Monday, 26 July 2021

Whether Chief Minister's Social Media Posts amounts Administrative Order/Instruction to the subordinate officer?

 We will be failing in our duty if argument of Shri Maheshwari

relating to “acting under dictate” is not taken into account. On the basis of certain social media posts of the Chief Minister of the State wherein he expressed his view that persons involved in black marketing of Remdesivir/drugs should be detained under NSA Act, it was argued that the detention order passed by the District Magistrate is in furtherance of said posts and amount to acting under dictate. We do not see any merit in this contention. The social media posts cannot be equated with an administrative order/instruction. It is not necessary that every social media post of a government functionary is seen/read out and followed in the administrative hierarchy. Had it been an executive instruction/order issued by higher functionary to act in a particular manner and in obedience thereof District Magistrate

would have passed a detention order, perhaps the matter would have been different. Unless a clear nexus is established between the social media posts and the detention order, it cannot be said that District Magistrate has acted under dictate. Apart from this, the impugned order of District Magistrate has been examined by us on the necessary parameters and it was found that he has used his discretion in accordance with law and thus this argument of petitioner must fail. {Para 29}

High Court of Madhya Pradesh:

Bench at Indore

Case Number WP No.9878/2021

 Sonu Bairwa Vs. State of M.P. & Ors.

Date of Order 07/07/2021

Bench Division Bench:

Justice Sujoy Paul

Justice Anil Verma

Judgment delivered by Justice Sujoy Paul

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Whether presiding officers of Internal complaints committed are entitled to get protection from mala fide transfer?

 We are further of the prima facie view that when an officer, by virtue of a post, is also a Presiding Officer or Member of the ICC, ordinarily there should be security of tenure. The principles which apply to security of tenure of Judges and Presiding Officers of various quasi-judicial tribunals

would, in our opinion, also apply to Members/Presiding Officers of ICC.

The Supreme Court in Madras Bar Association Vs. Union of India (2014) 10 SCC 1 held that all Courts are Tribunals; any Tribunal to which any existing jurisdiction of Court is transferred should also be a Judicial Tribunal, meaning inter alia that the Members of the Tribunal should have the independence and security of tenure associated with Judicial Tribunals.

The Presiding Officers and Members of ICC, in our view, are also ‘Judges’ within the meaning of Section 19 of the Indian Penal Code, 1960. PerSection 11 (3) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 also, for the purpose of making an inquiry, ICC has the same powers as are vested in a Civil Court under Code of Civil Procedure, 1908 in the matter of summoning and enforcing attendance of any person and examining him on oath and

requiring discovery and production of documents. {Para 8}

9. The counsel for the respondents CRPF appearing on advance notice

has strongly opposed the contention aforesaid and has argued that there is no

hard and fast rule of the tenure at a post being of three years and for

administrative exigencies, officers/personnel can always be transferred even

prior to three years.

10. Undoubtedly, so. However, once the personnel/officer by virtue of a post also occupies the position as aforesaid, the administrative exigencies, in our view, have to be weighed vis-à-vis the consideration of the need for security of tenure, inasmuch as, else there would always be apprehension that on returning unfavourable findings, the sword of transfer would be

brought down.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P.(C) 6712/2021

NEERAJ BALA  Vs  UNION OF INDIA & ORS. 


CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

HON'BLE MR. JUSTICE AMIT BANSAL


Dated: 19.07.2021

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Sunday, 25 July 2021

Whether lower appellate court can remand the case to trial court if high court has remanded said case to it?

  If such a remand is directed by the second Appellate Court or by the High Court in exercise of its jurisdiction under Article 227 of the Constitution of India, on remand of such matter before the lower Appellate Court, the lower Appellate Court has all the options open including, in turn, remanding the matter to the trial Court if it thinks that such a course is necessary in the ends of justice. Therefore, a Division Bench of Travancore-Cochin High Court in Sivanancha Perumal Piltai Thampuranthozha Pillai appellant v. Thirunamakarasu Pandaram and others respondents, A.I.R. (39)1951 Travancore Cochin 26 has held that when a decree is set aside and the case remanded to the lower Court all the contentions between the parties are before the Court and it is open for the trial Court to go into all the issues arising on such contentions. Only limitation after the remand is as may be contained in the order of remand. If the order of remand restricts the jurisdiction, the Court cannot override those limitations. But if the order of remand is in fact a direction of re-hearing on merits on all issues and all contentions raised by the parties, the jurisdiction is not at all restricted. When the matter is remanded to the lower Appellate Court, the lower Appellate Court has jurisdiction to remand the matter to the trial Court exercising its powers under Order XLI, Rule 23, Civil Procedure Code. However, the power of the remand will have to be exercised sparingly since it will have to be born in mind always that it may prolong the duration of a litigation and the party who is entitled for the fruits of the decree is kept away from it by such prolongation.


Bombay High Court

Laxman Bapu Berad vs Sudhakar Nanasaheb Jawale on 5 August, 1997
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Saturday, 24 July 2021

Supreme Court Guidelines for Trial of Dowry death cases

36. At the cost of repetition, the law under Section 304B,

IPC read with Section 113B, Evidence Act can be summarized below:

i. Section 304B, IPC must be interpreted keeping in mind the

legislative intent to curb the social evil of bride burning and

dowry demand.

ii. The prosecution must at first establish the existence of the

necessary ingredients for constituting an offence under Section

304B, IPC. Once these ingredients are satisfied, the rebuttable

presumption of causality, provided under Section 113B,

Evidence Act operates against the accused.

iii. The phrase “soon before” as appearing in Section 304B,

IPC cannot be construed to mean ‘immediately before’. The

prosecution must establish existence of “proximate and live

link” between the dowry death and cruelty or harassment for

dowry demand by the husband or his relatives.

iv. Section 304B, IPC does not take a pigeonhole approach in

categorizing death as homicidal or suicidal or accidental. The

reason for such non categorization is due to the fact that death

occurring “otherwise than under normal circumstances” can, in

cases, be homicidal or suicidal or accidental.

v. Due to the precarious nature of Section 304B, IPC read with

113B, Evidence Act, Judges, prosecution and defence should

be careful during conduction of trial.

vi. It is a matter of grave concern that, often, Trial Courts record

the statement under Section 313, CrPC in a very casual and

cursory manner, without specifically questioning the accused

as to his defense. It ought to be noted that the examination of

an accused under Section 313, CrPC cannot be treated as a

mere procedural formality, as it based on the fundamental

principle of fairness. This aforesaid provision incorporates the

valuable principle of natural justice “audi alteram partem” as it

enables the accused to offer an explanation for the

incriminatory material appearing against him. Therefore, it

imposes an obligation on the court to question the accused

fairly, with care and caution.

vii. The Court must put incriminating circumstances before the

accused and seek his response. A duty is also cast on the

counsel of the accused to prepare his defense since the

inception of the Trial with due caution, keeping in

consideration the peculiarities of Section 304B, IPC read with

Section 113B, Evidence Act.

viii. Section 232, CrPC provides that, “If, after taking the evidence

for the prosecution, examining the accused and hearing the

prosecution and the defence on the point, the Judge considers

that there is no evidence that the accused committed the offence,

the Judge shall record an order of acquittal”. Such discretion

must be utilized by the Trial Courts as an obligation of best

efforts.

ix. Once the Trial Court decides that the accused is not eligible to

be acquitted as per the provisions of Section 232, CrPC, it must

move on and fix hearings specifically for ‘defence evidence’,

calling upon the accused to present his defense as per the

procedure provided under Section 233, CrPC, which is also an

invaluable right provided to the accused.

x. In the same breath, Trial Courts need to balance other

important considerations such as the right to a speedy trial. In

this regard, we may caution that the above provisions should

not be allowed to be misused as delay tactics.

xi. Apart from the above, the presiding Judge should follow the

guidelines laid down by this Court while sentencing and imposing appropriate punishment.

xii. Undoubtedly, as discussed above, the menace of dowry death is

increasing day by day. However, it is also observed that

sometimes family members of the husband are roped in, even

though they have no active role in commission of the offence

and are residing at distant places. In these cases, the Court

need to be cautious in its approach.

Reportable

 IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL Nos. 1735-1736

OF 2010

SATBIR SINGH & ANOTHER  Vs  STATE OF HARYANA 

Author: N. V. RAMANA, CJI.

Dated:MAY 28, 2021

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