LEGAL NEWS 06.11.2008

U.P. police confusing CBI: Rajesh Talwar
http://www.hindu.com/2008/11/06/stories/2008110659631300.htm
Legal Correspondent
Aarushi’s father seeks to intervene in PIL for restraining media
New Delhi: Aarushi’s father Rajesh Talwar on Wednesday moved the Supreme Court seeking to intervene in a public interest litigation petition filed by an advocate to restrain the media from giving adverse publicity to the case of murder of the Noida teenager and seeking a direction to frame guidelines in reporting sensitive cases.
While denying that the PIL petition was filed at his instance, Dr. Talwar took exception to the averments of the Uttar Pradesh police that their investigation was in the right direction and that the publicity given to the case was to avoid speculation.
Responding to a notice issued by the court on the PIL petition by Dr. Surat Singh, the State government had said that it was prima facie satisfied about the alleged involvement of Dr. Talwar in the murder of his daughter Aarushi and domestic help Hemraj and only thereafter was he arrested.
The government said the police had conducted a fair investigation and observed all necessary rules under the Criminal Procedure Code (Cr. PC) before arresting Dr. Talwar. “There is sufficient evidence collected by the investigating officer of the case which prima facie proves the involvement of Dr. Talwar in the double murder.”
Aarushi and Hemraj were found murdered at the Talwars’ Jal Vayu Vihar residence in Noida district on May 16.
The affidavit said a fair investigation was conducted by the police before the probe was entrusted to the Central Bureau of Investigation on May 31. The CBI subsequently gave a clean chit to Dr. Talwar. The government said the information on Dr. Talwar’s alleged involvement was passed to the media, not for maligning his or the girl’s reputation but only to prevent speculation.
Dr. Talwar said that from these averments it was clear that the police continued to vilify and tarnish his reputation by insisting in the public domain that he was guilty and was involved in the murder of his own daughter. He said the police were bent upon confusing the investigation by the CBI to the detriment and prejudice of the applicant. “It is expedient and in the interest of justice that the applicant may be allowed to intervene and be heard in the matter,” he said.
http://www.hindu.com/2008/11/06/stories/2008110659631300.htm

Slain youth’s father to sue Maharashtra govt., Raj Thackeray
http://www.hindu.com/thehindu/holnus/000200811011341.htm
Patna (IANS): The father of Rahul Raj, the youth shot dead by Mumbai Police after he fired indiscriminately in a city bus, on Saturday said he would file a lawsuit in the Supreme Court against the Maharashtra government and Maharashtra Navnirman Sena (MNS) chief Raj Thackeray.
Kundan Prasad Singh is unhappy with the Maharashtra government’s probe into his son’s killing and angry with Thackeray for having justified the action of the police in Mumbai.
“I will file a PIL (public interest litigation) soon for justice,” Singh told IANS here.
Raj, 25, was shot dead by the police Monday after he attacked the conductor of a bus and fired at a passenger with his revolver.
Before being shot dead, Raj had said that he wanted to kill MNS chief Thackeray for inciting his party workers to attack youths from Bihar who were in Mumbai for a railway recruitment examination.
Singh said Maharashtra’s delay in ordering a judicial probe into the incident was frustrating.
”I fail to understand their hesitation in ordering a judicial probe into the case. It shows that the so-called encounter was fake,” he added.
Singh said his son was innocent and had nothing to do with politics.
Rahul’s sisters, Puja and Priyanka, said that they had lost faith in the Maharashtra government.
“Our innocent brother was killed by Mumbai police, how can we expect justice from the Maharashtra government? We want a judicial probe by a Supreme Court judge,” Puja said.
Puja, who works in a bank, also questioned why her brother’s post-mortem report had not been released five days on.
Priyanka, who is pursuing a Masters in Computer Applications, said Mumbai police had not even contacted their family.
“The Mumbai police is yet to contact us in connection with preparing a report in the case,” she said.
http://www.hindu.com/thehindu/holnus/000200811011341.htm

MNS hate campaign: All of us are Indians, says apex court
http://www.ptinews.com/pti/ptisite.nsf/0/A1174FFAB3D35847652574F90048D6DB?OpenDocument
New Delhi, Nov 6 (PTI) In the wake of Raj Thackeray-led MNS party’s hate campaign against north Indians and non-Marathis, the Supreme Court today struck a patriotic note by saying that “all of us are Indians” and there is no difference between people coming from various regions.”What’s the difference between north Indians and Indians. All of us are Indians,” a bench of Justices B N Aggrawal and G S Singhvi quipped, while posting for Monday, a PIL seeking judicial inquiry into the killing of a Bihari youth Rahul Raj in a police encounter and the murder of another north Indian in Mumbai last month.On Tuesday the apex court had observed that if there was a “political will” such hate campaign would not occur in the country. It had also cited Article 355 to drive home the point that the Union Government had adequate powers to give necessary directions to the State to prevent such incidents.The bench of Justices Aggrawal and Singhvi said it would hear the matter along with another related PIL which had earlier sought appropriate directions to the Government to ensure that the country’s unity was not threatened by vested interests fomenting regional chauvinism.Incidentally, the apex court had directed the petitioners in both cases to suitably amend their petition and come before it when the matter is taken up for further hearing.During the brief arguments today, the petitioner Sanjeev Kumar Singh submitted that he was compelled to approach the Supreme Court as the authorities in Maharashtra had failed to respond to his request for providing adequate protection to north Indians in the state. PTI
http://www.ptinews.com/pti/ptisite.nsf/0/A1174FFAB3D35847652574F90048D6DB?OpenDocument

SC: Can convict on basis of extra-judicial confession
http://economictimes.indiatimes.com/News/PoliticsNation/SC_Can_convict_on_basis_of_extra-judicial_confession/articleshow/3679241.cms
6 Nov, 2008, 0336 hrs IST,Sanjay K Singh, ET Bureau
NEW DELHI: The Supreme Court on Wednesday said that an accused can be convicted on the basis of reliable extra-judicial confessions. It is not open to the court to presume such confessions as weak evidence while deciding the cases, said apex court. A bench comprising Justice Arijit Pasayat and Justice P Sathasivam said: “Such a confession (extra-judicial confessions) can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it”. Justice Pasayat, writing the verdict for the bench, said: “An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact.” “The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession.” Judicial confessions are those which are made before a magistrate or a court in the course of judicial proceedings. Extra-judicial confessions are those which are made by the party elsewhere than before a magistrate or court. Extra-judicial confessions are generally those that are made by a party to or before a private individual, which includes even a judicial officer in his private capacity. It also includes a magistrate who is not especially empowered to record confessions under Section 164 of the Code of Criminal Procedure, 1973. The court dismissed the plea of two appellant convicts who had challenged a Calcutta high court order. They were convicted taking into account extra-judicial confessions.
http://economictimes.indiatimes.com/News/PoliticsNation/SC_Can_convict_on_basis_of_extra-judicial_confession/articleshow/3679241.cms

Madras HC reserves orders on plea involving minister
http://www.indlawnews.com/newsdisplay.aspx?d4ee6811-0ffb-4395-b520-f80cfe32537a
11/6/2008
Madras High Court reserved orders on a writ petition, in which State Agriculture Minister Veerapandi S Arumugam is cited as one of the respondents, where petitioners alleged illegal measures at the hands of the Police and Salem Corporation Authorities and claimed to face imminent threat to their life.After hearing the arguments of both the sides, Ms Justice K Suguna reserved orders without mentioning the date.Additional Advocate General (AAG) P S Raman submitted the petitioners constructed a compound wall around their jewellery shop on government land.As per the Revenue records, since 1987 the compound wall area fell under government poramboke land.As petitioners encroached upon government land, the Corporation authorities took steps to get back the land and demolished the unauthorised construction.The allegation made against the Minister by the petitioners were ulterior in motive and without an iota of truth in it, he contended.Senior Counsel N G R Prasad, who appeared for the petitioners, submitted the government side was giving false information to the court. The entire land belonged to the petitioners with the patta also in their names.UNI
http://www.indlawnews.com/newsdisplay.aspx?d4ee6811-0ffb-4395-b520-f80cfe32537a

HC sees red in AAI’s khadi bias
http://timesofindia.indiatimes.com/Cities/AAI_staff_warned_for_wearing_khadi/articleshow/3679389.cms
6 Nov 2008, 0425 hrs IST, TNN
CHENNAI: Guess what award an employee of the Airport Authority of India (AAI) got from the management for wearing khadi? A notice, warning her of stern action for violating the dress code! S Kasthuri, senior office assistant of the AAI in Chennai, had great regard for Mahatma Gandhi. As a mark of respect, she had taken an oath to wear only khadi or handloom dresses throughout her life. However, Kasthuri adhered to the uniform

colour code of the AAI, but desisted from using the polyester or synthetic materials supplied by the authority. She also wrote to the management seeking permission to continue wearing khadi uniform. Viewing this as “most undisciplined behaviour and a serious lapse” the AAI said she would attract disciplinary proceedings for “violating the dress code.” Kasthuri was left with no other option but to move court. Justice K Chandru, lambasting the AAI administration for their “sartorial despotism,” said it was unthinkable to consider wearing khadi uniform as misconduct in the post-Independent India. The AAI’s action can never be condoned, he said, adding: “Kasthuri, instead of being appreciated, was unnecessarily being hounded out by the AAI without any legal, constitutional or other justification. Compelling her to wear the uniform made of synthetic or silk or polyester varieties is nothing but a sartorial despotism.”
http://timesofindia.indiatimes.com/Cities/AAI_staff_warned_for_wearing_khadi/articleshow/3679389.cms

HC rejects disabled student’s plea
http://www.indianexpress.com/news/HC-rejects-disabled-student-s-plea/382030
Mohan Kumar Posted: Nov 06, 2008 at 0041 hrs IST
Mumbai, November 5 : Parents of a multiple disabled student who was removed from a special school in Suburban Goregaon are now facing the dilemma of finding an alternative special school after a review petition filed by them was dismissed by the Bombay High Court recently.
Petitioner Sanghamitra Roy (suffering from multiple disabilities) had moved a review application following the state government’s suggestion to admit the petitioner in the School of Spastics Society.
According to petitioner’s advocate Uday Warunjikar they had contended that the student is suffering from hearing, speech and multiple disabilities and it would not be proper to admit him to a school for spastics.
The Government in June had told the High Court that directions were given for admission to other special schools in Mumbai and Navi Mumbai.
Based on that, the court had disposed the petition challenging removal of students with multiple disabilities from Sanskardham School.
The court had observed that as the state had made arrangement for admission in other special schools, there was no grievance left to be addressed. The court also noted that after the petitioner was removed from Sanskardham School, he was given admission at Ali Yavar Jung Institute.However, the petitioner complained it was not running on a day-to-day basis and not meant for persons with multiple disabilities.
The state finally suggested the school of Spastics Society of India. But the parents feel that a school for spastics won’t be proper.
“I have now advised them to move the Supreme Court,” said Warunjikar.
http://www.indianexpress.com/news/HC-rejects-disabled-student-s-plea/382030

Residents to move HC against air traffic noise at IGI
http://timesofindia.indiatimes.com/Delhi/Residents_to_move_HC_against_air_traffic_noise_at_IGI/articleshow/3677241.cms
5 Nov 2008, 1527 hrs IST, PTI
NEW DELHI: Residents of an upmarket locality near the Indira Gandhi International airport here have decided to knock the door of the High Court to get relief from acute noise pollution caused by frequent air traffic movement. “The third runway at New Delhi’s IGI airport might be a boon for decongesting air traffic movement, but for over a lakh residents in Vasant Kunj, it has become a major noise menace,” S R Agarwal, vice president of RWA of Vasant Kunj Sector C Pocket 1 said. At a meeting held on Tuesday, 32 presidents of Residents Welfare Association (RWAs) of the area along with the area Senior Citizen Welfare Association decided to lodge FIR and file a case in the High Court on the plea that their right to live in peace was being violated. To highlight the matter, an NGO ‘Chetna’ has launched a signature campaign as well as shot off a letter to Civil Aviation Ministry and Central Pollution Control Board (CPCB) seeking immediate intervention in the matter. The residents in the area have been suffering from hearing loss, insomnia and also feeling constantly stressed due to deafening sounds caused by hovering aircrafts, Anil Sood from ‘Chetna’ said. Seventy-six-year-old Janak Taneja, President of Senior Citizen Welfare Association said, “The elders are at the receiving end. For the last few days since the opening of the runaway I have not been able to sleep and have to pop sleeping pills.” Agarwal feared that the situation is likely to worsen in the near future as 65 planes per hour are being planned from this landing strip. “The sound is around 90 decibel against the normal 55 dB in the daytime and 45 dB permissible noise level in the night as stipulated by the CPCB,” Agarwal said.
http://timesofindia.indiatimes.com/Delhi/Residents_to_move_HC_against_air_traffic_noise_at_IGI/articleshow/3677241.cms

HC shuts ‘illegal’ gurdwara that helped runaway couples
http://www.indianexpress.com/news/hc-shuts-illegal-gurdwara-that-helped-runaway-couples/381936/0
RAGHAV OHRI Posted: Nov 06, 2008 at 2336 hrs IST
Chandigarh, November 5 : This is one bad news for runaway couples. The ‘gurdwara’ in Sector 32 that gave them quick marriage certificates has been restrained from solemnising any marriage in the future till further orders. The Punjab and Haryana High Court issued the orders after it was brought to its notice that the owner of the ‘gurdwara’ charged exorbitant sums from the couples.
The owner, Gurmeet Singh, provided not only marriage certificates but also bridal make-up and wedding clothes to the couples who would get their photographs clicked to use them in court for seeking protection against their families. The charges varied from Rs 4,000 to Rs 10,000, according to the couples from Punjab, Haryana and Chandigarh who got their marriages solemnised at the ‘gurdwara’, the court said.
The judge said three to four petitions were being filed in the HC every day by couples who carried marriage certificates issued by Gurmeet.
The court smelt foul and issued notices to the UT Administration, directing it to find out if this place was actually a gurdwara or a commercial set-up that was earning money by solemnising marriages under the garb of a place of worship. Notices were issued to the Administration on October 16.
UT senior standing counsel Anupam Gupta was directed to ensure that an officer was deputed for the purpose. While the Chandigarh Police gave a clean chit to Gurmeet, holding that there was no cognisable offence made out against him, Gupta submitted on Wednesday that he was not satisfied with the police report.
“This house is by no means a gurdwara. There are only three rooms. In one room, the Guru Granth Sahib has been kept,” said Gupta.
Reacting to the submissions, Justice Ranjit Singh Randhawa said: “The number of marriages conducted here is very large. By keeping a Guru Granth Sahib, the place does not become a gurdwara. Does this person have any legal authority? Some of the runaway couples have said this person even advertises for this so-called gurdwara.”
The judge held: “A larger question is whether a private person is entitled to hold marriages? Gurmeet and his family members are restrained from solemnising any marriage in the future. A further probe will see whether there is a misuse of religion as this may lead to criminal offence.”
Gurmeet Singh is originally from Haryana. He told Newsline: “I closed down the gurdwara today. Police visited my residence yesterday and were questioning about the gurdwara. I am a heart patient and I don’t want to get into any litigation. I was doing this for the benefit of the public. I never charged anything for the weddings. The couples would pay me according to their own sweet will. I had got this place registered by the Administration in 1986.”
http://www.indianexpress.com/news/hc-shuts-illegal-gurdwara-that-helped-runaway-couples/381936/0

HC orders survey to ascertain misuse of resettlement land
http://timesofindia.indiatimes.com/Delhi/HC_orders_survey_to_ascertain_misuse_of_resettlement_land/articleshow/3678614.cms
6 Nov 2008, 0124 hrs IST, TNN
NEW DELHI: Delhi High Court has ordered the Capital’s civic agencies to conduct a survey if alternative land allotted to encroachers/ squatters of public land as part of their resettlement policy is being misused or sub-let. For starters, Justice S N Dhingra zeroed in on Satya Niketan and gave MCD/ DDA/ L&DO two month’s time to find out as to who the original allotees are and who infact the present occupants are, within a period of two months. “There is a colony called Satya Niketan, it was earlier known as J J Colony, where alternate plots of land were allotted to such encroachers. It is well known that each and every plot of this colony is now in occupation of persons with commercial interests, who are doing business from here, and the colony has thus been converted into a big commercial hub.” The court was hearing a petition filed by an NGO Wazirpur Bartan Nirmata Sangh which alleged that despite previous directions of the HC, the government had not acted against encroachers, who were provided with alternate land to resettle them, but had instead sold it off and again resorted to squatting. “The alternative land is allotted to encroachers for their benefit so that they are resettled at a proper habitable place, with sanitation and infrastructure, on licence basis. If it has been turned into a business by certain persons, who keep getting alternate plots and then reselling them, it reflects the failure of the policy,” HC observed, saying such a policy should not be a “fraud on the people”. HC also indicated that across the Capital, civic agencies will be required to carry out a similar survey once results of Satya Niketan are in. The court expressed its unhappiness with the way authorities tried to deflect HC’s intentions by not following directions and instead approaching the Supreme Court. On its part, the government said that because its appeal was pending with SC, all HC directions should be seen as stayed.
http://timesofindia.indiatimes.com/Delhi/HC_orders_survey_to_ascertain_misuse_of_resettlement_land/articleshow/3678614.cms

HC livid over delay in filing murder FIR
http://timesofindia.indiatimes.com/Delhi/HC_livid_over_delay_in_filing_murder_FIR/articleshow/3678491.cms
6 Nov 2008, 0117 hrs IST, TNN
NEW DELHI: The city police has come in the firing line of Delhi High Court (HC), which has sought an explanation from top cops for their failure to register an FIR in connection with a murder committed in August last year. “It is shocking that the police has not registered the FIR for such a heinous crime, which had taken place on the intervening night of August 5-6, 2007,” noted Justice Kailash Gambhir, directing the Joint Commissioners of the local police station and Crime Branch to file an affidavit explaining the cause of delay in lodging the FIR. The court was hearing a petition filed by a woman alleging the police had not taken any action after her brother was killed in Rohini area last year. Despite several requests to lodge an FIR, the police simply transferred the complaint to the Crime Branch, as alleged by the petitioner through her lawyer, Anil Soni. Viewing it seriously, HC directed the senior officers to give details within one month about “what action has been initiated against delinquent officers for their despicable conduct.” The court fixed November 18 as the date for further hearing of the matter. In her petition before Justice Gambhir, Radha informed the court that because of this failure on the part of police she had approached this High Court last year but the court had suggested her to approach the metropolitan magistrate (MM). Though the MM did take cognizance of her complaint and sought a status report from the local police, Soni brought to HC’s attention how seven adjournments had been granted and till date police has not made any progress in the case. HC took a dim view of this and also pulled up the concerned MM, observing “even MM has not discharged his judicial functions in the right earnest as no directions till date have been given by the MM for registration of an FIR.”
http://timesofindia.indiatimes.com/Delhi/HC_livid_over_delay_in_filing_murder_FIR/articleshow/3678491.cms

No decision yet on CJI’s request to hike pay for judges
http://timesofindia.indiatimes.com/India/No_decision_yet_on_CJIs_request_to_hike_pay_for_judges/articleshow/3679205.cms
6 Nov 2008, 0320 hrs IST, Dhananjay Mahapatra, TNN
NEW DELHI: The Centre appears to be in no hurry to take a decision on the urgent request of Chief Justice of India K G Balakrishnan seeking the doubling of the monthly salaries
of judges of the higher judiciary. Concerned over the pittance of pay for the judges, a major reason for the waning attraction for leading advocates to accept posts of judges in the high courts and the Supreme Court, Justice Balakrishnan had written a letter in July this year to the law ministry pitching for a salary hike. The letter stressed the need, especially in the light of huge salary hikes proposed for central government employees by the pay commission, for increasing the salary of the CJI to Rs 1.1 lakh per month from the present Rs 33,000 and Rs 1 lakh for the judges of the SC and CJs of the HCs. It had said a salary of Rs 90,000 per month for the HC judges would be appropriate compensation. Apart from the increase in the monthly salary, the CJI had also impressed upon the government the need to increase the sumptuary allowance and medical reimbursements for high court judges. “The law ministry is yet to firm up a proposal for placing it before the Cabinet, which will be the first step before a Bill is brought before Parliament to amend the salaries of judges in the higher judiciary,” law ministry sources said. In April this year during the conference of the Chief Justices of the HCs presided over by the CJI and attended by other judges of the SC, discussions had taken place on an agenda item proposing a 10-fold hike in the salaries of judges of the higher judiciary, but there was no consensus on it. The annual conference of the CJs had also debated another agenda item proposing an increase in the retirement age of high court judges from 62 years at present to 65 years. The agenda paper had said the Sixth Pay Commission, for future appointments as chairpersons of regulatory bodies such as SEBI, TRAI, CERC, CCI and IRDA, has recommended a consolidated salary of up to Rs 3 lakh per month.
http://timesofindia.indiatimes.com/India/No_decision_yet_on_CJIs_request_to_hike_pay_for_judges/articleshow/3679205.cms

Judges’ asset declaration before CJI not for public eye: SC to CIC
http://indiarti.blogspot.com/2008/11/judges-asset-declaration-before-cji-not.html
The Supreme Court on Wednesday told the Central Information Commission (CIC) that declaration of assets by judges before the Chief Justice of India (CJI) was a “voluntary” act and was not for the public eye. Appearing for the Supreme Court, Additional Solicitor General Amarendra Sharan maintained that judges could, of their own accord, declare their assets as per a Full Court Resolution by the Supreme Court in 1997. Sharan maintained that revealing any details would amount to a “breach of confidentiality” as declarations were made to the Chief Justice in his personal capacity and not on official terms. However, Information Commissioner M M Ansari appeared dissatisfied with Sharan’s explanation of the procedure and proceeded to question if a “Full Court Resolution” was not an official document at all. Chief Information Commissioner Wajahat Habibullah followed up, questioning if the declarations, if any made, were held by the CJI’s office. Habibullah also wantedto know if the declarations submitted before the CJI were indeed passed on to successors. The CIC has reserved the case for final orders.
http://indiarti.blogspot.com/2008/11/judges-asset-declaration-before-cji-not.html

Labour & Industrial Law : TIME BARRED IS BARRED
http://www.lawyersclubindia.com/news/2008/11/time_barred_is_barred.asp
Posted on : 03 November 2008 by K.C.Suresh
SC tells courts not to entertain time barred petitionsThe Supreme Court has directed the courts across the country not to entertain petitions based on belated representation by an employee against their removal from service, as these representations are being used as a device to overcome the bar of limitation.A bench comprising Justices R V Raveendran and Lokeshwar Singh Panta, dismissed the petition of an employee who made a representation to the Director of Geology, Tamil Nadu and Minister for Industries after 18 long years of his removal from service and later filed an application with the Central Administrative Tribunal, seeking directions to the department to decide his representation.Appellant C Jacob had joined as a drill helper in June 1967. His services were terminated in 1982 on account of unauthorised absence from service.He made a representation after 18 years on May 5 and July 21, 2000 against his termination.The tribunal directed the department to decide his representation within four months. The department rejected his representation.Mr Jacob went to the Madras High Court where a single judge bench allowed his petition while the two judge bench of the High Court, however, allowed the appeal of the department.The apex court, while dismissing the petition noted in its judgement that ‘ when a government servant leaves service to take an alternative employment or to attend personal affairs and doesn’t bother to send any letter seeking leave, letter of resignation or voluntary retirement and the records do not show that he is being treated as being in service, he can not appeal after two decades that he should be taken back on duty.’ ‘ Nor can such employee be treated as having continued in service. There by deeming the entire period as qualifying service for purpose of pension, that will be a travesty of justice,’ the apex court said in its decision.The Supreme Court further added that sympathy in such matters will encourage indiscipline.The court also noted ‘ The courts/tribunals proceed on the exemption that every citizen deserve a reply to his representation.Secondly they assume that a mere direction to consider and dispose of a representation des not involve any decision on rights and obligation of parties.’ ‘ If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of direction to consider.If the representation is considered and rejected, ex-employee files an application or writ petition not with reference to the original cause of action of 1982 but by treating the rejection of the representation given in 2000 as the cause of action.In this manner, the bar of limitation gets obliterated or ignored,’ court stated.The apex court also held that as per the pension rule an employee of Tamil Nadu government can claim pension only on completion of 20 years of qualifying service.UNI
http://www.lawyersclubindia.com/news/2008/11/time_barred_is_barred.asp

Family Law : MONOGAMY IN MUSLIMS _ KERALA MULLS
http://www.lawyersclubindia.com/news/2008/11/monogamy_in_muslims_kerala_mulls.asp
Posted on : 03 November 2008 by K.C.Suresh
Kerala law reforms panel mulls proposal on muslim monogamyThe Kerala Law Reforms Commission is mulling a proposal to make monogamy the general rule for Muslims in the State, with exceptions provided under only ‘socially exceptional’ circumstances.The Draft Committee of the Commission, headed by Noted Jurist, Mr Justice (Retd) V R Krishna Iyer, has circulated among Commission Members the draft of the Kerala Muslim Marriage and Dissolution by Talaq (Regulation) Bill, which also recommends a Muslim woman shall be entitled to divorce only through court or with the approval of a conciliation council. Commission Vice-Chairman Mr Justice (Retd.) Ramakrishnan told that the draft bill had also been forwarded to legal luminaries of the Muslim Community to seek their views.‘We have asked everyone to give their views within 10 days. We hope to ready the final draft within 15 days and submit it to the State Government,’ he added. The Bill proposed by the Draft Committee suggests the State Government should declare that ‘among Muslims in Kerala, monogamy is the general rule and polygamy a just exception, permissible only in socially exceptional circumstances and that also subject to compassionate conditions.‘If any Muslim, man or woman, marries again during the subsistence of the first marriage, the party who violates shall be guilty of bigamy under the Indian Penal Code and punishable as such,’ it added. A second marriage would be allowed only with the consent of the 1st wife in writing before a Notary Public or a judicial officer with the wife briefly giving her reasons for the consent. It has also suggested that the female spouse shall be entitled to divorce only through court or with the approval of a conciliation council on grounds of irretrievable breakdown irreparable by conciliation. ‘Such conciliation shall be a condition precedent and shall be tried by the conciliation council whose unanimous decision will be binding.’ UNI
http://www.lawyersclubindia.com/news/2008/11/monogamy_in_muslims_kerala_mulls.asp

Criminal Law : Paramount duty of court is to do justice
http://www.lawyersclubindia.com/news/2008/11/paramount_duty_of_court_is_to_do_justice.asp
Posted on : 03 November 2008 by K.C.Suresh
SC: Paramount duty of court is to do justiceThe Supreme Court has held that the paramount duty of court is to prevent the miscarriage of justice and an appellate court has the power of reviewing the entire evidence to do justice.A bench comprising Justices Arijit Pasayat and Mukundakam Sharma upheld the Rajasthan High Court judgement directing acquittal of a husband, who was sentenced to life imprisonment for killing his wife as he suspected her fidelity.According to prosecution, on March 22 1999, both Narayan and his wife Bhanwari Devi were found lying in a pool of blood. The throat of the woman was cut and she was dead whereas the husband, whose throat was also cut, survived. At the time of the incident the lady was five or six month pregnant while Narayan had come from abroad only three months ago which made him suspect that she was carrying the child of somebody else in her womb. This was the topic of frequent fights between the couple.The Rajasthan High Court, however, acquitted the husband. The apex court while upholding the judgement of the High Court in its judgement ruled, ‘The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from the acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not.’ The apex court concluded by saying, ‘ The principle to be followed by the appellate court considering an appeal against the judgement of the acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgement is clearly unreasonable and relevant and convincing material has been unjustifiably eliminated in the process it is a compelling reason for interference.’ UNI
http://www.lawyersclubindia.com/news/2008/11/paramount_duty_of_court_is_to_do_justice.asp

Criminal Law : SC outlines terms for granting bail in heinous offences
http://www.lawyersclubindia.com/news/2008/11/sc_outlines_terms_for_granting_bail_in_heinous_offences.asp
Posted on : 02 November 2008 by Y.Prakash
In cases involving serious offences like murder, dacoity and rape, the nature ofaccusation and evidence against an accused be examined by courts before granting bail, the Supreme Court has said.According to the apex court, bail should be granted by the sessions and high courts after examining the nature of accusation, severity of punishment in case of conviction and the nature of supporting evidence.Before granting bail, the courts should evaluate if there is a reasonable apprehension of an accused tampering with the evidence or threatening the complainant.A bench of Justices Arijit Pasayat and C K Thakker re-emphasised on the parameters for granting bail to anaccused while quashing the bail granted to an accused charged with carrying out “supari killing” of a person under Ashiyana police station of Uttar Pradesh’s Lucknow district.It was alleged that the accused had paid Rs 10 lakh through a conduit to two persons for shooting down the victim Chandra Pal Singh on 21st September, 2006.Though the sessions court had dismissed the bail plea of the accused, the Allahabad High Court granted bail by passing certain observations against the prosecution’s claim.Aggrieved by the grant of bail, family members of the deceased filed a SLP in the apex court seeking cancellation of the bail.The family members through their counsel complained that the high court had practically written a judgement of acquittal, by not only referring to the incriminating materials, but also concluded about their unreliability.It was submitted that such observations while dealing with a bail application was improper.Agreeing with the submission, the apex court observed, “While dealing with an application for bail, there is a need to indicate in the order, reasons for prima facie concluding why bail was being granted particularly where an accused was charged of having committed a serious offence.”The apex court said there was a difference between giving reasons for granting bail and discussing the merits and demerits of the case.”At the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken. But that does not mean that while granting bail some reasons for prima facie concluding why bail was being granted is not required to be indicated,” the apex court observed.In this context, the apex court cited its ruling in the Pappu Yadav case wherein it was held that the court granting bail should exercise its discretion in a judicious manner and not as a matter or course.The bench recalled its observation in the said case, “Though at the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail as being granted particularly where the accused is charged with having committed a serious offence.”Hence the apex court said the high court was not justified in granting bail to the accused and accordingly directed the latter to forthwith surrender.
http://www.lawyersclubindia.com/news/2008/11/sc_outlines_terms_for_granting_bail_in_heinous_offences.asp

Others : UK law firms may be allowed to operate in India: CJI
http://www.lawyersclubindia.com/news/2008/11/uk_law_firms_may_be_allowed_to_operate_in_india_cji.asp
Posted on : 02 November 2008 by Y.Prakash
Chief Justice of India K G Balakrishnan has said that UK law firms could be allowed to operate in India but a final decision in the matter would have to be taken by the Indian Bar Council. “I don’t think Indian Bar Council can continue to resist (the proposal to allow foreign law firms to operate in India),” the Chief Justice of India said here on Friday evening while delivering a keynote address on ‘Judicial Reforms in India’ organised by the Indo-EU Business Forum’ at the Court House hotel, in the heart of the city. Asked if UK law firms can be allowed to do transactional work with the objective of facilitating foreign investment in India and to advise the foreign investors, Justice Balakrishnan said, “It should be decided by the Bar Council of India. I am sure it will come soon. Discussion between the Bar Council of India and its British counterpart has started. It may happen shortly and it will be helpful.” India’s High Commissioner to the UK Shiv Shankar Mukherjee who spoke on the occasion, referred to the opening of legal system in India, saying, “Of course it is going to happen.” He said he was present during a meeting between Indian Law Minister, H R Bharadwaj and Britain’s Secretary for Justice, Jack Straw, when the issue had figured prominently. “I cannot give you a time frame but this is being handled at the senior level and it will be done.” Justice Balakrishnan also dwelt at length on the large number of cases pending in Indian courts and steps taken to deal with the issue.
http://www.lawyersclubindia.com/news/2008/11/uk_law_firms_may_be_allowed_to_operate_in_india_cji.asp

Intellectual Property Rights : Jharkhand granted patent on tussar variety
http://www.lawyersclubindia.com/news/2008/11/jharkhand_granted_patent_on_tussar_variety.asp
Posted on : 01 November 2008 by Y.Prakash
The Jharkhand government has been granted a patent on tussar produced in Kuchai and Kharswan areas of Saraikela-Kharswan district in the state.With this patent, a pilot project launched on an experimental basis to give tussar produced in Jharkhand an identity by developing it as an organic silk proved successful, Dhirender Kumar, special secretary and director (handicraft, silk and handloom) of Jharkhand said today.Following the certification, Kumar claimed the price of silk produce of the state would go up by 30 to 50 per cent and the weavers and farmers would be benefited.Besides, he told a press conference here, it would open up avenues for export of organic silk products in view of its increasing demand in the world market.”We have streamlined the silk production and now the focus will be on the marketing,” he said adding, the patented variety of tussar would be sold under the brand Jharcraft’.The department have plans to upgrade the products by providing training to weavers and farmer community. Ten training-cum-designing centres would be opened in the current fiscal in the state, he said.Kolkhan commissionary consisting of East and West Singhbhum and Saraikela-Kharswan districts produce 60 per cent of silk of the country and the Kuchai-Kharswan blocks were prominent as far silk production was concerned.On cocoon production, Kumar said the Centre had set a production target of 420 metric tonne per year in the 11th five-year plan period, Jharkhand was expected to achieve over 300 metric tonne in the current fiscal. “We have plans to increase this to 500 mt next year.” he said.
http://www.lawyersclubindia.com/news/2008/11/jharkhand_granted_patent_on_tussar_variety.asp

British legal eagles fly to India for support
http://www.lawyersclubindia.com/news/2008/10/british_legal_eagles_fly_to_india_for_support.asp
Posted on : 31 October 2008 by Y.Prakash
Some of Britain’s biggest law firms arecutting costs for the duration of the downturn by sending tasks including conveyancing, accident claims and due diligence investigations to young lawyers in India.Thousands of Indian lawyers and recent law graduates are being employed by British firms for a fraction of the cost of having the work done in this country.Leading the charge for the cheapersupport services is Clifford Chance, the world’s largest law firm, which has set up its own bespoke offshore centre in Delhi.Eversheds, another leading UK law firm, has confirmed it is making use of Indian-based legal resource centres. Now it has emerged that dozens more legal businesses have expressed an interest in following suit by outsourcing hundreds of millions of pounds worth of high-volume work.CPA Global, a legal process outsourcing company, said more than 30 law firms and company legal departments are in talks to use its legal support base in India, which employees 450 graduates and lawyers. Two law firms have already signed deals but are sensitive about going public.CPA is one of the biggest providers of these services in India and counts Microsoft among its clients. It says the downward pressure on legal costs in the economic downturn has forced the once-conservative legal profession to consider radical means for delivering legal services to clients who want fees to be fixed, rather billed at an hourly rate.Indian firms have responded by offering US and UK law firms litigation support and compliance work at around 100 different legal outsourcing centres.Andrew Loach, vice president of business development at CPA, said: “Legal process outsourcing has been on the agenda for some time for corporations and law firms looking to reduce costs, but the economic downturn has significantly accelerated this trend. We have seen enquiries increase dramatically. At the beginning of the year, we were talking to five prospects. Now we’re in discussions with over 30 – more than 20 of these being law firms and another 10 being corporate legal departments.”He added: “Law firms recognise they have no control over external factors such asmarket conditions, so they are starting to focus on things they do have control over, and one of the most important is their internal cost base. Many managing partners of law firms have recognised that top-line organic growth will be difficult to achieve during 2008-2009, and that profits may suffer during this period. They have become much more receptive to assessing alternative and innovative ways of reducing their cost base to reflect current trading conditions.”Law firms are attracted to India because of its large pool of English-speaking graduates – around 80,000 graduate each year – and its common law system based on English law. The often negative image of call-centres is increasingly being replaced by more accurate perceptions of the quality of legal work available from professionals in India.
http://www.lawyersclubindia.com/news/2008/10/british_legal_eagles_fly_to_india_for_support.asp

Clearing of Pending Cases
http://www.lawyersclubindia.com/news/2008/10/clearing_of_pending_cases.asp
Posted on : 31 October 2008 by Y.Prakash
Steps taken in recent past to reduce arrears and expedite disposal of cases in higher judiciary:1 Grouping and Tagging: The appeals/petitions arising out of the same order/judgement or same subject matter/cause are tagged and are heard and decided together.2 Categorisation.3 Classification.4 Group matters are given top priority.5 Constitution Bench/larger Bench are sitting regularly to decide important question of law.6 Cases of certain categories such as matters of senior citizens, corruption cases,undertrikal prisoners, women are being heard on priority basis.7 Mediation and Conciliation Centres have been set up.8 Lok Adalats are being held.9 Constitution of specialized benched.With a view to facilitating disposal of cases including pending cases in the superior courts, Government reviews the judge strength in the High Courts periodically and ensures prompt filling up of vacancies in the High Courts and the Supreme Court. In the last review undertaken in consultation with Chief Justice of India, the Government has decided to create 152 additional posts of judges in the following High Courts.1 Allahabad 652 Andhra Pradesh 103 Bombay 114 Calcutta 085 Delhi 126 Himachal Pradesh 027 Karnataka 018 Kerala 099 Madhya Pradesh 0110 Punjab & Haryana 1511 Jharkhand 0812 Chhattisgarh 10The Government has also approved the increase in the judge strength of the Supreme Court from the present 25 to 30 excluding the Chief Justice of India.Time bound disposal of cases is within the exclusive domain of judiciary. However, in order to reduce pendency of cases, the Government has initiated a number of measures. Government is implementing a scheme for computerization of District and Subordinate Courts. Fast Track Courts have been set up for speedy disposal of long pending Sessions cases and the cases involving undertrials in jails. Alternative modes of disposal including mediation, negotiation and arbitration have been encouraged. Some legislative measures have also been introduced for improvement in judicial procedure and for expenditing disposal of civil and criminal cases in courts. This information was given by Shri H.R.Bhardwaj, Minister of Law and Justice in the Lok Sabha recently to a written question.
http://www.lawyersclubindia.com/news/2008/10/clearing_of_pending_cases.asp

Labour & Industrial Law : Worker can’t seek promotion after keeping quiet for decade: SC
http://www.lawyersclubindia.com/news/2008/10/worker_can_t_seek_promotion_after_keeping_quiet_for_decade_sc.asp
Posted on : 31 October 2008 by Y.Prakash
An employee cannot remain silent for a decade and then cry foul over denial of promotion, the Supreme Court has said while advising courts to reject delayed claims for equity in service matters.The apex court said that granting relief in such cases would seriously jeopardise the chances and seniority of other employees who are in the reckoning in the normal course.”The appellants slept over their rights which led to considerable delay of 11-12 years on the part of the appellants to give representation for promotion to the grade of UDC.”A delay of 11-12 year cannot be overlooked when an applicant before the court seeks equity and specially in the case of service matters, as in the said case it jeopardises the existing positions of a very large number of members of that service,” a bench of Justices R V Raveendra and Mukundakam Sharma observed.The bench passed the ruling while dismissing the appeal filed by Rajinder Pal Singh Lamba against the orders of a division bench of the Delhi High Court which had set aside a single judge’s order of granting promotion with retrospective effect to the appellant and another person with effect from 1st January, 1976.The single judge had granted the promotion with retrospective effect and other benefits despite the fact that the appellant had made a representation to the authorities for promotion about 12 years after the said promotion arose in the department.
http://www.lawyersclubindia.com/news/2008/10/worker_can_t_seek_promotion_after_keeping_quiet_for_decade_sc.asp

Review of Procedure of Appointment of Judges
http://www.lawyersclubindia.com/news/2008/10/review_of_procedure_of_appointment_of_judges.asp
Posted on : 31 October 2008 by Y.Prakash
Appointment of Judges in the Supreme Court and the High Courts are made in pursuance to the Supreme Court Judgement of October 6,1993 in the Supreme Court Advocates-on-Record & Anr.Vs Union of India, read with their advisory opinion of October 28, 1998. In the case of Supreme Court, the proposals are initiated and recommended by the Chief Justice of India while in the case of appointments to High Courts, the proposals are initiated by the Chief Justice of the concerned High Court and recommended by the Chief Justice of India. This information was given by Shri H.R.Bhardwaj, Minister of Law and Justice in the Lok Sabha recently to a written question.
http://www.lawyersclubindia.com/news/2008/10/review_of_procedure_of_appointment_of_judges.asp

Constitution Review Commission
http://www.lawyersclubindia.com/news/2008/10/constitution_review_commission.asp
Posted on : 31 October 2008 by Y.Prakash
The Government of India through its Resolution dated 22.02.2000 set up ‘The National Commission to review the working of the Constitution (NCRWC)’. The Commission submitted its report on 31st March 2002. The full text of the report of the Commission has been put on the Internet (www.lawmin.nic.in) and the report has also been forwarded to all Ministries/Departments. Action on the recommendations lies with the Ministries/Departments of the Government of India, which are administratively concerned with the subject matter of the recommendations. This information was given by Shri H.R.Bhardwaj, Minister of Law and Justice in the Lok Sabha recently to a written question
http://www.lawyersclubindia.com/news/2008/10/constitution_review_commission.asp

Punishment for suicide bid is double whammy: Law panel
http://www.lawyersclubindia.com/news/2008/10/punishment_for_suicide_bid_is_double_whammy_law_panel.asp
Posted on : 31 October 2008 by Y.Prakash
The Law Commission has recommended to the Centre that it repeal the anachronistic law, contained in Section 309 of the Indian Penal Code, making attempt to suicide a punishable offence.Section 309 says: “Whoever attempts to commit suicide and does any act towards the commission of such offence shall be punished with simple imprisonment for a term which may extend to one year or with fine, or with both.”The Commission, headed by Justice A.R. Lakshmanan, in its 210th report submitted to the government said: “Section 309 provides double punishment for a person who has already got fed up with his life and desires to end it. Section 309 is also a stumbling block to prevention of suicides and improving the access of medical care to those who have attempted suicide.”UnreasonableThe Commission said: “It is unreasonable to inflict punishment upon a person who, on account of family discord, destitution, loss of a dear relation or cause of a like nature, overcomes the instinct of self-preservation and decides to take his own life. In such a case, the unfortunate person deserves sympathy, counselling and appropriate treatment, and certainly not the prison. Section 309 needs to be effaced from the statute book because the provision is inhuman, irrespective of whether it is constitutional or unconstitutional.”In 2006, as many as 1,18,112 people in the country took their own lives as against 1,13,914 suicides in 2005. Around 35.7 per cent of such deaths were of youth in the age group of 15-29 and 34.5 per cent were of people aged 30-44. The commission noted that only Pakistan, Bangladesh, Malaysia, Singapore and India persisted with this undesirable law. “The panacea for those who attempt suicide certainly cannot be imprisonment. They need compassion, emotional support and sometimes even psychiatric help.” If attempted suicide were decriminalised it would make things more workable and “easier for all to extend their hand and support in reducing suicide in India.”The commission said: “Suicide occurs in all ages. Life is a gift given by God and He alone can take it. Its premature termination cannot be approved by any society. But when a troubled individual tries to end his life, it would be cruel and irrational to visit him with punishment on his failure to die.“It is his deep unhappiness which causes him to try to end his life. The criminal law must not act with misplaced zeal and it is only where it can prove to be an apt and effective machinery to cure the intended evil that it should come into the picture.”Taking into consideration the views of the World Health Organisation and the International Association for Suicide Prevention, France; decriminalisation of attempted suicide by all countries in Europe and North America, the opinion of the Indian Psychiatric Society and representations received from various people, the Commission said it was recommending repeal of Section 309.
http://www.lawyersclubindia.com/news/2008/10/punishment_for_suicide_bid_is_double_whammy_law_panel.asp

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One Response

  1. great super. this story deserves nothing 😦 :phahaha just joking !

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