Non supply of Enquiry Report does not vitiate order of dismissal

Effect of non-supply of Enquiry Report to dismissed employee:

Test of prejudice:

When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual.

Continue reading “Non supply of Enquiry Report does not vitiate order of dismissal”

Advertisements

Prison conditions for death row convicts

Death Row Convicts

“Prisoners awaiting death sentence are not suffering imprisonment but are merely in safe custody to suffer sentence of death”

In view of the disparities in implementing the already existing laws, Supreme Court directed to frame the following guidelines for safeguarding the interest of the death row convicts.

1. Solitary Confinement:

Solitary or single cell confinement prior to rejection of the mercy petition by the President is unconstitutional. Almost all the prison Manuals of the States provide necessary rules governing the confinement of death convicts. The rules should not be interpreted to run counter to the above ruling and violate Article 21 of the Constitution. Continue reading “Prison conditions for death row convicts”

Death Row Convict and successive mercy petitions

Judicial Review of rejection of mercy petition.

Can an accused keep on filing successive mercy petitions and claim right to challenge it’s rejection in court with a hiatus on death warrant for 14 days in between?

The instant petition is a clear expose of the manipulation of the principle of rule of law. The petitioner was tried for which is known as “Bombay Blast Case’ and stood convicted in the year 2007. Almost 22 years have passed since 1993 when the incident occurred. We have not perceived any error in the issue of the death warrant as per our order dated 29.07.2015 passed in W.P. (Crl) No.129 of 2015. The only exception which has been enthusiastically carved out by  learned counsel is that they are entitled to get 14 days’ time to assail the rejection of the mercy petition.

Continue reading “Death Row Convict and successive mercy petitions”

Framing of Charge

Application of mind

Framing of charge is the first major step in a criminal trial where the court is expected to apply its mind to the entire record and documents placed therewith before the court. Taking cognizance of an offence has been stated to necessitate an application of mind by the court but framing of charge is a major event where the court considers the possibility of discharging the accused of the offence with which he is charged or requiring the accused to face trial. There are different categories of cases where the court may not proceed with the trial and may discharge the accused or pass such other orders as may be necessary keeping in view the facts of a given case.

Continue reading “Framing of Charge”

Arrest in “harassment for dowry” cases

Section 498-A of Penal Code.

Section 498A was inserted in the statute with the laudable object of punishing cruelty at the hands of husband or his relatives against a wife particularly when such cruelty had potential to result in suicide or murder of a woman as mentioned in the Statement of Objects and Reasons of the Act 46 of 1983. The expression ‘cruelty’ in Section 498A covers conduct which may drive the women to commit suicide or cause grave injury (mental or physical) or danger to life or harassment with a view to coerce her to meet unlawful demand.8 It is a matter of serious concern that large number of cases continue to be filed under Section 498A alleging harassment of married women.

Big relief to relatives of accused:

Many of such complaints are not bona fide. At the time of filing of the complaint, implications and consequences are not visualized. At times such complaints lead to uncalled for harassment not only to the accused but also to the complainant. Uncalled for arrest may ruin the chances of settlement.

Directions by Supreme Court:

Continue reading “Arrest in “harassment for dowry” cases”

Election Law: Withdrawal of Nomination.

Proper procedure or withdrawal of a contesting candidate.

Relevant law is section 37 of Representation of Peoples Act, which is as under:

37. Withdrawal of candidature.—
(1) Any candidate may withdraw his candidature by a notice in writing which shall contain such particulars as may be prescribed and shall be subscribed by him and delivered before three O’clock in the afternoon on the day fixed under clause (c) of section 30 to the returning officer either by such candidate in person or by his proposer,  or election agent who has been authorised in this behalf in writing by such candidate.
(2) No person who has given a notice of withdrawal of his candidature under sub-section (1) shall be allowed to cancel the notice. 3[(3) The returning officer shall, on being satisfied as to the genuineness of a notice or withdrawal and the identity of the person delivering it under sub-section (1), cause the notice to be affixed in some conspicuous place in his office.

Election result in case of fraudulent withdrawal:

When there are only two contesting candidates, and one of them is under a statutory disqualification, votes cast in favour of the disqualified candidate may be regarded as thrown away, irrespective of whether the voters who voted for him were aware of the disqualification. This is not to say that where there are more than two candidates in the field for a single seat, and one alone is disqualified, on proof of disqualification all the votes cast in his favour will be discarded and the candidate securing the next highest number of votes will be declared elected. In such a case, question of notice to the voters may assume significance, for the voters may not, if aware of the disqualification have voted for the disqualified candidate. Continue reading “Election Law: Withdrawal of Nomination.”

Doctrine of lis pendens in India

Definition of lis pendens:

Lis pendens literally means a pending suit, and the doctrine of lis pendens has been defined as the jurisdiction, power, or control which a court acquires over property involved in a suit pending the continuance of the action, and until final judgment therein”. It was observed there “Expositions of the doctrine indicate that the need for it arises from the very nature of the jurisdiction of Courts and their control over the subject-matter of litigation so that par- ties litigating before it may not remove any part of the subject matter outside the power of the Court to deal with it and thus make the proceedings infructuous.

Doctrine of lis pendens is statutorily incorporated in Section 52 of Transfer of Property Act, 1882 of India, which is as under: Continue reading “Doctrine of lis pendens in India”

Legislative intent is presumed to be reasonable.

Principles of Interpretation

Presumption is that legislature acts by reason and justice.

It is proper to assume that the lawmakers who are the representatives of the people enact laws which the society considers as honest, fair and equitable. The object of every legislation is to advance public welfare. In other words as observed by Crawford in his book on Statutory Constructions the entire legislative process is influenced by considerations of justice and reason. Justice and reason constitute the great general legislative intent in every piece of legislation. Consequently where the suggested construction operates harshly, ridiculously or in any other manner contrary to prevailing conceptions of justice and reason, in most instances, it would seem that the apparent or suggested meaning of the statute, was not the one intended by the law-makers. In the absence of some other indication that the harsh or ridiculous effect was actually intended by the legislature, there is little reason to believe that it represents the legislative intent.

“We are unable to persuade ourselves to believe that the legislature intended to ignore the rights of persons having legal title to possession and wanted to make a gift of any building to a trespasser howsoever recent the trespass might have been if only he happened to be in physical possession of the building on the date of vesting. We are also unable to discern any legislative policy in support of that construction.”

Bhudan Singh vs Nabi Bux, AIR 1970 SC 1880, (1969) 2 SCC 481, 1970 2 SCR 10

Examination of a witness at any stage u/s 311 of Cr.P.C.

Power to summon material witness, or examine person present:

Section 311 of Criminal Procedure Code of 1973 is as under:

Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or. recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.

Exercise of power to recall any or to summon any person:

In Jamatraj Kewalji Govani Vs The State Of Maharashtra Air 1968 Sc 178: 1968 Cri LJ 231 was a case arising out of Section 540 of old Cr. P. C. and in respect of prosecution under Section 135 of Customs Act. A custom inspector searched the shop of accused and seized certain watches from the accused which were alleged to be smuggled. Continue reading “Examination of a witness at any stage u/s 311 of Cr.P.C.”

Appeal against acquittal under Negotiable Instruments Act.

Dismissal of complaint of dishonour of cheque.

What is the remedy for complainant in case of dismissal of complaint filed under section 138 of Negotiable Instruments Act?

To file an appeal under section 372 of Criminal Procedure Code, 1973 or to seek leave to appeal under section 378 of Cr.P.C.?
If the victim also happens to be the complainant and the appeal is against acquittal, he is required to take leave as provided in Section 378 of the Criminal Procedure Code but if he is not the complainant, he is not required to apply for or obtain any leave. For the appeal against inadequacy of compensation or punishment on a lesser offence, no leave is necessary at the instance of avictim, whether he is the complainantor not.
[Source: Bhavuben Dineshbhai Makwana vs. State of Gujarat, 2013Crl.L.J. 4225 (Guj)(FB)]
The complainant in a case under Section 138 of the Negotiable Instruments Act cannot challenge the order of acquittal before the Sessions Court under the proviso to Section 372 of the Cr.P.C. and his remedy is only to file an appeal to the High Court with special leave under Section 378 (4) Cr.P.C.
(Source: Shibu Joseph vs. Tomy K.J, ILR 2013 (4) Ker.866)
Thus the remedy available to the complainants under Section 138 N.I. Act against order of acquittal is only to seek special leave before filing an appeal under Section 378 (4) Cr.P.C. before the High Court. In the instant case, the appellant has not sought any such leave. Consequentially the appeals filed by the appellant are dismissed as not maintainable.
[Source: THE BHAJANPURA COOPERATIVE URBAN VS. SUSHIL KUMAR, (Delhi High Court)]