Police Summoning a person from New Delhi to Kolkata on a facebook post.

Facebook post implying State bias towards a community:

The FIR contains a statement that the posts imply that:

(i) the State administration was going soft on the violation of the lock down at Rajabazar as the area is predominantly inhibited by a particular community and;

(ii) that the State administration is complacent while dealing with lock down violations caused by a certain segment of the community.

Reasonable Exercise of power of summoning:

The court must safeguard the fundamental right to the freedom of expression under Article 19(1)(a) of the Constitution. There is a need to ensure that the power under section 41A is not used to intimidate, threaten and harass.

Full Order of Supreme Court:

SLP(Crl) 4937/2020
1
ITEM NO.20 Court 6 (Video Conferencing) SECTION II-B
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No.4937/2020
(Arising out of impugned final judgment and order dated 29-09-2020
in CRAN No. 2/2020 passed by the High Court at Calcutta)
ROSHNI BISWAS Petitioner(s)
VERSUS
STATE OF WEST BENGAL & ANR. Respondent(s)

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What is a shared residence under Domestic Violence Act.

In fact, the very purpose of enacting the DV Act was to provide for a remedy which is an amalgamation of civil rights of the complainant i.e. aggrieved person. Intention was to protect women against violence of any kind, especially that occurring within the family as the civil law does not address this phenomenon in its entirety. It is treated as an offence Under Section 498-A of the Penal Code, 1860. The purpose of enacting the law was to provide a remedy in the civil law for the protection of women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society. It is for this reason, that the Scheme of the Act provides that in the first instance, the order that would be passed by the Magistrate, on a complaint by the aggrieved person, would be of a civil nature and if the said order is violated, it assumes the character of criminality…”

[ Source: Kunapareddy Alias NookalaShanka Balaji Vs. Kunapareddy Swarna Kumari and Anr., (2016) 11 SCC 774]

Section 2(s), of Domestic Violence Act defines shared household asunder:

“(s) “shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household;”

Questions raised before the Court:

(1) Whether definition of shared household under Section 2(s) of the Protection of Women from Domestic Violence Act, 2005 has to be read to mean that shared household can only be that household which is household of joint family or in which husband of the aggrieved person has a share?

(2) Whether judgment of this Court in S.R. Batra and Anr. Vs. Taruna Batra, (2007) 3 SCC 169 has not correctly interpreted the provision of Section 2(s) of Protection of Women from Domestic Violence Act, 2005 and does not lay down a correct law?

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A book about law relating to Bail or Jail

Law relating arrest, bail and personal liberty in India is governed by various legislations as also a number of precedents.

Click here to read free sample of Bail at Google Play Books.

Click here to read free sample of Bail or Jail at Amazon Kindle.

An ebook about law relating to Bail in India. It helps to determine how to get out of prison or jail quickly by explaining all aspects of this branch of Criminal Law.

As regards legislations, it is governed by Criminal Procedure Code, 1973. Offences governed by Indian Penal Code 1860 besides other specialised laws e.g. Narcotics Drugs and Psychotropic Substances Act, 1985, Benami Property Act or Customs Act, 1962 etc.

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Crime Investigation in India

An ebook on Crime Investigation in India:

Crime Investigation in India is governed by various legislations as also a number of legal precedents.

Apart from above legislations, there are numerous directions, guidelines and cautions by Supreme Court to protect the personal liberty, human rights and human dignity under article 21 of the Constitution of India.

Crime investigation is the domain of police but in case of economic or other classes of crimes some other departments are also authorised to investigate. More importantly the matters of national security are investigated by National Investigation Agency or NIA for short. But all these agencies are bound by same laws barring few exceptions.

The commencement of an investigation happens when a crime is committed. The First Chapter is in regard to introduction to the Crime and Offences.

Read a free sample at Google Play Store.

Read a free sample at Amazon Kindle here

The Chapter 2 is about the Police itself. It explains the source of power of Police Officers and hierarchy of Government over it.

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Considerations for Transfer of Criminal Trial out of State

Balancing the convenience

While considering a plea for transfer, the convenience of parties would be a relevant consideration. It can’t just be the convenience of the petitioner but also of the Complainant, the Witnesses,the Prosecution besides the larger issue of trial being conducted under the jurisdictional Court. When relative convenience and difficulties of all the parties involved in the process are taken into account, it is clear that the petitioner has failed to make out a credible case for transfer of trial to alternative venues outside the State.

Credibility of Judiciary:

The transfer of trials from one state to another would inevitably reflect on the credibility of the State’s judiciary and but for compelling factors and clear situation of deprivation of fair justice, the transfer power should not be invoked. This case is not perceived to be one of those exceptional categories.

Accused/Journalist involved in property disputes:

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Teachers after superannuation may continue in service for entire academic year

University Statute on Superannuation:

The appellants relied on Statute No. 16.24 of the University, applicable to them,contending that they were entitled to continue beyond the last date of the month in which each of them attained the age of superannuation, till the “30th of June following”in terms of that provision. That statute reads as follows:

“16.24 (1) The age of superannuation of a teacher of the University, whether governed by the new scale of pay or not shall be sixty-five years.(2) No extension in service beyond the age of superannuation shall be granted to any teacher after the date of commencement of these statutes.provided that a teacher whose date of superannuation does not fall on June 30, shall continue on service till the end of the academic session, that is June 30, following and will be treated as on re-employment from the date immediately following his superannuation till June, 30, following.(Provided further that such physically and mentally fit teachers shall be reappointed for a further period of two years, after June, 30, following the date of their superannuation as were imprisoned for taking part in freedom struggle of 1942 and are getting freedom fighters pension) Provided also that the teachers who were re-appointed in accordance with the second proviso as it existed prior to the commencement to the Kumaun University (Twenty-third amendment) First Statute, 1988 and a period ofone year has not elapsed after the expiry of the period of their reemployment, may be considered for re-appointment for a further period of one year.”

Teachers to continue till June 30th

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Scope of Right to Protest in India

Shaheen Bagh Agitation was not warranted:

India, as we know it today, traces its foundation back to when the seeds of protest during our freedom struggle were sown deep, to eventually flower into a democracy. What must be kept in mind, however, is that the erstwhile mode and manner of dissent against colonial rule cannot be equated with dissent in a self-ruled democracy.

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Maintainability of Special Leave Petition against an Order passes in Review

Consistency is the cornerstone of the administration of justice.

It is consistency which creates confidence in the system and this consistency can never be achieved without respect to the rule of finality. It is with a view to achieve consistency in judicial pronouncements, the courts have evolved the rule of precedents, principle of stare decisis, etc. These rules and principle are based on public policy.

The rationale for not entertaining a special leave petition challenging the order of High Court rejecting the review petition when main order in the writ petition is not challenged can be easily comprehended.

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Exercise of statutory discretion by Government has to be in public interest.

The mighty says to the meek that you cannot command me to act; I shall act if f like, I shall not act if I choose not to act. The meek says that I possess the strength of law to give you the command; the law, which is no respector of person and which does not allow anybody to rise so high as to be above it.
State Of Orissa vs Janamohan Das, AIR 1993 Ori 180

Discretion of the Government:

Cuttack was calm when the day dawned. Who had known that a “disaster of unprecedented proportions” was going to strike and disturb placid waters of the Mahanadi and Katha-jodi? But it took place. A man-made tragedy took a great toll 124 deaths, according to the State), and it was our well known hooch tragedy. Not that the people of this State have not know a about such tragedies taking place in the past, but then, it was the great dimension of the tragedy which stunned the people, so much so that they almost lost faith in all instrumentalities of the State. People started thinking whether they had been left to the wolves to be killed. The question with which we are seized is about the responsibility of the State to find out why spurious liquor took the toll of 124 lives, and what steps are required to be taken to stop recurrence of such a heinous crime, at the root of which lies the naked greed for money and nothing else.

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Bail to an accused not arrested during investigation

Allegations of Cheating

Learned counsel for the complainant vehemently contended that the appellant had duped him of a considerable amount of money and that looking to the seriousness of the allegations against him, this was not a case in which the appellant ought to be granted bail by this Court. Learned counsel supported the view taken by the trial judge as well as by the Allahabad High Court. He argued that given the conduct of the appellant in not only cheating the complainant and depriving him of a considerable sum of money but thereafter issuing a cheque for which payment was stopped made it an appropriate case for dismissal.

Conduct of Investigation:

During the entire period of investigations which appear to have been spread over seven months, the appellant was not arrested by the investigating officer. Even when the appellant apprehended that he might be arrested after the charge sheet was filed against him, he was not arrested for a considerable period of time. When he approached the Allahabad High Court for quashing the FIR lodged against him, he was granted two months time to appear before the trial judge. All these facts are an indication that there was no apprehension that the appellant would abscond or would hamper the trial in any manner. That being the case, the trial judge, as well as the High Court ought to have judiciously exercised discretion and granted bail to the appellant. It is nobody’s case that the appellant is a shady character and there is nothing on record to indicate that the appellant had earlier been involved in any unacceptable activity, let alone any alleged illegal activity.

Month: October 2020

Police Summoning a person from New Delhi to Kolkata on a facebook post.

Facebook post implying State bias towards a community:

Reasonable Exercise of power of summoning:

The court must safeguard the fundamental right to the freedom of expression under Article 19(1)(a) of the Constitution. There is a need to ensure that the power under section 41A is not used to intimidate, threaten and harass.

Full Order of Supreme Court: