May 12, 2019
Successive Bail Applications Should Be Placed Before The Same Judge Who Considered The First One: SC
Gati Limited vs.T. Nagarajan Piramiajee
In this case (Gati Limited vs.T. Nagarajan Piramiajee), the FIR was registered against the accused for the offences punishable under Sections 420, 465, 467, 468 and 472 of the Indian Penal Code. He filed an anticipatory bail before the Madras High Court which was rejected by a judge of the Madurai bench.
This order was upheld by the Apex court by dismissing the SLP filed against it.
After 13 days, the accused filed a second application for anticipatory bail which came to be heard by another Judge, though the Judge who had heard the first application was available.
In the appeal filed before the Apex Court, the bench comprising Justice NV Ramana and Justice Mohan M. Shantanagoudar referred to ShahzadHasan Khan v. Ishtiaq Hasan Khan and other judgments which have held that such cases of successive bail applications should be placed before the same Judge who had refused bail in the first instance, unless that Judge is not available.
The bench said "It is clear that the well settled principle of law enunciated in the decisions cited supra has not been followed, inasmuch as the second application for anticipatory bail was heard by a different Judge in spite of the availability of the Judge who had disposed of the first application."
The court also observed that the bail should not have been granted since there has been no change of circumstance for grant of anticipatory bail in the second application since the disposal of the first.
August 24, 2018
The Negotiable Instruments (Amendment) Act, 2018 comes in to effect from 01-September 2018
The following amendments have been made —
1) Section 143 — now introduces a new proviso 143A, giving power to a Court to try an offence under S. 138 to order the drawer of cheque to pay interim compensation to the complainant in summary trials/summons case where he pleads not guilty to the accusations in the complaint. Furthermore, the interim compensation shall not exceed 20 % of amount of the cheque and shall be payable within 60 days from date of the order.
2) Recovery of fine shall be same as under Section 421 of the Code of Criminal Procedure, 1973.
3) In cases of acquittal, the Court is now empowered to direct the complainant to repay to the appellant the amount so released, at interest rates as prescribed by RBI.
Section 148 — now empowers the appellate court, for appeals against conviction under S. 138, to direct the appellant to deposit a minimum 20 % of the fine/compensation awarded, in addition to interim compensation paid under S. 143A.
July 22, 2018
Plea of Insanity Has To Be Established By Accused Only On Preponderance Of Probability, Reiterates SC...
‘The accused has only to establish his defence on a preponderance of probability, after which the onus shall shift on the prosecution to establish the inapplicability of the exception.’
The Supreme Court in Devidas Loka Rathod v. State of Maharashtra has reiterated that the onus on the accused, who takes a plea of insanity, is not as stringent as on the prosecution to be established beyond all reasonable doubts but he has only to establish his defence on a preponderance of probability after which the onus shall shift on the prosecution to establish the inapplicability of the exception.
June 7, 2018
Passport Can Be Impounded By Passport Authority Only, Not The Police: Bombay HC Directs CBI To Return Jignesh Shah’s Passport
In a relief to Jignesh Shah, the Bombay High Court has directed the Central Bureau of Investigation to return his passport that has been in CBI’s custody since March 13, 2014. Justice PD Naik heard the criminal revision application filed by Jignesh shah, prime accused in the multi-crore NSEL-FTIL scam. The court held that the CBI only had the authority to seize the passport which it did, but not impound it. Such powers only lie with the Passport Authority under Section 10(3) of the Passport Act, the court said.
Inciting People On Social Media Might Also Amount To Attempting To Wage War Against The Government: P&H HC...
“Collecting Men” On Social Media Akin To “Collecting Arms” For Waging War Against Government, said HC Refusing to grant bail to an alleged member of terror group Babbar Khalsa International, the Punjab and Haryana High Court recently observed that ithat inciting people on social media might also amount to mounting an attempt at waging war against the government....
April 29, 2018
Mere Abduction of Woman does not Establish Offence u/Sec 366 of IPC
While observing the facts and circumstances of the case, the Two-Judge Bench of the Supreme Court held that no offence of abduction was made out under Section 366 of Indian Penal Code. The other observations made by the Court in the case are enumerated below:
What constitutes offence of Abduction under Section 366 of IPC?
1) That in order to constitute the offence of ‘abduction’ a person must be carried off illegally by force or deception, that is, to compel a person by force or deceitful means to induce to go from one place to another.
2) That the intention of the accused is the basis and the gravamen of an offence under this Section. The volition, the intention and the conduct of the accused determine the offence; they can only bear upon the intent with which the accused kidnapped or abducted the woman, and the intent of the accused is the vital question for determination in each case. Once the necessary intent of the accused is established, the offence is complete, whether or not the accused succeeded in effecting his purpose, and whether or not the woman consented to the marriage or the illicit intercourse.
3) That to constitute an offence under Section 366 of IPC, it is necessary for the prosecution to prove that the accused induced the complainant woman or compelled by force to go from any place, that such inducement was by deceitful means, that such abduction took place with the intent that the complainant may be seduced to illicit intercourse and/or that the accused knew it to be likely that the complainant may be seduced to illicit intercourse as a result of her abduction. Mere abduction does not bring an accused under the ambit of this penal section.
4) That to establish an offence under Section 366 of IPC mere finding that a woman was abducted is not enough, it must further be proved that the accused abducted the woman with the intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse.
5) That unless the prosecution proves that the abduction is for the purposes mentioned in Section 366 of IPC, the Court cannot hold the accused guilty and punish him under Section 366 of IPC
April 09, 2018
Lender can’t seize vehicle of defaulter without notice
The National Consumer Disputes Redressal Commission (NCRDC) on Friday ordered a private finance company to pay Rs 80,000 to the borrower whose tractor was seized by the company in January, 2011 for alleged nonpayment of dues.
Directing Shriram Transport Finance Company to refund the amount, which the borrower had paid to the company, with 9% interest within four weeks, single-member bench of M Sreesha said, “In my opinion, a seizure of the vehicle in such circumstances violating the principles of natural justice without giving an opportunity to the borrower to show his bona fides, amounts not only to unfair trade practice but also deficiency of service for which the financier is liable to compensate the complainant.”
The NCDRC relied on the “vehicle repossession notice” by the company to the borrower, which showed that the notice was issued 10 days after the actual date of repossession of the tractor and the Commission observed that this “cannot be stated to be a notice prior to repossession which is in contravention of the principle of natural justice
March 29, 2018
Stay orders in civil or criminal cases end after 6 months: Supreme Court
The Supreme Court on Wednesday in an important decision set to have a far-reaching impact on thousands of cases pending in various courts, held that the stay of trial court proceedings, both in civil and criminal cases, would come to an end after the expiry of six months from the date of grant of stay, unless extended by a speaking order that explain the need for the stay order in exceptional circumstances that continuing the stay was more important than having the trial finalised.
Even where such a challenge is entertained and stay is granted, the matter must be decided on day-to-day basis so that stay does not operate for an unduly long period and defeat the very purpose of the order.
The issue came up during the hearing of an appeal against a Delhi High Court order in an issue relating to Prevention of Corruption Act, 1988 against some officials of the Delhi Municipal Corporation which also posed a question of law as to whether a high court had the jurisdiction to entertain such an appeal against an order framing charges by a trial court.
The order was passed by a three-judge bench of Justices Adarsh Kumar Goel, R F Nariman and Navin Sinha, which held that the legislative mandate of expeditious disposal of a trial should be respected.
The Supreme Court asked the High Courts to entertain such review petition in consistency with the legislative policy to ensure expeditious disposal of a trial without the same being hampered in any manner.
The Supreme Court also said where the high court entertains challenge to an order framing charge, decision of such a petition should not be delayed unnecessarily with any justified reason.
The Supreme Court while cautioning also held that the challenge to an order of charge should be entertained in a “rarest of rare” case only to correct a patent error of jurisdiction and not to re-appreciate the matter over and over again.
Though no mandatory time limit may be fixed, the court held that the decision should not exceed two-three months in normal circumstances.
January 9, 2018
Life imprisonment’ to be awarded when there is a prospect of rehabilitation and reformation, and ‘death penalty’ to be the last resort
Ravi Kapoor v. State (Govt. of NCT of Delhi), CRL.A.911/2016, Delhi High Court.
Reliance was placed on Aloke Nath Dutta v. State of West Bengal [(2007) 12 SCC 230] and Mohinder Singh v. State of Punjab, (2013) 3 SCC 294 : AIR 2013 SC 3622, where the Apex Court observed that-
“The doctrine of ‘rarest of rare’ requires two aspects to be satisfied:
A) First being, the case must fall under the ambit of ‘rarest of rare’ and
B) Secondly, if the alternative option is unquestionably foreclosed, i.e. death penalty should be the last resort, and to be looked to only when alternative punishment of life imprisonment is futile and serves no purpose”.
Furthermore, this Court observed that-
“in life sentence, there is a possibility of achieving deterrence, rehabilitation and retribution in different degrees. But the same does not hold true for the death penalty. It is unique in its absolute rejection of the potential of convict to rehabilitate and reform. It extinguishes life and thereby terminates the being, therefore, puts an end anything to do with the life. This is the big difference between two punishments. Thus, before imposing death penalty, it is imperative to consider the same”.
High Court of Delhi directs ICAI to suspend CA found manipulating public issue of company
Council of The Institute of Chartered Accountant of India, v. Ashok Kumar
Respondent was a member of ICAI. Investigations were conducted by SEBI into buying, selling and dealing in share of company BFSL, as also role of respondent-CA. SEBI found several irregularities in public issue of BFSL. SEBI debarred respondent-CA for 5 years after holding him guilty. SEBI intimated ICAI to proceed against him. Disciplinary Committee of ICAI held him guilty and ICAI Council directed his removal from Register of Members of ICAI for a period of one year. Reference was accepted by High Court and it was directed that respondent-CA shall be suspended from membership of ICAI for a period of one year
• CAs are not merely professionals engaged by their clients, but are protectors and guardians of financial markets on which a nation depends. Therefore, CAs ought to maintain highest level of ethics and integrity, not only in interest of their clients but also to ensure that probity and sanctity are not compromised in any manner.
Two conditions for bailing one out under Prevention of Money Laundering Act struck down by Apex Court
SUPREME COURT OF INDIA, Nikesh Tarachand Shah v. Union of India
Money Laundering Act : Section 45(1) of the Prevention of Money Laundering Act, 2002, insofar as it imposes two further conditions for release on bail, to be unconstitutional as it violates Articles 14 and 21 of the Constitution of India
Section 45(1) imposes two conditions for grant of bail where an offence punishable for a term of imprisonment of more than 3 years under Part A of the Schedule to the Act is involved. The conditions are that
a) the Public Prosecutor must be given an opportunity to oppose any application for release on bail and
b) the Court must be satisfied, where the Public Prosecutor opposes the application, that there are reasonable grounds for believing that the accused is not guilty of such offence, and that he is not likely to commit any offence while on bail.
November 10, 2017
Supreme Court rejects bail application of accused on his failure to explain source of demonetized notes
SUPREME COURT OF INDIA, Rohit Tandon v. Enforcement Directorate
PML Act : Where appellant accused failed to explain source from where he had acquired huge amount of demonetized currency recovered from him, his prayer for bail on being arrested for offence u/s 3&4 of PML Act was rightly rejected
• Facts : Bail application of appellant accused who was arrested for offence u/s 3&4 of Prevention of Money Laundering Act, 2002 for depositing Rs. 38.53 Crore in cash of demonetized currency into bank accounts of companies and getting demand drafts issued in fictitious names with intention of getting them cancelled and thereby converting demonetized currency into monetized currency on commission basis was rejected
• Held that there was inexplicable silence or reluctance of appellant in disclosing source from where such huge value of demonetized currency and also new currency had been acquired by him. Fact that no limit for deposit was specified, in demonetisations in Notification dated 8-11-2016 would not extricate appellant from explaining source from where such huge amount had been acquired, possessed or used by him. Volume of demonetized currency recovered from office and residential premises of appellant, including bank drafts in favour of fictitious persons and also new currency notes for huge amount, leave no manner of doubt that it was outcome of some process or activity connected with proceeds of crime projecting property as untainted property. Possession of such huge quantum of demonetized currency and new currency in form of Rs.2000/ notes, without disclosing source from where it is received and purpose for which it was received, appellant had failed to dispel legal presumption that he was involved in moneylaundering and property was proceeds of crime. Thus, opinion of Sessions Court and High Court rejecting prayer for grant of regular bail to appellant was not to be interferred with.
October 5, 2017
SC Issues Guidelines On Quashing Of FIR/Criminal Proceedings On The Ground Of Settlement Between Parties
(i) Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court;
(ii) The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.
(iii) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;
(iv) While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court;
(v) The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;
(vi) In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;
(vii) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;
(viii) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute;
(ix) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a 17 conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and
(x) There is yet an exception to the principle set out in propositions (viii) and (ix) above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.
September 27, 2017
Allahabad HC Allows Woman’s Plea To Give Her Child In Adoption To Her New Husband
Renunciation of the child by a parent can be taken into consideration while determining whether the power to give in adoption has been delegated or to determine the consent to giving in adoption, the court observed.
In the facts of the case, the court said: “Biological father of the child, in the present case has abandoned him; rather has renounced him and has not performed any of his duties, which he owes to the child. He has also given up all his rights, including the right of visitation.
Allowing the plea, the court said: “If the biological father in this case has not taken any measures to bear his responsibility, the laws and the Court will hesitate to grant any such right in favour of a parent who has failed to do so.”
September 22, 2017
The Supreme Court has held that NBFC is entitled to initiate both arbitration proceedings and SARFAESI proceedings with respect to a loan account, and that the ‘doctrine of election’ was not attracted in such a scenario.
IN THE SUPREME COURT OF INDIA, CIVIL APPELLATE JURISDICTION,CIVIL APPEAL NO. 15147 OF 2017, M.D.Frozen Foods Exports Pvt. Ltd. & Ors versus Hero Fincorp Ltd
It was further clarified that there was no illegality in an Non-Banking Financial Company(NBFC) invoking SARFAESI Act for recovery of loan arrears with respect to an account classified as Non-Performing Asset(NPA) before the NBFC got notified under the Act
The issue was considered by a bench comprising Justices R.F Nariman and Sanjay Kishen Kaul. In the case, the lender Hero Fincorp Ltd., was an NBFC, which had advanced loan to one M.D Frozen Foods Exports Pvt.Ltd, The lender had initiated arbitration proceedings on 16.11.2016. The lender was also notified under Sec.31(2)(1)(m)(iv) of the SARFAESI Act. Once an NBFC gets notified under the said provision, it becomes entitled to invoked proceedings under SARFAESI Act.
It was explained that the doctrine of election was attracted only in cases where both remedies available are mutually repugnant or inconsistent.
SARFAESI Act provided an additional remedy for enforcement of claim against secured asset as opposed to an adjudicatory process for realization of dues.
September 06, 2017
ITC files Rs 1,000 crore defamation suit against IiAS
Diversified firm ITC has filed a Rs 1,000-crore defamation suit against proxy advisory firm IiAS at the Calcutta High Court for allegedly making 'defamatory' statements against the company and its directors.
In the suit, filed last month, ITC said Institutional Investor Advisory Services (IiAS) had published two reports that were "false, defamatory and malicious" on its website (www.iiasadvisory.com) in July 2017 before the AGM of the company.
It prayed before the court to issue a "decree for Rs 1,000 crore against" the defendants while also seeking a mandatory injunction directing IiAS to publish an unconditional apology.
June 05, 2017
Compensation would be recoverable from accused even if imprisonment for default has taken place: SC
When compensation is ordered as payable for an offence committed under section 138 of Negotiable Instrument Act, and in default thereof, a jail sentence is prescribed and undergone, compensation is still recoverable
SUPREME COURT OF INDIA, Kumaran v. State of Kerala
Section 138 of the Negotiable Instruments Act, 1881, read with sections 357, 421 and 431 of the Code of Criminal Procedure, 1973 - Dishonour of cheque for insufficiency of funds, etc. - Whether when compensation is ordered as payable for an offence committed under section 138 of 1881 Act, and in default thereof, a jail sentence is prescribed and undergone, compensation is still recoverable - Held, yes
May 18, 2017
SC Upholds State’s Power To Attach Properties Of ‘Defaulting’ Financial Establishments.
The Supreme Court, in State vs KS Palanichamy, has upheld the state government’s power to issue ad interim order under Section 3 of the Tamil Nadu Protection of Interests of Depositors (In Financial Establishments) Act, 1997, the immovable properties belonging to a financial establishment which defaults in returning deposits after maturity or fails to pay interest on deposit or fails to provide any service for which the deposit has been made, basing on the complaint of complaint of investors...
May 01, 2017
1) Bombay High Court has set a precedent after it served a summon via WhatsApp in a copyright infringement suit against producers of Kannada movie ‘Pushpaka Vimana’ released in 2017.
2) Delhi High Court has said that hospitals cannot hold patients “hostage” to extract money for unpaid bills.
3) Delhi High Court has directed Delhi Police to flash photographs of missing persons on social media "without fail" to ensure such persons are traced soon enough.
4) Supreme Court has said that acquittal of relatives or husband under Section 498A IPC will bar prosecution to use presumption available under Section 113A of Evidence Act prove abetment to suicide under Section 306IPC.
5)Delhi High Court has reiterated that nomination is not a Will in law and in absence of any Will, only legal heirs (as per the Hindu Succession Act) shall be entitled to inherit property of deceased.
April 01, 2017
1) SC TO CENTRE: FRAME NEW MEDIA POLICY WITHIN SIX WEEKS
Supreme Court has directed Centre to frame fresh media briefing policy for probing agencies to guard against prejudicing an accused and violating the rights of a complainant or victim in criminal cases.
2) SUPREME COURT: COMPANIES CANNOT CLAIM 'PREMIUM' RECEIVED ON SHARES AS 'DEDUCTION'
Supreme Court has held that premium collected by companies on its subscribed share capital does not come within the ambit of “capital employed in business of company” as given under section 35D of Income Tax Act, 1961 and hence a company cannot claim “premium” received on shares as deduction.
3) SC: HC HAS NO JURISDICTION TO DECIDE UPON UNFRAMED QUESTION OF LAW DURING SECOND APPEAL
Supreme Court, while setting aside a High Court judgment, which suo moto applied a provision of law while deciding a second appeal, has reiterated that High Court has no jurisdiction to decide on a second appeal on a question which is not framed as required under Section 100(4) of CPC.
4) DELHI HC IN BT COTTON PATENT CASE: MONSANTO TERMINATION OF NUZIVEEDU SEEDS SUB-LICENCE PACT ILLEGAL
Delhi High Court, while ruling that Monsanto Technology LLC’s termination of its sub- licence agreement with Nuziveedu Seeds Ltd was illegal and arbitrary, has said the royalty or trait fee payable for use of Monsanto’s patented Bt cotton technology would be as per Government stipulations.
March 05, 2017
1) MADRAS HIGH COURT: PENDENCY OF CRIMINAL CASES NO BAR FOR RE-ISSUANCE OF PASSPORT
2) GUJARAT HIGH COURT: UNREGISTERED FIRM HAS LOCUS TO FILE CRIMINAL COMPLAINT FOR CHEQUE DISHONOUR
Gujarat High Court has ruled that an unregistered partnership firm can file a criminal complaint for a dishonoured cheque under section 138 of Negotiable Instruments Act
3) BOMBAY HIGH COURT: ‘COMPENSATING RAPE VICTIMS IS STATE’S DUTY, NOT CHARITY’
Bombay High Court has said that rape victims are not beggars and giving compensation to women victims of crime is the State’s obligation and not charity.
4) BOMBAY HIGH COURT: MERE SPEEDING DOESN’T AMOUNTS TO RASH & NEGLIGENT DRIVING
Bombay High Court has held that merely driving a vehicle at a high speed is not enough to attract offence of rash and negligent driving.
February 04, 2017
Only Plaintiff’s Pleadings Can Be Looked Into For Order VII Rule 11 CPC Enquiry
Under Order VII Rule 11, the court has to take a decision looking at the pleadings of the plaintiff only and not on the rebuttal made by the defendant or any other materials produced by the defendant.
The Supreme Court, in Kuldeep Singh Pathania vs. Bikram Singh Jarya, has held that for an enquiry under Order VII Rule 11 (a) of Code of Civil Procedure, only the pleadings of the plaintiff can be looked into even if it is at the stage of trial of preliminary issues.
February 01, 2017
Magistrate Can’t Order Further Investigation At Post Cognizance Stage
IN THE SUPREME COURT OF INDIA, CRIMINAL APPELLATE JURISDICTION, CRIMINAL APPEAL NO.1171 OF 2016, ( ARISING OUT OF S.L.P (CRIMINAL) NO.3338 OF 2015)
that Magistrate cannot order further investigation after the cognizance has been taken, process has been issued and accused has entered appearance in response thereto.
The Bench though the investigating agency concerned has been invested with the power to undertake further investigation desirably after informing the Court thereof before which it had submitted its report and obtaining its approval,no such power is available therefore to the Magistrate after cognizance has been taken on the basis of the earlier report, process has been issued and accused has entered appearance in response thereto
“The direction for investigation by the Magistrate under Section 202, while dealing with a complaint, though is at a post-cognizance stage, it is in the nature of an inquiry to derive satisfaction as to whether the proceedings initiated ought to be furthered or not...