Questions and answers on law Part 14

Q.1:-Whether a special court under Pocso Act can grant Anticipatory bail to an accused charged with section 8 of pocso act?

Ans:-Section 8 of POCSO Act Whoever commits sexual assault shall be punished with the imprisonment of either description for a term which shall not less than three years but which may extend to five years, and shall also be liable to fine.

In my opinion, as this offence is punishable with imprisonment for more than three years, it is non bailable and application for anticipatory bail is maintainable. Caselaw on the point is 

With Section 8 Of The Pocso Act vs In Re: Azad Paswan @ Ajad Pasoyan & ... on 15 January, 2020 

https://indiankanoon.org/doc/188410386/.

Any other view is welcomed

Print Page

THE NATIONAL LEGAL SERVICES AUTHORITY (LOK ADALAT) REGULATIONS, 2009 as amended by notification dated 28.08.2019

 https://drive.google.com/file/d/1HTGKNJK1VuzyQ21vxWUSEN-HOdU2tVC_/view?usp=sharing

Print Page

Supreme Court guidelines for the online trial of cheque dishonour case

 Banks, being an important stakeholders in cases of this nature, it is their responsibility to provide requisite details and facilitate an expeditious trial mandated by law. An information sharing mechanism may be developed where the banks share all the requisite details available of the accused, who is the account holder, with the complainant and the police for the purpose of execution of process. This may include a requirement to print relevant information, viz the email id, registered mobile number and permanent address of the account holder, on the cheque or dishonour memo informing the holder about the dishonour. The Reserve Bank of India, being the regulatory body may also evolve guidelines for banks to facilitate requisite information for the trial of these cases and such other matters as may be required. A separate software-based mechanism may be developed to track and ensure the service of process on the accused in cases relating to an offence Under Section 138 of N.I. Act.

12. With ensuring the credibility of cheques, it is equally important that cheques are not allowed to be misused giving cause to frivolous litigation. The Reserve Bank of India may consider developing a new proforma of cheques so as to include the purpose of payment, along with other informations mentioned above to facilitate adjudication of real issues.

13. Further, a mechanism may be developed to ensure the presence of the accused even by way of coercive measure, if required, taking effect from Section 83 of Code of Criminal Procedure, 1973 which allows attachment of property, including movable property. A similar coordinated effort may be evolved to recover interim compensation Under Section 143A of the N.I. Act as well as fine or compensation to be recovered as per Section 421 of Code of Criminal Procedure, 1973 The Bank may facilitate mechanism for transferring requisite funds from the bank account of the accused to the account of the holder in due course, as may be directed by the Court.

14. With ever growing institution of N.I. cases, there is a need of developing a mechanism for pre-litigation settlement in these cases. The Legal Services Authorities Act, 1987 provides for a statutory mechanism for disposal of case by Lok Adalat at pre-litigation stage Under Sections 19 and 20 of the Act. Further, Section 21 of the Act, recognises an award passed by Lok Adalats as a decree of a civil court and gives it a finality. This Court in K.N. Govindan Kutty Menon v. C.D. Shaji MANU/SC/1412/2011 : 2012 (1) R.C.R. (Criminal) 102 : (2012) 2 SCC 51 has held that:

Even if a matter is referred by a criminal court Under Section 138 of the Negotiable Instruments Act, 1881 and by virtue of the deeming provisions, the award passed by the Lok Adalat based on a compromise has to be treated as a decree capable of execution by a civil court.

15. The effect of above legal proposition is that an Award passed at the pre-litigation stage or pre-cognizance stage shall have an effect of a civil decree. The National Legal Services Authority, being the responsible Authority in this regard, may evolve a scheme for settlement of dispute relating to cheque bounce at pre-litigation i.e. before filing of the private complaint. This measure of pre-litigation ADR process can go a long way in settling the cases before they come to Court, thereby reducing docket burden.

16. The High Courts, in addition to the above, may also consider setting up of exclusive courts to deal with matters relating to Section 138, especially in establishments where the pendency is above a standard figure. Special norms for assessment of the work of exclusive courts may also be formulated giving additional weightage to disposal of case within the time-frame as per legal requirement.

17. This Court in the case of Meters and Instruments Private Limited (supra), observed the following:

Use of modern technology needs to be considered not only for paperless courts but also to reduce overcrowding of courts. There appears to be need to consider categories of cases which can be partly or entirely concluded "online" without physical presence of the parties by simplifying procedures where seriously disputed questions are not required to be adjudicated. Traffic challans may perhaps be one such category. At least some number of Section 138 cases can be decided online. If complaint with affidavits and documents can be filed online, process issued online and accused pays the specified amount online, it may obviate the need for personal appearance of the complainant or the accused. Only if the accused contests, need for appearance of parties may arise which may be through Counsel and wherever viable, video conferencing can be used. Personal appearances can be dispensed with on suitable self operating conditions. This is a matter to be considered by the High Courts and wherever viable, appropriate directions can be issued.

(emphasis supplied)

In view of the above, the status of directions issued or measures adopted by the High Courts may be assessed and a best suited mechanism in this direction may be considered.

IN THE SUPREME COURT OF INDIA

Special Leave Petition (Criminal) No. 5464 of 2016

Decided On: 05.03.2020

 Makwana Mangaldas Tulsidas Vs.  State of Gujarat and Ors.

Hon'ble Judges/Coram:

S.A. Bobde, CJI and L. Nageswara Rao, JJ.

Citation: (2020) 4 SCC 695,MANU/SC/0517/2020

Print Page

Income limit for getting free legal aid is increased in Maharashtra

https://drive.google.com/file/d/18rDFxhEYweD6H8aX2k6wvwPNDRTFEJzf/view?usp=sharing

Print Page

Criteria for grant of free legal aid under legal services authorities Act

Chapter IV

ENTITLEMENT TO LEGAL SERVICES

12. Criteria for giving legal services.—Every person who has to file or defend a case shall be entitled to legal services under this Act if that person is—

(a) a member of a Scheduled Caste or Scheduled Tribe;

(b) a victim of trafficking in human beings or begar as referred to in Article 23 of the Constitution;

(c) a woman or a child;

18[(d) a person with disability as defined in clause (i) of Section 2 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995;]

(e) a person under circumstances of undeserved want such as being a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster; or

(f) an industrial workman; or

(g) in custody, including custody in a protective home within the meaning of clause (g) of Section 2 of the Immoral Traffic (Prevention) Act, 1956 (104 of 1956), or in a juvenile home within the meaning of clause (j) of Section 2 of the Juvenile Justice Act, 1986 (53 of 1986), or in a psychiatric hospital or psychiatric nursing home within the meaning of clause (g) of Section 2 of the Mental Health Act, 1987 (14 of 1987); or

19[(h) in receipt of annual income less than rupees nine thousand or such other higher amount as may be prescribed by the State Government, if the case is before a court other than the Supreme Court, and less than rupees twelve thousand or such other higher amount as may be prescribed by the Central Government, if the case is before the Supreme Court.]

13. Entitlement for legal services.—(1) Persons who satisfy all or any of the criteria specified in Section 12 shall be entitled to receive legal services provided that the concerned Authority is satisfied that such person has a prima facie case to prosecute or to defend.

(2) An affidavit made by a person as to his income may be regarded as sufficient for making him eligible to the entitlement of legal services under this Act unless the concerned Authority has reason to disbelieve such affidavit.

Print Page

Whether proceeding before Lok adalat is judicial proceeding?

The Legal Services Authorities Act, 1987

22. Powers of 1 [Lok Adalat or Permanent Lok Adalat.]—(1) The 1 [Lok Adalat or Permanent Lok Adalat] shall, for the purposes of holding any determination under this Act, have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit in respect of the following matters, namely:—

---

(a) the summoning and enforcing the attendance of any witness and examining him on oath;

---

(b) the discovery and production of any document;

---

(c) the reception of evidence on affidavits;

---

(d) the requisitioning of any public record or document or copy of such record or document from any court or office; and

---

(e) such other matters as may be prescribed.

---

(2) Without prejudice to the generality of the powers contained in sub-section (1), every 1 [Lok Adalat or Permanent Lok Adalat] shall have the requisite powers to specify its own procedure for the determination of any dispute coming before it.

---

(3) All proceedings before a 1 [Lok Adalat or Permanent Lok Adalat] shall be deemed to be judicial proceedings within the meaning of sections 193, 219 and 228 of the Indian Penal Code (45 of 1860) and every 1 [Lok Adalat or Permanent Lok Adalat] shall be deemed to be a Civil Court for the purpose of section195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).

---

Print Page

Whether Advocate for accused can be provided video conferencing facility to talk with accused in jail?

In our view such a direction on part of the Supreme Court Legal
Services Committee is quite commendable and praiseworthy. Very often we
see that the learned Advocates who appear in matters entrusted by the
Supreme Court Legal Services Committee, do not have the advantage of
having had a dialogue with either the accused or those who are in the know
of the details about the case. This at times seriously hampers the efforts on
part of the learned Advocates. All such attempts to facilitate dialogue between the counsel and his client would further the cause of justice and
make legal aid meaningful. We, therefore, direct all Legal Services
Authorities/Committees in every State to extend similar such facility in
every criminal case wherever the accused is lodged in jail. They shall
extend the facility of video conferencing between the counsel on one hand
and the accused or anybody in the know of the matter on the other, so that
the cause of justice is well served.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRIMINAL) No. 6740 of 2018
(Diary No.20446 of 2018)

Imtiyaz Ramzan Khan V State of Maharashtra .

Dated:August 14, 2018

Print Page

Whether Suit can be rejected by trial courts for non-payment of court fee alone?

Further, in the case of State of Maharashtra v. Manubhai Pragaji Vashi and Others MANU/SC/0001/1996 : (1995) 5 SCC 730, it has been held that:

17. ... we have to consider the combined effect of Article 21 and Article 39A of the Constitution of India. The right to free legal aid and speedy trial are guaranteed fundamental rights under Article 21 of the Constitution. The preamble to the Constitution of India assures 'justice, social, economic and political'. Article 39A of the Constitution provides 'equal justice' and 'free legal aid'. The State shall secure that the operation of the legal system promotes justice. It means justice according to law. In a democratic polity, governed by rule of law, it should be the main concern of the State, to have a proper legal system. Article 39A mandates that the State shall provide free legal aid by suitable legislation or schemes or in any other way to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. The principles contained in Article 39A are fundamental and cast a duty on the State to secure that the operation of the legal system promotes justice, on the basis of equal opportunities and further mandates to provide free legal aid in any way-by legislation or otherwise, so that justice is not denied to any citizen by reason of economic or other disabilities. The crucial words are (the obligation of the State) to provide free legal aid 'by suitable legislation or by schemes' of 'in any other way', so that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. (Emphasis supplied)....

13. Further, Article 39A of the Constitution of India provides for holistic approach in imparting justice to the litigating parties. It not only includes providing free legal aid via appointment of counsel for the litigants, but also includes ensuring that justice is not denied to litigating parties due to financial difficulties. Therefore, in the light of the legal principle laid down by this Court, the Appellant deserved waiver of court fee so that he could contest his claim on merit which involved his substantive right. The Court of sub Judge erred in rejecting the case of the Appellant due to non-payment of court fee. Hence, we set aside the findings and the decision of the Court of sub Judge and condone the delay of the Appellant in non-payment of court fee which resulted in rejection of his suit.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 10581 of 2013 (Arising of SLP (C) No. 23918 of 2012)

Decided On: 25.11.2013

 Manoharan Vs. Sivarajan and Ors.

Hon'ble Judges/Coram:

S.J. Mukhopadhaya and V. Gopala Gowda, JJ.

Print Page

Whether plaint can be rejected if it is barred by Judgment of supreme court?

 The question as to whether the expression "law" occurring in clause(d) of Rule 11 of Order 7 of the Code includes "judicial decisions of the Apex Court" came up for consideration before the Division Bench of the Allahabad High Court in Virender Kumar Dixit v. State of U.P., MANU/UP/1914/2014 : 2014(9) ADJ 1506. The Division Bench dealt with the issue in detail in the context of several decisions on the subject and held in para 15 as under:

15. Law includes not only legislative enactments but also judicial precedents. An authoritative judgment of the Courts including higher judiciary is also law.

 In the light of the above discussion, in the considered view of this Court, it cannot be said that the term "barred by any law" occurring in clause(d) of Rule 11 of Order 7 of the Code, ought to be read to mean only the law codified in a legislative enactment and not the law laid down by the Courts in judicial precedents. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 11345 of 2017 (Arising out of S.L.P. (C) No. 23605 of 2015)

Decided On: 07.09.2017

Bharvagi Constructions and Ors. Vs. Kothakapu Muthyam Reddy and Ors.

Hon'ble Judges/Coram:

R.K. Agrawal and Abhay Manohar Sapre, JJ.

Citation: AIR 2017 SC 4428

Print Page

Whether permanent lok adalat can grant interim relief in pre-litigation proceeding?

 I have considered the submissions of the parties and gone through the material on record. As per the chronology of facts narrated hereinabove, it is evident that on the date on which the proceedings were instituted as a pre-litigation case under Section 22 of Legal Services Authority Act, i.e., on 31st August, 2015, Bank had proceeded in taking symbolic possession of the property under Section 13(4) of the Act, 2002. An application for taking physical possession of the property through use of force was also pending before Deputy Commissioner Bokaro under Section 14 of the Act of 2002. In that way, any court or authority was precluded from passing any order of injunction in respect of action taken by the Bank/Financial institution in pursuance of the power conferred under the SARFAESI Act, 2002. The P.L.A however proceeded to not only entertain the application as a pre-litigation application but also passed an interim order upon the Bank to maintain status quo and not to take further action against the petitioner. This action of the P.L.A was wholly without jurisdiction. It was in teeth of the provisions of Section 34 of the Act, 2002. Proceeding in P.L.A are to be held in a spirit of conciliation and settlement. Any decision in pre-litigation case on merits under Section 22-C(8) can be passed after following the procedure prescribed under Section 22-C. The procedure has been well interpreted and laid down by learned Single Judge of this Court in the case of Branch Manager, Tata AIG v. Mrs. Bandana Devi reported in MANU/JH/0255/2010 : (2010) 3 JLJR 312 relied upon by the petitioner Bank.

IN THE HIGH COURT OF JHARKHAND AT RANCHI

W.P. (C) No. 6328 of 2015

Decided On: 04.05.2016

Allahabad Bank Vs. Sunita Devi

Hon'ble Judges/Coram:

Aparesh Kumar Singh, J.
Citation:AIR 2017 JHAR 118

Print Page

Whether court should direct parties to deposit costs in legal services authority?

We would however like to refer to two aspects of the order of the High Court relating to costs. The first is, whether a court, having reached a conclusion that a party deserves to be prosecuted for perjury, should let him off with what it considers to be a stiff penalty by way of costs, on the ground that courts are overburdened with work. We propose to leave open for the present, this question involving moral and ethical issues.

10. The second aspect relates to the recipient of the costs. In para 38 of the impugned judgment, the High Court specifically stated that it had decided to saddle the parties with heavy costs to be paid to the state which spends money on judicial infrastructure. Having said so, in para 39, the High Court directed that the costs should be paid to the Delhi High Court Legal Services Committee. The High Court Legal Services Committee, a statutory authority under the Legal Services Authorities Act, 1987, is not the `state' that spends money on providing judicial infrastructure, referred in the earlier para. Once the Court held that costs had to be paid to the state, it should have directed payment of the costs to the state and not the High Court Legal Services Committee. No litigant should be made to feel that heavy costs are being levied in some cases by Judges to create a corpus or expense fund for the High Court Legal Services Committee or the State Legal Services Authority. While levy of an uniform token sum, as costs payable to the Legal Service Authority/Committee by way of a deterrent fine, in regard to non-compliance with procedural requirements, delays in re-presentation of papers etc. may not be objectionable, levy of huge amounts as costs in selected cases, made payable to the Legal Service Authorities, may invite adverse comments and evoke hostility to legal services in general. We have also come across cases of costs being levied and made payable to some non-party charitable organizations. Levy of such costs should be avoided.

11. The Delhi High Court Legal Services Committee when it receives the sum of Rs. Two Lakhs as costs from the parties, shall make over the same to the state government as directed in para 38 of the impugned judgment. Let a copy of this order be sent to the Delhi Legal Services Committee, for compliance.

Reportable

Supreme Court of India

Ashok Kumar Mittal vs Ram Kumar Gupta & Anr on 9 January, 2009

Bench: R.V. Raveendran, J.M. Panchal

Citation: 2009(2) SCC 656

Print Page

Whether 100% court fees refund is possible when case is settled in mediation?

In the instant matter, the award has not been passed 
by the Lok Adalat.  Section 21 of the Legal Services Authorities Act, 
1987 stipulates that every award of the Lok Adalat shall be deemed 
to be a decree of Civil Court or, as the case may be an order of any 
other   Court   and   where   a   compromise   or   settlement   has   been 
arrived   at,   by   a  Lok  Adalat  in   a   case   referred   to   it   under   sub­
section (1) of section 20, the Court­fee paid in such case shall be 
refunded in the manner provided under the Court Fees Act, 1870. 
On consideration of provisions of Section 21 of the Legal Services 
Authorities Act, 1987, it is evident that an award of the Lok Adalat 
shall   be   deemed   to   be   a   decree   of   Civil   Court   and   the   matters 

wherein award has been passed by the Lok Adalat are governed by 
the   provisions   of   Legal   Services   Authorities   Act   and   as   such,   in 
such of those matters, refund of court fees shall be in accordance 
with the provisions of Court Fees Act, 1870.  It is to be noted that 
in Section 21 of the Legal Services Authorities Act, 1987, provisions 
contained in Court Fees Act, 1870, relating to refund of court fees, 
are incorporated.  Thus, it is a case of legislation by incorporation 
and by virtue of such incorporation, provisions of Court Fees Act, 
1870   relating   to   refund   of   court   fees,   are   made   applicable   in 

respect   of   award   passed   by   the  Lok  Adalat.    The   analogy 
applicable  to the  awards  of  Lok  Adalat  cannot  be  applied  to the 
decrees   passed   by   the   Courts   on   the   basis   of   settlement,   even 
though  same is reached in furtherance of  a mediation taken  up 
under Section 89 of the Code of Civil Procedure.    Once it is held 
that provisions of Maharashtra Court Fees Act, 1959, are attracted, 
it   would   be   permissible   for   the   State   to   issue   notification 
prescribing   refund   of   court   fees   in   exercise   of   powers   conferred 
under Section 43(2) of the Act.  The notification dated 08.05.2013, 
thus, cannot be said to be ultra vires the powers exercisable by the 
State under Maharashtra Court Fees Act, 1959.


IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
 WRIT PETITION NO.4919 OF 2014 

Sanjeevkumar Harakchand  Vs Union of India,

        CORAM : R.M.BORDE &
                                        V.K.JADHAV, JJ.
        DATE    : 01st  October, 2014
Citation;2015(2) MHLJ157 Bom,2014(6)ABR827, 2015(1)BomCR49

Print Page

Whether lok adalat can decide case on merit on the ground that case is not contested?

We   have   carefully   perused   the   provisions   of   the   Legal 
Services   Authorities   Act,   1987   and   in   particular     Section   20   thereof. 
Prima facie, we are of the view that if there is no settlement arrived at 
before the Lok Adalat,  the obligation of the Lok Adalat is to return the 
record of the case to the concerned Court for disposal in accordance 
with law.   Prima facie, it appears to us that the Lok Adalat does not get 
jurisdiction to decide the case referred to it on merits on the ground 
that the case is not contested.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5105 OF 2014
Shri Rajabhau Damodar Raikar.

Vs
The Assistant Charity Commissioner No.2,
Pune Region, Pune, and Others.

CORAM  :  A.S. OKA & A.S.GADKARI, JJ 
DATED    :     18TH NOVEMBER 2014

Print Page