Month: September 2017

Honeypreet not participating in investigation won’t get bail.

Honeypreet Insaan seeking bail in anticipation of arrest

The broad purpose of Section 438 Cr.PC is that where a person accused of commission of a non bailable offence is apprehending arrest, he may be afforded an opportunity to approach a High Court or a Court of Session for an appropriate order of bail before actual arrest. The two factors which entitle a person to seek shelter under Section 438 Cr.PC that firstly he must be under a reasonable apprehension of being arrested and secondly that such reasonable apprehension of arrest must arise on accusation of having committed a non bailable offence. Both these factors also determine the court in which an application under Section 438 Cr.PC can be filed.

Undoubtedly, anticipatory bail intrudes in the sphere of investigation of crime and some very compelling circumstances have to be made out for grant of anticipatory bail to the person accused of serious offences and the Court must be cautious and circumspect in exercising such power of a discretionary nature. Continue reading “Honeypreet not participating in investigation won’t get bail.” →

Delay in recording of statement of witnesses if vitiate investigation

Delay in recording the statements of witnesses may render investigation doubtful.

Apart from the fact that Welji’s conduct was strange and inconsistent with the normal conduct of an eye-witness, and the inordinate delay in recording his statement by the police, his evidence suffers from other material flaws, also. In his statement before the police, Welji did not specifically name Pramila (P.W. 2) as person by whose shouts, he was attracted to the scene of occurrence. In variance with what he stated at the trial, his version before the police was that he had heard ‘some ladies, (that means more than one person), shouting ‘Bachao Bachao’. Admittedly, he knew Pramila’s name prior to the occurrence. His version in the witness-box that he was attracted to the spot on hearing the shouts of Pramila, was therefore, an improvement deliberately made to fit in the prosecution story at the trial. Continue reading “Delay in recording of statement of witnesses if vitiate investigation” →

Role of Judiciary in Democracy

Judicial powers and its scope

Judiciary enjoys neither the legislative nor executive power. Its duty is to preserve Constitution, its mandates and make the people wielding power to act within limits provided by the Constitution and make them directly accountable for their acts to the authorities provided under the hierarchy of Constitution. It is said constitution is just to be common sense of the people and was never designed for trial of logical skills or visionary speculation.

Once the limits are imposed by law or Legislature, consequences are inevitable. The acts can only be done in accordance with the enactment. Judges’ morality or morality of one section may be pernicious. Courts cannot impose their views for the governance of the people who have a right to be governed by law or elective representatives but not by an unelected representatives and unaccountable committee of lawyers applying no will but their own. Continue reading “Role of Judiciary in Democracy” →

Divorce by Mutual Consent: Waiver of time for second motion

Divorce by mutual consent

Requirement is that such divorce shall be given by way of two motions. Second requirement of section 13-B of Hindu Marriage Act is that second motion can be entertained only after expiry of six months after the first motion is accepted by the court.

Question is whether the said period is directory or mandatory? In other words, can the court waive the said period and accept second motion before expiry of said period?

Decision:

Where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13B(2), it can do so after considering the following :

i) the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself; Continue reading “Divorce by Mutual Consent: Waiver of time for second motion” →

Durga puja, Moharram, communal harmony in Bengal

Ban on Idol immersion on 1st October 2017 in West Bengal

Validity of ban on day of Moharram

Durga Puja is celebrated throughout the State and epitomizes the victory of the good against the evil. It is one of the major festivals of the Hindu community and the performance of each rituals which is inherent and inbuilt is followed in a time schedule as provided in various almanac or panjikas.

One of the important customs is Devi Baran followed by Sindoor Khela which can only be performed after sunset and are sine qua non to customary rites and ceremonies before the immersion of the Idol. Large sections of the Hindu community are performing the Puja privately or through community, which not only attached to their sentiments and religious belief but the sense of security as well that it would bring all good in their life. Equally, the Muslim communities are sensitively attached to mourning on the eve of Muharram. Both the sections of the society can profess and propagate their religion with harmony and unified manner. The founding father of the Constitution
never dreamt of any artificial or real distinction amongst each religions in the country and incorporated Articles 25
and 26 in Part-III of the Constitution. Continue reading “Durga puja, Moharram, communal harmony in Bengal” →

Custodial Violence and Death of Prisoners in India

 If civilization is not to perish in this country as it has perished in some others too well known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy.
[Source: Rudul Sah v. State of Bihar,(1983) 4 SCC 141.]

Custodial Violence

Custodial violence has always been a matter of great concern for all civilized societies. Custodial violence could take the form of third degree methods to extract information – the method used need not result in any physical violence but could be in the form of psychological violence. Custodial violence could also include a violation of bodily integrity through sexual violence – it could be to satisfy the lust of a person in authority or for some other reason. The ‘Mathura Rape Case’ is one such incident that most are familiar with. Custodial violence could, sometimes, lead to the death of its victim who is in a terribly disadvantaged and vulnerable condition. All these forms of custodial violence make it abhorrent and invite disparagement from all sections of civilized society.

The recent directives of Supreme Court, in regard to prison conditions:

Continue reading “Custodial Violence and Death of Prisoners in India” →

Unregistered lease of agricultural land

Bar on unregistered document under Registration Act, 1908

Section 49 of Registration Act, 1908:

Effect of non-registration of documents required to be registered.—No document required by section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall—
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: 54 Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) 55, 56  or as evidence of any collateral transaction not required to be effected by registered instrument.

Continue reading “Unregistered lease of agricultural land” →

Copyright in a title of short story

Infringement of copyright

Can a person claim copyright in respect of title of  Story?

The Court declined injunction against the defendant for using the brand name and title “Nishabd” alleging similar to the film of the plaintiff therein. The learned Judge A.K. Sikri, J. referred to decisions of the American Courts and observed that the position is the same as under the copyright law in India:-

“12……… What, therefore, follows is that if a junior user uses the senior user’s literary title as the title of a work that by itself does not infringe the copyright of a senior user’s work since there is no copyright infringement merely from the identity or similarity of the titles alone.”

Continue reading “Copyright in a title of short story” →

Theft of sand without permission of Government

Theft of sand is a cognizable offence.

If Mines and Mineral Development Act creates a bar to take action u/s 378 of IPC?

Definition of theft in sec 378 IPC:

378. Theft.—Whoever, intending to take dishonestly any moveable property out of the possession of any person without that per­son’s consent, moves that property in order to such taking, is said to commit theft.

Merely because initiation of proceeding for commission of an offence under the MMDR Act on the basis of complaint cannot and shall not debar the police from taking action against persons for committing theft of sand and minerals in the manner mentioned above by exercising power under the Code of Criminal Procedure and submit a report before the Magistrate for taking cognizance against such person. In other words, in a case where there is a theft of sand and gravels from the Government land, the police can register a case, investigate the same and submit a final report under Section 173, Cr.P.C. before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in Section 190 (1)(d) of the Code of Criminal Procedure. Continue reading “Theft of sand without permission of Government” →