Fine without imprisonment if sufficient in the case of road rage?

Navjot Singh Sidhu road rage case:

Navjot Singh Sidhu

A dispute arose on the right of way between the accused and the deceased and respondent No.1 (the first accused) came out of his vehicle, pulled out the deceased from his vehicle and inflicted fist blows. It was alleged that the car keys of the deceased’s car were removed by the accused and fled from the scene of the occurrence. PW-3 and PW-4 took the deceased in a rickshaw to the hospital where the doctors announced that Gurnam Singh was dead.

The punishment under Section 323 of the IPC has been prescribed as a sentence of a term which may extend to one year or a fine which may extend to Rs.1,000/- or both. In the present case, only the fine has been imposed. The question, thus, to be analysed is whether in the given
factual scenario, grave error can be said to have been committed on the issue of sentence by not punishing with imprisonment of any term whatsoever.

Continue reading “Fine without imprisonment if sufficient in the case of road rage?”

Right to wear Hijab in School

Can school impose condition of a Uniform for it’s students?

Fundamental Rights are either in nature of the absolute right or relative right. Absolute rights are non-negotiable. Relative rights are always subject to the restriction imposed by the Constitution. The religious rights are relative rights.

The dominant interest represents the larger interest and the subservient interest represents only individual interest. If the dominant interest is not allowed to prevail, subservient interest would march over the dominant interest resulting in chaos. The dominant interest, in this case, is the management of the institution. If the management is not given free hand to administer and manage the institution that would denude their fundamental right.

The petitioners cannot seek imposition of their individual right as against the larger right of the institution. It is for the institution to decide whether the petitioners can be permitted to attend the classes with the headscarf and full sleeve shirt. It is purely within the domain of the institution to decide on the same. The Court cannot even direct the institution to consider such a request.

Full Judgment:

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Chief Minister picket at police Station and Law Minister surrounds court with thousands of supporters when it grants bail.

West Bengal’s Chief Minister and Law Minister’s Mobocracy:

Arrest of Ministers and members of Legislative assembly of West Bengal by CBI on charges of corruption in an investigation directed by High Court. Grant of Bail of Special Court to the accused. Chief Minister entering the office of CBI and stayed there for 6 hours allegedly demanding release of arrested persons. Request by CBI for transfer of Trial.

Law Minister of the State along with supporters mobbed the Court where the accused were to be presented along with charge sheet. The Law Minister remained in the Court complex throughout the day till the arguments were heard. In these facts and circumstances if any order is passed by the Court the same will not have faith and confidence of the people in the system of administration of justice. Confidence of the people in the justice system will be eroded in case such types of incidents are allowed to happen in the matters where political leaders are arrested and are to be produced in the Court. Public trust and confidence in the judicial system is more important, it being the last resort. They may have a feeling that it is not rule of law which prevails but it is a mob which has an upper hand and especially in a case where it is led by the Chief Minister of the State in the office of CBI and by the Law Minister of the State in the Court Complex. If the parties to a litigation believe in Rule of Law such a system is not followed.

Order of Division Bench dated 17 May 2021:

In our opinion aforesaid facts are sufficient to take cognizance of the present matter with reference to the request of the learned Solicitor General of India for examination of the issue regarding transfer of the trial. We are not touching the merits of the controversy but the manner in which pressure was sought to be put will not inspire confidence of the people in the rule of law. As during the period when the arguments were heard, the order was passed by the Court below, we deem it appropriate to stay that order and direct that the accused person shall be treated to be in judicial custody till further orders.

Read Full Judgement of Calcutta High Court:
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Jurisdiction of Company Law Tribunal to interfere with Commercial Decision

Insolvency and Bankruptcy Code, 2016:

An enquiry under Section 31, is the limited enquiry that the Adjudicating Authority is permitted is, as to whether the resolution plan provides:

i) the payment of insolvency resolution process costs in a specified manner in priority to the repayment ofother debts of the corporate debtor,

(ii) the repayment of the debts of operational creditors in prescribed manner,

(iii) the management of the affairs of the corporate debtor,

(iv) the implementation and supervision of the resolution plan,

(v) the plan does not contravene any of the provisions of the law for the time being in force,

(vi) conforms to such other requirements as may be specified by the Board.

Scope of Judicial Review:

Appeal is a creature of statute and that the statute has not invested jurisdiction and authority either with NCLT or NCLAT, to review the commercial decision exercised by CoC of approving the resolution plan or rejecting the same.

Power of Civil Court to split suit into arbitrable and non-arbitrable dispute?

Section 8 of Arbitration and Conciliation Act, 1996 is as under:

Power to refer parties to arbitration where there is an arbitration agreement. (1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.

(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.

(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.”

For interpretation of Section 8, Section 5 would have no bearing because it only contemplates that in the matters governed by Part-I of the Act, Judicial authority shall not intervene except where so provided in the Act. Except Section 8, there is no other provision in the Act that in a pending suit, the dispute is required to be referred to the arbitrator. Further, the matter is not required to be referred to the arbitral Tribunal, if (1) the parties to the arbitration agreement have not filed any such application for referring the dispute to the arbitrator; (2) in a pending suit, such application is not filed before submitting first statement on the substance of the dispute; or (3) such application is not accompanied by the original arbitration agreement or duly certified copy thereof. This would, therefore, mean that Arbitration Act does not oust the jurisdiction of the Civil Court to decide the dispute in a case where parties to the Arbitration Agreement do not take appropriate steps as contemplated under sub- sections (1) & (2) of Section 8 of the Act.

Continue reading “Power of Civil Court to split suit into arbitrable and non-arbitrable dispute?”

Criticizing Government is illegal in State of Kerala

Free Speech???

Kerala Government has issued an ordinance amending the Police Act whereby any act of threatening, abusing, humiliating or defaming any person is made punishable. However there is no specific definition of these words chosen from moral vocabulary. Therefore the concerned police officer will be free to define these words and make arrests as per his or her whim and fancy.

Full Text of Ordinance

ORDINANCE No. 79 OF 2020

THE KERALA POLICE (AMENDMENT) ORDINANCE, 2020

Promulgated by the Governor of Kerala in the Seventy-first Year of the Republic of India.

AN
ORDINANCE
further to amend the Kerala Police Act. 2011.

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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?

Continue reading “What is a shared residence under Domestic Violence Act.”

General Clauses Act, 1897: A Commentary.

General Clauses Act is the interpretation law of India.

General Clauses Act, 1897 is the official Interpretation Statute containing the rules for interpretation of statutes in India. This book contains section-wise detailed commentary with reference to case law about each Section of this Act. A must have book for practicing lawyers as well as those jurists interested in development of law. This is a section by section, Commentary on General Clauses Act, 1897.

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Law of Joint Property in India

Law of Joint Property, it’s Ownership and Partition:

Law of Joint Property and it's Partition
Joint Property and it’s Partition

Right to own property in India dates back to over 5000 years and if we go by ancient scriptures, at least 2000 years. If Indians call their country motherland, they call the land they own, as their mother; the provider of all needs, from nourishment to shelter. In other words the attachment to land is a matter of emotion and not purely of law.

It is for this reason, the British Government as the colonial rulers over India in 1893, enacted a unique law called Partition Act, 1893. This law along with other laws and the ancient principles of Hindu Law govern the ownership of property which is owned by by more than one person.
This book deals with all the nuances of law relating to ownership, enjoyment and partition of this property including the principles on which the property can be forced to be sold by public auction by court.

Click at any of the following links to read free sample of this book about Joint Property:

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Ex Finance Minister Chidambram is not entitled to bail.

The background of P. Chidambram:

P.Chidambram is a Senior Advocate practicing in the Hon’ble Supreme Court of India with 49 years of standing at the Bar, of which 35 years as a Senior Advocate. Currently, he is Member of Parliament (RS). He was formerly Union Minister of Finance (1996-1998, 2004-2008 and 2012-2014) and Union Minister of Home Affairs (2008-2012). He is a member of the Indian National Congress, which is the principal Opposition Party in Parliament, and has been in public life for over 40years. The Petitioner is also a senior Spokesperson of the Congress Party as well as a prominent and widely-read columnist.

The allegations against P. Chidmbram:

It is alleged that during the period from 15.11.2016 to 19.11.2016 huge cash to the tune of Rs. 31.75 crores was deposited in eight bank accounts in Kotak Mahindra Bank in the accounts of “group of companies”. The statements recorded during investigation have evidentiary value under Section 50 PMLA. Prima facie, the version given by them is in consonance with the prosecution case.

The stated activity allegedly indulged into by the accused named in the commission of predicate offence is replete with mens rea. In that, the concealment,possession, acquisition or use of the property by projecting or claiming it as untainted property and converting the same by bank drafts, would certainly come within the sweep of criminal activity relating to a scheduled offence. That would come within the meaning of Section 3 and punishable under Section 4 of the Act. Continue reading “Ex Finance Minister Chidambram is not entitled to bail.”