Assault and criminal intimidation on facebook

Aggressive comment on Facebook page of Police

Whether Facebook page of the Bengaluru traffic police is a public forum meant for citizens to discuss and post their grievances and whether  the comment  posted on the Facebook could prima facie constitute the offence of assault and criminal intimidation?

 Section 353 defines assault and is as under:

353. Assault or criminal force to deter public servant from discharge of his duty.- Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”

A reading of the above provision shows that the essential ingredients of the offence under Section 353 IPC are that the person accused of the offence should have assaulted the public servant or used criminal force with the intention to prevent or deter the public servant from discharging his duty as such public servant. By perusing the materials available on record, it appears that no force was used by the appellants to commit such an offence. There is absolutely nothing on record to show that the appellants either assaulted the respondents or used criminal force to prevent the second respondent from discharging his official duty. Taking the uncontroverted allegations, in our view, that the ingredients of the offence under Section 353 IPC are not made out. Continue reading “Assault and criminal intimidation on facebook”

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Custodial Interrogation to obtain confession is not permissible

Non-cooperation of accused with investigator:

Petition for cancellation of bail on the allegations that accused refused to confess to the I.O. if permissible?

“…It appears, the IO was of the view that the custody of the appellant is required for recording his confessional statement in terms of what the co-accused had already stated in the Statement under Section 161 of the Code of Criminal Procedure, 1973. The IO was of the opinion that the appellant was not cooperating because he kept reiterating that he had not purchased the food-grains. The purpose of custodial interrogation is not just for the purpose of confession. The right against self-incrimination is provided for in Article 20(3) of the Constitution. It is a well settled position in view of the Constitution Bench decision in Selvi and others v. State of Karnataka (2010) 7 SCC 263, that Article 20(3) enjoys an “exalted status”. This provision is an essential safeguard in criminal procedure and is also meant to be a vital safeguard against torture and other coercive methods used by investigating authorities. Therefore, merely because the appellant did not confess, it cannot be said that the appellant was not cooperating with the investigation. However, in case, there is no co-operation on the part of the appellant for the completion of the investigation, it will certainly be open to the respondent to seek for cancellation of bail.

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Marital rape with a girl below 18 years

Sexual intercourse with a bride below 18 years if a rape.

Whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape? 

Exception 2 to Section 375 of the Indian Penal Code, 1860 (the IPC) answers this in the negative, but in our opinion sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not. The exception carved out in the IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved.

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Arbitration clause does not bar jurisdiction of Rent Controller or Civil Court

Arbitration clause in lease deed does no bar suit for eviction

Can tenant invoke arbitration clause in the face of civil suit by landlord:

In the light of the foregoing discussion and the authority of the precedents, we hold that both by reason of Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 and by reason of the broader considerations of public policy mentioned by us earlier and also in Deccan Merchants Cooperative Bank Ltd. v. Dalichand Jugraj Jain, the Court of Small Causes has and the arbitrator has not the jurisdiction to decide the question whether the respondent-licensor landlord is entitled to seek possession of the two Studios and other premises together with machinery and equipment from the appellant-licensee tenant. That this is the real dispute between the parties is abundantly clear from the petition filed by the respondents in the High Court of Bombay, under Section 8 of the Arbitration Act seeking a reference to Arbitration. The petition refers to the notices exchanged by the parties, the respondent calling upon the appellant to hand over possession of the Studios to him and the appellant claiming to be a tenant or protected licensee in respect of the Studios. The relationship between the parties being that of licensor-landlord and licensee tenant and the dispute between them relating to the possession of the licensed demised premises, there is no help from the conclusion that the Court of Small Causes alone has the jurisdiction and the arbitrator has none to adjudicate upon the dispute between the parties.”

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Conviction for corruption on circumstantial evidence

Conviction under Prevention of Corruption Act, 1988

Section 13(1)(d) of the Prevention of Corruption Act, 1988 read as hereunder:-

(d) if he,–

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or Section 13(2) in The Prevention of Corruption Act, 1988 (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.

For establishing the offence under the aforesaid sections, the ingredients of the public servant having abused his position and by abusing that position he has obtained for himself or any other person any valuable thing or pecuniary advantage, has to be proved Continue reading “Conviction for corruption on circumstantial evidence”

Meaning of Competent Court under MCOCA

Meaning of organised crime

In re: Maharashtra Control of Organised Crime Act, 1999 (MCOCA) as applied to Delhi under Delhi Laws Act:

The commission of crimes like contract killings, extortion, smuggling in contrabands, illegal trade in narcotics, kidnappings for ransom, collection of protection money and money laundering, etc. by organised crime syndicates was on the rise. To prevent such organised crime, an immediate need was felt to promulgate a stringent legislation. The Government realized that organised crime syndicates have connections with terrorist gangs and were fostering narcotic terrorism beyond the national boundaries. MCOCA was promulgated with the object of arresting organised crime which was posing a serious threat to the society. The interpretation of the provisions of MCOCA should be made in a manner which would advance the object of MCOCA. Continue reading “Meaning of Competent Court under MCOCA”

Irretrievable break down of Marriage: Supreme Court can grant divorce to couple.

Why lock a couple in a dead marriage.

The Respondent wife, who did not appear before the trial court after filing of written statement, did not respond to the request made by the High Court for personal appearance.

In spite of service of Notice, the Respondent did not show any interest to appear in this Court also. This conduct of the Respondent by itself would indicate that she is not interested in living with the Appellant. Refusal to participate in proceeding for divorce and forcing the appellant to stay in a dead marriage would itself constitute mental cruelty [Samar Ghosh v. Jaya Ghosh1]. The High Court observed that no attempt was made by either of the parties to be posted at the same place. Without entering into the disputed facts of the case, we are of the opinion that there is no likelihood of the Appellant and the Respondent living together and for all practical purposes there is an irretrievable breakdown of the marriage.

Continue reading “Irretrievable break down of Marriage: Supreme Court can grant divorce to couple.”

Multiple arbitration agreements between same parties

Expediency of one Arbitration Tribunal instead of multiple Tribunals

The amended Section 11 of Arbitration Act, 1996 reads as under:-

“11. Appointment of arbitrators.- (1) A person of any nationality may be an arbitrator, unless otherwise agreed by the parties.
(2) Subject to sub-section (6), the parties are free to agree on a procedure for appointing the arbitrator or arbitrators.

(3) Failing any agreement referred to in sub-section (2), in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two appointed arbitrators shall appoint the third arbitrator who shall act as the presiding arbitrator.

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Transfer of Matrimonial Dispute at the behest of Wife

Is video conferencing is an alternative to transfer of proceedings?

Power to transfer any proceedings from one court in India to another is vested in the Supreme Court under article 19-A of the Constitution. Similar powers are conferred by Section 25 of Civil Procedure Code. In an earlier case, Supreme Court opined that video conferencing could be a good alternative instead of transfer. It observed:

One cannot ignore the problem faced by a husband if proceedings are transferred on account of genuine difficulties faced by the wife. The husband may find it difficult to contest proceedings at a place which is convenient to the wife. Thus, transfer is not always a solution acceptable to both the parties. It may be appropriate that available technology of videoconferencing is used where both the parties have equal difficulty and there is no place which is convenient to both the parties. We understand that in every district in the country videoconferencing is now available. In any case, wherever such facility is available, it ought to be fully utilised and all the High Courts ought to issue appropriate administrative instructions to regulate the use of videoconferencing for certain category of cases. Matrimonial cases where one of the parties resides outside court’s jurisdiction is one of such categories. Wherever one or both the parties make a request for use of videoconferencing, proceedings may be conducted on videoconferencing, obviating the needs of the party to appear in person. In several cases, this Court has directed recording of evidence by video conferencing.

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Common intention u/s 34 of IPC

Vicarious criminal liability for sharing common intention

Determination of common intention:

Section 34 of Penal Code is as under:

“Acts done by several persons in furtherance of common intention.—When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.”

In order to attract Section 34 IPC, the following ingredients must be established:

(i) there was common intention in the sense of a pre-arranged plan;

(ii) the person sought to be so held liable had participated in some manner in the act constituting the offence.

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