Sunday, 28 February 2021

Whether State is liable to Compensate if there is any Unforeseen Death Or Injury In Govt Hospital Even If There Is No Medical Negligence?

 When a patient is admitted in a government

hospital for treatment and he/she suffers any injury or

death which is not anticipated to occur in the normal

course of events, even in the absence of medical

negligence, the government is obliged to disburse exgratia

to the affected party. In the case on hand,

liability has to be fastened on the government. Since

the institution happens to be the Government institution,

the Government of Tamil Nadu will have to necessarily

take consequence. My attention is drawn to G.O(Ms)No.395

dated 04.09.2018 whereby a corpus fund has been created

by the Tamil Nadu Government. It appears that every

Government doctor contributes certain sum of money

towards this corpus fund and whenever compensation is

directed to be paid by the courts, amount will be drawn

from this fund and paid. Considering the overall

circumstances, I am of the view that the petitioner

deserves to be paid a sum of Rs.5.00 lakhs as

compensation. The said amount shall be paid by the

department/Government from the said fund. Such payment

will be made to the petitioner within a period of eight

weeks from the date of receipt of copy of this order.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 01.02.2021

CORAM

 MR.JUSTICE G.R.SWAMINATHAN

WP(MD)No.2721 of 2017

Tamil Selvi   Vs. The State of Tamil Nadu,

Dated:01.02.2021

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Whether the state is liable to pay interest to government servant for delayed payment of salaries and pension?

The direction for the payment of the deferred portions of the salaries and pensions is unexceptionable. Salaries are due to the employees of the State for services rendered. Salaries in other words constitute the rightful entitlement of the employees and are payable in accordance with law.

Likewise, it is well settled that the payment of pension is for years of past service rendered by the pensioners to the State. Pensions are hence a matter of a rightful entitlement recognised by the applicable rules and regulations which govern the service of the employees of the State. The State

Government has complied with the directions of this Court for the payment

of the outstanding dues in two tranches. Insofar as the interest is concerned,

we are of the view that the rate of 12% per annum which has been fixed by

the High Court should be suitably scaled down. While learned counsel for the

respondents submits that the award of interest was on account of the action

of the Government which was contrary to law, we are of the view that the

payment of interest cannot be used as a means to penalize the State

Government. There can be no gainsaying the fact that the Government which has delayed the payment of salaries and pensions should be directed to pay interest at an appropriate rate.

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No 399 of 2021


The State of Andhra Pradesh Vs Smt Dinavahi Lakshmi Kameswari 

Dated: February 8, 2021

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Whether court can declare accused juvenile if his ossification test was conducted when he was aged 40-55 years?

As per the Scheme of the Act, when it is obvious to the Committee  or the Board, based on the appearance of the person, that the said person is a child, the Board or Committee shall record observations stating the age of the Child as nearly as may be without waiting for further confirmation of the age. Therefore, the first attempt to determine the age is by assessing the physical appearance of the person when brought before the Board or the Committee. It is only in case of doubt, the process of age determination by seeking evidence becomes necessary. At that stage, when a person is around 18 years of age, the ossification test can be said to be relevant for determining the approximate age of a person in conflict with law. However, when the person is around 40-55 years of age, the structure of bones cannot be helpful in determining the age. This Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Ors. (2020) 7 SCC 1 held, in the context of certificate required under Section 65B of the Evidence Act, 1872, that as per the Latin maxim, lex non cogit ad impossibilia, law does not demand the impossible. Thus, when the ossification test cannot yield trustworthy and reliable results, such test cannot be made a basis to determine the age of the person concerned on the date of incident. Therefore, in the absence of any reliable trustworthy medical evidence to find out age of the appellant, the ossification test conducted in year 2020 when the appellant was 55 years of age cannot be conclusive to declare him as a juvenile on the date of the incident.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 175 OF 2021

RAM VIJAY SINGH  Vs  STATE OF UTTAR PRADESH 

Author: HEMANT GUPTA, J.

Dated: FEBRUARY 25, 2021.
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Saturday, 27 February 2021

Whether police can detain sexual offender in preventive detention?

 In the instant case, a bare perusal of the bail order of the

detenu, dated 22.07.2020, reveals that the prosecuting authority

has not brought the aforementioned proviso to the notice of the

learned Sessions Judge who granted bail to the detenu. For the

inaction of the Police, the detaining authority cannot be

permitted to invoke the draconian preventive detention laws, in

order to breach the liberty of an individual. The detenu is being

prosecuted for committing a heinous offence of penetrative

aggravated sexual assault on a girl aged 13 years. He was

granted bail by the Court of Session as indicated above on

conditions. If the state of aggrieved by the grant of bail to the

detenu, nothing prevented the State to move higher Court to

seek cancellation of bail. The State did not choose to resort to

such cancellation of bail, instead passed the impugned detention

order. All the cases under POCSO Act are being put on fast

track. It is brought to the notice of this Court that no chargesheet has been filed. The State could have expedited the

investigation and filed charge-sheet. The minimum sentence of

imprisonment prescribed for the alleged offence is ten years. As

held in Vijay Narain Singh’s case (3 supra), a single act or

omission cannot be characterized as a habitual act because, the

idea of ‘habit’ involves an element of persistence and a tendency

to commit or repeat similar offences, which is patently not

present in the instant case. The detenu is second year

intermediate student. In our opinion, the bald statement made

in the grounds of detention that considering the detenu’s

involvement in heinous activities and his release from prison on

bail, there is imminent possibility of his indulging in similar

shameful and inhuman acts of sexual assault on minor girls and

women exploiting their innocence in a deceptive manner which

are detrimental to public order, would not justify the impugned

detention order.

 However, the failure of the

detaining authority to consider the possibility of launching

a criminal prosecution may, in the circumstances of a

case, lead to the conclusion that the detaining authority

had not applied its mind to the vital question whether it

was necessary to make an order of preventive detention.

Where an express allegation is made that the order of

detention was issued in a mechanical fashion without

keeping present to its mind the question whether it was

necessary to make such an order when an ordinary

criminal prosecution could well serve the purpose, the

detaining authority must satisfy the court that the

question too was borne in mind before the order of

detention was made. If the detaining authority fails to

satisfy the court that the detaining authority so borne the

question in mind the court would be justified in drawing

the inference that there was no application of the mind of

the detaining authority to the vital question whether it

was necessary to preventively detain the detenu.”

15. In the present case, further, the detaining authority failed

to demonstrate the necessity to pass the impugned detention

order invoking the draconian preventive detention laws, when

recourse to normal criminal justice system is available for

curbing the alleged illegal activities of the detenu. Even

otherwise, there is nothing on record to show that there is

'imminent possibility’ of the detenu indulging in similar offence/s

which are detrimental to public order. It is true that the offence

alleged against the detenu is heinous in nature. But, it is also

equally true that the detenu has no criminal antecedents or

criminal history, which could have formed the basis for recording 'subjective satisfaction' while passing the order of detention. In

the instant case, there is only a solitary case in Crime No.452 of

2020 of Shadnagar Police Station registered for the offences

punishable under Sections 363, 376(2)(n) of IPC and Sections 5

& 6 of POCSO Act for which the detenu was arrested and

remanded to judicial custody and later released on conditional

bail. Lastly, it is also relevant to state that the detenu developed

acquaintance/friendship with the victim girl who is 13 years old

as she was studying in the school, where the sister of the detenu

was also studying. Due to the acquaintance/friendship, the

detenu took the victim girl to a secluded place where he has

committed sexual intercourse and thus fulfilled his sexual desire

and on the next day morning, i.e., on 27.06.2020, he let off the

victim girl. Therefore, it cannot be held that the detenu would

indulge in similar prejudicial activities in future. Under these

circumstances, the detaining authority is not justified in passing

the order of detention, which tantamounts to colourable exercise

of power.

16. Grave as the offence may be, it relates to penetrative

aggravated sexual assault on a minor girl. So, no inference of

disturbance of public order can be drawn. This case can be tried

under the normal criminal law and/or special legislation. And, if

convicted, can certainly be punished by the Court of law. Thus,

the case does not fall within the ambit of the words "public

order". Instead, it falls within the scope of the words "law and

order". Hence, there was no need for the detaining authority to

pass the detention order.

TELANGANA HIGH COURT

 THE HON’BLE SRI JUSTICE A.RAJASHEKER REDDY

AND

 THE HON’BLE Dr. JUSTICE SHAMEEM AKTHER

 Writ Petition No.18013 of 2020

 Date: 23.02.2021.

Charakonda Chinna Chennaiah Vs. The State of Telangana a

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