Legal News 06.12.2011

Kerala Administrative Tribunal yet to take off

Express News Service The New Indian Express

http://ibnlive.in.com/news/kerala-administrative–tribunal-yet-to-take-off/209191-60-116.html

 

THIRUVANANTHAPURAM: The Kerala Administrative Tribunal (KAT), set up a year ago on the lines of Central Administrative Tribunal (CAT) for dealing with the government employees’ cases is yet to take off, allegedly owing to the lukewarm approach from the State government resulting in a loss of around ` 75 crore to the state exchequer per year.

�Further, the delay in operation is affecting the very functioning of the state administration. The Cabinet requesting the Central Government and the Chief Justice of India for repealing two judicial members from the KAT has come as a rude shock. �

The three High Court benches which deal with around three lakh cases involving the government employees, amounts to one third of the total number of cases. It was expected that the formation of KAT with Thiruvananthapuram as headquarters, would unburden the High Court.� The State Government in 2007, had estimated that it was incurring a loss of around Rs 50 crore a year on travelling allowance alone to employees commuting between Thiruvananthapuram and Kochi. Also it has been pointed out that when the higher officials absents themselves from office for three days to appear in court, it results in piling up of files.

�The KAT will have three benches of which two will be based here and one in Kochi to handle the cases from north Kerala. A statutory committee consisting of Chief Justice of Kerala High Court, Chief Secretary, Chairmen of the KAT and Public Service Commission had selected P V Asha and Ashok Mammen Cherian as the judicial members.

�But on June 15, the Cabinet decided to request the Centre and Chief Justice of India to recall these two members. ‘This is illegal and the government is acting beyond its powers,” says M Vijayakumar, former Minister for Law. The LDF Government had set up KAT with Justice K Balakrishnan Nair as the Chairman on August 25 last year under the State Administrative Tribunal Act. Old Collectorate building at Vanchiyoor has been selected as its head quarters.

�Six members, comprising three judicial members and three non-judicial members were appointed. Around 30 staff members were also deputed out of the 110 posts sanctioned for the Tribunal.� Meanwhile, the High Court Advocates Association had filed a case in June last challenging the formation of KAT, which was dismissed by the Kerala High Court, since it was a policy decision of the State Government. The decision to have the principal bench in Thiruvananthapuram was also� justified.

An appeal in this case is now pending before the Supreme Court. The State Government has now replaced the counsel, Liz Mathew with Beena Madhavan. The Opposition is alleging foul play in this. “The government has a hidden agenda in this case and it plans to sabotage KAT,” alleges M Vijayakumar.

 

 

 

 

 

 

Gratuity is payable only after 5 years of service: Madurai Bench

OUR LEGAL CORRESPONDENT

http://www.thehindubusinessline.com/industry-and-economy/economy/article2689491.ece?homepage=true&ref=wl_home

CHENNAI, DEC. 5: 

Section 4(1) (b) of Gratuity Act enabled an employee to receive gratuity even if he had resigned from service and only condition was that he must have put in five years of service, the Madurai Bench of Madras High Court has ruled.

Hearing a writ petition from Mr R.K.V. Govindaraj of Sattur, Virudhunagar District, a lorry transport operator, challenging order dated March 31, 2009 of the Joint Commissioner of Labour, Appellate Authority, Madurai (R-3) dismissing the petitioner’s appeal and confirming the order of the Assistant Commissioner of Labour, Controlling Authority, Madurai (R-2), holding that Mr V. Chellaiah of Sivakasi (R-1) an employee, eligible for gratuity payment, Mr Justice K. Chandru held that petitioner had “disregarded” his obligation in repudiating case of R-1. The petitioner had simply stated that proceedings issued by Tahsildar, Sattur, dated April 19, 2007 recording a meeting of peace committee conducted by him with petitioner and trade unions.

R-1 had claimed gratuity for services in petitioner’s lorry transport from April 1, 1991 to April 19, 2007. The petitioner contended that the R-1 was not an employee and he never worked in lorry transport. He was only a casual labourer engaged for loading and unloading work. The R-1’s claim application was mala fide and made at the instance of political parties, the petitioner said.

The R-2 mentioned that there were 11 workers and hence the Gratuity Act would apply to lorry transport unit.

Aggrieved by order of R-2, the petitioner preferred an appeal and contended that the trust placed upon proceedings of peace committee was not permissible. While confirming order of R-2, the R-3 pointed out that the Tahsildar recorded that in place of the R-1, some else would be appointed, would show that the R-1 had worked in petitioner’s establishment.

The judge said the petitioner did not even give any oral evidence to repudiate claim made by the R-1. Relevant rule only provided a summary procedure and the petitioner could not read into rules as a procedure which was contemplated in a regular court.

Since no case was made out by the petitioner to interfere with impugned order, writ petition stood dismissed, the judge held.

 

 

 

 

PIL on height of buildings around temple

http://ibnlive.in.com/news/pil-on-height-of-buildings-around-temple/208825-60-118.html

Express News Service The New Indian Express

MADURAI: A Public Interest Litigation (PIL) filed before the Madurai Bench of Madras High Court has sought for a direction to the district administration to regulate the height of the buildings constructed around the Madurai Meenakshi Amman Temple.
In his petition, advocate A S M Kumar alleged that most of the buildings in and around the temple exceeded the height limit laid down in the government orders dated June 15, 1994, and January 30, 1997. Due to the tall buildings, the devotees were unable to get a glimpse of the temple gopurams, Kumar added.
He also claimed the buildings were unauthorised as no prior permission for construction was taken from the corporation commissioner. Also, the commissioner had not initiated any steps to regulate the height fo buildings in and around the temple.

 

 

 

 

 

HC directive to protect temple tank

http://timesofindia.indiatimes.com/city/madurai/HC-directive-to-protect-temple-tank/articleshow/10999961.cms

MADURAI: The Madurai bench of the Madras high court has directed the authorities to consider a representation by a PIL activist to protect the tank of the famous Swami Nellaiappar temple in Tirunelveli.

The bench comprising Justice K N Basha and Justice M Venugopal gave the directive to the district authorities on a public interest litigation filed by T Rajamanickam of Tirunelveli.

In his petition, Rajamanickam contended that the temple tank was constructed several years back. During ‘Thaipusam’ day in the Tamil month of Thai, a traditional float festival used to take place in the tank. But for the past several years the festival could not be conducted as the tank became highly polluted. He said that the reason for it was that it was not properly maintained either by the temple or corporation authorities.

It was submitted that the surrounding shops, small-scale industries used to dump their waste in the tank. In addition to it, chemical and electronic waste was also dumped, due to which the tank was damaged. Blaming the authorities for failing to protect the monumental tank, the petitioner preferred the present petition.

 

 

 

 

 

Camp to regularize South Ex properties

http://timesofindia.indiatimes.com/city/delhi/Camp-to-regularize-South-Ex-properties/articleshow/11001084.cms

TNN | Dec 6, 2011, 05.21AM IST

New Delhi: On the heels of the sealing drive at South Extension Part I that had closed down many girls hostels, the Municipal Corporation of Delhi has, for the first time, planned a 15-day camp from December 9 to help people get their buildings regularized.

The Central zone of MCD has sent 50 notices to residential properties, which were either sealed or are awaiting regularization , in South Extension Part I to update their documents. The remaining letters will be sent soon.

The decision was taken following the Delhi high court’s suggestion to set up camps to expedite the regularization process while hearing a PIL.

In November, MCD had sealed 28 properties in South Extension Part I. “Several properties were running hostels for girls. But following the court order, we had to take action against these properties.

Now, we are giving these owners a chance to rectify the defect and get them regularized. We have already informed them about the problem in their buildings. If they can make the changes required by the building bylaws, we will regularize it then and there,” said a senior MCD official.

The property-owners will be given a chance to carry out necessary changes. Starting from December 9, MCD will take up 10 cases every day.

 

 

 

 

Pune lawyer questions state’s record on juvenile justice

http://daily.bhaskar.com/article/MAH-PUN-city-lawyer-questions-states-record-on-juvenile-justice-2618467.html

 

Bhagyashree Kulthe, DNA

Last Updated 03:47(06/12/11)

 

 

Pune: The Juvenile Justice (Care and Protection of Children) Act, 2000, has provision for action against a variety of cruelties against children. However, the law remains under-used as not a single offence has been registered under the law, nor has anyone been punished in the state since its legislation.

Disturbed by this, city-based lawyer Rajendra Anbhule filed a public interest litigation (PIL) in the Bombay high court in November, accusing the state of negligence towards juveniles.

During the hearing in the case in the last week of November, the high court directed that all the juvenile justice boards in the state be made respondents in the case.

Anbhule said, “Though such a strong law exists in the country, our police and the departments concerned did not register a single case since 2000. That is evident of the state’s apathy.”

Sections 23, 24, 25, 26 and 27 of the Act lay down various provisions relating to punishment for cruelty to juveniles, employment of juveniles, using a child for begging, penalty for giving intoxicants or narcotic drug or psychotropic substances to a juvenile, and exploitation of juveniles or child employees.

As per section 27 of the Act, the offences under sections 23, 24, 25 and 26 shall be cognizable. The Juvenile Justice (Care and Protection of Children) Rules, 2007, lays down procedures to be followed in respect of sections 23, 24, 25 and 26 of the Act.

Rule 18 (3) states that the offences against a juvenile in conflict with law or a child specified in sections 23, 24, 25 and 26 shall either be bailable or non-bailable, besides being cognizable under the provisions of the Criminal Procedure Code, 1973, and the procedure shall apply to the police, the boards and the authorities and functionaries concerned.

Despite this, no offences are being registered or any person punished in the state for violation of sections 23, 24, 25 and 26 of the Act. The PIL notes that the state and the police are not taking cognizance of the said provisions by initiating actions against the culprits.

Stating that the police are ignorant of the provisions, the petitioner has stressed on special training and awareness among the police. The Act covers juvenile delinquents and also children who are found begging on the streets.

Although the Act calls for special homes to be set up by the state for treatment and rehabilitation of juvenile delinquents, there is just one such special home in the state, the petition states. Similarly, although the law demands that children’s courts be set up in the state for speedy trial of offences against children or for violation of child rights, not a single such court has been established.

Mentally challenged and HIV-positive children in the children’s homes have been deprived of special care and attention as the required staff has not been provided.

The PIL states that there is no machinery to identity fradulent children’s home in the state engaged in questionable activities. The state government has not established the required inspection committee as per section 35 of the Act to inspect the working of children’s homes.

This had led to many malpractices in children’s homes. Hence there is an urgent need to check such malpractices and take action, the petition demands.

 

 

 

 

 

Even corrupt officers can take good decisions: Bombay High Court

http://www.dnaindia.com/mumbai/report_even-corrupt-officers-can-take-good-decisions-bombay-high-court_1621917

Published: Tuesday, Dec 6, 2011, 8:00 IST
By DNA Correspondent | Place: Mumbai | Agency: DNA

“It’s not necessary that every decision by a corrupt public officer is bad. Corrupt officers may have taken good decisions too,” observed the Bombay High Court on Monday while hearing a public interest litigation that sought a review of all orders passed by corrupt public officers.

A division bench of Justice SA Bobade and Justice VK Tahilramani refused to pass any order in the PIL filed by NO Aarambh, seeking that an independent machinery should be set up to review all decisions taken by public servants who were either accused in corruption cases or held guilty under the Prevention of Corruption Act. The NGO had sought that the Union as well as the Maharashtra government should be directed to set up such machinery to review the orders.

Refusing to pass any order, justice Bobade remarked: “It is not necessary that every decision is bad and corrupt officers may have taken some good decisions also. We cannot say every decision is wrong and bad in law. Each case needs to be reviewed individually to see if there is any harm to public interest or loss to the exchequer.”

The court has asked the NGO to make a representation before the Maharashtra government pointing put details of any specific decision taken by a corrupt public servant which has caused loss to the government.

In its PIL, the NGO cited examples of the Common Wealth Games (CWG) scam and the multi-crore kickbacks for loans scam in which several officials of public sector banks were arrested by CBI for corruption.

 

 

 

 

 

SC steers clear of PIL on N-liability

http://timesofindia.indiatimes.com/india/SC-steers-clear-of-PIL-on-N-liability/articleshow/11000262.cms

TNN | Dec 6, 2011, 04.01AM IST

NEW DELHI: The Supreme Court on Monday said it was not an expert in the nuclear field to issue a direction to the government on the nuclear liability issue and told the PIL petitioner’s counsel Prashant Bhushan not to equate the independent nuclear regulator and the Lokpal as both were very different from each other.

A bench of Chief Justice S H Kapadia and Justices A K Patnaik and Swatanter Kumar asked Bhushan, who appeared for NGO ‘Common Cause’, to hold a nation-wide debate on this issue and suggest mechanism for independent nuclear regulator.

“We can only recommend the government to consider the mechanism suggested by the petitioners after holding a public debate,” the bench said while adjourning hearing on the PIL which challenged the Nuclear Liability Act, questioned the neutrality of the proposed nuclear regulator and sought extensive safety scrutiny of all existing and proposed nuclear plants.

Bhushan focused on the independence of the regulator and argued that appointment and sacking of its members must not be left solely to the government’s discretion, though it could have some say. But attorney general G E Vahanvati said it was contradictory to seek a direction from the court to the government to appoint an independent regulatory body without the Centre having anything to do with appointment of its members.

The stress on delinking government control from the regulatory body by Bhushan, who is a Team Anna member and votary of Lokpal being independent of the government, led the court to remark, “Lokpal issue may be entirely different from the independence of nuclear regulatory body. Lokpal issue has serious repercussions for the people and government is accountable for that to Parliament. But please do not mix up the issues of Lokpal and independence of nuclear regulator.”

Bhushan said it was one thing to say Parliament was seized of the issue but quite another when one viewed the safety deficient nuclear power plants continuing to operate in India and the government attempting to bring in new nuclear reactors, the safety of which has been doubted by leading nuclear power countries.

While adjourning hearing on the petition for four weeks, the court said it was worried about the danger to the lives of people as it concerned their most important fundamental right – the right to life, but the petitioners must suggest an alternative mechanism for constituting the nuclear regulatory body after holding a public debate. It also wanted to know the structure of nuclear regulators in other developed countries.

The petitioners, including NGOs ‘Common Cause’ and ‘Centre for Public Interest Litigation’ and eminent persons like former cabinet secretary T S R Subramanian, former CEC N Gopalaswami and former Navy chief L Ramdas had alleged that the government was planning to order import of nuclear plant and equipment worth billions of dollars from select foreign companies through negotiations without proper technical and safety evaluation sans competitive bidding/auction route, which was against the norms of transparency.

“The Civil Liability of Nuclear Damage Act, 2010, by capping the liability of operators and by making suppliers not liable, violates the polluter pays principle and the ‘absolute liability’ principle which have been recognised as part of the law of the land under Article 21 of the Constitution and puts to grave and imminent risk the right to safety, health, environment and life of the people of India guaranteed by the Constitution,” they said.

 

 

 

 

SC bars banks, nursing homes and businesses from Noida residential areas

http://timesofindia.indiatimes.com/city/delhi/SC-bars-banks-nursing-homes-and-businesses-from-Noida-residential-areas/articleshow/11000317.cms

The apex court says the 21 banks and nursing homes which are operating in Sector 19 or any other residential sector shall close their activity forthwith, stop misuse and put the premises to residential use alone.

New Delhi: The Supreme Court on Monday banned banks, nursing homes and other commercial offices in residential sectors of Noida with immediate effect but allowed doctors, lawyers, architects and other professionals to use a maximum of 30% of ground floor area as clinics or offices.

“The 21 banks and nursing homes which are operating in Sector 19 or any other residential sector shall close their activity forthwith, stop misuse and put the premises to residential use alone, within two months from today,” a bench of Justices Swatanter Kumar and Ranjana P Desai said while dismissing a bunch of petitions filed by banks and owners of nursing homes operating from residential areas.

Failure to comply with the direction would invite sealing of the offending banks, nursing homes and commercial establishments operating from residential areas in breach of Noida Master Plan2001, the bench warned.

Apart from Noida administration, it cast an equal responsibility on plot owners to ensure that banks, nursing homes and other offices shut shop immediately and shift to “commercial,commercial pockets in industrial/institutional area and specified pockets for commercial use within the residential sector, earmarked for the activity in the development plan, regulation and provisions of the law”.

The development authority must consider the request for allotment of alternative space to banks and persons carrying on other commercial activity with priority and expeditiousness, said Justice Kumar, who authored the judgment for the bench.

The apex court faulted the development authority (Noida) for allowing mixed use in residential areas in callous breach of the Master Plan and regulations. “Establishment of banks and nursing homes in residential sectors meant for residential use alone is unequivocal violation of the statutory provisions of the Master Plan,” it said.

It criticized the development authority for being blind for a long time towards the blatant misuse of residential premises by land allottees, who had rented out their houses to banks and business set-ups. In fact, the conditional permission had been granted to such banks and commercial set-ups by certain officers of the development authority, the court noted.

“The officers of the development authority should refrain from carving out exceptions to the implementation of the Master Plan and regulations in force, that too without the authority of law,” the court said.

Taking note of large nursing homes and banks operating from residential areas, the bench said, “Running of hospitals or even a medical clinic of this dimension cannot be permitted in a residential area. It would be different if a doctor uses permissible part of the premises for clinical purposes, that is, to meet or examine his patients in any portion.

“For surgery or specific treatments, such patients would have been addressed to proper nursing homes or regular hospitals. Therefore, the doctors cannot carry on, in the garb of a medical clinic, regular medical and surgical activity on a commercial scale.”

The bench upheld the late action taken by the development authority to proceed against such violators of Master Plan. But it frowned upon the pick and choose policy adopted by the authority in proceeding against violators. “The action of the development authority should be free of arbitrariness and must be applied uniformly,” the court said.

“The Master Plan and the Zonal Plan specify the user as residential and therefore these plots cannot be used for any other purpose. The plans have a binding effect in law. If the scheme/Master Plan is being nullified by arbitrary acts and in excess and derogation of the powers of the development authority under the law, the court will intervene and will direct such authority to take appropriate action and whenever necessary even quash the orders of the public authorities,” it added.

 

 

 

 

 

Man fined Rs 1 lakh by court for mental cruelty to wife

http://www.indianexpress.com/news/man-fined-rs-1-lakh-by-court-for-mental-cruelty-to-wife/884503/

Jayant Sriram Manoj KumarPosted: Tue Dec 06 2011, 02:10 hrsNew Delhi:

 

A sessions court in the Rohini Courts Complex has ordered a man to pay a fine of Rs 1 lakh for ‘mental cruelty’ committed upon his wife. The court held that he had made his wife, since deceased, get two abortions within 15 months of their marriage without providing evidence to justify the termination of pregnancy.

The convict, Manoj Kumar, was arrested in 2003, after police charged him and his mother for causing the death of his wife by constanty harassing her for dowry. However, Additional Sessions Judge Kamini Lau acquitted him on that charge for lack of evidence, instead, ruling that he be convicted for subjecting his wife to cruelty.

“It was established that during the short span of 15 months of the marriage, she had undergone abortions on two occasions when she suffered an infection and complications when both her ovaries had to be removed. The accused has failed to place before the court evidence to justify the termination of pregnancy (as provided under the Termination of Pregnancy Act),” the judge said.

 

ASJ Lau added that from the fine amount of Rs 1 lakh, half should be given to the state and half to the parents of the deceased for the mental pain and agony that they had also suffered. In the event that the parents do no accept the monday, the judge directed that it should be given to NGO Help-Age India.

Further, the judge had also held one of the police witnesses in the case, a retired sub-inspector Ram Saran, guilty of perjury and fabrication of evidence. Though the court had asked him to respond, the judge said she was not satisfied with Ram Saran’s submission and ordered proceedings to be initiated against him for the offence.

 

 

 

 

 

Bombay HC allows Shiney Ahuja to travel abroad for film’s premiere

http://www.dnaindia.com/entertainment/report_bombay-hc-allows-shiney-ahuja-to-travel-abroad-for-film-s-premiere_1621715

Published: Monday, Dec 5, 2011, 18:12 IST
Place: Mumbai | Agency: PTI

 
 
In a reprieve to Bollywood actor Shiney Ahuja, the Bombay High Court today permitted him to travel abroad to attend the premier of his upcoming movie Ghost.

Shiney, convicted by a sessions court on March 30 for raping his domestic maid at his suburban residence, was released on bail by the high court after he filed an appeal challenging the seven-year sentence awarded to him.

The actor, who plays the lead in the movie Ghost, directed by debutant Puja Bedi, today approached the high court seeking direction to the police to release his passport and permission to travel to Dubai.

Justice RC Chavan directed the suburban Oshiwara police to release Shiney’s passport and directed the actor to furnish a surety of Rs25,000 before the sessions court and then travel abroad.

The movie, which is to be released on December 16, will be premiered on December 14 in Dubai.

“Since the applicant (Shiney) is the lead actor of the movie he has to attend the premier as well as other promotional events to be held in Dubai,” the actor’s plea stated.

Shiney was granted bail in April by the high court on a bail bond of Rs50,000. The trial court sentenced Shiney to seven years’ rigorous imprisonment, relying on circumstantial evidence, though the complainant had turned hostile during the trial.

The trial court said it had considered evidence such as positive DNA report, medical evidence of intercourse, and scratch marks on Shiney’s hand. In June 2009, the girl had lodged the complaint alleging that she was raped by the actor at his house. Shiney was arrested on June 14, 2009.

Ghost will mark Shiney’s comeback to the silver screen after three years. The actor’s last movie was Hijack opposite Esha Deol.

 

 

 

 

Punish kidnappers of kids for ransom stringently: SC

http://timesofindia.indiatimes.com/india/Punish-kidnappers-of-kids-for-ransom-stringently-SC/articleshow/10999883.cms

TNN | Dec 6, 2011, 02.37AM IST

NEW DELHI: The Supreme Court on Monday expressed concern over increasing incidents ofkidnapping of children for ransom and said trial courts must view the offence in the harshest manner and impose deterrent punishment.

A bench of Justices P Sathasivam and J Chelameswar refused to release an offender who has served more than 11 years in prison after being convicted for kidnapping a boy in 2000 in Kolkata and upheld the life imprisonment awarded to him by the trial court.

The trial court had convicted seven accused under Section 364A (kidnapping for ransom) of Indian Penal Code and awarded life imprisonment to all. The high court acquitted three but maintained the life term awarded to the other four. One of them, Akram Khan, appealed against the HC order before the apex court, which dismissed the petition.

Justice Sathasivam, writing the judgment for the bench, said, “Considering the alarming rise in kidnapping for ransom, the legislature in its wisdom provided for stringent sentence. Therefore, we are of the view that in those cases whoever kidnaps or abducts young children for ransom, no leniency be shown in awarding sentences, on the other hand, it must be dealt with in the harshest possible manner and an obligation rests in the courts as well.”

It said Parliament, while enacting Section 364A to deal with cases of kidnapping for ransom, had called for imposition of deterrent punishment, irrespective of the fact whether the kidnapping resulted in killing of the victim or not.

Akram Khan’s counsel argued that it was a simple case of kidnapping as no ransom money changed hands though demands had been made. He pleaded that offence of kidnapping attracted a maximum punishment of seven years imprisonment and requested the court to release his client on bail as he had already served more than 11 years.

But the court noted the facts of the case where repeated ransom calls were made to the kidnapped boy’s parents, who went to specific locations to hand over the money but in vain as no one turned up to collect the ransom. Before the money could be paid, the West Bengal police in coordination with Bihar police arrested the accused and recovered the boy before any harm could come to him.

The court said it was a specific case under Section 364A and not simple kidnapping. “If it is established that the offender after kidnapping a person keeps the said person in detention or threatens to cause death or hurt in order to get ransom money, it attracts section 364A,” the court said.

 

 

 

 

DM issues prohibitory orders against red beacons

http://www.hindustantimes.com/India-news/Haryana/DM-issues-prohibitory-orders-against-red-beacons/Article1-778356.aspx

To curb unauthorised use of red beacons on cars, district magistrate PC Meena on Monday issued orders to invoke Section 144 of the Code of Criminal Procedure (CrPC) against the menace.

Earlier, as per the Motor Vehicle Act, offenders could be fined only a maximum of R100. But now,

the police can prosecute violators under section 188 of the Indian Penal Code apart from being charged for violating the prohibitory orders.

The move should deter people who exhibit red beacons as a status symbol or use it to bypass the toll plaza. The RTA secretary and the city traffic police will enforce these orders with immediate effect.

Only dignitaries who have not been provided with a government vehicle can use a red beacon atop private vehicles. Also, if the vehicle fitted is not carrying the dignitaries, then the beacon should be covered.

As per rules, the governor of Haryana, the chief minister, chief justice and judges of the Punjab & Haryana High Court, all cabinet/state ministers, speaker/deputy speaker of the Vidhan Sabha are some officials who can use the red beacon.

 

 

 

 

The Other OPTION

http://kashmirlife.net/index.php?option=com_content&view=article&id=2128:the-other-option&catid=50:news-notes&Itemid=192

 

 

Volume 03, Issue 39
Monday, 05 December 2011 18:46
Chief Minister Omar Abdullah’s idea of offering impunity to the central security forces in state’s routine penal code has angered people, parties and lawyers pushing the high court bar association for a strike and symbolic protest. They believe the idea is aimed at perpetually protecting the central armed forces stationed in Kashmir.

After failing to partially withdraw AFSPA, Omar offered army legal safeguards within the state’s penal code. “The Army has pointed out that it enjoys protection under the CrPC in other states which was not applicable under J&K’s RPC. We are ready to amend the RPC to give the Army all powers enjoyed under the CrPC as far as the operational safeguards (are) concerned,’’ Omar said. Though criminal procedure code (CrPC) of the state and rest of the country is same, but there are slight differences between the Indian Penal Code (IPC) and the Ranbir Penal Code (RPC), which is operational in J&K.

“The proposed amendment, it was stated, shall have the effect of incorporation of APSFA in the legal system of the J&K to create a permanent role for army in the polity of the state,” a statement issued by the Bar spokesman said.

JKLF leader Bashir A Bhat sees a conspiracy in the idea. “To prove his loyalty to New Delhi, (Oamr) Abdullah is making AFSPA a permanent feature by making amendments to the Criminal Procedure code,” he said. He sees it a copy of the tactic in which PDP founder Mufti Sayeed merged dreaded Special Operations Group (SOG) into the police.

Former law minister Muzaffar Hussain Beig compares the situation with the age old adage – ‘from the frying pan into the fire’. “Protection under AFSPA is different than protection under CrPC and it is dangerous,” he said. Terming the idea ‘dicey’, Beig said the change will help Army to become “part of local law and order machinery.” Adds another noted lawyer Zafar Ahmad Shah: “We are trying to deprive army from shooting under the cover of a law, that is AFSPA, and now you are saying they will still shoot you but not under AFSPA but RPC, it’s just a change of nomenclature.”

The opponents of the idea are referring to the possible changes in the section 197 RPC that takes care of the CrPC. One report suggested that while enacting the CrPC, J&K government had deliberately skipped mentioning army and other central security forces, which may now be included. Another report suggests the idea was actually discussed in one of the meeting of the Unified Headquarters on the request of CRPF.

But a senior law ministry officer says the debate is misplaced. “Almost everybody is saying for last many months that do away with Disturbed Areas Act and the AFSPA will go automatically,” the officer said. “But nobody knows that DDA has lapsed eight years back.”

The officer says: “The fact is that all the servants of the state (central or state governments) are protected under section 197(a) already. But there is only one problem it is available to only gazetted officers which has a possibility of being extended to every employee if and when the government thinks.”
Interestingly, this impunity is being availed by officers to fight corruption cases against them. But never ever have the courts given them this concession. “Even the former Punjab chief minister Prakash Singh Badal sought concession under this CrPC provision which the apex court denied saying his official duty did not permit him to resort to corruption,” the officer said.

A Commissioning Take OFF 
Former Supreme Court Judge H S Bedi, heading the one-man Commission of Inquiry (CoI) into the mysterious death of Haji Yousuf, an NC fixer, returned back to Delhi within four days of his arrival. Reason: He is waiting for the outcome of the petition that Panthers Party patron Bhim Singh has filed seeking CBI Investigation. A court in Srinagar has already turned down this request made by Haji’s family.

Once back to Hari Niwas where Bedi has set up his office, the judge will obtain and examine material evidence. It includes CCTV footage of Chief Minister’s residence, post mortem report prepared by doctors of Police Hospital and Department of Forensic Medicine Government Medical College Srinagar, forensic opinion prepared by Forensic Science Laboratory besides the text of FIR filed by Crime Branch, newspaper reports and press conferences of Chief Minister Omar Abdullah and senior government functionary like Principal Secretary of Home, B R Sharma, and Director General of Police, Kuldeep Khoda. The Commission had hired people from both Judiciary and civil administration for running the office.

The commission is supposed to submit its report in six weeks as a simultaneous probe into the alleged criminal activities of the deceased will continue with the crime branch.

Haji’s death triggered a political storm and stalled assembly proceedings forcing chief minister to assert that he will depose before the propsed commission. After the commission came into being, the government said he would depose before the one-man Commission of Inquiry (CoI) only in case he is called to record the statement. “Unless summoned, Chief Minister won’t depose voluntarily before the Commission,” Law Minister Ali M Sagar was quoted saying.

While indications suggest the commission may actually deliver a report, the opposition and the family of the deceased are apparently pessimistic. The family termed the inquiry ‘just a formality’ and PDP, state’s principal opposition, called it ‘eyewash’. Former Chief Minister Mufti Mohammad Sayeed says that Justice (retd) as head of the one-man Commission of Inquiry has nothing to prove into the case, which has put the ruling National Conference in the dock vis-à-vis political corruption.

Clergy continues to be in the conversion trance. Last week, Mutahida Majlis-e-Amal (MMA) asserted that schools run by Christian missionaries should stop recitation of morning prayers and distribution of literature that goes against Islamic teachings and principles. It also asked Kashmir University, Board of School Education and other examining bodies to allow Friday congregational prayers and not to hold examinations on Fridays. The issue of conversions came to fore after a video made rounds of internet showing Kashmiri boys and girls being baptized at a local church.

The declaration came after the MMA formed a committee Tahafuz-e-Iman Committee (TIC), an outcome of the MMA that has representation of almost the entire political and religious party operating in Kashmir. The committee led by Mirwaiz with Moulana Rehmatuallh as its main functionary would look into the issues related to apostasy and functioning of various NGOs and missionary schools operating in the valley. MMA has asked people to set up Bait-ul-Maal at the local levels to help the needy and suggested the clergy to raise awareness during Friday sermons and religious gatherings in their respective areas. The alliance has not ruled out the possibility of interacting with the government functionaries if need arises.


A book by a Japanese Kazushi Hirose, titled “Kashmir: Killed in Valley-Between India and Pakistan” was released in Japan. Perhaps the first book on Kashmir in Japanese, the author is hawking it on the social networking sites. “The title comes from English newspaper headline in Kashmir,” Kazushi said in his message on a site. “You know that “Killed in the valley” was appeared there usually with numbers. Everybody knows about these “killed”, however, nobody tells it in outside world. It’s open secret,” he said. Especially focusing on the human rights issue, Kazushi says the book intends to shed light on the people who are buried in the darkness from darkness.


Daluja v/s ROEMITRA 
Media in Jammu is in perpetual crisis. The recent major issue was the alleged involvement of at least two of the newspaper owners in land deals and betting. Now a much larger battle seems to have started between the owners of daily Excelsior and a newcomer State Times. For the last few months, stories were appearing against each other in these publications but now the frequency has gone up. Nobody in Jammu knows what the crisis is all about but the gossip suggests that it is either land or the wine business.

The gap between the two publications is too huge, locals suggest. Excelsior has reported that Raj Daluja is a non-state subject and it claims it has access to the documents that prove it. It has said that he wanted to get a police guard at his residence but police officials, at one point of time, did not only said the he lacks a security threat but also said criminals can not be guarded. Interestingly, however, he is a protected person now who is guarded round the clock.

It has also claimed that in a case of beating a government employee, Daluja sent one of his relatives to the court who impersonated him that triggered another case against him. The newspaper has also claimed that the family forged the signatures of a collector for shifting the venue of a wine shop. Daluja is on bail in the case, the newspaper said. It has even claimed that Daluja is in illegal possession of 48 kanals of state land at Janglote. State Times has reported that it is filing a case against Excelsior for resorting to unethical and defamatory reports against him. But what is the bone of contention?

FDI RETAIL
Chief Minister Omar Abdullah is supportive of retail businesses being opened for foreign direct investment. But given the reactions, he seems to be the only one supporting the idea in J&K. Jammu business had already a day long strike against the idea. Principal opposition PDP has made its opposition to the idea clear. Kashmir Traders and Manufacturers Association has also made its opposition to the decision public.

Communist leader Yusuf Tarigami was the first to oppose it and was supportive of the strike call against it. “The decision will destroy the livelihood of crores of small retailers countrywide,” Tarigami said. “J&K will also bear the brunt in view of its vast chain of retailers operating across its towns and villages.”

FDI in retail will give consumers access to is good for consumer to walmart, Tesco and Carrefour but it is bad for the market. J&K will get a major brunt because it is a surging consumer market. Prime Minister has already ruled out the possibility of undoing the decision.
Now what can happen? J&K retains its rights, as it is a different state with certain privileges in the union. Can Omar Abdullah prevent the entry of these retailers into the state by law?

 

 

 

 

 

Pune district court separating crime from chaff

http://www.dnaindia.com/mumbai/report_pune-district-court-separating-crime-from-chaff_1621582

Published: Monday, Dec 5, 2011, 13:23 IST
By Ashish Jadhav | Place: Pune | Agency: DNA

In an attempt to dispose of a major chunk of pending criminal cases, the Pune District Court administration directed all courts of judicial magistrate (first class), chief judicial magistrate and additional chief judicial magistrate under its jurisdiction, to collect information on stale and ineffective criminal cases pending as on August 31.

In a letter dated November 25 sent by the district court registrar, Vidya Mishra, the courts have been requested to examine
the pending cases and send the information to the district court authority by December 3.

Stale and ineffective cases means cases registered under Bombay Police Act, Bombay Prohibition Act, Bombay Prevention of Gambling Act, Bombay Shops and Establishments Act, Bombay Weight and Measurement Act and Motor Vehicle Act and charge-sheets filed on or before December 31, 2005.

Also, offences registered under Indian Penal Code and any other law with imprisonment for a term not exceeding 3 years are considered to be stale and ineffective cases.

The move is the fallout of a confabulation on June 6 between chief minister Prithviraj Chavan (who holds the law and judiciary portfolio), the chief justice of the Bombay high court and the state’s chief secretary to frame guidelines for withdrawal of all the stale and ineffective cases.

 

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