SUPREME COURT: GIVE PROTECTION TO WITNESSES, AT LEAST IN HEINOUS CRIMES

Being forced to acquit a alleged murderer due to lack of evidence, the Supreme Court has ruled that criminal justice system in the country would be at crossroads unless and until witnesses were given protection to enable them to depose freely against the mighty criminals, at least in heinous crimes.

A bench comprising Justices Arijit Pasayat and Mukundkam Sharma, while upholding the acquittal of Mangilal in the matter of State of Maharashtra vs. Mangilal decided on 6th March,2009, which was recorded by the Bombay High Court noted, "The accused persons with money and muscle power can trample any witness who dared to depose against them. The victor will be injustice and it will be a slur on the criminal justice system if it so happens''.

The bench also noted 'It needs no emphasis that in case of a gruesome murder, police protection should be given to witnesses.' The accused, who had murdered a widow and her three children, was sentenced to death by the trial court.

In the Present case, the relevant portion of the case are as below:-

It is true that four people had lost their lives and the accused does not seem to be a person of high morals, but that itself would not be a ground to record his conviction in the absence of reliable material and evidence. The circumstances highlighted by the prosecution are as follows:

1. Ilicit Relations between deceased Durgabai and accused.

2. Illicit relations between accused and Durgabai's daughter Yogita (15 years old).

3. Complaint made by deceased Durgabai on 20.7.1998 against accused regarding threat to kill.

4. Complaint made by deceased Durgabai one day before the incident regarding threat by accused.

5. Statement of PW-1 Laxman recorded under Section 164 of the Code.

6. Beating up of PW-1 Laxman by Prakash Bole to dissuade him from giving evidence in support of prosecution.

7. Police dog traced the scent from the place of incident to the house of the accused thereby connecting the accused to the ghastly murders.

8. Blood stained nail clippings of accused taken upon medical examination immediately upon arrest.

9. Recovery of blood stained jersey of accused from septic tank in the house of the accused and burnt pant at his instance.

6. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063);
Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890).

The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from
circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.

7. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. state of A.P. (1996) 10 SCC 193, wherein it has been observed thus:

"In a case based on circumstantial evidence, the
settled law is that the circumstances from which the
conclusion of guilt is drawn should be fully proved and
such circumstances must be conclusive in nature.
Moreover, all the circumstances should be complete and
there should be no gap left in the chain of evidence.
Further the proved circumstances must be consistent
only with the hypothesis of the guilt of the accused and
totally inconsistent with his innocence....".

8. In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

"(1) the circumstances from which an inference of guilt
is sought to be drawn, must be cogently and firmly
established;


(2) those circumstances should be of a definite
tendency unerringly pointing towards guilt of the
accused;

(3) the circumstances, taken cumulatively should form
a chain so complete that there is no escape from the
conclusion that within all human probability the crime
was committed by the accused and none else; and

(4) the circumstantial evidence in order to sustain
conviction must be complete and incapable of
explanation of any other hypothesis than that of the guilt
of the accused and such evidence should not only be
consistent with the guilt of the accused but should be
inconsistent with his innocence.



9. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been
fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.

10. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable
doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4)in order to justify the inference of guilt, the inculpatory facts must be
incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5)if there be any reasonable doubt of the guilt of the accused, he is entitled asof right to be acquitted".

11. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.

12. In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed thus:
"It is well to remember that in cases where the
evidence is of a circumstantial nature, the circumstances
from which the conclusion of guilt is to be drawn should
be in the first instance be fully established and all the
facts so established should be consistent only with the
hypothesis of the guilt of the accused. Again, the
circumstances should be of a conclusive nature and
tendency and they should be such as to exclude every
hypothesis but the one proposed to be proved. In other
words, there must be a chain of evidence so far complete
as not to leave any reasonable ground for a conclusion
consistent with the innocence of the accused and it must
be such as to show that within all human probability the
act must have been done by the accused."




13. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:

(1) the circumstances from which the conclusion of
guilt is to be drawn should be fully established. The
circumstances concerned `must' or `should' and not `may
be' established;

(2) the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is to
say, they should not be explainable on any other
hypothesis except that the accused is guilty;

(3) the circumstances should be of a conclusive nature
and tendency;

(4) they should exclude every possible hypothesis
except the one to be proved; and

(5) there must be a chain of evidence so complete as
not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have
been done by the accused.



14. These aspects were highlighted in State of Rajasthan v. Raja Ram (2003 (8) SCC 180), State of Haryana v. Jagbir Singh and Anr. (2003 (11) SCC 261), Kusuma Ankama Rao v State of A.P. (Criminal Appeal No.185/2005 disposed of on 7.7.2008) and Manivel and Ors. v. State of
Tami Nadu (Criminal Appeal No.473 of 2001 disposed of on 8.8.2008).

15. So far as circumstance No.4 is concerned the trial Court observed that the prosecution failed to produce any evidence about the same. The police dog traced the scent from the place of incident to the house of the accused is really no evidence in the eye of law. So far as the blood stains are concerned medical examination revealed that the ladies had `B' blood group while
boys had `O' blood group. Merely because blood stains were found on the jersey of the accused from septic tank in the house of the accused and burnt pant, that is inconsequential since as noted above his blood group is also `B'. The trial Court observed that the weapon used was stone whereas the weapon recovered from the septic tank is stated to be `Kadbatodi'.
Unfortunately, no finger printing was done.

16. It is noted that though the blood of the accused was collected the same was not sent for chemical analyzer.

17. In view of the position in law highlighted above it cannot be said to be a case where the prosecution has established a complete chain of circumstances which rules out possibility of the involvement of any other person and unerringly points fingers at the accused to be the author of the crime.

18. It needs no emphasis that in a case of gruesome murder, police protection should be given to witnesses so that they can depose freely. Unless that is done result would be that justice would be done to the victim. The accused persons with money and power can trample any witness who dares to depose against them. The victor will be injustice and it would be a
slur on the criminal justice system if it so happens. In view of the above conclusions, the appeal is dismissed.

Earlier also, similar apprehensions had been expressed by another bench comprising Justices B N Agrawal, G S Singhvi and Altamas Kabir saying that possibility of breakdown of criminal justice system in the country could not be ruled out due to the manner in which the witnesses were bought over or silenced by the accused who were rich and powerful.

Justice Pasayat, writing judgment for the bench, pronounced that unless the witnesses were provided protection, at least in heinous crimes, victims would not get justice. The Centre had earlier expressed its inability to provide protection to witnesses in all cases as in Delhi alone, 20 lakh witnesses would require protection, which was not possible.

It was conveyed by Additional Solicitor General Gopal Subramanium to a bench headed by Chief Justice K G Balakrishnan in response to a bill seeking protection to witnesses. Acquittal in criminal cases has gone up sharply due to witnesses turning hostile due to intimidation.

SUPREME COURT: GRAVITY OF OFFENCE BE CONSIDERED FOR ANTICIPATORY BAIL

The Supreme Court has pulled up Punjab and Haryana High Court for granting anticipatory bail to those involved in a criminal conspiracy and cheating without taking the gravity of the offence into account and also for imposing unwarranted conditions for grant of pre-arrest bail, in two separate cases.

The High Court had granted bail to a woman, Ramathal and her associates who had allegedly cheated a person to the tune of Rs 32.5 lakh. The accused had allegedly sold the property situated in Coimbatore on the basis of forged and bogus documents. The property had already been mortgaged with Punjab National Bank and a loan was also taken from another financial institution on it.

In another case viz I. Glaskasden Grace & Ors. vs. Inspector of Police & Anr. decided on 3rd March,2009, accused persons I Glaskasden Grace and his accomplices cheated a woman and her son-in-law to the tune of Rs 62,62,000 for a property located in the same city in Tamil Nadu. The complaint was filed by one B Nagalakshmi against M Mani, a property dealer and other accused of cheating her of the amount on the basis of bogus papers and false sale deed. In this case, the High Court, while granting anticipatory bail to the accused under 438 Cr. PC, directed them to deposit the title deed of property worth Rs 20 lakhs standing either in their name or in the name of third party.

In the present case, the complaint was filed by one B. Nagalakshmi W/o
Balagovindarajulu, Complainant - Respondent No. 2 contending inter alia that she approached one M. Mani, a land broker, for the purchase of house sites bearing Nos. 9, 10, 11 and 12 in Sasi West Extension, Vilakrichi Village, Sern Nagar, Coimbatore. Mani informed that K. Sakthivel is the owner of site No. 12, and other site owners reside at Tiruppur and Selvapuram. Encumbrance Certificate issued by the Sub-Registrar and sale deed of 4 sites were shown, which reflected that the land were in the name of appellants. K. Sakthivel made assurance to the
complainant that he will arrange for the sale of the four sites to her by the site owners by making them to execute a sale deed in her favour. The total sale amount for the four sites was fixed at Rs. 62,62,000/-. As alleged when the complainant came forward to tender white money for
the entire amount, the accused Sakthivel asked her to tender white money only for Rs. 7,72,700/- and the rest in black, and represented that he would execute the sale deed in her favour only then. Accordingly, she had parted a sum of Rs. 7,72,700/- through four demand drafts and cash of Rs. 54,89,300/- to the accused, on the day of registration and got the
sale deed executed in her favour on 15.05.2007.

Subsequently, on 03.06.2007 when the respondent No. 2 attempted to put up a boundary
around the land, she came to know that the said four sites originally belonged to some other person. It further transpires that accused/appellants conspired and forged encumbrance certificate and impersonated themselves as original of the house sites, prepared a false sale deed and registered the in favour of complainant and cheated the complainant to the tune of
62,62,000/-. On receipt of the aforesaid complaint, a case was registered the said complaint as the First Information Report. The appellants herein apprehending their arrest in the aforesaid
registered under Sections 120B, 466, 467, 468, 471, 419 and 420 filed a petition in the High Court under Section 438 of the Code anticipatory bail.

On perusal of the submissions made and material on record, the Court passed an order granting anticipatory bail as prayed for on condition that in the event of arrest, the appellants shall be enlarged on on their depositing the title deeds of property worth Rs. 20,00,000/- either in their name or in the name of third parties and also on executing a personal bond of Rs. 25,000/- with two sureties for the to his satisfaction. Aggrieved by the aforesaid order, the appellants approached this on the ground that the conditions imposed by the High Court while anticipatory bail are not only unreasonable and onerous but the also amounts to putting a fetter on the right of appellants being to bail, in terms of the order passed. The said petition filed by the appellants was placed before this whereupon inter alia the following order was passed on 13.8.2008.


"Issue notice.

However, it is made clear that, in the event, it is found that
the petitioners are not otherwise entitled to grant of an
order of anticipatory bail, this Court may pass an
appropriate order.

In the meantime, only that portion of the order whereby
conditions have been imposed for grant of anticipatory bail
other than those contained in Sub-section (2) of Section
438 of the Code of Criminal Procedure shall remain stayed.

.........."

10. Notice was issued to respondents and therefore, the matter was for hearing before us on which we heard the learned counsel for the parties at length.

11. Learned counsel appearing for the appellants submitted before us the conditions imposed by the High Court while granting bail to the appellants were not only onerous but also unreasonable. It was also submitted that conditions imposed by the Court for granting anticipatory bail on their deposit of title deeds of worth Rs. 20,00,000/- standing either in their name or in the name of third parties amounts to putting a fetter on the order granting bail as the appellants are unable to satisfy the conditions are beyond their means and powers.

12. Learned counsel appearing for the respondent, however, submitted the aforesaid conditions put by the Court for grant of bail to the appellants were called for and justified in the facts
circumstances of the present case. It was also pointed out that the intentionally and knowing fully well the entire position and ownership of the property misrepresented the fact and cheated the and therefore, such conditions were required to be put up for of anticipatory bail to the said persons.

13. In the light of the aforesaid submissions by the counsel appearing the parties, we have also considered the records placed before us. The facts and circumstances of the case when analysed have indicated receipt of Rs. 62,62,000/- towards sale consideration of the property alleged to be on misrepresentation of the fact by the appellants

14. It is disclosed that the said property originally belonged to some person. The allegations made are serious as it is alleged that accused/appellants conspired and forged the encumbrance certificate and themselves as original owners of the house sites and the respondent No. 2 (complainant) to the tune of Rs. 62,000/- by preparing a false sale deed and getting it registered in favour of Respondent No. 2.

15. It appears that in the aforesaid facts and circumstances, the High passed the impugned order with the intention of protecting the of the complainant in the matter. In our considered opinion
approach of the High Court was incorrect as under the impugned order a unreasonable and onerous condition has been laid down by the as a condition precedent for grant of anticipatory bail.

16. This Court in Amarjit Singh v. State of NCT of Delhi, reported in JT 2002 (1) SC 291, held as under:-

"4. Having regard to the facts and circumstances of
the present case, we have no hesitation in co
ming
to the conclusion that the imposition of condition
to deposit the sum of Rs. 15 lacks in the form of
FDR in the Trial Court is an unreasonable condi-
tion and, therefore, we set aside the said condition
as a condition precedent for granting anticipatory
bail to the accused/appellant......."



In Sandeep Jain v. National Capital Terriotry of Delhi, reported

in (2000) 2 SCC 66, this court held that:



"4. We are unable to appreciate even the first order
passed by the Metropolitan Magistrate imposing
the onerous condition that an accused at the FIR
stage should pay a huge sum of Rs. 2 lakhs to be
set at liberty. If he had paid it is a different matter.
But the fact that he was not able to pay that amount
and in default thereof he is to languish in jail for
more than 10 months now, is sufficient indication
that he was unable to make up the amount. Can he
be detained in custody endlessly for his inability to
pay the amount in the range of Rs. 2 lakhs. If the
cheques issued by his surety were dishonoured, the
Court could perhaps have taken it as a ground to
suggest to the payee of the cheques to resort to his
legal remedies provided by law. Similarly if the
court was dissatisfied with the conduct of the sure-
ty as for his failure to raise funds for honouring the
cheques issued by him, the court could have direct-
ed the appellant to substitute him with another
surety. But to keep him in prison for such a long
period, that too in a case where bail would normal-
ly be granted for the offences alleged, is not only
hard but improper. It must be remembered that the
Court has not even come to the conclusion that the
allegations made in the FIR are true. That can be
decided only when the trial concludes, if the case is
charge-sheeted by the police".



17. It is not disclosed from the record that the High Court considered the entire facts of the case in proper perspective and proceeded to dispose of the prayer for anticipatory bail oblivious of the facts of the case and contrary to correct legal position with regard to law relating to grant of
anticipatory bail. The High Court should have considered the entire facts of the case including the gravity of the offence alleged and in the light thereof should have considered the prayer for grant of anticipatory bail.

In that view of the matter, we feel that the entire order passed by the High Court is required to be set aside and the matter to be reconsidered in accordance with law and in terms of observations made herein.

18. We accordingly, set aside the impugned order and remit back the matter to the High Court to consider the prayer for anticipatory bail of the appellants afresh in accordance with law taking into consideration the facts and circumstances of the case including the gravity of the offence
alleged and analysing the prayer of the appellants whether to grant or not to grant the prayer for anticipatory bail. The High Court shall dispose of the matter in accordance with law, giving reasons for its decision, as expeditiously as possible, preferably within a period of six weeks from
the date of the communication of this order.

BIHAR ANTI-CORRUPTION BILL GIVES NEW POWERS TO GOVT

Moving swiftly to rein corruption at various levels, the Nitish Kumar government in Bihar has got the state legislature to pass the Bihar Special Court Bill, 2009, which, among other things, will enable the state government to confiscate property of the errant officials even if the matter was sub-judice.

The passage of the Bill was considered in political circles here as a major step in the direction of rooting out corruption from the state. With elections to the Lok Sabha round the corner, it is expected to enhance the ruling alliance's standing among the people. The legislation will arm the state administration with more teeth in dealing with cases of corruption involving public servants on a speedy and effective basis. The bill, approved by the state legislature, will envisage creation of special courts for ensuring disposal of corruption cases within a time-frame and, most significantly, it will enable the state government to confiscate the property in the disproportionate asset (DA) case even if the matter is not judicially decided.

The bill obviously will do with away with inadequacies of existing law which accounted for the tardy disposal of the corruption cases. "What is significant, the new bill will have the provision which will enable the government to confiscate the property of the public servants in the DA case. As of now, under the existing law, the government could not confiscate the property if even a civil servant was booked in a DA case" said the minister of water resources Bijendra Yadav who piloted the bill in the state assembly. The bill seeks to amend the Prevention of Corruption Act which brings under its ambit central government employees also. The state government will therefore be required to procure the consent of the Centre on the bill which the government wants to push through at the earliest.

Incidentally, Bihar became the second state, after Orissa, to have passed such a legislation. The Naveen Patnaik government had earlier put in place a similar law with the consent of the Centre. "I don't see any reason why the Centre should have any reservation to the bill. The bill, after it becomes an act, will act as a big deterrent for the public servants who may have amassed huge property beyond their known source of income"said Sanjay Jha, the BJP MLC lauding the efforts of the chief minister Nitish Kumar for taking such an initiative which will be just the right move to rein in corruption at the government level.

According to the bill, if the government on the basis of prima facie evidence will confiscate the property of the public servant in connection with a DA case after obtaining permission from the special court.

Tatas give the world its cheapest car

Malini Bhupta Mumbai, March 23, 2009

The wait for the people's car is finally over. One year after Tata Motors unveiled its ambitious Rs 1 lakh car in New Delhi at an auto show, the company on Monday announced the commercial rollout of the Nano.

Those customers who want to have a look at the car before booking it can do so at Tata Motors showrooms and other authorised outlets, where the car will be displayed from April 1, 2009.

Says a proud Ratan Tata, chairman of Tata Sons and Tata Motors: "The Nano wasn't designed as the cheapest car. It was designed as transport at an affordable price. The Nano was born out of an emotional desire to provide transport to families who usually travel in two-wheelers and brave all kinds of weather conditions. The concept began with the question on how we could make the two-wheeler safe."

The Nano will be available to the public in three variants - Standard, CX and LX. All three variants are Bharat Stage II and III compliant. The standard model comes with three colour options, while the CX model comes with heating and air conditioning options, two-tone seats, parcel shelf, booster assisted brakes, fold down rear seat with nap rest. So those going for the base model surely cannot expect even what's given in most other cars, like a parcel shelf.

The Nano LX model is for those who want a low-cost car with bells and whistles because this one comes with all the features of the CX - body-coloured exteriors, fog lamps, electronic trip meter, cup holder, mobile charge point, front power windows and rear spoiler. The company claims that many of the features available in the Nano LX are not available in entry level small cars in the country.

Given that the Nano is a car that can easily be customised to suit any requirement, the company has launched an entire range of 'Nano' accessories ranging from mud flaps, floor mats, audio systems, steering wheel covers, mobile phones, key chains to T-shirts. Given that the wait for the car is likely to be nothing less than a year, customers can entertain themselves with Nano accessories during this wait.

Bookings will be open to consumers from April 9 to April 25. Given the car's low-cost proposition, Tata Motors has adopted a rather novel way to improve marketing and distribution of the car. The group is leveraging all its retail destinations like Westside, Tata Indicom outlets, Croma and the World of Titan showrooms to sell booking forms priced at Rs 300. These forms will be available across 30,000 locations in 1000 cities. The company has entered into an exclusive partnership with the State Bank of India to manage the booking process as it has the maximum footprint in terms of geographical locations. Customers will have the option of paying the entire booking amount or seeking finance from the preferred finance partners of Nano. For those seeking finance, the booking amount is merely Rs. 2,999 upfront.

So, will all the consumers who apply for the Nano become proud owners of the car? Not quite, says the company. Given that the production of the car at its new home in Sanand, Gujarat is unlikely to start before end-2009, currently the company is producing Nano at its Pantnagar facility in northern India, which has a capacity of 1,600 cars per month. At best, the plant cannot manufacture more than 40,000 to 50,000 cars at any given point of time. Thus, customers of Nano will have to wait at least for a year to take delivery of the car.

Given that the entire project has come about so that Tata Motors could offer affordable and yet safe transportation to Indians, the company has decided to stick to its original price of Rs 1 lakh for the first 1,00,000 customers, who will be selected randomly at the end of the booking process. Those worried whether or not Ratan Tata intends to stick to his promise of delivering the car at Rs 1 lakh needn't worry. One of the hype points of this car has been its very affordable pricing, and despite all odds Ratan Tata has stuck to his promise of delivering the people's car at Rs 1 lakh.

Last year, Ratan Tata had said that despite the dramatic rise in input costs, the car would be priced at Rs 1 lakh because a "promise is a promise".

A lot has happened between January 2008 and now, with the Nano being rendered homeless after the Singur fiasco last year. Despite the challenges, Tata Motors has given price protection to the first 1,00,000 customers of the Nano by guaranteeing them the price as quoted last year. During an interaction with the press, Tata said: "Nobody can ever commit to a price in terms of volume but we are doing that for the first 1,00,000 customers."

And those who are not among the lucky 1,00,000 can either hold on to their bookings and earn an interest of 8.5 per cent in the first year and 8.75 per cent in the second year on the booking amount or take the money back at the end of three month process. The company is using an initial public offer route to market its car in the first phase such that it gets to keep the booking amount with itself for three months and by offering competitive rates of interest, the company is also addressing its capital requirements by retaining the booking amount of customers for a longer period.

In time Tata Motors expects to produce at least a million cars per annum, going by the growing demand for automobiles in India. But from next year, Tata Motors will be able to cater to only 2,50,000 cars per annum, which can be scaled to 5,00,000 in due course of time. For now, only the lucky 1,00,000 get to drive Ratan Tata's dream car.

SUKH RAM GETS 3-YEAR JAIL IN DISPROPORTIONATE ASSETS CASE

A court of Delhi has awarded three years of imprisonment to the former union minister Sukh Ram for amassing properties amounting to Rs 4.25 crore disproportionate to his know source of income between 1991 to 1996 when he was the minister of state for communications in PV Narsimha Rao led government.

Special CBI Judge VK Maheshwari also ordered the forfeiture of Rs 4.25 crore amassed by Sukh Ram besides slapping a fine of Rs two lakh on him. "A corrupt public servant is a menace to the society. Political corruption is the worst form because its consequences are far reaching. When our leaders who are the role models of the society, whose every action should be above the board, are themselves corrupt, how can we expect honesty and virtue from public at large,"said the court in its six-page terse order. The judge further said: "If public servants are corrupt, the whole structure of the society would get upset and the policies of the government, howsoever beneficial, would be adversely affected.

"The need of the hour is to check the cancer of corruption�, the court stated. It further said that the welfare of the society could be ensured only through �honest and incorrupted public servants". The order said, the CBI has proved that Sukh Ram had accumulated disproportionate assets to the tune of Rs 4.25 crore beyond his known sources of income and the former minister could not satisfactorily explain how he acquired so much wealth. The court justified the forfeiture of the illegal wealth amassed by the former minister.

"Corrupt public servants should not be allowed to reap the benefit of the crop of corruption sowed by them by corrupt means", the judge said. Sukh Ram had contended that the cash with him was meant for Congress party fund but this was refuted by senior Congress leaders. Sukh Ram was holding the key communications portfolio at the time of the telecommunication revolution in the country. "I have never seen so much of cash all my life," recalled the then CBI director Joginder Singh during whose tenure the agency conducted the searches on Sukh Ram's premises.

The court, however, granted him bail on furnishing a personal bond and surity of Rs 50,000 each. Sukh Ram later said that he will appeal against the order in Delhi High Court. The court had convicted Sukh Ram under section 13(2) read with section 13(1) (e) of the Prevention of Corruption Act, 1988. CBI had charged Sukh Ram under various provisions of the act of 1988. The agency had said that the former minister had amassed assets, both movable and immovable, to the tune of Rs 5.36 crore during 1991 to 1996 misusing his capacity as a public servant. It had registered the case on August 27, 1996 following recovery of Rs 2.45 crore from his residence at 12, Safdarjung lane here and Rs 1.16 crore from another residence at Mandi in Himachal Pradesh.

Delhi High Court: Daughter in law can't claim right to live in In-Law House

Delhi High Court has held that the old parents whose relations with their son and daughter-in law turn sour have every right to show them the door and the daughter-in law cannot claim any right to stay in their house claiming to be having a legal right to live in the matrimonial home.

Justice Shiv Narain Dhingra observed,"that the matrimonial home may not necessarily mean the house of the parents of the husband. In fact the parents can allow the children to live in the house as long as their relations are cordial and full of love and affection with them."

Matrimonial home is not merely a dwelling unit. It is a place used by husband and wife for dwelling, Justice Dhingra said.

In the present case, an old couple staying in Ashok Vihar filed a suit in the Delhi High Court stating that their daughter-in-law forcibly wants to stay in their house whereas she has her own house in Rohini. The parents of one Vikas Mittal who stay in Ashok Vihar had separated from their son. The son purchased a flat in Rohini.The daughter-in-law stated that the house in Rohini is not habitable with no cooler, fan and claimed a right to live in her parents-in-law's house at Ashok Vihar. The daughter-in-law Neetu Mittal referred to the protection of women from domestic violence act and claimed right to live in the Ashok Vihar house stating the right to live in the Matrimonial home.

The Court observed that the parents who are ill and suffering from various ailments have every right to live peacefully. Since their relations with the son and daughter-in-law are not cordial there is every likelihood of breach of peace detrimental to their mental and physical health. The Court observed that due regard has been given to the parent's rights as it is established that they cannot live together under one roof.

The Court held that once a person gains maturity, parents have no liability to sustain him. It is a different thing that out of love and affection parents can support the son but there is no legal liability on them. The Court dismissed the daughter-in-law's claim of the right to live in the matrimonial home of the parents and held the rights of the parents above her rights.

GRANT BAIL ONLY FOR GOOD REASON: SUPREME COURT

The Supreme Court while deciding Lokesh Singh Vs. State of U.P. & Ors. on 21st oct, 2008, has said that the bail granted to the accused is liable to be set aside if the adequate reasons for granting it are not laid out by the court.

While dealing with an application for bail, bench comprising Justice Arijit Pasayat and Justice C K Thakker said:there is a need to indicate the order, reasons for prima facie concluding why bail was being granted where an accused was charged of having committed a serious It is necessary for the courts dealing with application for bail to among other circumstances, the following factors also before bail, they are:

1. The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;
2. Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
3. Prima facie satisfaction of the Court in support of the charge.

Any order de hors such reasons suffers from non-application of mind was noted by this Court, in Ram Govind Upadhyay v. Sudarshan Singh Ors. [(2002) 3 SCC 598], Puran etc. v. Rambilas and Anr. Etc. [(2001) SCC 338)] and in Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu & Anr. [JT 2004 (3) SC 442].

Though a conclusive finding in regard to the points urged by the parties is not expected of the Court considering the bail application, yet reasons is different from discussing merits or demerits. As noted at the stage of granting bail a detailed examination of evidence and
documentation of the merits of the case has not to be undertaken. that does not mean that while granting bail some reasons for prima facie why bail was being granted is not required to be indicated.

The court cancelling the bail of an accused said that at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken. But that does not mean that while granting bail some reasons for prima facie concluding why bail was being granted is not required to be indicated, observed court.

The apex court said that the accused released on bail shall surrender to custody forthwith.

The Lucknow bench of the Allahabad high court had granted bail to an accused facing trial for an alleged murder and Section 120 B of the Indian Penal Code.

JURISDICTION OF CIVIL COURT IN INDUSTRIAL DISPUTE NOT BARRED:SUPREME COURT

The Supreme Court has held in the case of RAJASTHAN STATE ROAD TRANSPORT
CORPORATION & ANR. vs. BAL MUKUND BAIRWA decided on 12/02/2009 that the jurisdiction of a civil court in an industrial dispute is not barred in case the dispute relates to violation of fundamental rights of a workman or the violation of general law of contract is involved.

The three-judge bench, comprising Justices S B Sinha, Mukundakam Sharma and Asok Kumar Ganguly, in their judgment noted, The purpose of principles of natural justice is prevention of miscarriage of justice and hence the observance thereof is a pragmatic requirement of fair play in action.

The jurisdiction of a civil court is governed by Section 9 of the of Civil Procedure, which reads as under:
 "9 - Courts to try all civil suits unless barred:-The Courts shall (subject to the
provisions herein contained) have jurisdiction to try all suits of a civil nature
excepting suits of which their cognizance is either expressly or impliedly barred."

The jurisdiction of the Civil Court in terms of the aforementioned is a plenary one. The provision relating to bar to entertain a must therefore be laid down by a statute either expressly or by implication. An employee charged with grave acts of must be held to be entitled to a fair hearing in the proceeding. The common law principles of natural justice also be complied with. Rules laid down in the statutory rules should be followed.

Section 9 of the Code is in enforcement of the fundamental of law laid down in the maxim Ubi jus Ibi remedium. A thus, having a grievance of a civil nature has a right to institute a suit in a competent civil court unless its cognizance is either or impliedly barred by any statute. Ex facie, in terms of section of the Code, civil courts can try all suits, unless bared by either expressly or by necessary implication.

The civil court, furthermore, being a court of plenary jurisdiction the jurisdiction to determine its jurisdiction upon considering the made in the plaint but that would not mean that the plaintiff
circumvent the provisions of law in order to invest jurisdiction on the court although it otherwise may not possess. For the said purpose, court in given cases would be entitled to decide the question of its jurisdiction upon arriving at a finding in regard to the existence of jurisdictional fact. It is also well settled that there is a presumption a civil court will have jurisdiction and the ouster of civil court's is not to be readily inferred. A person taking a plea contra establish the same. Even in a case where jurisdiction of a civil court sought to be barred under a statute, the civil court can exercise its jurisdiction in respect of some matters particularly when the statutory
or Tribunal acts without jurisdiction.

In this view of the matter, in our considered opinion, it would not be correct to contend that only because the employee concerned is also a workman within the meaning of the provisions of the 1947 Act or the conditions of the service are otherwise governed by the Standing Order certified under the 1946 Act ipso facto the civil court will have no jurisdiction.

The apex court also noted, �if the infringement of Standing Order or other provisions of the industrial disputes act are alleged, the civil courts jurisdiction may be held to be barred but if the suit is based on the violation of principles of common law or constitutional provisions or on other grounds, the civil courts jurisdiction may not be held to be barred.

The objection to the maintainability of the civil suit filed by Balmukund Birwa and others was raised by Rajasthan State Road Transport Corporation. The two judge bench of the Supreme Court vide order dated November 22, 2007 had referred the case to three-judge bench for deciding the issue whether the civil court is completely debarred for entertaining a suit involving a dispute between the employer and the workman.

The apex court also held that it is a settled law that if a court decides a mater without jurisdiction, the decision, or the decree passed by such court would be a nullity and the jurisdiction cannot be conferred on a court either by the court order or through the mutual consent of the parties.

COMPANY CAN SUE POWER SUPPLIERS UNDER CONSUMER LAW: SUPREME COURT

The Supreme Court has ruled in Karnataka Power Transmission Corpn. & Anr. vs. Ashok Iron Works Pvt. Ltd. on 09/02/2009 that companies engaged in commercial activities can drag their electricity supplier to a consumer forum and seek damages for deficiency in services.

A bench of Justice Markandey Katju and Justice RM Lodha rejected a plea of Karnataka Power Transmission Corporation in which it had said a company using electricity for commercial purpose cannot approach a consumer forum against the utility. The sale of power to a commercial consumer for a commercial purpose was outside the scope of the Consumer Protection Act, 1986, the state utility had argued.

Ashok Iron Works had in 1991 applied an electricity connection, but it approached the district consumer forum after KPTC delayed power supply. The district forum had ruled that the matter was not under the jurisdiction of the Consumer Protection Act. The private company then approached the Karnataka State Consumer Disputes Redressal Commission, which decided in its favour. This had prompted KPTC to approach the National Consumer Disputes Redressal Commission, which quashed its plea. The utility then moved the apex court.

The apex court, while dismissing KPTC�s petition, remanded the matter back to the Consumer Disputes Redressal Forum, Belgaum, to decide whether there was any deficiency in services by the power supplier. KPTC had claimed that the complaint made by the company was not covered under the consumer law since the company was not a �person� as defined under Section 2(1)(m) and hence, not a consumer as defined under Section 2(1)(d) of the Consumer Protection Act. The state utility had also argued that the private company was not a consumer since it had purchased electricity for a commercial purpose.

Section 2(1)(d) defines "consumer" as follows:-

"Consumer" means any person who, -
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid
or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtain such goods for resale or for any commercial purpose; or
(ii) hires any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires the services for consideration paid or promised, or
partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person."

According to Section2(1)(m), "person" includes :-

"(i) a firm whether registered or not;
(ii) a Hindu undivided family;
(iii) a co-operative society;
(iv) every other association of persons whether registered
under the societies Registration Act, 1860 (21 of 1860)
or not."

Section 2(1)(o) defines "service" thus:

"Service' means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, entertainment, amusement or the purveying a news or other information, but does not include the rendering of any service free of charge or under a contract of personal service."

re : contention -(i)

The question that falls for determination is: is a private limited company a `person' as contemplated under Section 2(1)(d).

Section 2(1)(m) which enumerates four categories namely,

(i) a firm whether registered or not;
(ii) a Hindu undivided family;
(iii) a co-operative society; and
(iv) every other association of persons

whether registered under the Societies Registration Act, 1860 (21 of 1860) or not while defining `person' cannot be held to be restrictive and confined to these four categories as it is not said in
terms that `person' shall mean one or other of the things which are enumerated, but that it shall `include' them.

The General Clauses Act, 1897 in Section 3(42) defines `person':

"Person shall include any company or association or body of individuals whether incorporated or not."

While defining `person' in Section 2(1)(m), the Legislature never intended to exclude a juristic person like company. As a matter of fact, the four categories by way of enumeration mentioned therein is indicative, categories (i), (ii) & (iv) being un-incorporate and category (iii) corporate, of its intention to include body corporate as well as body un-incorporate. The definition of `person' in Section 2(1)(m) is inclusive and not exhaustive.

Hence the apex court said: " It does not appear to us to admit of any doubt that company is a person within the meaning of Section 2(1)(d) read with Section 2(1)(m) and we hold accordingly."

It also said KPTC could be held liable for deficiency in service under the consumer law. "...the provision of facilities in connection with supply of electrical energy is a service. Supply of electricity by the (Karnataka state electricity) Board or for that matter KPTC to a consumer would be covered under Section 2(1)(o) being 'service' and if the supply of electrical energy to a consumer is not provided in time as is agreed upon, then under Section (2)(1)(g), there may be a case for deficiency in service."

No agreement for giving or taking dowry is required to prove the offence of dowry death

The Supreme Court has ruled that no agreement for giving or taking dowry is required to prove the offence of dowry death.

While upholding the conviction and sentence of father-in-law for setting afire his daughter-in-law for dowry, a bench comprising Justices Arijit Pasayat and Mukundakam Sharma, in the judgement in Prem Kumar vs State of Rajasthan dated 7/01/2009, noted, 'While interpreting section 304B of the IPC (Dowry death), if courts insist on such agreements than virtually no offender can be booked.' The apex court further noted, 'Hardly, any offender would come under the clutches of law.' Prem Kumar, the father-in-law, was acquitted by the trial court.

In order to attract Section 304B IPC, the following ingredients are to be satisfied.

i) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances.

ii) Such death must have occurred within 7 years of the marriage.

iii) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or any relative of her husband; and

iv) Such cruelty or harassment must be in connection with the demand of dowry.


Sections 304B and Section 498A read as follows:

"304-B. Dowry Death- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with any demand for dowry, such death shall be called "dowry death" and such husband or relative shall be deemed to have caused her death.

Explanation - For the purpose of this sub-section `dowry' shall have same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."

"498-A: Husband or relative of husband of a woman
subjecting her to cruelty- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation - For the purpose of this section `cruelty' means -

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit sucide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."

The term "dowry" has been defined in Section 2 of the Dowry

Prohibition Act, 1961 (in short `Dowry Act') as under:-


"Section 2. Definition of `dowry' - In this Act, `dowry'
means any property or valuable security given or agreed
to be given either directly or indirectly -


(a) by one party to a marriage to the other party
to the marriage; or

(b) by the parents of either party to a marriage
or by any other person, to either party to the
marriage or to any other person,

at or before or any time after the marriage in connection
with the marriage of the said parties, but does not
include dower or mehr in the case of persons to whom
the Muslim personal law (Shariat) applies.

Explanation I- For the removal of doubts, it is hereby
declared that any presents made at the time of a marriage
to either party to the marriage in the form of cash,
ornaments, clothes or other articles, shall not be deemed
to be dowry within the meaning of this section, unless
they are made as consideration for the marriage of the
said parties.

Explanation II- The expression `valuable security' has
the same meaning in Section 30 of the Indian Penal
Code (45 of 1860)."


Explanation to Section 304-B refers to dowry "as having the same meaning as in Section 2 of the Act", the question is : what is the periphery of the dowry as defined therein ? The argument is, there has to be an agreement at the time of the marriage in view of the words "agreed to be
given" occurring therein, and in the absence of any such evidence it would not constitute to be a dowry. It is noticeable, as this definition by amendment includes not only the period before and at the marriage but also the period subsequent to the marriage. This position was highlighted in Pawan Kumar and Ors. v. State of Haryana (1998 (3) SCC 309).

Section 113-B of the Evidence Act is also relevant for the case at hand. Both Section 304-B IPC and Section 113-B of the Evidence Act were inserted as noted earlier by the Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113-B reads as follows:-

 "113-B: Presumption as to dowry death- When the
question is whether a person has committed the dowry
death of a woman and it is shown that soon before her
death such woman has been subjected by such person to
cruelty or harassment for, or in connection with, any
demand for dowry, the Court shall presume that such
person had caused the dowry death.
Explanation - For the purposes of this section `dowry
death' shall have the same meaning as in Section 304-B
of the Indian Penal Code (45 of 1860)."


The presumption shall be raised only on proof of the following essentials:
(1) The question before the Court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B IPC).

(2) The woman was subjected to cruelty or harassment by her husband or his relatives.
(3) Such cruelty or harassment was for, or in connection with any demand for dowry.

(4) Such cruelty or harassment was soon before her death.


A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the `death occurring otherwise than in normal circumstances'. The expression `soon before' is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates.
Evidence in that regard has to be led by prosecution. `Soon before' is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the
proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression `soon before her death' used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression `soon before' is not defined. A reference to expression `soon before' used in Section 114. Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods `soon after' the theft, is either the thief or has received the goods knowing them to be stolen, unless he can
account for his possession. The determination of the period which can come within the term `soon before' is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression `soon before' would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live-link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.

Rajasthan High Court, however, reversed the order of the acquittal and held the appellant guilty of the killing of his daughter-in-law by setting her ablaze.

The apex court dismissed the appeal of the accused and held that as per section 3 and 4 of the Dowry Prohibition Act both giving and taking dowry is an offence.

An Accused can be convicted on the basis of reliable Extra-Judicial Confessions

The Supreme Court has said that an accused can be convicted on the basis of reliable extrajudicial confessions. It is not open to the court to presume such confessions as weak evidence while deciding the cases, said apex court.

A bench comprising Justice Arijit Pasayat and Justice P Sathasivam while deciding the case of Mohd. Azad @ Samin vs State of West Bengal, dated 5/11/2008, said:

An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility".

Judicial confessions are those which are made before a magistrate or a court in the course of judicial proceedings. Extra-judicial confessions are those which are made by the party elsewhere than before a magistrate or court.

Extra-judicial confessions are generally those that are made by a party to or before a private individual, which includes even a judicial officer in his private capacity. It also includes a magistrate who is not especially empowered to record confessions under Section 164 of the Code of Criminal Procedure, 1973.

The court dismissed the plea of two appellant convicts who had challenged a Calcutta high court order. They were convicted taking into account extra-judicial confessions.

Sexual Harassment in the Workplace

It is behavior that is bothersome, irritating, demeaning, and annoying. Sexual harassment is harassment of a sexual nature. But it can be more! It is against the law! It can lead to substantial and embarrassing court fines and significant payments to an injured party. It can mean reduced productivity. It can be measured in lower stock value. It can be a hostile work environment. It is wrong.

Sexual harassment is basically defined as unwelcome sexual conduct that is servere or pervasive and that creates a hostile or abusive work environment. There are two types of sexual harassment claims. The most common in recent years has been hostile environment sexual harassment. This type of harassment is usually motivated by an animus toward women or sexual desire, and takes the form of sexual advances, jokes, comments or actions that alter the work environment. The second type of sexual harassment is called quid pro quo (”this for that”) sexual harassment. Quid pro quo sexual harassment most often occurs where a supervisor or manager threatens some adverse employment action absent relenting to sexual demands or offers employment benefits in exchange for sexual favors.

Landmark Supreme Court judgment on Sexual Harassment of Women at Work Place

In the Landmark case of Vishaka and others versus State of Rajasthan (AIR 1997 Supreme Court 3011), The Supreme Court issued extensive guidelines to ensure prevention of sexual harassment of women at their work place. These directions were issued in a writ petition arising out of an incident of alleged brutal gang rape of a social worker in a village of Rajasthan.

This petition was filed for the enforcement of fundamental rights of working women under article 14, 19 and 21 of the Constitution of India in view of the prevailing climate in which the violation of these rights is not uncommon. With the increasing awareness and emphasis on gender justice, there is an increase in the effort to guard against such social violations; and the resentment towards incidents of sexual harassment is also increasing.

This petition was in Sexual Harassment in the Workplace and was brought as a class action by certain social activits and NGOs.

It has been held by the Supreme Court that it shall be the duty of the employer to prevent the commission of sexual harassment and to provide the procedures for the resolution and prosecution of acts of sexual harassment by taking all the steps required.

Sexual harassment has been described as including such unwelcome sexually determined behaviour (whether directly or by implication) as:

(a) physical contact and advances;

(b) a demand or request for sexual favours;

(c) sexually coloured remarks;

(d) showing pornography;

(e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

It has been held that all employers should take appropriate step to prevent sexual harassment: (a) The prohibition of sexual harassment should be notified published and circulated in appropriate ways. (b) The rules/regulation of government of public sector bodies should included rules prohibiting sexual harassment and provide for appropriate penalties. (c) As regard private employees steps should be taken to include the prohibition in this standing orders under the Industrial Employment (Standing Orders) Act, 1946.

The employer has been directed to initiate criminal action by making a complaint in cases where specific offence of sexual harassment has taken place. He is also required to initiate disciplinary action.

Lawyers to observe strike against CrPC amendments Wednesday

New Delhi, Feb 16 (IANS) Lawyers across the country will observe a nationwide strike Wednesday demanding repeal of an amendment to the Criminal Procedure Code (CrPC) that they say takes away the mandatory provision of arrest in certain cases.

The Delhi High Court Bar Association (DHCBA) along with the federation of all Bar Associations of Northern States will observe a nationwide strike on Wednesday.

DHCBA secretary D.K.Sharma said: “We will observe hunger strike Wednesday to raise our voice against amendments in section 41 and section 309 of CrPC. We have also sent a memorandum to the home ministry to consider the amendments.”

The amendment to the CrPC gives the police freedom to use their discretion on whether to arrest an accused in offences punishable with jail terms of up to seven years.

Meanwhile, the Co-ordination Committee of all Bar Associations of Delhi will also abstain from work Tuesday and hold an all India strike Wednesday and a massive demonstration outside parliament.

“The legal fraternity of India strongly condemns the central government for making such amendments, which are pro-criminal and help the politicians, their henchmen and corrupt bureaucrats who indulge in bribes, land grabbing and other offences,” Rajiv Khosla, spokesperson for the striking lawyers’ coordination committee, told reporters.

He added: “In fact, the amendments brought by the government will give boost to criminals to commit more and more crimes as the fear of being arrested will no more be in their mind because the mandatory provision of arrest in cases that entail punishment upto seven years has been taken away.”

Jaiveer Singh Chauhan, Secretary Delhi Bar Association, said: “With the introduction of amendments in CrPC the chances of more corruption in the police department cannot be ruled out as already the police department has been found to be one of the most corrupt departments in the country.”

The amendment proposes that a police officer may, instead of arresting the person concerned, issue a notice of appearance, asking him to cooperate in the probe.

No arrest will be made in a non-cognisable offence except under a warrant or order of a magistrate. The reasons for arrest should be sound and recorded in writing by the police officer, the amendment proposes.

CrPC (Amendment) Act 2008 gets Presidents accent

http://www.vakilno1.com/LegalViews/index.php/tag/crpc-amendments/

President gives accent to Law forbidding arrest in offenses carrying upto seven years imprisonment

It has been reported in the Times of India dated 19th January, 2009 that the President has granted assent to the law past nearly three week back by the parliament which brings about major changes in the Criminal Procedure Code. This newly enacted law take away the powers of the police to arrest in cases of alleged offenses which carry a maximum sentence upto seven years of imprisonment.

Once the law, CrPC (Amendment) Act 2008, becomes effective, the police, instead of arresting the accused, will be obliged to issue him/her a “notice of appearance” for any offence punishable with imprisonment up to seven years. The person can be arrested only if he/she does not appear before the police in response to the notice.

Seven years or less is the maximum penalty for a lot of offences. These offences include such as attempt to commit culpable homicide, kidnapping, death by negligence, cheating, voluntarily causing grievous hurt, outraging a woman’s modesty, robbery, attempt to suicide.

These amendments have been made in section 41 of the CrPC. Under Section 41, as it originally stood, a police officer may, without an order of a magistrate and without a warrant, arrest any person who has been concerned in any cognisabale offense. The rationale of the amendment in section 41 of the code of criminal procedure has been justified by the home minister of India Shri P. Chidambaram reportedly in his letter which says that the provision was being capable of being misused and was in fact actually being misused in practice. He substantiated this claim of misuse of the arrest law by the police using it more of an engine of harassment rather than an instrumentality of fair investigation by citing the various reports of the law commission of India, the Malimath committee of reforms, and the landmark supreme court judgment in the case of DK Basu. In fact it was misused of this law that had necessitated the delivering of DK Basu judgment in which various dos’ and donts’ were prescribed to be strictly complied by the police force while investigating a case and arresting an accused.

The amendment in CrPC, however, allows police to arrest without an order from a magistrate and without a warrant a person who commits a cognisable offense “in the presence of a police officer”.

It also enables arrest of “a person who has committed a cognisable offence (punishable for a term which may be less than 7 years or extend upto 7 years) if there is a reasonable complaint or credible information or a reasonable suspicion and the police officer is satisfied that such arrest is necessary for proper investigation of the offence or for preventing tampering with the evidence“. The only additional requirement in such cases is that the police officer will have “to record his reasons” for making the arrest.

SUPREME COURT BAR ASSOCIATION OPPOSED TO CRIMINAL PROCEDURE CODE AMENDMENT BILL

The Supreme Court Bar Association is opposed to the amendments made in the Criminal Procedure Code (CrPC) giving discretionary powers to police not to arrest a person who is involved in an offence having maximum sentence of seven years.

The bill, which was passed by Parliament on December 23 without any discussion as on that day eight bills were passed in 17 minutes and has also received Presidential assent, is likely to be challenged in the Supreme Court when it is notified by the government to enforce the amendments.

SCBA President P H Parekh told UNI that he was with the bar associations of the country, who are opposing the amendments. SCBA Secretary K C Kaushik said it was wrong on the part of the government to introduce such a bill in Parliament without taking the legal fraternity and bar associations into confidence. According to Mr Parekh, the SCBA has already passed a resolution opposing the amendments. There is widespread belief among lawyers that these amendments would give a free hand to frauds, unscrupulous elements, extortionists, those demanding dowry and other offenders without any fear of being arrested, leaving law-abiding citizens at the mercy of anti-social elements, police and politicians with criminal track records. Police would misuse its discretionary powers to shield the culprits, they contend. The apex court is already seized of a PIL which raises the important and similar issue of whether police officers should be given discretionary powers in case of commission of a cognisable offence or not.

Chief Justice K G Balakrishnan had expressed the views that a person should not be arrested without verifying the veracity of allegations so that people are not implicated in false cases to settle personal and political scores while Justice B N Aggarwal, who is the next senior most judge in the Supreme Court, holds opposite views and had observed, �Discretion will amount to give the police a handle.' The lawyers have already declared that they would observe a nationwide strike against the amendments on February 3. According to the amendments, police would have to seek prior permission of the court before arresting a person and would be able to arrest people only involved in heinous crimes like murder, rape and dacoity.

Death for Pandher, Koli

Saturday, Feb 14, 2009


Surinder Koli.

Ghaziabad (U.P.): A special court on Friday awarded the death sentence to businessman Moninder Singh Pandher and his domestic help Surinder Koli for the rape and murder of a 14-year-old girl, one of 19 victims in the sensational Nithari serial killings.

Special CBI judge Rama Jain termed the crimes committed by 55-year-old Pandher and 38-year-old Koli the “rarest of rare” deserving capital punishment.

While counsel for the victim’s family Khalid Khan described the verdict as a “slap in the face of the CBI,” which gave a clean chit to Pandher, the businessman’s son, Karandeep Singh, said his father was innocent and he would appeal against the judgment in the Allahabad High Court.

The court on Thursday convicted Pandher and Koli under various Sections of the Indian Penal Code for murder, rape, criminal conspiracy and destruction of evidence.

In its final arguments on Friday, the CBI sought the death penalty for Koli but left to the court the quantum of punishment for Pandher as the agency had no charges against him in this case.

The judge said: “No more penalty could be awarded to the accused persons; otherwise, they deserve more punishment as their act of murder and rape in this particular case was beyond all the canons of humanity.” After the verdict, Pandher broke into tears while Koli remained unmoved.

‘Remorseless’

Earlier, during final arguments, CBI counsel argued that Koli had no right to live in society because even today he was remorseless. “He continues to be a threat to society,” Mr. Ahluwalia said. — PTI

SEBI relaxes takeover norms

Saturday, Feb 14, 2009

MUMBAI: The Securities and Exchange Board of India (SEBI) on Friday eased takeover norms for companies whose boards have been superseded by the government, under which suitors need not make an open offer.

SEBI amended the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 1997, allowing companies a special status in the bidding process. following the scam tainted Satyam was taken over by the Government in January. This would help the newly appointed board find a bidder as well as a realistic bidding price for the company.

These regulations may be called the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) (Second Amendment) Regulations, 2009, and it has come into force from Friday.

In the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 1997, (i) in regulation 25, after sub-regulation (2A), a new sub-regulation has been inserted, namely, (2B). “No public announcement for a competitive bid shall be made after an acquirer has already made the public announcement pursuant to relaxation granted by the Board in terms of regulation 29A”.

Further, in the same regulation, after regulation 29, the following regulation has been inserted, namely, “Relaxation from the strict compliance of provisions of Chapter III in certain cases. 29A:

The board may relax any or more of the provisions of this Chapter, subject to such conditions as it may deem fit, if it is satisfied that

(a) the Central Government or State government or any other regulatory authority has removed the board of directors of the target company and has appointed other persons to hold office as directors for the time being for orderly conduct of the affairs of the target company;

(b) such directors have devised a plan which provides for transparent, open, and competitive process for continued operation of the target company;

(c) the conditions and requirements of the competitive process are reasonable and fair;

(d) the process provides for details, including the time when the public offer would be made, completed and the manner in which the change in control would be effected; and

(e) the provisions of this Chapter are likely to act as impediment to implementation of the plan of the target company”.

Takeover

In business, a takeover is the purchase of one company (the target) by another (the acquirer, or bidder). In the UK, the term refers to the acquisition of a public company whose shares are listed on a stock exchange, in contrast to the acquisition of a private company.

Friendly takeovers

Before a bidder makes an offer for another company, it usually first informs that company's Board of Director. If the board feels that accepting the offer serves shareholders better than rejecting it, it recommends the offer be accepted by the shareholders.

In a private company, because the shareholders and the board are usually the same people or closely connected with one another, private acquisitions are usually friendly: if the shareholders agree to sell the company then the board is usually of the same mind or sufficiently under the orders of the shareholders to cooperate with the bidder. This point is not relevant to the UK concept of takeovers, which always involve the acquisition of a public company.

Hostile takeovers

If management may not be acting in the best interest of the shareholders (or creditors, in cases of bankrupt firms), a hostile takeover allows a suitor to bypass intransigent management. This enables the shareholders to choose the option that may be best for them, rather than leaving approval solely with management. In this case, a hostile takeover may be beneficial to shareholders, which is contrary to the usual perception that a hostile takeover is "bad."

A takeover is considered "hostile" if:

• The board rejects the offer, but the bidder continues to pursue it, or
• The bidder makes the offer without informing the board beforehand

A hostile takeover can be conducted in several ways. A tender offer can be made where the acquiring company makes a public offer at a fixed price above the current market price. Tender offers in the USA are regulated with the Williams Act. An acquiring company can also engage in a Proxy fight whereby tries to persuade enough shareholders, usually a simple majority, to replace the management with a new one which will approve the takeover. Another method involves quietly purchasing enough stock on the open market, known as a creeping tender offer, to effect a change in management. In all of these ways, management resists the acquisition but it is carried out anyway.

The main consequence of a bid being considered hostile is practical rather than legal. If the board of the target cooperates, the bidder can conduct extensive due diligence into the affairs of the target company. It can find out exactly what it is taking on before it makes a commitment. But a hostile bidder knows about the target only the information that is publicly available, and so takes a greater risk. Also, banks are less willing to back hostile bids with the loans that are usually needed to finance the takeover.

Reverse takeovers

A reverse takeovers is a type of takeover where a private company acquires a public company. This is usually done at the instigation of the larger, private company, the purpose being for the private company to effectively float itself while avoiding some of the expense and time involved in a conventional IPO. However, under AIM rules, a reverse take-over is an acquisition or acquisitions in a twelve month period which for an AIM company would:

• exceed 100% in any of the class tests; or
• result in a fundamental change in its business, board or voting control; or
• in the case of an investing company, depart substantially from the investing strategy stated in its admission document or, where no admission document was produced on admission, depart substantially from the investing strategy stated in its pre-admission announcement or, depart substantially from the investing strategy.

Financing a takeover

Funding

Often a company acquiring another pays a specified amount for it. This money can be raised in a number of ways. The company may have sufficient funds available in its account, but this is unusual. More often, it will be borrowed from a bank, or raised by an issue of bonds. Acquisitions financed through debt are known as leveraged buyouts, and the debt will often be moved down onto the balance sheets of the acquired company. The acquired company then has to pay back the debt. This is a technique often used by private equity companies. The debt ratio of financing can go as high as 80% in some cases. In such a case, the acquiring company would only need to raise 20% of the purchase price.

Loan note alternatives

Cash offers for public companies often include a "loan note alternative" that allows shareholders to take part or all of their consideration in loan notes rather than cash. This is done primarily to make the offer more attractive in terms of taxation. A conversion of shares into cash is counted a disposal that triggers a payment of capital gains tax, whereas if the shares are converted into other securities, such as loan notes, the tax is rolled over.

All share deals

A takeover, particularly a reverse takeovers, may be financed by an all share deal. The bidder does not pay money, but instead issues new shares in itself to the shareholders of the company being acquired. In a reverse takeover the shareholders of the company being acquired end up with a majority of the shares in, and so control of, the company making the bid. The company has managemental rights.

Perceived pros and cons of takeover

While perceived pros and cons of a takeover differ from case to case, there are a few worth mentioning.

Pros:

1. Increase in sales/revenues (e.g. Procter & Gamble takeover of Gillette)
2. Venture into new businesses and markets
3. Profitability of target company
4. Increase market share
5. Decrease competition (from the perspective of the acquiring company)
6. Reduction of overcapacity in the industry
7. Enlarge brand portfolio (e.g. L'Oréal's takeover of Bodyshop)
8. Increase in economies of scale.
   

Cons:

1. Reduced competition and choice for consumers in oligopoly markets. (Bad for consumers, although this is good for the companies involved in the takeover)
2. Likelihood of job cuts.
3. Cultural integration/conflict with new management
4. Hidden liabilities of target entity.
5. The monetary cost to the company.

What is MACT ?

Motor Accidents Claims Tribunal MACT deals with matters related to compensation of motor accidents victims or their next of kin .The Tribunal deal with claims relating to loss of life/property and injury cases resulting from Motor Accidents.

MACT Courts are presided over by Judicial Officers from the State Higher Judicial Service. Now these Courts are under direct supervision of the Hon’ble High Court of the respective state

Who can report to MACT in case of accident ?

Victim himself or through Advocate,in the case of personal injury. Through advocate in case of minor applicant below the age of 18 years. Legal heirs themselves or through advocate in the case of death.The owner of the vehicle in the case of property damage.

What all documents should accompany the petition ?

1. Copy of the FIR registered in connection with said accident, if any.

2. Copy of the MLC/Post Mortem Report/Death Report as the case may be.

3. The documents of the identity of the claimants and of the deceased in a death case.

4. Original bills of expenses incurred on the treatment alongwith treatment record.

5. Documents of the educational qualifications of the deceased, if any.

6. Disability Certificate, if already obtained, in an injury case.

7. The proof of income of the deceased/injured.

8. Documents about the age of the victim.

9. The cover note of the third party insurance policy, if any.

10.An affidavit detailing the relationship of the claimants with the deceased.

Judges Vacancies: States, HCs Asked To Fix Time Schedule

03 April, 2006
While holding non-filling of posts of judicial officers responsible for ever increasing backlog of cases, the Supreme Court today issued directions to the States, Union Territories and High Courts to draw up a time schedule for filling the vacancies of judges at all levels.

A bench, comprising Chief Justice Y K Sabharwal and Mr Justice C K Thakker, directed them to file details of the time schedule and date from which it would be operational, within three months.

It ruled that non-filling of vacancies for long not only resulted in avoidable litigation but also increased frustration among the candidates. This was one of reasons of huge pendency of cases in the courts.

The Court found it necessary to evolve a mechanism to speedily determine and fill the vacancies of judges at all levels. "For all these and other steps if any, it is necessary to provide for fixed time schedule so that system works automatically and there is no delay in filling up of vacancies," the court observed.

"The dates for taking these steps can be provided on the pattern similar to filling of vacancies in some other services or filling of seats for admission to medical colleges. The time schedule appended to the regulations governing medical admissions sets out a time schedule for every step to be strictly adhered to every year," the Court went on to say.

The directions came while allowing appeals by some candidates challenging the Allahabad High Court judgments holding that only those candidates who were of requisite age on July 1, 2003 were eligible. The lower age was 22 years and upper age limit was 35 years for the posts of civil judges in Uttar Pradesh.

The apex court, while setting aside the High Court order on a petition filed by Malik Mazhar Sultan and another, held that those who became eligible on July 1, 2004 and those who were eligible on July 1, 2002 would be considered for appointment to the posts of civil judge (junior division). In all, 347 candidates were to be recruited to the posts of civil judge by the UP Public Service Commission. The Court directed that the recruitment process for the remaining should be completed at the earliest.

(UNI)

The extracts of the abovementioned case is as under:-

Malik Mazhar Sultan & Anr VS. U.P. Public Service Commission & Ors

CASE NO.: Appeal (civil) 1867 of 2006

PETITIONER: Malik Mazhar Sultan & Anr

RESPONDENT: U.P. Public Service Commission & Ors

DATE OF JUDGMENT: 03/04/2006

BENCH: Y.K. Sabharwal & C.K.Thakker

JUDGMENT: (With Civil Appeal Nos.............of 2006 (Arising out of SLP(C) Nos. 23314, 23316, 23702, 25179 & 24732 of 2005)

J U D G M E N T (Arising out of SLP(C) No.22523 of 2005)

Y.K.SABHARWAL, CJI.

Leave granted.

The main question to be determined in these matters, which relates to the recruitment to the posts of Civil Judge (Junior Division) under U.P Judicial Service Rules 2001 (for short 'the Rules'), is as to the eligibility of some candidates from the point of view of age.

The High Court by the impugned judgment has held only those candidates eligible who were of requisite age as on 1st July, 2003. Is the High Court right in its conclusion or 1st July, 2001 or 1st July, 2002 is the relevant date for determining the age as a condition of eligibility as cont...