LAWTELLER GETS INBA's AWARD

During the year 2018, the Supreme Court has given many landmark verdicts like law upholding
'live band music', 'cabaret dance' and 'discotheque in restaurants; foreign law firms/lawyers
cannot practice in India; medical reimbursement claim cannot be denied merely because the
treatment was in non-empanelled hospital of central government; right to life under Art. 21
of the Constitution of India includes right to die with dignity; consent of family or community
not necessary once two adult individuals agree to enter into wedlock; right to retire is not
supreme than right to life; judges cannot take role of expert in academic matters and
legislatures cannot be debarred from practising as advocates.

The Supreme Court even in December 2018 held that "death row convicts should be allowed
to meet with family, friends, lawyers and mental health professionals for a "reasonable period
of time with reasonable frequency" like any other prisoner. The Court said, "prison manuals
or laws depriving condemned prisoners of their basic rights should be nixed." Another
judgment given is terming the rights of the rising elderly population of the country in an
'emerging situation' not envisaged even in the Constitution. The government also noted
that there had been a steady rise in the population of senior citizens in India. It submitted
in court that the number of elderly persons had increased from 1.98 crore in 1951 to 7.6 crore
in 2001 and 10.38 crore in 2011. It is projected that the number of 60+ in India would increase
to 14.3 crore in 2021 and 17.3 crore in 2026.

December, 2018 election verdict has suf ficiently demonstrated to those in power, the
diminishing return of fanaticism. The loss of 3 states in the Hindi heartland comes as a
reality check for the ruling party. Congress has stormed to power in Madhya Pradesh,
Chhattisgarh and Rajasthan largely on the back of farmer discontent against government.
Farmers across the country are not happy with what has happened to their income and this
is increasingly getting reflected in their protests, though the government describes the
protests and farmers spilling milk and dumping onion on roads, as political drama; but price
policy has its limitation.

Lawteller enters into 27th year of publication. Indian National Bar Association in its 7th
Annual International Conference held on 26th November, 2018 at New Delhi awarded Lawteller
- The Prestigious Legal Magazine of the Year Award.

Lawteller wishes its readers a very happy new year 2019!

EDITOR
CRIMINAL LAWS
TO CONSTITUTE OFFENCE UNDER
CORRUPTION ACT THERE MUST BE
RECEIPT OF GRATIFICATION
T HE CASE OF THE PROSECUTION IS THAT PW-
4 SUMEET Asthana gave Ex.P1-complaint to
Vigilance Officer, Indian Airlines, Hyderabad, stating
that he had approached the Indian Airlines Office on
20.06.1995 for reservation of a seat in Flight I.C. No.
948 for his travel to Madras on 21.06.1995 but there
was a long waiting list and that an employee of the
Indian Airlines, whom he does not know, had told him
contact Babji (A-1) of M/s Varun Movies at Srinagar
Colony, Hyderabad. PW-4 had approached A-1 on
01.06.1995 and A1 told him that there was long waiting
list but he can arrange a confirmed ticket and
demanded Rs.2,100/- as against the actual fair of Rs.
1646/-. On receipt of the said complaint PW-1, the
Manager, Vigilance, Indian Airlines, Hyderabad, gave
report Ex.P-2 to the Superintendent of Police, CBI
Hyderabad stating that A-1 and A-2 are cheating the
public.
Based on the evidence of PW -4 and PW-2 who
accompanied PW-4, the Trial Court has convicted the
appellant under Section 8 of the Prevention of
Corruption Act (for short the 'Act') which was
confirmed by the High Court.
Against the judgement of the High Court special leave
petition was filed. The Supreme Court accepted the
appeal and acquitted the appellant.
The operative part of the judgment reads as under:-
In order to establish the offence under Section 8 of
the Prevention of Corruption Act it must be proved:
(i) That the accused accepted or obtained, or
agreed to accept, or attempted to obtain, from
someone;
(ii) For himself or for some other person;
(ii) Any gratification whatever;
4 I January 2019
(iv) As a motive or reward for inducing by
corrupt or illegal means any 'public servant'
to do or forbear to do any official act or to show
favour or render any service to any of the
persons specified in the section.
TTTTTTT
In order to constitute an offence under Section 8 of
the Act, three things are essential. In the first place
there must have been the solicitation or receipt of the
gratification. Secondly, such gratification must have
been asked for or paid as a motive or reward for
inducing a public servant to do an act or do a favour
or render some service as stated under Section 8 of
the Act. In the present case, the evidence adduced by
the prosecution is vague for whom the appellant had
demanded the money and whether the person for
whom the appellant demanded and received the money
is a public servant. Though the receiver of the money,
like in the present case may not be a public servant,
the prosecution has to establish by convincing
evidence that the amount must have been received for
inducing a public servant for doing something by that
public servant in his official capacity . So far as
confirmation of the seat in the Indian Airlines, there
may be persons in the middle who may be a public
servant or a travel agency or others. In the absence
of convincing evidence to show that the appellant had
received the money from PW-4, to induce a public
servant to get the confirmation of the ticket, the
conviction of the appellant under Section 8 of the PC
Act cannot be sustained. In the result the appeal is
allowed and the appellant is acquitted.
TTTTTTT
Reference : Supreme Court. Babji v. State of Andhra
Pradesh, criminal appeal no. 2159 of 2009.
—————
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PUBLIC LAW REMEDY REQUIRES GRANT
OF COMPENSATION IN CASE OF
UNNECESSARY ARREST
T HE APPELLANT, A SEPTUAGENARIAN, A
FORMER SCIENTIST OF the Indian Space
Research Organisation (ISRO), has assailed the
judgment and order passed by the Division Bench
of the High Court of Kerala whereby it has
overturned the decision of the learned single Judge
who had lancinated the order of the State
Government declining to take appropriate action
against the police officers on the grounds of delay
and further remitted the matter to the Government.
To say the least, the delineation by the Division
Bench is too simplistic.
The exposé of facts very succinctly put is that on
20.01.1994, Crime No.225/94 was registered at
Vanchiyoor Police S tation against one Mariam
Rasheeda, a Maldivian National, under Section 14
of the Foreigners Act, 1946 and paragraph 7 of the
Foreigners Order. The investigation of the case was
conducted by one S. Vijayan, the respondent no. 6
herein, who was the then Inspector , Special Branch,
Thiruvananthapuram.
Mariam Rasheeda was arrested and sent to judicial
custody on 21.10.1994. Her custody was obtained
by the Police on 03.11.1994 and she was
interrogated by Kerala Police and Intelligence
Bureau (IB) officials. Allegedly, during interrogation,
she made certain 'confessions' which led to the
registration of Crime No. 246/1994, Vanchiyoor
Police Station on 13.11.1994 under Sections 3 and 4
of the Indian Official Secrets Acts, 1923, alleging
that certain official secrets and documents of Indian
Space Research Organisation (ISRO) had been
leaked out by scientists of ISRO.
Another Maldivian National Fousiya Hasan along
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FUNDAMENTAL RIGHT
with Mariam Rasheeda was arrested in Crime No.
246/1994. On 15.11.1994, investigation of both the
cases was taken over by the Special Investigation
Team (SIT) headed by one Mr . Siby Mathews,
respondent no. 1 herein, who was the then D.I.G .
Crime of Kerala Police. On 21.11.1994, Sri D.
Sasikumaran, a scientist at ISRO, was arrested and
on 30.11.1994, S. Nambi Narayanan, the appellant
herein, was arrested along with two other persons.
Later, on 04.12.1994, consequent to the request of
the Government of Kerala and the decision of the
Government of India, the investigation was
transferred to the Central Bureau of Investigation
(CBI), the respondent no. 4 herein.
After the investigation, the CBI submitted a report
before the Chief Judicial Magistrate (CJM),
Ernakulam, under Section 173(2) of Cr .P.C. stating
that the evidence collected indicated that the
allegations of espionage against the scientists at
ISRO, including the appellant herein, were not
proved and were found to be false. This report was
accepted vide court's order dated 02.05.1996 and all
the accused were discharged.
That apart, in the said report, addressed to the Chief
Secretary, Government of Kerala, the CBI, the
respondent no. 4 herein, had categorically
mentioned:
"Notwithstanding the denial of the accused
persons of their complicity , meticulous,
sustain and painstaking investigations
were launched by the CBI and every bit of
information allegedly given by the accused
in their earlier statement to Kerala Police/
IB about the places of meetings for
purposes of espionage activities, the
January 2019 I5
FUNDAMENTAL RIGHT
possibility of passing on the drawing/
documents of various technologies, receipt
of money as a consideration thereof etc.,
were gone into, but none of the information
could be substantiated."
The CBI in its report, as regards the role of the
respondent no.1 herein, went on to state:
"I, Sh. Siby Mathew was heading the
Special Investigation Team and was,
therefore, fully responsible for the conduct
of investigation in the aforesaid two cases.
Investigation conducted by the CBI has
revealed that he did not take adequate
steps either in regard to the thorough
interrogations of the accused persons by
Kerala Police or the verification of the so
called disclosure made by the accused
persons. In fact, he left the entire
investigation to IB surrendering his duties.
He ordered indiscriminate arrest of the ISRO
scientist and others without adequate
evidence being on record. It stressed that
neither Sh. Siby Mathew and his team
recovered any incriminating ISRO
documents from the accused persons nor
any monies alleged to have been paid to
the accused persons by their foreign
masters. It was unprofessional on his part
to have ordered indiscriminate arrest to top
ISRO scientists who played a key role in
successful launching of satellite in the
space and thereby caused avoidable mental
and physical agony to them. It is surprising
that he did not take any steps at his own
level to conduct investigation on the points
suggested by him. Since Sh. Mathew was
based at Trivandrum, there was no
justification for not having the searches
conducted in the officials' residential
premises of the accused Nambi Narayanan
was arrested by the Kerala Police on
6 I January 2019
30.11.1994.
Vi. Shri Siby Mathew and his team
miserably failed even in conducting
verification of the records of Hotels viz.,
Hotel foret Manor , Hotel Pankaj, Hotel
Luciya, etc., which were located at
Trivandrum to ascertain the veracity of the
statement of accused persons….
The above facts are being brought to the
notice of the competent authority for their
kind consideration and for such action as
deemed fit.
On 27.06.1996, the State Government of Kerala,
being dissatisfied with the CBI report, issued a
notification withdrawing the earlier notification
issued to entrust the matter to CBI and decided to
conduct re-investigation of the case by the State
Police. This notification for re-investigation was
challenged by the appellant herein, before the High
Court of Kerala, in O.P. No. 14248/1996-U but the
notification was upheld by the High Court of Kerala
vide order dated 27.11.1996.
Against the order of the Division Bench special
leave petition was filed. The Supreme Court
accepted the appeal to the extent that a Committee
should be constituted to take appropriate steps
against the erring officials for the said purpose. The
court constitute a Committee which shall be headed
by former Judge of Supreme Court. The Central
Government and the State Government were directed
to nominate one officer so that apposite action can
be taken. The Committee shall be provided with all
logistical facilities for the conduct of its business
including the secretarial staff by the Central
Government.
The operative part of the judgment reads as under:-
As stated earlier, the entire prosecution initiated
by the State police was malicious and it has caused
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tremendous harassment and immeasurable anguish
to the appellant. It is not a case where the accused
is kept under custody and, eventually , after trial,
he is found not guilty. The State police was dealing
with an extremely sensitive case and after arresting
the appellant and some others, the State, on its own,
transferred the case to the Central Bureau of
Investigation. After comprehensive enquiry, the
closure report was filed. An argument has been
advanced by the learned counsel for the State of
Kerala as well as by the other respondents that the
fault should be found with the CBI but not with the
State police, for it had transferred the case to the
CBI. The said submission is to be noted only to be
rejected. The criminal law was set in motion without
any basis. It was initiated, if one is allowed to say ,
on some kind of fancy or notion. The liberty and
dignity of the appellant which are basic to his
human rights were jeopardized as he was taken into
custody and, eventually, despite all the glor y of the
past, he was compelled to face cynical abhorrence.
This situation invites the public law remedy for
grant of compensation for violation of the
fundamental right envisaged under Article 21 of the
Constitution. In such a situation, it springs to life
with immediacy. It is because life commands self-
respect and dignity.
TTTTTTT
In the instant case, keeping in view the report of
the CBI and the judgment rendered by this Court
in K. Chandrasekhar (supra), suitable
compensation has to be awarded, without any trace
of doubt, to compensate the suffering, anxiety and
the treatment by which the quintessence of life and
liberty under Article 21 of the Constitution withers
away.
TTTTTTT
There has been some argument that there has been
no complaint with regard to custodial torture. When
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FUNDAMENTAL RIGHT
such an argument is advanced, the concept of
torture is viewed from a narrow perspective. What
really matters is what has been stated in D.K. Basu
v. State of W.B. [(1997) 1 SCC 416]. Emphasis has
been laid on mental agony when a person is
confined within the four walls of a police station
or lock up. There may not be infliction of physical
pain but definitely there is mental torment.
TTTTTTT
Reputation of an individual is an insegregable facet
of his right to life with dignity. Fundamental right
of the appellant under Article 21 has been gravely
affected.
TTTTTTT
Appellant, a successful scientist having national
reputation, has been compelled to undergo immense
humiliation. The lackadaisical attitude of the State
police to arrest anyone and put him in police
custody has made the appellant to suffer the
ignominy. The dignity of a person gets shocked
when psycho-pathological treatment is meted out
to him. A human being cries for justice when he feels
that the insensible act has crucified his self-respect.
That warrants grant of compensation under the
public law remedy.
TTTTTTT
We think it appr opriate to direct the State of Kerala
to pay a sum of Rs. 50 lakhs towards compensation
to the appellant and, accordingly, it is so ordered.
The said amount shall be paid within eight weeks
by the State.
TTTTTTT
Authorities relied upon : 217 Ala. 16 (Ala. 1927).
Reference : Supreme Court. S. Nambi Narayanan v.
Siby Mathews & Others Etc., civil appeal nos. 6637-
6638 of 2018.
—————
January 2019 I7
CRIMINAL LAWS
HIGH COURT FAILED TO APPRECIATE CRUCIAL
FACTORS, ORDER GRANTING BAIL SET ASIDE
T HE CASE OF THE PROSECUTION IN BRIEF, AS
SEEN FROM THE first information report and the
other connected material, is that on 26.10.2016 at about
09:00 a.m. while the deceased Mahendra Swain was
heading to his office in his vehicle accompanied by
the driver and his security guard, two unknown
assailants hurled bombs on the vehicle, and when the
inmates of the vehicle tried to escape, they opened
indiscriminate firing on the deceased, leading to his
death. According to the first information, the murder
was committed at the behest of certain people
including the respondent herein namely Mahimananda
Mishra. The incident was mainly on account of
business rivalry between the company of the
deceased and the company of the respondent. The
deceased was the Branch Manager of Seaways
Shipping and Logistics Limited, Paradeep Branch. The
respondent-accused is having a company, by name,
Orissa Stevedores Limited. It has been alleged that the
respondent had given death threats to the deceased
directly and through the brother of the deceased.
During the course of investigation, the police found
that the respondent went away to Thailand travelling
via Chennai, Delhi and Nepal, before he could be
arrested. Only after a Look Out Circular was issued,
he was traced to Thailand and was deported therefrom
to India, after which he was arrested.
During the course of investigation, the police have
recovered certain weapons as well as the motorcycle
used for commission of the murder. According to the
State, the investigation records so far, prima facie,
reveal that the respondent had paid certain amount of
money as advance amount for commission of the
murder. The State also relies upon a letter written by
the deceased to the Inspector, Paradeep Police Station,
stating that he fears for his life and the life of his
family, inasmuch as the respondent may make an
8 I January 2019
attempt to take their life. According to the State, the
said letter may be treated as a dying declaration of the
deceased.
The police have filed a charge sheet against the
respondent and others. However, four accused are
absconding. Further investigation is being proceeded
with with the permission of the Court.
The State took the plea that the respondent is the
kingpin of the conspiracy to murder the deceased and
the murder has taken place as per his directions and
plan. The preliminary charge sheet was filed for the
offences punishable under Sections 302 and 120B of
the Indian Penal Code, read with Sections 25(1)(B) and
27 of the Arms Act, as also under Sections 3 and 4 of
the Explosive Substances Act. They further brought
to the notice of the Court that the respondent, being
a powerful and rich person, may go to any extent to
influence the witnesses by intimidating them. The
very fact that he discreetly went outside India to avoid
arrest would, prima facie, reveal that he is a person
who can take the law into his hands. He may even
abscond in the future, which may delay the process
of justice. According to them, the witnesses are already
frightened and consequently may not go before the
Court to depose against the accused, in which event
justice may suffer.
Per contra, Shri Ranjit Kumar, learned Senior Advocate
appearing on behalf of the accused argued in support
of the judgment of the High Court. He contended that
though the respondent was released on bail in May
2018, absolutely no allegations are forthcoming by the
police that the respondent has since tried to tamper
with the evidence by intimidating the witnesses. There
is also no allegation of abscondence against the
respondent. Merely on apprehension of the police,
without any prima facie proof, the liberty of the
respondent cannot be curtailed. He further submitted
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that any additional condition may be imposed on the
respondent by the Supreme Court.
It is brought to the notice of the Court by the learned
Advocate for the State that though the impugned
judgment of the High Court of Orissa granting the
order of bail in favour of the respondent was passed
as far back as 16.05.2017, the respondent was actually
released from custody with effect from May 2018,
inasmuch as he was in custody in two other cases till
then.
The High Court proceeded to grant bail to the
respondent on the ground that there is no prima facie
material against the respondent to establish his
involvement in the conspiracy to murder the deceased,
that the undated letter of the deceased addressed to
the police showing apprehension to his life cannot be
treated as a dying declaration; the material on record
does not indicate any motive on the part of the
respondent to conspire towards the commission of
murder in question, and that the confessions of the
co-accused cannot be made used of against the
respondent at this stage, inasmuch as they are
admissible only to the extent that they lead to
recoveries under Section 27 of the Indian EvidenceAct.
The Supreme Court accepted the appeals, the
impugned judgement of the High Court granting bail
was set aside.
The operative part of the judgment reads as under:-
High Court was not justified in going into the evidence
on record in such a depth which amounts to
Don't try to instruct your lawyer. If you do, you've got
the wrong lawyer.
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CRIMINAL LAWS
ascertaining the probability of the conviction of the
accused. On the other hand, the High Court has failed
to appreciate several crucial factors that indicate that
it was highly inappropriate to grant bail in favour of
the respondent.
TTTTTTT
Since the respondent is an influential person in his
locality, in terms of both money and muscle power,
there is a reasonable apprehension that he might
tamper with or otherwise adversely influence the
investigation, which is still going on qua some of the
co-accused in the case, or that he might intimidate
witnesses before or during the trial. The High Court
in observing that there was no possibility of the
respondent's absconding in light of his being a local
businessman, not only completely overlooked his past
attempt to evade the pr ocess of law , but also
overlooked the implications of the clout enjoyed by
him in the community.
TTTTTTT
Having regard to the totality of the facts and
circumstances of the case and for the reasons
mentioned supra, the impugned judgment of the High
Court granting an order of bail in favour of the
respondent herein is liable to be set aside. Accordingly,
the same is hereby set aside.
TTTTTTT
Authorities relied upon : 2018 (12) SCC 129.
Reference : Supreme Court. The State of Orissa v.
Mahimananda Mishra, criminal appeal no. 1175 of 2018
[arising from SLP (Criminal) No. 5440/2017].
—————
—JOHN T. NOLAN
January 2019 I9
PROPERTY LAWS

NO CLEAR AVERMENTS AS TO
ENCROACHMENT, SUIT DISMISSED
R AVINDER KAUR (THE RESPONDENTS-
PLAINTIFF) HAS purchased the suit property
admeasuring an extent of 852-1/3 sq. yards by a sale deed
852-1/3 sq. yards. As pointed out by the First Appellate
Court that after the local inspection of the suit property
the Local Commissioner in his Report, Ex.D1/K, has
dated 6th September, 1978. Alleging that the appellant- observed that the respondents-plaintiff is in possession of
defendant has taken forcible possession of the suit property
, 955 sq. yards of the land though she (Ravinder Kaur)
the respondents-plaintiff has filed the suit for declaration actually purchased 852 sq. yards only and the said Report
and possession. The trial court decreed the suit in favour was not challenged by the respondents-plaintiff. As
of the respondents-plaintiff holding that the vendor of the pointed out by the First Appellate Court when the Local
plaintiff had appeared and testified about sale deed dated Commissioner's report was not challenged by the plaintiff,
6th September, 1978 that physical possession of the property the oral testimony of Sajjan Singh (PW-2), vendor of the
covered under the sale deed was delivered to them. plaintiff, and her husband, Ripudaman Singh (PW- 1),
Being aggrieved, the appellant herein filed appeal before the does not substantiate the claim of the plaintiff that the
Appellate Court which was allowed. After referring to the appellants have encroached upon the suit property. The
Report of the Local Commissioner that the respondents- claim of the respondents-plaintiff that the appellant has
plaintiff is in actual possession of 955 sq. yards as against encroached upon the property and took forcible
852-1/3 sq. yards purchased by them and that the possession under the garb of temporary injunction in the
consolidation records are missing and also that there was earlier suit remains unsubstantiated. Further there are no
no pucca burji, the First Appellate Court reversed the clear averments as to the alleged date of encroachment
judgment of the trial court thereby dismissing the and the steps then taken by the respondents-plaintiff. In
respondents-plaintiff's suit. In the second appeal, the High our considered view the High Court has not considered
Court has reversed the judgment of the First Appellate Court the findings recorded by the First Appellate Court which
and held that the Local Commissioner has not verified the is based upon the appreciation of the evidence and Report
available map with the Patwari and that based on the Local of the Local Commissioner.
Commissioner's Report, the FirstAppellate Court ought not TTTTTTT

to have reversed the judgment and decree of the trial court. That apart in the second appeal, no question of law
Against the judgement of the High Court special leave much less substantial question of law arose and the
petition was filed. The Supreme Court accepted the appeal, substantial question of law framed by the High Court
the judgement of the FirstAppellate court was restored and is not a substantial question of law but purely a
resultantly the suit of the respondents-plaintiff was question of fact in dispute between the parties. The
dismissed. impugned order of the High Court in Regular Second

T he operative part of the judgment reads as under:-

Appeal No.859 of 1988 is not sustainable and is
accordingly set aside.
As seen from the sale deed filed (Annexure CA-1 of the TTTTTTT
paper book), the respondents-plaintiff has purchased the Reference : Supreme Court. Kalyan Singh v. Ravinder
property, an extent of 852-1/3 sq. yards in Khasra No.316/ Kaur (D) Thr. Lrs., civil appeal no. 9332 of 2018 [arising
1. As per the evidence of the respondents-plaintiff-vendor, out of SLP (C) No. 34460 of 2016].
the respondents-plaintiff was put in physical possession
—————
on the land covered under the sale deed viz. an extent of

10 I January 2019 www.lawteller.com


WHETHER BACK WAGES CAN BE CLAIMED AS A
MATTER OF RIGHT, HELD NO
T HE SHORT QUESTION, WHICH ARISES FOR
CONSIDERATION IN this appeal, is whether the
Courts below, namely, the High Court and the Labour
Court were justified in awarding full back wages to the
37 workmen represented by Workmen Union after
setting aside their dismissal order holding it to be bad
in law being in contravention of Section 25-F of the
Industrial Disputes Act, 1947 (hereinafter referred to
as "I.D. Act") and, in consequence, directing
reinstatement of these workmen in services of the
appellant in their Public Health and Engineering
Department (PHED).
The Management of Regional Chief Engineer P.H.E.D.
Ranchi (the appellant) is the Department of the State
of Jharkhand [Public Health and Engineering
Department (PHED)] whereas the respondent is the
Workmen Union representing the interest of the
workmen working in the Public Health and Engineering
Department (PHED).
The State made a reference under Section 10 of the
I.D. Act to the Labour Court, Ranchi at the instance
of the respondent-Union to decide the following
dispute:
"Whether the dismissal and non absorption
of 37 acting daily wages Hastrashid
employees as mentioned in schedule "K" in
work charged establishment by Public Health
Engg. Division, East Ranchi (Department of
PHED, Jharkhand) is lawful. If not, what other
reliefs their employees are entitled to?"
By award dated 29.06.2005, the Labour Court (Annex.P-
1) answered the reference in respondent-Union's
favour and directed re-instatement of 37 workmen with
payment of full back wages in Reference Case No.6 of
2002.
The appellant (employer), felt aggrieved by the award
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SERVICE & LABOUR LAWS
of the Labour Court, filed writ petition in the High
Court of Jharkhand. The Single Judge of the High
Court, by order dated 08.07.2008, dismissed the writ
petition filed by the appellant and affirmed the award
passed by the Labour Court.
Being aggrieved by the order of the Single Judge, the
appellant filed intra court appeal. By impugned order,
the Division Bench of the High Court dismissed the
appeal and upheld the order of the Single Judge, which
gave rise to filing of this appeal by way of special leave
by the appellant-employer in Supreme Court.
Against the judgement of the Division Bench the
Management filed special leave petition. The Supreme
Court did not concur with directions of the courts
below awarding full back wages to the workman which
in their opinion, has certainly caused prejudice to the
appellant/employer. The Supreme Court thus
considered it just and proper and in the interest of
justice to award to these 37 workmen 50% of the total
back wages. The appeal thus succeeds in part,
impugned order was modified to the extent indicated
above.
The operative part of the judgment reads as under:-
A workman has no right to claim back wages from
his employer as of right only because the Court has
set aside his dismissal order in his favour and
directed his reinstatement in service.
TTTTTTT
It is necessary for the workman in such cases to plead
and prove with the aid of evidence that after his
dismissal from the service, he was not gainfully
employed anywhere and had no earning to maintain
himself or/and his family. The employer is also entitled
to prove it otherwise against the employee, namely,
that the employee was gainfully employed during the
relevant period and hence not entitled to claim any
January 2019 I 11
SERVICE & LABOUR LAWS
back wages. Initial bur den is, however, on the
employee.
TTTTTTT
We find that neither the Labour Cour t and nor the
High Court kept in consideration the aforesaid
principles of law . Similarly , no par ty to the
proceedings either pleaded or adduced any
evidence to prove the material facts required for
award of the back wages enabling the Court to
award the back wages.
TTTTTTT
Reference : Supreme Court. The Management of
Regional Chief Engineer P.H.E.D. Ranchi v. Their
Workmen Rep. by District Secretary, civil appeal no.
9832 of 2018 [arising out of SLP (C) No. 25965 of 2018].
—————

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surrogate mother and born in the US. The man paid the surrogate mother USD $200,000 to carry and deliver the
baby after learning that he and his partner would not be allowed to adopt in Singapore due to their sexual
orientation. In its ruling, the court found that the child's adoption "would be for the welfare of the Child" as
required by their adoption laws. The court also addressed the public policy considerations, establishing "a
two-step analytical framework for taking public policy into account in a case such as the present." First, the
court determined whether the relevant public policies existed. Second, the court employed a balancing exercise
"in which the court considers the weight to be given to the value underlying the claimed right and to the
countervailing public policy consideration, and then reasons towards an outcome" with proper balance. In the
end, the court balanced "the concern to protect the welfare of the Child" with "the concern not to violate the
public policy against the formation of same-sex family units." The court reasoned that the welfare of the child
"would be significantly advanced by" approving the adoption order and that this outweighed "the public policy
against the formation of same-sex family units".

NEW ZEALAND PASSES NEW MEDICAL CANNABIS LAW

The government of New Zealand passed a law that removes many restrictions on medical cannabis. While
it will take up to a year for the new regulations and licensing policies established by the Misuse of Drugs
(Medicinal Cannabis) Amendment Bill to be rolled out, the law also establishes an exception and statutory
defense for people who are terminally ill to possess and use cannabis that will take ef fect immediately.
Additionally, the law fully decriminalizes cannabidiol (CBD) products, allows medical marijuana products to
be manufactured in New Zealand and empowers the Governor-General to establish regulatory standards for
cannabis products. According to the Health Committee Report, commenters overwhelmingly supported
permitting terminally ill patients access to cannabis products, with 96 percent of them in support of the
implementation of quality standards. Such regulations could pave the way for local and international
companies to enter the New Zealand medical cannabis market. The national government is expected to hold
a referendum on recreational marijuana in the next two years.

12 I January 2019 www.lawteller.com


DEFAULT SENTENCE CANNOT RUN
CONCURRENTLY WITH A SUBSTANTIVE SENTENCE
T HIS APPEAL CHALLENGES THE DECISION
DATED 17.12.2013 passed by the High Court of
Bombay in Criminal Appeal No.906 of 2006 affirming
the conviction and sentence of the appellant (original
accused No.6) for offences punishable under the
Indian Penal Code (IPC, for short) as well as the
Maharashtra Control of Organised Crime Act, 1999
(hereinafter referred to as the MCOC Act). Since the
emphasis in the present appeal was placed on the
nature of default sentences passed against the
appellant, we confine ourselves to bare outline of facts.
The appellant along with other co-accused was tried
and convicted by the Special Judge [the MCOC Act]
Thane in M.C.O.C. Special Case No.3 of 2002 vide
judgment dated 20.10.2005. The relevant portion of the
order of sentence passed by the Special Judge reads
as under:
"Accused Nos.1 to 6 namely, Sanjay Kisan
Mohite, Sudish Maniken, Maniken Nair ,
Pramod Shankar Jadhav, Santosh Manohar
Deshmukh, Chandrakant Balkrishna Shegde
and Sharad Hiru Kolambe are convicted for
offence punishable under Section 364A of
Indian Penal Code read with Section 34 of the
Indian Penal Code and sentenced to suffer
life imprisonment and to pay fine of Rs.1,000/
- each. In default to suffer imprisonment for
three months.
The accused Nos.1 to 6 are convicted for
offence punishable under Section 395 of
Indian Penal Code and sentenced to suffer
imprisonment for seven years and to pay fine
of Rs.1,000/- each. In default, to suffer
imprisonment for three months.
The accused Nos.1 to 6 are convicted for
offence punishable under Section 397 of
Indian Penal Code and sentenced to suffer
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CRIMINAL LAWS
imprisonment for seven years and to pay fine
of Rs.1,000/- each. In default, to suffer
imprisonment for three months.
The accused Nos.1 to 6 are convicted for
offence punishable under Section 387 of
Indian Penal code read with Section 34 of the
Indian Penal Code and sentenced to suffer
imprisonment for five years and to pay fine
of Rs.1,000/- each. In default, to suffer
imprisonment for three months.
The accused Nos.1 to 6 are convicted for
offence punishable under Section 342 of
Indian Penal Code read with Section 34 of the
Indian Penal code and sentenced to suffer
imprisonment for one year.
The accused Nos.1 to 6 are convicted for
offence punishable under Section 3(1)(ii) of
Maharashtra Control of Organised Crime Act
and sentenced to suffer imprisonment for ten
years and to pay fine of Rs.5,00,000/- (Rupees
Five lacs) each. In default, to suffer
imprisonment for three years.
The accused Nos.1 to 6 are convicted for
offence punishable under Section 3(2) of
Maharashtra Control of Organised Crime Act
and sentenced to suffer imprisonment for ten
years and to pay fine of Rs.5,00,000/- (Rupees
Five Lacs) each. In default, to suffer
imprisonment for three years.
The accused Nos.1 to 6 are convicted for
offence punishable under Section 3(4) of
Maharashtra Control of Organised Crime Act
and sentenced to suffer imprisonment for ten
years and to pay fine of Rs.5,00,000/- (Rupees
Five Lacs) each. In default, to suffer
imprisonment for three years.
All the sentences shall run concurrently.
January 2019 I 13
CRIMINAL LAWS
The accused persons are entitled for set off
under Section 428 of the Criminal P.C. for
pretrial detention period.
Accused No.7 Avinash Shrikrishna Dugad
and accused No.8 Tanaji Nanu Birade are
acquitted of all the offences.
Their bail bonds stand cancelled."
The decision so rendered by the Special Judge was
questioned by all the convicted accused by filing
criminal appeals in the High Court of Bombay. The
High Court by its judgment and order under appeal
set aside the conviction and sentence of original
accused No.5. It, however, dismissed all the other
appeals. The conviction and sentence in so far as the
appellant is concerned thus stood affirmed.
It may be mentioned that the appellant was arrested
on 26.08.2001 and was never released during the trial
as well as during the pendency of the appeal. He thus
completed 14 years of actual sentence on 25.08.2015.
By order dated 04.03.2017 passed by the Government
of Maharashtra in exercise of powers conferred under
Sections 432 and 433 of Criminal Procedure Code
(hereinafter referred to as the Code), the appellant was
directed to be released on completion of 14 years of
actual sentence. However, since the appellant has not
paid the amount of fine as directed, he is presently
undergoing the sentence in default as awarded by the
Courts below. It must further be mentioned that on
03.06.2017, the District Probation Officer, District
Women and Child Welfare Department, Raigad,
Alibaug submitted a Home Inquiry Report wherein it
was noted that the appellant's family was in a state of
starvation.
In the aforesaid factual context, Mr. Colin Gonsalves,
learned Senior Counsel appearing for the appellant
advanced following submissions:
a. The cumulative fine imposed upon the
appellant under various counts of
punishment was Rs.15,04,000/- and the
default sentence in case of non-payment was
14 I January 2019
cumulatively 10 years. For a person whose
family was reduced to a state of starvation,
it was impossible to deposit payment of fine
as directed. Resultantly, the appellant would
have to suffer default sentence of 10 years.
Though the substantive sentence stood
remitted and the appellant was directed to be
released on completion of 14 years of actual
sentence, the appellant would still be inside
till he completes 24 years.
b. Since the trial court had directed "all
sentences shall run concurrently", all default
sentences must also run concurrently inter
se. Thus the maximum default sentence
would be 3 years and not 10 years.
c. In the present case the default sentences
so directed would be unconscionable and
excessive.
He thus submitted that either default sentences be
directed to run concurrently or the default sentences
be reduced to the one already undergone and the
appellant be set at liberty. The learned Senior Counsel
relied on the decisions of the Supreme Court rendered
in Palaniappa Gounder v. State of Tamil Nadu and
Others [1977 (2) SCC 634], Shantilal v. State of M.P.
[(2007) 12 SCC 243] and Shahejadkhan Mahebubkhan
Pathan v. State of Gujarat [(2013) 1 SCC 570] in which
the Supreme Court after considering the standing of
the person, nature of crime and the financial capacity
had reduced the quantum of default sentence.
Mr. Nishant R. Katneshwarkar , learned Counsel
appearing for State of Maharashtra however relied
upon certain observations made by the Supreme Court
in V.K. Bansal v. State of Haryana and Another [(2013)
7 SCC 211] and a decision of the Full Bench of Madras
High Court in case of Donatus Tony Ikwanusi v. The
Investigating Officer, NCB [2013 (1) MWN (Cr.) 175
(FB)] to submit that default sentences for nonpayment
of fine could not be ordered to run concurrently. The
learned Counsel however fairly submitted that
www.lawteller.com

considering the financial capacity of the appellant, the
quantum of default sentences under each of the counts
could certainly be reduced as the Supreme Court may
deem appropriate.
In the circumstances, the Supreme Court rejected the
submission regarding concurrent running of default
sentences, as in the considered view default
sentences, inter se, cannot be directed to run
concurrently.
The operative part of the judgment reads as under:-
Section 63 of IPC generally lays down that fine should
not be excessive wherever no sum is expressed to
which the fine may extend. Naturally, in cases where
the concerned provision itself indicates a sum to
which the fine may extend, or prescribes a minimum
quantum of fine, such element may not apply. In cases
covered by Section 64 of IPC the Court is competent
to impose sentence of "imprisonment for non-payment
of fine" and such sentence for non-payment of fine
"shall be in excess of any imprisonment" to which the
offender may have been sentenced or to which he may
be liable under commutation of a sentence. Sections
30 and 429(2) of the Code also touch upon the
principle that default sentence shall be in addition
to substantive sentence. In terms of said Section 30(2)
the default sentence awarded by a Magistrate is not
to be counted while considering the maximum
punishment that can be substantively awarded by the
Magistrate, while under Section 429(2), in cases
where two or more substantive sentences are to be
undergone one after the other, the default sentence, if
awarded, would not begin to run till the substantive
sentences are over. Similarly, under Section 428 of the
Code, the period undergone during investigation,
inquiry or trial has to be set off against substantive
sentence but not against default sentence. The idea
is thus clear, that default sentence is not to be merged
with or allowed to run concurrently with a substantive
sentence. Thus, the sentence of imprisonment for non-
payment of fine would be in excess of or in addition
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CRIMINAL LAWS
to the substantive sentence to which an offender may
have been sentenced or to which he may be liable
under commutation of a sentence.
TTTTTTT
The reading of Section 31 makes it clear that unless
the Court directs that punishments for such two or
more offences at same trial should run concurrently,
the normal principle is that the punishments would
commence one after the expiration of the other. The
provision thus gives discretion to the Court to direct
running of such punishments either concurrently or
consecutively. Similar discretion is available in
Section 427 which deals with cases where a person
already undergoing a sentence is later imposed
sentence in respect of an offence tried at subsequent
trial. These two provisions namely Sections 31 and
427 thus deal with discretion available to the Court
to specify whether the substantive sentences should
run concurrently or consecutively.
TTTTTTT
If the term of imprisonment in default of payment of
fine is a penalty which a person incurs on account of
non-payment of fine and is not a sentence in strict
sense, imposition of such default sentence is
completely different and qualitatively distinct from a
substantive sentence. We must hasten to add that it is
not the case of the appellant that default sentences
awarded to him must run concurrently with
substantive sentence imposed on him. His case is that
all default sentences must inter se run concurrently.
Imposition of fine, especially when certain minimum
quantum is prescribed and/or mandatory imposition
of fine is contemplated, has some significance.
Theoretically, if the default sentences awar ded in
respect of imposition of fine in connection with two
or more offences are to be clubbed or directed to run
concurrently, there would not be any occasion for the
persons so sentenced to deposit the fine in respect of
the second or further offences. It would effectively
mean imposition of one single or combined sentence
of fine. Such an exercise would render the very idea
January 2019 I 15
CRIMINAL LAWS
of imposition of fine with a deterrent stipulation while
awarding sentence in default of payment of fine to be
meaningless. For example, in the present case, in
respect of three distinct offences punishable under the
provisions of the MCOC Act, fine came to be imposed.
Such fine going by the relevant provisions had to be
at a minimum scale of Rs.5 lakhs. If the default
sentences awarded in respect of each of those three
counts under the MCOC Act are directed to run
concurrently, the accused may not be inclined to
deposit fine in respect of two out of those three counts.
If imposition of fine and prescription of mandatory
minimum is designed to achieve a specific purpose,
the very objective will get defeated if the default
sentences were directed to run concurrently. It is
precisely for this reason that unlike Sections 31 and
427 of the Code, which specifically empower the
concerned court to direct concurrent running of
substantive sentences, Section 64 of the IPC does not
stipulate such discretion. The language of said
Section 64 rather mandates that the sentence awarded
for non-payment of fine "imprisonment shall be in
excess of any other imprisonment to which he may
have been sentenced or to which he may be liable
under a commutation of a sentence". Similar is the
intent in Sections 30, 428 and 429(2) of the Code as
discussed above. The rigour of the provisions is such
that even if a person gets the benefit of commutation
of a sentence, the sentence in default of payment of
fine shall be in excess or in addition.
TTTTTTT
In the circumstances, we reject the submission
regarding concurrent running of default sentences, as
in our considered view default sentences, inter se,
cannot be directed to run concurrently.
TTTTTTT
However, considering the financial condition of the
appellant, a case is certainly made out to have a
sympathetic consideration about the quantum of
default sentence.
TTTTTTT
Authorities relied upon : 2013 (1) MWN (Cr.) 175
(FB), 1990 MLJ (Cri) 534, 1977 (2) SCC 634,AIR (1926)
Bom. 62.
Reference : Supreme Court. Sharad Hiru Kolambe v.
State of Maharashtra and others, criminal appeal no.
1209 of 2018 [arising out of SLP (Criminal) No. 8067 of
2018].
—————

GLOBAL GLIMPSE
POLAND REVERSES LAW ON JUDICIARY PURGE,
ABIDING BY EU ORDER
Polish President Andrzej Duda signed a bill that reinstates Supreme Court judges whose forced removal was
deemed as a serious violation of democratic standards by the EU. In April, Poland passed a law that lowered
retirement age from 70 to 65 and led to a forced early retirement of 27 of the 72 Supreme Court judges, including
the court's president, Malgorzata Gersdorf. This law was condemned by many international actors, including
the European Court of Human Rights and the European Commission. The forced retirements of the judges was
perceived as undermining judicial independence because it put the judiciary under the unprecedented control
of the legislative and executive branches of government. Consequently, in July, the European Commission
imposed Article 7 sanctions, ordering Poland to reverse the controversial legislation and reinstate the Supreme
Court judges. This measure was followed by an interim verdict issued in October by the EU Court of Justice.
Finally, in late November, the Polish Parliament passed a new law that enables the judges to return to the
Supreme Court. The legislation was backed by 215 deputies, while 161 were against and 24 abstained.

16 I January 2019 www.lawteller.com

 LAW FOR YOU
NO DECREE FOR EVICTION CAN BE
PASSED UNLESS DETERMINATION
UNDER S. 13(3) TAKES PLACE
Use of the word 'shall' in S. 13(3) of Rajasthan Premises
(Control of Rent and Eviction) Act (17 of 1950) puts a
mandatory obligation on the Court to fix provisional
rent within three months of the filing of the written
statement but before framing of the issues. The
language of the Section is mandatory and places a duty
on the court to determine the provisional rent
irrespective of any application or not. If the rent so
determined by the court is paid by the tenant as
provided under S. 13(4), no decree for eviction of the
tenant can be passed on the ground of default under
S. 13(1)(a) in view of S. 13(6) of theAct. It is thus clear
that unless the determination under S. 13(3) takes place,
S. 13(6) cannot be complied with and a valuable right
given to a tenant would be lost. High Court, has rightly
held S. 13(3) of the Act to be mandatory.
Reference: SC. Ram Pratap v. Anand Kanwar
and others, civil appeal no. 8504 of 2018
[arising out of SLP (Civil) No. 21338 of 2017].
DIRECTION PERTAINING TO FAMILY
WELFARE COMMITTEE, HELD
AGAINST STATUTORY FRAMEWORK
On a perusal of directions issued inAIR 2017 SC 3869,
it is found that Court has taken recourse to fair
procedure and workability of a provision so that there
will be no unfairness and unreasonableness in
implementation and for said purpose, it has taken
recourse to path of interpretation. Core issue is whether
the Court in AIR 2017 SC 3869 could, by method of
interpretation, have issued such directions. On perusal
of directions, it is found that Court has directed
constitution of Family Welfare Committees by District
Legal Services Authorities and prescribed duties of
Committees. Prescription of duties of Committees and
further action therefor, are beyond Code and same does
not really flow from any provision of Code. There can
www.lawteller.com
be no denial that there has to be just, fair and reasonable
working of a provision. Legislature in its wisdom has
made offence under S. 498-A cognizable and non-
bailable. Fault lies with investigating agency which
sometimes jumps into action without application of
mind. Directions issued in AIR 2014 SC 2756 are in
consonance with the provisions contained in Ss. 41 and
41-A of Criminal P.C. Similarly, guidelines stated in AIR
1994 SC 1349 andAIR 1997 SC 610 are within framework
of Code and power of superintendence of authorities
in hierarchical system of investigating agency. Purpose
has been to see that investigating agency does not
abuse power and arrest people at its whim and fancy.
In AIR 2017 SC 3869, there is introduction of third
agency which has nothing to do with code and that
apart, Committees have been empowered to suggest
report failing which no arrest can be made. Directions
to settle a case after it is registered is not correct
expression of law. Criminal proceeding which is not
compoundable can be quashed by High Court under
Section 482 of Criminal P.C. When settlement takes
place, then both parties can file petition under S. 482
Criminal P.C. and High Court, considering bona fide of
petition, may quash same. Power rests with High Court.
Though AIR 2017 SC 3869 takes note of 2012AIR SCW
5333, yet it seems to have it applied in different manner.
Seminal issue is whether these directions could have
been issued by process of interpretation. Supreme
Court, in furthermore of fundamental right, has issued
directions in absence of law. In obtaining factual matrix,
there are statutory provisions and judgements in field
and, therefore, directions pertaining to constitution of
Committee and conferment of power on said Committee
is erroneous. However, directions pertaining to Red
Corner Notice, clubbing of cases and postulating that
recovery of disputed dowry items may not by itself be
ground for denial of bail would stand on different
footing. Direction Nos. 19(iv) and (v) states that if a bail
application is filed with at least one clear day's notice
to Public Prosecutor/complainant, same may be decided
as far as possible on same day. Recovery of disputed
January 2019 I 17
LAW FOR YOU
dowry items may not by itself be ground for denial of
bail if maintenance or other rights of wife/minor children
can otherwise be protected. Needless to say that in
dealing with bail matters, individual roles, prima facie
truth of allegations, requirement of further arrest/
custody and interest of justice must be carefully
weighed, and that in respect of persons ordinarily
residing out of India impounding of passports or
issuance of Red Corner Notice should not be routine.
They are protective in nature and do not sound
discordant note with Code. When application for bail
is entertained, proper conditions have to be imposed
but recovery of disputed dowry items may not by itself
be a ground while rejecting application for grant of bail
under S. 498-A. That cannot be considered at that stage.
Therefore, there is nothing erroneous in direction Nos.
19(iv) and (v). So far as direction Nos. 19(vi) and 19(vii)
are concerned, which states that it will be open to
District Judge or designated senior judicial officer
nominated by District Judge to club all connected cases
between parties arising out of matrimonial disputes so
that holistic view is taken by Court to who all such
cases are entrusted; and personal appearance of all
family members and particularly outstation members
may not be required and trial court ought to grant
exemption from personal appearance or permit
appearance by video conferencing without adversely
affecting progress of trial, an application has to be filed
either under S. 205 or S. 317 of Criminal P.C. depending
upon the stage at which exemption is sought. Thus,
while declaring directions pertaining to Family Welfare
Committee and its constitution by District Legal Service
Authority and power conferred on Committee is
impermissible, Investigating Officers must be careful and
guided by principles stated in AIR 1994 SC 1349, AIR
1997 SC 610,AIR 2014 SC 187 andAIR 2014 SC 2756. It
is directed to ensure that investigating officers who are
in charge of investigation of cases of offences under
S. 498-A should be imparted rigorous training with
regard to principles stated relating to arrest. Directions
contained in 19(i) pertaining to constitution of Family
18 I January 2019
Welfare Committee is not in accord with statutory
framework and direction issued in para 19(ii) pertaining
to investigation shall be read in conjunction with
directions given above. Direction 19(iii) which states
that in cases where settlement is reached, it will be open
to District and Sessions Judge or any other senior
Judicial Officer nominated by him in district to dispose
of proceedings including closing of criminal case if
dispute primarily relates to matrimonial discord is
modified to extent that if settlement is arrived at, parties
can approach High Court under S. 482 of Criminal P.C.
and High Court keeping in view of 2012AIR SCW 5333
shall dispose of same.
Reference: SC. Social Action Forum for Manav
Adhikar and another v. Union of India Ministry
of Law and Justice and others, Writ Petition
(Civil) No. 73 of 2015 with Criminal Appeal
No. 1265 of 2017 and Writ Petition (Criminal)
No. 156 of 2017.
REJECTION OF EVIDENCE AS A
WHOLE BY GIVING IMPORTANCE TO
TRIVIAL TECHNICAL ERROR, NOT
PERMISSIBLE
While appreciating the evidence of a witness, the
approach must be whether the evidence of the witness
read as a whole inspires confidence. Once that
impression is formed, it is undoubtedly necessary for
the court to scrutinize the evidence more particularly
keeping in view the deficiencies, drawbacks and
infirmities pointed out in the evidence as a whole and
evaluate them to find out whether it is against the
general tenor of the evidence and whether the earlier
evaluation of the evidence is shaken as to render it
unworthy of belief. Minor discrepancies on trivial
matters not touching the core of the case,
hypertechnical approach by taking sentences torn out
of context here or there from the evidence, attaching
importance to some technical error without going to the
root of the matter would not ordinarily permit rejection
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of the evidence as a whole. Minor omissions in the
police statements are never considered to be fatal. The
statements given by the witnesses before the police are
meant to be brief statements and could not take place
of evidence in the court. Small/Trivial omissions would
not justify a finding by court that the witnesses
concerned are liars. The prosecution evidence may
suffer from inconsistencies here and discrepancies
there, but that is a shortcoming from which no criminal
case is free. The main thing to be seen is whether those
inconsistencies go to the root of the matter or pertain
to insignificant aspects thereof. In the former case, the
defence may be justified in seeking advantage of
incongruities obtaining in the evidence. In the latter,
however, no such benefit may be available to it.
Reference: SC. Smt. Shmim v. State (GNCT of
Delhi), criminal appeal no. 56 of 2018.
LEVY OF STAMP DUTY NOT
NECESSARY FOR ENFORCEMENT OF
FOREIGN AWARD
Expression 'award' has never included a foreign award
from the very inception till date. Consequently, a foreign
award not being includible in Schedule I of the Indian
Stamp Act, 1899, is not liable for stamp duty. If stamp
duties are leviable in India on foreign awards, the
imposition should not be substantially more onerous
than the stamp duty that is imposed on recognition or
enforcement of domestic arbitral awards. For Article III
of New York Convention to apply, stamp duty must first
be leviable on a foreign award, which is not the case.
Equally, reliance upon the 194th Law Commission of
India Report, insofar as stamp duty on domestic awards
is concerned, would again have little bearing, in view
of Supreme Court's finding that under the present state
of the law, foreign awards are not liable to stamp duty
under the Indian Stamp Act, 1899. Plea of respondent
that S. 47 of Arbitration and Conciliation Act 1996
requires three things and only three things to be
produced before the Court for enforcement of a foreign
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LAW FOR YOU
award, and that therefore, stamp duty not being one of
the three things required, cannot ever be levied would
not be tenable. All that S. 47 of 1996 Act deals with is
production before the Court of proof of the fact that a
foreign award is sought to be enforced. In no manner
does S. 47 1996 Act interdict the payment of stamp duty
if it is otherwise payable in the law. Further plea that
under S. 48(2)(b) of 1996 Act , even if stamp duty is
payable on a foreign award it would not be contrary to
the public policy of India, must also be rejected.
Reference: SC. M/s. Shriram EPC Limited v.
Rioglass Solar SA, civil appeal no. 9515 of 2018
[arising out of SLP (Civil) no. 13913 of 2018].
DIFFERENTLY ABLED PERSONS
SHOULD NOT BE DEPRIVED OF
BENEFIT OF UTILITY UNDER RTI ACT
In view of proviso to S. 6(1) of Right to Information
Act 2005, it is obligatory on the part of the Central
Public Information Officer or State Public Information
Officer to render all reasonable assistance to the persons
making the request orally to reduce the same in writing.
S. 6(3) of the Act takes care of the apprehension of the
persons for whose cause the petitioner espouses, by
making the provision pertaining to appropriate
competent public authority. On a careful reading of the
same, we do not find that there can be any difficulty
for any person to find out the public authority as there
is a provision for transfer. Thus, assistance has to be
rendered under S. 6(1) of the Act to the persons who
are unable to write or have difficulty in writing. Several
States provide information in Braille since the year 2012.
Every time the authority receives an RTI application
seeking information in Braille, it prepares a reply in the
printed format and forwards it to the National Institute
for the Visually Handicapped where it is converted to
Braille. The visually impaired citizens of Bihar were the
first in the country to get copies under the Right to
Information (RTI) Act and the Rules made by the State
Government for its implementation in Braille script.
January 2019 I 19
LAW FOR YOU
Audio files are also being prepared. No further direction
needs to be issued except granting liberty to the
petitioner to submit a representation to the competent
authority pointing out any other mode(s) available for
getting information under the Act. If such a
representation is submitted, the same shall be dealt not
only with sympathy but also with concern and empathy.
We say so as differently abled persons, which include
visually impaired persons, should have the functional
facility to receive such information as permissible under
the Act. They should not be deprived of the benefit of
such a utility.
Reference: SC. Aseer Jamal v. Union of India
and others, Writ Petition (C) No. 137 of 2018.
LEGISLATORS CANNOT BE
DEBARRED FROM PRACTISING AS
ADVOCATE
Legislator cannot be styled as full-time salaried
employees. Status of Legislator is of member of house.
No relationship of employer and employee. Merely
drawing of salary or different allowances not resulted
in creation of relationship of employer and employee
between Government and Legislators. Legislators
deemed to be public servant. Their status is sui generis
and not of full time salaried employee of any person,
Govt., firm and corporation. Even the expansive
definition of term "person" in the General Clauses Act
will be of no avail. Legislators being elected people's
representatives occupy seat in Parliament/Legislatives
occupy seat in Parliament/Legislative Assembly or
Council as its members but are not in employment and
occupy a special position till dissolution of house.
Disciplinary or privilege action can be initiated against
them by Speaker of House does not mean that they can
be treated as full-time salaried employees. Participation
of Legislators in House for conduct of its business,
cannot be considered as service rendered to an
employee. By no standards, therefore, Rule 49 as a
whole can be invoked and applied to the legislators.
20 I January 2019
Resultantly, it is not necessary to dilate on the question
as to whether the nature of duty of the legislators is
such that it entails into a full-time engagement and that
the person concerned will not be in a position to pay
full attention towards the legal profession. That is a
matter for the Bar Council to consider. No other express
provision in Act of 1961 or the Rules to restrict to
elected people's representatives to continue to practice
as an advocates. In absence of an express restriction it
is not open for Court to debar elected people's
representatives from practicing during the period when
they are MPs/MLAs/MLCs.
Reference: SC. Ashwini Kumar Upadhyay v.
Union of India and another, Writ Petition(Civil)
No. 95 of 2018.
ONCE CONVICTION STAYED,
DISQUALIFICATION WILL NOT
OPERATE UNDER REPRESENTATION
OF THE PEOPLE ACT
Appellate Court has the power, in an appropriate case,
to stay the conviction under S. 389 Criminal P.C. besides
suspending the sentence. The power to stay a
conviction is by way of an exception. Before it is
exercised, the appellate court must be made aware of
the consequence which will ensue if the conviction were
not to be stayed. Once the conviction has been stayed
by the appellate court, the disqualification under sub-
sections 1, 2 and 3 of S. 8 of the Representation of the
People Act will not operate. Under Art. 102(1)(e) and
Art. 191(1)(e), the disqualification operates by or under
any law made by Parliament. Disqualification under the
above provisions of S. 8 follows upon a conviction for
one of the listed offences. Once the conviction has been
stayed during the pendency of an appeal, the
disqualification which operates as a consequence of the
conviction cannot take or remain in effect. The authority
vested in the appellate court to stay a conviction
ensures that a conviction on untenable or frivolous
grounds does not operate to cause serious prejudice.
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Reference: SC. Lok Prahari, through its General
Secretary S.N. Shukla v. Election Commission
of India and others, Writ Petition (Civil) No.
330 of 2016.
OBJECT OF RESERVATION IS TO SEE
THAT BACKWARD CLASSES OF
CITIZENS MOVE FORWARD EQUALLY
Whole object of reservation is to see that backward
classes of citizens move forward equally with other
citizens of India. This will not be possible if only the
creamy layer within that class bag all the coveted jobs
in the public sector and perpetuate themselves, leaving
the rest of the class as backward as they always were.
When a Court applies the creamy layer principle to
Scheduled Castes and Scheduled Tribes, it does not in
any manner tinker with the Presidential List underArticle
341 or 342 of the Constitution of India. The caste or
group or sub-group named in the said List continues
exactly as before. It is only those persons within that
group or sub-group, who have come out of
untouchability or backwardness by virtue of belonging
to the creamy layer, who are excluded from the benefit
of reservation. Even these persons who are contained
within the group or sub-group in the Presidential Lists
continue to be within those Lists. It is only when it
comes to the application of the reservation principle
under Articles 14 and 16 that the creamy layer within
that sub-group is not given the benefit of such
reservation. When Arts. 14 and 16 are harmoniously
interpreted along with Arts. 341 and 342, it is clear that
Parliament will have complete freedom to include or
exclude persons from the Presidential Lists based on
relevant factors. Similarly, Constitutional Courts, when
applying the principle of reservation, will be well within
their jurisdiction to exclude the creamy layer from such
groups or sub-groups when applying the principles of
equality under 14 and 16 of the Constitutional of India.
Case of Nagraj applied the creamy layer test to
Scheduled Castes and Scheduled Tribes in exercise of
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LAW FOR YOU
application of the basic structure test to uphold the
constitutional amendments leading to Articles 16(4-A)
and 16(4-B), it did not in any manner interfere with
Parliament's power under Art. 341 or Art. 342. It does
not need to be referred to a seven-Judge Bench.
However, the conclusion in Nagaraj case that the State
has to collect quantifiable data showing backwardness
of the Scheduled Castes and the Scheduled Tribes,
being contrary to the nine-Judge Bench in Indra
Sawhney case is held to be invalid to this extent.
Reference: SC. Jarnail Singh and others v.
Lachhmi Narain Gupta and others, special leave
petition (civil) no. 30621 of 2011.
DOCTRINE OF PROGRESSIVE
REALIZATION OF RIGHTS
Rationale behind doctrine of progressive realization of
rights is dynamic and ever growing nature of
Constitution under which rights have been conferred
to citizenry. Constitutional courts have to recognize that
constitutional rights would become dead letter without
their dynamic, vibrant and pragmatic interpretation.
Therefore, it is necessary for constitutional courts to
inculcate in their judicial interpretation and decision
making sense of engagement and sense of
constitutional morality so that they, with aid of judicial
creativity, are able to fulfill their foremost constitutional
obligation, that is, to protect rights bestowed upon
citizens of our country by Constitution. It is not only
interpretation of Constitution which needs to be
pragmatic, due to dynamic nature of Constitution, but
also legal policy of particular epoch must be in
consonance with current and present needs of society,
which are sensible in prevalent times and at same time
easy to apply. This also gives birth to equally important
role of State to implement constitutional rights
effectively. And of course, when it is State, it includes
all three organs, that is, legislature, executive as well as
judiciary. State has to show concerned commitment
which would result in concrete action. State has
January 2019 I 21
LAW FOR YOU
obligation to take appropriate measures for progressive
realization of economic, social and cultural rights.
Doctrine of progressive realization of rights, as natural
corollary, gives birth to doctrine of non-retrogression.
As per this doctrine, there must not be any regression
of rights. In progressive and ever-improving society,
there is no place for retreat, society has to march ahead.
Doctrine of non-retrogression sets forth that State
should not take measures or steps that deliberately lead
to retrogression on enjoyment of rights either under
Constitution or otherwise. Thus, there is manifest
ascendance of rights under Constitution which paves
way for doctrine of progressive realization of rights as
such rights evolve with evolution of society. This
doctrine, as natural corollary, gives birth to doctrine of
non-retrogression, as per which there must not be
atavism of constitutional rights. In light of same,
accepting view in AIR 2014 SC 563, it would tantamount
to retrograde step in direction of progressive
interpretation of Constitution and denial of progressive
realization of rights.
Reference: SC. Navtej Singh Johar and others
v. Union of India Thr. Secretary Ministry of Law
and Justice, Writ Petition (Criminal) No. 76 of
2016 with Writ Petition (Civil) No. 572 of 2016,
Writ Petition (Criminal) Nos. 88,100, 101 and
121 of 2018.
LIVE STREAMING OF COURT
PROCEEDINGS
Streaming of Court proceedings has potential of
throwing up an option to the public to witness live
court proceedings which they otherwise could not
have due to logistical issues and infrastructural
restrictions of Courts; and would also provide them
with a more direct sense of what has transpired.
Introducing and integrating such technology into the
courtrooms would give the viewing public a virtual
presence in the courtroom and also educate them
about the working of the court. Courts in India are
22 I January 2019
ordinarily open to all members of public, who are
interested in witnessing the court proceedings. By
providing "virtual" access of live court proceedings
to one and all, it will effectuate the right of access to
justice or right to open justice and public trial, right
to know the developments of law and including the
right of justice at the doorstep of the litigants. Open
justice, after all, can be more than just a physical
access to the courtroom rather , it is doable even
"virtually" in the form of live streaming of court
proceedings and have the same effect. Live streaming
of court proceedings in the prescribed digital format
would be an affirmation of the constitutional rights
bestowed upon the public and the litigants in
particular. In terms of S. 327 of Cr.P.C. and S. 153-B of
C.P.C., only court-directed matters can be heard in
camera and the general public can be denied access
to or to remain in the court building used by the Court.
By virtue of live streaming of court proceedings, it
would go public beyond the four walls of the court
room to which, in a given case, the party or a witness
to the proceedings may have genuine reservations and
may claim right of privacy and dignity. Such a claim
will have to be examined by the concerned Court and
for which reason, a just regulatory framework must be
provided for, including obtaining prior consent of the
parties to the proceedings to be live streamed. It
should not interfere with the administration of justice
or the dignity and majesty of the Court. Before the
commencement of first phase of the project, formal
rules will have to be framed. In recognizing that court
proceedings ought to be live streamed, Court is
mindful of and has strived to balance the various
interests regarding administration of justice, including
open justice, dignity and privacy of the participants
to the proceedings and the majesty and decorum of
the Courts.
Reference: SC. Swapnil Tripathi v. Supreme
Court of India, Writ Petition (Civil) No. 1232
of 2017 with 66, 861 and 892 of 2018.
ooooooo
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SC RESTORED THE ORDER OF TRIAL COURT
DISMISSING SUIT AS BARRED BY TIME
T HE APPELLANTS ARE THE PLAINTIFFS
WHEREAS THE respondents are the defendants
in a civil suit out of which this appeal arises. The short
question involved in this appeal is whether the High
Court was justified in allowing the defendants' first
appeal and thereby dismissing the appellants'
(plaintiffs) suit as barred by time.
The appellants (plaintiffs) filed a civil suit against the
respondents (defendants) in relation to the suit
property, as detailed in Para 1 of the plaint, for claiming
the reliefs mentioned in para 26(3) of the plaint which
reads as under:
"26. Plaintiffs humbly pray that:
1. Decree for declaration of title be passed in
favour of plaintiffs and against the
defendants that property as described in Para
No.1 of this suit belongs to Sh. Oswal Singh
Sabha, Jodhpur and defendants Sh. Kishan
Singh does not have any kind of ownership
rights over it.
2. Decree for permanent injunction be passed
in favour of plaintiffs and against the
defendants that defendants be restrained
from making any kind of claim or from
carrying out any kind of proceeding and
interfering in the possession of disputed
property forever.
3. Possession of above property be provided
to the plaintiff from the receiver.
4. Cost of this suit be also provided to the
plaintiffs from the defendants.
5. Other relief, which this Hon'ble Court may
deem fit, be also provided to the plaintiffs."
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LIMITATION
The respondents (defendants) filed the written
statement and joined issues on facts and law by
denying the material allegations made in the plaint. The
respondents, inter alia, also raised an objection that
the suit is barred by limitation.
The Trial Court, by judgment/decree answered all the
issues on facts and law including the issue of
limitation in appellants' favour and against the
respondents and accordingly decreed the suit. It was
held that the appellants are the owners of the suit
property; they are entitled to claim possession of the
suit property from the respondents; and lastly, the suit
is within limitation.
The respondents (defendants) felt aggrieved and filed
first appeal in the High Court of Rajasthan at Jodhpur.
By impugned judgment, the Single Judge allowed the
appeal and set aside the judgment and decree of the
Trial Court and, in consequence, dismissed the suit
only on the ground that the suit is barred by limitation.
In other words, the High Court upheld all the factual
findings of the Trial Court in appellants' (plaintiffs')
favour but reversed the finding on the issue of
limitation and held that since the suit is hit by the
period of limitation prescribed under the Indian
Limitation Act, 1963, it is liable to be dismissed on the
ground of limitation. In this view of the matter, the
defendants' appeal was allowed and the suit was
dismissed as being barred by limitation having been
filed beyond the period prescribed under the
Limitation Act giving rise to filing of the present
appeal by way of special leave in the Supreme Court
by the plaintiffs.
The Supreme Court accepted the appeal, impugned
judgement in so far as it holds that the appellants'
(plaintiffs') suit is dismissed as being barred by
limitation was set aside. As a result, the judgment and
January 2019 I 23
LIMITATION
decree of the Trial Court was restored in favour of the the defendants in relation to the suit property.
appellants. TTTTTTT

The operative part of the judgment reads as under:-
As per the allegations in the plaint, the defendants'
possession, according to the plaintiffs, became adverse
when the defendants in Section 145 of the Cr.P.C.
proceedings asserted their right, title and interest
over the suit property to the knowledge of the
plaintiffs for the first time and which eventually
culminated in passing of an attachment order by the
City Magistrate on 23.12.1966. This action on the
part of the defendants, according to the plaintiffs, cast
cloud on the plaintiffs' right, title and interest over
the suit property and thus furnished a cause of action
for claiming declaration of their ownership over the
suit property and other consequential reliefs against
In our opinion, the plaintiffs, therefore, rightly filed
the civil suit on 19.12.1978 within 12 years from the
date of attachment order dated 23.12.1966. The
assertion of the right, title and interest over the suit
property by the defendants having been noticed by
the plaintiffs for the first time in proceedings of
Section 145 of the Cr.P.C. before the City Magistrate,
they were justified in filing a suit for declaration and
possession. It was, therefore, rightly held to be within
limitation by the Trial Court by applying Article 65
of the Limitation Act.
TTTTTTT
Reference : Supreme Court. Ghewarchand & Ors. v.
M/s Mahendra Singh & Ors., civil appeal no. 5870 of
2015.
—————

GLOBAL GLIMPSE

FORMER PAKISTAN PM SENTENCED TO 7 YEARS

IN PRISON FOR CORRUPTION
Former Pakistan Prime Minister Nawaz Sharif has been sentenced to seven years in prison after he was found
guilty of owning assets "disproportionate to his known sources of income." An anti-corruption court in the
country's capital Islamabad imposed a fine of USD $25 million on Sharif. It also disqualified him from holding
public office for 10 years. The disqualification will go into effect after he has served his seven-year prison
sentence. Sharif was found guilty under section 9(a)(v) of Pakistan's National Accountability Ordinance.
According to the ordinance, a public office holder has committed the offense of corruption if the person or any
of his dependents own, possess, or have any right or title in any property or pecuniary resource disproportionate
to the known sources of income and when such a situation cannot be reasonably accounted for by the accused.
The National Accountability Bureau had filed three cases, theAvenfield properties case, the Flagship Investment
case and the Al-Azizia steel mills case against Sharif, following a judgment by the Supreme Court of Pakistan
that disqualified him from holding the office of prime minister for being "dishonest" in terms of Article 62(1)(f)
of the Pakistani Constitution. While Sharif was handed a prison term of 11 years earlier this year in the Avenfield
properties case, Judge Muhammad Arshad Malik had reserved the verdict in the other two cases. The judge
acquitted Sharif in the Flagship Investment case but held the 69-year old former premier guilty of corruption in
the Al-Azizia steel mills case.

24 I January 2019 www.lawteller.com


CLEAR ASSERTION IN PETITION THAT DISPUTES
HAVE ARISEN AND REMAIN UNSETTLED,
ARBITRATOR APPOINTED
M /S TRANS ASIAN SHIPPING SERVICES (PVT.)
LTD. (THE petitioner) by this petition under
Section 11(9) of the Arbitration and Conciliation Act,
1996 (for brevity, 'the Act'), has prayed for appointment
of arbitrator as per Clause 5(1) of the Agency
Agreement dated 31.03.2010 between M/s Trans Asian
Shipping Services (Pvt.) Ltd. and M/s Beacon Shipping
Lines Ltd.
The petitioner is an Indian company and the
respondent company is registered in Bangladesh. It
is averred that the petitioner is a multinational
company having operations in the Indian Sub-
Continent, Middle East and South East Asia and is
actively engaged in diversified activities with its core
business being shipping especially transportation of
containerized cargo. Its activities are related to various
shipping operations all over the world and, therefore,
it engages agents in various countries to undertake
for and on behalf of it such functions. It involves their
combined transport operations in the name of "Trans
Asia Line". It is urged that the valid subsisting
agreement renewed from 31st March, 2010 was
terminated only on 31st March, 2012 with respect to
the combined transport operations. It is asserted that
the respondent committed breach of various terms and
conditions of the agency agreement leading to disputes
between the parties. The petitioner is entitled to
recover dues of USD 134875.8829. Various documents
have been filed to show how the amount is due. It is
asserted that though the petitioner company sent
arbitration notice to the respondent requesting the
latter to nominate the arbitrator within 15 days of the
receipt of the same so that the arbitration board could
deal with the disputes, yet there was no response from
the respondent. Under these circumstances, the
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ARBITRATION
petitioner has prayed for appointment of a sole
arbitrator.
Despite service of notice, there has been no
appearance on behalf of the respondent no. 1 and
other respondents who are the Managing Directors
and Directors of the respondent no. 1 company.
The Supreme Court noted Clauses 18 and 19 of the
agreement,. The said claus reads as under:
"18. GOVERNING LAW
This Agreement shall be governed by and
construed in accordance with the Indian Law.
19. DISPUTES AND ARBITRATION
Any dispute or difference arising under and
or out of or in connection with and/or relating
to this Agreement, which cannot be settled
amicably between the parties, shall be
determined by arbitration and shall be
governed by the law of India. Each party
shall appoint one arbitrator with power to
such arbitrators to appoint, if necessary, an
umpire. The language for arbitration shall be
English, and shall be governed by the Indian
Law."
The Registry was directed to send copy of the order
to the sole arbitrator. The arbitration petition was
accordingly allowed.
The operative part of the judgment reads as under:-
On a perusal of the aforesaid Clauses, there can be
no trace of doubt that an arbitration clause exists and
the same clearly stipulates that any dispute or
difference arising under and/or out of or in connection
with and/or relating to the Agreement unless amicably
settled shall be determined by arbitration. The
assertions in the petition clearly state that disputes
January 2019 I 25
ARBITRATION
have arisen and remain unsettled. In the obtaining
factual matrix and keeping in view the existence of
arbitration clause meant for determination of dispute
by arbitration, we appoint Justice Gyan Sudha Misra,
formerly a Judge of this Court, to act as the arbitrator
to determine the dispute between the parties.
TTTTTTT
Reference : Supreme Cour t. M/s Trans Asian
Shipping Services (Pvt.) Ltd. v. M/s Beacon Shipping
Lines Ltd. Represented by Mr. Mohammed S. Aslam
Managing Director & others, arbitration petition (civil)
no. 20 of 2012.
—————

GLOBAL GLIMPSE

HUNGARY PARLIAMENT RELAXES LABOR CODE IN

FAVOR OF EMPLOYERS
The Hungarian government passed a suite of amendments to the nation's labor laws that will significantly
benefit employers despite vocal protests on the Parliament floor. The new laws increase the number of overtime
hours that employers can require employees to work per year from the code's previously allowed 250 hours to
400 hours. The length of time that employers have to pay workers for overtime was also extended from one to
three years and employers can of fer payment in the form of salary or vacation. Another controversial aspect of
the new laws is the possibility they create for direct arrangements between employers and individual workers,
undermining the role of unions and collective bargaining in the employment process. MPs from Orbán's Fidesz'
leading party proposed the amendments to Hungarian labor law at the end of November with the aim of
addressing the issues of labor shortage, attracting investors, and improving economic growth. Opposition MPs
disrupted the Parliament's plenary sessions with shouts and whistles when their attempt at filibuster failed.
Protests continued during voting, but the measure passed with 130 votes in favor, 52 against and one abstention.
The amendments have also caused discontent among many citizens and trade unions. Socialist leader Bertalan
Tóth called the session "scandalous and illegitimate," claiming that the MPs could vote without their IDs,
which he emphasized was "against all rules."

PRESIDENT TRUMP SIGNS THE SYRIA GENOCIDE RELIEF AND

ACCOUNTABILITY ACT OF 2018 INTO LAW
President Trump signed the Iraq and Syria Genocide Relief and Accountability Act of 2018 into law. The bill
establishes "US policy to ensure that humanitarian, stabilization, and recovery assistance for nationals and
residents of Iraq or Syria, and of communities from those countries, is directed toward ethnic and minority
individuals and communities with the greatest need, including those individuals and communities that are at
risk of persecution or war crimes." President Trump noted in his remarks during the signing ceremony that the
"bill continues [his] administration's efforts to direct U.S. assistance toward persecuted communities, including
through faith-based programs. It also allows the government agencies to assist a range of entities in investigating
and prosecuting ISIS's despicable acts." The new law will enable the federal government or other entities,
including faith-based groups, to provide financial and technical assistance for the humanitarian, stabilization,
and recovery needs of current and former religious minority nationals or residents of Iraq and Syria.

26 I January 2019 www.lawteller.com


SECTION 167 Cr.P.C. MANDATES, INVESTIGATION
BE COMPLETED WITHIN THE PERIOD PRESCRIBED
F IR NO.16 OF 2018 WAS REGISTERED ON
24.03.2018 WITH Police Station Baharwanda
Kalan, Distt. Sawai Madhopur for offences
punishable under Sections 143, 341, 323, 452, 336, 302
read with Section 149 of the Indian Penal Code
against 18 persons. The appellants were named as
Accused Nos.1 and 2 in said crime and came to be
arrested on 08.04.2018. They were subsequently
remanded to police/magisterial custody from time to
time.
Later, Criminal Misc. Petition No.3517 of 2018 was
filed by the complainant praying for fair and impartial
investigation in the matter, in which an order came
to be passed by the High Court on 03.07.2018. Said
order recorded the submission of the Public
Prosecutor as under:
"The learned Public Prosecutor for the State,
to allay the apprehension of the petitioner,
at the outset, has submitted that not only
fair investigation shall be conducted by a
gazetted police officer, not below the rank
of Additional Superintendent of Police but
the report of the investigation along with the
opinion of the Investigating Officer shall be
submitted in the concerned Court within a
period of two months from the date of
receipt of certified copy of this order by the
Investigating Officer."
The petition was disposed of in terms of the
submissions so recorded.
Since the appellants had been in custody from
08.04.2018, the investigation, in terms of Section 167
of the Code of Criminal Procedure (the Code for
Short) had to be completed by 07.07.2018. On
05.07.2018 a report under Section 173 of the Code was
filed by the police before the concerned Judicial
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CRIMINAL LAWS
Magistrate. Since said report was filed by a police
officer lower in rank than an ASP and was thus
contrary to the order passed by the High Court on
03.07.2018, an application was filed by the
complainant placing certified copy of the aforesaid
order dated 03.07.2018. The Magistrate having noted
the contents of said order, returned the chargesheet
with certified copy of the order dated 03.07.2018 to
the police for due compliance. Thus as on the expiry
of 90th day i.e. on 07.07.2018 no report under Section
173 of the Code was on record with the Magistrate.
Immediately after the expiry of 90 days the appellants
filed an application for bail under the provisions of
Section 167(2) of the Code.
The Judicial Magistrate, Khandar , Distt. Sawai
Madhopur by his order dated 09.07.2018 rejected the
prayer for benefit under Section 167(2) of the Code.
It was observed that since the charge-sheet filed on
05.07.2018 was not in compliance of the order passed
by the High Court, the charge-sheet was returned due
to technical fault. It was further observed that the
effect of the order dated 03.07.2018 passed by the
High Court was extension of period within which the
investigation could be completed.
The rejection as aforesaid came to be challenged by
filing SB Crl. Misc. Bail No.9035 of 2018 and the High
Court while rejecting said petition on 23.07.2018
stated as under:
"No case for grant of bail under Section
167(2) Cr.P.C. is made out, as the time was
extended by the High Court in Criminal
Miscellaneous (Petition) No.3517 of 2018 and
Investigating Officer was afforded two
months time to file charge-sheet. It is also
important to note that the Investigating
Officer had produced the charge-sheet
January 2019 I 27
CRIMINAL LAWS
before the concerned Court prior to 90 days
but the same was returned in view of the
order of the High Court."
Against the judgement of the High Court special
leave petition was filed. The Supreme Court accepted
the appeal, and directed that the appellants are
admitted to bail in terms of Section 167(2) of the
Code on such conditions as the trial Court may deem
appropriate.
The operative part of the judgment reads as under:-
The letter of and spirit behind enactment of Section
167 of the Code as it stands thus mandates that the
investigation ought to be completed within the period
prescribed. Ideally, the investigation, going by the
provisions of the Code, ought to be completed within
first 24 hours itself. Further in terms of sub-section
(1) of Section 167, if "it appears that the investigation
cannot be completed within the period of twenty-four
hours fixed by Section 57" the concerned officer ought
to transmit the entries in the diary relating to the case
and at the same time forward the accused to such
Magistrate. Thereafter, it is for the Magistrate to
consider whether the accused be remanded to custody
or not. Sub-Section (2) then prescribes certain
limitations on the exercise of the power of the
Magistrate and the proviso stipulates that the
Magistrate cannot authorize detention of the accused
in custody for total period exceeding 90 or 60 days,
as the case may be. It is further stipulated that on the
expiry of such period of 90 and 60 days, as the case
may be, the accused person shall be released on bail,
if he is prepared to and does furnish bail.
TTTTTTT
In the present case as on the 90th day, there were
no papers or the charge-sheet in terms of Section
173 of the Code for the concerned Magistrate to
assess the situation whether on merits the accused
was required to be r emanded to fur ther custody.
Though the charge-sheet in terms of Section 173
came to be filed on 05.07.2018, such filing not
28 I January 2019
being in terms of the order passed by the High Court
on 03.07.2018, the papers were returned to the
Investigating Officer. Perhaps it would have been
better if the Public Prosecutor had informed the
High Court on 03.07.2018 itself that the period for
completing the investigation was coming to a close.
He could also have submitted that the papers
relating to investigation be filed within the time
prescribed and a call could thereafter be taken by
the Superior Gazetted Officer whether the matter
required further investigation in terms of Section
173(8) of the Code or not. That would have been
an ideal situation. But we have to consider the
actual effect of the circumstances that got unfolded.
The fact of the matter is that as on completion of
90 days of prescribed period under Section 167 of
the Code there were no papers of investigation
before the concerned Magistrate. The accused were
thus denied of protection established by law. The
issue of their custody had to be considered on
merits by the concerned Magistrate and they could
not be simply remanded to custody dehors such
consideration.
TTTTTTT
In our considered view the accused having shown
their willingness to be admitted to the benefits of bail
and having filed an appropriate application, an
indefeasible right did accrue in their favour.
TTTTTTT
We, therefore, allow this appeal and direct that the
appellants are entitled to be admitted to bail in terms
of Section 167(2) of the Code on such conditions as
the trial Court may deem appropriate.
TTTTTTT
We now turn to the subsidiary issue, namely, whether
the High Court could have extended the period. The
provisions of the Code do not empower anyone to
extend the period within which the investigation must
be completed nor does it admit of any such eventuality.
There are enactments such as the T errorist and
Disruptive Activities (Prevention) Act, 1985 and
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Maharashtra Control of Organised Crime Act, 1999
which clearly contemplate extension of period and to
that extent those enactments have modified the
provisions of the Code including Section 167. In the
absence of any such similar provision empowering the
Court to extend the period, no Court could either
directly or indirectly extend such period. In any event
of the matter all that the High Court had recorded in
its order dated 03.07.2018 was the submission that
the investigation would be completed within two
months by a Gazetted Police Officer. The order does
not indicate that it was brought to the notice of the
High Court that the period for completing the
CRIMINAL LAWS
investigation was coming to an end. Mere recording
of submission of the Public Prosecutor could not be
taken to be an order granting extension. We thus
reject the submissions in that behalf advanced by the
learned Counsel for the State and the complainant.
TTTTTTT
Authorities relied upon : 2007 (5) SCC 773, 2001 (5)
SCC 453.
Reference : Supreme Court. Achpal @ Ramswaroop
& Another v. State of Rajasthan, criminal appeal no.
1218 of 2018 [arising out of SLP (Criminal) No. 6453 of
2018].
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GLOBAL GLIMPSE

LAW AGAINST 'ENCOURAGING' OR 'INDUCING' UNLAWFUL

IMMIGRATION STRUCK DOWN
The US Court of Appeals for the Ninth Circuit struck down a federal law that prohibits "encouraging" or
"inducing" unlawful immigration on First Amendment grounds. The court examined whether the law "permits
a felony prosecution of any person who 'encourages or induces an alien to come to, enter, or reside in the
United States' if the encourager knew, or recklessly disregarded 'the fact that such coming to, entry, or residence
is or will be in violation of law.'" In its decision, the court focused on interpreting "encourages" or "induces"
before finding the statute in violation of First Amendment free speech protections. The court found the statute
to be: "unconstitutionally overbroad in violation of the First Amendment because it criminalizes a substantial
amount of protected expression in relation to its narrow band of legitimately prohibited conduct and unprotected
expression." The court requested amicus briefs before coming to their decision. One brief expressed concerns
over organizations and individuals being prosecuted for that "moral and ethical advocacy, such as providing
objective legal advice with respect to immigration law, explaining immigration procedures, laws and status,
expressing views about immigration policy, and even advocating on behalf of immigrants regarding education,
employment and housing conditions. Criminalizing such conduct and speech cannot be tolerated under the
First Amendment and fundamental notions of fairness and public welfare." The case was on appeal on behalf
of Evelyn Sineneng-Smith, who was convicted of three counts of encouraging or inducing unlawful immigration
for private financial gain and three counts of mail fraud in 2010. Singeneng-Smith operated an immigration
consultation business for Filipino health care worker immigrants and fraudulently encouraged them to apply
for permanent residence through the expired Labor Certificate Process. She collected $3.3 million dollars from
clients between August 2004-2007.

www.lawteller.com January 2019 I 29

PANCHAYAT
MANDATORY PROVISION REQUIRES STRICT
COMPLIANCE, SUBJECT TO EXCEPTIONS
O N 30.01.2014, THE APPELLANT ALONG WITH
SEVEN MEMBERS of Masughat Gaon
Panchayat submitted a No Confidence Motion
against the President, respondent no. 6 herein, and
for requisition of a special meeting to prove the
majority of Gaon Panchayat President as per Section
15(1) of the Assam Panchayat Act, 1994 (for brevity,
"the Act ). On 15.02.2014, the Secretary, Masughat
Gaon Panchayat forwarded the said requisition to the
President, Borkhola Anchalik Panchayat stating
therein that the matter had already been put up
before the President, Masughat Gaon Panchayat on
07.02.2014 for taking necessary action but she asked
to wait due to some legal complications. Since the
stipulated period of calling a special meeting was over,
the petition was being referred for taking necessary
action as per provisions of the Act. By virtue of letter
dated 26.02.2014, the Block Development Officer
(BDO), Borkhola Development Block referred the
matter to the Deputy Commissioner, Cachar, Silchar
stating that he had already put the matter before the
President of the concerned Panchayat on 20.02.2014;
that she stated to wait and that since the stipulated
period for calling a special meeting was over , the
matter was being referred to him for taking necessary
action as per the Act.
On 17.03.2014, the Additional Deputy Commissioner,
Cachar, Silchar sent a communication to the BDO,
Borkhola Development Block which is as follows:
"No. CDO.1/2014/11 Dated, Silchar, the 17th
March, 2014
To,
The Block Development Officer,
Borkhola Development Block.
Sub. Special Meeting of No Confidence
Motion against the President Masughat GP.
30 I January 2019
Ref.BDE/E-11/92-98/Pt.II/AP
Establishment, Dated: 26-02-2014
I am to return herewith the proposal
submitted by you for convening a special
meeting of No Confidence Motion against
the G.P. President Masughat G.P. and request
you to take necessary action as per
provision laid down in the Assam Panchayat
Raj Act, 1994 Sec. 15(1).
The extract copy of relevant portion of the
said Act Sec. 15(1) is enclosed herewith for
favour of your kind necessary action.
Encl: As stated above
A.R. Sheikh, ACS
Addl. Deputy Commissioner (Dev.)
Chchar, Silchar"
In compliance of the above communication, on
21.03.2014, the BDO wrote to the President,
Masughat Gaon Panchayat informing her to attend
the special meeting of No Confidence to be
convened on 31.03.2014 at 12:30 p.m. in the office of
the BDO. On 31.03.2014, the meeting was presided
over by BDO. In the meeting, nine members cast their
votes in favour of the No Confidence Motion and
one member cast vote against the No Confidence
Motion. Thus, the President, respondent no. 6 herein,
lost her Presidentship and the Vice President,
appellant herein, was directed to function as incharge
President of the concerned Panchayat for the time
being.
Being aggrieved by the passing of the No Confidence
Motion against her, the respondent no. 6 herein filed
a writ petition, being Writ Petition (Civil) No. 2051 of
2014, before the Gauhati High Court. In the writ
petition, she challenged the legal acceptability and
validity of the resolution expressing want of
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confidence against her in a special meeting held on
31.03.2014. The learned single Judge of the High
Court, vide judgment and order dated 09.08.2016,
allowed the writ petition on the ground that vide
letter dated 17.03.2014, the Deputy Commissioner,
instead of taking action in the matter, merely wrote
back to the BDO to take steps in accordance with
Section 15 of the Act and there was no delegation of
authority to the BDO to preside over the meeting.
No document had been produced showing delegation
of authority. It was the Deputy Commissioner who
ought to have taken steps in terms of the provisions
of the Act by convening a meeting. A meeting
convened and presided over by an authority alien to
the mandate postulated in Section 15 of the Act
could not sanctify the proceeding of a meeting. On
this foundation, the resolution adopted expressing
no confidence against the President was set aside
and declared null and void.
Being grieved by the judgment and order of the
learned single Judge, the appellant filed Writ Appeal
(Civil) No. 310 of 2016 before the Division Bench of
the High Court which, by the impugned judgment and
order dated 24.11.2017, dismissed the Writ Appeal.
The Division Bench held that it is only the Deputy
Commissioner who can convene the meeting within
seven days from the date of receipt of the information
and Section 15 does not authorize the Deputy
Commissioner to delegate his power of convening the
meeting to the BDO. The BDO can preside over the
meeting being a Gazetted officer only when the
Deputy Commissioner is unable to preside over the
meeting and it is so conveyed by him. The appellate
Bench opined that as per Section 15 of the Act, the
meeting was to be convened by the Deputy
Commissioner and no one else and when law
provides to do a certain thing in a certain way, the
thing must be done in that way or not at all. Being
of this view, it concurred with the opinion expressed
by the learned single Judge and dismissed the intra
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PANCHAYAT
court appeal.
Against the judgement of the High Court special
leave petition was filed. The Supreme Court accepted
the appeal, set aside the order passed by the Single
Judge as well as the Division Bench.
The operative part of the judgment reads as under:-
The meeting was held to discuss the Motion of No-
Confidence. The respondent no. 6 who was a
beneficiary attended the meeting and voting had
taken place. It is well settled in law that a mandatory
provision of law requires strict compliance but there
are situations where even if a provision is mandatory,
non-compliance would not result in nullification of
the act. There are certain exceptions. One such
exception is, if a certain requirement or condition is
provided in a statute for the benefit or interest of a
particular person, the same can be waived by him if
no public interest is involved. The ultimate result
would be valid even if the requirement or condition
is not performed. We are disposed to think that in the
obtaining fact situation, no public interest was
affected. The BDO presided over the meeting and
every one knew that the meeting was called for
passing a resolution either in favour of or against the
No Confidence Motion. The respondent no. 6 knowing
fully well participated in the meeting and the
resolution was passed against her. After losing in the
voting process, the assail was made to the procedure
of calling the meeting. We are inclined to think, had
the respondent no. 6 not participated in the meeting,
the matter would have been absolutely different.
Having participated, it has to be held that the
respondent no. 6 had waived the condition precedent.
TTTTTTT
Reference : Supreme Court. Padmini Singha v. The
State of Assam & Others, civil appeal no. 4677 of 2018
[arising out of SLP (Civil) No 33637 of 2017].
—————
January 2019 I 31
MAINTENANCE
HUSBAND RESIDENT OF CANADA NOT TAKING
WIFE TO CANADA, HAS TO PAY MAINTENANCE
T HERE IS A CHEQUERED HIST ORY OF
LITIGATION BETWEEN THE parties. Shorn of
unnecessary details, the relevant facts for
determination of the present appeal are that the
appellant and the respondent got married on 24th
March, 2002, according to Hindu rites and ceremonies
at Infantry Hostel, Delhi Cantonment, Delhi. The
respondent, being a permanent resident of Canada,
had assured the appellant that he would take her with
him to Canada on 28th March, 2002 on a Tourist Visa.
However, soon after the marriage, relations between
the appellant and the respondent became strained. The
respondent, being a permanent resident of Canada,
returned to Canada without making any arrangements
to take the appellant to Canada even on a Tourist Visa,
as assured. Rather, he caused impediments in issuance
of the Tourist Visa to the appellant, by giving an
application in writing in that behalf to the Canadian
Immigration Department. As relations between the
appellant and the respondent became strained, the
appellant filed a complaint before the Women Cell
against the respondent and her inlaws. On 16th July,
2003, she also filed an application under Section 125
of the Code of Criminal Procedure for grant of
maintenance of Rs.2 lakh per month from the
respondent before the Chief Metropolitan Magistrate,
Delhi. Be it noted that during the pendency of the said
application, interim maintenance amount was fixed,
which issue travelled upto the Supreme Court by way
of Criminal Appeal Nos.23472349/2014, which was
disposed of by the Supreme Court on 28th October,
2014 on the finding that the cause of justice would be
subserved if the appellant was granted a sum of
Rs.20,000/ per month as interim maintenance
commencing from November 1, 2014. However, for the
reasons stated by the Family Court in its judgment
dated 28th January, 2015, the final maintenance amount
32 I January 2019
was fixed at Rs.10,000/ per month starting from 17th
July, 2003 till 8th December, 2010 and no maintenance
was granted with effect from 8th December, 2010. The
application for maintenance, filed in 2003, was finally
disposed of on 28th January, 2015 in the following
terms:
"Relief:
In view of my finding on issue no.1 above
the petition u/s125 Cr.P.C. is partly allowed
and the respondent is directed to pay
maintenance to the petitioner as under:
1. From the date of filing of the petition i.e.
17.07.2003 till 08.12.2010, @ of Rs.10,000/ per
month.
2. With effect from 08.12.2010 onwards the
petitioner is not entitled to any maintenance
and her claim in this respect stands
dismissed.
The respondent shall clear off the arrears of
maintenance if any, within three months from
the date of order. Any payment made towards
interim maintenance during the pendency of
the present petition and any maintenance
paid for the concurrent period, as per the
order passed by any other competent court
in any other proceeding/litigation between
the parties, the money already deposited by
the orders of the Superior Courts or by the
order of the predecessor of this court, by the
respondent shall be adjusted, if required. No
orders as to costs.
File be consigned to recordroom."
Against this decision, the appellant filed a revision
petition before the High Court being Revision Petition
(Criminal) No.204 of 2015, which has been partly
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allowed on the following terms:
"85. Consequently, the impugned order dated
28.01.2015 is setaside to the extent of non
granting the maintenance in favour of the
petitioner /wife from 09.12.2010 onwards.
However, the impugned maintenance in
favour of the petitioner/wife till 08.12.2010 at
the rate of Rs. 10,000/ per month is upheld.
The respondent is directed to pay
maintenance amount of Rs.9,000/ per month
from 09.12.2010 onwards. Hence, the present
revision petition is allowed. The arguments
of the learned counsel for the respondent and
the judgments relied upon by the respondent
are of no help.
86. The present petition is allowed and
disposed of in the above terms."
The respondent has not filed any independent petition
to assail the judgment of the High Court rather, it is
the appellant who has questioned the correctness of
the quantum of maintenance amount as determined by
the Family Court and the High Court, by filing the
present appeal. As a result, the sole question to be
decided in the present appeal is regarding the quantum
of monthly maintenance amount payable by the
respondent to the appellant.
According to the appellant, the High Court in the
impugned judgment has inter alia overlooked the
following points while determining the monthly
maintenance amount payable by the respondent to the
appellant:
(i) Order dt. 28.10.2014 passed by this Court
in Criminal Appeal no.234749 of 2014 filed by
Appellant against reduction & nonpayment
of interim maintenance, whereby this Court
granted Rs.20,000/ interim maintenance,
cannot be reduced as there has been no
change in circumstances of parties since
then. Rather, it can only be increased in final
maintenance;
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MAINTENANCE
(ii) Appellant's Evidence, Affidavit of
Financial Status Exhibited proves that
Respondent owns vast capital assets
including 26.50 bigha (6.625 hectare)
agricultural land in Meerut, UP;
(iii) Respondent [B.Com, MA (Economics) &
MBA from USA] has worked in USA, Dubai,
Canada for nearly 20 years and hence can be
presumed to be gainfully occupied, a fact
which he is concealing, besides having
savings, investments, social & medical
security and insurance of Canada Govt.; and
(iv) Respondent's last disclosed salary for the
year 2010, on the basis whereof quantum
could have been calculated. As per the last
disclosed salary of Cad $48,372.34 p.a. (equal
to Rs.21,28,368/ @Rs.44 per Cad.$), monthly
salary comes to Rs.1,77,364/. Even if minimum
increase @ 5% per annum is added to salary
of base year i.e. 2010, Respondent's monthly
salary would be Rs.2,51,800/. In absence of
disclosure, this is a reasonable presumption
for increase in salary. On adding Rs.50,000/
per month agricultural income, Respondent's
monthly income can be presumed to be Rs.3
Lakh.
The respondent, on the other hand, has supported the
decision of the High Court but at the same time, by
way of counter affidavit filed to oppose this appeal,
has urged that the impugned judgment suffers from
flawed reasoning on the following counts:
(a) The High Court does not deal with the
reasoning of appreciation of evidence.
(b) The High Court does not notice that the
Family Court, after a trial, has had an
opportunity to observe the demeanour of the
parties and has commented on it.
(c) In Paragraph 38 of the judgment, the High
Court doesn't overturn the reasoning of the
January 2019 I 33
MAINTENANCE
reduction of the interim maintenance from
Rs.25,000/ (Rupees Twenty Five Thousand
Only).
(d) The High Court does not overturn the
reasoning that she has not established
anywhere that she, as a lawyer and an
admittedly well educated and competent
professional, is unable to maintain herself.
(e) The High Court also noted the
scandalous allegations made by the Petitioner,
against the Respondent's family which would
reinforce his allegation of the Petitioner's
vindictiveness.
(f) The High Court has noted judgments of
various High Courts wherein the principle laid
down is that the laws of maintenance are
supposed to support but not enrich;
payments cannot continue adinfinitum.
(g) The wife, too, is expected to mitigate her
own losses by showing at least some
semblance of effort at work and earning.
(h) The maintenance should be in
accordance with tenure of marriage, meaning
thereby that long tenure marriages with
children or even with just a long term
investment of time, loss of earnings and so
on can be computed monetarily, but not so a
4 day marriage resulting in a 15 year litigation,
driven by a desire for vengeance with a
motive to harass.
As aforesaid, the sole question is about the quantum
of monthly maintenance amount payable by the
respondent to the appellant. In that, the Family Court
has unambiguously held that the respondent
neglected to maintain the appellant, for the elaborate
reasons recorded in its judgment dated 28th January,
2015. That finding of fact has been upheld by the High
Court vide the impugned judgment. The Family Court
has also found as a fact that the appellant was
34 I January 2019
unemployed, though she is an MA in English and
holds a Postgraduate Diploma in Journalism and Mass
Communication and is also a Law Graduate enrolled
with the Bar Council of Delhi. The High Court has not
disturbed that finding recorded by the Family Court.
Resultantly, both the Courts have concurrently found
that, in law, the respondent was obliged to maintain
the appellant.
The Family Court, however, restricted the liability of
the respondent to pay maintenance amount only
between 17th July, 2003 and 8th December, 2010, which
view did not commend to the High Court. The High
Court, instead directed the respondent to pay a
monthly maintenance amount to the appellant even
after 9th December, 2010, but limited the quantum to
Rs.9,000/ per month.
The High Court has recognized the fact that the
appellant was not in a position to maintain herself but
it restricted the maintenance amount to Rs.9,000/ per
month on the finding that the respondent was
unemployed and had no source of income. However,
having found that the respondent was well-educated
and an ablebodied person, the High Court went on to
hold that he was liable to maintain his wife. The High
Court further noted that the respondent had failed to
produce any evidence regarding his unemployment or
that he had no source of income. Resultantly, the High
Court posed a question as to how the respondent was
able to manage his affairs after his return from Canada,
since 2010. Therefore, the High Court applied notional
income basis to arrive at his (respondent's) minimum
income of Rs.18,332/ as per the current minimum
wages in Delhi, as a person possessing qualifications
of B.Com., MA (Eco.) and MBA from Kentucky
University, USA, and on that basis, directed the
respondent to pay Rs.9,000/per month to the appellant
from 9th December, 2010 onwards until further orders.
The Supreme Court directed the respondent to pay the
enhanced maintenance amount, as determined in terms
of this order, to the appellant after duly adjusting the
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amount already deposited in Court/paid to the
appellant till date.
The operative part of the judgment reads as under:-
Having found that the respondent was well-educated
and an ablebodied person, the High Court went on
to hold that he was liable to maintain his wife. The
High Court further noted that the respondent had
failed to produce any evidence regarding his
unemployment or that he had no source of income.
Resultantly, the High Court posed a question as to
how the respondent was able to manage his affairs
after his return from Canada, since 2010. Therefore,
the High Court applied notional income basis to
arrive at his (respondent's) minimum income of
Rs.18,332/ as per the current minimum wages in Delhi,
as a person possessing qualifications of B.Com., MA
(Eco.) and MBA from Kentucky University, USA, and
on that basis, directed the respondent to pay
Rs.9,000/per month to the appellant from 9th
MAINTENANCE
December, 2010 onwards until further orders.
TTTTTTT
Be that as it may, the High Court took into account
all the relevant aspects and justly rejected the plea of
the respondent about inability to pay maintenance
amount to the appellant on the finding that he was
well educated and an ablebodied person. Therefore,
it was not open to the respondent to extricate from
his liability to maintain his wife.
TTTTTTT
The view so taken by the High Court is unassailable.
Indeed, the respondent has raised a plea to question
the correctness of the said view, in the reply affidavit
filed in this appeal, but in our opinion, the finding
recorded by the High Court is unexceptionable.
TTTTTTT
Reference : Supreme Court. Reema Salkan v. Sumer
Singh Salkan, criminal appeal no. 1220 of 2018 [arising
out of SLP (Crl.) No. 5495 of 2018].
—————

GLOBAL GLIMPSE

AUSTRALIA PARLIAMENT APPROVES BILL GIVING LAW

ENFORCEMENT ACCESS TO ENCRYPTED DATA
After contentious debate, the Australian Labor Party (ALP) backed down and voted to pass an encryption bill.
Deemed the "Assistance and Access" Bill, the legislation makes changes to Australia's telecommunication laws
by allowing police and security agencies to issue notices to tech companies forcing them to allow access to
necessary encrypted data for investigations. Under the bill, the government can issue three different types of
notices requesting data using interception capabilities or building new methods of interception that could
undermine encryption and potentially install backdoors. Tech companies who refuse to cooperate could face
legal consequences and huge fines. The bill is meant to help law enforcement track criminals including terrorists
and sex offenders, but critics are worried about the ramifications of the bill's vague language.The bill's language
defines an intended communication provider as "the person provides an electronic service that has one or
more end-users in Australia" which covers almost every website accessible in Australia. The broad language
used throughout the bill was criticized by ALP members as potential for legal loopholes. Critics also feared that
the Australian government would now be susceptible to data hacks with this new reservoir of information from
tech companies. Along with this massive change, it now sets a path for other countries to follow in Australia's
footsteps by giving their governments authority to gain access to secured information for the sake of national
security.

www.lawteller.com January 2019 I 35

 FLASH POINTS
SC WARNS HIGH COURTS OVER said the idea behind the venture was that "a public
VACANCIES institution should be opened up in a limited way." An
in-house think tank was also launched to strengthen
The Supreme Court cautioned the States and the High
the court's knowledge infrastructure. The tours are free
Courts that it would resort to a "centralised selection
of charge and will be conducted between 10 a.m. and 1
mechanism" if they did not act promptly to fill the over
p.m. every Saturday, except on declared holidays. The
5,000 judicial posts lying vacant in the lower judiciary.
excursion will be rounded off with a visit to the Supreme
The Bench said the States and the High Courts were
Court museum. A guide will educate batches of 20
under its "constant gaze" on this issue. "We will do
visitors on historic cases and the architecture of the
it ourselves," the Chief Justice warned them in a suo
building. The tour will culminate in a short film about
motu hearing on the vacancies in the subordinate
the court. Visitors will have to comply with the tour
courts. The court had in a judgment given a time frame
rules, which include a ban on smoking, bringing
of one year for completing the recruitment of additional
eatables, tobacco items, cameras and backpacks. "Being
district judges and nine months for civil judges, junior
the highest legal authority of the nation, it is imperative
division. The remarks from the Bench came after it
that visitors maintain proper decorum commensurate
perused the records of various High Courts, which
with the dignity of the esteemed establishment," a
make the appointments to the subordinate judiciary for
statement issued by the court said. Visitors can book
each State. The court said their attitude towards filling
their tour online. Once they arrive, they will be ushered
the vacancies was at best "casual". "All High Courts
through the majestic courtrooms and the plush Judges'
and the Public Service Commission are very casual,"
Library and introduced to the imposing structure in all
the court observed. "The most important part is
its glory. According to the book Courts of India Past to
infrastructure. If there are 22,036 sanctioned posts, the
Present, compiled by an editorial board, led by Justice
infrastructure provided must be able to maintain the
S.A. Babde, the Supreme Court structure is unlike the
functioning of those judges. If the infrastructure - like
President's House and the Parliament Building, which
courtrooms and support staff - are only for 18,000 or
hark back to the colonial period and were designed by
19,000 posts, how will they function? This is where
British architects. Designed by the architect Ganesh
the role of the State governments comes in," the court
Bhikaji Deolalikar, the court, with its pillared portico and
observed. The Bench found that in Haryana, the
the front verandah, is in the neo-classical style of
advertisement for filling 60 posts of judges was
architecture. An aerial view of the building reveals that
announced in 2015 and 19,000 law graduates applied,
the architecture symbolises the scales of justice. The
but the exam was cancelled. When a fresh
dome crowning the central wing roofs the court of the
advertisement was issued in 2018, 13,000 more
Chief Justice of India, the largest courtroom in the
candidates applied. But the website crashed.
building. In the middle of the interior lawn and amid
ornamental shrubs is the sculpture of a mother and son,
SUPREME COURT BECOMES SPOT made by modernist sculptor Chintamuni Kar. According
FOR TOURIST ATTRACTION to Courts of India, it represents Mother India embracing
The Supreme Court, one of independent India's first her son, the Indian republic. The book in the son's hand
major buildings to be designed by an Indian architect, is the law of the land. Overlooking the front steps
has opened its doors for guided tours. Chief Justice of leading to the First Court is a statue of Mahatma
India Ranjan Gogoi launched the project at a small Gandhi, the Father of the Nation, in a sitting position,
function held at the Judges' Lounge in the court. He deep in thought.

36 I January 2019 www.lawteller.com


RELIEF FOR ASSAM RESIDENTS
The Supreme Court came on the same page as the
government, allowing more than 40 lakh people left out
of the draft National Register of Citizens (NRC) in
Assam to use five additional documents, including the
ration card, to claim their Indian legacy. Consequently,
the court extended the last date for filing of claims and
objections from November 25 to December 15. The
deadline for issuing notices to claimants, after
digitisation and completion of all formalities, is January
15, 2019. The verification of their claims would begin.
Further details of the time schedule, including the time
for completion of verification/enquiry of the claims, will
follow at the appropriate time. In a major relief to
claimants who did not find a place in the final draft of
the NRC released, a Special Bench allowed them to use
any of the five documents - the NRC, 1951; the names
in the electoral rolls up to March 24, 1971; citizenship
certificate; refugee registration certificate; certified
copies of the pre-1971 electoral rolls, particularly those
issued from the State of Tripura; and ration card. The
Bench disagreed with NRC Co-ordinator Prateek
Hajela's conclusion in his October 4 report that since
these five documents could be easily forged, they
should not be permitted to be used. "We do not think
you are right, Mr. Hajela," Justice Nariman told him.
"We are of the view that objection of Mr. Hajela to
the five documents in question and specifically with
regard to the documents listed at Serial Nos. (i) and
(ii) i.e. names in NRC, 1951; and names in Electoral Roll
up to 24th March, 1971 is based entirely on a
possibility of abuse which, however, strong, cannot
be an acceptable reason in law to exclude the
documents from consideration," Chief Justice Gogoi
observed order for the Bench. The court had been
worried about how fail-safe these documents would
prove to be. Chief Justice Gogoi had orally wondered
whether these documents could be 'manufactured.' Mr.
Hajela's negative report had confirmed the court's
apprehensions. He had advised against the use of the
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FLASH POINTS
five documents. Instead, the court struck a balance.
It said the answer lay in allowing the use of these five
records, subject to additional and thorough
verification. It asked Mr . Hajela to prepare the
groundwork for fool-proof verification of claims. The
court directed Mr. Hajela to submit a report. The five
documents are part of a total of 15 listed by the Centre
in its draft Standard Operating Procedure (SoP) for
vetting the claims and objections of over 40 lakh
people excluded from the final draft of the NRC. The
court went on to approve the modified SoP . All
through, the Centre has vociferously supported the
inclusion of the five documents.
BOFORS: SC REJECTS CBI PLEA
The Supreme Court refused to entertain a CBI appeal
to revive charges against the Hinduja brothers in the
Rs. 64-crore Bofors guns payoffs case. The Bench said
the court was not "convinced" by CBI's explanations
for the "inordinate delay" of 12 years to file an appeal
against a Delhi High Court order discharging the three
Hindujas in May 2005. The usual time limit for filing an
appeal is 90 days. This appeal was filed in February
2018. "We are not convinced... we do not like to
entertain [the appeal]," Chief Justice Gogoi addressed
Attorney-General K.K. Venugopal, representing the
CBI. In its appeal, the CBI blamed the UPA-I government
for the delay. Incidentally, the agency filed the appeal
against the legal advice of Mr. Venugopal. In his written
advice, the Attorney-General had shot down the idea
of moving the court after 12 years without a convincing
reason. The country's top law officer had even foretold
that the court would dismiss the appeal for the reason
of delay alone. Dismissing the appeal, the Bench,
however, drew the CBI's attention to the pendency of
an identical appeal filed by a private person, advocate
Ajay Agarwal, against the High Court order. The court
pointed out that the CBI was named a party in Mr.
Agarwal's appeal and could use the opportunity to
argue its case against the Hindujas. Incidentally, this
January 2019 I 37
FLASH POINTS
too had been part of Mr. Venugopal's legal advice to
the agency. The Delhi High Court terminated
proceedings against Europe-based industrialist brothers
S.P. Hinduja, G.P. Hinduja, P.P. Hinduja and M/s.
Kartongen Kemi Och Forvaltning AB (formerly M/s AB
Bofors) in the Bofors scam. The case had rocked the
Rajiv Gandhi government and involved the purchase
of 400 155mm FH 77-B guns, equipment, ammunition and
so on from the Swedish company for Rs. 1,473.72 crore
in 1986-87.
COURTS SHOULDN'T HELP MAKE
HALF-BAKED DOCTORS
Courts should not play a role in the making of "half-
baked doctors" by allowing unequipped medical
colleges to carry out admissions, the Supreme Court
has cautioned in a recent verdict. The Bench dealt with
the admission of over 500 students to four private
medical colleges in Kerala, which were found to have
poor infrastructure. The State High Court had set aside
the decisions of the Medical Council of India and the
government to bar admissions to these colleges in
2018-19. It gave the colleges a second chance to
remove the deficiencies and asked the MCI to carry
out fresh inspections. It said the MCI could take
"appropriate action" if the defects continue to remain.
Quashing the High Court order, the Supreme Court
held that admissions of students should not be on
such conditional basis. Why had the High Court
allowed the admissions to be carried on despite
knowing very well that the colleges were sub-
standard? "Such orders may ruin the entire career of
the students. Once permission to admit students is
granted, it should not be such conditional one,"
Justice Mishra wrote in his 37-page judgment for the
Bench. "Half-baked doctors cannot be let loose on
society like drones and parasites to deal with the lives
of patients in the absence of proper educational
training." "It would be dangerous and against the right
to life itself in case unequipped medical colleges are
38 I January 2019
permitted to impart substandard medical education
without proper facilities and infrastructure," the
Supreme Court observed.
ORDER ENHANCING LIFE TERM TO
DEATH RECALLED
The Supreme Court has recalled its 2009 judgment
converting life imprisonment for three persons, found
guilty of rape and murder, to death. The Review Bench
found that the three convicts did not have a lawyer
to defend them in the apex court during the hearing
of an appeal filed by the Maharashtra government for
enhancement of their sentence. Deciding their review
petition against the 2009 judgment, the Bench allowed
the three men to file fresh appeals. These appeals
would now be heard by an appropriate Bench of the
apex court. "They have been deprived of an
opportunity of engaging counsel and of urging such
submissions as they may have been advised to urge
in defence to the appeals filed by the State for
enhancement," the Supreme Court held in an order on
October 31. The Bench also threw a life-line to three
other co-accused in the case. These three had already
been sentenced to death by the lower courts. They
had separately approached the Supreme Court for a
stay of their impending execution. In 2009, the
Supreme Court had dismissed their appeals against
their death penalty. Now, almost nine years later, the
court reasoned that since the first three men have been
granted an opportunity to file fresh appeals, their co-
accused should also be given the same chance before
the Supreme Court.
LONG COHABITATION IS PRESUMED
MARRIAGE
The Supreme Court has upheld the "presumption" that
a couple who live together as husband and wife are
legally married and the woman can claim maintenance
under Section 125 of the Code of Criminal Procedure.
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The Bench observed that it is "fairly well settled that
the law presumes in favour of marriage and against
concubinage when a man and woman have cohabited
continuously for a number of years". Citing past
judgments of the apex court, the Bench quoted that
"where a man, who lived with a woman for a long time
and even though they may not have undergone legal
necessities of a valid marriage, should be made liable
to pay the woman maintenance if he deserts her". "The
man should not be allowed to benefit from the legal
loopholes by enjoying the advantages of a de facto
marriage without undertaking the duties and
obligations. Any other interpretation would lead the
woman to vagrancy and destitution, which the
provision of maintenance in Section 125 is meant to
prevent," the court said in a recent judgment. The
judgment was based on an appeal filed by a woman
against a Karnataka High Court decision of June 2009.
The High Court set aside a family court order, directing
the man she lived with since 1998, and had two
children by, to pay maintenance. Their relationship had
been solemnised in a temple. He had later abandoned
the family. The family court had ordered him to pay
the woman Rs. 3000 and the children Rs. 2500 each
on a monthly basis. The court said they were accepted
as husband and wife by society . The man had,
however, moved an appeal in the High Court, which
pronounced that there was no proof that she was his
legally-wedded wife.
'NO DOUBLE JEOPARDY BAR IF
THERE WAS NO TRIAL'
The bar of double jeopardy does not arise if an
accused was discharged of a criminal offence, even
before the commencement of trial, on the basis of an
invalid sanction for prosecution, the Supreme Court
has held. Article 20 (2) of the Constitution mandates
that a person cannot be prosecuted or punished twice
for the same offence. The Bench held in an judgment
that if an "accused has not been tried at all and
www.lawteller.com
FLASH POINTS
convicted or acquitted, the principles of double
jeopardy cannot be invoked at all." If an earlier order
of sanction was found to be invalid, there is no bar
for the competent authority to issue a proper order of
sanction for prosecution, Justice Banumathi, who
wrote the verdict for the Bench in a case under the
Prevention of Corruption Act, observed. "The courts
are not to quash or stay the proceedings under the
Act merely on the ground of an error, omission or
irregularity in the sanction granted by the authority
unless it is satisfied that such error , omission or
irregularity has resulted in failure of justice," the
Supreme Court observed. The judgment is based on
an appeal filed by the State of Mizoram against an
order passed by the Gauhati High Court in August
2015, upholding a Special Court decision to decline to
entertain a second chargesheet filed in a corruption
case against the accused, Dr. C. Sangnghina, on the
ground of double jeopardy.
'DO YOU VIEW UNDERTRIAL
PRISONERS AS HUMANS?'
The Supreme Court asked the government whether it
viewed undertrial prisoners and children who suffered
primeval conditions in jails and observation homes as
"human beings." Undertrial prisoners accounted for
62% of India's prison population, against the world
average of 18-20%, the court said. The statistic raised
questions about the humaneness of our system, it said.
The Bench said officials hardly went out of their
offices to visit these prisons or observation homes. It
took two Supreme Court judges to visit the Faridabad
jail and observation home to understand the full horror
of the living conditions of the inmates. "Just go and
have a look… Your officials do not know because they
have never been to a jail or observation home. They
do not step out. Taps are leaking, no whitewash,
clogged sewage, toilets not working… The situation
is very pathetic. That's why two judges of the Supreme
Court got very agitated when they saw...what is
January 2019 I 39
FLASH POINTS
happening," Justice Lokur addressed Additional
Solicitor-General Aman Lekhi, for the Centre. The two
judges informed the court of their visit, and the court
took cognisance of the letters. "The whole thing has
become a joke… Do these people have no rights? Are
they even seen as human beings. These are children…
Are these children not citizens of our country? Please
visit these jails and observation homes," Justice Lokur
said. The court compared the condition of the
undertrial prisoners and the juveniles in observation
homes with that of influential prisoners who watched
TV shows on sofas and "enjoy life" in prisons. "Is
there a parallel system running in jails? Do they [the
influential prisoners] have special rights? What have
you done about Tihar Jail," Justice Lokur asked Mr.
Lekhi, showing him media reports and pointing to one,
saying "he [the prisoner] is enjoying TV and God
knows what all he is enjoying."
VACANCIES IN THE FORENSIC LABS
ALARMING
A Ministry of Home Affairs document in the Supreme
Court shows that vacancies in the country's forensic
labs are alarmingly high even as cases pile up in trial
courts and undertrial prisoners languish in jails. The
forensic laboratories, at both the Central and State
levels, are used to examine crucial evidence which
could decide between life and death in many criminal
cases. The role of the laboratories have expanded
lately with the emergence of cybercrime and drug-
related offences. They also play a major role in using
medical evidence to crack sex crimes. However ,
responding to the report, a Bench described the
situation in these labs as "utter chaos, utter chaos".
The document of November 20 shows that 164 posts
out of total 450 in the six Central Forensic Science
Laboratories (CFSLs) under the Directorate of Forensic
Science Services are lying vacant. These labs are
located in Bhopal, Chandigarh, Guwahati, Hyderabad,
Kolkata and Pune. In fact the Central Bureau of
40 I January 2019
Investigation's only CFSL has 87 vacancies out 184
total sanctioned posts. Justice Gupta highlighted how
40% of the total 7,582 sanctioned posts in the 31
forensic labs across various States are vacant. This
makes it 3,685 vacancies in States' FSLs. In Uttar
Pradesh's single State Forensic Science Laboratory
(SFSL), of 1,132 sanctioned posts, 830 are vacant.
"That makes it an 80% vacancy ," Justice Lokur
remarked. Likewise, Bihar's SFSL has 126 vacancies
out of a total sanctioned strength of 191 posts, while
Tamil Nadu's lab has 124 vacancies out of a total
sanctioned strength of 496. In Delhi, there are 78
vacancies out of 318 sanctioned posts. "Surely these
are not vacancies for peons. Officers ensure they have
at least four peons to one of ficer. These vacancies are
for higher officers," Justice Gupta orally observed.
"And people are dying in jails... how long will it be
like this?" Justice Lokur added.
SC DECLINES TO EXAMINE TRIPLE
TALAQ ORDINANCE
The Supreme Court declined to examine the legality
of an ordinance, promulgated on September 19,
declaring triple talaq a crime. The Bench said two
months have already passed since the promulgation
of the ordinance, which has even otherwise a life of
only six months unless ratified by Parliament. The
Chief Justice left it to Parliament to debate the
constitutionality of the ordinance, saying the winter
session is shortly to commence. "We don't like to
interfere," Chief Justice Gogoi addressed the lawyers
for Samastha Kerala Jamiathul, one of the biggest
religious organisations of Sunni Muslim scholars and
clerics in Kerala, which had challenged the ordinance.
Senior advocate Raju Ramachandran said the very
promulgation of the ordinance is a "fraud on the
Constitution". But Chief Justice Gogoi restrained the
line of argument, saying it was not necessary to "go
so high". The court allowed the petitioner to withdraw
the plea. The Jamiathul said the only objective of the
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ordinance is "to punish Muslim husbands." The
Women (Protection of Rights on Marriage) Ordinance,
2018 imposes a maximum sentence of three-year
imprisonment when a husband pronounces triple talaq.
TO RESIGN IS A RIGHT OF THE
EMPLOYEE
To resign is a right of an employee and he cannot be
forced to continue, the Supreme Court has said in a
recent order. An employee cannot be compelled to
serve in case he is not willing "until and unless there
is some stipulation in the rules or in the terms of
appointment or disciplinary proceedings is pending or
contemplated which is sought to be avoided by
resigning from the services." The Bench made the
observations while allowing the appeal of a former Air
India engineer, who was refused his dues by the
Central government carrier. Sanjay Jain served in Air
India for the stipulated minimum five-year period
before he resigned and served his 30-day notice. He
joined a private airline and later approached his former
employer to pay his dues, Provident Fund, gratuity and
unpaid wages. Air India said it had refused to accept
his resignation and asked him to re-join duty. The
Bombay High Court dismissed his petition in
September 2010. Subsequently, Mr. Jain moved the
Supreme Court. Setting aside the High Court's
decision, the Supreme Court ruled that Mr. Jain had
"rightly terminated the relationship by serving the
requisite notice for his resignation."
CHANGES IN PC ACT CHALLENGED
The Supreme Court ordered the government to
respond to a petition challenging two amendments to
the Prevention of Corruption Act. The amendments
were the introduction of S. 17 A (1) by which prior
permission for investigation of corruption offences
was required from the government and the removal of
S. 13 (1) (d) (ii) (criminal misconduct) from theAct. The
www.lawteller.com
FLASH POINTS
latter provision had earlier made it an offence for a
public servant to abuse his position to give pecuniary
or other advantage to a third party. The Bench asked
the government to file a response in six weeks. "We
think you are entitled to a hearing," Chief Justice
Gogoi addressed advocate Prashant Bhushan, who
appeared for the petitioner NGO, Centre for Public
Interest Litigation (CPIL). Mr. Bhushan said the
removed provision of 'criminal misconduct' was used
in most prosecutions of public servants under the Act
in cases where there might not be a charge of directly
accepting bribes. In this context, he referred to the
prosecution of officials in the coal scam where officials
gave leases to companies who they knew were not
eligible. As for the new provision of Section 17(A),
CPIL said that seeking sanction before commencement
of investigation in a corruption case "not only takes
away the element of secrecy and surprise but
introduces a period of delay during which vital
evidences can be manipulated or destroyed". "It gives
time to the accused to lobby by employing various
means for denial of permission. The seeking of
permission in itself becomes a cause for corruption as
it introduces yet another discretion, at the crucial stage
of commencement of investigation," the petition said.
AGE BAR FOR NEET QUASHED
The Supreme Court allowed candidates aged 25 years
and above to apply and appear in the NEET-UG 2019
examination. The three-judge Bench observed that "If
they are allowed to appear in the examination, they
shall take the examination provisionally subject to the
final outcome of these matters (case)". The court
directed the National Testing Agency (NTA), set up
to conduct the NEET exams, to keep its portal open
for a week to enable candidates to apply for the exam.
The court further impleaded NTA as a party in the
case, asking it to file its response in four weeks and
posted the case for January.
ooooooo
January 2019 I 41
LAND LAWS

WHEN LAW PRESCRIBES PROCEDURE, THAN

THAT PROCEDURE HAS TO BE FOLLOWED

T HE SHORT QUESTION WHICH ARISES IN

THESE APPEALS IS whether the Special
Tahsildar (Land Acquisition), Cochin Refineries
act as Collector even in relation to land acquired for
the Infopark. The writ court dismissed the writ petition
in so far as this objection was concerned. The
Limited, Ernakulam, Vytilla, Cochin-19 [hereinafter appellants filed Writ Appeal No.2446 of 2008 which was
referred to as "the Special Tahsildar (LA), K.R.L."] was also dismissed on 06.01.2009.
empowered to act as Collector under the Land Against the judgement of the High Court special leave
Acquisition Act, 1894 (hereinafter referred to as "the petition was filed. The Supreme Court accepted the
Act"), in respect of lands acquired by the State for an appeal, the judgements and orders of the High Court in
Infopark. Writ Appeal No.2446 of 2008 dated 06.01.2009 andWrit
On 05.12.2005, the Government of Kerala accorded Petition No.9735 of 2008 dated 25.11.2008 were set aside.
administrative sanction to acquire 177.79 acres of land The operative part of the judgment reads as under:-
in Ernakulam district for the purpose of the Infopark.
On perusal of the notification it is apparent that by
The Government also accorded sanction to invoke the
the said notification the Government of Kerala had
urgency clause under Section 17(1) of the Act.
appointed an officer by the name of Special Tahsildar
Thereafter, on 15.12.2005, the District Collector ,
(LA), K.R.L., to perform the functions of a Collector
Ernakulam issued a Government Order appointing the
under the Act only within the area of Ernakulam
Special Tahsildar (LA), K.R.L. as the Land Acquisition
District, only in respect of any land within his
Officer for the acquisition of land for the Infopark.
jurisdiction for the acquisition of which a notification
Thereafter, a notification was issued under Section 4(1)
under sub-section (1) of Section 4 of the Act has been
of the Act. In the said notification, it is mentioned that
published.
in view of the order of the Government, application of
TTTTTTT
Section 5(A) of the Act has been exempted by
On a careful analysis of the notification, in our
invoking the powers under Section 17(4) of the Act.
opinion, the State has empowered the specified officer
According to the appellants 23.92 acres of land
i.e. the Special Tahsildar (LA), K.R.L. only in respect
belonging to them was sought to be acquired along
of the land for which the notification under sub-
with the land of others. The appellants filed objections
section (1) of Section 4 had already been issued. The
under Section 5A(1) of the Act. According to them no
Special Tahsildar (LA) K.R.L. was not empowered by
action was taken on their objections and, thereafter,
the notification of 21.08.1989 to issue any fresh
they filed Writ Petition No.9735 of 2008 in the High
notification in respect of other land. Though the
Court of Kerala seeking various reliefs including
explanatory note may not be part of the notification
quashing of the notification issued under Section 4(1)
the same can definitely be used to resolve the
and 17(4) of the Act. The main ground raised was that
ambiguity, if any, in the notification. The explanatory
the Special Tahsildar (LA), K.R.L. was not entitled to
note clearly indicates that the notification has been
perform the functions of Collector under the Act. The
issued only to empower the officer to act as Collector
stand of the State was that the Special Tahsildar (LA),
in respect of 320 acres of land.
K.R.L. was entitled to act as Collector for the entire
TTTTTTT
Ernakulam District and was therefore empowered to

42 I January 2019 www.lawteller.com


We make it clear that if any land owners have, without
any objection to the authority of the Special Tahsildar
(LA) K.R.L., accepted the award of the Collector or
have filed objections with regard to quantum and area
only and have not disputed the authority of the
Special Tahsildar (LA) K.R.L. to act as Collector, such
land owners cannot take benefit of this decision. As
far as this decision is concerned it will only enure for
the benefit of the appellants before us.
TTTTTTT
The High Court took the view that since public interest
is concerned a liberal view has to be taken and when
acquisition proceedings are completed or going on for
acquiring large portions of lands required for public
purpose, such acquisition cannot be stopped on
"cryptic hyper technical ground". We are not at all in
agreement with this view of the High Court. It is a
settled position of jurisprudence that when the law
prescribes a procedure to be followed for doing any
act or thing then that procedure has to be followed and
any violation of such procedure would make the act
voidable, if not void. There is no doubt that the State
is empowered to appoint any officer other than a
Collector or Deputy Commissioner to act as Collector.
However, the notification should be clear as to for what
purpose such Collector is being appointed. As far as
the present case is concerned the Special Tahsildar
LAND LAWS
(LA), K.R.L. was appointed as Collector only in respect
of acquisition of land relating to Cochin Refineries
Limited within Ernakulam District. If the State wanted
him to act as Collector in respect of other acquisitions,
nothing prevented the State from issuing a fresh
notification in this regard, but relying upon the
notification dated 21.08.1989 the Special Tahsildar
(LA), K.R.L. cannot act as Collector in respect of other
acquisitions. This is not a hyper technical ground.
When the State wants to acquire the property of a
citizen which is a constitutional right of any citizen
under Article 300(A) of the Constitution of India it
must strictly follow the procedure prescribed by law. It
cannot urge that because the acquisition is in public
interest a more liberal view is to be taken. There is no
question of taking a liberal or conservative view. The
only view which has to be taken is the legal view. In
our considered opinion the Special Tahsildar (LA),
K.R.L. was not authorized to act as Collector for the
entire District of Ernakulam and is empowered only in
respect of acquisitions for which notification had
already been issued for acquiring land for the Cochin
Refineries Limited.
TTTTTTT
Reference : Supreme Court. E.A. Aboobacker & Ors.
v. State of Kerala & Ors., civil appeal no. 2772 of 2011.
—————

GLOBAL GLIMPSE

FEDERAL APPEALS COURT ALLOWS DEPORTATION OF IRAQI NATIONALS

The US Court of Appeals for the Sixth Circuit ruled 2-1 that the district court lacked jurisdiction over the removal
and detention claims raised to prevent the deportation of Iraqi nationals. This decision affects the deportation of
Iraqi nationals who committed criminal offenses while in the US. Prior to 2017, Iraq did not facilitate repatriation
efforts, leaving these individuals under the supervision of US Immigration and Customs Enforcement. Since then,
eight Iraqi nationals have been deported and arrangements made for 200 more deportees.The arrest of these 200
individuals by Immigration and Customs officials in preparation of deportation initiated the case before the district
court in Michigan. The majority in the appeals court argued that not only was the district court acting out of its
scope of jurisdiction when it halted the removal of Iraqi nationals, but case law "unambiguously strips federal
courts of jurisdiction to enter class-wide injunctive relief for … detention-based claims."

www.lawteller.com January 2019 I 43

PRACTICE & PROCEDURE
REMAND WOULD NOT ENTITLE DEFENDANTS
TO FILE CROSS OBJECTIONS
T HE APPELLANT IS THE PLAINTIFF WHEREAS
THE RESPONDENTS are the defendants in the
civil suit out of which this appeal arises.
The appellant (plaintiff) claiming to be the landlord of
a shop situated in holding No.257 (old)/58 (new) at
Tulapatty Silchar Town (hereinafter referred to as "suit
premises") filed a Civil Title Suit No.189/1977 against
one Deo Chand Sarda (Respondent No.1) in the Court
of Munsiff No.1 Cachar at Silchar. The suit was filed
for claiming arrears of rent and eviction from the suit
premises.
According to the appellant (plaintiff), respondent No.1
was the appellant's tenant on a monthly rent. It was
averred that respondent No.1 paid some money in
advance to the appellant, which the appellant adjusted
against the rent ending July 1977. It was averred that
the respondent thereafter failed to pay rent from
August 1977 despite repeated demands and hence the
suit was filed to claim arrears of rent and the eviction
of the respondent as defaulter in payment of rent. The
suit was filed under the provisions of Assam Urban
Areas Rent Control Act (for Short 'The Act').
Defendant No.2 got himself impleaded in the suit
claiming to be the necessary party. It was permitted.
The respondents filed the written statement and
denied the material averments of the plaint.
The Trial Court on the basis of the pleadings framed
following issues:
"1. Whether the suit is maintainable in fact
and law?
2. Whether the suit is bad for non joinder of
necessary parties?
3. Whether there is cause of action for this
suit?
4. Whether the defendant No.1 is a tenant
under the plaintiff in respect of the suit house
44 I January 2019
and if so whether defendant No.1 is a
defaulter in payment of rent since August
1977?
5. Whether the plaintiff is entitled to a decree
as prayed for?
6. To what relief/reliefs the parties are found
entitled to?"
Parties adduced their evidence. The Trial Court by
judgment/decree dated 23.12.1999 dismissed the suit. So
far as issue No.1 is concerned, the Trial Court answered
in favour of the plaintiff by holding that the suit is
maintainable. So far as issue No.2 is concerned, it was
also answered in plaintiff's favour by holding that the
suit is not bad for non-joinder of necessary parties and
maintainable. So far as issue No.3 is concerned, it was
answered against the plaintiff by holding that there was
no cause of action to file a suit. So far as No.4 is
concerned, it was divided in two parts. So far as first
part is concerned, it was answered in plaintiff's favour
wherein it was held that defendant No.1 was the
plaintiff's tenant in respect of the suit premises. In other
words, it was held that the relationship of the landlord
and tenant is established between the plaintiff and
defendant No.1 in relation to the suit premises. So far
as second part of issue No.4 is concerned, it was held
against the plaintiff by answering that defendant No.1
is not a defaulter in payment of rent to the plaintiff. By
answering these four issues, the Trial Court dismissed
the plaintiff's suit.
The plaintiff felt aggrieved and filed first appeal before
the Civil Judge No.1 (Silchar), Cachar being Title
Appeal No.14/2000. It is pertinent to mention here that
the defendants did not file any cross objection under
Order 41 Rule 22 of Code of Civil Procedure
(hereinafter referred to as "the Code") against any of
the findings recorded by the Trial Court against the
defendants in the appeal.
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By judgment dated 14.08.2002, the first Appellate
Court dismissed the appeal. The plaintiff felt aggrieved
and filed revision in the Gauhati High Court. By
impugned order, the High Court (Single Judge)
dismissed the plaintiff's revision and affirmed the
judgment of the First Appellate Court which gives rise
to filing of the present appeal by way of special leave
by the plaintiff in Supreme Court.
Against the judgement of the High Court special leave
petition was filed. The Supreme Court accepted the
appeal, impugned order and the judgement of the First
Appellate Court were set aside. The case was
remanded to the First appellate Court for deciding the
plaintiff's first appeal afresh.
The operative part of the judgment reads as under:-
This question, i.e., first part of issue No.4 was decided
by the Trial Court in plaintiff's favour wherein it was
held that defendant No.1 was the plaintiff's tenant. So
far as second part of issue No.4 is concerned, it was
in relation to the question as to whether defendant
No.1 was a defaulter in payment of rent to the plaintiff.
This question was answered by the Trial Court against
the plaintiff and in defendant No.1's favour wherein
it was held that defendant No.1 did not commit any
default in payment of rent to the plaintiff. It is for this
reason, the suit was dismissed.
TTTTTTT
The plaintiff in his first appeal did not challenge the
finding of the Trial Court recorded on the first part of
issue No.4 and rightly so because it was already
answered by the Trial Court in his favour. The First
Appellate Court, therefore, could not examine the
legality and correctness of this finding in plaintiff's
appeal unless it was challenged by the defendants by
filing cross objection under Order 41 Rule 22 of the
Code in the appeal.
TTTTTTT
As mentioned above, the defendants though suffered
the adverse finding on first part of issue No. 4 but did
not file any cross objection questioning its legality.
www.lawteller.com
PRACTICE & PROCEDURE
In the light of these admitted facts arising in the case,
the First Appellate Court had no jurisdiction to
examine the legality and correctness of the finding on
first part of issue No. 4 in plaintiff's appeal and reverse
it against the plaintiff.
TTTTTTT
Second, the High Court also committed the same
mistake by not noticing the aforesaid jurisdictional
error committed by the First Appellate Court. The
High Court, in plaintiff's revision again, went into the
legality of the findings of first part of issue No.4 on
merits and affirmed the finding of the First Appellate
Court. This finding ought to have been set aside by
the High Court only on the short ground that the First
Appellate Court had no jurisdiction to examine it in
plaintiff's appeal.
TTTTTTT
In our opinion, the High Court should have noticed
the aforementioned mistake and remanded the case
to the First Appellate Court for deciding the plaintiff's
appeal afresh on merits confining its enquiry by the
First Appellate Court to decide only the legality and
correctness of those issues, which were decided by the
Trial Court against the plaintiff and which led to the
dismissal of suit.
TTTTTTT
In our opinion, in the light of what we have held
above, we have no option but to set aside the
impugned order and also the judgment of the First
Appellate Court and remand the case to the First
Appellate Court to decide the first appeal filed by the
plaintiff (appellant herein) afresh on its merits only
to examine the legality and correctness of the issues
which were decided against the plaintiff by the Trial
Court such as issue No. 3 and second part of issue
No. 4.
TTTTTTT
Reference : Supreme Court. Biswajit Sukul v. Deo
Chand Sarda & Ors., civil appeal no. 9956 of 2018
[arising out of SLP (C) No. 15192 of 2014].
—————
January 2019 I 45
ACCIDENTAL CLAIM
DURING FIRST APPEAL, PARTIES HAVE RIGHT TO BE
HEARD BOTH ON QUESTION OF LAW AND ON FACTS
T HE APPELLANT HEREIN WAS THE
CLAIMANT BEFORE THE Tribunal whereas
respondent-owner of the vehicle (motorcycle) was the
non-applicant No.1 and the Insurance Company was
non-applicant No.2 in the appellant's claim petition.
On 31.10.2012, the appellant-claimant with one Dipak
Kumar Pradhan was going on a motorcycle bearing
No.OR-07 S 3133 from Baisinga to Baripada on National
Highway 18 in the State of Orissa. The abovesaid
Motorcycle met with an accident with a Mini Truck
(407) wherein the appellant-claimant suffered severe
injuries. The motorcycle was owned by Jayanta Kumar
Mohanty (respondent No.1 in CA 3798/2016 &
respondent No.2 in CA No.3799/2016) and was insured
with the National Insurance Company Ltd. (respondent
No.2 in CA 3798/2016 & respondent No.1 in CA 3799/
2016).
According to the appellant-claimant, he was in the age
group of 25-27 years at the time of accident and
suffered the disease of "paraplegia" (injury in spinal
cord) as a result of the abovesaid accident.
The appellant-claimant, therefore, filed a claim petition
before the Tribunal, Mayurbhanj Baripada (Orissa)
under Section 166 of the Motor Vehicles Act, 1988
(hereinafter referred to as 'the MV Act") against the
respondents (owner of the motorcycle and the
Insurance company) and claimed reasonable
compensation for the injuries sustained by him and
other statutory compensation payable under the MV
Act for causing such injuries. The respondents
contested the claim petition.
By award dated 17.05.2014, the Tribunal allowed the
appellant's claim petition in part and holding the
respondents (non-applicants) liable for payment of the
compensation to the appellant-claimant jointly and
severely awarded a total sum of Rs.24,62,065/- with
46 I January 2019
interest payable at the rate of 7% per annum under
various heads.
The appellant-claimant and the Insurance Company
both felt aggrieved by the award, filed appeals in the
High Court of Orissa at Cuttack.
So far as M.A.C.A.No.690/2014 is concerned, it was
filed by the appellant-claimant for enhancement of the
amount awarded by the Tribunal whereas so far as
M.A.C.A.No.839/2014 is concerned, it was filed by the
Insurance Company against the award challenging
therein the quantum of compensation to be on a higher
side.
By impugned order, the High Court allowed the appeal
filed by the Insurance Company (M.A.C.A.No.839/
2014) in part and accordingly reduced the
compensation from Rs.24,62,065/- to Rs.20,00,000/-.As
a result of the main order passed in favour of the
Insurance Company in their appeal, the appeal filed
by the appellant-claimant (M.A.C.A. No.690/2014)
seeking enhancement in the quantum of compensation
was dismissed as having rendered infructuous.
The appellant-claimant felt aggrieved by the order of
the High Court filed two appeals by way of special
leave in the Supreme Court. One is filed against an
order by which the claimant's appeal for enhancement
in the quantum of compensation was dismissed as
having rendered infructuous and the other is filed
against an order by which the Insurance Company's
appeal was partly allowed by reducing the quantum
of compensation from Rs.24,62,065/- to Rs.20,00,000.
It may be mentioned that so far as the Insurance
Company is concerned, they have not filed any appeal
against the order of the High Court. In other words,
the Insurance Company seems satisfied with the
quantum of compensation amount of Rs.20,00,000/-
awarded by the High Court by the impugned order.
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The short question, which arises for consideration in
these two appeals, is whether the High Court was
justified in allowing the Insurance Company's appeal
(M.A.C.A. No.839/2014) and was, therefore, justified
in reducing the quantum of compensation amount from
Rs.24,62,065/- to Rs.20,00,000/- and, in consequence,
was justified in dismissing the claimant's appeal for
enhancement of the quantum of compensation as
having rendered infructuous.
The Supreme Court remanded the appellant-claimant's
appeal (M.A.C.A. 690 of 2014) to the High Court for
deciding the question as to whether any case was
made out for further enhancement from Rs. 24,62,065/
- awarded by the Tribunal and, if so, on what grants.
The operative part of the judgment reads as under:-
High Court neither set out the facts of the case of
the parties in detail, nor dealt with any of the
submissions urged except to mention them, nor took
note of the grounds raised by the claimant and nor
made any attempt to appreciate the evidence in the
light of the settled legal principles applicable to the
issues arising in the case and proceeded to allow
the appeal filed by the Insurance Company and
reduced the compensation from Rs.24,62,065/- to
Rs.20,00,000/-.
TTTTTTT
The High Court only observed "Considering the
submissions of the learned counsel for the parties"
and "I feel that compensation should have been
awarded as Rs.20,00,000/- and not Rs.24,62,065/-".
No reasons were given by the High Court as to why
the amount of compensation should be reduced from
Rs.24,62,065/- to Rs.20,00,000/- and why it cannot be
enhanced. Since the appellant-claimant had also filed
appeal for enhancement of the compensation, the
entire controversy was again open for decision before
the High Court at the instance of the claimant and
Insurance Company.
TTTTTTT
As mentioned above, the Insurance Company did not
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ACCIDENTAL CLAIM
choose to file any special leave to appeal in this Court
against the impugned order of the High Court. The
effect of non-filing of appeal is that the Insurance
Company has in principle accepted the High Court's
order.
TTTTTTT
This Court having allowed the claimant's appeal
and setting aside the impugned order, it results in
dismissal of the appeal filed by the Insurance
Company (M.A.C.A. No.839 of 2014) and allowing
of the appeal (M.A.C.A.No.690/2014) filed by the
claimant. Had the Insurance Company filed special
leave to appeal against the impugned order in this
Court seeking further reduction in the
compensation awarded by the High Court like
what the Insurance Company did when they had
filed appeal before the High Court questioning
inter alia the quantum of compensation being on
higher side, the Insurance Company too would have
been entitled to prosecute their appeal on merits
after remand before the High Court in terms of this
order. It was, however, not done by the Insurance
Company.
TTTTTTT
In this view of the matter, the appellant-claimant alone
will have a right to prosecute his appeal (M.A.C.A.
No.690 of 2014) on merits before the High Court after
remand of the case by this Court wherein the High
Court will examine the question as to whether any
case for further enhancement in the quantum of
compensation awarded by the Tribunal is made out
or not and, if so, on what grounds.
TTTTTTT
Authorities relied upon : 2005 (12) SCC 303, 2005 (10)
SCC 243, 2004 (13) SCC 680, 2000 (10) SCC 198,AIR
1969 Kerala 316.
Reference : Supreme Court. Sudarsan Puhan v.
Jayanta Ku. Mohanty & Ors., civil appeal nos. 3798-
3799 of 2016.
—————
January 2019 I 47
SPECIFIC PERFORMANCE
SPECIFIC PERFORMANCE OF CONTRACT,
PLAINTIFF HAS TO PROVE HIS READINESS
AND WILLINGNESS
T HE FACTS OF THE CASE INA NUTSHELL ARE
AS FOLLOWS. THE appellants-defendant and
the respondent-plaintiff had entered into an agreement
for sale on 9th November, 2007 in respect of a shop
for a total sale consideration of Rs.26,00,000 (Rupees
twenty six lakhs). Rs.4,00,000/- (Rupees four lakhs) was
paid by the respondent-plaintiff to the appellants-
defendant as earnest money and the remaining amount
of Rs.22,00,000/- (Rupees Twenty Two Lakhs) was to
be paid on 31st March, 2008 that is the date fixed for
executing the registration of the sale deed.Admittedly,
both the parties went to the concerned Sub-Registrar's
Office on 31st March, 2008; but the sale deed was not
executed. The respondent-plaintiff filed a suit on 29th
April, 2008 for specific performance. The appellants-
defendant contested the suit contending that the
respondent-plaintiff was not ready and willing to
perform his part of the contract. Upon consideration
of oral and documentary evidence, the Trial Court
dismissed the suit for specific performance filed by
the respondent-plaintiff holding that the respondent
has failed to prove his readiness and willingness to
perform the contract.
In appeal, preferred by the respondent-plaintiff, the
First Appellate Court set aside the judgment of the
Trial Court and allowed the first appeal thereby
granting specific performance in favour of the
respondent-plaintiff. The judgment of the First
Appellate Court was affirmed by the High Court, as
aforesaid in para (1).
Against the judgement of the High Court special leave
petition was filed. The Supreme Court accepted the
appeal.
The operative part of the judgment reads as under:-
In order to obtain a decree for specific performance,
48 I January 2019
the plaintiff has to prove his readiness and willingness
to perform his part of the contract and the readiness
and willingness has to be shown through out and has
to be established by the plaintiff. In the case in hand,
though the respondent-plaintiff has filed the suit for
specific performance on 29th April, 2008, the
respondent-plaintiff has not shown his capacity to pay
the balance sale consideration of Rs.22,00,000
(Rupees Twenty Two Lakhs). In his evidence, the
respondent-plaintiff has stated that he has borrowed
the amount from his friends and kept the money to pay
the balance sale consideration. As rightly pointed out
by the Trial Court, the respondent-plaintiff could not
produce any document to show that he had the
amount of Rs.22,00,000 (Rupees Twenty Two Lakhs)
with him on the relevant date; nor was he able to name
the friends from whom he raised money or was able
to raise the money. Further more, as rightly pointed
out by the Trial Court, the respondent-plaintiff could
have placed on record his Accounts Book, Pass Book
or the Statement of Accounts or any other negotiable
instrument to establish that he had the money with
him at the relevant point of time to perform his part
of the contract. We are, therefore, in agreement with
the view taken by the Trial Court that the respondent-
plaintiff has not been able to prove his readiness and
willingness on his part.
TTTTTTT
The relief for specific performance is purely
discretionary. Though the respondent-plaintiff has
alleged that he was ready and willing to perform his
part of the contract, the First Appellate Court ought
to have examined first whether the respondent-
plaintiff was able to show his capacity to pay the
balance money. In our considered view, the First
Appellate Court as well as the High Court has not
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properly appreciated the evidence and the conduct
of the parties. The First Appellate Court as well as
the High Court, in our view, was not right in reversing
the judgment of the Trial Court and the impugned
order cannot be sustained and liable to be set aside.
TTTTTTT
Considering the relief to be granted to the
respondent-plaintiff, admittedly the respondent-
plaintiff had paid an earnest money of Rs.4,00,000/-
(Rupees Four Lakhs) to the appellants-defendant and
that has to be necessarily paid back to the
respondent-plaintiff, of course with interest at the rate
of 12% per annum (from the date of Agreement to Sell
i.e. 9th November, 2007 till date i.e. 3rd October,
2018) and thereafter at the rate of 10% per annum
SPECIFIC PERFORMANCE
till the date of releasing the payment. Ordered
accordingly. The amount of Rs.4,00,000/- (Rupees
Four Lakhs) along with interest, as above, be paid
by the appellants-defendant by way of Demand Draft
in favour of the respondent within eight weeks from
today. Further, the respondent-plaintiff is permitted to
withdraw Rs.22,00,000/- (Rupees Twenty Two Lakhs)
deposited by him before the First Appellate Court
along with the interest, if any accrued on the same.
TTTTTTT
Reference : Supreme Court. Vijay Kumar & Ors. v. Om
Parkash, civil appeal no. 10191 of 2018 [arising out of
SLP (C) No. 3768 of 2016].
—————

GLOBAL GLIMPSE
JPMORGAN AGREES TO $135 MILLION SETTLEMENT FOR
IMPROPER HANDLING OF ADRs
The US Securities and Exchange Commission (SEC) announced that JPMorgan Chase Bank N.A. has agreed to
pay a $135 million settlement for char ges related to improper handling of "pre-released" American Depository
Receipts (ADR). The SEC found that JPMorgan had improperly provided ADRs in pre-release transactions,
despite neither the broker nor customers having the requisite foreign shares to support the new ADRs. The
SEC further noted that: "Such practices resulted in inflating the total number of a foreign issuer's tradeable
securities, which resulted in abusive practices like inappropriate short selling and dividend arbitrage that should
not have been occurring." JPMorgan has agreed to pay the settlement without responding to the charges the
SEC has brought against them. JPMorgan marked the fourth depository bank that the SEC has brought such
charges or findings against.

US SC DENIES TRUMP REQUEST TO ENFORCE NEW ASYLUM RULE

The US Supreme Court denied a request by the Trump administration to enforce new asylum rules. The new
immigration rule, made via Presidential Proclamation November 9, sought to immediately deny asylum to migrants
who illegally cross the southern border into the US. In Trump's application for the Supreme Court to stay the
Ninth Circuit's decision, White House Solicitor General Noel Francisco argued that the new rules were "designed
to channel asylum seekers to ports of entry, where their claims can be processed in an orderly manner; deter
unlawful and dangerous border crossings; and reduce the backlog of meritless asylum claims." Justices Clarence
Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh indicated they would grant the application for a
stay. The high court's denial means a November district court decision and the subsequent Ninth Circuit decision
upholding it will stand.

www.lawteller.com January 2019 I 49

 ETHICS DID YOU KNOW?
A lawyer charged a man $500 for legal services. The man n New Jersey, U.S.
paid him with crisp new $100 bills. After the client left, It's illegal for parents to give their children
the lawyer discovered that two bills had stuck together under the age of 18 even a sip of alcohol.
— he’d been overpaid by $100. The ethical dilemma for
the lawyer: Should he tell his partner? New Hampshire, U.S.
n
It is illegal to inhale bus fumes with the
LAST ADVICE
intent of inducing euphoria.

Despite his best ef forts, the lawyer ’s client was

convicted of murder and sentenced to die in the electric n Nevada
Nevada,, U.S.
chair. On the eve of his execution, the convict called his It's still legal to hang someone for shooting
attorney for last-minute advice. He was told, “Don’t sit your dog on your property.
down.”
n Nebraska, U.S.
ARGUMENT Barbers are forbidden from eating onions
between 7am and noon.
Two schoolgirls were having an argument. “My dad’s
better than your dad. He’s a carpenter and makes Disclaimer - Lawteller Team is not responsible for the
actuality of the above information as available in the
buildings.” The other girl replied, “My dad does better public domain.
than that. He’s a lawyer, and makes loopholes.”

PREDESTINATION

Believing in predestination, a new father set out three

objects on the dining room table in preparation for his
son’s arrival home from school. The first object was a
$100 bill. “That represents high finance. If he takes this,
he’s go into business.” The second object was a Bible.
“If he takes this one, he’ll be a man of the cloth.” The
third object was a bottle of cheap whiskey. “If he goes
for this one, he’ll be a drunkard!” The father and his wife
then hid where they could see their son’s approach.
Soon, the son entered the room and examined each article
briefly. He then checked to make sure that he was alone.
Not seeing anyone, he stuffed the money in his pocket,
put the Bible under his arm, and strolled out of the room
draining the whiskey. The father looked at his wife and "Ofcourse I'm good. Look at all of these
beamed, “How about that! He’s going to be a lawyer!” law books!"
Courtesy - www.pinterest.com

50 I January 2019 www.lawteller.com