NO SYMPATHY IN CORRUPTION CASES

The Supreme court refused to render mercy in a corruption case. The Supreme Court in State of Rajasthan Vs Dr. Rajkumar Agarwal & Another, observed that rampant corruption is seen in every walk of our life. People, particularly those holding high office, are frequently seen accepting illegal gratification. In such serious cases mercy at this stage may send wrong signals. The Supreme Court refused to accede to the request of the respondent No.1 to take a kindly view of the matter because he is on the verge of retirement and that he had suffered the agony of investigation since 2007.

The complaint was that the respondent No.1 demanded Rs.5000/- as bribe for the operation and for better treatment of the complainant’s aunt. The complainant gave a sum of Rs.2,500/- at the time of operation. The complainant stated that his aunt was still in hospital and the respondent No.1 was demanded the remaining sum of Rs.2,500/-. In this matter the conversation was recorded, the money was recovered and hand wash of the respondent No.1 was taken which turned pink. After following the necessary formalities, FIR came to be registered.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

WOMAN IN A LIVE-IN RELATIONSHIP AND SECOND WIFE NOT ENTITILED TO MAINTENANCE

The woman in a live-in relationship and second wife is not entitled to maintenance unless she fulfills certain parameters, the Supreme Court in VELUSAMY Vs D PATCHAIAMMAL [2010 (10) SCC 469] had observed that merely spending weekends together or a one night would not make it a domestic relationship.

A bench comprising Justices Markandey Katju and T S Thakur said that in order to get maintenance, a women, even if not married, has to fulfill the following four requirements:

1. The couple must hold themselves out to society as being akin to spouses.

2. They must be of legal age to marry.

3. They must be otherwise qualified to enter into a legal marriage, including being unmarried.

4.  They must be voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

The Supreme Court observed, in our opinion not all Live-in relationships will amount to a relationship in the nature of marriage to get the benefit of the Protection of Women from Domestic Violence Act, 2005. To get such benefit the conditions mentioned above must be satisfied, and this has to be proved by evidence. If a man has a ‘keep’ whom he maintains financially and uses mainly for sexual purposes and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage.

The Apex court passed the judgment while setting aside the concurrent orders passed by a matrimonial court and the Madras High Court awarding Rs 500 maintenance to Patchaiammal who claimed to have married the appellant D Velusamy.

Velusamy had challenged the two Court’s order on the ground that he was already married to one Laxmi and Patchiammal was not married to him though he lived with her for some time.

The Apex court also observed, "No doubt the view we are taking would exclude many women who have had a Live-in relationship from the benefit of the 2005 Act (Protection of Women from Domestic Violence Act), but then it is not for this court to legislate or amend the law. Parliament has used the expression 'relationship in the nature of marriage' and not 'Live-in relationship'. The court in the garb of interpretation cannot change the language of the statute," the bench observed.

Related Articles:

Mutual consent divorce in India

Legal Principles

Legal perspective of the Live-in relationship

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

STUDENTS NOT TO JOIN, THE EDUCATION INSTITUTION WITHOUT RECOGNITION AND AFFILIATION

The institution that is engaged or interested in getting involved in imparting a course for training has to obey the command of law in letter and spirit. There cannot be any deviation. But, unfortunately, some of the institutions flagrantly violate the norms with adamantine audacity and seek the indulgence of the court either in the name of mercy or sympathy for the students or financial constraint of the institution or they have been inappropriately treated by the statutory regulatory bodies. None of this ground justice deviation. The Supreme Court said the High Court putting the blame on the statutory authority has granted relief to the respondent institution which is impermissible.

The Supreme Court in National Council for Teacher Education & Another Vs Venus Public Education Society & Others held:

“that without recognition from the NCTE and affiliation from the university/examining body, the educational institution cannot admit the students. An educational institution is expected to be aware of the law. The students who take admission are not young in age. They are graduates. They are expected to enquire whether the institution has recognition and affiliation. If we allow ourselves to say so, the institution had given admission in a nonchalant manner. Possibly, its functionaries harboured the idea that they had an incomparable fertile mind. The students who had taken admission possibly immersed with the idea that ignorance is a bliss. It is also necessary to state that the institution had the anxious enthusiasm to commercialize education and earn money forgetting the factum that such a attitude leads to a disaster. The students exhibited tremendous anxiety to get a degree without bothering for a moment whether their effort, if any, had the sanctity of law. Such attitudes only bring nemesis. It would not be wrong to say that this is not a case which put the institution or the student to choose between Scylla and charybdis. On the contrary, both of them were expected to be Argus-eyed. The basic motto should have been “transparency”. Unfortunately, the institution betrayed the trust of the students and the students, in a way, atrophied their intelligence. The institution decidedly exhibited characteristics of carelessness. It seems that they had forgotten that they are accountable to law. The students, while thinking “vision of hope”, chose to play possum. The law does not countenance either of the ideas. Hence, the plea propounded with anxiety, vehemence and desperation on behalf of the appellant is not acceptable and, accordingly we unhesitatingly repel the same”.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

SCHOOL ACROSS THE COUNTRY DIRECTED TO PROVIDE BASIC INFRASTRUCTURE AND FACILITIES TO STUDENTS

A petition was filed by a registered charitable society, seeking various directions to improve the conditions of Government and aided school and also school run by the local authorities so that the constitutional objective of providing free and compulsory education under the Constitution of India would be a reality.

The Supreme Court in Environment & Consumer Protection Foundation Vs Delhi Administration & Others [CDJ 2012 SC 674] directed the schools across the country to provide basic infrastructure facilities like toilet facilities for boys and girls, drinking water facilities, sufficient class rooms, appointment of teaching and non-teaching staff, etc., if not already provided, within six months from the judgement (decided on 03.10.2012). It was held that the directions are applicable to all the schools, whether State owned or privately owned, aided or unaided, minority or non-minority. 

Prepared by: S. Hemanth
Advocate at Hemanth & Associates

COMMUNITY SERVICE AS PUNISHMENT IN ADDITION TO PRISON SENTENCE FOR DRUNKEN DRIVING

In a matter of BMW car hit case, where on the intervening night of 9/10.01.1999, an unfortunate motor accident took place involving BMW car. The BWM car driven by the accused in a drunken state, had caused the death of six human beings and one injured. Bodies were lying on the road unattended.

The Supreme Court in State Tr.P.S. Lodhi Colony New Delhi Vs Sanjeev Nanda [(2012) 8 SCC 450] observed:

The convict should serve the community, especially in crimes relating to motor vehicles. Serving the society actually is not a punishment in the real sense where the convicts pay back to the community which he owes. The conduct of the convicts will not only be appreciated by the community, it will also give a lot of solace to him, especially in a case where because of one’s action and inaction, human lives have been lost.

In the above case, the Supreme Court in addition to a prison sentence and fine held “the accused would do community service for two years which will be arranged by the Ministry of Social Justice and Empowerment within two months. On default, he will have to undergo simple imprisonment for two years”.

The question that arose for consideration was whether the respondent deserves to be held guilty of commission of offence under section 304 part II of the Indian Penal Code (IPC) or the conviction and sentences awarded to him by the High Court of Delhi, under section 304 A of the IPC should be held to be good and legally tenable. The Highest court held that the High Court committed an error in converting the conviction to section 304A of the IPC from that of 304 (II) IPC.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

GUIDELINES FROM SUPREME COURT WITH REGARD TO THE COURT POWER IN ISSUING NON-BAILABLE WARRANT

The Hon’ble Supreme Court in order to check or obviate the possibility of misuses of an arrest warrant, issued guidelines to be adopted in all cases where non-bailable warrants are issued by the Courts.

The Hon’ble Supreme Court in Raghuvansh Dewanchand Bhasin V State of Maharashtra (2011 AIR SCW 5347) issued the following guidelines to be adopted in all cases where non-bailable warrants are issued by the Courts –

(a) All the High Court shall ensure that the Subordinate Courts use printed and machine numbered Form No.2 for issuing warrant of arrest and each such form is duly accounted for;

(b) Before authenticating, the Court must ensure that complete particulars of the case are mentioned on the warrant;

(c) The Presiding Judge of the Court (or responsible officer specially authorized for the purpose in case of High Courts) issuing the warrant should put his full and legible signatures on the process, also ensuring that Court seal bearing complete particulars of the Court is prominently endorsed thereon;

(d) The Court must ensure that warrant is directed to a particular police officer (or authority) and, unless intended to be open-ended, it must be returnable whether executed or unexecuted, on or before the date specified therein;

(e) Every Court must maintain a register (in the format given below), in which each warrant of arrest issued must be entered chronologically and the serial number of such entry reflected on the top right hand of the process;

(f) No warrant of arrest shall be issued without being entered in the register mentioned above and the concerned Court shall periodically check/monitor the same to confirm that every such process is always returned to the Court with due report and placed on the record of the concerned case;

(g) A register similar to the one in clause (e) supra shall be maintained at the concerned police station. The Station House Officer of the concerned Police Station shall ensure that each warrant of arrest issued by the Court, when received is duly entered in the said register and is formally entrusted to a responsible officer for execution;

(h) Ordinarily, the Courts should not give a long time for return or execution of warrants, as experience has shown that warrants are prone to misuse if they remain in control of executing agencies for long;

(i) On the date fixed for the return of the warrant, the Court must insist upon a compliance report on the action taken thereon by the Station House Officer of the concerned Police Station or the Officer In-charge of the concerned agency;

(j) The report on such warrants must be clear, cogent and legible and duly forwarded by a superior officer, so as to facilitate fixing of responsibility in case of misuse;

(k) In the event of warrant for execution beyond jurisdiction of the Court issuing it, procedure laid down in sections 78 and 79 of the code must be strictly and scrupulously followed; and

(l) In the event of cancellation of the arrest warrant by the Court, the order cancelling warrant shall be recorded in the case file and the register maintained. A copy thereof shall be sent to the concerned authority, requiring the process to be returned unexecuted forthwith. The date of receipt of the unexecuted warrant will be entered in the aforesaid registers. A copy of such order shall also be supplied to the accused.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

JUSTICE, DELAY AND SUGGESTIONS BY S.C

“Justice delayed is justice denied” is a well know legal maxim, meaning that if legal redress is available for a party that has suffered some injury, but is not forthcoming in a timely fashion, it is effectively the same as having no redress at all.  A simple statement but a very deep and profound one.  Our Hon’ble Apex Court had dealt with the aspect of delay in disposing civil cases and some remedial measures and suggestions to improve the situation.

The Hon’ble Supreme Court in Ramrameshwari Devi and ors. V Nirmala Devi and Ors (2011 AIR SCW 4000) have dealt with the aspect of delay in disposal of civil cases and some remedial measures and suggestions to improve the situation. According to the opinion of the Supreme Court the system can be drastically changed or improved if the following steps are taken by the trial courts while dealing with the civil trials:

A. Pleadings are foundation of the claims or parties. Civil litigation is largely based on documents. It is the bounded duty and obligation of the trial judge to carefully scrutinize, check and verify the pleadings and the documents filed by the parties. This must be done immediately after civil suits are filed.

B. The Court should resort to discovery and production of documents and interrogatories at the earliest according to the object of the code. If this exercise is carefully carried out, it would focus the controversies involved in the case and help the court in arriving at truth of the matter and doing substantial justice.

C. Imposition of actual, realistic or proper costs and or ordering prosecution would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases the courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings.

D. The Court must adopt realistic and pragmatic approach in granting mesne profits. The Court must carefully keep in view the ground realities while granting mesne profits.

E. The Courts should be extremely careful and cautious in granting ex-parte ad interim injunctions or stay orders. Ordinarily short notice should be issued to the defendants or respondents and only after hearing concerned parties appropriate orders should be passed

F. Litigants who obtained ex-parte ad interim injunction on the strength of false pleading and forged documents should be adequately punished. No one should be allowed to abuse the process of the court.

G. The principle of restitution be fully applied in a pragmatic manner I order to do real and substantial justice.

H. Every case emanates from a human or a commercial problem and the court must take serious endeavor to resolve the problem within the framework of law and in accordance with the well settled principles of law and justice.

I. If in a given case, ex parte injunction is granted, then the said application for grant of injunction should be disposed of on merits, after hearing both sides as expeditiously as may be possible on a priority basis and undue adjournments should be avoided.

J. At the time of filing of the plaint, the trial court should prepare complete schedule and fix dates for all the stage so the suit, right from filing of the written statement till pronouncement of judgment and courts should strictly adhere to the said dates and the said time tables as far as possible. If any interlocutory applications is filed then the same be disposed of in between the said dates of hearings fixed in the said suit itself so that the date for the main suit may not be disturbed.

According to the Hon’ble Supreme Court, if the aforesaid steps are followed the prevailing system of adjudication of civil courts is bound to improve.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates