads the committee refused to reply to a volley of questions by mediapersons in connection with the case saying, “Please leave us alone.”
The Chandigarh administration had last month referred the Rs 15 lakh cash-at-judge’s door scandal to the CBI on the ground that it may have inter-state ramifications.
The scandal jolted the judicial fraternity as it “involved” Haryana’s former Additional Advocate General (AAG) Sanjeev Bansal and four others.
While the prime accused a Delhi-based businessman Ravinder Singh Bhasin is in CBI custody till September 30 in this case, four others including Bansal, property dealer Rajeev Gupta, Bansal’s clerk Parkash Ram and a homeguard jawan Nirmal Singh are in judicial lock up.
Both the CBI probe and the inquiry by the judge’s panel will run simultaneously.
The cash-at-judge’s door scam is related to the alleged delivery of Rs 15 lakh at the house of Justice Nirmaljit Kaur of the Punjab and Haryana high court.
Sunday, September 28, 2008

1. NHRC’s report on Salwa Judum presented to the Supreme Court. The report, contrary to what the CJI observed during the last hearing, defends Salwa Judum, even while making certain recommendations on the anti-Naxal strategy.2.Supreme Court’s judgment in Divisional Manager, New India Assurance Co. Ltd. vs. A.Sankaralingam: At a time when the SC has referred to a larger Bench reconsideration of the landmark Bangalore Water Supply judgment, to reconsdier a host of issues settled in that judgment, this one by a two-Judge Bench (delivered on October 3 can be accessed on the judis site, if the link is not working)is a bolt from the blue. The Bench held in this case that a part-time employee is covered under the Industrial Disputes Act. 3.A.G.Noorani on lawless lawyers in the latest EPW4.Andre Beteille on Constitutional Morality in EPW5.Vinod Bhanu on right to recall legislators: the Chhattisgarh experiment in EPW6. Sharad Joshi on how S.138 N.I.Act leads to farmers’ suicides in Maharashtra.7.M.J.Antony on the latest Supreme Court judgment in Pareena Swarup vs. Union of India, declaring its contempt for Babu-friendly tribunals.
Posted by V.Venkatesan at 11:13 AM

M J Antony: Babu-friendly tribunals
Yet another special forum devised by the executive takes a knock from the Supreme Court.
The propensity of bureaucrats to encroach upon judicial powers is matched only by that of the judiciary to prevent it. This drama has been going on in the Supreme Court for over a decade. It started with the administrative tribunals in L Chandra Kumar vs Union of India (1997) case. The more prominent and recent cases involved the Competition Commission of India, the National Company Law Tribunal and its appellate forum. Last week, the Supreme Court asserted the primacy of judiciary in the case of tribunals to be set up under the Prevention of Money Laundering Act 2002. Thus, another tribunal is stuck in litigative quicksand.
The challenge in this public interest petition, Pareena Swarup vs Union of India, had a familiar ring. It questioned the constitutional validity of the provisions dealing with the composition and powers of the adjudicating authorities, the qualifications for appointment of the chairperson and members of the appellate tribunal and the procedures for their resignation and removal.
The law was passed to prevent money laundering and punish those who indulged in it. In 2007, the government passed rules for the appointment and conditions of service of the members of the appellate tribunal. The members and the chairperson are to be selected by a committee headed by the Revenue Secretary. This was one glaring intrusion in the judicial territory. Normally the selection is done after consulting the Chief Justice.
There were several other improprieties. The 2007 rules did not explicitly specify the qualifications of the members from the field of finance and accountancy. The tenure of the panel was not secure. The chairman could be a person who is “qualified to be a judge of a high court” but need not be one who is or has been a judge of the Supreme Court or the high court. The legal member of the tribunal, similarly, could be one who is qualified to be a district judge, but need not be one who is or has been a district judge. These and several other defects violated the independence of the judiciary. A bench headed by the Chief Justice himself stated that these fears were well founded.
The remarks of the court in this context are worth quoting: “It is necessary that the court may draw a line which the executive may not cross in their misguided desire to take over bit by bit judicial functions and powers of the state exercised by the duly constituted courts. While creating a new avenue of judicial forums, it is the duty of the government to see that they are not in breach of the basic constitutional scheme of separation of powers and independence of the judicial function.”
More strong words from the apex court: “The Constitution guarantees free and independent judiciary and the constitutional scheme of separation of powers can be easily and seriously undermined if the legislature were to divest the regular courts of their jurisdiction in all matters, entrust the same to the newly-created tribunals which are not entitled to protection similar to the constitutional protection afforded to the regular courts. Independence and impartiality are to be secured not only for the courts but also for tribunals and their members, though they do not belong to the judicial service. The safeguards that ensure independence and impartiality are not for promoting personal prestige of the functionary but for preserving and protecting the rights of the citizens. A judiciary free from the control of the executive and the legislature is essential if there is a right to have claims decided by judges who are free from potential domination by other branches of the government.”
In the end, the court, with the assistance of senior counsel and law officers, chalked out some amendments to the rules and the government accepted them. Now it is for the government to change the rules of the game.
The experience of the past tells us that once the court intervenes and clips the wings of the bureaucrats, they lose interest in setting up the tribunals. In some states, administrative tribunals are starved of funds and are dysfunctional. The Competition Commission idea has also lost its steam once the court stepped in and shed the unconstitutional imbalance of power between the babus and the judges. The tax tribunals proposed by an amendment to the Companies Act in 2002 is also in the doldrums, as a Constitution bench has to examine the validity of some provisions offending the independence of the judiciary.
The common argument of the executive in these cases is that the world economy has become more complicated and the judges do not have adequate grasp of international corporate transactions; the questions should be left to experts in the field. The judges maintain that they have been dealing with varied cases for centuries and the existing institutions are capable of handling them well if only they are given enough funds and facilities. But the executive holds the purse strings. That is why the infrastructure of courts and tribunals is pathetic, the judges are low-paid and arrears are mounting.
M J Antony / New Delhi October 08, 2008, 0:00 IST

HC upholds buyout of notice period
An employer cannot compel an employee, who has resigned, to serve the entire notice period when he is willing to compensate the company, the Bombay high court has ruled. Vivek Phadnis (name changed) and his colleague (name withheld) can finally bid adieu to their long-time employer Rashtriya Chemicals and Fertilisers (RCF) and proceed to their new jobs after buying out their notice period.
The court directed the RCF to accept the buying out amount paid by the two and let them to take up their new jobs.
Both employees had better-paying job offers from Qatar and offered to pay the salaries for their notice period. However, they were in a fix after the company insisted that they serve the full three-month notice period. Delaying their move to Qatar would have cost them their new job. They then decided to move court against their erstwhile employer. Advocates for the duo, Jamshed Mistry and Amit Karkhanis, contended that denying their client the opportunity for a better job amounted to violation of his fundamental right.
The RCF, on the other hand, had taken a stand that being a government undertaking it was in public interest that Phadnis serves his entire notice period allowing the company the time to find a replacement.
However, even at a prior hearing, the court had observed that the RCF, a government undertaking, was “doing something very wrong”.
DNA Correspondent
Wednesday, October 08, 2008 03:25 IST

HC seeks timeframe from CS for Dal Lake restoration
Srinagar, Oct 07: The High Court Tuesday sought a timeframe from Chief Secretary S S Kapur for completion of different works relating to restoration of Dal Lake to its ‘original position’.The double bench comprising of Justice Nissar Ahmed Kakroo and Justice Hakim Imtiyaz Hussain said: “We propose to specify a time bound schedule for completion of works. We would like to know the views of chief secretary as to what would be the reasonable time period to be spelt out for implementation of court’s directions.”The judges also asked the Chief Secretary S S Kapur to explain the particulars of the officers who in his estimation were responsible for lapses in implementation of the court’s directions.The chief secretary who was present said that if the court reposes confidence in him, he will live up to its expectations. Kapur attributed his non-appearance on two earlier hearings to “communication gap”.The judges said his explanations satisfied them saying they think the chief secretary believes in the rule of law.“The amount of sincerity with which he made the submissions, we have no reluctance to appreciate his concern. His non appearance was neither willful nor deliberate,” they said.The court restored the past practice empowering him to scrutinize reports being filed by the functionaries of the State in the court. He has been authorized to pass directions to officials for implementation of the court directions from time to time for retrieving the ‘lost glory’ of the lake.IGP Traffic who was missing from the court received a stern disapproval for his non-presence.“He has assumed unto himself the power of exemption,” the judges remarked. The official had been exempted from personal appearance under the exigency of law and order. “The cause shown by him has no relevance with law and order requirement and he is directed to appear personally before the court on future hearing,” the judges said.All officers concerned with the implementation of the orders of the court have been asked to submit their reports on affidavits with copies to the chief secretary. However, the Pollution Control Board has been asked to deal with the violators as per the decree governing its activities.The court in its previous hearing had expressed anguish at non-presence of the advocate general and chief secretary and had remarked that the court was not subservient to the meetings in the secretariat.
Rashid Paul

SC slams Himachal HC for casual approach http://www.zeenews.com/articles.asp?aid=474652&sid=NAT
New Delhi, Oct 07: The Supreme Court has slammed the Himachal Pradesh High Court for the casual manner in which it dismissed the State government’s plea seeking permission to appeal against the acquittal of a rape accused. A bench of Justices Arijit Pasayat and Mukundakam Sharma regretted that the High Court did not pass any reasoned order while dismissing the Government’s plea to appeal against the order of acquittal passed by the trial court. “The trial court was required to carefully appraise the entire evidence and then come to a conclusion. If the trial Court was at a lapse in this regard, the High Court was obliged to undertake such an exercise by entertaining the appeal,” the apex court said in a judgement. The State Government had filed the SLP in the apex court after a division bench of the High Court dismissed the application filed by the Government under Section 378(3) CrPC, for permission to appeal against the acquittal order passed by a trial court in the case of Manoj Kumar alias Chhotu. Manoj, who was facing charges under IPC sections 376 (rape) and 511 (criminal intimidation), was acquitted by the trial court against which the State had sought permission to file the appeal in the high court which was turned down by the latter in a terse order stating “Dismissed”. Upholding the State’s contention, the apex court said the trial Court on the facts of the case did not perform its duties, as was enjoined on it by law. “The High Court ought to have in such circumstances granted leave and thereafter as a first court of appeal, re-appreciated the entire evidence on the record independently and returned its findings objectively as regards guilt or otherwise of the accused,” the court said. “It has failed to do so. The questions involved were not trivial. The High Court has not given any reasons for refusing to grant leave to file appeal against acquittal, and seems to have been completely oblivious to the fact that by such refusal, a close scrutiny of the order of acquittal by the appellate forum, has been lost once and for all,” the apex court observed. According to the apex court the manner in which the appeal against acquittal has been dealt with by the High Court leaves much to be desired. “Reasons introduce clarity in an order. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief, in its order indicative of an application of its mind,” the bench said. The apex court recalled that in a number of its earlier rulings it had clearly stated that courts should give proper reasons for its decision. “The absence of reasons has rendered the High Court order not sustainable. Judicial discipline to abide by declaration of law by this Court, cannot be forsaken, under any pretext by any authority or Court, be it even the Highest Court in a State,” the bench observed. The apex court said that the right to reason is an indispensable part of a sound judicial system. Reasons indicate an application of mind to the matter before Court. Hence, the apex court said, the High Court order was unsustainable. “The High Court shall entertain the appeal and after formal notice to the respondent hear the appeal and dispose it off in accordance with law, uninfluenced by any observation made in the present appeal,” the apex court said while allowing the appeal. Bureau Report

Nandy’s plea seeking quashing of FIR not maintainable, HC told
New Delhi (PTI): A complainant, who had lodged an FIR in Gujarat against political analyst Ashis Nandy for writing an article in a national daily allegedly portraying the state in bad light, has asked the Delhi High Court not to interfere in the proceeding at this stage.
Filing a response on Nandy’s petition seeking quashing of proceeding against him, the complainant, V K Saxena, said in his affidavit that court’s interference in the probe at this stage would amount to prejudging the case.
“This petition is premature in as much as the investigation is sought to be challenged at a very nascent stage and in view of the catena of decision of the Supreme Court, when the investigation is in process, Courts should loathe in exercising discretion,” Saxena said in the affidavit.
“When prima facie the ingredient of offence are disclosed and found in the contents of the FIR, the court at this stage cannot embark upon an inquiry into meticulous examination of the material, much less, into the grounds of defence,” he said.
Saxena was responding to the notice issued to him by the High Court on June 25 on Nandy’s plea.
Earlier, Nandy had approached the Supreme Court after the High Court refused to pass any order restraining the Gujarat police from arresting him.
The apex court on July 1 had restrained the police from arresting him.
In the FIR filed in Ahmedabad by Saxena, it has been alleged that the article related to assembly election results promoted communal disharmony between Hindus and Muslims.
However, Nandy’s counsel V K Kanth had contended that the FIR was registered out of malafide intention and was aimed at penalising and depriving him of expressing his sincere and bonafide views.
Tuesday, October 7, 2008

Bombay HC adjourns Fiona matter to Oct 10
Public Prosecutor C A Ferreira informed the Bombay High Court at Panaji that Goa Police were investigating the complaint filed by a city-based voluntary organisation against Fiona Mackeown, a British national and mother of slain teenager Scarlett Keeling.Following which, Justice A P Lavande directed the public prosecutor to file a written statement to this effect and adjourned the matter to October 10.Utt Genkara spokesman Adv Aires Rodriges has filed the complaint against Ms Mackeown for negligently leaving behind Ms Keeling in the custody of a stranger a day prior to the rape and murder of her minor daughter in February. Adv Rodriges has in his petition submitted that Ms Mackeown was fully aware that her daughter, Scarlett, was a minor and that the law mandates that all children within the state be provided a safe environment. It is the responsibility of the parents to ensure that the child is not abused.Mr Rodriges further submitted that the conduct of Fiona, who left her daughter in the custody of an adult stranger before leaving for Gokarn in neighbouring Karnataka on holiday was in violation of sections 8(1)(2) and section 8(12) of the Goa Children’s Act 2003 and needs to be investigated.Earlier, on August 11, the president of the Children’s Court Desmond D Costa had disallowed the complaint filed by Adv Rodriges on the ground that as per section 20 of the Children’s Act, cognizance of any offence under the act could be taken only on a complaint filed by the child, her parents, guardians, close relatives, police or a competent authority.UNI

J and K HC quashes Public Safety Act of militants aide in Jammu
Detention of a militant group’s over ground worker (OGW) under Public Safety Act (PSA) was quashed by the Jammu and Kashmir High Court (Jammu Bench).The Court did not find any material on record to support the impugned detention order passed by the District Magistrate, Jammu, on June 30 last year, whereby the accused Mohd Taj Gujjar was detained under the PSA. Gujjar (code Dilawar Tariq) of tehsil Mendhar in Poonch district, was an OGW of various banned militant outfits, namely Hizbul Mujahideen, Lashkar-e-Toiba (LeT), al-Badr, actively operating in the state, indulging in anti-national and disruptive activities including killing and terrorising innocent people. Gujjar was arrested on March 10, 2007 along with associates Feroz Ahmed and two Pakistani militants of the LeT and was detained under the PSA by the order of District Magistrate, Jammu passed on June 30, 2007.The court allowed the petition against detention and quashed the order passed by DM, Jammu, on June 30, 2007, with the direction that accused, who is presently lodged in District Jail Jammu should be released from custody forthwith if not required in any other case.UNI

CJI met NSA, sought extra security for higher judiciary
New Delhi, October 7 The UPA Government is considering a proposal to enhance the security cover provided to top judicial brass in the country.
According to sources, this follows a recent meeting which Chief Justice of India K G Balakrishnan had with National Security Advisor M K Narayanan in which he made a case for reviewing the current security cover available to the judges in the higher judiciary.
At the meeting specially called for the purpose last week, Justice Balakrishnan is learnt to have conveyed his reservations about what he feels is an ‘inadequate’ security cover for the sitting judges, including the chief justices of various high courts.
“Generally, the judges have two security personnel: a PSO and an armed guard. The CJI just wanted to apprise the Government of the present security cover offered to the judges and, if possible, re-consider it in view of the present situation,” said a senior official of the apex court, not revealing whether there was any threat to any of the sitting judges.
Tannu Sharma Posted: Oct 08, 2008 at 0028 hrs IST

Judges bill may be delayed a year
NEW DELHI, Oct. 7: The Judges Inquiry Bill 2006 to enquire into complaints and take action against judiciary is likely to be delayed at least for a year.
The law and justice ministry appearing before the parliamentary standing committee said that the bill is with the Union Cabinet for consideration and more “in-depth study” was required as it was a “sensitive” matter.The bill was recommended to the parliamentary standing committee in 2006. The committee, after taking views from all sides, submitted the bill to the law and justice ministry in 2007 for the introduction in Parliament after the Cabinet nod.In September, an unhappy committee had asked the law and justice ministry to submit an “action-taken report” on the issue pending for more than a year. Urging it to list the matter in the Cabinet as soon as possible, the committee had asked the department to spell out its stand on the issue.The justice department officials who appeared in front of the committee on Tuesday has promised to expedite the issue but will have to discuss it further as it is a “sensitive” issue.With the next Parliament session scheduled on October 17, it is unlikely that the Cabinet will give its nod before that.The bill envisages to bring accountability to the justice department at a time when CJI K.G. Balakrishnan has recommended impeachment of Justice Soumitra Sen of Calcutta high court for “misconduct” and an inquiry into the “cash at judge’s door” scam in Chandigarh.

Apex Court Directs Compulsory Registration Of Marriages http://way2freshers.com/law/law-newsline/law-newsline.html
In a ruling, having far reaching consequences, the Supreme Court has directed that all the marriages, irrespective of religion, will be compulsorily registered. The Court gave a time of three months to the centre and the state governments to frame and notify the rules in this regard.
The Court gave clear directions to incorporate the ‘consequences of non-registration’ in such rules. The Court also directed all such laws to be placed before the Court for scrutiny to ensure that the objective is not diluted at any stage.
Section 8 of the Hindu Marriage Act enables the state government to make rules with regard to the compulsory registration of marriages. At present, only four states viz. Maharashtra, Gujrat, Karnataka and Himachal Pradesh have rules providing for compulsory registration of marriages.
The Court accepted the contention of the National Commission for Women (NCW) that non-registration of marriages affected women the most. Enumerating the benefits of the registration, NCW submitted that it would help prevent child marriages, check bigamy/polygamy, help women exercise their matrimonial rights, enable widows to claim inheritance and deter men from deserting their wives.
Solicitor General G E Vahnavati, who assisted the Court as ‘amicus curiae’ received appreciation from the Court for providing valuable data regarding the laws relating to Hindu, Muslim, Christian and Parsi marriages.
No Reply to SC Notice, says Speaker
The Loksabha Speaker Sh. Somnath Chatterji has categorically stated that he would neither accept a notice from Supreme Court nor would appear before the Court to explain the expulsion of some MPs, found guilty in the cash-for-query scandal.
The Speaker said this after an all-party meeting urged him to ignore the notices. The speaker expressed his highest regard for the Court, but opined that the Apex Court should have examined if it had any authority to look into a matter belonging to the exclusive domain of Lok Sabha. The Speaker also referred to the observations of the Apex Court in the JMM case that no court could take away the right of the House to decide on the conduct of the members.
105:- Powers, privileges, etc. of the Houses of Parliament and of the members and committees thereof:
(1) Subject to the provisions of this constitution and the rules and standing orders, regulating the procedure of Parliament, there shall be freedom of speech in Parliament.
(2) No member of the Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of the Parliament of any report, paper, votes or proceedings.
(3) In other respects, the powers, privileges and immunities of each House of the Parliament, and of the members and the committees of each house, shall be such as may from time to time be defined by the Parliament by law, and, until so defined shall be those of that House and of its members and committees immediately before the coming into the force of Section 15 of the Constitution (Forty-fourth Amendment) Act 1978.
(4) The provisions of clauses (1), (2) and (3) shall apply in relation to the persons, who by the virtue of this constitution have the right to speak in and otherwise to take part in the proceedings of, a House of Parliament or any committee thereof, as they apply in relation to members of Parliament.
Specifically, it is the sub-section 2 of the Article-105 that provides complete protection to any thing said or the vote given in the Parliament or to any committee thereof.
The speaker said that as the Parliament had decided the expulsion of the members by vote, Article-105(2) would specifically exclude any intervention of the Court.
It may be recalled that the punishment of expulsion was given to the MPs caught in cash-for-query scam .The speaker had received thousands of letters and e-mails, hailing the decision, to take tough stand against the corrupt MPs.
Free Ship For single Child put on hold
The Delhi High Court granted a stay on the CBSE circular for granting free education to the single girl child.
The circular made it compulsory for all the affiliated schools to provide free education, from class VI onwards, to every single child. The circular was issued at the direction of the Human Resource Development Ministry. The circular was objected to by many Principals, as they felt that this would put a lot of financial burden on the schools, which would be ultimately passed on to the other students.
The petition said that as the schools were not receiving any aid from the government, it would be extremely difficult for them to bear this burden. The Court issued notices to the centre, CBSE and the Director of Education, Delhi. The case would come up for next hearing on March 27.
“AMU – not a minority institution” HC
The Allahabad High Court has termed granting of minority status to Aligarh Muslim University as unconstitutional. The court, therefore, declared the reservation of the seats for Muslims and 50% quota, approved by the AMU medical council in the Post- Graduate medical courses, as illegal. However, the court allowed the students, already admitted on the basis of reservation, to continue.
The High Court referred to the judgment of the Supreme Court in the Aziz Basha case in 1968 holding that AMU was not a minority institution, and hence, could not claim the benefit of Article-30 of the Constitution.
Art – 30 of the Constitution is reproduced below:
“30. Right of minorities to establish and administer educational institutions.-
(1)All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
(1A) In making any law, providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law, for the acquisition of such property, is such as would not restrict or abrogate the right guaranteed under that clause.
(2) The state shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, based on religion or language”.This article in Fundamental Rights ensures the freedom to a minority institution to administer its affairs.
SC quashes UP government order
The Apex Court, in a severe blow to the UP govt., quashed its order for the withdrawal of POTA charges against the controversial minister Raghuraj Pratap Singh, alias Raja Bhaiya.
The Court further directed that the case against him will be transferred to the neighbouring Madhya Pradesh. The Court also directed the minister to surrender before the special court within 7 days. The order also applied to his father and his cousin. The Court, however, gave liberty to all the accused to file fresh bail application before the special Court.
The direction of the Court to transfer the case outside UP made amply clear the opinion that the Apex Court has about the fairness of trial in UP.
Following the order, Raja Bhaiya resigned from the Mulayam Singh Ministry. However, he said that he did not have a guilty conscience and was resigning to uphold the democratic values.
Strictures passed against petitioner on PIL(Public Interest Litigation)
The Panjab and Haryana HC on 10th November came down heavily on a petitioner, who had filed a PIL, seeking a CBI enquiry into the alleged encroachment of public land. Not only did the Court dismiss the PIL, but also directed registry not to entertain any PIL filed by the petitioner in the future.
The petitioner had sent a letter, saying that he ‘lacked confidence’ in Mr. Justice Hemant Gupta and hence, he must not hear the case.
The petitioner was dubbed as “busybody” and a “masked phantom working for the personal gains and meddling in the judicial process.”
The Bench said that it was refraining from initiating the contempt proceedings against the petitioner, so as not to give him the publicity that he assiduously seeks.
Reiterating the view of the Supreme Court with regard to the PILs, the Bench held that there must be a genuine public interest involved in the litigation.
Justice Y K Sabharwal —The New Chief Justice of India
Justice Yogesh Kumar Sabharwal took over as the new Chief Justice of India on the Diwali Day, 1st November, 2005. Expressing sympathy for the Delhi blast victims, he said that it would be the endeavour of the judiciary to expeditiously try such cases, despite the large noumber of witnesses involved.
Justice Sabharwal, after his appointment as CJI, favoured abolition of the death penalty. He said that as a judge of the apex court he was not against the capital sentence in rarest of rare cases, but personally he wanted the capital punishment to be erased from the penal code. However, he emphasized that it was upto the legislature to decide whether to retain the death penalty on the statute book or not. He sounded very optimistic when he attributed the delay in the cases to the high filing rate, rather than the slower disposal.
Born on January 14, 1942 Justice Sabharwal mainly practised in civil and constitutional cases and was elevated as an additional judge of the Delhi High Court on November 17, 1986 and became its permanent judge on April 29, 1987.
He was elevated as the judge of the Apex Court on January 28, 2000, the golden jubilee day of the Supreme Court. As a judge of the Apex Court, Justice Sabharwal delivered several important judgements dealing with the constitutional matters, including the recent verdict on the dissolution of Bihar Assembly, holding the dissolution unconstitutional. Justice Sabharwal dealt with the politically-sensitive JMM bribery case, medical scam and unauthorised constructions in the capital.His 14 months term would expire on January 14, 2007, on the attainment of 65 years of age.
Law Newsline
By admin on October 7th, 2008

Now, legal eagles make net gains
MUMBAI: Generations of lawyers have posed for portraits in front of bookshelves lined with leatherbound legal tomes.
The books being testimony to the fact that the greying counsel had put in decades of legal research to turn into someone his clients could trust. This picture though does not hold true anymore. Thanks to the advent of online legal databases, the legal brains in the country are not only getting younger but they have rarely felt the need to open a book. “As a junior lawyer, I had to sift through hundreds of volumes of reported cases to find orders that supported my case. It was a long and tedious process that took months but now a youngster gets it all on his computer within seconds,” says Nilima Chandiramani, principal of K C Law College. The Indian legal system is based on the common law principle which is notable for its inclusion of extensive non-statutory law in form of precedents set by court orders. It reflects a consensus of centuries of judgments by working jurists. “A lawyer while arguing his side in court is expected to quote extensively from past judgments which support his own case,” Chandiramani says. It is this knowledge of case laws that juniors had to gain through years of research work under the watchful gaze of senior counsels. Something that they now get by simply subscribing to an online case finder. “You just have to enter the right search term to get the all the relevant case laws immediately,” explains Sanyogita Saini, a customer care manager with manupatra.com, an online legal database. “Locating the right cases is infinitely simpler now,” says Raghunandan Malik, director of Supreme Court Cases Online, another popular search engine. Thus a lawyer seeking bail for a murder accused can get access to all the cases decided on the issue by the apex court and various high courts since 1950 at the click of a mouse. He no longer needs to spend months in a library. “Since internet penetration is low in our country we give all the cases on a CD-ROM,” says Malik. And it’s not just texts of court orders that the lawyers can get. Refined search options can be used to find judgments according to catch words, high court orders which were later reversed by the Supreme Court, find related orders given by government tribunals and commissions and even circulars issued by various government departments upon an issue. The change is acknowledged not just by practising advocates but by professors of law as well as well. “I have seen a clearly perceptible improvement in academic papers and thesis material submitted by students in the last few years. They cite latest case laws with a lot more ease now because everything is so up-to-date online,” said S S Singh, the director of the National Law Institute University (NLIU) at Bhopal. The real benefits of technology are being reaped none more than by young advocates like Satyan Israni who at 31 years of age runs his own law firm. “These days we want everything faster and are not ready to spend years as a junior,” said Israni, giving a large portion of credit for his success to online databases. “I find it so easy to prepare good arguments and advice my clients because all the decided cases are there in front of me,” Israni says. Both Saini and Malik refused to part with the exact number of subscribers they had but admitted that it was a rapidly expanding business. “We started in 2001 and have offices in 13 cities already so from that you can decipher how fast the growth is,” Saini says. When pressed for a ballpark figure she adds, “Our subscriber base is upward of 50,000”. Popularity of online legal research can also be found in the fact that helps demystify an otherwise complex world of legal jurisprudence. “I have always maintained that the basic of all law is pure logic and common sense,” says Chandiramani. “You may not even know what the hull of a ship is but can still frame perfectly valid arguments on shipping laws if you grasp the concept behind them by reading online court orders,” she adds. Experts say that in the long term access to online case laws will help hone skills of lawyers in India, which with over eight lakh practising advocates is second only to the US in strength of the legal profession. Law colleges all over the country are now installing computer systems so that lawyers get access to online databases. As Israni explains, “Good libraries are hard to find but a CD-ROM can be carried anywhere”.
7 Oct 2008, 0303 hrs IST, Kartikeya,TNN


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s

%d bloggers like this: