LEGAL NEWS 08.10.2012

Have a heart for poor offenders: Supreme Court

Dhananjay Mahapatra, TNN Oct 7, 2012, 05.09AM IST

NEW DELHI: The Supreme Court has frowned upon the sentencing system which forces poor petty offenders to remain in jail even after serving their sentence because of their inability to pay the fine imposed on them along with the period of imprisonment.

“Have a heart for poor petty offenders” was the message sent out by a bench of Justices P Sathasivam and Ranjan Gogoi when it ruled on Friday that trial courts should use their discretion and not impose hefty fines as defaulting in payment of the fine entailed additional long period of incarceration.

“Where a substantial term of imprisonment is inflicted, an excessive fine should not be imposed except in exceptional cases,” said Justice Sathasivam, who authored the judgment. The bench ruled that imprisonment for defaulting payment of fine was not a sentence. “To put it clear, it is a penalty which a person incurs on account of non-payment of fine,” it said.

“On the other hand, if sentence is imposed, undoubtedly, an offender must undergo unless it is modified or varied in part or whole in the judicial proceedings. However, the imprisonment ordered in default of payment of fine stands on a different footing,” the bench said. Advising the trial courts not to impose “harsh or excessive” fines, the bench said, “It is the duty of the court to keep in view the nature of the offence, circumstances in which it was committed, the position of the offender and the other relevant considerations such as pecuniary circumstances of the accused person as to character and magnitude of the offence before ordering the offender to suffer imprisonment in default of payment of fine.”

The court probably had in mind the pitiable condition of the poor prisoners who had no means to foot the fine and prefer to undergo the additional sentence specified for non-payment of the penalty.

Over seven lakh under-trial prisoners facing charges in petty cases were released on personal bail bonds in two years from 2009 after then law minister Veerappa Moily worked hard to convince most of them were facing bailable offences but were not released because they had no means to furnish bail bond.

In several cases, the under-trial prisoners had served a term which was the maximum sentence that could have been imposed if s/he were found guilty at the end of the trial. The bench relaxed the prison term in default of payment of fine in a case under Narcotic Drugs and Psychotropic Substances (Prohibition) Act, where two people in Gujarat were handed out 15-year imprisonment and a fine of Rs 1.5 lakh.





Schools to arrange for basic facilities of water, toilets

MANOJ MORE , Atikh Rashid : Mon Oct 08 2012, 03:42 hrs

With the Supreme Court making it mandatory for schools, either pubic or private, to arrange for enough toilet blocks and proper drinking water facilities on their premises, civic bodies, Zilla Parishads and Cantonment boards have sprung into action. If civic activists are to be believed, several schools — be it civic, cantonment and private — have either inadequate number of toilet blocks or the water tanks are located in unhygienic conditions.

According to a PMC school board official, though civic schools have proper drinking water facilities, it will have to construct enough toilets and urinal blocks to meet the state government norm.

In a directive issued on Wednesday, the Supreme Court set a six-month deadline to create proper drinking water and toilet facilities in all the schools irrespective of their status — minority or non-minority.

According to Shubhangi Chavan, PMC Deputy Education Officer, “almost all” 300 civic body-run schools have both these facilities but the number of toilet blocks are not as per norms set up by the state. The norm states there should be one toilet block and three urinals for every 100-120 student. In a number of schools there are no separate toilets for girls and boys in schools which operate in two shifts with girls in morning shift and boys in the afternoon.

“With a couple of exceptions, there are toilet facilities in all the schools run by the PMC. But we will have to construct more toilet blocks. The Building Construction Department which is responsible to maintain cleanliness in schools has sprung into action and we will construct the required number of toilet blocks and urinals before the SC deadline,” said Chavan.

Of the Rs 2 crore budget allotted for sanitary facilities at civic schools for 2010-11, only Rs 21 lakh was utilised, officials said. School board officials said at the schools which do not have toilets, for instance one in Kokate Vasti, the PMC is facing trouble to construct them as these schools are built on rented land and the PMC does not have the owner’s permission to build the toilets.

In Pimpri-Chinchwad, education department officials said they have adequate number of toilets and water facilities in schools, but these need to be strengthened. “Following the SC directive, we have drawn up a plan to improve the water and toilet facilities in all our schools,” said PCMC education official Vishnu Jadhav. The PCMC has 134 primary and secondary schools with a student count of 60,000. Jadhav said PCMC will next week issue directives to private schools to ensure they put proper water and toilet facilities on their premises. Pimpri-Chinchwad has over 200 schools with a student strength of 2.60 lakh.

Deputy education officer of Pune Zilla Parishad P H Mahajan said till last year many ZP-run schools in the district did not have toilets and urinal blocks but following an HC order, all these schools have been equipped with required number of toilets and urinals.

Parents have welcomed the SC order. “In one of the private schools in Pimpri, toilet blocks are located at the entry gate which spreads stinks in the entire premise. Students suffer in silence. Now, some sense will prevail among the management of private schools whose main focus is increasing fees,” said a parent, Ikhlas Sayeed.






No lie, says CM; sticks to his stand

October 8, 2012

PANJIM: Chief Minister ManoharParrikar on Sunday told HERALD that he stood by his stand that the State government had not been a party to the writ petition filed in the Supreme Court through the PIL of the Goa Foundation and therefore the apex court had not been made aware of the actions taken by the State government in the aftermath of the Shah Commission Report.
Parrikar said now that notices had been issued by the apex court to the State, the government would instruct its counsel to place before the Court the “series of actions following due procedure” taken by his administration on the illegal mining issue.
The chief minister clarified that despite the State government being named as a respondent, State authorities had not received any copies of the PIL and “we therefore had no way of knowing what the averments made in the PIL were in the run-up to the hearing on Friday”. Asked why, in that case, the four senior advocates recorded as present on behalf of the State (including the State Pollution Control Board) in the Supreme Court on Friday had not taken the opportunity to inform the Court of the actions taken by his administration, he conceded they had not been instructed to do so.
“That’s because unlike our legal officers based in the State, our standing counsel and other senior advocates representing the Goa government in the Supreme Court cannot always intervene immediately as they may have insufficient knowledge of the actions taken by the administration. Now that we have been provided copies of the PIL and have been given a time-frame within which to respond, we will be briefing our lawyers to submit to the Court the actions taken by my government against illegal mining which I reiterate are on the lines of what the Honorable Supreme Court itself has directed,” the chief minister told Herald.
Parrikar disagreed with the “interpretation” that the State was a party to the case and it was on the basis of precisely that locus standi that its lawyers had appeared in Court on behalf of the State government and itsvarious departments.  “Yes, our lawyers were present but they were not appearing in the case. They were there, led by our standing counsel, as representatives of the Goa Government and to observe the proceedings and respond to any questions or observations the Bench may have had regarding the State government.”





Petition opposes redevelopment of land of Raymond Mills

Last Updated: Sunday, October 07, 2012, 13:34

Mumbai: A petition opposing redevelopment of land belonging to Raymond Woollen Mills in nearby Thane has been converted into a PIL by the Bombay High Court.

A bench headed by Justice A M Khanvilkar had on October 4 ordered the petition to be converted into a PIL and placed it for hearing before an appropriate bench.

The petition, filed by Kamgar Utkarsha Sabha and local MLA Pratap Sarnaik, contends that Raymond Woollen Mills has 4,63,000 square metres of land at J K Gram in Majivra Ovale, which is proposed to be used for redevelopment by the company.

The petitioners contend that land is currently being used for industrial purpose as it has been granted exemption under the Urban Land Ceiling Act. Under the Act, one can hold huge tracts of land only for industrial use.

In 2007, the Urban Land Ceiling Act was repealed and a new Act came in. In November 2009, the Mill submitted proposal to Thane Municipal Corporation for redevelopment.

If it gets approval, it would be against the interest of public and workers, petitioners say, adding that intention of the Act was to utilise the mill land for industrial purpose and it would be defeated if the land was allowed to be redeveloped to earn profits.

Though the Urban Land Ceiling Act has been repealed, the condition of holding vast tracts of land for industrial use remained in force under the new Act, it added.







HC upholds conviction of couple

Express news service : Mumbai, Mon Oct 08 2012, 03:30 hrs

Bombay High Court (HC) has upheld the conviction of a couple that committed a murder in 2001 at Sakinaka. The order was passed by a division bench of Justices Abhay Oka and S P Davare on September 28, nearly nine years after the trial court judgment.

The murder came to light after a police constable discovered the torso of a female body in a steel tank covered with a cloth in Andheri-Ghatkopar Link Road area. The limbs were later found in a dustbin by the roadside. A chopper and a razor was also found in the bin.

While holding the couple guilty, the court said, “In our considered view, it is not possible to interfere with the finding of the trial court that the guilt of both appellants was proved beyond reasonable doubt.”

Accused Mohammed Iqbal Ansari alias Raju Chakravarty was arrested by police after they found his name written on the tank. His wife Deepa Ansari was subsequently arrested. While searching their house, police reportedly found bloodstains on the floor and in a tank in the room.





Student moves HC against PhD registration cancellation

TNN | Oct 8, 2012, 06.05AM IST

KOZHIKODE: A research scholar has moved the high court against the cancelation of her PhD registration by the Calicut University. The complainant, Shahana V A, had earlier approached Malappuram police’s women’s cell, accusing the vice-chancellor, M Abdul Salam, of shouting and verbally abusing her in his office.

Shahana had pursued Masters degree in library science before qualifying for Junior Research Fellowship (JRF). She joined the doctoral programme in Malayalam, but the varsity expelled her on grounds that she was simultaneously pursuing two courses. It was also pointed out that she had not obtained transfer certificate (TC) from the library science department.

In her petition, Shahana claimed that she was a victim of vindictive action by the varsity for filing a complaint against the VC with the woman’s cell. She alleged that the VC shouted at her and used abusive words when she went to his chamber on July 10 with a group of students to submit a memorandum against the varsity’s decision to charge a fee from students for using the Seminar Complex.

On receiving the memorandum, the varsity served her a show-cause notice, seeking explanation on why disciplinary action should not be taken against her.

In the petition filed before the high court on Saturday, Shahana has said that she was victimized and the action of the VC cancelling her PhD registration was ‘biased, prejudiced and without any legal basis’.

She said the she had not obtained the TC from the department of library science since it was not mentioned in the list of documents to be submitted along with the PhD application. Shahana claimed that she had applied for TC from the department on July 12, but it was not issued to her till date.

“Even otherwise, nowhere in the CU statutes it is stated that submission of TC is mandatory for the students who get JRF to register for PhD and none of my fellow students had produced the TC before joining the programme,” she said. The high court will take up the case on Monday.

The VC refused to comment when contacted on Sunday.






HC rejects PIL against President’s decision

New Delhi, Oct 7, 2012, PTI:

The Delhi High Court has dismissed a PIL challenging a decision of the President to appoint Saryu V Doshi as one of three members of a search committee, constituted to shortlist three names to head Lalit Kala Akademi.

“As the ultimate decision is left to the President of India, such a decision cannot be found fault with unless a nominee is not eligible to be nominated in the Search Committee,” chief justice D Murugesan and justice Rajiv Sahai Endlaw said.

The courts decision came on the PIL filed by Prasanta Kalita, an artist who has been working with the Akademi here for the past 10 years. Kalita had claimed that under the rules, Doshi, a former pro-term chairman of the Akademi, cannot be appointed by the President as one of the members of the search committee, formed to shortlist names of three persons.
“In terms of constitution/memorandum of association, only a past chairman could be nominated as one of the members of the search committee,” the PIL said, adding Doshi was only the pro-term chairman of the Akademi.

Out of three shortlisted candidates, one would be appointed as the chairperson of the Akademi. The judgement said, “The Memorandum of Association empowers the appointment of a pro-term chairman who will be entitled to discharge, inter alia, all the functions of the chairman in terms of Clause 5(iv). The selection process began by appointing members to the search committee to shortlist three names, out of them, one would succeed Ashok Vajpayee.”

“Out of three members of the search committee, the petition challenged Doshi on the ground that she was only a pro-term chairperson. The role of the committee is only to draw up a panel of three names and submit the same to the President who shall appoint one of them as the Chairman of the Akademi,” the court said.






HC for mechanism to inform complainant abt status of complaint

Press Trust of India / Mumbai October 07, 2012, 12:55

The Bombay High Court has suggested that Maharashtra government set up a mechanism whereby police can inform complainants that no ‘cognizable’ offence is made out in a case.

Cognizable offence is any serious offence where police have to conduct probe, without court’s order.

“If the police, after applying its mind, feels that no cognizable offence is made out from the complaint, then it should communicate this immediately. This will then allow the complainants to pursue other legal courses,” division bench of Justices A S Oka and S S Jadhav said.

“Why not consider setting up a machinery for this,” the court added.

The bench was hearing a petition filed by a person seeking direction to Thane police to initiate action on a complaint-letter sent by him in 2009. He had alleged cheating by a relation.

The police informed the court last week that it conducted inquiry and found that it was a civil dispute between family members, and no cognizable offence was made out.

“People write complaints to the police and do not get a response for years and then finally they approach High Court seeking relief. We have to tell them to adopt other legal remedies like filing private complaints (in Magistrate’s court). If you (police) feel no case is made out, then why can’t the police themselves inform the complainant? It is the police’s obligation,” Justice Oka said.





HC orders immediate repairs of Vikhroli court building

PTI | Oct 07, 2012, 18:19PM IST

Mumbai: Observing that the condition of two Metropolitan Magistrate Courts in suburban Vikhroli was very bad, the Bombay High Court has directed the authorities to carry out repairs immediately.

Division bench of Chief Justice Mohit Shah and Justice Nitin Jamdar passed the order on two PILs, after a report by HC Registrar said that immediate repairs were needed.

Assistant Government pleader Smita Gaidhani submitted last week that Public Works Department had not maintained the building on the ground that the property had not been taken on the ‘Property Register Book’.

High Court directed that PWD Secretary and Superintending Engineer, Mumbai Circle, be made respondents, and these officers should take steps to bring the Court premises on the Property Register Book before October 11.

Further, the HC said, the officers should inspect the Vikhroli Court premises before month-end and take a decision on repairs. These directions would not come in the way of taking up construction of a new court building on the adjoining land, HC clarified. Any encroachment on that land should be removed, with police protection, if needed, it said.

Shivshankar Joshi, one of the petitioners, had said encroachments by shops and commercial establishments had made it difficult for litigants and lawyers to enter the premises.

The High Court has now asked Assistant Municipal Commissioner to submit a report by October 18, the next date of hearing, about the encroachments, and take action.





CAG should be given more powers, says Bombay HC’s retired Justice Suresh

Press Trust Of India / Mumbai/ Ahmedabad Oct 08, 2012, 00:22 IST

Justice Hosbet Suresh, the retired Bombay High Court Judge, has advocated for giving more power to all the constitutional and statutory bodies like CAG and inquiry commissions.

“Statutory bodies like CAG and Commissions should have more than recommendatory powers, their recommendations should be made binding for Governments and these institutions should also have powers to take penal actions against defaulting governments or its departments,” said Justice Suresh while addressing media here on Sunday.

He was here on Sunday on an invitation from PUCL (People’s Union for Civil Liberties), Gujarat, to release a book ‘Gujarat CAG report: A public hearing of discussion’, a compilation of opinions and suggestions expressed by more than 150 activists during a public hearing held in the month of June, on the state CAG report.

“The way governments are treating CAG reports for past so many years, it has become imperative to give more teeth to these constitutional and statutory bodies,” he said. He also emphasised that the different Commissions set up either by state or central governments should submit their report within a set time frame and their recommendations should also be made binding on the governments.

“We have examples of Justice Srikrishna and Justice M S Liberhan commissions. And in Gujarat, Justice Nanavati commission has not submitted its final report even after 10 years of its probe,” he said. He also took a dig at the Modi government on neglecting CAG report, which he termed as a critical organ of the democracy.

“It is very unfortunate that Modi government tabled 2011-12 CAG report on the very last day of the budget session of the Assembly and it made sure that no discussion should take place on it,” he said.

He said that people outside Gujarat “have a very wrong impression” that Modi government has done a commendable job with widespread development.

“It is a myth which CAG exposed and hence the government intentionally avoided a debate on it on the floor of the House, which is essential in democracy,” he added.

Justice Suresh was part of an independent fact finding committee, under the chairmanship of Justice Krishna Iyer and People’s Tribunal on 2002 Gujarat Riots. “We will be submitting a memorandum to the President with our demand to give more powers to CAG and other constitutional and statutory bodies,” said Gautam Thakar, the general secretary, PUCL Gujarat chapter.




HC directs govt to seek Satish’s expertise in Ishrat case
The Milli Gazette
Published Online: Oct 08, 2012
Print Issue: 1-15 September 2012

Ahmedabad: A bench of Gujarat High Court comprising Justices Jayant Patel and Abhilasha Kumari directed the state government to ensure Satish Verma’s assistance while investigating the Ishrat probe. The CBI had sought permission to obtain Verma’s help. The court directed the government to provide Verma’s expertise for a period of four months. CBI had appealed against the police enquiry undertaken so that the central agency could continue the probe with Verma’s assistance. This will bring several vital facts to light.





Election Commission bans Atal Bihari Vajpayee bags in Himachal

Press Trust of India | Updated: October 08, 2012 08:31 IST

Shimla: With the model code of conduct in force in poll-bound Himachal, the Election Commission on Sunday asked the state government to stop distribution of carry bags, free of cost, to PDS consumers with picture of former Premier A B Vajpayee inscribed on them.

The scheme to distribute free carry bags to 16 lakh PDS card holders, launched on August 15 last, had been put on hold till the model code of conduct was in force in the hill state, Chief Election Commissioner V S Sampath said.

Mr Sampath, who was in Shimla to review arrangements for the assembly election, said “henceforth, no bags will be issued to PDS consumers with pictures of any political leader inscribed on them.”

He said the Commission had received a complaint in this regard and no such free bags would be distributed from today.

The Commission had also received complaints regarding violation of the model code of conduct by the ruling BJP and these would be looked into and action taken, if warranted, the CEC said.

He, however, expressed satisfaction over arrangements made by the state government for the assembly election slated for November four.

Mr Sampath said the Commission had received complaints about “bias reporting” by local Doordarshan Kendra and would take up the matter with the Union Information and Broadcasting ministry.





Kingfisher staff wife’s suicide: NHRC admits plea Vs Mallya

The National Human Rights Commission has admitted a plea against Kingfisher Airlines Chairman Vijay Mallya. The plea urges the rights panel to initiate a case against him in the death of a Kingfisher employee’s wife.


The National Human Rights Commission has admitted a plea against Kingfisher Airlines Chairman Vijay Mallya. The plea urges the rights panel to initiate a case against him in the death of a Kingfisher employee’s wife. Kingfisher store manager Manas Chakravarti’s wife in her suicide note mentioned that she couldn’t take the financial stress caused by non-payment of salaries.

In her suicide note, 45-year-old Sushmita wrote, “My husband works with Kingfisher where they have not paid him salary for the last six months. We are in acute financial crisis and so I am committing suicide”. The couple has a son who’s studying in an engineering college.

The victim’s body was discovered when her husband, who was at work, alerted the neighbours as she wasn’t answering her phone. When the neighbours broke in to the house, they found her hanging from the roof. She was rushed to a nearby hospital where she was declared brought dead.

She had also expressed fear that the company may be closed down and her husband may lose his job. In the note, she had also said that no one else was responsible for her taking the extreme step.





Child rights commission to pull up Haryana Govt on rape cases

Press Trust of India

‘You have seen the sex ratio as well. There are only 830 females to 1000 males.’

New Delhi, Oct 7:

Concerned over a spurt in incidents of rape of teenaged girls in Haryana, the National Commission for Protection of Child Rights (NCPCR) on Sunday said it will seek explanation from the State Government in each case, including action taken against culprits.

The Commission also said the recent incidents with regard to women in Haryana have emphasised the need to focus on several issues, including the skewed sex ratio in the northern State.

“Ten girls have been raped so far. There have been molestation charges. Our Commission will ask them what has been done in each case. Have all of the accused been arrested? What proceedings have been done?” NCPCR chairperson Shanta Sinha said.

She was reacting to reports on a teenage Dalit girl immolating herself after allegedly being gangraped in Jind district of Haryana.

After allegedly being raped by two youths in Narwana sub division of the district, the shocked girl sprinkled kerosene and set herself afire on Saturday, adding to a series of such horrific crimes against women in Haryana during the past one month.

“We feel that in Haryana, it is not the sole issue which is coming to the limelight. You have seen the sex ratio as well.

There are only 830 females for 1000 males,” she said.

Sinha also stressed the need for a public awareness campaign in favour of girl children.

“There should also be a fear amongst the ones who indulge in such activities. They should be punished so that the girls are safe,” she said.






OC recommends suspension of Suresh Kalmadi, Lalit Bhanot

Last Updated: Monday, October 08, 2012, 12:19

New Delhi: In a major blow to the aspirations of Suresh Kalmadi, V K Verma and Lalit Bhanot ahead of the elections, the Ethics Commission of the International Olympic Committee (IOC) has recommended that the tainted trio be suspended from all their functions within the Indian Olympic Association (IOA) with immediate effect.

The Commission also observed that in view of their tainted history, the trio`s candidature for the upcoming elections of the Indian Olympic Association was “not possible”.

The Ethics Commission`s recommendation came after IOC president Jacques Rogge asked for its view following IOA vice-president Jagdish Tytler`s query on the position of these three officials ahead of proposed IOA election on November 25 this year.

The IOC President had asked the Ethics Commission for its opinion in order to know whether it is possible, according to the Code of Ethics, for Kalmadi, Verma and Bhanot to stand as candidates for positions on the IOA Board at the upcoming elections.

“Point B.5 of the IOC Code of Ethics, in the `Integrity` chapter, states that `The Olympic parties shall use due care and diligence in fulfilling their mission. They must not act in a manner likely to tarnish the reputation of the Olympic Movement.

“Messrs Kalmadi, Verma and Bhanot were all tried by a criminal court pursuant to the law on corruption linked to a sports event (2010 Commonwealth Games). The court even sentenced them to preventive detention for several months. For his part, Mr Kalmadi was released, but banned from leaving the national territory unless agreed by the court,” chairman of the IOC Ethics Commission, Youssoupha Ndiaye said in his reply.

“Although, owing to the application of the principle of presumption of innocence, the Ethics Commission cannot take any final decision on the situation of Messrs Kalmadi, Verma and Bhanot, it must however recommend a provisional measure to protect the reputation of the Olympic Movement”, the Ethics Commission said.

“In view of this analysis of the facts, the IOC Ethics Commission is of the opinion that it should recommend that Messrs Kalmadi, Verma and Bhanot be suspended from all their functions within the IOA until the final decision by the competent court in India.,” he said.

“That, in consequence, any candidature from these three men for any position within the IOA is not possible.”

The Ethics Commission also came hard on the IOA for keeping the IOC in dark over the positions of Kalmadi, Verma and Bhanot irrespective of repeated reminders.

“At no time, and in spite of numerous reminders and requests from the IOC, did the NOC (IOC) clearly make any statement regarding the situation of these three officials nor take any provisional measure concerning them,” it said.

All the three officials were jailed and subsequently released on bail in connection with the Commonwealth Games corruption scandal.

Kalmadi was the chairman of the Organising Committee while Bhanot was the Secretary General. Verma was one of the Director Generals of the Organising Committee.







Mamta Sharma: In the line of women’s fire

Head of National Commision for Women clears the air about comments

By Nilima Pathak, Correspondent

Published: 21:44 October 7, 2012

New Delhi: The National Commission for Women (NCW) headed by Mamta Sharma, has, over the last few months, come under fire. And surprisingly, it is the women activists, who are finding faults with Sharma and want the Commission scrapped, claiming it has failed women.

Sharma has sparked a row over her remarks now and then even as the government is ready with the Criminal Law (Amendment) Bill 2012, to slap life imprisonment terms on people who commit sexual assault and acid attacks on women.

The chairperson says: “I am least bothered about opposition to my work and will remain straightforward in my approach. My mission is to see that we deal with crimes against women with utmost importance and provide results in the shortest possible time.”

She is focusing her energies into seeing that only women police officers investigate rape cases all over the country and they do so with great sensitivity. And whenever a bail matter is listed for a rape accused, the lawyer of the Commission should be informed immediately.





Green Tribunal rejects Centre petition

Oct 08, 2012 | New Delhi

The National Green Tribunal has rejected a petition by the Union ministry of environment and forests seeking to review an order that asks the government to adhere to the Gadgil report.

The tribunal headed by Justice A.S. Naidu maintained that the ministry should grant environmental clearance to the developmental projects in Western Ghats region only in consonance with the provisions made in the Gadgil report. This could mean that green signal for the Athirapally hydel project is unlikely.

Seeking review of the tribunal’s interim order passed on July 25, the MOEF had stated that the direction “causes prejudice to the MOEF as the (Gadgil) Report has not attended finality and is still under consideration of the ministry.”

However, the tribunal noted that this “review petition does not satisfy any of the mandatory requirements and that the reasons assigned for reviewing the order are unacceptable.”

“While taking decisions (on environmental clearances), the ministry shall adhere to the (Gadgil) Report, if the same has not been varied till date,” the tribunal stated while disposing of the review petition.





TDSAT asks BSNL not to hike infra charges retrospectively

Last Updated: Sunday, October 07, 2012, 15:00

“The increase in the rate could have been effected only at the time of renewal of the agreement, i.e., with effect from April, 2013,” said TDSAT.

TDSAT’s order came over a batch of petitions filed by – Bharti Airtel, Idea Cellular, Tata Teleservices, Reliance Communications, Aircel, Vodafone South and Vodafone Digilink.

The tribunal said, “They (operators) have made out a strong prima-facie case in their favour”.

Infrastructure charges are paid by private telecom firms to BSNL as rental and maintenance fees to station their link equipment such as terminals and antennas in the premises of the state-owned companies to get connected in their NLD (domestic) and ILD (international) networks.

BSNL had on August 23, 2012 increased the infrastructural charges retrospectively from April 1, 2009 based on a classification of cities by the government in 2004.

The move was challenged by the operators, who had entered into an interconnect agreement with the PSU after 2001 contending that they have already paid infrastructural charges in advance for the financial year 2012-2013.

According to them, it was a commercial agreement between them and BSNL can not do unilateral revision.

However, BSNL contended that as per the clauses of the interconnect agreement, BSNL can alone prescribe the charges from ‘time to time’ besides laying down the terms and condition.

TDSAT bench headed by its Chairman Justice S B Sinha observed BSNL’s decision was based on classification by the government, which had actually divided into six tiers instead of four and said,” prima-facie, we have no doubt in our mind that the Respondent (BSNL) was required to take a fresh decision”.







Ranbaxy ex-director Kaul guilty of insider trading says SAT

The Securities Appellate Tribunal (SAT) has upheld insider trading charges against VK Kaul, a former independent director of Ranbaxy, and his wife Bala Kaul, accusing them of insider

Source: CNBC-TV18

The Securities Appellate Tribunal (SAT) has upheld insider trading charges against VK Kaul, a former independent director of Ranbaxy , and his wife Bala Kaul, accusing them of insider trading.

The Securities and Exchange Board of India (Sebi) had alleged that VK Kaul, who knew in advance that Ranbaxy’s arm Solrex is going to buy shares of Orchid Chemicals, traded on behalf of his wife ahead of the transaction. While Kaul has been fined Rs 50 lakh, his wife Bala Kaul has been handed a fine of Rs 10 lakh, Sebi said in two separate orders.

The case relates to the sale of 6.5 lakh shares in Orchid Chemicals & Pharmaceuticals (OPCL) by Bear Stearns in March, 2008.

The scrip saw a huge fall in the last half of March, 2008, but then recovered significantly. Several alerts were generated at the NSE and BSE and the scrip was taken up for joint investigation by the exchanges on the basis of which a report was submitted by them in April that year.

Bala Kaul had bought shares of OCPL from stockbroker Religare Securities on March 27-28, 2008, just prior to the start of share buying by Solrex, a Ranbaxy holding company, on March 31, 2008.

She bought a total of 35,000 shares at an average price of Rs 131.71 and sold them on April 10, 2008, at an average price of Rs 219.94, the Sebi said in its order.

VK Kaul was at that time serving as an independent director in Ranbaxy Laboratories.






COMPAT rejects FTIL’s plea of impleadment

Mon 8 October 2012 10:12   Pawan Singh   New Delhi

The Competition Appellate Tribunal (COMPAT) has rejected an impleadment plea by Financial Technologies India Ltd (FTIL), in NSE’s appeal against a Rs 55.5 crore penalty imposed by competition watchdog, Competition Commission of India (CCI).

In its application FTIL , seeking to be a party, had contended that there are some allegations raised by NSE in the appeal which are directly against FTIL hence it is entitled to be impleaded to refute the same.

NSE opposed FTIL plea on the ground that as it was not a party in the original proceedings before CCI and was therefore not entitled to join before the Appellate Tribunal.

“In   view   of what   has   been   stated   before   us, we   do   not find any merits whatsoever in the contentions raised before us in support of the application for impleadment. We, therefore, dismiss the same,” a three-member Compat bench, headed by its Chairman Justice VS Sirpurkar held.

The CCI direction came on a complaint filed by MCX Stock Exchange (MCX-SX).  MCX-SX in its representation to the CCI had accused NSE of abusing of its dominant market position.

National Stock Exchange (NSE) had earlier challenged the order dated 23rd June, 2011 wherein the CCI has held that the appellant-NSE has engaged in the exclusionary conduct in the aftermarket for exchange related software in the Currency Derivative Segments (‘CD Segment’).

FTILis engaged in the business of developing and supplying software to various stock exchange and commodity exchanges. It also provides software solutions for brokers and other market intermediaries.





Pathribal encounter: Army asks dead to depose, victims’ families shocked

Mufti Islah, CNN-IBN

Srinagar: The Indian Army is under fire for summoning dead persons in the probe into the Pathribal encounter that took place in the Anantnag district of Jammu and Kashmir in March 2000. The families of the victims are shocked at the callousness. They demand that the trial court be shifted to Kashmir if the Indian Army wants them to attend the proceedings.

The furore started when the Army served a summons in the name of Amirullah, who died in 1994, six years before his son Juma Khan and four others were killed in the fake encounter in Pathribal. Shakoor Khan, Amirullah’s grandson, said, “The summons that they sent us are in the name of my grandfather who died 20 years ago. We cannot go there.” The family members have decided not to attend the court-martial proceedings if the venue at Nagrota near Jammu is not transferred to Kashmir. They have also demanded security and counsel of their own choice.

Roshan Jan, wife of slain Juma Khan, said that she could not understand any other language except Gojri and hence was unable to attend proceedings. She added that she was unwell and not in a state to talk. She too demanded that the venue of the trial be shifted to Kashmir. Abdul Rashid, Juma Khan’s son, questioned the need for a probe. He said, “The Central Bureau of Investigation (CBI) has already said they were killed in cold-blood and charge-sheeted. What is the need to do a probe again? I fear for my family.”

Their demand is backed by the political parties in the valley. Mehboob Beg, a National Conference (NC) MP, said, “The CBI has already confirmed those were murders. It is time for action and not to go into technicalities.”

Five youths were killed in the Pathribal fake encounter in March 2000, a few days after the Sikh massacre in Chhattisinghpora, again in the Anantnag district. Earlier this year, the Army told the Supreme Court it will court-martial the accused officers, following which a Defence Ministry spokesperson reached out to the families of the slain men saying that the Army was committed to a fair and transparent trial and “witnesses would be given reasonable time to record their statements”. Since the Pathribal trial is being taken over by the Army, it should ensure that justice is done. For the victims who are awaiting justice for 12 long years, the patience is running thin.






Attending court a day akin to day’s simple imprisonment: Court

Press Trust of India / New Delhi October 07, 2012, 11:55

Attending court on each date may be considered equivalent to simple imprisonment of one day, a Delhi court has observed, while letting off a man on probation after holding him guilty of assaulting another man in a trial spanning 11 years.

Metropolitan Magistrate Jagminder Singh let off South West Delhi resident Lalit Kumar on probation also on grounds of being the sole bread winner of the family and that he had apologised for his behaviour.

“The convict submits that he is facing trial since 2001 ie, for last about 11 years and continuously appearing before the court. Attending court on each date may be considered equivalent to simple imprisonment of one day,” said the court, letting off the convict on probation on ground that he faced the trial for 11 years.

The prosecution case dated back to September 10, 2000 when Lalit, a teacher by profession, had abused and assaulted Bihar native Mohan Kumar.

The prosecution had told the court that Lalit abused and assaulted Mohan with a dangerous weapon when the victim had gone to his cousin’s house where the accused too was present.

The court convicted Lalit for beating up Mohan but held that there was not sufficient evidence to conclude that a dangerous weapon had been used by him to injure the victim.

It noted that the convict has a child and wife to look after and he is the only earning member of his family.

“Keeping in view the reformative theories of punishment, court thinks that the convict does not deserve any further substantial imprisonment behind the bar. Benefit of probation is given to the convict,” the judge said.





As backlog leads to overcrowding in jails, security concerns abound

Mateen Hafeez & Rebecca Samervel , TNN | Oct 8, 2012, 05.34AM IST

The snail-paced disposal of cases in Maharashtra’s courts has not just kept the pendency rate high but also caused overcrowding in jails. In most prisons in the state, the prisoner population is considerably more than the permitted capacity, leading to law-and-order problems.

In the state’s southern region, where Mumbai falls, three of the four prisons were overcrowded in the last week of September. Arthur Road jail has a capacity of 804 but housed 1,995 inmates. Thane jail can accommodate 1,105 inmates but its population was 1,984. Kalyan jail is meant for 505 prisoners but held 1,122.

To tackle just such overcrowding, the chief of the National Human Rights Commission had earlier this year recommended creation of night courts on prison premises to at least dispose of cases relating to petty crimes. Jail authorities appreciate the suggestion but point out that its implementation is the government’s prerogative. “Although it will help speed up trials, the idea has to be accepted by the law and judiciary department and the directorate of prosecution,” said a jail officer. “There have been times when inmates were not taken to court for hearing due to shortage of escort staff.”

No wonder then, undertrials out on bail as well as those acquitted support courts in jails or nearby. “It will save time and manpower,” said an inmate who was recently granted bail. They note that, partly due to overcrowding, the state of most of Maharashtra prisons is abysmal. This has resulted in fights among prisoners and riots. Recently, an inquiry was set up when a group of inmates assaulted policemen in Taloja jail.

Officials argue that prison understaffing compounds problems spawned by overcrowding. Not infrequently, inmates flee from police custody while being ferried to court for hearing or back. A few years ago, four undertrials slipped away while being transported back to Taloja jail in Navi Mumbai from a sessions court in Mumbai.

The suggestion of night courts in jails finds backers among prisoners and prison officials but not among many legal experts. Public prosecutor Neelima Kasture maintains nights courts are “not the solution” since they would add to the burden of judges and lawyers. “We need judges who will not give repeated adjournments . Unlike earlier, several district judges now focus on procedural technicalities, which cause unnecessary delay. They must hear the matter every day and dispose of them quickly. Another problem is lawyers who survive on adjournments . This practice should be curbed,” she said.





Man gets 2 years in jail for molestation

PTI | Oct 8, 2012, 02.20AM IST

NEW DELHI: A Delhi court has sentenced a man to two years in jail for outraging the modesty of his employer’s minor daughter. Additional sessions judge Madhu Jain held Aatik Alam guilty of outraging the modesty of the five-year-old girl, but acquitted him of rape charges.

The court also offset Alam’s sentence against the jail term already served by him during trial.

The case dated back to September 9, 2010. It was registered on the complaint by the girl’s mother that Alam, who used to work as a helper in her husband’s tea shop in south Delhi, had taken her daughter to a nearby railway track and raped her. Alam was arrested by the police the same day.

The court, however, acquitted Alam of rape charges on the basis of medical evidence. Alam had refuted the allegations, saying his employer had implicated him.






Court frees youth charged with kidnapping minor to marry her

Press Trust of India / New Delhi October 07, 2012, 10:45

A youth accused of kidnapping a minor girl, who was months away from turning an adult, and inducing her to marry him has been acquitted by a Delhi court on the testimony of the girl that she went with him on her “own free will”.

The trial court quoted a judgement of the Supreme Court in a similar case to rely on the statement of the victim in the present case who was just four months away from attaining the majority age of 18 years.

“In the present case also that there was no word in the deposition of the prosecutrix from which it could be inferred that she had left the house of her father at the instance or even at the suggestion of the accused.

“She had constantly stated before the court as well as in her statement under section 164 of CrPC before Metropolitan Magistrate that she had gone with accused with her own free will, which, by no stretch of imagination could be said to be the accused having taken her out of the keeping of lawful guardianship,” Additional Sessions Judge Gulshan Kumar said.

Delhi resident Akhtar Ali was freed by the court saying the prosecution has also failed to prove that accused had abducted the girl with intention to marry her or to have an illicit relationship with her.

“I am of the view that prosecution has miserably failed to prove on record that on March 16, 2012… Accused (Ali) abducted the prosecutrix, minor girl from the custody of her lawful guardians and with an intention that she may be compelled to marry against her will or with an intention to have an illicit intercourse with her.

“Accordingly, accused is acquitted of the offences under section 363/366 (kidnapping, abducting or inducing woman to compel her for marriage) of the IPC, he was charged with,” the judge said.

The girl’s parents had lodged a complaint alleging that on March 16, 2012 the accused had abducted the girl from the custody of her lawful guardians with an intention to marry her and have an illicit relation with their minor daughter.

Ali was arrested three days after the missing report of the girl was lodged with the South Campus police station in Saket area.




Man given 6 months jail term for possessing heroin

Last Updated: Sunday, October 07, 2012, 11:53

New Delhi: A man caught with around 15 grams of heroin this year has been sentenced to six months in jail by a Delhi court.

While convicting Central Delhi resident Satish under the Narcotics Drugs and Psychotropic Substances (NDPS) Act, Additional Sessions Judge Narinder Kumar also imposed a fine of Rs 500 on him.

“This court finds that the prosecution has established its case against the accused… He was found in possession of 15 gms of heroin.

“Having regard to the quantity recovered from the convict (Satish) and that he is a poor person and not a previous convict, I hereby sentence him to imprisonment for a period of six months and to pay fine of Rs 500,” the judge said.

The Delhi police sleuths had arrested Satish in January this year at Nabi Karim area in Central Delhi after suspecting him of carrying some contraband drugs.

According to the police, 15 grams of heroin was recovered from him after a formal search was conducted.

Seeking leniency for the convict, Satish’s counsel told the court that his client is a poor person, having the responsibility to look after his aged mother and children.

He added that Satish had already served a jail term for about three months during investigation of the case.

The court, while handing down the punishment, set off half his sentence against the three-month jail term already served by him.






UK promises to bring Brar’s attackers to justice

NEW DELHI, Oct 7, 2012, DHNS:

India to ask UK, other nations to curb pro-Khalistani groups

Even as the United Kingdom has assured India that it would bring to justice the perpetrators of the attack on Lt. Gen. (retired) K S Brar in London on September 30 last, New Delhi is likely to cite the incident to nudge British and Canadian Governments to keep tab on Khalistanis active in both the countries.  

In a letter to External Affairs Minister S M Krishna, British Foreign Secretary William Hague said that the UK Government was determined to bring the perpetrators of the attack on Indian Army veteran to justice and London would keep New Delhi updated about the progress of the investigation.

New Delhi, however, is likely to urge both London and Ottawa that extremists should not be allowed to take advantage of freedom of expression guaranteed by local laws to spread fanaticism. India is also set to ask both UK and Canadian Government to probe if the pro-Khalistani elements in both the countries had any links with Pakistani Inter Services Intelligence.

The London Police arrested 10 men and two women in connection with the attack on Brar, who had led the Operation Blue Star that the Indian Army had carried out in Golden Temple to flush out the Khalistani militants from the Sikh shrine in Amritsar in 1984.

Though Brar said that his “strongly built, bearded and tall” and attackers were “pro-Khalistanis”, London Police did not disclose identity and ethnicity of none of the 12 persons it arrested so far, but most of them were from Wolverhampton, Bromwich and Hillingdon – all known for significant population of Sikhs. Nine of them were released on bail, while three others are still in policy custody and being interrogated.

Sources told Deccan Herald that New Delhi had been receiving intelligence inputs over the past couple of years about the ISI’s efforts to revive Sikh militancy in India and to support Babbar Khalsa International, Khalistan Zindabad Force and the newly-formed Khalistan Tiger Force through International Sikh Youth Federation and its offshoots in European and North American countries. A senior Punjab Police officer had on September 15, 2011 briefed top security officials in New Delhi about the intelligence inputs, suggesting that the ISI had asked the BKI, KZF and KTF to do some “spectacular actions” to announce their revival.

Notwithstanding the protracted probe into the 1985 bombing of the Air India’s Kanishka aircraft by Sikh militants in Canada and the subsequent much-publicized trial of the accused, pro-Khalistani elements and groups are still active in the North American country. Krishna last month took up with his Canadian counterpart John Baird the issue of Khalistani radical elements’ continued presence and activities in the latter’s country.

Baird assured him that Ottawa would do “everything it could possibly do under the law to combat radical extremism by such groups in Canada”. He also told Krishna that Ottawa would look forward to inputs from New Delhi to revise and update the list of the Sikh militant groups that had been tagged as terrorist organizations in Canada in 2003.






20% of undertrials are from Maharashtra

Rebecca Samervel, TNN | Oct 8, 2012, 02.40AM IST

MUMBAI: The judicial backlog in Maharashtra is edging forward to intractable levels. By the end of last year, statistics show, the state accounted for one in every five undertrials booked in the country under the Indian Penal Code.

According to data released by the National Crime Records Bureau, 31 lakh undertrials were awaiting verdict in Maharashtra in 2011. Of these, just 2.4 lakh witnessed their cases conclude during the year. The remaining 28.6 lakh undertrials had to wait for their fates to be decided another day. Compared to the rest of the country, the figure was the highest of all states. And within Maharashtra, that amounted to a pendency rate of 92.1%.

Legal experts said the mountainous backlog has necessitated changes in the legal system. If the growing problem has to be arrested in the state, “good judges” must be appointed, the number of courts as well as manpower increased, and unnecessary delays in hearings curbed.

The NCRB statistics show that by 2011-end the country had 1.38 crore undertrials. Maharashtra’s tally of 28.6 lakh accounted for 20.6% of the staggering figure; it was followed in the ignominious list by Gujarat (16.1 lakh), Bihar (15.5 lakh), Madhya Pradesh (12 lakh), and Uttar Pradesh (8.6 lakh).

“One of the main problems is that criminal cases are rising greatly and we don’t have sufficient judges. The authorities should examine this issue seriously. The number of courts must be increased,” said lawyer Majeed Memon. He added that the judicial backlog has left multitudes of undertrials languishing in jails endlessly—which is contradictory to constitutional assurances.

As an instance of the inordinate delay in disposal of cases, lawyers cited the 2006 Lakkhan Baiyya fake encounter. The case is yet to conclude and thus the 22 accused, including13 policemen, still awaiting verdict.

Special public prosecutor Rohini Salian explained that judicial delays are often caused by cumbersome procedures. “Even if there 40 matters are listed, each case is called out, the presence or absence of people recorded and roznama marked. Many of these matters are then adjourned.”

Salian said that courts accord preference to cases where the accused are in custody and not to those where the undertrials are out on bail, leading to prolonged delays in the latter. “Also, courts hear bail, revision and miscellaneous applications. This leaves many courts with just half a day to hear trials.”





Enforcement Directorate attaches City Group Swiss accounts

TNN | Oct 8, 2012, 01.00AM IST

NEW DELHI: The Enforcement Directorate has attached the Swiss bank accounts of Sayed Mohamed Masood, chairman of City Limouzine, and other group companies which are being investigated for alleged financial fraud, sources within the ED told TOI. This is the first such move under the Prevention of Money Laundering Act and possibly marks the dismantling of the Swiss wall of customer confidentially.

Experts say the move could also have implications for the fight against black money.

The Enforcement Directorate is investigating the City Group and Masood for alleged money laundering. The group had floated investment schemes offering high returns, as much as 48% in some cases.

ED sources say that they were able to convince Swiss authorities that the funds in some of the Swiss bank accounts of Masoos were “proceeds of crime”. They said Swiss authorities were convinced and cooperated in freezing some of the bank accounts. The PMLA adjudicating authority now has to confirm the attachments and once it is done ED will take possession of the funds, the source said. If the conviction goes through in the case, the funds will be brought back to India, the source said.

ED is conducting investigations into the money laundering in countries abroad in the case. Sources said the investigations so far have revealed that Masood maintained bank accounts in Switzerland in his name and the name of his companies.

ED has now attached these bank accounts which had a balance of $ 1.25 million. Investigations have also revealed huge transactions in foreign bank accounts and further probe is on in the case. The ED sources say more domestic and international attachments are likely soon.

According to the ED, City Limouzines (India) Ltd., City Realcom Ltd., its chairman Sayed Mohamed Masood and other directors of the companies have allegedly duped thousands of investors across the country of funds to the tune of hundreds of crores.

Police across the country are investigating Sayed Mohamed Masood, and City Group of Companies for cheating and criminal conspiracy under sections 120-B and 420 of the Indian Penal Code, the sources said.

ED sources say investigations have uncovered huge money laundering in India and abroad. During the course of investigations, the Enforcement Directorate has issued 14 attachment orders attaching movable and immovable properties in

India with a market value of over Rs 130 crores which were registered in the names of City group of companies, Masood, his wife, daughter, son and other directors.

The PMLA adjudicating authority has confirmed all the attachment orders and ED is in the process of taking over these properties, the sources said.






Kanda’s offensive SMSes forced Geetika to commit suicide?

Published: Sunday, October 7, 2012, 13:40 [IST]

Posted by: Nairita

New Delhi, Oct 7: Delhi police indicted former Haryana Home Minister Gopal Goyal Kanda and his close associate Aruna Chaddha regarding Geetika Sharma suicide case. Police on Saturday, Oct 6 submitted charge-sheet to a Delhi court and accused Kanda and Chaddha of harassing Geetika.

The cops in its charge-sheet said that Kanda’s offensive messages (SMSes) had compelled 23-year-old air-hostess Geetika Sharma who had worked in now defunct MDLR airlines owned by Kanda.

Following Indian Penal Code (IPC) and Information Technology Act, the investigative officials charged criminal conspiracy, destruction of evidence, forgery and sending offensive messages against Kanda.

Charges against Kanda and Chaddha said that the duo had abetted the suicide of the former sir-hostess through “malicious and wilful acts of mental torture, threat, blackmail and stress and criminal intimidation spread over two years” that forced young Geetika to end her life.

The charge-sheet also accused Kanda and Chaddha of “harassing, conspiring, intimidating and creating an atmosphere of terror and continuous pursuit.”

Delhi police also added, “By sending forged and false e-mails and by making Geetika use forged No-Objection Certificate when she left MDLR [which she had no reason to suspect to be forged] and joined Emirates Airlines, Gopal Kanda had created an atmosphere of suspicion and distrust around Geetika in which she was not able to hold her head high and face her colleagues. She resigned to save her dignity… She rightly feared that she would be viewed with suspicion and distrust by her colleagues, friends and future employers and becoming extremely distressed and depressed, she decided to end her life by hanging herself.”

Geetika committed suicide in her apartment in Delhi on Aug 5. In her suicide note, Geetika had alleged that Kanda and Aruna Chaddha were responsible for compelling her to end her life. The police have booked Kanda under abatement to suicide case. He was forced to resign from his post following his alleged role in Geetika’s suicide case.

Police arrested Chaddha but failed to take Kanda into their custody as he absconded. Later he surrendered himself and was sent judicial custody.

The suicide case hogged limelight when Kanda’s alleged involvement with Geetika was revealed. The former minister allegedly had an extra-marital affair with the former air-hostess. However, Kanda’s wife rejected to accept such allegations against her husband.

Many other shocking facts were also reported when a Bollywood starlet Nupur Mehta stated about Kanda’s relationship with another woman Ankita Singh with whom Geetika had a bitter relation.

Soon after Geetika’s suicide, Nupur, an ex-employee of now defunct MDLR airlines, stated that Kanda married Ankita and both of them have a love-child.

Geetika had filed a legal case against Ankita who had trespassed into Geetika’s apartment in Goa and threatened the former to resign from Kanda’s company.

OneIndia News





Convict gets 31-year jail in Naroda Patiya case

AHMEDABAD A special court awarded 31 years of rigorous imprisonment to a convict in the 2002 Naroda Patiya case on Friday.

Terming Suresh alias Shehzad Netalkar as one of the main conspirators, special judge Jyotsana Yagnik sentenced him to 21 years life imprisonment after serving 10 years under section 326 (voluntary causing grievous hurt by dangerous weapons or means) of the Indian Penal Code (IPC).

On August 29, 2012, Netalkar was held guilty of murder, conspiracy and other sections of the IPC among 32 accused, including BJP MLA and former minister in Narendra Modi government, Maya Kodnani.

As Netalkar had jumped bail and was declared an absconder, the court had reserved the pronouncement of quantum of punishment till he could be brought before the court.

Judge Yagnik had also directed the Supreme Court appointed special investigation team (SIT) to form a special team to nab Netalkar.

Following a manhunt in more than six cities of Maharashtra and tracing his movements on the basis of his mobile phone locations, the special team finally nabbed him on Thursday from Nandurbar in Maharashtra and produced him before the court.

Netalkar repented his acts of 2002 and told the court that he jumped the bail because he had to make arrangement for his son and daughter’s marriages.




SC overrules decision on cheques

M J Antony / New Delhi Oct 08, 2012, 00:56 IST

The Supreme Court has overruled its own judgment regarding the law on bounced cheques. The Supreme Court as well as high courts have been following the wrong judgment in several cases under the Negotiable Instruments Act. Now it has turned the law around. In this case, the payee did not issue notice to the drawer when the cheques bounced for the first time. He presented them again, and they bounced again. Then only he initiated proceedings under the Act. There were contrary views on whether the proceedings were valid if the payee did not act for the first time. Therefore the question was referred to a larger bench. The issue was “whether the payee or holder of cheque can initiate proceedings of prosecution for the second time if he has not initiated any action on earlier cause of action?” Settling the law, the Supreme Court, in the latest case titled MSR Leathers vs S Palaniappan, stated that prosecution based on the second or successive dishonour of the cheque is also permissible. It overruled the 1998 decision in Sadanandan Bhadran’s case and now ruled that prosecution based upon second or successive dishonour of the cheque is also permissible.

 Third parties in arbitration
The Supreme Court has held that even non-signatory parties to agreements can be referred to arbitration under the Arbitration and Conciliation Act. The expression ‘person claiming through or under’ in Section 45 would mean multiple and multi-party agreements, though in exceptional case. The judgment in the case, Chloro Control Ltd vs Severn Trent Water Purification Inc, explained that even non-signatory parties to some of the agreements can demand and be referred to arbitration. The Bombay High Court ruling in this case was upheld and the disputes between various parties were referred to arbitration which will be conducted according to the rules of International Chamber of Commerce.

Award must be given to party
The Supreme Court has ruled that the service of a copy of an arbitral award on the agent or a lawyer of a party did not amount to service on the party itself, according to the provisions of the Arbitration and Conciliation Act. In this case, Benarsi Krishna Committee vs Karmayogi Shelters Ltd, the copy was available with the lawyer, but not the firm itself. This caused some delay in challenging the award in the Delhi High Court. A single-judge bench held that if the lawyer or agent got the copy of the award, that would amount to the party itself getting it. However the division bench negated this and insisted that the award should be served on the party itself. On appeal, the Supreme Court upheld this view and stated that the expression “party”, as defined in the Act, clearly indicated a person who is a party to an arbitration agreement. The definition is not qualified in any way so as to include the agent of the party to such agreement.

More liability on insurance firms
The Delhi High Court has ruled that a general insurance company must pay the victim of a road accident even if the terms of the policy have been broken. In this appeal case, Bajaj Allianz General Insurance Company vs Savitri, the firm argued that since it had successfully proved the breach of the terms of policy, it was entitled to be exonerated of its liability and the motor vehicles accident tribunal was wrong in fixing the liability on the insurer and then allowing it to recover the amount from the owner of the vehicle and the driver. The high court asserted that the insurer’s liability to satisfy third party liability has been decided by the Supreme Court in several cases. “Even if a conscious breach on the part of the insured is established, the insurer has a statutory liability to pay the compensation to the third party and will simply have the right to recover the same from the insured person,” the judgment said.

Firm buying flats not ‘consumer’
The National Consumer Commission last week dismissed a complaint moved by Singhal Finstock Ltd against Jaypee Infratech Ltd complaining of deficiency in service in allotment of apartments. The crucial question, according to the judgment, was the purpose of buying the flats — whether it is for commercial purpose, to earn profits, or for self-use. If it is for commercial purpose, the former company would not fall in the definition of ‘consumer’. The judgment stated that though the firm and its directors asserted that the flats were for providing residence to the executives, they have not proved that it was not for commercial purpose or as investment. In fact, they declared that they were investors and the memorandum of association stated that they were in the business of real estate and other related commercial activities. Therefore, the commission stated that the complaint was not maintainable under the Consumer Protection Act.






Judges� vacancies make collegium system suspect

Rakesh Bhatnagar | Agency: DNA | Monday, October 8, 2012

A ruling party can suffer debacle at the polls due to anti-incumbency factors but there’s no recourse for the people who have been aggrieved by the grave injustice done to them due to undue delay in dispensation by the institutionally weak judiciary.

The backlog of undecided court cases keeps piling up but there’s has been a laxity in filling up the posts of subordinate court judges, and one might argue that its also due to the collegium system that vacancies in the Supreme Court and high courts are only going up.

In fact the Supreme Court in 1993 deprived the executive of its power to appoint and transfer judges and bestowed this job on a select panel of senior most judges called ‘collegium’.

There’s only one judgment that describes the authority of collegium and that’s come from the Allahabad high court, the oldest high court which is infamous for high backlog and maximum number of vacancies, 76 or more.

“It’s certainly not the discretion to delay in making recommendations,’’ it said and added the process of appointment must be initiated at least six months before a vacancy arises. It further said the court “must have all the judges in place equal to the number of sanctioned strength at all times, failing which it is not fully constituted.’’
“All the constitutional functionaries involved in the process of appointment have to ensure that the vacancies are filled up, as early as possible,’’ it added.

But the situation remains unchanged. However, there’s been a mounting pressure for having a relook at the collegium pattern of top judicial appointments. With judiciary maintaining a stiff posture for protecting the self-designed mechanism, the government has often talked about evolving an alternative method either by way of a Judges Accountability law or National Judicial Commission or All India Judicial Service.

As government stresses on the need for such enactments to infuse accountability and transparency in the most visibly respected institution among all others, recently retired Chief Justice of India S H Kapadia has expressed apprehension regarding the efficacy of the government maneuvers. “We need to conduct a detailed study before we tinker with the Constitution,” Justice Kapadia said and warned thatany disturbance in the balance of power among the legislative, executive and judiciary would damage the Constitution for all times to come.

But a multi-member parliament’s committee headed by Shantaram Naik feels that an appraisal of the vacancy position of Judges in both SC and HCs “is disheartening’’.

It makes also a dent on the judges chosen system saying one major factor affecting this vacancies appear to be the procedure of appointment and the current proactive of the collegium system also raises apprehensions.

The judicial incumbency has been felt by former SC judge and jurist V R Krishna Iyer. “The whole process is almost privatised, personalised and innocent of governmental comments. Persons are chosen, privileged groups get priority, reconsideration is often rejected.’’

He adds:“The collegium has an unscientific methodology and its selection has given rise to much criticism. Therefore, the collegium, as a system, must go.’’

Assuming a law is enacted to perform the onerous job of filling up judicial posts, would it ensure that dispensation isn’t affected due to shortage of manpower?

Perhaps, answer is in the negative given the prevailing scenario in different tribunals, PSUs and expert panels which can be filled up with suitable persons by the government alone.

It’s time that the government realised the importance of manning all the institutions in time otherwise it would also be blamed for justice dispensation paralysis.




Low conviction rate in cases relying on circumstantial evidence: SC judge

TNN | Oct 8, 2012, 04.39AM IST

JAIPUR: There are unprecedented challenges before the judiciary today and the biggest among them is the conviction of accused solely on the basis of circumstantial evidences. Even after having codified laws, criminals go scot-free and the conviction rate is very low. This was stated by Justice Gyan Sudha Mishra, judge, Supreme Court here on Sunday.

Speaking at the valedictory session of a three-day judicial conference on administration of criminal justice, she maintained that judges are put to great moral and mental test in the course of delivering justice. “It is a daunting task to provide justice to the victim and giving the criminal his due right to reform and resettle in the society,” said Justice Mishra.

The conference, jointly organised by Rajasthan High Court, the national judicial academy, Bhopal, and the Rajasthan state judicial academy, Jodhpur, was addressed by former Supreme Court judges C K Thakker and A K Ganguly among others.

Justice Mishra also pointed towards the trend of increasing number of bail applications reaching the apex court. “I feel that there has been some doubts in the minds of the judges that the bail application requires interference. In the olden times, whatever happened in high court was final. But today Supreme Court is flooded with bail matters,” said Justice Mishra.

Taking the point forward, she added that nowadays cases of circumstantial evidence ends up with very low conviction. “By the time the case reaches the apex court, it is bound to happen that the accused will be released. We must come with a visionary justice in such cases,” she said.

Mishra advocated for going into greater details in high profile cases or those having big repercussions on the society. She also said that judges are not blind and well aware of what is going around and happening in society.

Chief Justice Arun Mishra of the high court also pressed for quality justice and called for efficient lawyers to be provided to poor and needy. “We cannot permit our system to become a mockery. We will have to revise our methods. Legal aid should have efficient lawyers. If the situation and case demands, amicus curie should be provided by the courts,” he said. He also asked fellow judges to take the old cases on a priority basis to reduce the pendency.






J&K CIC direct officers for prompt disposal of applications

Last Updated: Sunday, October 07, 2012, 23:21

Jammu: Jammu and Kashmir Chief Information Commissioner (CIC) G R Sofi on Sunday directed officers for prompt disposal of applications of RTI cases in the state.

Sofi, who held a detailed interaction session with Public Information Officers (PIOs) and Assistant Public Information Officers (APIOs) in Poonch district, said “officers should promptly dispose of applications of RTI cases”.

Speaking at the session, Sofi said that each individual of the state have the legal right to obtain certified copies of information regarding official status of any matter from a PIO of concerned department by tendering a written application accompanied by prescribed fee.

He said that the officers are under obligation to provide the information sought under RTI unless debarred by law.

The CIC appreciated the measures taken by the district administration in disseminating awareness regarding various provisions of Right to Information (RTI) Act.

As many as 319 RTI applications were received during current fiscal year till ending September, out of which 280 application were disposed off, whereas rest applications are under process of disposal, the CIC was told.






SEBI to act against non-compliance on share capital reconciliation

IndiaEconomyTanvi Shukla, Bloomberg TV India .Oct 8, 2012, 09:40AM IST

At its board meet, capital markets regulator Securities and Exchange Board of India (SEBI) has approved to amend the law to act against non-compliance on share capital reconciliation.

Earlier last week, Bloomberg TV India had highlighted how the Bombay Stock Exchange (BSE) and National Stock Exchange (NSE) faced over 900 cases of discrepancies on share capital reconciliation.

The SEBI board has decided that debt mutual funds will be allowed to invest in securities issued by housing finance companies (HFCs) and that starting 2014 FIIs will be allowed to re-invest 50% of previous year’s debt holding.

The regulatory body will also prepare draft for uniform guidelines for different types of foreign investors and will resolve issues regarding minimum shareholding norms.

Moreover, now listed entities coming out with follow-on public offers (FPOs) need not meet profitability criteria and SEBI will provide powers to depositories to take action on issues.







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