Wednesday, October 2, 2013
The scope of the above mentioned provision came up for consideration before the Hon'ble Apex Court in several cases. In Maksud Saiyed case(supra)the Hon'ble Supreme Court examined the requirement of the application of min by the Magistrate before exercising jurisdiction under Section 156(3) and held that where a jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 Cr.P.C., the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) Cr.P.C., should be reflected in the order.The same observation is again confirmed by the Apex Court yesterday, while dismissing CRIMINAL APPEAL NOS. 1590-1591 OF 2013 between Anilkumar v/s M.K. Aiyappa. The Apex Court has further observed therein that "In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him….. If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab-initio.
Friday, September 27, 2013
Today while granting WRIT PETITION (CIVIL) NO. 161 OF 2004, moved by People’s Union for Civil Liberties & anothers, the Supreme Court of India has considered a dire need of negative voting in the present scenario of our Country and has confirmed a Right to Reject all the candidates while excercise his voting rights through its landmark Judgment. The Apex Court has concluded that " Democracy being the basic feature of our constitutional set up, there can be no two opinions that free and fair elections would alone guarantee the growth of a healthy democracy in the country. The ‘Fair’ denotes equal opportunity to all people. Universal adult suffrage conferred on the citizens of India by the Constitution has made it possible for these millions of individual voters to go to the polls and thus participate in the governance of our country. For democracy to survive, it is essential that the best available men should be chosen as people’s representatives for proper governance of the country. This can be best achieved through men of high moral and ethical values, who win the elections on a positive vote. Thus in a vibrant democracy, the voter must be given an opportunity to choose none of the above (NOTA) button, which will indeed compel the political parties to nominate a sound candidate. This situation palpably tells us the dire need of negative voting. No doubt, the right to vote is a statutory right but it is equally vital to recollect that this statutory right is the essence of democracy. Without this, democracy will fail to thrive. Therefore, even if the right to vote is statutory, the significance attached with the right is massive.Democracy is all about choice. This choice can be better expressed by giving the voters an opportunity to verbalize themselves unreservedly and by imposing least restrictions on their ability to make such a choice. By providing NOTA button in the EVMs, it will accelerate the effective political participation in the present state of democratic system and the voters in fact will be empowered. We are of the considered view that in bringing out this right to cast negative vote at a time when electioneering is in full swing, it will foster the purity of the electoral process and also fulfill one of its objective, namely, wide participation of people Free and fair election is a basic structure of the Constitution and necessarily includes within its ambit the right of an elector to cast his vote without fear of reprisal. duress or coercion. Protection of elector’s identity and affording secrecy is therefore integral to free and fair elections and an arbitrary distinction between the voter who casts his vote and the voter who does not cast his vote is violative of Article 14. Thus, secrecy is required to be maintained for both categories of persons. Giving right to a voter not to vote for any candidate while protecting his right of secrecy is extremely important in a democracy. Such an option gives the voter the right to express his disapproval with the kind of candidates that are being put up by the political parties. When the political parties will realize that a large number of people are expressing their disapproval with the candidates being put up by them, gradually there will be a systemic change and the political parties will be forced to accept the will of the people and field candidates who are known for their integrity"
Friday, September 20, 2013
Under Hindu law, marriage is an institution, a meeting of two hearts and minds and is something that cannot be taken lightly. In the Vedic period, In the Vedic period, the sacredness of the marriage tie was repeatedly declared; the family ideal was decidedly high and it was often realized. Marriage is highly revered in India and we are a Nation that prides itself on the strong foundation of our marriages, come hell or high water, rain or sunshine. Life is made up of good times and bad, and the bad times can bring with it terrible illnesses and extreme hardships. The partners in a marriage must weather these storms and embrace the sunshine with equanimity. Any person may have bad health, this is not their fault and most times, it is not within their control. The illness had its fair share of problems. Can this be a reason for the appellant to abandon her and seek dissolution of marriage after the child is born out of their union ??? [CIVIL APPEAL NO.8264 OF 2013 - KOLLAM CHANDRA SEKHAR v/s KOLLAM PADMA ]
Saturday, September 14, 2013
The Hon'ble Supreme Court of India in Mukund Lal Bhandari’s case (supra) observed about the objects and the Standard of Proof necesary for the Freedom Fighters' Pension Scheme as follows: “The object in making the said relaxation was not to reward or compensate the sacrifices made in the freedom struggle. The object was to honour and where it was necessary, also to mitigate the sufferings of those who had given their all for the country in the hour of its need. In fact, many of those who do not have sufficient income to maintain themselves refuse to take benefit of it, since they consider it as an affront to the sense of patriotism with which they plunged in the Freedom Struggle. The spirit of the Scheme being both to assist and honour the needy and acknowledge the valuable sacrifices made, it would be contrary to its spirit to convert it into some kind of a programme of compensation. Yet that may be the result if the benefit is directed to be given retrospectively whatever the date the application is made. The scheme should retain its high objective with which it was motivated. It should not further be forgotten that now its benefit is made available irrespective of the income limit. Secondly, and this is equally important to note, since we are by this decision making the benefit of the scheme available irrespective of the date on which the application is made, it would not be advisable to extend the benefit retrospectively. Lastly, the pension under the present scheme is not the only benefit made available to the freedom fighters or their dependents. The preference in employment, allotment of accommodation and in admission to schools and colleges of their kith and kin etc. are also the other benefits which have been made available to them for quite sometimes now The standard of proof required in such cases is not such standard which is required in a criminal case or in a case adjudicated upon rival contentions or evidence of the parties. As the object of the Scheme is to honour and to mitigate the sufferings of those who had given their all for the country, a liberal and not a technical approach is required to be followed while determining the merits of the case of a person seeking pension under the Scheme. It should not be forgotten that the persons intended to be covered by the Scheme had suffered for the country about half-a-century back and had not expected to be rewarded for the imprisonment suffered by them. Once the country has decided to honour such freedom fighters, the bureaucrats entrusted with the job of examining the cases of such freedom fighters are expected to keep in mind the purpose and object of the Scheme. The case of the claimants under this Scheme is required to be determined on the basis of the probabilities and not on the touchstone of the test of “beyond reasonable doubt”. Once on the basis of the evidence it is probabilised that the claimant had suffered imprisonment for the cause of the country and during the freedom struggle, a presumption is required to be drawn in his favour unless the same is rebutted by cogent, reasonable and reliable evidence."
Monday, September 9, 2013
While adjudicating **Pinakin Rawal v/s State of Gujarat CR.APPEAL NO.811/2004]****the Hon'ble Supreme Court has observed in its landmark judgment that : " Alienation of affection by a stranger, if proved, is an intentional tort i.e. interference in the marital relationship, with intent to alienate one spouse from the other. Alienation of affection is known as “Heart Balm” action. Anglo-Saxon common law on alienation of affection has not much roots in this country, the law is still in its nascent stage. Anglo Saxon based action against third parties involving tortuous interference with the marital relationship was mainly compensatory in nature which was earlier available to the husband, but, of late, a wife could also lay such a claim complaining of alienation of affection. The object is to preserve marital harmony by deterring wrongful interference, thereby to save the institution of marriage. Both the spouses have a valuable interest in the married relationship, including its intimacy, companionship, support, duties, affection, welfare of children etc. We notice, in this country, if the marital relationship is strained and if the wife lives separately due to valid reasons, the wife can lay a claim only for maintenance against the husband and if a third party is instrumental for disrupting her marriage, by alienating her spouse’s affection companionship, including marital obligations, seldom, we find the disgusted spouse proceeds against the intruder into her matrimonial home. Possibly, in a given case, she could question the extent, that such injuries can be adequately compensated, by a monetary award. Such an action, of course, may not protect a marriage, but it compensates those who have been harmed.We are, however, of the view that for a successful prosecution of such an action for alienation of affection, the loss of marital relationship, companionship, assistance, loss of consortium, etc. as such may not be sufficient, but there must be clear evidence to show active participation, initiation or encouragement on the part of a third party that he/she must have played a substantial part in inducing or causing one spouse’s loss of other spouse’s affection. Mere acts, association, liking as such do not become tortuous.
Saturday, September 7, 2013
While adjudicating WRIT PETITION (C) NO.548 OF 2012 in the matters of Civil Appeal No.10660 of 2010, under Article 136 of the Constitution of India by special leave, praying for a Court monitored investigation by the Central Bureau of Investigation (CBI) or by a Special Investigating Team into what was described as the 2G Spectrum Scam and also for a direction to investigate the role played by A. Raja, the then Union Minister for Department of Telecommunications (DoT), senior officers of DoT, middlemen, businessmen and others, the Hon'ble Supreme Court of India has recently dismissed this writ petition, with a clear observation that there are no good reason either to frame guidelines to be followed by a constitutional court in relation to monitoring of criminal investigation on 3rd September 2013, in respect of the aforesaid 2G Spectrum Scam. While passing this final order, the Hon'ble Apex Court has also well discussed about the COURT MONITORED INVESTIGATION as follows: "Monitoring of criminal investigation is the function of investigating agency and not that of the Court – either of the superior Court or of the trial Court. But unsolved crimes, unsuccessful prosecution, unpunished offenders and wrongful convictions bring our criminal justice system in disrepute. Crores and crores of tax payers’ money is being spent for investigating crimes in our country since every such incident is a crime against the society. When the persons involved in the crime wield political power and influence, the possibility of putting pressure on the investigating agency, which is no more independent in our country, is much more. Common people will be left with the feeling that they can get away with any crime which tarnish the image not only of the investigating agency but judicial system as well. Once investigation fails, Court will face with a fait accompli. Proper and uninfluenced investigation is necessary to bring about the truth. Truth will be a casualty if investigation is derailed due to external pressure and guilty gets away from the clutches of law. More and more demands are now coming before the Courts for its monitoring of investigation relating to crimes committed by influential persons and persons who have political influence, with the apprehension that they could derail the investigation. Courts in public interest sometime have to take such a course in the larger public interest. That burden this Court has discharged in various cases like Vineet Narayan’s case and Gujarat Communal Riot’s case, etc. This Court has taken the consistent view that once charge-sheet is submitted in the proper Court, the process of Court monitoring investigation comes to an end and it is for that Court to take cognizance of the offence and deal with the matter."
Tuesday, September 3, 2013
Whether Verdict of Supreme Court is supreme or the Exercise of Gujarat Government in passing a Controversial Bill ???
Gujarat Governor Kamla Beniwal has now declined to sign and give her assent and has returned for review the Gujarat Lokayukta Aayog Bill 2013, which has been newly passed by the Gujarat state Assembly in April this year, after the Hon'ble Supreme Court dismissed all litigations, initiated by Gujarat Governments and had asked the state government to start the process of filling up the post. But without proceeding to fill the post of Lokayukta in Gujarat, since last seven years, the Gujarat state Assembly, ruled by BJP totally changed the whole format of the Gujarat Lokayukta Aayog Bill, with a view to curtailing the powers of Governor and Chief Justice of the High Court in the appointment of the corruption watchdog in Gujarat. This has set the stage for a fresh confrontation and add more fire in the whole controversies against the Chief Minister Narendra Modi. The vital question of laws also arises Whether Verdict of Supreme Court is supreme or the controversial exercise of Gujarat Government in passing Newly Draft Lokayukta Bill is bonafide and positive ???
Friday, August 23, 2013
Lawyers play an important part in the administration of justice. The profession itself requires the safeguarding of high moral standards. As an officer of the court the overriding duty of a lawyer is to the court, the standards of his profession and to the public. Since the main job of a lawyer is to assist the court in dispensing justice, the members of the Bar cannot behave with doubtful scruples or strive to thrive on litigation. Lawyers must remember that they are equal partners with judges in the administration of justice. If lawyers do not perform their function properly, it would be destructive of democracy and the rule of law. [ In SUO MOTU CONTEMPT PETITION NO. 312 of 2013 "Rameshwar Prasad Goyal, Advocate Case" ]
The system of administration of criminal justice in India is well defined by the Hon'ble Supreme Court of India, in the matters of Thakur Ram and Others v/s The State of Bihar, while examining the right of a third party to invoke the revisional jurisdiction under the Code of 1898. The Apex Court had observed as under : “The criminal law is not to be used as an instrument of wrecking private vengeance by an aggrieved party against the person who, according to that party, had caused injury to it. Barring a few exceptions, in criminal matters the party who is treated as the aggrieved party is the State which is the custodian of the social interests of the community at large and so it is for the State to take all the steps necessary for bringing the person who has acted against the social interests of the community to book.”
Private funding of the investigative process has been disapproved by the Hon'ble Supreme Court of India in Navinchanda N. Majithia v/s State of Meghalaya and Others, with the following landmark observations: "Financial crunch of any State treasury is no justification for allowing a private party to supply funds to the police for conducting such investigation. Augmentation of the fiscal resources of the State for meeting the expenses needed for such investigations is the lookout of the executive. Failure to do it is no premise for directing a complainant to supply funds to the investigating officer. Such funding by interested private parties would vitiate the investigation contemplated in the Code. A vitiated investigation is the precursor for miscarriage of criminal justice. Hence any attempt, to create a precedent permitting private parties to supply financial assistance to the police for conducting investigation, should be nipped in the bud itself. No such precedent can secure judicial imprimatur."
In the case of Akalu Ahir v/s Ramdeo Ram (supra), The Hon'ble Apex Court, however, by way of illustration, indicated the following categories of cases which would justify the High Court in interfering with a finding of acquittal in revision: (i) Where the trial court has no jurisdiction to try the case, but has still acquitted the accused; (ii) Where the trial court has wrongly shut out evidence which the prosecution wished to produce; (iii) Where the appellate court has wrongly held the evidence which was admitted by the trial court to be inadmissible; (iv) Where the material evidence has been overlooked only (either) by the trial court or by the appellate court; and (v) Where the acquittal is based on the compounding of the offence which is invalid under the law. These categories were, however, merely illustrative and it was clarified that other cases of similar nature can also be properly held to be of exceptional nature where the High Court can justifiably interfere with the order of acquittal The aforesaid illustrative observation is made by the Hon'ble Supreme Court recently on 19th August 2013 while allowing CRIMINAL APPEAL NO.462 OF 2008, lodged by accused Venkatesan.
Wednesday, August 14, 2013
"Independence of judiciary is the basic feature of the Constitution. It demands that a Judge who presides over the trial, the Public Prosecutor who presents the case on behalf of the State and the lawyer vis-a-vis amicus curiae who represents the accused must work together in harmony in the public interest of justice uninfluenced by the personality of the accused or those managing the affairs of the State. They must ensure that their working does not lead to creation of conflict between justice and jurisprudence. A person whether he is a judicial officer or a Public Prosecutor or a lawyer defending the accused should always uphold the dignity of their high office with a full sense of responsibility and see that its value in no circumstance gets devalued. The public interest demands that the trial should be conducted in a fair manner and the administration of justice would be fair and independent" The aforesaid landmark observations with directions are made on dt.13 August 2013, by the Hon'ble Supreme Court of India, while dismissing CRIMINAL APPEAL NO.1166 OF 2013, instituted by Mr. Lalu Prasad Yadav recently.
Saturday, August 3, 2013
A man himself is the best eye witness of his own guilt and character, if he is placed before his own instinct like a mirror. To prove his guilt or character , simply drag him out from his own instinct to expose himself voluntarily or tactfully through his cross examination.
Saturday, July 20, 2013
KARTIKEY SHROFF Law Office: SC: "Against unreasonable Policy of the Government, The remedy is to disapprove the same in Election and with the Court"
KARTIKEY SHROFF Law Office: SC: "Against unreasonable Policy of the Government, The remedy is to disapprove the same in Election and with the Court"
SC: "Against unreasonable Policy of the Government, The remedy is to disapprove the same in Election and with the Court"
While adjudicating a Civil Appeal No.2957 / 2013 against the impugned Order of the Gujarat High Court in the matters of the distribution of water of Narmada for Kachchha District, the Hon'ble Justice of Supreme Court of India has made some landmark observation "If the policy of the Government, in the opinion of the sovereign, is unreasonable, the remedy is to disapprove the same during election. In respect of policy, the Court has very limited jurisdiction.Even if we assume that this Court has the expertise, it will not encroach upon the field earmarked for the executive. A dispute, in our opinion, shall not be appropriate for adjudication by this Court when it involves multiple variable and interlocking factors, decision on each of which has bearing on others. "
Sunday, July 7, 2013
In the case of Mohini Jain V State of Karnataka and others - (1992) 3 SCC 666, The Hon'ble Supreme Court of India held that right to education is a fundamental right enshrined under Article 21 of the Constitution. The right to education springs from right to life. The right to life under Article 21 and the dignity of the individual cannot fully be appreciated without the enjoyment of right to education. The Apex Court observed that :"Right to life" is the compendious expression for all those rights which the Courts must enforce because they are basic to the dignified enjoyment of life. It extends to the full range of conduct which the individual is free to pursue. The right to education flows directly from right to life. The right to life under Article 21 and the dignity of an individual cannot be assured unless it is accompanied by the right to education. The State Government is under an obligation to make endeavour to provide educational facilities at all levels to its citizens.”
Saturday, July 6, 2013
In order to teach our Lawyers, Followers, Colleagues for successful presentation in life, one of the best lessons are always about Art of Powerful Communication. In order to master this Art of Powerful Communication, I have defined some ABCD Rules through my life time experience, which I certainly love to share with my colleagues as well as all others professionals. Before Communicating anything, to anybody, in any way or manner, through any media, just wait for a moment and think of the effect that may be created and then shoot straight after following my under-mentioned ABCD Rules of Powerful Communication, in your all communication. A : Authentic and Accurate Appreciation B : Begin Well always C : Choose your words carefully D : Dress Suitably with appropriate quotations and illustrations. E : Eye Contact to evaluate your audience F : Focus on Main Points G : Get all united to task H : Harmony in communication I : Involve others in your Success J : Justify always what you communicate K : Knowledge of Topics you tell or communicate L : Let it be Logical M : Meaningful Message N : Natural Way of Communication O : Offensive Objects & Subjects to be avoided always P : Proper Pace and Pitch in the communication Q : Quality in Communication R : Respect your Audience because they respect you too S : Share the views peacefully T : Time Management U : Utter appropriate V : Verify before Communicate W : Worthless Language always to be avoided X : XXX always to be omitted Y : "You can win" keep this spirit and confidence always Z : Zeal of the audience to be appreciated with "Thanks" My aforesaid ABCD of Powerful Communication is the master key to achieve the effective "Art of Communication" only through constant learning, practice and teaching ....
How can we justify Contraband Offers of Freebies like Color TVs, Houses, Jobs, Laptops, Temple etc. for Victory in election ???
Yesterday in the matters of CIVIL APPEAL NO. 5130 OF 2013, instituted by S. Subramaniam Balaji, the appellant against the Dravida Munnetra Kazhagam (DMK)led Government of Tamil Nadu and others, the Division Bench of the Hon'ble Supreme Court of India has ruled with cautions and directed that " Although, the law is obvious that the promises in the election manifesto cannot be construed as ‘corrupt practice’ under Section 123 of RP Act, the reality cannot be ruled out that distribution of freebies of any kind,undoubtedly, influences all people. It shakes the root of free and fair elections to a large degree.As this Court has limited power to issue directions to the legislature to legislate on a particular issue. However, the Election Commission, in order to ensure level playing field between the contesting parties and candidates in elections and also in order to see that the purity of the election process does not get vitiated, as in past been issuing instructions under the Model Code of Conduct.Therefore, considering that there is no enactment that directly governs the contents of the election manifesto, we hereby direct the Election Commission to frame guidelines for the same in consultation with all the recognized political parties as when it had acted while framing guidelines for general conduct of the candidates, meetings, processions, polling day, party in power etc.In the similar way, a separate head for guidelines for election manifesto released by a political party can also be included in the Model Code of Conduct for the Guidance of Political Parties & Candidates. We are mindful of the fact that generally political parties release their election manifesto before the announcement of election date, in that scenario, strictly speaking, the Election Commission will not have the authority to regulate any act which is done before the announcement of the date. Nevertheless,an exception can be made in this regard as the purpose of election manifesto is directly associated with the election process. We hereby direct the Election Commission to take up this task as early as possible owing to its utmost importance. We also record the need for a separate legislation to be passed by the legislature in this regard for governing the political parties in our democratic society" The aforesaid landmark observations are made by the Apex Court, while adjudicating the aforesaid civil appeal in respect of the impugned election manifesto with offers of freebies of color TVs to the people by victorious Dravida Munnetra Kazhagam (DMK)parties which has now formed on success Government in Tamil Nadu. Obviously as observed above regarding to the trends of tactful distribution of freebies by our political parties, GPCC had also organized such a debatable distribution of forms for houses ‘Ghar nu Ghar’ scheme before assembly election in Gujarat and in reply to this BJP came with its election manifesto promising for 50 lakh homes and 30 lakh jobs in Dec 2012 last year. Similarly in UP promises for free laptops have been offered to win the voters, and now before 2014 parliament election comes, the BJP election campaign allies Mr. Amit Shah & others, recently today visited Ayodhya and vowed to build Ram Temple on the disputed site and to give congress free rule in the country, in disregards to the fact that the issue of Ram Temple on the disputed site is though pending and still subjudice for final adjudication before the Apex Court...In fine the offering of freebies are increasing like anything disregarding present rules and laws for free and fair elections. In such the circumstances, and looking to the aforesaid latest landmark observations by the Hon'ble Supreme Court, it is now a crucial question "How we, the law abiding voters, can justify all such Contraband Offers of Freebies like Color TVs, Houses, Jobs, Laptops, Temple etc. by political persons for their Victory in elections ???"
Tuesday, July 2, 2013
Recently yesterday, the Hon'ble Apex Court of India has reconfirmed the Rules and Laws about the Admissions of a party while adjudicating CIVIL APPEAL NO.1241 OF 2005, between Vathsala Manickavasagam & Ors -versus-N. Ganesan & Anr. and has thoroughly discussed the provisions of Section:17 of the Evidence Act and ruled as follows that- Section 17 of the Evidence Act reads as under: “S.17. Admission defined:- An admission is a statement, oral or documentary or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned.” As far as the principle to be applied in Section 17 is concerned, the Section as it reads is an admission, which constitutes a substantial piece of evidence, which can be relied upon for proving the veracity of the facts, incorporated therein. When once, the admission as noted in a statement either oral or documentary is found, then the whole onus would shift to the party who made such an admission and it will become an imperative duty on such party to explain it. In the absence of any satisfactory explanation, it will have to be presumed to be true. It is needless to state that an admission in order to be complete and to have the value and effect referred to therein, should be clear, certain and definite, without any ambiguity, vagueness or confusion. In this context, it will be worthwhile to refer to a decision of this Court in Union of India Vs. Moksh Builders and Financiers Ltd. and others - AIR 1977 SC 409 wherein it is held as under: “…It has been held by this Court in Bharat Singh v. Bhagirath  1 SCR 606 = AIR 1966 SC 405 that an admission is substantive evidence of the fact admitted, and that admissions duly proved are "admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions." In taking this view this Court has noticed the decision in Ajodhya Prasad Bhargava v. Bhawani Shanker - AIR 1957 All 1 (FB) also.”
In Tulshiram Sahadu Suryawanshi & Anr. v. State of Maharashtra while dealing with Section 106 of the Evidence Act, this Court observed as under:“A fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as to the most probable position. The above position is strengthened in view of Section 114 of the Evidence Act, 1872. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process, the courts shall have regard to the common course of natural events, human conduct, etc. in addition to the facts of the case. In these circumstances, the principles embodied in Section 106 of the Evidence Act can also be utilized. Section 106 however is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but it would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, has offered an explanation which might drive the court to draw a different inference.”
SC:"The State is the trustee of all natural resources which are by nature meant for public use and enjoyment."
Recently while adjudicating CIVIL APPEAL NO.4941 OF 2013, instituted by Association for Environment Protection, the appellant against State of Kerala and others, the Division Bench of the Hon'ble Supreme Court of India, has ruled with some landmark observations, in respect of the preservation of natural resources and environment as such that" Since time immemorial, people across the world have always made efforts to preserve and protect the natural resources like air, water, plants, flora and fauna. Ancient scriptures of different countries are full of stories of man’s zeal to protect the environment and ecology. Our sages and saints always preached and also taught the people to worship earth, sky, rivers, sea, plants, trees and every form of life. Majority of people still consider it as their sacred duty to protect the plants, trees, rivers, wells, etc., because it is believed that they belong to all living.The ancient Roman Empire developed a legal theory known as the “Doctrine of the Public Trust”. It was founded on the premise that certain common properties such as air, sea, water and forests are of immense importance to the people in general and they must be held by the Government as a trustee for the free and unimpeded use by the general public and it would be wholly unjustified to make them a subject of private ownership. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial exploitation to satisfy the greed of few creatures.Although, the Constitution of India, which was enforced on 26.1.1950 did not contain any express provision for protection of environment and ecology, the people continued to treat it as their social duty to respect the nature, natural resources and protect environment and ecology. After 26 years, Article 48-A was inserted in Part IV of the Constitution and the State was burdened with the responsibility of making an endeavour to protect and improve the environment and to safeguard the forest and wildlife of the country. By the same amendment, Fundamental Duties of the citizens were enumerated in the form of Article 51-A(Part-IV A). These include the duty to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures [Article 51-A(g)].The Courts in different jurisdictions have, time and again, invoked the public trust doctrine for giving judicial protection to environment, ecology and natural resources. This Court also recognized the importance of the public trust doctrine and applied the same in several cases for protecting natural resources which have been treated as public properties and are held by the Government as trustee of the people. The judgment in M.C. Mehta v. Kamal Nath (1997) 1 SCC 388 is an important milestone in the development of new jurisprudence by the Courts in this country for protection of environment. In that judgment, the Court considered the question whether a private company running tourists resort in KulluManali valley could block the flow of Beas river and create a new channel to divert the river to at least one kilometer down stream. After adverting to the theoretical and philosophical basis of the public trust doctrine and judgments,this Court observed “Our legal system — based on English common law — includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership"
Sunday, June 23, 2013
Gujarat High Court Observed: "Duty to do justice by deciding whether parties are entitled to Justice"
Recently while disposing with a Special Civil Application No.8465/13 in respect of a public Charitable Trust Hospital of Bhavnager,the Hon'ble Gujarat High Court has recalled the duty of the appellate court and strongly observed that " the Appellate Court is expected to discuss the merits of the matter, more particularly, when the entire documentary evidence has been forthcoming on the record and all the advocates for both the parties have been heard at length on facts as well as law." Again It is further ruled by the Hon'ble High Court that" Recourse to justice is recourse to a civilized means. As soon as the court is approached with a dispute or question, its very first duty is to do justice for justice by deciding whether the party or parties are entitled to justice in the context of whole relevant four corners of law. Thus, justice initially needs to be done and accordingly the court may continue or discontinue the proceedings. A situation may be, in great need of justice, but that itself is not enough to activate the judicial process, keeping the merits of the case aside". Gujarat High Court further added that "In the legal system, the courts are created and entrusted with functions and responsibilities to administer justice and for that, are vested with necessary power and authority. The Court is a Court having its own "judicial discipline� and striking the "judicial balance�, it must perform its essential function."
Sunday, June 9, 2013
Today, I have read a wonderful Blog of Col. Gurnam Singh on www.Speakingtree.in.. it was a great thought through his true facts narrating Blog... Mr. Gurnam Singh Said in his Blog that "Secularism actually means an attitude unconnected with any religion. But if asked its meaning to any Indian, he/she would invariably say that secularism means ‘religious tolerance’. I ask simple question why is it that this term which is enshrined in our constitution should have a popular misconception about its meaning. It’s the duty of every Indian to promote secularism to strengthen our nation and to reach new dimensions in terms of prosperity and pleasure. But in the Indian Army it is absolute secularism with equal respect to all religions, in spite of the fact that infantry, the major component of the Army, comprises of regiments based on caste, creed, culture or race like the Sikh, Maratha, Dogra, Jat, Gorkha, Mahar, Rajput and so on. This may be because the Indian army and most of its procedures and practices have been an inheritance of the British Indian army" I strictly agreed with this true facts, because there are still many more such discrimination existing existing in our society, while getting admission in educational institutes, while getting jobs in public institutes or government sectors, while fetching government benefits from nodal agencies so as it is in our Indian infantry regiments based on caste, creed, culture or race like the Sikh, Maratha, Dogra, Jat, Gorkha, Mahar, Rajput as described by Col. Gurnam Singh... and this is all due to the constitutionally legalized discrimination and reservation, which our politicians of all parties awfully fear to eradicate the same from every levels, even though they and we have accepted Secularism everywhere from our preamble to every political personalities.. and it is ethically accepted without any doubts that It’s a duty of every Indian to promote secularism to strengthen our nation.. It is now a time that one has to bell the cat and eradicate such the fractional discrimination from everywhere and to reach new dimensions in terms of peace, prosperity and pleasure
Gujarat High Court :"Who will police the police ?" a question posed by our Apex Court still remains unanswered
Recently Home Ministry told all the states and Union Territories to clearly instruct all police stations that failure to register FIR on receipt of information about any cognizable offence would invite prosecution of the duty police officer under the provisions of Inian Penal Code Section 166-A for the offence by a public servant disobeying law and that would invite imprisonment up to one year.. This is not a NEW enactment of Laws, but a belated positive and strict implementation of the old provisions of IPC, after finding our police persons dithering in registering complaints on receipt of information about any cognizable offence, under various pretexts. Recently the Hon'ble Gujarat High Court has also seriously remarked over an unanswered question posed before our Hon'ble Apex Court during a significant adjudication that"Who will police the Police ??" By the aforesaid recent direction of Union Home Ministry to all our States and Union Territories, it is now publicly aware to the common people about their rights to get registered their complaints, but still there are several unanswered questions still posed in regular day to day practice in enforcing their rights...
Saturday, June 8, 2013
While adjudicating WRIT PETITION (CRIMINAL) NO.129 OF 2012 in respect of stage-managed encounters or‘extra-judicial executions of a large number of India people by the Manipur Police and other Security Forces, while they were in custody, the Hon'ble Supreme Court of India has recently remarked with an observation that, "the life of a policeman or a member of the security forces is no less precious and valuable than any other person. The lives lost in the fight against terrorism and insurgency are indeed the most grievous loss. But to the State it is not open to cite the numbers of policemen and security forces killed to justify custodial death, fake encounter or what this Court had called “Administrative liquidation”. It is simply not permitted by the Constitution. And in a situation where the Court finds a person’s rights, specially the right to life under assault by the State or the agencies of the State, it must step in and stand with the individual and prohibit the State or its agencies from violating the rights guaranteed under the Constitution. That is the role of this Court and it would perform it under all circumstances." It is also worth to be noted at this juncture that the Hon'ble Apex Court has also rejected the plea for consolidation of hearing of this case along with other two cases including an appeal against the judgment of the Bombay High Court and a writ petition, filed by the State of Gujarat on the subject of fake encounters, with a harsh remarks that " We fail to see any relevance of the two cases referred to in the counter affidavit and, in our view, the plea that these two writ petitions should only be heard along with those two cases is meant to detract from consideration the grave issues raised in the writ petition'
Wednesday, May 29, 2013
While finally adjudicating Criminal Appeal No.2345/2009 on 28th May 2013, the Hon'ble Supreme Court of India has seriously observed some strict remarks in its final judgment, after keeping in view the rampant corruption prevailing in our society as such that " It should be borne in mind that historically corruption is a disquiet disease for healthy governance. It has the potentiality to stifle the progress of a civilized society. It ushers in an atmosphere of distrust. Corruption fundamentally is perversion and infectious and an individual perversity can become a social evil.
Wednesday, May 22, 2013
In order to achieve and Art of Effective Public Speaking, one has to look at The Method of Self-Help Learning rather than going to the teachers of coaching class, because Guru or a Teacher is required to guide and show the direction and show the short coming drawbacks in our speacking. But Art of Effective Public Speaking can be only be achieved and sharpened by self-help and that is only by learning to read yourself and others like a book at first and to see your own and others "WORTHS" Hear each Letters in the Word "WORTHS" means and stands for - W- weakness, O-Opportunity, R-Resources, T-Time, H-Helpfulness and S-Subject If you learn yourself to see and cure your own Weakness, and to bag and capture right Opportunities to speak in public, after mastering all Resources in time, in respect of the Subject upon which you are going to speak timely with a view to be Helpful to your audience ... it would be certainly proved an Effective Public Speaking more or less as per your self-help learning....
Thursday, May 16, 2013
SC:"Order obtained by practising fraud & suppressing material fact before a court of law to gain advantage, cannot be allowed to stand"
The Hon'ble Supreme Court of India today allowed CRIMINAL APPEAL NO. 785 OF 2013 of the appellant Mr. Moti Lal Songara, setting aside the order passed by Rajasthan High Court in Criminal Revision No.327 of 2011 and the order passed by the learned Additional District and Sessions Judge, No.1, Jodhpur, in Criminal Revision No. 7 of 2009, with a certain landmark observations against certain impugned orders obtained by the respondent accused by practicing fraud & suppressing material fact before a court of laws as such that" The High Court, as we have seen, applied the principle “when infrastructure collapses,the superstructure is bound to collapse. However, the order has been obtained by practicing fraud and suppressing material fact before a court of law to gain advantage, the said order cannot be allowed to stand.” The Hon'ble Apex Court has also taken a serious notes of the conducts and attitude with a calculative mindset of such the respondent litigants, who are playing frauds and suppressing the facts with the courts of laws and has emphatetically passed admonishing strictures that“court is not a laboratory where children come to play. Nobody can play in aid of technicalities to his own advantage and the law, in its essential substance, and justice, with its divine attributes, can unceremoniously be buried in the grave."
Thursday, May 9, 2013
Landmark Guidelines set up by The Apex Court in respect of Production of Fresh Evidence in Defense after completeion of criminal trial
"Undoubtedly, an application filed under Section 311 Cr.P.C. must be allowed if fresh evidence is being produced to facilitate a just decision.Adducing evidence in support of the defense is a valuable right. Denial of such right would amount to the denial of a fair trial.the Trial Court reached the conclusion that the production of such evidence by the defense was not essential to facilitate a just decision of the case. Such an assumption is wholly misconceived, and is not tenable in law as the accused has every right to adduce evidence in rebuttal of the evidence brought on record by the prosecution. The court must examine whether such additional evidence is necessary to facilitate a just and proper decision of the case."The Hon'ble Supreme Court of India recently set up landmark guidelines in respect of production of fresh evidence in defense after completion of trial, while adjudicating CRIMINAL APPEAL NO.709 of 2013 moved by Natasha Singh and others against CBI. The Hon'ble Apex Court also observed further therein that"The scope and object of the provision is to enable the Court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 Cr.P.C. must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defense, or to the disadvantage of the accused, or to cause serious prejudice to the defense of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties."
Tuesday, May 7, 2013
"Disruption of an hour's work of parliament costs us Rs25 lakh". Why parliamentarians shall not be liable ???
As per an estimated report, the loss of four hours work in the Lok Sabha due to the bedlam over the opposition's boycott in Parliament's current session is estimated to have caused a Rs 1 crore loss to the nation. The disruption came despite an appeal for the session's smooth running to enable important legislative business, like Food Security Bill and others. All political parties should realize that they have important legislation to discuss in this session and that the session runs smoothly. But the Lok Sabha was adjourned since many days,due to the uproars of BJP's and other opposite parties' parliamentarian. Officials of PRS Legislative Research, a policy study group, noted that the Lok Sabha, which normally meets for five hours a day, was in session for just about half-an-hour as it had to be adjourned due to the pandemonium..A rough estimate, based on the budgetary allocation for parliament's functioning, puts the cost of an hour's work of parliament at Rs.25 lakh. Considering this, the exchequer lost about Rs 1 crore. But obviously due to the deliberate defaults in the Parliament, the Nation has incurred not only a great deal of monitory loss of the public money but also an awful delay in the enactment of some important intended legislation, for which these parliamentarian are duty bound to discuss, debate and resolve to in the large interest of our Nation.It ought to be now the voice of the people of our Nation, at this crucial juncture if all these disrupting parliamentarian should be made collectively responsible for such a huge loss to the Nation.
Monday, May 6, 2013
How can a publicity of state projects promote any minister or office bearer by displaying his photograph or video ??
It is an usual trend seen in our print and visual media that publicity about any state or central project use to promote any concerned leader or office bearer by displaying his or her photographs or video clips at the cost of our public money... recently such a controversy has been disputed in respect of certain publicity materials of Delhi State Project. Similarly several such publicity have been debated in respect of other state projects of Gujarat, Maharastra, Madhya Pradesh, Rajasthan and even states in India.. The crucial question is that how a leader or office bearer can be promoted by displaying his or her photographs or video clips through state project publicity matters at the cost of public money ?? Can all such state project publicity not been published simply with their respective State Logo without displaying their leaders or ministers or office bearers ? Whether any provisions of law have given them to utilize such public money for self promotion of such the leaders ?? Would it not be misuse of power or misapplication of public fund ??
Wednesday, May 1, 2013
The Supreme Court of India has recently observed in the matters of CIVIL APPEAL No. 4127 OF 2013 that " The findings of the(Rent Court) Controller regarding the claim of the appellants for eviction of the respondents on the ground that the appellant bonafide requires the building for rebuilding or reconstruction as affirmed by the appellate authority and the High Court have become final could not be reopened on any ground whatsoever and the respondents cannot now contend that the appellant cannot any longer construct or reconstruct the building on account of drastic changes in the building regulations within the city limit"
Monday, April 22, 2013
SC: "Letter of Intent is not an agreement to sell, hence the same cannot be specifically enforced in laws"
Pronouncing a common judgment in the matters of CIVIL APPEAL NO. 4509 OF 2007 along with other two similar nature civil appeals for the relief of specific performance of a contract in respect of selling flats in the city of Mumbai, the Division Bench of the Hon'ble Supreme Court of India, recently dismissed all the three appeals with an important caution against the prevalent treads of properties transactions by way of executing Letters of Intent for sale and purchase of real estates like flats and bungalows, more particularly in metropolitan areas, as such that " The letter of intent cannot be said to be an agreement to sell for the simple reason that according to the contents of the letter of intent, only upon payment of the entire purchase price, the Developer and the plaintiffs (proposed purchasers) were to enter into an agreement with regard to sale of the flats. This fact clearly denotes that no agreement to sell had been entered into between the plaintiffs and the Developer and in absence of such agreements, in our opinion, there cannot be any right in favor of the plaintiffs with regard to specific performance of any contract. Thus, in our opinion, the High Court did not commit any error while coming to the conclusion that there was no binding contract or agreement in existence between the plaintiffs and the Developer and therefore, the trial court could not have decreed the suit for specific performance. Looking to the rising price and inflationary trend in the country, a direction to the Developer to return the amount of the purchase price received from the plaintiffs was only modified in fine from 9% p.a. to 12% p.a by the Hon'ble Apex Court in favor of the said plaintiffs.
Thursday, April 11, 2013
For vivid understanding, let us consider a situation in which Mr. ‘A’ having killed ‘B’ with the aid of ‘C’, informs the police that unknown persons killed ‘B’. During investigation, it revealed that ‘A’ was the real culprit and ‘D’ abetted ‘A’ to commit the murder. As a result, the police officer files the charge sheet under Section 173(2) of the Code with the Magistrate. Although, in due course, it was discovered through further investigation that the person who abetted Mr. ‘A’ was ‘C’ and not ‘D’ as mentioned in the charge sheet filed under Section 173 of the Code. In such a scenario, uncovering of the later fact that ‘C’ is the real abettor will not demand a second FIR rather a supplementary chargesheet under section 173(8) of the Code will serve the purpose. Likewise, in the case on hand, initially the CBI took a stand that the third person accompanying Sohrabbuddin and Kausarbi was Kalimuddin. However, with the aid of further investigation, it unveiled that the third person was Tulsiram Prajapati. Therefore, only as a result of further investigation, the CBI has gathered the information that the third person was Tulsiram Prajapati. Thus a second FIR in the given facts and circumstances is unwarranted; instead filing of a supplementary charge sheet in this regard will suffice the issue.
Monday, April 8, 2013
Student asked :”What is a Good Governance ?” Guru replied: “If you do not desire any Act, pass its draft bill with such the amendments that it may never be approved and enacted as laws “ Student further asked: ” How can such a good governance be known to others ?” Guru replied: “Quite Easy..Order all your concerned officers not to register complaints about any thefts which may not be detected..and also order not to give information that tend to expose the short comings of our governance.. so that all should understand well nothing is so easily available here, unless the governing body is pleased forever. And also tell everything repeatedly and loudly to everyone with all good confidence about such the governance that a cow may be seen as a lamb….” Student further asked: “What is a developed state of good governance ?” Sir replied with smile: ” Quite simple.. A good governance that consists of all the aforesaid good qualities, is the sign of the development in the current age.” Anonymous Followers clapped their hands and shouted ” Good… Good …and The Best for future government …..”
Saturday, April 6, 2013
Nowadays, lots of the cases are found in our country where the innocent ignorant people are defrauded by misleading advertisement, unfair trade practice and medical negligence, practiced by unqualified and unregistered medical practitioner. Recently the Hon'ble Justice Mr. Sudhansu Jyoti Mukhopadhaya of the Supreme Court of India has confirmed the judgment of National Consumer Disputes Redressal Commission, New Delhi in a recent judgment in the matters of Civil Appeal No. 8660 of 2009, against such an unqualified and unregistered medical practitioner respondent, namely, Mr. R.K. Gupta of Rushikesh, who impressed and mislead the appellant Mr. Bhanwar Kanwar by his misleading advertisement, published in" Jansatta" in the year 1993, claiming total cure of fits with Ayurvedic Medicines, and had given small white tablets of selgin to the appellant's five year aged son Prashat, even though the same allopathic medicine Selgin was never meant for children and the respondent played with the life of the innocant child, even though he was not qualified to prescibe any such allopathic medicine. So the Hon'ble Apex Court ultimately held guilty the respondent Mr. R.K.Gupta for unfair and deceptive trade practice and ordered to enhance and give the total compensation to the appelant victim appellant for the mental and physical injuries suffered by them to the tune of Rs. 5,00,000/- five lacs, with an illustrative observation also against the trend of National Commission for deducting 50% compensation to deposit in legal aid account as such that " We find no reason given by the National Commission for deducting 50% of the compensation amount to be deposited with the consumer legal aid account"
In the matters of Bhakti Vedanta Book Trust and others vide CIVIL APPEAL NO.2906 OF 2013, the Hon'ble Justice Mr. G. S. Singhvi, J. of the Apex Court has emphatacally ruled yesterday that "if any private land is shown as reserved in the Development plan, the same can be acquired within 10 years either by agreement or by following the procedure prescribed under the 1894 Act and if proceedings for the acquisition of the land are not commenced within that period and a further period of six months from the date of service of notice under Section 127 of the 1966 Act, reservation will be deemed to have lapsed and the land will be available for development by the owner
Friday, April 5, 2013
Last week at Laxmi Vilas Palace in Baroda, over 160 members from 81 royal families from erstwhile states attended Samasta Gujarat Rajput Samaj (SGRS) Meeting for the first time after independence, in presence of RSS chief Mr. Mohan Bhagwat, and Gujarat RSS head Dr Jayanti Bhadeshiya and after discussion on several points in closed door meeting, the members of royal families had resolved to organize a similar meet on September 29 of this year. But it would be great enough if royal families may take this matter on their agenda with a view to resolving with their Royal Spirit, just to fight against the present MPs & MLAs of our country who have snatched away their privy purses and now they have been enjoying with lifetime handsome salaries and other benefits with attractive perquisites forever, in the name of services to the nation by being Members of Parliament and/or Members of Legislative Assemblies of our country... Is not this a mockery of the Royal Families who had given up their royalties for the welfare of their people and the integration of our nation? Whereas present leaders have replaced these royal families, in such a bad manner that the whole nation is dragged towards poverty day by day, without curtailing any interest of these new royal MPs & MLAs..
Wednesday, April 3, 2013
Auction of Laila in Meena Bazar is banned nowadays in all country but auction of players in IPL are appraised even though it is violative human rights. Recently, a NGO of Mumbai has filed a writ petition before Bombay High Court in this regards. According to the petition, auctioning of human beings was arbitrary and violative of the International Law of Human Rights under the UN Charter. The petition sought direction to BCCI to refrain from auction of the players.
Tuesday, April 2, 2013
SC: "Duty of the courts to encourage genuine settlements of matrimonial disputes, even if the offences are non-compoundable."
While exercising CRIMINAL APPELLATE JURISDICTION in the matters of CRIMINAL APPEAL No. 447 OF 2013, between Jitendra Raghuvanshi & Ors. v/s Babita Raghuvanshi & Anr the Hon'ble Justice Mr. P.Sathasivam,J. of THE SUPREME COURT OF INDIA has recently brought about a landmark judicial precedent with a detailed observation that-" In our view, it is the duty of the courts to encourage genuine settlements of matrimonial disputes, particularly,when the same are on considerable increase. Even if the offences are non-compoundable, if they relate to matrimonial disputes and the court is satisfied that the parties have settled the same amicably and without any pressure, we hold that for the purpose of securing ends of justice, Section 320 of the Code would not be a bar to the exercise of power of quashing of FIR, complaint or the subsequent criminal proceedings." The Apex Court has further observed that: "There has been an outburst of matrimonial disputes in recent times. The institution of marriage occupies an important place and it has an important role to play in the society. Therefore, every effort should be made in the interest of the individuals in order to enable them to settle down in life and live peacefully. If the parties ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law,in order to do complete justice in the matrimonial matters, the courts should be less hesitant in exercising its extraordinary jurisdiction. It is trite to state that the power under Section 482 should be exercised sparingly and with circumspection only when the court is convinced, on the basis of material on record, that allowing the proceedings to continue would be an abuse of the process of the court or that the ends of justice require that the proceedings ought to be quashed. We also make it clear that exercise of such power would depend upon the facts and circumstances of each case and it has to be exercised in appropriate cases in order to do real and substantial justice for the administration of which alone the courts exist. It is the duty of the courts to encourage genuine settlements of matrimonial disputes and Section 482 of the Code enables the High Court and Article 142 of the Constitution enables this Court to pass such orders.
Wednesday, March 27, 2013
Monday, March 25, 2013
When the Supreme Court of India has confirmed who shall be Lokayukta of Gujarat, and all legal battles of Gujarat Government are completely exhausted and duly ended by the Apex Court in the eyes of Laws, then, how Modi's Government can reform the whole Lokayukta Act, to suit their ends and save their skin ?? And as the newly reformed Gujarat LokayuktaAayog Bill 2013, proposed by Mr. Narendra Modi's Gujarat government does take away with the right of the Chief Justice of the Gujarat high court and the governor to suggest and appoint the Lokayukta and retain the controversial provision of the Aayog submitting its report to the chief minister and the council of ministers with the latter deciding upon its acceptance, it is absolutely a non-judicial executive action, where final authority shall be only a chief minister, who will be a judge over all complaints against himself and his ministry... !!!! It is also surprising that nobody shall be allowed to go before public in respect of any verdicts or proceedings under the proposed Act In a democratic country, no such law should have been enacted where an accused may be empowered to be a judge in respect of a complaint against him..and where the right of expression and to challenge injustice is proposed to be curbed.. In fact, It will never meet any ends of justice at all...but this seems to be a final effort of frustrated Gujarat Government to enact a law against the fundamental rights and the basis principles of democracy...Can a majority of legislators pass any such proposed Bill against the Verdict of the Supreme Court of India ??
Sunday, March 24, 2013
For preparing wrong blood report due to which the death of a three-year-old kid, namely, Jaynil Rawal, died during treatment, The Consumer Dispute Redressal Forum, Surendranagar has reportedly prohibited an unqualified laboratory technician, Mr. Rupesh Shah of Rushabh Pathology Laboratory, from issuing blood investigation reports with his signature and has further ordered to pay Rs 5 lakh towards compensation, as per the recent guidelines set up by the Hon'ble Gujarat High Court that no laboratory technician without having an qualifying degree in pathology can run such a lab in Gujarat.It is said that the medical test report of the aforesaid Rushabh Laboratory had reported upon investigation that Jaynil was suffering from falciparum malaria, for which first treatment was given, but the patient's condition was further deteriorated. Hence he was admitted to CU Shah Medical Hospital where it was found he had no falciparum malaria at all, but his haemoglobin had reduced from 10.02 to just 3.03 count, causing his death, upon further medical investigative report.Therefore after hearing both parties to the proceeding, the consumer court held Mr. Rupesh Shah of Rushabh Pathology Laboratory, awfully guilty of giving wrong blood investigation report, with a significant observation, while deciding compensation as reported in a daily newspaper today, that "Human life cannot be valued in money, but still certain parameters are taken into consideration to decide the amount of compensation in such cases. The forum believes that the full compensation amount demanded should be granted in this case." The consumer forum has also exercised its all powers by restraining such the unqualified technician people from providing harmful services under section 14 (1)(HA) of the Consumer Protection Act too, setting up a pretty good illustrative redressal in the eyes of laws and justice.
Tuesday, March 19, 2013
SC exonerated ex-Chief Judicial Magistrate with a Direction to State of Gujarat to pay a cost of Rs. 5 Lacs in 3 months
Recently the Hon'ble Supreme Court of India has set aside the order of punishment imposed by the Gujarat High Court in compulsorily retiring the ex-Chief Judicial Magistrate of Ahmedabad (Rural) Ms. Nirmala J. Jhala, the appellant and has exonerated her honourably of all the charges of alleged corruption, has directed State of Gujarat to pay the costs, which is quantified to the tune of Rs.5 lacs to the appellant within a period of 3 months, while adjudicating a well discussed Civil Appeal No. 2668 of 2005, with several strictures against state of Gujarat. The Hon'ble Apex Court has also re-invited the attention to the Duty of Higher Judiciary to protect subordinate judicial officers and cautiously observed therein that "The subordinate judiciary works in the supervision of the High Court and it faces problems at the hands of unscrupulous litigants and lawyers, and for them "Judge bashing"becomes a favourable pastime. In case the High Court does not protect the honest judicial officers, the survivor of the judicial system would itself be in danger". The Appellant Ms Nirmala Jhala was charged and punished for demanding bribes in respect of CBI Case No.5 of 1991 against Gautam Ghanshyam Jani for the offence of misappropriation and embezzlement of public money.
In Ayaaubkhan Noorkhan Pathan v. State of Maharashtra & Ors., AIR 2013 SC 58, the Hon'ble Apex Court has observed, while placing reliance upon a large number of earlier judgments and held that cross-examination is an integral part of the principles of natural justice, and a statement recorded behind back of a person wherein the delinquent had no opportunity to cross- examine such persons, the same cannot be relied upon
Saturday, March 16, 2013
Shouting against national enemies after standing on bench in our assembly & throwing mike by such the MLA does not deserve to represent a law abiding community of our country, even though it may be gesture in protest, condemning PAK Resolution... In fact, someone intends to attack on PAK, it could have been done in bold, effective and decent parliamentary and diplomatic manners, but these kinds of gestures are absolutely non-parliamentary behaviors, condemning the esteem of our legislature and of our Constitutional Laws and not addressing our national enemies.. Anyway, when the speaker is helpless and when leaders believe in their supreme immunity to behave as they desire.... Such kinds of non-parliamentary behaviors are not new in India.. History of our independent democratic country has seen such kinds of events several times in past and even worse than this...But the vital question of this time is only whether there exists any remedy against the immunity of our leaders for any such mischievous behaviors in assembly or parliament ???..
Friday, March 15, 2013
While adjudicating CIVIL APPEAL NOS. 2050-2053 OF 2013 [Arising out of SLP (Civil) Nos. 126-129 of 2012]instituted by Mahalaxmi Co-operative Housing Society Ltd. & Etc. .. the Appellants, against the judgments of Gujarat High Court, the Hon'ble Justice Mr. K. S. Radhakrishnan of Supreme Court of India has recently observed that There is no specific provision in the CPC for consolidation of suits. Such a power has to be exercised only under Section 151 of the CPC. The purpose of consolidation of suits is to save costs, time and effort and to make the conduct of several actions more convenient by treating them as one action. Consolidation of suits is ordered for meeting the ends of justice as it saves the parties from multiplicity of proceedings, delay and expenses and the parties are relieved of the need of adducing the same or similar documentary and oral evidence twice over in the two suits at two different trials. Reference may be made to the judgment of this Court in Prem Lala Nahata and Anr. v. Chandi Prasad Sikaria (2007) 2 SCC 551.
Sunday, March 10, 2013
According to a news report of "The Tribune" a day after the national Capital went abuzz with the women empowerment program, the All India Forgotten Women's Association, on behalf of many such other aggrieved mothers and sisters of our country, has now raised questions against the provisions of 498 A of IPC and Domestic Violence Act, 2005, alleging that the provisions of these laws discriminate against the mothers and sisters of accused husbands, without their roll in commission of any such offences under those provisions of laws. Is it not a time to review these provisions to prevent the misuse of laws ? it it not welcome to see that all these women empowering penal provisions are now challenged by women of our country suo moto on the eve of World Women Day ?!!
Saturday, March 9, 2013
On the eve of Maha Shiv Ratri... the messages of Jagatguru Shri. Sri Adi Shankaracharya "न धर्मो न चार्थो...." "न मे जातिभेदः..." शिवोऽहम् शिवोऽहम् ..." in his most popular Nirvana Shatakam is highly appropriate message for all of us today...because every where in the world people are fighting with each other in the name of race and religion.... Jagatguru Adi Shankaracharya says- "We are neither religion nor wealth..... nether any difference in the name of races... We are simply like a blessing of well being... well being for all..." Happy Shiv Ratri to all.....
Thursday, February 28, 2013
Gujarat Minister for State for Home Mr.Rajnikant Patel has admitted before Assembly house in reply to a question that Out of the 348 cases of house break-ins, 256 cases are yet to be solved; while 12 thefts in temples too remain a mystery. The detection ratio in the cases of chain snatching is quite poor as well. According to the data provided of the 161 cases of chain snatching, 120 are still remained unsolved...!!!! It is also said that Ahmedabad city has reported more than one incident of house break-ins every day and an incident of chain snatching every alternate day in the past six months. This is the latest picture of Law and Order in Gujarat..
Wednesday, February 27, 2013
Law Minister admits about Ahmedabad having highest pending litigation..but what solution to resolve "Justice delayed is Justice Denied" ??!!
As per a news report in Time of India. it is said today by the Law Minsiter of Gujarat Mr. Bhupendrasinh Chudasama in Assembly, in reply to a question that as many as 4,48,165 cases are pending in different courts of Ahmedabad district only and the highest number of 3,62,851 cases are pending in the metropolitan magistrate court while 42,932 cases in the city civil court of Ahmedabad and the family courts also have 9,068 cases pending. The figures for small cause courts, industrial courts and labour court are 11819,and 3,797 and 17,698 respectively. This is prima facie a general statistics of only Ahmedabad District in Gujarat and there are many more such other districts in Gujarat, having flooded with lacs of such pending litigation, which are simply awaiting for their final verdicts or disposal since many years and some cases are even pending since many decades too... I would like to ask to our Law Minister Mr. Chudasama... Whether his MODI Government will also take pride for this tremendous growth and increases in the figures of all such pending court cases in our court ???!! What measures are taken to resolve this increasing issue, causing and justifying the saying " Justice Delayed is Justice Denied ...".Simply by appointing new judges and new courts are not their solution.. but quick judicial disposal by our Hon'ble Judiciary in coordination with the bench and bar can only resolve these pending and delayed cases...
Friday, February 22, 2013
Can a State endow its valuable lands at rediculous rent for any business purpose? Cancellation of Lease of Patajali Yogpeeth raises new issue !!!
As per a news report of The India Express today, About 28 acres of land near Sadhupul in Solan district was given to Patanjali Yogpeeth by the previous BJP government in Himachal Pradesh in 2010 for just for a token lease of Rs 1 per year for a period of 99 years. And Mr. Balkrishna said and tried to save their skin that there was nothing wrong in giving the land on a token lease to the Yogpeeth as it was to be used for people's welfare and not commercial purpose, even though it is a fact that commercial activities like sale and distribution of Ayurvedic Medicines, Herbal Products and honey are conducted in a huge business pattern. Yet for that so-called reason, it is now heard that Yoga guru Ramdev's Patanjali Yogpeeth will go to court against the Himachal Pradesh government's order, recently cancelling the said lease of land, endowed to it by the previous BJP government. Now this is a perfect news report exposing BJP freely distributing valuable lands to its allies like Baba Ramdev, who is in reward aggressively campaigning for BJP against congress. This is the true picture of our political parties doing such free distribution to their allies when they are in power. And it is also alleged that such other kinds of lands distributions are also made in Gujarat by Modi's BJP Government to their certain near and dear industrialists, who promote Mr. Modi for PM, even before the election of the parliament happens. In the city of Kapadwanj in Gujarat, a portion of a valuable lands out of the S.T. Depot has also been leased to some interested person by Government of Gujarat, and now there is a big Commercial complex, where offices are freely held and transferred by private parties, without any interference of the State who incurs a a great deal of loss of public money. This is really ridiculous.... Several court litigation are also pending and awaiting for judicial verdicts before various Courts in Gujarat too, in respect of certain alleged lands distribution by Gujarat Government... In past the Congress has also endowed many such valuable pieces of lands and properties to their allies, which have become debatable in past...But in brief, the vital and important question of facts and laws is that whether a State Government can endow its valuable lands to any private parties for any such commercial or industrial purpose for such a ridiculous rent or in such a manner ??
Wednesday, February 20, 2013
Violent Face of Strike targeting innocent people and private properties ? Who is responsible? Demonstrators or their leaders Calling strike or the Poor Controlling State Authorities??
Can any political leader or Unionist now adjudicate or comment over any such violent face of present bandh, striking over the innocent people and private properties today at Noida and other parts of our Nation??? Who is responsible for any damages and hardships occurred to any innocent persons and their public as well as private properties ?? Does the laws of our Land permit to assault innocent people or breaking private cars and buses or factories or public buildings ???... Why all those Notorious demonstrators and their leaders calling such kind of strike or Bandh, running to the detriment of the public and private properties should not be punished for taking laws in their hands ??? Is this all justified in the name of Freedom of Demonstration ?? This is the time for the law abiding people of our country, to think and resolve and raise their Voice to nip in the bud all such harmful unwanted activities, which are always aimed not only against the national interest but also against the public and private interest.
Tuesday, February 19, 2013
Silence of Gujarat State Government may be a deemed consent to illegal ban of the passenger public of Gujarat by its ST Employees
Recently the trade unions of the drivers as well as the officers employees of Gujarat State Road Transport Corporation (GSRTC) have threatened and called for going on strike from today midnight i.e of 19th February in all over our Gujarat State, simply in the name of the so-called protest against the proposed hikes in Diesel rates by various companies, even though all these employees are never going to be affected at all by any such proposed diesel rate hikes. On the contrary the Gujarat S. T. Corporation, who is the ST vehicles owner only, has to bear and incur all such proposed charges of diesel on hiked rates. But when more VAT and other taxes are already imposed in respect of Diesel and petrol in our Gujarat State, then BJP Government of Gujarat is not in any position to go on strike against any such Diesel rate hikes. Moreover any such action of strike shall also target to take in ban all our poor innocent passenger people of Gujarat during current marriage season and consequently such a strike shall not only be against law and order but also against public interest and policy too. Hence under such the unfortunate circumstances, the trade unions of the drivers and officers employees of Gujarat S.T. Corporation (GSRTC)are somehow encouraged to go on such protest for any foreseen political gain, even it is against the interest of the public at large in our state of Gujarat. Then one has to now look at this naked true facts of laws that all such kinds of strike affecting the public at large are absolutely illegal as per the rulings of our Hon'ble Supreme Court. And when our laws has clearly defined that the ST employees are also the agents of Gujarat State Government, hence any such action of strike can also be deeded to have been done by and on behalf of the State Government too, in as much as State Government is always vicariously liable for all such legal and illegal actions of its employees, done in respect of and within the colors of their their respective jobs. So now the Silence of Gujarat State Government is not remained any question mark at all, but it seems to be a simple politically oriented move, putting gun on others' shoulders. And if it is true, it may be understood as a deemed consent and active participation of our State Government into an illegal ban of the poor passengers people of Gujarat by its agents and ST Employees, for which all of them can be jointly and severally liable too for all inconvenience to the people at large in the eyes of laws.
Thursday, February 14, 2013
While exercising Criminal Appellant Jurisdiction in the matters of CRIMINAL APPEAL NO.305 OF 2013,moved by appellants Mr. Surender Kaushik and others, against State of UP, the Hon'ble Supreme Court of India has today set up a landmark principles for lodging two FIRs in respect of a single incident, and has redefined concept of sameness of FIR, by observing that:" it is quite luminous that the lodgment of two FIRs is not permissible in respect of one and the same incident. The concept of sameness has been given a restricted meaning. It does not encompass filing of a counter FIR relating to the same or connected cognizable offence. What is prohibited is any further complaint by the same complainant and others against the same accused subsequent to the registration of the case under the Code, for an investigation in that regard would have already commenced and allowing registration of further complaint would amount to an improvement of the facts mentioned in the original complaint. As is further made clear by the three-Judge Bench in Upkar Singh (supra), the prohibition does not cover the allegations made by the accused in the first FIR alleging a different version of the same incident. Thus, rival versions in respect of the same incident do take different shapes and in that event, lodgment of two FIRs is permissible.
As per the reliable news reports, The Gujarat High Court has today stayed commercial operations and development activities of 12 companies located in the Adani Group owned Adani Port Special Economic Zone (APSEZ) in Mundra taluka of Kutch district, till environmental clearance is granted to them by Union Ministry of Environment and Forests (MoEF), while adjudicating a public interest litigation (PIL) filed last year by villagers of Navinal village in Mundra. It was alleged in the aforesaid PIL that these companies in question have not only developed production units against laws but also were importing and exporting various goods, and have also obtained tax exemptions as per rules of the SEZ, in violation of laws and orders of the court, despite no environmental clearance by the MoEF. A division bench of the Hon'ble Chief Justice Mr. Bhaskar Bhattacharya and Justice Mr. J B Pardiwala, have also issued notices to the Union government, MoEF, APSEZ, Gujarat Pollution Control Board (GPCB) and the companies in question. It is further ordered by the Hon'ble High Court to all the respondents in the case to file their replies before the next hearing which is scheduled after 15 days.
Wednesday, February 6, 2013
The Apex Court made mandatory for states to provide a plain-clothed special juvenile police officer (SJPO) in every police station.
Taking a very serious note of a true bitter fact about the missing of over 1.17 lakh children from 392 districts in India, during the period of January 2008 to January 2010, and Out of them, 41,546 are still untraced The Supreme Court of India has recently issued a ruling whip on Thursday, making it mandatory for all our states to provide a plain-clothed special juvenile police officer (SJPO) in every police station. And in addition to this, the states are also ordered to create a Special Juvenile Police Unit (SJPU), comprising personnel specially trained and oriented for child causes (read offences) in every district and each missing child report must be converted into FIRs. The Supreme Court on Thursday made it mandatory for police stations across the country to compulsorily register missing complaints of any minor and appoint a special police officer to handle complaints of juveniles. Such police personnel should be stationed at every police station in plain clothes. The Hon'ble Apex Court has also emphasized that in the first instance, the police should not shirk its responsibility, but to register an FIR for every missing child complaint. It is also ordered by the Bench to the chief secretaries of Tamil Nadu, Odisha, Gujarat, Himachal Pradesh, Arunachal Pradesh and Goa to be present in court.
Saturday, February 2, 2013
Tuesday, January 29, 2013
Monday, January 28, 2013
Wednesday, January 2, 2013
SC rejected the plea that Governor is bound to act only in accordance with the aid and advice of the Council of Ministers, headed by the Chief Minister
Dismissed Pleas and Contention, raised by Mr. K.K. Venugopal, Mr. Soli Sorabjee, Dr. Rajeev Dhavan, Mr. Mihir J. Thakore, and Mr. Yatin Oza, learned senior counsel appearing for the appellants, State of Gujarat in CIVIL APPEAL NOS. 8814-8815 OF 2012 in respect of the appointment of Lokayukta in Gujarat before the Apex Court were in general as such that " the Governor, being a titular head of State, is bound to act only in accordance with the aid and advice of the Council of Ministers, headed by the Chief Minister, and that the actions of the Governor, indulging in correspondence with, and issuing directions to other statutory authorities, are contrary to the principles of Parliamentary democracy, and thus, the Governor ought not to have corresponded with, and consulted the Chief Justice of the High Court of Gujarat directly." Per contra, Mr. R.F. Nariman, learned Solicitor General of India, Mr. P.P.Rao, Dr. A.M. Singhvi, and Mr. Huzefa Ahmadi, learned senior counsel appearing on behalf of the respondents, have opposed the appeals, contending that the Governor had acted as a statutory authority under the Act, 1986, and not as the head of the State, and thus, she was not required to act in accordance with the aid and advice of the Council of Ministers. And it is a fact that the appellants State of Gujarat and others have in fact, been avoiding the appointment of a Lokayukta for a period of more than nine years, for which there can be no justification. After considering rival submissions of both the parties to this appeal, the Hon'ble Supreme Court of India, marked this appeal as matter of legal issues of great public importance, such as, what is the meaning of the term ‘consultation’, for which SC said that no straight-jacket formula can be laid down in this regard, but ordinarily, consultation means a free and fair discussion on a particular subject, revealing all material that the parties possess, in relation to each other, and then arriving at a decision. The Hon'ble Apex Court has also brought more light over the Preamble of the Gujarat Lokayukta Act, 1986 that Lokayukta has two duties, firstly, to protect honest public functionaries from false complaints and allegations, and secondly, to investigate charges of corruption filed against public functionaries. Hence, investigation of such charges of corruption against public functionaries is not the only responsibility that the Lokayukta is entrusted with. And under such significant circumstances, an exception may arise while considering the grant of sanction required to prosecute the Chief Minister, or a Minister, where, as a matter of propriety, the Governor may have to act upon his own discretion. Similar would be the situation in a case where, the Council of Ministers disables or dis-entitles itself from providing such aid and advice. So the Apex Court summarized to the effect that the Governor is bound to act on the aid and advice of the Council of Ministers, unless he acts as, “persona designata” i.e. “eo nomine”, under a particular statute, or acts in his own discretion under the exceptions carved out by the Constitution itself. The Apex Court emphasized with this observation while adjudicating this legal battle and concluded that "Leaving the finality of choice of appointment to the Council of Ministers, would be akin to allowing a person who is likely to be investigated, to choose his own Judge." The Hon'ble Apex Court finally concluded with harsh observations that a very sorry state of affairs, revealing that in the State of Gujarat, the post of the Lokayukta has been lying vacant for a period of more than 9 years, as it became vacant on 24.11.2003, upon the resignation of Justice S.M. Soni from the said post. Since then a few half-hearted attempts were made to fill up the post of the Lokayukta, but for one reason or another, the same could not be filled and The recommendation of the Chief Justice suggesting only one name, instead of a panel of names, is in consonance with the law laid down by this Court and none of the objections raised by the Chief Minister, are tenable at all, hence This appeals lack merit and are accordingly dismissed.
whether State had a right to avoid the appointment of "Lokayukta" simply by upraising legal battles at the cost of our public money ?
Popular Posts on our Law Office Blogs
" If the land owners are not paid and compensated within two years after the declaration of the acquisition of the proposed land, the w...
While adjudicating **Pinakin Rawal v/s State of Gujarat CR.APPEAL NO.811/2004]****the Hon'ble Supreme Court has observed in its landmark...
Powered by www.kartikey.com ::::: A Law Office of India, pioneering the online concept of free legal aid and laws consultation through E-L...
Before passing Order of detention under PASA act, the detaining authority must come to a definite finding that there is threat to the “public order”While applying the ratio, laid down by the Hon. Supreme Court, in the case of Ashokbhai Jivraj @ Jivabhai Solanki v. Police Commissioner, Su...
Vidhya Sahayak for teachers, Lok Rakshak for police and Gram Mitra in rural administration are "Gujarat State Sponsored Financial Exploitation"A division bench of the Gujarat High Court, comprising Acting Chief Justice Bhaskar Bhattacharya and Justice J B Pardiwala, has observed las...
On the eve of Dipavali...it is a rising of a new dawn...with a hope of a happy and prosperous New year, We extend our cordial wishes to all ...
Would it not be a discrimination by conferring different forums in different states for trials of certain same Offences under IPC ??Why does there exist typical difference in respect of forum for trial of certain offences like those under sections 326, 409, 466, 467, 468,...
Recently, the Supreme Court of India has pronounced a landmark judgment, while adjudicating and dismissing writ petition lodged by Bar Coun...
While exercising Criminal Appellant Jurisdiction in the matters of CRIMINAL APPEAL NO.305 OF 2013,moved by appellants Mr. Surender Kaushik a...
Recently yesterday, the Hon'ble Apex Court of India has reconfirmed the Rules and Laws about the Admissions of a party while adjudicatin...
Law Blog Archive
- October (1)
- September (6)
- August (7)
- July (8)
- June (4)
- May (7)
- April (8)
- March (9)
- February (9)
- January (6)
- December (9)
- November (4)
- October (3)
- September (5)
- August (11)
- July (2)
- June (1)
- February (2)