Civil court has no jurisdiction to interfere with acquisition of land

Forum for judicial review of Land Acquisition:

Section 9 of CPC exclude jurisdiction of Civil Court:

Futile attempts have been made by respondent no. 4 only to see that the allottees are harassed and to keep the litigation pending. After the final notification, an award was passed and compensation was deposited. Possession was taken and the same was evidenced by the Panchanama prepared as far back as 23.09.1986. Notification under Section 16(2) of the Land Acquisition Act was issued on 20.01.1987 disclosing the factum of taking possession of the land in question. Attempt made by respondent no. 4 for getting the disputed land de-notified has also failed as far back as 15.01.1993, when the State Government has rejected the representation of respondent no. 4 seeking de-notification. The writ petition filed by respondent no. 4 challenging such order of dismissal of the representation was also dismissed. Despite the same, respondent no. 4 is pursuing the matter by filing writ petition after writ petition. It is a clear case of abuse of process of law as well as the Court.

Abuse of process of Court:

Continue reading “Civil court has no jurisdiction to interfere with acquisition of land”

Offence under SC/ST Prevention of Atrocities Act

SC/ST Prevention of Atrocities Act as it existed prior to Amendment of 2016:

The gravamen of Section 3(2)(v) of SC/ST Prevention of Atrocities Act is that any offence, envisaged under Indian Penal Code punishable with imprisonment for a term of ten years or more, against a person belonging Scheduled Caste/Scheduled Tribe, should have been committed on the ground that “such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member”. Prior to the Amendment Act 1 of 2016, the words used in Section 3(2)(v) of the SC/ST Prevention of Atrocities Act are “……on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe”.

Effect of Amendment of 2016:

Continue reading “Offence under SC/ST Prevention of Atrocities Act”

Summon to Investigator to produce all material collected during investigation.

Summons to produce document or other thing:

Criminal trial:

It is settled law that at the stage of framing of charge, the accused cannot ordinarily invoke Section 91 (of Cr.P.C.). However, the court being under the obligation to impart justice and to uphold the law, is not debarred from exercising its power, if the interest of justice in a given case so require, even if the accused may have no right to invoke Section 91. To exercise this power, the court is to be satisfied that the material available with the investigator, not made part of the chargesheet, has crucial bearing on the issue of framing of charge.

Summon at the stage of framing of charge:

In State of Orissa versus Debendra Nath Padhi (2005) 1 SCC 568, it was observed: Continue reading “Summon to Investigator to produce all material collected during investigation.”

Eviction under Delhi Rent Act.

Delhi Rent Act to prevail upon NDMC Act.

Effect of arrears of House tax:

The question is whether non-payment of property tax recoverable from the tenant as rent can be a ground for his eviction/ejectment from the premises. The Rent Act is beneficial and also restrictive in nature. It is primarily an Act to provide for the control of rents and evictions. It is settled that while interpreting the provisions of this Act, the Courts are under a legal compulsion to harmoniously read the provisions of the Act so as to balance the rights of the landlord and the obligations of the tenant towards each other, keeping in mind that one of the objects of the legislature while enacting the Rent Act was to curb the tendency of the greedy landlords to throw out the tenants paying lower rent and to rent out the premises at the market rate.

Delhi Rent Act:

Continue reading “Eviction under Delhi Rent Act.”

Road safety rules and policy in India

Directions given by Supreme Court of India on Road Safety:

1. Road Safety Policy:

Most of the State Governments and Union Territories have already framed a Road Safety Policy. Those that have not framed such a policy namely Assam, Nagaland, Tripura, Delhi, Lakshadweep, Dadra and Nagar Haveli and Andaman and Nicobar Islands, must now formulate the Road Safety Policy by 31st January, 2018. All States and Union Territories are expected to implement the Road Safety Policy with all due earnestness and seriousness.

2. State Road Safety Council:

All States have already constituted a Road Safety Council in terms of Section 215 of the Motor Vehicles Act, 1988. Continue reading “Road safety rules and policy in India”

Criminal Trial must be conducted on day to day basis

Adjournment in Criminal Trial not permissible.

Section 309 o Cr. P.C. is as under:

Power to postpone or adjourn proceedings.
(1) In every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded.
(2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody:

Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time: Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing:

Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him.]

Explanation 1.- If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand.

Explanation 2.- The terms on which an adjournment or postponement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused.

Mandate of day to day trial

12. Thus, the legal position is that once examination of witnesses started, the court has to continue the trial from day to day until all witnesses in attendance have been examined (except those whom the party has given up). The court has to record reasons for deviating from the said course. Even that is forbidden when witnesses are present in court, as the requirement then is that the court has to examine them. Only if there are “special reasons”, which reasons should find a place in the order for adjournment, that alone can confer jurisdiction on the court to adjourn the case without examination of witnesses who are present in court.

Continue reading “Criminal Trial must be conducted on day to day basis”

Forum to decide Validity of Registration of Trade Mark

Jurisdiction of Civil Court is barred:

Section 111 of Trade Marks Act, 1958:

Section 111 of the 1958 Act specifically provides that if a proceeding for rectification of the register in relation to the trade mark of either the plaintiff or the defendant is pending before the Registrar or the High Court, as may be, and a suit for infringement is filed wherein the aforesaid plea is raised either by the defendant or by the plaintiff, the suit shall remain stayed. Section 111 further provides if no proceedings for rectification are pending on the date of filing of the suit and the issue of validity of the registration of the plaintiff’s or the defendant’s trade mark is raised/arises subsequently and the same is prima facie found to be tenable, an issue to the aforesaid effect shall be framed by the Civil Court and the suit will remain stayed for a period of three months from the date of framing of the issue so as to enable the concerned party to apply to the High Court for rectification of the register. Section 111(2) of the 1958 Act provides that in case an application for rectification is filed within the time allowed the trial of the suit shall remain stayed. Sub-Section (3) of Section 111 provides that in the event no such application for rectification is filed despite the order passed by the Civil Court, the plea with regard to validity of the registration of the trade mark in question shall be deemed to have been abandoned and the suit shall proceed in respect of any other issue that may have been raised therein. Sub-section (4) of Section 111 provides that the final order as may be passed in the rectification proceeding shall bind the parties and the civil court will dispose of the suit in conformity with such order insofar as the issue with regard to validity of the registration of the trade mark is concerned.

Continue reading “Forum to decide Validity of Registration of Trade Mark”

National Litigation Policy to reduce litigation with Government

Unmindful litigation by Government Departments:

The propensity of Government Departments and public authorities to keep litigating through different tiers of judicial scrutiny is one of the reasons for docket explosion. The Income Tax Department of the Government of India is one of the major litigants. There are two departmental scrutinies at the level of the Assessing Officer and the Commissioner of Income Tax (Appeals) and thereafter an independent judicial scrutiny at the Income Tax Appellate Tribunal (hereinafter referred to as the ‘ITAT’) level followed by the legal issue which can be inquired into by the High Courts. The last tier is, of course, the jurisdiction under Article 136 of the Constitution of India before the Supreme Court.

Mindful of the phenomenon of the docket explosion and the rising litigation in the country, the Union of India in order to ensure the conduct of responsible litigation framed what is today known as the National Litigation Policy, to bring down the pendency of cases and get meaningful issues decided from the judicial forums rather than multiple tiers of scrutiny just for the sake of it. The Government, being a litigant in well over 50 per cent of the cases, has to take a lead in not being a compulsive litigant. Continue reading “National Litigation Policy to reduce litigation with Government”

Restrictions on grant of bail under PMLA if valid

Section 45 of Prevention of Money Laundering Act is unconstitutional.

Section 45 of the 2002 Act, which was brought into force in 2005, originally read as follows:

“45. Offences to be cognizable and non- bailable.-

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless-

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail:

Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm, may be released on bail, if the Special Court so directs:

Provided further that the Special Court shall not take cognizance of any offence punishable under section 4 except upon a complaint in writing made by- (i) the Director; or (ii) any officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government by a general or special order made in this behalf by that Government.

(2) The limitation on granting of bail specified in clause (b) of sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.”

The change made by Section 45 is that, for the purpose of grant of bail, what was now to be looked at was offences that were punishable for a term of imprisonment of three years or more under Part A of the Schedule, and not offences under the 2002 Act itself. At this stage, Part A of the Schedule contained two paragraphs – Para 1 containing Sections 121 and 121A of the Indian Penal Code, which deal with waging or attempting to wage war or abetting waging of war against the Government of India, and conspiracy to commit such offences. Paragraph 2 dealt with offences under the Narcotic Drugs and Psychotropic Substances Act, 1985. Part B of the Schedule, as originally enacted, referred to certain offences of a heinous nature under the Indian Penal Code, which included murder, extortion, kidnapping, forgery and counterfeiting. Paragraphs 2 to 5 of Part B dealt with certain offences under the Arms Act 1959, Wildlife (Protection) Act 1972, Immoral Traffic (Prevention) Act, 1956 and the Prevention of Corruption Act, 1988. When the Act was originally enacted, it was, thus, clear that the twin conditions applicable under Section 45(1) would only be in cases involving waging of war against the Government of India and offences under the Narcotic Drugs and Psychotropic Substances Act. Even the most heinous offences under the Indian Penal Code were contained only in Part B, so that if bail were asked for such offences, the twin conditions imposed by Section 45(1) would not apply. Incidentally, one of the reasons for classifying offences in Part A and Part B of the Schedule was that offences specified under Part B would get attracted only if the total value involved in such offences was Rs.30 lakhs or more (under Section 2(y) of the Act as it read then). Thereafter, the Act has been amended several times. The amendment made in 2005 in Section 45(1) was innocuous and is not an amendment with which we are directly concerned. The 2009 Amendment further populated Parts A and B of the Schedule. In Part A, offences under Sections 489 A and B of the Indian Penal Code, relating to counterfeiting were added and offences under the Explosive Substances Act, 1908 and Unlawful Activities (Prevention) Act, 1967, which dealt with terrorist activities, were added. In Part B, several other offences were added from the Indian Penal Code, as were offences under the Explosives Act 1884, Antiquities and Arts Treasures Act 1972, Securities and Exchange Board of India Act 1992, Customs Act 1962, Bonded Labour System (Abolition) Act 1976, Child Labour (Prohibition and Regulation) Act 1986, Transplantation of Human Organs Act 1994, Juvenile Justice (Care and Protection of Children) Act 2000, Emigration Act 1983, Passports Act 1967, Foreigners Act 1946, Copyright Act 1957, Trademarks Act 1999, Information Technology Act 2000, Biological Diversity Act 2002, Protection of Plant and Farmers Rights Act 2001, Environmental Protection Act 1986, Water (Prevention and Control of Pollution Act) 1974, Air (Prevention and Control of Pollution Act) 1981 and Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms of Continental Shelf Act, 2002.

By the Amendment Act of 2012, which is Act 2 of 2013, a very important amendment was made to the Schedule by which the entire Part B offences were transplanted into Part A.

Unreasonable classification

The classification of three years or more of offences contained in Part A of the Schedule must have a reasonable relation to the object sought to be achieved under the 2002 Act. Continue reading “Restrictions on grant of bail under PMLA if valid”