FOREIGN AIRLINES MUST COMPLY WITH SEXUAL HARASSMENT LAW: DELHI HC

The Delhi High Court has said that any foreign airline having even one office in the country is bound by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

It was hearing a public interest litigation on Monday seeking the implementation of the Vishakha guidelines on sexual harassment against women at the workplace in the aviation industry.

The case had been transferred as a PIL from another court which was dealing with the plea of an Indian woman, employed with the Sri Lankan Airlines, seeking action against the carrier and its official whom she had accused of sexual harassment.

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What are necessary conditions for using evidence recorded U/ S 299 of crpc against absconding accused?

Evidence Act, 1872 - Section 33Code of Criminal Procedure, 1973Section 299Indian Penal Code, 1860Section 302Use of statements of witnesses recorded under Section 299, Cr. P.C.Pre-conditions of Section 299.Accused declared proclaimed offender as abscondingFive witnesses examined by committing Magistrate in absence of accusedLater accused arrested and put up for trialThose five witnesses reported to be deadThough trial court not recording finding as to how pre-conditions of second part of Section 299 complied withYet High Court recording finding that factum of death of five witnesses established for purpose of Section 299 And their former statements under Section 299 could be treated as evidenceNo infirmity in basing conviction thereonNo interference with conviction and sentence called for.

AIR 1974 SC 944, relied on.

Section 299 of the Code of Criminal Procedure consists of two parts. The first part speaks of the circumstances under which witnesses produced by the prosecution could be examined in the absence of the accused and the second part speaks of the circumstances, when such deposition can be given in evidence against the accused in any inquiry or trial for the offence with which he is charged. This procedure contemplated under Section 299 of the Code of Criminal Procedure is thus an exception to the principle embodied in Section 33 of the Evidence Act inasmuch as under Section 33, the evidence of a witness, which a party has no right or opportunity to cross-examine is not legally admissible. Being an exception, it is necessary, therefore, that all the conditions prescribed, must be strictly complied with. In other words, before recording the statement of the witnesses, produced by the prosecution, the Court must be satisfied that the accused has absconded or that there is no immediate prospect of arresting him, as provided under first part of Section 299 (1) of the Code of Criminal Procedure. When the accused is arrested and put up for trial, if any, such deposition of any witness is intended to be used as an evidence against the accused in any trial, then the Court must be satisfied that either the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience, which would be unreasonable.

On a mere perusal of Section 299 of the Code of Criminal Procedure as well as Section 33 of the Evidence Act, there is no hesitation to come to the conclusion that the pre-conditions in both the Sections must be established by the prosecution and it is only then, the statements of witnesses recorded under Section 299, Cr. P.C. before the arrest of the accused can be utilised in evidence in trial after the arrest of such accused only if the persons are dead or would not be available or any other condition enumerated in the second part of Section 299 (1) of the Code of Criminal Procedure is established.

IN THE SUPREME COURT OF INDIA

Crl. A. Nos. 118-119 of 1998

Decided On: 30.03.2000

In the Matter of Nirmal Singh Vs. State of Haryana

Hon'ble Judges/Coram:

G.B. Patnaik and R.P. Sethi, JJ. 

Citation: 2000(1)ACR89(SC), 2000CriLJ1803, [2000]2SCR807, 2000(2)UJ904,MANU/SC/0217/2000

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Digest of judgments on criminal law

Cr.P.C. S.167(2): Statutory right should not be defeated by keeping application pending so that right which had accrued is extinguished-Union Of India Vs. Nirala Yadav, (2014) 8 SCALE 9 : (2014) 9 SCC 457 : 2014 AIR SCW 4298
Cr.P.C. S.389: In case of post conviction bail under Section 389, Cr.P.C, it is mandatory that appellate Court gives an opportunity to public prosecutor for showing cause in writing against such release. Suspension of sentence and release on bail. Appellate Court may even without hearing public prosecutor, decline to grant bail. However, in case appellate Court is inclined to consider release of convict on bail, public prosecutor shall be granted opportunity to show cause in writing as to why appellant be not released on bail. Despite such opportunity being granted to public prosecutor, in case no cause is shown in writing, appellate Court shall record that State has not filed any objection in writing. This procedure is intended to ensure transparency, to ensure that there is no allegation of collusion and to ensure that Court is properly assisted by State with true and correct facts with regard to relevant considerations for grant of bail in respect of serious offences, at post conviction stage -Atul Tripathi Vs. State Of U.P., (2014) 9 SCC 177: 2014 AIR SCW 4326
PUBLIC PROSECUTOR

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Which age of accused is to be considered for giving benefit of probation of offenders Act?

Probation of Offenders Act s.6(1): Age to be considered is as on the date of consideration and not the date of offence.

(1)  that the age referred to in s. 6 (1)  of  the
Probation  of Offenders Act, 1958, is that when  the  courts
deal;  with the offender, that being the point of time when
the  court  has  to choose  between  the  two  alternatives,
whether to sentence the offender to imprisonment or to apply
to him the provisions of s. 6(1) of the Act.
(2)that the courts mentioned in s. 11 of the Act, be  they
trial  courts or courts exercising appellate  or  revisional
jurisdiction,  are  empowered to exercise  the jurisdiction
conferred on courts not only under ss. 3 and 4 and the con.
sequential provisions but also under s. 6.
(3)that  the power conferred on appellate or other  courts
by  s. 1 1 (1) of the Act is of the same nature  and  chara-
cteristics and subject to the same criteria and  limitations
as that conferred on the courts under ss. 3 and 4.
(4)that the provisions of s. 6. (1) restrict the  absolute
and unfettered discretion implied by the word ,may" in S. 11
(1),  and the entirety of s. 6 (1) applies to guide or con-
dition the jurisdiction of the High Court under s. 11(1).
(5)that  the crucial date for reckoning the age  where an
appellate  court  modifies the judgment of the trial  judge
when  s.  6  becomes  applicable to a  person  only  on  the
decision of an appellate or a revisional court, is that upon
which the trial court had to deal with the offender.

Supreme Court of India

Ramji Missir And Another vs The State Of Bihar on 6 December, 1962

Equivalent citations: 1963 AIR 1088, 1963 SCR Supl. (2) 745

Bench: Ayyangar, N. Rajagopala

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Whether presence of Investigating Officer at the time of trial is must?

Cr.P.C. S.156 and 311: Presence of Investigating Officer during trial at the time of trial is must. It is his duty to keep witnesses present. If there is failure on part of any witness to remain present, it is the duty of the Court to take appropriate action including issuance of bailable/non-bailable warrants as the case may be. When the prosecution's evidence is closed on the ground that no adjournment application was filed by the prosecutor, the Court can still summon witnesses under section 311.

Supreme Court of India

Shailendra Kumar vs State Of Bihar And Others on 28 November, 2001

AIR 2002 SC 270.

Bench: M.B. Shah, B.N. Agrawal, Arijit Pasayat

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When delayed examination of witnesses is fatal to prosecution case?

As regards delayed examination of certain witnesses, this Court in several decisions has held that unless the Investigation Officer is categorically asked as to why there was delay in examination of the witnesses the defence cannot gain any advantage therform. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness ,the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the court accepts the same as plausible, there is no reason to interfere with the conclusion [See Ranbir and Ors. v. State of Punjab, AIR (1973) SC 1409 and Bodhraj @Bodha and Ors. v. State of Jammu and Kashmir,[2002] 8 SCC 45]. Consequently, we find no justifying reason or ground substantiated on behalf of the appellants to interfere with the concurrent findings recorded by both the courts based on relevant, cogent and trustworthy evidence adduced by the prosecution to prove the guilt of the appellants beyond reasonable doubt.

Supreme Court of India

Banti @ Guddu vs State Of Madhya Pradesh on 4 November, 2003

Bench: Doraiswamy Raju, Arijit Pasayat

Citation;AIR 2004 SC 261.2003 Supp(5) SCR 119

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Whether public prosecutor can interview witness before trial?

Cr.P.C. S.231: Public Prosecutor can interview the witness before hand: The situation in a case where the prosecution cited categories of witnesses of the occurrence, one consisting of persons closely related to the victim and the other consisting of witnesses who have no such relation, the public prosecutor’s duty to the Court may require him to produce witnesses from the later category, also subject to his discretion to limit to one or two among them. But if the public prosecutor got reliable information that any one among that category would not support the prosecution version he is free to state in court about that fact and skip the witness from being examined as a prosecution witness. It is open to the defence to cite him and examine him as a defence witness. The decision in this regard has to be taken by the Public Prosecutor in a fair manner. He can interview the witness before hand to enable him to know well in advance the stand which that particular person would be adopting when examined as a witness in Court.

Supreme Court of India

Banti @ Guddu vs State Of Madhya Pradesh on 4 November, 2003

Bench: Doraiswamy Raju, Arijit Pasayat

Citation;AIR 2004 SC 261.

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Whether accused can be acquitted in anti corruption case due to defect in framing of charge?

Equivalent Citation: AIR1978SC1672, (1979)1SCC87, (1979)SCC(Cri)150, [1979]1SCR906
IN THE SUPREME COURT OF INDIA
Criminal Appeal No. 74 of 1972
Decided On: 22.09.1978
Appellants: Bhupesh Deb Gupta (Dead) by Lrs.
Vs.
Respondent: State of Tripura
Hon'ble Judges/Coram:
A. D. Koshal, Jaswant Singh and P. S. Kailasam, JJ. 

Criminal - Illegal gratification - Section 161 of Indian Penal Code, 1860 - Appellant was charged for offence of accepting illegal gratification from X for showing favour - He was convicted for offence under Section 161 by Trial Court - Conviction upheld by High Court - Hence, present appeal - Appellant was public servant at the time he accepted illegal gratification from X - Such gratification was not legal remuneration due to him - Appellant accepted gratification as a motive for doing an official act - But the facts revealed that appellant accepted gratification for inducing a public servant to show favour whereas prosecution case was that gratification was paid to appellant for showing favour in exercise of official function - Conviction of appellant liable to be set aside in view of wrong charge - Appeal allowed. 

Kailasam, J.

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Whether accused can be convicted under prevention of corruption Act when disproportionate asset in his possession in less?

 In State of Maharashtra v. Pollonji Darabshaw Daruwalla MANU/SC/0294/1987 : AIR 1988 SC 88 this Court held as under:
...on a consideration of the matter it cannot be said that there is no disproportion or even a sizeable disproportion.... There are also other possible errors in the calculations in regard to point (c). The finding becomes inescapable that the assets were in excess of the known sources of income. But on the question whether the extent of the disproportion is such as to justify a conviction for criminal misconduct...., a somewhat liberal view requires to be taken of what proportion of assets in excess of the known sources of income constitutes "disproportion" for purposes of Section 5(1)(e) of the Act.

Equivalent Citation: AIR2011SC1363, 2011CriLJ1770, 2011(2)JCC1153, 2011(1)N.C.C.861, 2011(2)RCR(Criminal)99, 2011(2)SCALE735, (2011)4SCC402, (2011)2SCC(Cri)258, [2011]3SCR242
IN THE SUPREME COURT OF INDIA
Criminal Appeal No. 945 of 2003
Decided On: 25.02.2011
Appellants: Ashok Tshering Bhutia
Vs.
Respondent: State of Sikkim
Hon'ble Judges/Coram:
P. Sathasivam and B. S. Chauhan, JJ.

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Whether court has jurisdiction to try case under prevention of corruption Act on the basis of defective sanction?

Equivalent Citation: AIR1954SC637
IN THE SUPREME COURT OF INDIA
Decided On: 07.05.1954
Appellants: Madan Mohan Singh
Vs.
Respondent: State of Uttar Pradesh
Hon'ble Judges/Coram:
B. K. Mukherjea, Vivian Bose and Ghulam Hasan, JJ. 

Criminal - Validity of Sanction - Obtained for prosecution - Section 6 (1) of Prevention of Corruption Act,1947 - Section 161 Indian Penal Code,1860 - Whether the sanction obtained for prosecution of the accused was valid - Whether the Court has jurisdiction - Held, the letter of sanction not signed by Commissioner of Excise but purports to have been signed by Personal Assistant - Further there was nothing in the letter which purports to be a reply of wireless message received by Collector to show that sanction was given in respect of the facts constituting the offence - Prosecution did not prove any extraneous evidence, that the material facts were placed before the sanctioning authority - Moreover burden of proving the requisite sanction has been obtained rests on the prosecution -Such burden includes proof that the sanctioning authority had given the sanction in reference to the facts on which the proposed prosecution was to be based - and these facts might appear on the face of the sanction or might be proved by extraneous evidence - In the present case the facts constituting the offence do not appear on the face of the letter Ex. P-10 - It was consequently incumbent upon the prosecution to prove by other evidence that the material facts constituting the offence were placed before the sanctioning authority - Hence sanction therefore be held to be defective and invalid sanction could not confer jurisdiction upon the court to try the case - Appeal allowed

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When burden of proof in respect of benami transaction in anti corruption case is on prosecution?

 Needless to say that this Court on a series of decisions have laid down the guidelines in finding out the benami nature of a transaction. Though it is not necessary to cite all those decisions, it will suffice to refer to the rule laid down by Bhagwati, J. as he then was in Krishnanand Agnihotri v. State of M.P. MANU/SC/0134/1976 : 1977CriLJ566 . In that case, it was contended that the amounts lying in fixed deposit in the name of one Shanti Devi was an asset belonging to the appellant and that Shanti Devi was a benamidar of the appellant. The learned Judge speaking for the Bench has disposed of that contention holding thus:
It is well settled that the burden of showing that a particular transaction is banami and the owner is not the real owner always rests on the person asserting it to be so and this burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of benami is the intention of the parties and not unoften, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of the serious onus that rests on him nor justify the acceptance of mere conjectures or surmises as a substitute for proof.
Equivalent Citation: AIR1993SC313, 1993CriLJ308, 1992(2)Crimes1197(SC), JT1992(4)SC436, 1992(2)SCALE120, (1992)4SCC45, 1992(2)UJ613
IN THE SUPREME COURT OF INDIA
Criminal Appeal No. 354 of 1990
Decided On: 17.02.1992
Appellants:M. Krishna Reddy
Vs.
Respondent: State Deupty Superintendent of Police, Hyderabad
Hon'ble Judges/Coram:
S.R. Pandian and R.M. Sahai, JJ. 

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Whether offence under prevention of corruption Act is made out if there is no proof of demand?

Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence Under Section 7. The above also will be conclusive in so far as the offence Under Section 13(1)(d)(i)(ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established.
IN THE SUPREME COURT OF INDIA
Criminal Appeal No. 696 of 2014 (Arising Out of SLP (Crl.) No. 2085 of 2012)
Decided On: 28.03.2014
Appellants: B. Jayaraj
Vs.
Respondent: State of A.P.
Hon'ble Judges/Coram:
P. Sathasivam, C.J.I., Ranjan Gogoi and N.V. Ramana, JJ.

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Whether judge is supposed to apply correct law?

No doubt, it was the duty of the person in charge of prosecution to have produced the aforesaid notifications before the learned Magistrate. But the negligence of the prosecutor in this regard cannot justify any Court to decide a case before it contrary to law. A Court is expected to know, whether the parties to proceeding before it assist it or not, what the law is on a particular subject and to apply it correctly. For this purpose; it is the duty of the Court to find out whether a particular provision of the law is or is not in force in the area over which it exercises jurisdiction. Otherwise, it cannot hope to decide cases according to law for which alone it exists. It was not at all necessary that these notifications should have been tendered as exhibits in the case. A court has to take judicial notice of them. But the learned Magistrate has chosen to remain ignorant of them, and though he was assisted therein by the prosecuting counsel, the fact remains that he has recorded an order of acquittal which is illegal and must, therefore, be set aside.

Patna High Court

State Of Bihar vs Sitaram Sahu And Anr. on 6 May, 1964

Equivalent citations: AIR 1964 Pat 477, 1964 CriLJ 443

Bench: G Prasad

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Whether name of accused can be deleted from charge sheet U/S 169 of crpc when there is refusal of sanction by governor?

In my opinion, the examination of the case of respondent No.2 
either under Clause (ii) of Section 13(1)(d) or Clause (iii) of the said Section 
did not allow the Special Judge at this stage to declare that no material was 
placed before him to take cognizance of the offence.   In fact, the learned 
Judge has taken cognizance of the offence by stating in very unambiguous 
language that exoneration of respondent No.2 for want of sanction from the 
Governor for prosecution of the offences under the Indian Penal Code does 
not   by   itself   entitles   respondent   No.2   to   get   relief   from   other   offences. 
Though   the   learned   Special   Judge   has   stated   that   the   cognizance   of   the 
offence has not been taken, the order clearly indicates that the cognizance of 
the offence has been taken and the learned trial Judge has formed opinion 
which can be reproduced as under :
“6.  Prosecution has filed application under section 169  
r/w   173(2)   of   Cr.P   Section   169   of   Cr.P   reads   ­  

Release   of   the   accused   when   evidence   deficient.  
Prosecution   is   praying   deletion   of   the   name   of   Shri  
Chavan on the ground of refusal of sanction by Hon'ble  
Governor.   Sanction order passed by Hon'ble Governor  
shows   sanction   is  refused   under   section   197  of   Cr.P.C.
against Shri Chavan for prosecution under section 120­
B, 420 of IPC.   In this case Shri Chavan has also been  
chargesheeted under section 13(1)(d) r/w 13(2) of P .C.
Act.     It  is  separate   offence.     It  would   not   go off   with  
sections of IPC.   Moreover there is no provision under 
section 169 of Cr.P. C. for deletion of name of accused  
when there is refusal of sanction. ...”
It is, thus, clear that the learned trial Judge has given a finding 
that despite the application by CBI for closing the case or deleting name of 
respondent No.2, it was not possible to do so because the offence punishable 
under Section 13(2) is independent of the offences for which the sanction 
has  been   refused   by   the   Governor.     For   all   these   reasons,   the   application 
application. 
Exh.46   has   been   rightly   rejected.  

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

CRIMINAL APPELLATE JURISDICTION.
  CRIMINAL REVISION APPLICATION  NO. 136 OF 2014
Central Bureau of Investigation
Anti­Corruption Branch, Mumbai V Shri Ashok Shankarrao Chavan,
          CORAM : M.L. TAHALIYANI, J.
               Citation: 2015(1)BomCR(Cri)249             
        Dated :  19.11.2014.

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Procedure to be followed by magistrate for releasing cattle on supratnama who are taken for slaughtering

 In Krushi Goseva Sangh's case (supra), this Court has observed that section 6 of the Maharashtra Animal Preservation Act imposes restrictions on slaughter of scheduled animals and offence punishable under the Act is declared as cognizable by section 10. It is further held that the animal which is the subject of crime can safely be held to be the "property" regarding which offence is committed and recourse can be taken to section 451 of the Criminal Procedure Code for seeking a direction from the Competent Court of law for the custody and disposal of the property pending trial. The order should be for preservation and protection of cows and scheduled animals and not for their slaughter or destruction. This Court further observed thus:
It is now well settled that what is directly forbidden cannot be indirectly permitted. The observations and guidelines of High Court in W.P. No. 714 of 1986 decided on 12.8.1996, Ejaz Ahmed vs. State of Maharashtra should be kept in view while passing an order under section 451. If Organizations like Goseva Sangh or the Panjarapole come forward for taking responsibility of preservation and protection of cattle, then they should be preferred but before handing over the custody to any person or institution, the Court should ascertain whether they would be able to make adequate arrangements for maintenance, preservation and protection of cattle....
Equivalent Citation: 2012BomCR(Cri)469
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Criminal Application No. 121 of 2011
Decided On: 27.07.2011

 Go-Vigyan Anusandhan Kendra  Vs.  State of Maharashtra & Anr.

Hon'ble Judges/Coram:
A.P. Bhangale, J.

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When magistrate can release property seized under essential commodities Act?

 If the facts in the present case are analysed, it will be evident that in spite of the specific order being passed on 5th November, 1996 that as to whether any proceeding for confiscation is pending before the Collector, the learned A.P.P. could not make any statement before the learned Additional Sessions Judge and proceeded to argue the matter on 6th November, 1996. Thus it is evident that when the Court passed an order on 7th November, 1996, there was no confiscation proceeding pending under section 6A and/or under section 6C either before the Collector or before the State Government in respect of the essential commodity involved in the present matter. Shri Wahane makes a statement that on 7th November, 1996, such application has been preferred by the Police Station Officer to the Collector, Akola. However, no action thereafter also appears to have been taken by the Collector. The above statement itself points out that on date when the matter was heard and disposed of by the learned Additional Sessions Judge, Akola, there was no proceeding pending before the Collector under section 6-A for confiscation of the essential commodity and, therefore, as discussed above, there was no bar for the learned Additional Sessions Judge, Akola, to exercise his powers under section 457 read with section 451 of the Criminal Procedure Code and, therefore, the order passed by the learned Additional Sessions Judge is legal and proper.Bar contemplated Under Section 6E is not a absolute one. Once proceeding for confiscation commences Under Section 6A or 6 C, the bar operates and to that extent the general powers of the Criminal Court to dispose of the property is modified, affected and conditioned by provisions of Section 6E

IN THE HIGH COURT OF BOMBAY

Criminal Revision Application No. 22 of 1997

Decided On: 07.08.1997

The State of Maharashtra  Vs.  Manishkumar s/o Babulal Biyani

Hon'ble Judges/Coram:

S.B. Mhase, J.

Equivalent Citation: 1998BomCR(Cri)452, 1998(100(1))BOMLR760, 1998CriLJ303, 1998(1)MhLj431

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Whether confession made by accused can be used in his favour?

In our experience, we have seen that there is general reluctance on the part of the defence lawyers to tacitly admit the confession of an accused in evidence. This is because of the apprehension in the mind of the legal fraternity that in the event the confession is admitted in evidence as a defence document, the Court may get influenced by the said confession and the Court may use the confession against the accused to convict him based on the said confession. But, we are not prepared to say that the said apprehension is totally baseless. It is also in our experience that many Trial Courts have slight lack of understanding regarding the distinction between using a confession made by the accused to the police against him and using the same in his favour. As we have pointed out already, simply because a confession to the police has been admitted in evidence, on the side of the defence, it does not mean that the accused himself concedes that the same could be used against him. The only option available for the Court is to use the confession in favour of the accused if it is reliable and not to use the same either in full or in part against the accused. If the Court is not inclined to use the confession in favour of the accused, then, the Court is obliged to eschew the entire confession from consideration.
Equivalent Citation: 2013(2)CTC593, 2013-1-LW(Crl)298, 2013(2)MLJ(Crl)664
IN THE HIGH COURT OF MADRAS (MADURAI BENCH)
Criminal Appeal (MD). No. 149 of 2011
Decided On: 17.12.2012

 S. Shajin Vs.  The State, rep by Inspector of Police

Hon'ble Judges/Coram:
M. Jaichandren and S. Nagamuthu, JJ.

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When daughter in law is liable to pay maintenance to mother in law under S125 of CRPC?

Equivalent Citation: 2009(111)BOMLR1831, 2010(1)Crimes1, 2009(4)MhLj665,MANU/MH/0180/2009
IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)
Criminal Revision Application No. 86 of 2007
Decided On: 06.03.2009
 Smt. Saroj W/o Govind Mukkawar
Vs.
Smt. Chandrakalabai Polshetwar and The State of Maharashtra
Hon'ble Judges/Coram:
S.S. Shinde, J.

Criminal - Maintenance - Claim of - Entitlement of Mother-in-law - Section 20 of Hindu Adoptions and Maintenance Act, 1956 - Sections 125 and 125(1) of Code of Criminal Procedure, 1973 - Section 125 of Code of Civil Procedure, 1908 - Respondent No. 1 mother-in-law of present applicant - Applicant got job on compassionate grounds on death of her husband - Also received gratuity etc. - Neglected to maintain Respondent No. 1 - Application claiming maintenance filed by Respondent No. 1 - Application dismissed by learned J.M.F.C. on the ground that mother-in-law not entitled to claim maintenance from daughter-in-law under Section 125 Cr.PC - Revision filed by Respondent No. 1 allowed and applicant directed to pay Rs. 1,000/- per month as maintenance to Respondent No. 1 - Hence, present Revision application - Held, at the time of obtaining appointment on compassionate grounds present applicant gave undertaking to support Respondent No. 1 - Deceased only son of Respondent No. 1 - Respondent No. 1 aged person and has no source of income - Respondent No. 1 entitled to claim maintenance from present Applicant - Revision application dismissed 

Mother-in-law, who is aged and has no source of income, is entitled to claim maintenance from her daughter-in-law.

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Whether Magistrate has right to remand accused in offence punishable under protection of children from sexual offences Act?

    

 Hence no magistrate can pass any order for remand to produce any accused person before him after a specified number of days of police custody or release him upon an observation that his detention is unnecessary.   The Magistrate  would be duty   bound   to   direct   the   relevant   police   officer   to   produce   any   person  suspected   or   accused   of   any   offence   under   the   Children   Act   before   the  relevant Court of Session established in the District as Special Court under Section 28(1) of the Children Act.                                                     

 CRIMINAL APPLICATION NO. 354 OF 2013 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

Kum. Shraddha Meghshyam Velhal Vs. State of Maharashtra

 Dated; 3   July, 2013

    

 CORAM:  MRS. ROSHAN DALVI, J.

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Distinction between extrinsic fraud and intrinsic fraud

Indeed the American Court has considered and held that fraud of the defendant relates to intrinsic fraud which does not warrant non recognition as opposed to extrinsic fraud which would warrant non recognition of the judgment. It has been held in that judgment that the claim of fraud in obtaining the judgment for non recognition is limited to extrinsic fraud which is a fraudulent conduct by the party that deprived the losing party of adequate opportunity to present its case to the Court, intrinsic fraud being cases in which the judgment was passed upon false oral testimony or false documents.

Intrinsic fraud would be a fraud within the trial. It would be a fraud at the time of cause of action and the filing of the suit. It would be known to the defendant. It could be defended by the defendant. The perjured testimony or the falsified documents could be shown to the defendant who summoned to appear and answer the plaintiff's claim.

Such intrinsic fraud does not lend itself to non recognition and consequently denial of execution but if there was extrinsic fraud which was played upon the Court to obtain a decree not on the merits of the claim but at the time of the decree itself by any fraudulent conduct not known to the defendant the defendant would not be able to defend it in the trial and can get justice and relief by seeking to resist the execution of a decree obtained by such extrinsic fraud which would alone warrant non recognition of the judgment and thus prevent execution.

The judgment of the American Court has extensively considered the case law relating to misrepresentation by concealment of the facts which prevents a real trial and intrinsic fraud which cannot prevent execution. The Court also considered the facts of the case of the plaintiff, the admission of the service of the summons upon defendant who received notice of the suit. Thus fraud if played by the plaintiff could have been suppressed by the defence of the defendant which the defendant failed to show. Thus intrinsic fraud not based upon new facts but based upon the evidence known to be false and the facts known to the parties at the time of the trial must rest at that.

Bombay High Court

Masterbaker Marketing Ltd vs Noshir Moshin Chinwalla & Ors on 13 March, 2015

Bench: R.S. Dalvi
Citation;AIR 2015(NOC)771 BOM

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When abandoned child can be given in adoption under Hindu adoption and maintenance Act?

Hence, on the basis of the aforesaid conversation, Sri Kaushlendra, has opined that the mother of the child namely, Maina is following the Hindu religion and is also nurturing her son following the Hindu religion. Copy of the report of Sri Kaushlendra Kumar, Sign Language Interpreter, Dr. Shakuntala Mishra Rehabilitation University, Lucknow submitted before the Superintendent, Rajkiya Mahila Sharajlaya, Lucknow is being filed herewith as Annexure No.A-1 to this affidavit." Thus, there is enough evidence on record to conclude that one of parents of the child, namely, his mother is a Hindu. Therefore, in accordance with the provisions contained in Explanation (b) appended to Section 2 (1) of the Hindu Adoptions Act, since one of the parents of the child is a Hindu and the child has been brought up in the Hindu traditions, the finding recorded by the learned court below that it is not decipherable as to whether the child is a Hindu or not, cannot be permitted to be sustained. The child Master Ansh can, therefore, be "regarded as Hindu" both in terms of Explanation (b) and Explanation (bb) to Section 2 (1) of the Act. 
In the light of above, since the child has been brought up as a Hindu and has been abandoned by his parents (reasons for arriving at the conclusion that the child is an abandoned child have already been given above), I do not have the slightest hesitation to hold that Master Ansh can, thus, be given in adoption as he is capable of being taken in adoption. 
ALLAHABAD HIGH COURT
MISC. SINGLE No. - 7224 of 2014

 Sohan Lal Vs  Addl. District & Sessions Judge Court No.9 Lucknow and Others

Hon'ble Devendra Kumar Upadhyaya,J. 
Citation;AIR2015 ALLAHABAD 33

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When State Women Protection Home can give abandoned child in adoption?

So far as the present case is concerned, admittedly, as to whether the father of the child is alive or dead is not known. In fact, no information about the father of the child is available. The information about the mother, of course, is available. She has not completely and finally renounced the world, neither has she been declared to be of unsound mind by any court of competent jurisdiction. Since the information about the mother of the child is available on record, it can also not be said that the parentage of the child is not known. 
What, however, needs to be considered in this case is as to whether the child can be said to have been abandoned. So far as the father of the child is concerned, since nothing about him is known, neither has anyone in any capacity claimed to be the father of the child, it can safely be concluded that the father of Master Ansh has abandoned him. However, in a case where child can be given in adoption where he/she has been abandoned, the abandonment of the child by both the father and the mother needs to be established. 
The word ""abandoned" is an adjective which means a deserted or forsaken person or animal or a thing. The verb "abandon" means to give up completely or to forsake or desert a person or a thing or to give up to another's control or mercy. 
In the instant case, it is found in the testimony of the Sign Language Interpreter that the mother of the child has not only shown her willingness to give the child in adoption but has also expressed that she will have no longing for the child even if he is given to custody of a family. 
Considering the fact that the mother of the child is incapable of taking care of her own self being a destitute lady who is presently living in State Women Protection Home and also taking into consideration the evidence on record including the affidavit filed by the Sign Language Interpreter and the Superintendent of the State Women Protection Home, I have no hesitation to hold that the mother has deserted the child as she has expressed that she will have no longing for the child. 
Desertion of the child in the peculiar facts and circumstances of the present case, would, in my opinion, amount to abandonment of the child and hence, in this view of the matter, the guardian, namely, the State Women Protection Home becomes capable of giving the child in adoption, though, with the previous permission of the court which should be satisfied that the adoption is for the welfare of the child. 
Case :- MISC. SINGLE No. - 7224 of 2014 

Petitioner :- Sohan Lal & Another 
Respondent :- Addl. District & Sessions Judge Court No.9 Lucknow and Others 

Citation;AIR 2015ALLAHABAD 33

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Whether suit against proprietary concern is suit against proprietor of business?

A partnership firm differs from a proprietary concern owned by an
individual. A partnership is governed by the provisions of the Indian Partnership
Act, 1932. Though a partnership is not a juristic person but Order XXX Rule 1
CPC enables the partners of a partnership firm to sue or to be sued in the
name of the firm. A proprietary concern is only the business name in which the
proprietor of the business carries on the business. A suit by or against a
proprietary concern is by or against the proprietor of the business. In the event
of the death of the proprietor of a proprietary concern, it is the legal
representatives of the proprietor who alone can sue or be sued in respect of the
dealings of the proprietary business. The provisions of Rule 10 of Order XXX
which make applicable the provisions of Order XXX to a proprietary concern,
enable the proprietor of a proprietary business to be sued in the business
names of his proprietary concern. The real party who is being sued is the
proprietor of the said business. The said provision does not have the effect of
converting the proprietary business into a partnership firm. The provisions of
Rule 4 of Order XXX have no application to such a suit as by virtue of Order
XXX Rule 10 the other provisions of Order XXX are applicable to a suit against
the proprietor of proprietary business "insofar as the nature of such case
permits". This means that only those provisions of Order XXX can be made
applicable to proprietary concern which can be so made applicable keeping in
view the nature of the case.”
(emphasis is ours)
Based on the observations recorded in the aforesaid judgment, the second contention
advanced by the learned counsel for the appellant was, that in sum and substance, a
sole proprietorship concern allows the fictional use of a trade name on behalf of an
individual. It was contended, that truthfully only one individual is the owner of a sole
proprietorship concern. As such, according to learned counsel, the name of the sole
proprietorship concern, can again be substituted with the name of the sole proprietor.
If that is allowed, the NSC purchased by the appellant would strictly conform to the
mandate of law. According to learned counsel, it makes no difference whether the
individual’s name, or the proprietorship’s name is recorded while purchasing an NSC.
It was pointed out, that if the respondent was not agreeable in accepting the trade
name, the respondent ought to have corrected the NSC by substituting the name of
M/s. Bhagwati Vanaspati Traders with that of its sole proprietor, namely, B.K. Garg.
We find merit in the second contention advanced at the hands of the learned
counsel for the appellant. It is indeed true, that the NSC was purchased in the name
of M/s. Bhagwati Vanaspati Traders.
It is also equally true, that M/s. Bhagwati
Vanaspati Traders is a sole proprietorship concern of B.K. Garg, and as such, the
irregularity committed while issuing the NSC in the name of M/s. Bhagwati Vanaspati
Traders, could have easily been corrected by substituting the name of M/s. Bhagwati
Vanaspati Traders with that of B.K. Garg. For, in a sole proprietorship concern an
individual uses a fictional trade name, in place of his own name. The rigidity adopted
by the authorities is clearly ununderstandable.
The postal authorities having
permitted M/s. Bhagwati Vanaspati Traders to purchase the NSC in the year 1995,
could not have legitimately raised a challenge of irregularity after the maturity thereof
in the year 2001, specially when the irregularity was curable. 

“REPORTABLE”
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4854 OF 2009
M/s. Bhagwati Vanaspati Traders
.... Appellant
versus
Senior Superintendent of Post Offices, Meerut
Citation;AIR 2015SC 901

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Whether right of a person to construct residential houses can be taken away?

The law in this behalf is explicit. Right of a person to construct residential houses in the residential area is a valuable right. The said right can only be regulated in terms of a regulatory statute but unless there exists a clear provision the same cannot be taken away. It is also a trite law that the building plans are required to be dealt with in terms of the existing law. Determination of such a question cannot be postponed far less taken away. Doctrine of Legitimate Expectation in a case of this nature would have a role to play.

Rights of parties cannot be intermeddled so long as an appropriate amendment in legislation is not brought into force - Right of a person to construct residential houses in residential area is a valuable right and unless there exists a clear provision the same can not be taken away 

A statutory authority must exercise its jurisdiction within a reasonable time

Supreme Court of India

T. Vijayalakshmi & Ors vs Town Planning Member & Anr on 19 October, 2006

Bench: S.B. Sinha, Dalveer Bhandari

          
Citation;(2006)8 SCC502,AIR2007SC25,

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When a person can be denied relief on ground of delay?

there is one more ground which basically sets
the present case apart. Petitioner are re-agitating claims
which they had not pursued for several years. Petitioners
were not vigilant but were content to be dormant and
chose to sit on the fence till somebody else's case came
to be decided. Their case cannot be considered on the
analogy of one where a law had been declared
unconstitutional and void by a court, so as to enable
persons to recover monies paid under the compulsion of a
law later so declared void. There is also an unexplained,
inordinate delay in preferring this writ petition which is
brought after almost an year after the first rejection.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9849 OF 2014
(ARISING OUT OF SLP (C) NO. 18639 OF 2012)
STATE OF UTTAR PRADESH & ORS.
.....APPELLANT(S)
VERSUS
ARVIND KUMAR SRIVASTAVA & ORS.
Citation;2014 ALLSCR3645

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Doctrine of laches.

The Court also quoted following passage from the Halsbury's Laws of
England (para 911, p.395):
“In determining whether there has been such delay as to
amount to laches, the chief points to be considered are:
(i) acquiescence on the claimant's part; and
(ii)any change of position that has occurred on the
defendant's part.
Acquiescence in this sense does not mean standing by
while the violation of a right is in progress, but assent after
the violation has been completed and the claimant has
become aware of it. It is unjust to give the claimant a
remedy where, by his conduct, he has done that which
might fairly be regarded as equivalent to a waiver of it; or
where by his might fairly be regarded as equivalent to a
waiver of it; or where by his conduct and neglect, though
not waiving the remedy, he has put the other party in a
position in which it would not be reasonable to place him if
the remedy were afterwards to be asserted. In such
cases lapse of time and delay are most material. Upon
these considerations rests the doctrine of laches.”

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9849 OF 2014
(ARISING OUT OF SLP (C) NO. 18639 OF 2012)
STATE OF UTTAR PRADESH & ORS.

VERSUS
ARVIND KUMAR SRIVASTAVA & ORS.

Citation; 2014 ALLSCR3645

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Whether Retiral benefits like gratuity and pension can be withheld by employer?

Retrials benefits like gratuity and pension cannot be withheld by the employer and if done so, interest is payable. Such payments are no longer bounty.
Pension and gratuity are no longer any bounty to be distributed by the employer/Government as already held by the Supreme Court of India in the case of State of Kerala & Ors. vs. M. Padmanabhan Nair, (1985) 1 SCC 429 that pension and gratuity have become valuable right of the employee and any culpable delay in the settlement of the pension and gratuity must be dealt with the penalty of interest at the current market rate from the due date of payment till the date of payment to the employee.

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7113

OF 2014

(Arising out of SLP (C) No. 25015 of 2011)

D.D. TEWARI(D) THR. LRS.

......APPELLANTS

VERSUS

UTTAR HARYANA BIJLI VITRAN NIGAM LTD. & ORS. 

Citation;2014 ALLSCR3023

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When employer should not start second departmental enquiry of employee on same facts?

 It can be seen from the above that the normal rule is
that there can be only one Enquiry.
This Court has also
recognized the possibility of a further Enquiry in certain
circumstances enumerated therein.
The decision however
makes it clear that the fact that the Report submitted by the
Enquiring Authority is not acceptable to the disciplinary
authority, is not a ground for completely setting aside the
enquiry report and ordering a second Enquiry.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9043 OF 2014
(Arising out of Special Leave Petition (C) NO.12019 of 2014)
Vijay Shankar Pandey
... Appellant
Versus
Union of India & Another
Citation;2014 ALLSCR3770

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Mumbai doctor absent during delivery, will pay Rs 19 lakh as baby dies

A consumer forum recently directed a doctor to pay a compensation of Rs 19 lakh to a Malad woman who lost her child hours after birth due to his absence during birth and late arrival when the child was in distress.

“The death was due to the doctor’s negligence. He is responsible for the trauma caused to the family,” the Mumbai Suburban District Consumer Disputes Redressal Forum said.

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What is connection between cause of action and Territorial jurisdiction of court?

 In the case of Union of India and others vs.
Adani Exports Ltd. and another, (2002) 1 SCC 567,
this Court held that in order to confer jurisdiction on a
High Court to entertain a writ petition it must disclose that
the integral facts pleaded in support of the cause of action
do constitute a cause so as to empower the court to
decide the dispute and the entire or a part of it arose
within its jurisdiction. Each and every fact pleaded by the
respondents in their application does not ipso facto lead
to the conclusion that those facts give rise to a cause of
action within the Court’s territorial jurisdiction unless
those facts are such which have a nexus or relevance with
the lis i.e. involved in the case.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.7414 OF 2014
(arising out of SLP (C) No.19549 of 2013)
Nawal Kishore Sharma V Union of India and Others
Citation;2014 ALLSCR2946

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Whether xerox copy of certificate is admissible in labour court?

 The Labour Court has, in the case at hand, placed reliance upon a Xerox copy of a certificate allegedly issued by an officer of the appellant- Corporation stating that the respondent was in the employment of the appellant-Corporation as a Conductor between 3rd October, 1987 and 31st March, 1989. While it is true that the Xerox copy may not be evidence by itself specially when the respondent had stated that the original was with him, but had chosen not to produce the same yet the fact remains that the document was allowed to be marked at the trial and signature of the officer issuing the certificate by another officer who was examined by the appellant. Strict rules of evidence, it is fairly well-settled, are not applicable to the proceedings before the Labour Court. That being so the admission of the Xerox copy of the certificate, without any objection from the appellant-Corporation, cannot be faulted at this belated stage. 

Supreme Court of India

Bhavnagar Mun.Corp.Etc vs Jadeja Govubha Chhanubha & Anr on 3 December, 2014

Citation; 2015 ALLSCR166

Bench: T.S. Thakur, R. Banumathi

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What constitute finding of court?

 Keeping the above in view, we may turn to the Oxford Dictionary which gives the following meaning to the word ‘finding’:

“the conclusion reached by judicial or other inquiry”.

Black’s Law Dictionary defines ‘find’ and ‘finding of fact’ thus:

“find - to determine a fact in dispute by verdict or decision.

and, finding of fact: A determination by a judge, jury, or administrative agency of a fact supported by the evidence in the record, usually presented at the trial or hearing.” Webster Comprehensive Dictionary defines the expression ‘finding’ as under:

“the act of finding; that which is found; discovery; 2. Law A conclusion arrived at before an official or a court. 3 Support; expense.” P. Ramanathan Aiyar’s Law Lexicon (Second Ed.) assigns the following meaning to the term “finding”:

“The decision of a judge, arbitrator, jury, or referee.” It further explains the term thus:

“A term used by the profession and by the courts as meaning the decision of a trial court upon disputed facts.”

13. It is evident from the above that English language and law dictionaries and the Law Lexicons give a wide range of meaning to the expression ‘finding’. The predominant use of the expression is in relation to determination by a Judge, Jury, Administrative Agency, Arbitrator or a Referee. The determination is described either as a finding, decision or conclusion; upon disputed facts. It is also described as a determination of a fact supported by evidence on the record. It is interchangeably used as a conclusion or decision a term used by the legal profession and by Courts. The term “conclusion” is in turn defined by Black’s Law Dictionary as under:

“The final part of a speech or writing (such as jury argument or a pleading);

a judgment arrived at by reasoning;

an inferential statement;

the closing, settling, or final arranging of a treaty, contract, deal, etc.”

14. It is trite that a finding can be both; a finding of fact or a finding of law. It may even be a finding on a mixed question of law and fact. In the case of a finding on a legal issue the Arbitrator may on facts that are proved or admitted explore his options and lay bare the process by which he arrives at any such finding. It is only when the conclusion is supported by reasons on which it is based that one can logically describe the process as tantamount to recording a finding. It is immaterial whether the reasons given in support of the conclusion are sound or erroneous. That is because a conclusion supported by reasons would constitute a “finding” no matter the conclusion or the reasons in support of the same may themselves be erroneous on facts or in law. It may then be an erroneous finding but it would nonetheless be a finding. What is important is that a finding presupposes application of mind. Application of mind is best demonstrated by disclosure of the mind; mind in turn is best disclosed by recording reasons. That is the soul of every adjudicatory process which affects the rights of the parties.

Supreme Court of India

M/S Anand Brothers P.Ltd.Tr.M.D vs Union Of India & Ors on 4 September, 2014

Bench: T.S. Thakur, C. Nagappan, Adarsh Kumar Goel

Citation2014 ALLSCR3698

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